Law Dictionary

Law Dictionary

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WordMeaning
a fortiori (ah-for-she-ory) prep. Latin for "with even stronger reason," which applies to a situation in which if one thing is true then it can be inferred that a second thing is even more certainly true. Thus, if Anil is too young to serve as administrator, then his younger brother Amit certainly is too young.
a priori assumption (ah-pree-ory) n. from Latin, an assumption that is true without further proof or need to prove it. It is assumed the sun will come up tomorrow. However, it has a negative side: an a priori assumption made without question on the basis that no analysis or study is necessary, can be mental laziness when the reality is not so certain.
a.k.a. prep. abbreviation for "also known as" when someone uses different initials, a nickname, a maiden or married name. Example: Amit G. Das, a.k.a. A. G. Das, a.k.a. "Snuffy the Snod."
ab initio prep. lawyer Latin for "from the start," as "it was legal ab initio."
abandon v. to intentionally and permanently give up, surrender, leave, desert or relinquish all interest or ownership in property, a home or other premises, a right of way, and even a spouse, family, or children. The word is often used in situations to determine whether a tenant has left his/her apartment and the property inside and does not intend to come back. Thus, a landlord can take over an apparently abandoned residence, but must store anything a tenant leaves behind and give notice to the tenant before selling the possessions, which are left. To abandon children can mean to have no contact and give no support for a year or more.
abandoned property n. property left behind (often by a tenant) intentionally and permanently when it appears that the former owner (or tenant) does not intend to come back, pick it up, or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long period of time, or patent rights of an inventor who does not apply for a patent and lets others use his invention without protest. One may have abandoned the property of contract rights by not doing what is required by the contract. However, an easement and other land rights are not abandoned property just because of non-use.
abandonment n. the act of intentionally and permanently giving up, surrendering, deserting or relinquishing property, premises, a right of way, a ship, contract rights, a spouse and/or children. Abandonment of a spouse means intent at permanent separation, and with children a lengthy period of neither contact nor any support. In maritime law abandonment has a special meaning: when an owner surrenders a ship and its contents to a trustee for the benefit of claimants, particularly after a wreck. If one invents something and does not get a patent but allows others to use the invention or dedicates it to public use, the right to patent is probably abandoned. Confusion arises over abandonment of water rights, mining rights, or rights of way, since mere non-use is not sufficient to show abandonment.
abate v. to do away with a problem, such as a public or private nuisance or some structure built contrary to public policy. This can include dikes, which illegally direct water onto a neighbor's property, high volume noise from a rock band or a factory, an improvement constructed in violation of building and safety codes, or seepage from a faulty septic tank.
abatement n. 1) the removal of a problem which is against public or private policy, or endangers others, including nuisances such as weeds that might catch fire on an otherwise empty lot; 2) an equal reduction of recovery of debts by all creditors when there are not enough funds or assets to pay the full amount; 3) an equal reduction of benefits to beneficiaries (heirs) when an estate is not large enough to pay each beneficiary in full.
abduction n. the criminal taking away of a person by persuasion (convincing someone-particularly a minor or a woman-he/she is better off leaving with the persuader), by fraud (telling the person he/she is needed, or that the mother or father wants him/her to come with the abductor), or by open force or violence. Kidnapping is more limited, requiring force, threat of force upon an adult or the taking of children.
abet v. to help someone commit a crime, including helping them escape from police or plan the crime.
abeyance 1) n. when the owner- ship of property has not been determined. Examples include title to real property in the estate of a person who has died and there is no obvious party to receive title or there appears to be no legal owner of the property, a shipwreck while it is being determined who has the right to salvage the ship and its cargo, or a bankrupt person's property before the bankruptcy court has decided what property is available to creditors or alleged heirs. 2) legal jargon for "undetermined."
able-bodied adj. physically capable of working at a job or in the military. It is often used to describe a person as capable of earning a living and, therefore, of paying alimony or child support
abortion n. the termination of pregnancy by various means, including medical surgery, before the fetus is able to sustain independent life.
abrogate v. to annul or repeal a law or pass legislation that contradicts the prior law. Abrogate also applies to revoking or withdrawing conditions of a contract.
abscond v. 1) traditionally to leave a jurisdiction (where the court, a process server or law enforcement can find one) to avoid being served with legal papers or being arrested. 2) a surprise leaving with funds or goods that have been stolen, as in "he absconded with the loot."
absolute adj. complete, and without condition.
abstract n. in general, a summary of a record or document, such as an abstract of judgment or abstract of title to real property.
abstract of judgment n. a written summary of a judgment which states how much money the losing party owes to the person who won the lawsuit (judgment creditor), the rate of interest to be paid on the judgment amount, court costs, and any specific orders that the losing party (judgment debtor) must obey, which abstract is acknowledged and stamped so that it can be recorded at the county recorder.
abstract of title n. the written report on a title search which shows the history of every change of ownership on a piece of real estate, and any claims against the property, such as easements on the property, loans against it, deeds of trust, mortgages, liens, judgments, and real property taxes. Some abstracts only go back in history to the last change in title. In some places the abstract of title is prepared by a title company, and in other places by an individual who is called an abstractor. Most buyers and all lenders require the title report with an abstract. The information in the abstract is up to the moment, comes from the local county recorder's office, and usually requires an expert search.
abuse of discretion n. a polite way of saying a trial judge has made such a bad mistake ("clearly against reason and evidence" or against established law) during a trial or on ruling on a motion that a person did not get a fair trial. A court of appeals will use a finding of this abuse as a reason to reverse the trial court judgment. Examples of "abuse of discretion" or judges' mistakes include not allowing an important witness to testify, making improper comments that might influence a jury, showing bias, or making rulings on evidence that deny a person a chance to tell his or her side of the matter. This does not mean a trial or the judge has to be perfect, but it does mean that the judge's actions were so far out of bounds that someone truly did not get a fair trial. Sometimes the appeals courts admit the judge was wrong, but not wrong enough to have influenced the outcome of the trial, often to the annoyance of the losing party. In criminal cases abuse of discretion can include sentences that are grossly too harsh. In a divorce action, it includes awarding alimony way beyond the established formula or the spouse's or life partner's realistic ability to pay.
abuse of process n. the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.
abut v. when two parcels of real property touch each other.
acceleration n. 1) speeding up the time when there is vesting (absolute ownership) of an interest in an estate, when the interest in front of it is terminated earlier than expected; 2) in a contract or promissory note, when the payment of debt is moved up to the present time due to some event like non-payment of an installment or sale of the property which secures the debt.
acceleration clause n. a provision in a contract or promissory note that if some specified event (like not making payments on time) occurs then the entire amount is due or other requirements are due now, pronto. This clause is most often found in promissory notes with installment payments for purchase of real property and requires that if the property is sold then the entire amount of the note is due immediately (the so-called "due on sale clause").
accept v. to receive something with approval and intention to keep it. This use often arises on the question of accepting a payment which is late or not complete or accepting the "service" (delivery) of legal papers.
acceptance n. 1) receiving something from another with the intent to keep it, and showing that this was based on a previous agreement. 2) agreeing verbally or in writing to the terms of a contract, which is one of the requirements to show there was a contract (an offer and an acceptance of that offer). A written offer can be accepted only in writing. 3) receiving goods with the intention of paying for them if a sale has been agreed to. 4) agreement to pay a bill of exchange, which can be an "absolute acceptance" (to pay as the bill is written) or "conditional acceptance" (to pay only when some condition actually occurs such as the shipment or delivery of certain goods). "Acceptance" is most often used in the factual determination of whether a contract was entered into.
acceptance of service n. agreement by a defendant (or his/her attorney) in a legal action to accept a complaint or other petition (like divorce papers) without having the law enforcement officer show up at the door. The agreement of "acceptance of service" must be in writing or there is no proof that it happened. In most jurisdictions there is a form entitled "receipt and acknowledgment of acceptance of service" or similar language which must be signed, dated and sent back to the attorney who sent the complaint or petition. Attorneys must be careful that they have legal authority from a client to act on his/her behalf, because a client may deny later that he/she gave authority to accept service
access n. 1) in real estate the right and ability to get to the property. 2) when a husband has the opportunity to make love to his wife, it is said he has access. This rather vulgar use of "access" has been important because if a husband "had access" to his wife during the time when she became pregnant, it is presumed he is the father. Modern use of blood tests and DNA studies may show the father to be someone other than the husband whether the husband "had access" or not.
accessory n. a second-string player who helps in the commission of a crime by driving the getaway car, providing the weapons, assisting in the planning, providing an alibi, or hiding the principal offender after the crime. Usually the accessory is not immediately present during the crime, but must be aware that the crime is going to be committed or has been committed. Usually an accessory's punishment is less than that of the main perpetrator, but a tough jury or judge may find the accessory just as responsible.
accommodation n. 1) a favor done without compensation (pay or consideration), such as a signature guaranteeing payment of a debt, sometimes called an accommodation endorsement. Such accommodation is not the smartest business practice, since the holder of the note can go after the accommodator rather than the debtor and will do so if the accommodator has lots of money or is easier to locate than the debtor. 2) giving in to an adversary on a point to make a deal work.
accomplice n. someone who assists in the commission of a crime and, unlike a mere accessory, is usually present or directly aids in the crime (like holding a gun on the bank guard while the vault is looted, or holding a victim of assault and battery). Also unlike an accessory who can claim being only a subordinate figure, the accomplice may share in the same charge and punishment as the principal criminal.
accord and satisfaction n. an agreement to accept less than is legally due in order to wrap up the matter. Once the accord and satisfaction is made and the amount paid (even though it is less than owed) the debt is wiped out since the new agreement (accord) and payment (the satisfaction) replaces the original obligation. It is often used by creditors as "a bird in the hand is worth two in the bush" practicality.
account stated n. a statement between a creditor or the person to whom money is owed and a debtor (the person who owes) that a particular amount is owed to the seller as of a certain date. Often the account stated is a bill, invoice or a summary of invoices, signed by the customer or sent to the customer who pays part or all of it without protest. This is important when a frustrated businessman sues for "account stated" which sets both the debtor's liability and the exact amount the debtor must pay, which is less complicated than claiming a debt is due and payable.
accounts payable n. bills that are owed.
accounts receivable n. the amounts of money due or owed to a business or professional by customers or clients. Generally, accounts receivable refers to the total amount due and is considered in calculating the value of a business or the business's problems in paying its own debts. Evaluation of the chances of collecting based on history of customers' payments, quality of customers and age of the accounts receivable and debts is important. A big mistake made by people overly eager to buy a business is to give too high a value to the accounts receivable without considering the chances of collection.
accretion n. 1) in real estate, the increase of the actual land on a stream, lake or sea by the action of water which deposits soil upon the shoreline. Accretion is Mother Nature's little gift to a landowner. 2) in estates, when a beneficiary of the person who died gets more of the estate than he/she was meant to because another beneficiary or heir dies or rejects the gift. Example: if a brother and sister were supposed to divide a share of Dad's estate, but brother doesn't want it, then sister's share grows by accretion. 3) in trusts, accretion occurs when a beneficiary gets a surprising increase in benefits due to an unexpected event.
accrue v. 1) growing or adding to, such as interest on a debt or investment which continues to accumulate. 2) the coming into being of the right to bring a lawsuit. For example, the right to sue on a contract only accrues when the contract is breached (not on mere suspicion that it might be breached) or when the other party repudiates the contract (anticipatory breach).
accusation n. 1) in legal terms accusation means officially charging someone with a crime either by indictment by a Grand Jury or filing charges by a District Attorney. 2) in lay terms any claim of wrongdoing by another person.
acknowledge v. 1) generally to admit something, whether bad, good or indifferent. 2) to verify to a notary public or other officer (such as a County Clerk) that the signer executed (wrote, signed) the document like a deed, lease, or power of attorney, to make it certified as legal and suitable for recording.
acknowledgment n. the section at the end of a document where a notary public verifies that the signer of the document states he/she actually signed it.
acquit v. what a jury or judge sitting without a jury does at the end of a criminal trial if the jury or judge finds the accused defendant not guilty
acquittal n. what an accused criminal defendant receives if he/she is found not guilty. It is a verdict (a judgment in a criminal case) of not guilty.
act 1) n. in general, any action by a person. 2) n. a statutory plan passed by Congress or any legislature which is a "bill" until enacted and becomes law. 3) v. for a court to make a decision and rule on a motion or petition, as in "the court will act on your motion for a new trial."
action n. a lawsuit in which one party (or parties) sues another.
actionable adj. when enough facts or circumstances exist to meet the legal requirements to file a legitimate lawsuit. If the facts required to prove a case cannot be alleged in the complaint, the case is not "actionable" and the client and his/her attorney should not file a suit. Of course, whether many cases are actionable is a matter of judgment and interpretation of the facts and/or law, resulting in many lawsuits that clog the courts. Incidentally, if a case is filed which is clearly not actionable, it may result in a lawsuit against the filer of the original suit for malicious prosecution by the defendant after he/she has won the original suit.
actual controversy n. a true legal dispute which leads to a genuine lawsuit rather than merely a "cooked up" legal action filed to get a court to give the equivalent of an advisory opinion.
actual notice n. having been informed directly of something or having seen it occur, as distinguished from constructive notice (e.g. a notice was mailed but not received, published in a newspaper, or placed in official records).
ad hoc adj. Latin shorthand meaning "for this purpose only." Thus, an ad hoc committee is formed for a specific purpose, usually appointed to solve a particular problem. An ad hoc attorney is one hired to handle one problem only and often is a specialist in a particular area or considered especially able to argue a key point.
ad litem adj. legal Latin meaning "for the purposes of the legal action only." Most often the term applies to a parent who files a lawsuit for his or her minor child as "guardian at litem" (guardian just for the purposes of the lawsuit) or for a person who is incompetent. Either at the time the lawsuit is filed or shortly thereafter, the parent petitions the court to allow him/her to be guardian ad litem, which is brought ex parte (without a noticed hearing) and is almost always granted. A person acting ad litem has the responsibility to pursue the lawsuit and to account for the money recovered for damages. If a child in such a lawsuit reaches majority while the suit is pending, the ad litem guardianship terminates and the "new" adult can run his/her own lawsuit. Some courts require an order terminating the guardianship ad litem upon proof of coming of age.
ad seriatim adj. (add sear-ee-ah-tim) Latin for "one after another".
ad valorem adj. Latin for "based on value," which applies to property taxes based on a percentage of the county's assessment of the property's value. The assessed value is the standard basis for local real property taxes, although some place "caps" (maximums) on the percentage of value or "parcel taxes" which establish a flat rate per parcel.
addendum n. an addition to a completed written document. Most commonly this is a proposed change or explanation (such as a list of goods to be included) in a contract, or some point that has been the subject of negotiation after the contract was originally proposed by one party. Real property sales agreements often have addenda (plural of addendum) as the buyer and seller negotiate fine points (how payments will be made, what appliances will be included, date of transfer of title, the terms of financing by the seller and the like). Although often they are not, addenda should be signed separately and attached to the original agreement so that there will be no confusion as to what is included or intended. Unsigned addenda could be confused with rough drafts or unaccepted proposals or included fraudulently.
adeem v. to revoke a gift made in a will by destroying, selling or giving away the gift item during the lifetime of the testator (writer of the will). Example: a person writes in his/her will, "I leave my son my 1988 Ford automobile" and then Dad totals or sells the car. Nasty legal fights can arise if the supposed adeemed gift is not clearly identified, as in "I give Ajay my family car." Then the giver sells the Ford and buys a Jeep. Better will language would be: "To Ajay any (or the newest) automobile of which I shall be possessed at the time of my death."
ademption n. the act of adeeming, which is revoking (getting rid of) a gift mentioned in a will by destruction, or selling or giving away the gift before death.
adequate remedy n. a remedy (money or performance) awarded by a court or through private action (including compromise) which affords "complete" satisfaction, and is "practical, efficient and appropriate" in the circumstances. In part this depends on what relief (like an order granting one an easement over a neighbor's property or an order keeping the drunken husband away from the complaining wife) a party is seeking. A court is a bit self-congratulatory and subjectively judgmental when it announces that the remedy granted is "adequate" when it has done the best it can in the circumstances. Example: a "stay away" order telling an abusive husband to keep his distance from his wife but not putting him in jail. The order is only a piece of paper until he violates it, giving cause for his arrest.
adhesion contract n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Example: a rich landlord dealing with a poor tenant who has no choice and must accept all terms of a lease, no matter how restrictive or burdensome, since the tenant cannot afford to move. An adhesion contract can give the little guy the opportunity to claim in court that the contract with the big shot is invalid. This doctrine should be used and applied more often, but the same big guy-little guy inequity may apply in the ability to afford a trial or find and pay a resourceful lawyer.
adjourn v. the final closing of a meeting, such as a convention, a meeting of the board of directors, or any official gathering. It should not be confused with a recess, meaning the meeting will break and then continue at a later time.
adjudication n. the act of giving a judicial ruling such as a judgment or decree. The term is used particularly in bankruptcy proceedings, in which the order declaring a debtor bankrupt is called an adjudication.
adjusted basis n. in accounting, the original cost of an asset adjusted for costs of improvements, depreciation, damage and other events which may have affected its value during the period of ownership. This is important in calculating capital gains for income tax purposes since the adjusted basis is generally higher than the original price and will lower capital gains taxes.
adjuster n. an employee (usually a non-lawyer) of an insurance company or an adjustment firm employed by an insurance company to negotiate an early settlement of a claim for damages against a person, a business or public body (like a city). While a fair and responsible adjuster can serve a real purpose in getting information and evaluating the case for the insurance company, some adjusters try to make a settlement before the injured person has retained an attorney ("don't worry, we'll pay your bills. You don't need an attorney. He'll only confuse things."), get a statement from the injured without counsel, or delay the payout with the promise he/she will negotiate any reasonable demand, and then making an offer of payment that is absurdly low. Some insurance companies try to make the attorney deal with the adjuster, which is cheaper than sending the case to defense attorneys. Adjusters also represent the company in approving settlements
administer v. 1) to conduct the duties of a job or position. 2) particularly, to manage the affairs of the estate of a person who has died under supervision of the local court. 3) to give an oath, as in "administer the oath."
administrative hearing n. a hearing before any governmental agency or before an administrative law judge. Such hearings can range from simple arguments to what amounts to a trial. There is no jury, but the agency or the administrative law judge will make a ruling.
administrative law n. the procedures created by administrative agencies (governmental bodies of the city, county, state or government) involving rules, regulations, applications, licenses, permits, available information, hearings, appeals and decision-making. 1) the rules and regulations are often special for each agency and are not usually found in the statutes but in those regulations; 2) a member of the public must "exhaust his/her administrative remedies" (take every step, including appeals) with the agency and its system before he/she can challenge the administrative ruling with a lawsuit in court. There are exceptions (such as emergency or obvious futility) to exhausting one's remedies, but those are rare. Administrative law can be a technical jungle, and many lawyers make lots of money from knowing how to hack their way through it on behalf of their clients.
administrative law judge n. a professional hearing officer who works for the government to preside over hearings and appeals involving governmental agencies. They are generally experienced in the particular subject matter of the agency involved or of several agencies. Formerly called "hearing officers," they discovered that there was more prestige and higher pay in being called "judge".
administrator n. the person appointed by the court to handle the estate of someone who died without a will, with a will but no nominated executor, or the executor named in the will has died, has been removed from the case or does not desire to serve. If there is a will but no available executor, the administrator is called an "administrator with will annexed." The procedure is that if an estate must be probated (filed and approved by a court) then someone (usually a relative or close friend) petitions the court in the appropriate county (usually where the late lamented last lived) for appointment of a particular person as administrator. If an estate requires attention and no one has come forward to administer the estate, then the county Public Administrator may do so. In most cases state law requires that the administrator post a bond ordered by the court to protect the estate from mishandling or malfeasance. If the will includes real property in another state then the administrator or executor must find someone in the other state to handle the change of title and paying of local taxes, and that person is called an "ancillary administrator."
admiralty n. concerning activities which occur at sea, including on small boats and ships in navigable bays. Admiralty law (maritime law) includes accidents and injuries at sea, maritime contracts and commerce, alleged violations of rules of the sea over shipping lanes and rights-of-way, and mutiny and other crimes on shipboard.
admissible evidence n. evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury's shock at gory details may outweigh that probative value. In criminal cases the courts tend to be more restrictive on letting the jury hear such details for fear they will result in "undue prejudice." Thus, the jury may only hear a sanitized version of the facts in prosecutions involving violence.
admission n. a statement made by a party to a lawsuit or a criminal defendant, usually prior to trial, that certain facts are true. An admission is not to be confused with a confession of blame or guilt, but admits only some facts. In civil cases, each party is permitted to submit a written list of alleged facts and request the other party to admit or deny whether each is true or correct. Failure to respond in writing is an admission of the alleged facts and may be used in trial.
admission against interest n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. Another party can quote in court an admission against interest even though it is only hearsay.
admission of evidence n. a judge's acceptance of evidence in a trial.
admission of guilt n. a statement by someone accused of a crime that he/she committed the offense. If the admission is made outside court to a police officer it may be introduced as evidence if the defendant was given the proper warnings as to his/her rights before talking.
admission to bail n. an order of a court in a criminal case allowing an accused defendant to be freed pending trial if he/she posts bail (deposits either cash or a bond) in an amount set by the court. Theoretically the posting of bail is intended to guarantee the appearance of the defendant in court when required. In minor routine cases (e.g. petty theft or drunk driving) a judge automatically sets bail based on a rate schedule which can be obtained and put up quickly. Otherwise bail is set at the first court appearance (arraignment). Although the Constitution guarantees the right to bail, in extreme cases (murder, treason, mayhem) the court is not required to admit a prisoner to bail of any amount due to the likelihood of the defendent fleeing the area, or causing further harm. Bail bondsmen are usually readily available near larger courthouses and jails, charge ten percent of the amount of the court-required bond, and often demand collateral for the amount posted. If the defendant fails to show up in court or flees ("jumps bail"), the defendant may have to give up his/her deposit (bail). When the case is concluded, the bail is "exonerated" (released) and returned to the bail bond company or to whoever put up the cash. If a bail bondsman has good reason to believe his client is attempting to flee he may bring him/her in to jail, revoke the bond, and surrender the client.
admit v. 1) to state something is true in answering a complaint filed in a lawsuit. The defendant will admit or deny each allegation in his or her answer filed with the court. If he or she agrees and states that he/she did what he/she is accused of, then the allegation need not be proved in trial. 2) in criminal law, to agree a fact is true or confess guilt. 3) to allow as evidence in a trial, as the judge says: "Exhibit D, the letter, is admitted."
adopt v. 1) to take on the relationship of parent to child of another person, particularly (but not necessarily) a minor, by official legal action. 2) to accept or make use of, such as to adopt another party's argument in a lawsuit.
adoption n. the taking of a child into one's family, creating a parent to child relationship, and giving him or her all the rights and privileges of one's own child, including the right to inherit as if the child were the adopter's natural child. The adoption procedure varies depending on whether the child comes through an agency which handles adoptions or comes from a stranger or a relative, and on the age of the child and the adoptive parent or parents. The hopeful adoptive parent must file a petition, which may be handled by the adoption agency. Natural parents must either give binding written permission for the adoption or have abandoned the child for a lengthy period of time. An investigation will be made by a county office (probation or family services) as to the future parents' suitability to adoption, their relationship status, their home situation, and their health, as well as the best interests of the child. If the child is old enough to understand the procedure he or she may have a say in the adoption. Finally there is a hearing before a local court judge (called "surrogate" in some states) and an adoption order made. In many states a new birth certificate can be issued, with the adoptive parents listed as the parents. If there is an adoption of an adult, the adopting adult usually must be several years older, based on the state law. In recent years, there has been much controversy over adoption by single parents, including gays and lesbians, with the tendency toward allowing such adoptions, provided all other criteria beneficial to the child are met.
adultery n. consensual sexual relations when one of the participants is legally married to another.
advance n. a payment which is made before it is legally due, such as before shipment is made, a sale is completed, a book is completed by the author, or a note is due to be paid.
advancement n. a gift made by a person to one of his or her children or heirs (a presumptive heir since an heir is only determined on the date of death) in anticipation of a gift from the still-living parent's potential estate as an advance on one's inheritance. Example: Sibin John is going to leave his son Rs 1,00,000 under his will or a percentage of the estate on John's death. John gives the son Rs 50,000 with the intention that it would be deducted from the inheritance. The main problem is one of proof that the advanced sum was against the projected inheritance. A person making an advancement should leave a written statement about the advancement or get a signed receipt. Such gifts made shortly before death are more readily treated as an advancement than one made several years earlier.
adverse adj. clearly contrary, such as an adverse party being the one suing you. An adverse interest in real property is a claim against the property, such as an easement.
adverse interest n. a right or concern that is contrary to the interest or claim of another.
adverse party n. the opposite side in a lawsuit. Sometimes when there are numerous parties and cross-complaints, parties may be adverse to each other on some issues and in agreement on other matters. Two beneficiaries of a person who has died may join together to claim a will was valid, but fight each other over the assets of the dead person's estate if the court rules the will was legal.
adverse possession n. a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exists. This can arise when a rancher fences in a parcel contending he was to get title from some prior owner, and then grazes cattle on the property for many years without objection by the title holder. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period are evidence of adverse possession but cannot be used by a land grabber with no claim to title other than possession.
adverse witness n. a witness in a trial who is found by the judge to be adverse to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his/her client. When the attorney calling the witness finds that answers are contrary to the legal position of his/her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be "adverse" or "hostile." If the judge declares the witness to be adverse (i.e. hostile) then the attorney may ask "leading" questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition.
advisory opinion n. an opinion stated by a judge or a court upon the request of a legislative body or government agency. An advisory opinion has no force of law but is given as a matter of courtesy. A private citizen cannot get an advisory ruling from a court and can only get rulings in an actual lawsuit.
affiant n. a person who signs an affidavit and swears to its truth before a notary public or some person authorized to take oaths, like a County Clerk.
affidavit n. 1) any written document in which the signer swears under oath before a notary public or someone authorized to take oaths , that the statements in the document are true. 2) a declaration under penalty of perjury, which does not require the oath-taking before a notary, is the equivalent of an affidavit.
affirm v. what an appeals court does if it agrees with and confirms a lower court's decision.
affirmative action n. the process of a business or governmental agency in which it gives special rights of hiring or advancement to ethnic minorities to make up for past discrimination against that minority. Affirmative action has been the subject of legal battles on the basis that it is reverse discrimination against Caucasians, but in most challenges to affirmative action the programs have been upheld.
affirmative defense n. part of an answer to a charge or complaint in which a defendant takes the offense and responds to the allegations with his/her own charges, which are called "affirmative defenses." These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the "boilerplate" (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.
affix v. 1) to attach something to real estate in a permanent way, including planting trees and shrubs, constructing a building, or adding to existing improvements. The key is that affixed items are permanent and cannot be picked up and moved away like a washing machine. 2) to sign or seal, as affix a signature or a seal.
after-acquired property n. 1) personal or real property acquired by a debtor after he/she has agreed that all his/her property secures a debt. Thus, the new property also becomes security for the debt. This includes improvements to real property which is security on a deed of trust or mortgage and personal property pledged in a security agreement 2) in bankruptcy, property acquired by the bankrupt person after he/she has filed papers to be declared bankrupt. This after-acquired property is not included in the assets which may be used to pay any debts which existed at the time of bankruptcy filing.
after-acquired title n. title to property acquired after the owner attempts to sell or transfer the title to another person before he/she actually got legal title. When the title is acquired by the seller in this paper shuffle, title automatically goes to the person to whom it was sold, passing through the person who acquired title "like a dose of salts" on its way to the new purchaser. Example: John signs, acknowledges, and records a deed of the ranch to Sam, but John has not yet received title from the estate of his late father. When John gets title from his father's estate and records it, the after-acquired title goes automatically to Sam.
after-discovered evidence n. evidence found by a losing party after a trial has been completed and judgment (or criminal conviction) given, also called newly-discovered evidence. If the evidence absolutely could not have been discovered at the time of trial, it may be considered on a motion for a new trial.
age discrimination n. an employer's unfair treatment of a current or potential employee. The claimant's problem is proof of age discrimination, but employers should beware. Even flight attendants in their late 30s have proved that there was age discrimination in replacing them with younger, "more attractive" women.
age of consent n. the age at which a person is responsible for his/her own actions (including the capacity to enter into a contract which is enforceable by the other party), for damages for negligence or intentional wrongs without a parent being liable and for punishment as an adult for a crime.
agency n. the relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. "Agency" may arise when an employer (principal) and employee (agent) ask someone to make a delivery or name someone as an agent in a contract. The basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent in the scope of employment when he/she ran down the little child, got drunk and punched someone, or sold impure wheat? There is also the problem of whether the principal acted in such a way as to make others believe someone was his agent-this is known as "apparent" or "ostensible" authority. When someone who is or is not an employee uses company business cards, finance documents, or a truck with the company logo, such use gives apparent authority as an agent.
agent n. a person who is authorized to act for another (the agent's principal) through employment, by contract or apparent authority. The importance is that the agent can bind the principal by contract or create liability if he/she causes injury while in the scope of the agency. Who is an agent and what is his/her authority are often difficult and crucial factual issues.
aggravated assault n. the crime of physically attacking another person which results in serious bodily harm and/or is made with a deadly or dangerous weapon such as a gun, knife, sword, ax or blunt instrument. Aggravated assault is usually a felony punishable by a term in state prison.
agreed statement n. occasionally the two parties on opposite sides of a lawsuit or on an appeal from a trial judgment will agree upon certain facts and sign a statement to be used in court for that purpose. Agreed statements are only used when the only remaining dispute boils down to a question of law and legal argument and not of the actual facts.
agreement 1) n. any meeting of the minds, even without legal obligation. 2) in law, another name for a contract including all the elements of a legal contract: offer, acceptance, and consideration (payment or performance), based on specific terms.
aid and abet v. help commit a crime. A lawyer redundancy since abet means aid, which lends credence to the old rumor that lawyers used to be paid by the word.
aleatory adj. uncertain; usually applied to insurance contracts in which payment is dependent on the occurrence of a contingent event, such as injury to the insured person in an accident or fire damage to his insured building.
alias n. 1) a name used other than the given name of a person or reference to that other name, which may not be an attempt to hide his/her identity (such as initials or a maiden name).
alibi n. an excuse used by a person accused or suspected of a crime. In the original Latin it means "in another place," which has to be the ultimate alibi.
alien 1) n. a person who is not a citizen of the country. 2) in India any person born in another country to parents who are not Indians and who has not become a naturalized citizen. There are resident aliens officially permitted to live in the country and illegal aliens who have sneaked into the country or stayed beyond the time allowed on a visa. 3) v. to convey title to property.
alienation n. the transfer of title to real property, voluntarily and completely. It does not apply to interests other than title, such as a mortgage.
alienation of affections n. convincing a wife to leave her husband, often for another man, causing the husband to lose conjugal relations.
alimony n. support paid by one ex-spouse to the other as ordered by a court in a divorce case. Usually it is paid by the male to his ex, but in some cases a wealthy woman may have to pay her husband, or, in same-sex relationships the "breadwinner" may pay to support his/her stay-at-home former partner. Failure to pay ordered alimony can result in contempt of court citations and even jail time. The level of alimony can be determined by written agreement and submitted to the court for a stipulated order. Income tax-wise, alimony is deductible as an expense for the payer and charged as income to the recipient. Child support is not alimony.
aliquot (al-ee-kwoh) adj. a definite fractional share, usually applied when dividing and distributing a dead person's estate or trust assets.
all the estate i own n. a phrase from a poorly drafted will which means the possessions owned by the deceased at the moment of death, not when the will was written.
allegation n. a statement of claimed fact contained in a complaint (a written pleading filed to begin a lawsuit), a criminal charge, or an affirmative defense (part of the written answer to a complaint). Until each statement is proved it is only an allegation. Some allegations are made "on information and belief" if the person making the statement is not sure of a fact.
allege v. to claim a fact is true, commonly in a complaint which is filed to commence a lawsuit, in an "affirmative defense" to a complaint, in a criminal charge of the commission of a crime or any claim.
alluvion n. an increase in one's land from soil deposited on the shoreline by natural action of a stream, river, bay or ocean.
alter ego n. a corporation, organization or other entity set up to provide a legal shield for the person actually controlling the operation. Proving that such an organization is a cover or alter ego for the real defendant breaks down that protection, but it can be difficult to prove complete control by an individual. In the case of corporations, proving one is an alter ego is one way of "piercing the corporate veil." In a lawsuit complaint, it might be stated (pleaded) that "the ABC Corporation was the alter ego of Joseph John."
alternative pleading n. a legal fiction in which a party to a lawsuit or a defendant charged with a crime can plead two ways which are inconsistent with each other. Examples: a) someone hurt in an accident can plead that the other party was negligent or ran into him intentionally. b) "not guilty" and "not guilty by reason of insanity" (in which there is the implied admission that the defendant committed the act).
ambiguity n. when language has more than one meaning. If the ambiguity is obvious it is called "patent," and if there is a hidden ambiguity it is called "latent." If there is an ambiguity, and the original writer cannot effectively explain it, then the ambiguity will be decided in the light most favorable to the other party.
amend v. to alter or change by adding, subtracting, or substituting. One can amend a statute, a contract or a written pleading filed in a law -suit. The change is usually called an amendment. The legislature will amend a statute, the parties to a contract can amend it, and a party to a lawsuit can amend his or her own pleading. A contract can be amended only by the parties participating in the contract. If the contract is written, it can be amended only in writing (although, curiously, an oral contract can be amended orally or in writing). A pleading can be amended before it is served on the other party, by stipulation or agreement in court between the parties (actually usually between their attorneys), or upon order of the court.
amended complaint n. what results when the party suing (plaintiff or petitioner) changes the complaint he/she has filed. It must be in writing, and can be done before the complaint is served on any defendant, by agreement between the parties (usually their lawyers), or upon order of the court. Complaints are amended to correct facts, add new causes of action (bases for the lawsuit), substitute discovered names for persons sued as "Does," or to properly plead a cause of action (the legal basis for suing) after the court has found the complaint inadequate.
amended pleading n. a changed written pleading in a lawsuit, including complaint or answer to a complaint. Pleadings are amended for various reasons, including correcting facts, adding causes of action (legal bases for a suit), adding affirmative defenses, or responding to a court's finding that a pleading is inadequate as a matter of law. Amendments cannot be made willy-nilly, but only prior to being served, upon stipulation by the parties or order of the court.
american depository receipt n. called in the banking trade an ADR, it is a receipt issued by American banks to Americans as a substitute for actual ownership of shares of foreign stocks. ADRs are traded on American stock exchanges and over-the-counter easily without the necessity of trading the foreign shares themselves.
amicus curiae n. Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants.
amnesty n. a blanket abolition of an offense by the government, with the legal result that those charged or convicted have the charge or conviction wiped out.
amortization n. a periodic payment plan to pay a debt in which the interest and a portion of the principal are included in each payment by an established mathematical formula. Most commonly it is used on a real property loan or financing of an automobile or other purchase. By figuring the interest on the declining principal and the number of years of the loan, the monthly payments are averaged and determined. Since the main portion of the early payments is interest, the principal does not decline rapidly until the latter stages of the loan term. If the amortization leaves a principal balance at the close of the time for repayment, this final lump sum is called a "balloon" payment.
and conj. this little word is important in law, particularly when compared to or. Most commonly it determines if one or both owners have to sign documents. Example: when an automobile registration reads that the title is for Anil and Jaya Oswald, then both must sign off upon sale, but if it says "or" then only one will have to sign; if Anil dies then the title is automatically in Jaya's name if it reads "or," but not if it reads "and."
annuity n. 1) an annual sum paid from a policy or gift. 2) short for a purchased annuity policy which will pay dividends to the owner regularly for years or for life.
answer n. in law, a written pleading filed by a defendant to respond to a complaint in a lawsuit filed and served upon that defendant. An answer generally responds to each allegation in the complaint by denying or admitting it, or admitting in part and denying in part. The answer may also com- prise "affirmative defenses" including allegations which contradict the complaint or contain legal theories (like "unclean hands," "contributory negligence" or "anticipatory breach") which are intended to derail the claims in the complaint. Sometimes the answer is in the form of a "general denial," denying everything. The answer must be in typed form, follow specific rules of pleading established by law and the courts, and be filed with the court and served on the defendant within a specific statutory time (e.g. 20 or 30 days after service of the complaint). If the complaint is verified as under penalty of perjury, the answer must be also. There is a fairly steep filing fee for each defendant filing an answer. In short, if served a complaint, one should see a lawyer as soon as possible to prevent a default judgment.
anticipatory breach n. when a party to a contract repudiates (reneges on) his/her obligations under that contract before fully performing those obligations. This can be by word ("I won't deliver the rest of the goods" or "I can't make any more payments") or by action (not showing up with goods or stopping payments). The result is that the other party does not have to perform his/her obligations and cannot be liable for not doing so. This is often a defense to a lawsuit for payment or performance on a contract. One cannot repudiate his obligations and demand that the other person perform.
antitrust laws n. acts adopted to outlaw or restrict business practices considered to be monopolistic.
apparent authority n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been given authority by the principal, then the principal is stuck for the acts of anyone he allows to appear to have authority. This "apparent authority" can be given by providing Anand Mehta (who has no authority to contract) with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Anand had authority to act for the company. Then the contract or the price quote given by Anand and accepted by a third party is binding on the company. Apparent authority may also arise when Anand's works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss.
appeal 1) v. to ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling. After the lower court judgment is entered into the record, the losing party (appellant) must file a notice of appeal, request transcripts or other records of the trial court (or agree with the other party on an "agreed-upon statement"), file briefs with the appeals court citing legal reasons for over-turning the ruling, and show how those reasons (usually other appeal decisions called "precedents") relate to the facts in the case. No new evidence is admitted on appeal, for it is strictly a legal argument. The other party (Respondent or appellee) usually files a responsive brief countering these arguments. The appellant then can counter that response with a final brief. If desired by either party, they will then argue the case before the appeals court, which may sustain the original ruling, reverse it, send it back to the trial court, or reverse in part and confirm in part. 2) n. the name for the process of appealing, as in "he has filed an appeal."
appear v. for a party or an attorney to show up in court.
appearance n. the act of a party or an attorney showing up in court. Once it is established that an attorney represents the person (by filing a notice of appearance or representation or actually appearing), the lawyer may make an appearance for the client on some matters without the client being present. An attorney makes a "special appearance" when he/she is appearing only for the purpose of what is before the court that day-such as arraignment of one charged with a crime. If an attorney makes a "general appearance" he or she is telling the court that the client is definitely his or hers and the court can proceed. In the future that attorney will be required to represent the client. Some appearances are voluntary, but most are compulsory and are by notice to the party or, if represented, to his/her attorney.
appellant n. the party who appeals a trial court decision he/she/it has lost.
appellate court n. a court of appeals which hears appeals from lower court decisions. The term is often used in legal briefs to describe a court of appeals.
appellee n. in some jurisdictions the name used for the party who has won at the trial court level, but the loser (appellant) has appealed the decision to a higher court. Thus the appellee has to file a response to the legal brief filed by the appellant. In many jurisdictions the appellee is called the "respondent."
appraise v. to professionally evaluate the value of property including real estate, jewelry, antique furniture, securities, or in certain cases the loss of value (or cost of replacement) due to damage. This may be necessary in determining the value of the estate of someone who has died, particularly when the items must be divided among the beneficiaries, to determine the value of assets for insurance coverage, to divide partnership assets, set a sales price, determine taxes, or make insurance claims.
appraiser n. a professional who makes appraisals of the value of property. Some specialize in real property, and others in other types of assets from rugs to rings. A careful, well-trained and practical appraiser may be more important than any other professional in a transaction, since one who grossly undervalues or overvalues property (or has no knowledge of true value) can wreak havoc. Where possible, a person should ask for a profile of other clients and training, and ask whether the appraiser is "MAI" (Member, Appraisal Institute).
appreciate v. to increase in value over a period of time through the natural course of events, including inflation, greater rarity, or public acceptance. This can include real property, jewelry, rare books, art works or securities.
appreciation n. the increase in value through the natural course of events as distinguished from improvements or additions.
approach v. short for "approach the bench," as in "may I approach, your honor," or "will counsel approach?"
approach the bench v. an attorney's movement from the counsel table to the front of the bench (the large desk at which the judge sits) in order to speak to the judge off the record and/or out of earshot of the jury. Since the bench area is the sacred territory of the judge the attorney must ask permission as "may I approach the bench," or simply, "may I approach." If the judge consents, then opposing counsel must be allowed to come forward and participate in the conversation. The purpose can range from explaining the order of witnesses, a technical problem or the need to take a recess to go to the restroom.
approach the witness v. a request by an attorney to the judge for permission to go up to a witness on the witness stand to show the witness a document or exhibit. "May I approach the witness?" is the typical request, and it is almost always granted.
appurtenant adj. pertaining to something that attaches. In real property law this describes any right or restriction which goes with that property, such as an easement to gain access across the neighbor's parcel, or a covenant (agreement) against blocking the neighbor's view. Thus, there are references to appurtenant easement or appurtenant covenant.
arbiter n. in some jurisdictions the name for a referee appointed by the court to decide a question and report back to the court, which must confirm the arbiter's finding before it is binding on the parties.
arbitrary adj. not supported by fair or substantial cause or reason. Most often it is used in reference to a judge's ruling.
arbitration n. a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute.
arbitrator n. one who conducts an arbitration, and serves as a judge who conducts a "mini-trial," somewhat less formally than a court trial. In most cases the arbitrator is an attorney, either alone or as part of a panel. Most court jurisdictions now have lists of attorneys who serve as arbitrators. Other arbitrators come from arbitration services which provide lists from which the parties can agree on an arbitrator. Professional arbitration services are paid well to move cases along. There are also arbitrators who are experts on everything from construction to maritime damage. In some contracts there is a provision for such an expert-type arbitrator named by each side with a third chosen by the other two.
arguendo prep. Latin meaning "for the sake of argument," used by lawyers in the context of "assuming arguendo" that the facts were as the other party contends, but the law prevents the other side from prevailing. Example: "assuming arguendo" that the court finds our client, the defendant, was negligent, the other party (plaintiff) was so contributorily negligent he cannot recover damages. In short, the lawyer is not admitting anything, but wants to make a legal argument only. The word appears most commonly in appeals briefs.
argumentative adj. the characterization of a question asked by the opposing attorney which does not really seek information but challenges the truthfulness or credibility of the witness. Since such a question is not allowable, often it is the basis of an objection before the question is answered, much like irrelevant, immaterial or hearsay. The definition of argumentative is somewhat vague, and different judges hear it differently.
arm's length adj. the description of an agreement made by two parties freely and independently of each other, and without some special relationship, such as being a relative, having another deal on the side or one party having complete control of the other. It becomes important to determine if an agreement was freely entered into to show that the price, requirements, and other conditions were fair and real. Example: if a man sells property to his son the value set may not be the true value since it may not have been an "arm's length" transaction.
arraign v. to bring a criminal defendant before the court, at which time the charges are presented to him/her, the opportunity to enter a plea (or ask for a continuance to plead) is given, a determination of whether the party has a lawyer is made (or whether a lawyer needs to be appointed), if necessary setting the amount of bail, and future appearances are scheduled.
arraignment n. the hearing in which a person charged with a crime is arraigned in his or her first appearance before a judge. This is the initial appearance of a criminal defendant (unless continued from an earlier time) in which all the preliminaries are taken care of.
arrears n. money not paid when due, usually the sum of a series of unpaid amounts, such as rent, installments on an account or promissory note, or monthly child support. Sometimes these are called "arrearages."
arrest v. 1) to take or hold a suspected criminal with legal authority, as by a law enforcement officer. An arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. Once the arrest has been made, the officer must give the arrestee his/her rights at the first practical moment, and either cite the person to appear in court or bring him/her in to jail. A person arrested must be brought before a judge for arraignment in a short time , and have his/her bail set. A private "security guard" cannot actually arrest someone except by citizen's arrest, but can hold someone briefly until a law officer is summoned. A "citizen's arrest" can be made by any person when a crime has been committed in his/her presence. However, such self-help arrests can lead to lawsuits for "false arrest" if proved to be mistaken, unjustified or involving unnecessary holding. 2) to delay the enforcement of a judgment by a judge while errors in the record are corrected.
arrest warrant n. a judge's order to law enforcement officers to arrest and bring to jail a person charged with a crime, also called a warrant of arrest. The warrant is issued upon a sworn declaration by the district attorney, a police officer or an alleged victim that the accused person committed a crime.
arson n. the felony crime of intentionally burning a house or other building. The perpetrators range from mentally ill pyromaniacs to store owners hoping to get insurance proceeds. Historically, arson meant just the burning of a house, but now covers any structure. A death resulting from arson is murder.
article n. a paragraph or section of any writing such as each portion of a will, corporate charter (articles of incorporation), or different sections of a statute.
articles of impeachment n. the charges brought (filed) to impeach a public official.
articles of incorporation n. the basic charter of a corporation which spells out the name, basic purpose, incorporators, amount and types of stock which may be issued, and any special characteristics such as being non-profit. Articles must be signed by the incorporating person or persons or by the first board of directors.
as is adj. description of a condition in a sales contract in which the buyer agrees to take the property (e.g. house, horse, auto, or appliance) without the right to complain if it is faulty. However, the buyer must have had the right to reasonable inspection, so that he/she has a chance to find any obvious deficiency. Intentionally hiding a known defect will make a seller liable for fraud and serves to cancel the "as is" provision.
assault 1) v. the threat or attempt to strike another, whether successful or not, provided the target is aware of the danger. The assaulter must be reasonably capable of carrying through the attack. If the assault is with a deadly weapon (such as sniping with a rifle), the intended victim does not need to know of the peril. Other laws distinguish between different degrees (first or second) of assault depending on whether there is actual hitting, injury or just a threat. "Aggravated assault" is an attack connected with the commission of another crime, such as beating a clerk during a robbery or a particularly vicious attack. 2) n. the act of committing an assault, as in "there was an assault down on Third Avenue." Assault is both a criminal wrong, for which one may be charged and tried, and civil wrong for which the target may sue for damages due to the assault, including for mental distress.
assault and battery n. the combination of the two crimes of threat (assault) and actual beating (battery). They are both also intentional civil wrongs for which the party attacked may file a suit for damages.
assess v. to set a value on property, usually for the purpose of calculating real property taxes. The assessed value is multiplied by the tax rate to determine the annual tax bill.
asset n. generally any item of property that has monetary value, including articles with only sentimental value (particularly in the estates of the dead). Assets are shown in balance sheets of businesses and inventories of probate estates. There are current assets (which includes accounts receivable), fixed assets (basic equipment and structures), and such intangibles as business good will and rights to market a product.
assign 1) v. to transfer to another person any asset such as real property or a valuable right such as a contract or promissory note. 2) n. the person (assignee) who receives a piece of property by purchase, gift or by will. The word often shows up in contracts and wills.
assignee n. a person to whom property is transferred by sale or gift, particularly real property.
assignment n. the act of transferring an interest in property or some right (such as contract benefits) to another. It is used commonly by lawyers, accountants, business people, title companies and others dealing with property.
associate justice n. a member of the Supreme Court appointed by the President They serve for life or until voluntary retirement or removal after being convicted after impeachment.
association n. any group of people who have joined together for a particular purpose, ranging from social to business, and usually meant to be a continuing organization. It can be formal, with rules and/or bylaws, membership requirements and other trappings of an organization, or it can be a collection of people without structure. An association is not a legally established corporation or a partnership. To make this distinction the term "unincorporated association" is often used, although technically redundant.
assume v. to take over the liability for a debt on a promissory note, which is often done by the buyer of real property which has a secured debt upon it. Example: Anil Jain pays part of the price of a piece of real property by taking over the debt that Amit Rathore had on the property. However, usually the original owner to whom Amit owes the debt must agree to the assumption.
assumption n. the act of taking over a debt as part of payment for property which secures that debt.
assumption of risk n. 1) taking a chance in a potentially dangerous situation. This is a typical affirmative defense in a negligence case, in which the defendant claims that the situation (taking a ski-lift, climbing a steep cliff, riding in an old crowded car, working on the girders of a skyscraper) was so inherently or obviously hazardous that the injured plaintiff should have known there was danger and took the chance that he/she could be injured. 2) the act of contracting to take over the risk, such as buying the right to a shipment and accepting the danger that it could be damaged or prove unprofitable.
assured n. the person or entity that is insured, often found in insurance contracts.
at will employment n. a provision found in many employment contracts which suggest the employee works at the will of the employer, and which the employers insert in order to avoid claims of termination in breach of contract, breach of the covenant of good faith and fair dealing, or discrimination. Inclusion of such a term puts the burden on the discharged employee to show that he or she had reasons to believe the employment was permanent. The employer uses the "at will" provision to claim: We could fire the employee at any time, no matter what the reasons.
attached adj. 1) referring to two buildings which are connected, or equipment which is solidly incorporated into a structure such as bolted to the floor or wired to the ceiling (and not capable of being removed without damage to the structure). If an item is so attached it probably has become a part of the real property, except for "trade fixtures," which can be detached. 2) referring to money or an object which is taken by court order based on a sworn claim by a plaintiff (person suing) that the owner-defendant being sued may soon depart to avoid payment of the debt.
attachment n. the seizing of money or property prior to getting a judgment in court, in contemplation that the plaintiff will win at trial (usually in simple cases of money owed) and will require the money or property to cover (satisfy) the judgment. The Supreme Court has ruled that an attachment may be made only after a hearing before a judge in which both sides can argue the danger that the party being sued (defendant) is likely to leave the area or otherwise avoid probable payment. A temporary attachment may be allowed by court order without both parties being present based on a declaration of the party wanting the attachment that there is clear proof that the defendant is going to flee. The court must also require a bond to cover damages to the defendant if the attachment proves not to have been necessary. Before the hearing requirement, pre-judgment attachments were common in which automobiles and bank accounts were held by the law enforcement officer, merely upon the plaintiff seeking the attachment getting a writ of attachment, posting a bond.
attempt v. and n. to actually try to commit a crime and have the ability to do so. This means more than just thinking about doing a criminal act or planning it without overt action. It also requires the opportunity and ability. Attempts can include attempted murder, attempted robbery, attempted rape, attempted forgery, attempted arson, and a host of other crimes. The person accused cannot attempt to commit murder with an unloaded gun or attempt rape over the telephone. The attempt becomes a crime in itself, and usually means one really tried to commit the crime, but failed through no fault of himself or herself. Example: if a husband laces his wife's cocktail with cyanide, it is no defense that by chance the intended victim decided not to drink the deadly potion. One defendant claimed he could not attempt rape in an old Model A coupe because it was too cramped to make the act possible. The court threw out this defense. Sometimes a criminal defendant is accused of both the crime (e.g. robbery) and the attempt in case the jury felt he tried but did not succeed.
attest v. 1) to confirm (usually in writing) that a document is genuine. 2) to bear witness that someone actually signed a document, such as a will. They require at least two witnesses to attest that a will was signed and declared to be a will.
attestation n. the act of witnessing a signature for the purpose of declaring that a document (like a will) was properly signed and declared by the signer to be his or her signature.
attorney n. 1) an agent or someone authorized to act for another.
attorney general n. the highest ranking legal officer of the government.
attorney of record n. the attorney who has appeared in court and/or signed pleadings or other forms on behalf of a client. The lawyer remains the attorney of record until some other attorney or the client substitutes for him/her, he/she is allowed by the court to withdraw, or after the case is closed. Sometimes lawyers find themselves still on the record in cases (such as divorces) which they believe have long since been completed.
attorney-client privilege n. the requirement that an attorney may not reveal communications, conversations and letters between himself/ herself and his/her client, under the theory that a person should be able to speak freely and honestly with his/her attorney without fear of future revelation. In a trial, deposition, and written questions (interrogatories), the attorney is required and the client is entitled to refuse to answer any question or produce any document which was part of the attorney-client contact. The problem sometimes arises as to whether the conversation was in an attorney-client relationship. If a man tells his neighbor who happens to be an attorney that he embezzled funds, is he doing so while seeking legal advice or just chatting over the fence (which is the test)? If a document was prepared as part of the legal preparation for a client, it usually is a "work product" and is also privileged. Similar privileges exist between pastor and parishioner and doctor and patient.
attorney-in-fact n. someone specifically named by another through a written "power of attorney" to act for that person in the conduct of the appointer's business. In a "general power of attorney" the attorney-in-fact can conduct all business or sign any document, and in a "special power of attorney" he/she can only sign documents or act in relation to special identified matters. Too often people sign themselves as attorney-in-fact for relatives or associates without any power of attorney. If someone claims to be able to sign for another, a demand to see the written power of attorney is reasonable and necessary. In real estate matters the power of attorney must be formally acknowledged before a notary public so that it can be recorded along with the real estate deed, deed of trust, mortgage, or other document.
attorney's advertising n. the commercials which appear on television or crowd the yellow pages of the telephone book.
attorney's fee n. the payment for legal services. It can take several forms 1) hourly charge, 2) flat fee for the performance of a particular service , 3) contingent fee (such as one-third of the gross recovery, and nothing if there is no recovery), 4) statutory fees (such as percentages of an estate for representing the estate), 5) court-approved fees (such as in bankruptcy or guardianships), 6) some mixture of hourly and contingent fee or other combination. It is wise (and often mandatory) for the attorney and the client to have a signed contract for any extensive legal work, particularly in contingent fee cases. Most attorneys keep records of time spent on cases to justify fees (and keep track of when actions were taken), even when the work is not on an hourly basis. A "retainer" is a down payment on fees, often required by the attorney in order to make sure he or she is not left holding the bag for work performed, or at least as a good faith indication that the client is serious and can afford the services. On the other hand, contingent fees require limits (often one-third) to protect the unwary client. Attorney fee disputes can be decided by arbitration, often operated by the local bar association. Attorney's fees are not awarded to the winning party in a lawsuit except where there is a provision in a contract for the fees or there is a statute which provides for an award of fees in the particular type of case.
attorney's work product n. written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in court or otherwise revealed to the other side. Sometimes there is a question as to whether documents were prepared by the attorney and/or the client for their use in the case preparation or are documents which are independent and legitimate evidence.
attractive nuisance doctrine n. a legal doctrine which makes a person negligent for leaving a piece of equipment or other condition on property which would be both attractive and dangerous to curious children. These have included tractors, unguarded swimming pools, open pits, and abandoned refrigerators. Liability could be placed on the people owning or controlling the premises even when the child was a trespasser who sneaked on the property. Basically the doctrine was intended to make people careful about what dangerous conditions they left untended.
audit n. an examination by a trained accountant of the financial records of a business or governmental entity, including noting improper or careless practices, recommendations for improvements, and a balancing of the books. An audit performed by employees is called "internal audit," and one done by an independent (outside) accountant is an "independent audit." Even an independent audit may be limited in that the financial information is given to the auditor without an examination of all supporting documents. Auditors will note that the audit was based on such limited information and will refuse to sign the audit as a guarantee of the accuracy of the information provided.
auditor n. an accountant who conducts an audit to verify the accuracy of the financial records and accounting practices of a business or government. A proper audit will point out deficiencies in accounting and other financial operations. Many counties have an appointed or elected auditor to make independent audits of all governmental agencies in the county government. The term "auditor" is often misused as meaning any accountant.
authorities n. 1) previous decisions by courts of appeal which provide legal guidance to a court on questions in a current lawsuit, which are called "precedents." Legal briefs (written arguments) are often called "points and authorities." Thus, a lawyer "cites" the previously decided cases as "authorities" for his/her legal positions. 2) a common term for law enforcement, as in "I'm going to call the authorities" (i.e. police).
authority n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority, including "apparent authority" when a principal gives an agent various signs of authority to make others believe he or she has authority; "express authority" or "limited authority," which spells out exactly what authority is granted (usually a written set of instructions) "implied authority," which flows from the position one holds and "general authority," which is the broad power to act for another.
authorize v. to officially empower someone to act.
avulsion n. the change in the border of two properties due to a sudden change in the natural course of a stream or river, when the border is defined by the channel of the waterway.
award 1) n. the decision of an arbitrator or commissioner (or any non-judicial arbiter) of a controversy. 2) v. to give a judgment of money to a party to a lawsuit, arbitration, or administrative claim. Example: "Plaintiff is awarded Rs 27,000."
bachelor of laws n. the degree in law from a law school, abbreviated to LLB, which means that the recipient has successfully completed three years of law studies in addition to at least three undergraduate years on any subject.
back-to-back life sentences n. for consecutive life terms imposed by a judge when there were two crimes committed by the defendant, both of which can result in punishment of a life term, such as two murders, or a murder and a rape involving aggravated assault. The purpose of making the sentences subsequent ("back-to-back") and not "concurrent" (served at the same time) is to lessen the chance of parole, since if parole were permissible after 25 years, the defendant would then begin the second "life" sentence and would wait another 25 years for a parole hearing.
bad debt n. an uncollectible debt. The problem is to determine when a debt is realistically dead, which means there must be some evidence of uncollectibility or a lengthy passage of time. Discharge in bankruptcy, the running of the statute of limitations to bring a lawsuit, disappearance of the debtor, a pattern of avoiding debts or the destruction of the collateral security can all make a debt "bad." For income tax deduction purposes such a debt in business is deductible against ordinary income and such a personal debt is deductible against short-term capital gains. A debt due for services rendered is not a bad debt for tax purposes, since there is just no income on which to be taxed.
bad faith 1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. 2) adj. when there is bad faith then a transaction is called a "bad faith" contract or "bad faith" offer.
bail 1) n. the money or bond put up to secure the release of a person who has been charged with a crime. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes the amount of bail is set by the judge at the suspect's first court appearance. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine. 2) v. to post money or bond to secure an accused defendant's release. This is generally called "bailing out" a prisoner.
bail bond n. a bond provided by an insurance company through a bail bondsman acting as agent for the company, to secure the release from jail of an accused defendant pending trial. Usually there is a charge of 10 percent of the amount of the bond (e.g. Rs 1000 for a Rs 10,000 bond) and often the defendant must put up some collateral like a second deed of trust or mortgage on one's house. Upon acquittal, conviction, or other conclusion of the case, the bail bond is "exonerated" and returned to the insurance company. If the person who has been bailed out disappears and does not appear in court, the bond funds will be forfeited unless the defendant is found and returned.
bail bondsman n. a professional agent for an insurance company who specializes in providing bail bonds for people charged with crimes and awaiting trial in order to have them released. Bail bondsmen usually charge the suspect a fee of 10 percent of the amount of the bond. If a bail bondsman has reason to believe a person he bailed out is about to flee, he may revoke the bond and surrender his client to jail.
bailee n. a person, also called a custodian, with whom some article is left, usually pursuant to a contract (called a "contract of bailment"), who is responsible for the safe return of the article to the owner when the contract is fulfilled. These can include banks holding bonds, storage companies where furniture or files are deposited, a parking garage, or a kennel or horse ranch where an animal is boarded. Leaving goods in a sealed rented box, like a safe deposit box, is not a bailment, and the holder is not a bailee since he cannot handle or control the goods.
bailiff n. 1) a court official, who keeps order in the courtroom and handles various errands for the judge and clerk. 2) in some jurisdictions, a person appointed by the court to handle the affairs of an incompetent person or to be a "keeper" of goods or money pending further order of the court. "Bailiff" has its origin in Old French and Middle English for custodian, and in the Middle Ages was a significant position in the English court system. The word "bailiwick" originally meant the jurisdictional territory of a bailiff.
bailment n. 1) the act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property. Examples: bonds left with the bank, autos parked in a garage, animals lodged with a kennel, or a storage facility (as long as the goods can be moved and are under the control of the custodian). While most are "bailments for hire" in which the custodian (bailee) is paid, there is also "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible, such as when a finder of a lost diamond ring places it with a custodian pending finding the owner. 2) the goods themselves which are held by a bailee. Thus, the "bailor" (owner) leaves the "bailment" (goods) with the "bailee" (custodian), and the entire transaction is a "bailment."
bailor n. a person who leaves goods in the custody of another, usually under a "contract of bailment," in which the custodian ("bailee") is responsible for the safekeeping and return of the property. Sometimes the bailor is not the owner but a person who is a servant of the owner or a finder (say, of jewelry) who places the goods with the bailee until the owner is found.
bait and switch n. a dishonest sales practice in which a business advertises a bargain price for an item in order to draw customers into the store and then tells the prospective buyer that the advertised item is of poor quality or no longer available and attempts to switch the customer to a more expensive product. Electronic items such as stereos, televisions, or telephones are favorites, but there are also loan interest rates which turn out to be only for short term or low maximums, and then the switch is to a more expensive loan. The business using "bait and switch" is an apt target for a class action since there are many customers but each transaction scarcely warrants the costs of a separate suit.
balance due n. the amount of a debt still owed on an account or the principal owed on a promissory note. In the case of a promissory note, the balance due is not the sum of installments due, since these include amortized interest, but may be the principal due without further interest.
balance sheet n. the statement of the assets and the liabilities (amounts owed) of a business at a particular time usually prepared each month, quarter of a year, annually, or upon sale of the business. It is intended to show the overall condition of the business. A balance sheet should not be confused with a profit and loss statement, which is an indicator of the current activity and health of the business.
bank n. 1) an officially chartered institution empowered to receive deposits, make loans, and provide checking and savings account services, all at a profit. 2) a group of judges sitting together as an appeals court, referred to as "in bank" or "en banc."
bankruptcy n. a system of statutes and courts which permits persons and businesses which are insolvent (debtors) or (in some cases) face potential insolvency, to place his/her/its financial affairs under the control of the bankruptcy court. The procedure is that when the debtor's debts exceed his/her/its assets or ability to pay, the debtor can file a petition with the bankruptcy court for voluntary bankruptcy or the debtor's unpaid creditors can file an "involuntary" petition to force the debtor into bankruptcy, although voluntary bankruptcy is far more common. The most common petition is, in which a trustee is appointed by the court, the current assets are counted up by the trustee (with many of them exempt from bankruptcy), who pays debts to the extent possible with priority for taxes, then secured debts (mortgages or some judgments), and finally unsecured debts. Then the court adjudicates (officially declares) the debtor a bankrupt and discharges the unpayable debts, to the loss of the creditors. Exempt from sale to pay debts are a portion of the value of a home (equal to a homestead), secured notes that can be kept current, an automobile, tools of the trade, furniture, and some other items.
bankruptcy proceedings n. the bankruptcy procedure is: a) filing a petition (voluntary or involuntary) to declare a debtor person or business bankrupt, to allow reorganization or refinancing under a plan to meet the debts of the party unable to meet his/her/its obligations. The petition is supposed to include a schedule of debts, assets and income potential. b) A hearing called "first meeting of creditors" with notice to all known creditors. This is often brief and usually results in the judge assigning the matter to a professional trustee. c) Later the trustee reports and there is a determination of what debts are dischargeable, what assets are exempt, and what payments are possible. d) If there are assets available then the creditors are requested in writing to file a "creditor's claim." e) There may be other hearings, reports, proposals, hearings on claims of fraudulent debts, petitions for removing the stay on foreclosures and other matters. f) Debts secured by property or by judgment lien are paid up to the amount of assets and funds available. g) The final step is a hearing on discharge of the bankrupt, which wipes out unsecured debts (or a pro rata share of them).
bar 1) n. collectively all attorneys, as "the bar," which comes from the bar or railing which separates the general spectator area of the courtroom from the area reserved for judges, attorneys, parties and court officials. A party to a case or criminal defendant is "before the bar" when he/she is inside the railing. 2) v. to prevent some legal maneuver, as in "barring" a lawsuit due to the running out of the time to file. 3) to prohibit and keep someone from entering a room, building, or real property.
bar association n. an organization of lawyers.
bar examination n. the examination given in each state by either the highest court or, if an "integrated" bar, by the state bar association (subject to appeal to the Supreme Court) for admission as an attorney.
bargain n. 1) a mutual agreement or contract between two parties which is voluntary and involves the exchange of consideration (money, goods, services). 2) a supposed good deal.
barratry n. creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter. Barratry is illegal and subject to criminal punishment and/or discipline by the bar, but there must be a showing that the resulting lawsuit was totally groundless. There is a lot of border-line barratry in which attorneys, in the name of being tough or protecting the client, fail to seek avenues for settlement of disputes or will not tell the client he/she has no legitimate claim.
barrister n. in the United States a fancy name for a lawyer or attorney. In Great Britain, there is a two-tier bar made up of solicitors, who perform all legal tasks except appearance in court, and barristers, who try cases. Some solicitors will "take the silk" (quaint expression) and become barristers.
basis n. the original cost of an asset to be used to determine the amount of capital gain tax upon its sale. An "adjusted basis" includes improvements, expenses, and damages between the time the original basis (price) is established and transfer (sale) of the asset. "Stepped up basis" means that the original basis of an asset (especially real property) will be stepped up to current value at the time of the death of the owner, and thus keep down capital gain taxes if the beneficiary of the dead person sells the asset.
battery n. the actual intentional striking of someone, with intent to harm, or in a "rude and insolent manner" even if the injury is slight. Negligent or careless unintentional contact is not battery no matter how great the harm. Battery is a crime and also the basis for a lawsuit as a civil wrong if there is damage. It is often coupled with "assault" (which does not require actual touching) in "assault and battery."
beach bum trust provision n. a requirement in a trust that a beneficiary can only receive profit from the trust equal to the amount he/she earns. This provision is intended to encourage the beneficiary to work, and not just lie around the beach and live off the trust.
bearer n. anyone holding something, such as a check, promissory note, bank draft, or bond. This becomes important when the document (generally called a "negotiable instrument") states it is "payable to bearer," which means whoever holds this paper can receive the funds due on it.
bearer paper n. negotiable instrument (e.g. a bond) which is payable to whoever has possession (the bearer).
belief n. convinced of the truth of a statement or allegation. In a common phrase "upon information and belief," the so-called belief is based only on unconfirmed information, so the person declaring the belief is hedging his/her bet as to whether the belief is correct.
bench n. 1) general term for all judges, as in "the bench," or for the particular judge or panel of judges, as in an order coming from the "bench." 2) the large, usually long and wide desk raised above the level of the rest of the courtroom, at which the judge or panel of judges sit.
bench warrant n. a warrant issued by a judge, often to command someone to appear before the judge, with a setting of an amount of bail to be posted. Often a bench warrant is used in lesser matters to encourage the party to appear in court.
beneficial interest n. the right of a party to some profit, distribution, or benefit from a contract or trust. A beneficial interest is distinguished from the rights of someone like a trustee or official who has responsibility to perform and/or title to the assets but does not share in the benefits.
beneficial use n. the right to enjoy the use of something (particularly such pleasant qualities as light, air, view, access, water in a stream) even though the title to the property in which the user exists is held by another.
beneficiary n. a broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution. There is also an "incidental beneficiary" or a "third party beneficiary" who gets a benefit although not specifically named, such as someone who will make a profit if a piece of property is distributed to another.
benefit 1) n. any profit or acquired right or privilege, primarily through a contract. 2) in worker's compensation the term "benefit" is the insurance payment resulting from a fatal accident on the job, while "compensation" is for injury without death. 3) in income taxation, anything that brings economic gain. 4) "fringe benefits" may be part of the compensation for employment other than salary or wages, and may include health or disability insurance. 5) v. to gain something, as "This sale will benefit Ajit Singh."
benefit of counsel n. having the opportunity to have an attorney and legal advice in any legal matter, but particularly while appearing in court. If someone makes an appearance or agrees to a contract without benefit of counsel, when a lawyer would be either essential or at least quite valuable, he/she may challenge the court rulings or the contract terms, usually without success since failure to have an attorney is the person's own fault.
bequeath v. to give personal property under provisions of a will (as distinct from "devise," which is to give real estate). 2) the act of giving any asset by the terms of a will.
bequest n. the gift of personal property under the terms of a will. Bequests are not always outright, but may be "conditional" upon the happening or non-happening of an event (such as marriage), or "executory" in which the gift is contingent upon a future event. Bequest can be of specific assets or of the "residue" (what is left after specific gifts have been made).
best evidence rule n. the legal doctrine that an original piece of evidence, particularly a document, is superior to a copy. If the original is available, a copy will not be allowed as evidence in a trial.
bfp n. slang for bona fide purchaser, which means someone who purchased something (e.g. a bond, a promissory note, or jewelry) with no reason to be suspicious that it was stolen, belonged to someone else, or was subject to another party's claim. The BFP must have paid a full and fair price and have received the item in the normal course of business, otherwise he/she might have some doubts ("wanta buy a watch, cheap?" from a character on a street corner).
bias n. the predisposition of a judge, arbitrator, prospective juror, or anyone making a judicial decision, against or in favor of one of the parties or a class of persons. This can be shown by remarks, decisions contrary to fact, reason or law, or other unfair conduct. Bias can be toward an ethnic group, women or men, defendants or plaintiffs, large corporations, or local parties. Getting a "hometown" decision is a form of bias which is the bane of the out-of-town lawyer. There is also the subtle bias of some male judges in favor of pretty women. Obvious bias is a ground for reversal on appeal, but it is hard to prove, since judges are usually careful to display apparent fairness in their comments. The possibility of juror bias is explored in questioning at the beginning of trial in a questioning process called voir dire.
bid n. an offer to purchase with a specific price stated. It includes offers during an auction in which people compete by raising the bid until there is no more bidding, or contractors offer to contract to build a project or sell goods or services at a given price, with usually the lowest bidder getting the job.
bifurcate v. the order or ruling of a judge that one issue in a case can be tried to a conclusion or a judgment given on one phase of the case without trying all aspects of the matter. A typical example is when the judge will grant a divorce judgment without hearing evidence or making a ruling on such issues as division of marital property, child custody or spousal support (alimony). Thus the parties can be free of each other promptly while still fighting over other issues at their leisure. In a negligence case when the question of responsibility (liability) is clearly in doubt or rests on some legal technicality, the court may bifurcate the issues and hear evidence on the defendant's liability and decide that issue before going ahead with a trial on the amount of damages. If the court rules there is no liability, then the amount of damages is meaningless and further trial is necessary.
bifurcation n. the act of a judge in dividing issues before a trial so that one issue will be ruled upon before hearing evidence on the other issue. (See bifurcate)
bigamy n. the condition of having two wives or two husbands at the same time. A marriage in which one of the parties is already legally married is bigamous, void, and ground for annulment. The one who knowingly enters into a bigamous marriage is guilty of the crime of bigamy, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another's property or some other felony. Occasionally people commit bigamy accidentally, usually in the belief that a prior marriage had been dissolved. Having several wives at the same time is called polygamy and being married to several husbands is polyandry.
bilateral contract n. an agreement in which the parties exchange promises for each to do something in the future.
bill n. 1) what is commonly called a "check" by which the signer requires the bank to pay a third party a sum of money. This is a holdover from the days when a person would draw up a "bill of exchange." 2) a statement of what is owed. 3) any paper money. 4) a legislative proposal for enactment of a law. It is called a bill until it is passed and signed, at which time it is a law (statute) and is no longer referred to as a bill. 5) an old-fashioned term for various filed documents in lawsuits or criminal prosecutions, which is falling into disuse.
bill of exchange n. a writing by a party (maker or drawer) ordering another (payor) to pay a certain amount to a third party (payee). It is the same as a draft. A bill of exchange drawn on a bank account is a "check."
bill of lading n. a receipt obtained by the shipper of goods from the carrier (trucking company, railroad, ship or air freighter) for shipment to a particular buyer. It is a contract protecting the shipper by guaranteeing payment and satisfies the carrier that the recipient has proof of the right to the goods. The bill of lading is then sent to the buyer by the shipper upon payment for the goods, and is thus proof that the recipient is entitled to the goods when received. Thus, if there is no bill of lading, there is no delivery.
bill of particulars n. a written itemization of claims which a defendant in a lawsuit can demand of the plaintiff to find out what are the details of the claims.
bill of sale n. a written statement attesting to the transfer (sale) of goods, possessions, or a business to a buyer. It is useful to show that the buyer now has ownership and to detail what was actually purchased. A bill of sale may accompany an agreement which states the agreed-upon terms of sale, including the date of transfer, the price, timing of payment and other provisions.
binder n. a written statement of the key terms of an agreement, in particular insurance policies, so that the insured as well as lenders can be assured there is valid and adequate insurance coverage.
blackmail n. the crime of threatening to reveal embarrassing, disgraceful or damaging facts (or rumors) about a person to the public, family, spouse or associates unless paid off to not carry out the threat. It is one form of extortion (which may include other threats such as physical harm or damage to property).
blank endorsement n. endorsement of a check or other negotiable paper without naming the person to whom it would be paid.
board of directors n. the policy managers of a corporation or organization elected by the shareholders or members. The board in turn chooses the officers of the corporation, sets basic policy, and is responsible to the shareholders. In small corporations there are usually only three directors. In larger corporations board members provide illustrious names, but the company is often run by the officers and middle-management who have the expertise.
boiler room n. a telephone bank operation in which fast-talking telemarketers or campaigners attempt to sell stock, services, goods, or candidates and act as if they are calling from an established company or brokerage. Often the telemarketers are totally fraudulent and in violation of security laws.
boilerplate n., adj. slang for provisions in a contract, form or legal pleading which are apparently routine and often preprinted. The term comes from an old method of printing. Today "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed. A layperson should beware that the party supplying the boilerplate form usually has developed supposedly "standard" terms (some of which may not apply to every situation) to favor and/or protect the provider.
bona fide adj. Latin for "good faith," it signifies honesty, the "real thing" and, in the case of a party claiming title as bona fide purchaser or holder, it indicates innocence or lack of knowledge of any fact that would cast doubt on the right to hold title.
bona fide purchaser n. commonly called BFP in legal and banking circles; a person who has purchased an asset (including a promissory note, bond or other negotiable instrument) for stated value, innocent of any fact which would cast doubt on the right of the seller to have sold it in good faith. This is vital if the true owner shows up to claim title, since the BFP will be able to keep the asset, and the real owner will have to look to the fraudulent seller for recompense.
bond n. 1) written evidence of debt issued by a company with the terms of payment spelled out. A bond differs from corporate shares of stock since bond payments are pre-determined and provide a final payoff date, while stock dividends vary depending on profitability and corporate decisions to distribute. There are two types of such bonds: "registered," in which the name of the owner is recorded by the company and "bearer," in which interest payments are made to whomever is holding the bond. 2) written guaranty or pledge which is purchased from a bonding company (usually an insurance firm) or by an individual as security (called a "bondsman") to guarantee some form of performance, including showing up in court ("bail bond"), properly complete construction or other contract terms ("performance bond"), that the bonded party will not steal or mismanage funds, that a purchased article is the real thing, or that title is good. If there is a failure then the bonding company will make good up to the amount of the bond.
bondsman n. 1) someone who sells bail bonds. 2) a surety (guarantor or insurance company, who/which provides bonds for performance.
booby trap n. a device set up to be triggered to harm or kill anyone entering the trap, such as a shotgun which will go off if a room is entered, or dynamite which will explode if the ignition key on an auto is turned. If a person sets up such a trap to protect his/her property, he/she will be liable for any injury or death even to an unwanted intruder such as a burglar. Setting a booby trap to even protect one's property is a crime.
book account n. an account of a customer kept in a business ledger of debits and credits (charges and payments), which shows the amount due at any given time. This can provide a clear basis for suing for a debt.
book value n. a determination of the value of a corporation's stock by adding up the stated value of corporate assets as shown on the books (records) of a corporation and deducting all the liabilities (debts) of the corporation. This may not be the true value of the corporation or its shares since the assets may be under- or over-valued
bottomry n. a mortgage contract in which a ship and/or its freight is pledged as security for a loan for equipment, repair, or use of a vessel. The contract is generally called a "bottomry bond." If the loan is not paid back, the lender can sell the ship and/or its freight.
boycott n. organized refusal to purchase products or patronize a store to damage the producer or merchant monetarily, to influence its policy, and/or to attract attention to a social cause. The term is named for Captain Charles C. Boycott, a notorious land agent whose neighbors ostracized him during Ireland's Land League rent wars in the 1880's. Boycotts are not illegal in themselves, unless there are threats of violence involved.
breach 1) n. literally, a break. A breach may be a failure to perform a contract (breaking its terms), failure to do one's duty (breach of duty, or breach of trust), causing a disturbance, threatening, or other violent acts which break public tranquility (breach of peace), illegally entering property (breach of close), not telling the truth-knowingly or innocently-about title to property (breach of warranty), or, in past times, refusal to honor a promise to marry (breach of promise). 2) v. the act of failing to perform one's agreement, breaking one's word, or otherwise actively violating one's duty to other.
breach of contract n. failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work ("anticipatory breach"). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered "specific performance" of the contract.
breach of the peace n. any act which disturbs the public or even one person. It can include almost any criminal act causing fear or attempting intimidation, such as displaying a pistol or shouting inappropriately.
breach of trust n. 1) any act which is in violation of the duties of a trustee or of the terms of a trust. Such a breach need not be intentional or with malice, but can be due to negligence. 2) breaking a promise or confidence.
breach of warranty n. determination that a statement as to title of property, including real property or any goods, is proved to be untrue, whether intended as a falsehood or not. It can also apply to an assurance of quality of a product or item sold. The party making the warranty is liable to the party to whom the guarantee was made. In modern law the warranty need not be expressed in so many words, but may be implied from the circumstances or surrounding language at the time of sale.
breaking and entering n. 1) the criminal act of entering a residence or other enclosed property through the slightest amount of force (even pushing open a door), without authorization. If there is intent to commit a crime, this is burglary. If there is no such intent, the breaking and entering alone is probably at least illegal trespass, which is a misdemeanor crime. 2) the criminal charge for the above.
bribery n. the crime of giving or taking money or some other valuable item in order to influence a public official (any governmental employee) in the performance of his/her duties. Bribery includes paying to get government contracts (cutting in the roads commissioner for a secret percentage of the profit), giving a bottle of liquor to ignore a violation or grant a permit, or selling stock at a cut-rate price. The definition has been expanded to include bribes given to corporate officials to obtain contracts or other advantages which are against company policy.
brief 1) n. a written legal argument, usually in a format prescribed by the courts, stating the legal reasons for the suit based on statutes, regulations, case precedents, legal texts, and reasoning applied to facts in the particular situation. A brief is submitted to lay out the argument for various petitions and motions before the court (sometimes called "points and authorities"), to counter the arguments of opposing lawyers, and to provide the judge or judges with reasons to rule in favor of the party represented by the brief writer. Ironically, although the term was originally intended to mean a brief or summary argument (shorter than an oral presentation), legal briefs are quite often notoriously long. 2) v. to summarize a precedent case or lay out in writing a legal argument. Attentive law students "brief" each case in their casebooks, which means extracting the rule of law, the reasoning (rationale), the essential facts, and the outcome. 3) v. to give a summary of important information to another person.
broker n. in general, a person who arranges contracts between a buyer and seller for a commission (a percentage of the sales price). These include real estate brokers (who have responsibility over an agency and its sales agents as well as their own conduct), insurance brokers (handling more than one company rather than being an agent for just a single carrier), and stockbrokers, who are the upper-level of stock salespersons and/or the operators of brokerage houses. Brokers in the more technical fields (as above) are regulated and licensed and have a "fiduciary" duty to act in the best interests of the customer. Consumers should investigate whether the broker is representing the customer's best interest or just wants to make a sale. A "pawnbroker" is a lender for items left for security ("hocked") at high rates.
brought to trial v. the act of actually beginning a trial, usually signaled by swearing in the first witness (not the impanelling of the jury or beginning opening statements).
bucket shop n. an unofficial and usually illegal betting operation in which the prices of stocks and commodities are posted and the customers bet on the rise and fall of prices without actually buying stock, commodities, or commodity futures. Bucket shops are seldom seen today since there are many opportunities to gamble legally on the stock and commodities markets.
building and loan n. another name for savings and loan association. As the name implies, originally these institutions were meant to provide loans for building a house after the depositor had saved enough for a down payment.
bulk sale n. the sale of all or a large part of a merchant's stock as well as equipment. This generally applies to retailers, restaurants, and other businesses with inventories.
bulk transfer bulk sale
burden n. anything that results in a restrictive load upon something. This is not meant in a tangible sense, but includes a "burden" on interstate commerce (which is any matter which limits, restricts or is onerous such as a license or fee for passage), and "burdens" on land such as zoning restrictions or the right of a neighbor to pass over the property to reach his home (easement).
burden of proof n. the requirement that the plaintiff (the party bringing a civil lawsuit) show by a "preponderance of evidence" or "weight of evidence" that all the facts necessary to win a judgment are presented and are probably true. In a criminal trial the burden of proof required of the prosecutor is to prove the guilt of the accused "beyond a reasonable doubt," a much more difficult task. Unless there is a complete failure to present substantial evidence of a vital fact (usually called an "element of the cause of action"), the ultimate decision as to whether the plaintiff has met his/her burden of proof rests with the jury or the judge if there is no jury. However, the burden of proof is not always on the plaintiff. In some issues it may shift to the defendant if he/she raises a factual issue in defense, such as a claim that he/she was not the registered owner of the car that hit the plaintiff, so the defendant has the burden to prove that defense. If at the close of the plaintiff's presentation he/she has not produced any evidence on a necessary fact (e.g. any evidence of damage) then the case may be dismissed without the defendant having to put on any evidence.
burglary n. the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. Originally under English common law burglary was limited to entry in residences at night, but it has been expanded to all criminal entries into any building, or even into a vehicle.
business n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or has any such formal organization, but it can range from a street peddler to General Motors. It is sometimes significant to determine if an accident, visit, travel, meal or other activity was part of "business" or for pleasure or no particular purpose.
business invitee n. a person entering commercial premises for the purpose of doing business, rather than just taking a short cut to the next street. It is important since a business is liable to a business invitee for injury caused by dangerous conditions such as bad floors or oil on the linoleum. There is a presumption that anyone entering a retail store or restaurant in which one may browse is a business invitee unless there is evidence to the contrary.
but for rule n. one of several tests to determine if a defendant is responsible for a particular happening. In this test, was there any other cause, or would it have occurred "but for" the defendant's actions? Example: "But for" defendant Drivewild's speeding, the car would not have gone out of control, and therefore the defendant is responsible. This is shorthand for whether the action was the "proximate cause" of the damage.
buy-sell agreement n. a contract among the owners of a business which provides terms for their purchase of a withdrawing partner's or stockholder's interest in the enterprise.
bylaws n. the written rules for conduct of a corporation, association, partnership or any organization. They should not be confused with the articles of incorporation, which only state the basic outline of the company, including stock structure. Bylaws generally provide for meetings, elections of a board of directors and officers, filling vacancies, notices, types and duties of officers, committees, assessments and other routine conduct. Bylaws are in effect a contract among members and must be formally adopted and/or amended.
c.i.f. n. the total of cost, insurance and freight charges to be paid on goods purchased and shipped.
calendar 1) n. the list of cases to be called for trial before a particular court; 2) v. to set and give a date and time for a case, petition or motion to be heard by a court. Usually a judge, a trial setting commissioner, or the clerk of the court calendars cases.
calendar call n. the hearing at which a case is set for trial.
call n. the demand by a corporation that a stockholder pay an installment or assessment on shares already owned
calumny n. the intentional and generally vicious false accusation of a crime or other offense designed to damage one's reputation.
cancel v. to cross out, annul, destroy, void and/or rescind a document. Cancelling can be done in several ways: tear up the document or mark on its face that it is cancelled, void, or terminated if the debt for which it stood has been paid. It is important that the document (like a promissory note) itself become no longer operative either by destruction or marking, so that it cannot be used again.
cancellation cancel
caning n. a punishment for crimes employed in certain Asian countries (notably Singapore) even for misdemeanors (lesser crimes) in which the convicted defendant receives several lashes with a flexible "cane" meted out by a husky and skilled whipper.
canon law n. laws and regulations over ecclesiastical (church) matters developed between circa 1100 and 1500 and used by the Roman Catholic Church in reference to personal morality, status and powers of the clergy, administration of the sacraments and church and personal discipline. Canon law comprises ordinances of general councils of the church, decrees, bulls and epistles of the Popes, and the scriptures and writings of the early fathers of the church. Canon law has no legal force except within the Vatican in Rome, Italy, and in those nations in which the Catholic Church is the "official" church and where it prevails in religious matters which may affect all citizens (such as abortion and divorce). In Great Britain there is also a body of canon law dating back to pre-reformation in the 16th Century, which is used by the Anglican (Episcopal) Church. Canon law is not to be confused with professional canons, which are rules of conduct with no religious connection.
cap n. slang for maximum, as the most interest that can be charged on an "adjustable rate" promissory note
capital 1) n. from Latin for caput, meaning "head," the basic assets of a business (particularly corporations or partnerships) or of an individual, including actual funds, equipment and property as distinguished from stock in trade, inventory, payroll, maintenance and services. 2) adj. related to the basic assets or activities of a business or individual, such as capital account, capital assets, capital expenditure, and capital gain or loss. 3) n. an amount of money a person owns, as in "how much capital do you have to put into this investment?" as distinguished from the amount which must be financed.
capital account n. the record which lists all basic assets of a business, not including inventory or the alleged value of good will.
capital assets n. equipment, property, and funds owned by a business.
capital expenditure n. payment by a business for basic assets such as property, fixtures, or machinery, but not for day-to-day operations such as payroll, inventory, maintenance and advertising. Capital expenditures supposedly increase the value of company assets and are usually intended to improve productivity.
capital gains n. the difference between the sales price and the original cost (plus improvements) of property.
capital offense n. any criminal charge which is punishable by the death penalty, called "capital" since the defendant could lose his/her head (Latin for caput).
capital punishment n. execution (death) for a capital offense.
capital stock n. the original amount paid by investors into a corporation for its issued stock. Capital stock bears no direct relationship to the present value of stock, which can fluctuate after the initial issue or first stock offering. Capital stock also does not reflect the value of corporate assets, which can go up or down based on profits, losses, or purchases of equipment. Capital stock remains as a ledger entry at the original price.
capitalization n. 1) the act of counting anticipated earnings and expenses as capital assets (property, equipment, fixtures) for accounting purposes. 2) the amount of anticipated net earnings which hypothetically can be used for conversion into capital assets.
capitalized value n. anticipated earnings which are discounted (given a lower value) so that they represent a more realistic current value since projected earnings do not always turn out as favorably as expected or hoped.
capricious adv., adj. unpredictable and subject to whim, often used to refer to judges and judicial decisions which do not follow the law, logic or proper trial procedure. A semi-polite way of saying a judge is inconsistent or erratic.
caption n. the first section of any written legal pleading (papers) to be filed, which contains the name, address, telephone number of the attorney, the person or persons the attorney represents, the court name, the title of the case, the number of the case, and the title of the documents (complaint, accusation, answer, motion, etc.). Each jurisdiction has its own rules as to the exact format of the caption.
care n. in law, to be attentive, prudent and vigilant. Essentially, care (and careful) means that a person does everything he/she is supposed to do (to prevent an accident). It is the opposite of negligence (and negligent), which makes the responsible person liable for damages to persons injured. If a person "exercises care," a court cannot find him/her responsible for damages from an accident in which he/she is involved.
careless adj., adv. 1) negligent. 2) the opposite of careful. A careless act can result in liability for damages to others.
carnal knowledge n. from Latin carnalis for "fleshly:" sexual intercourse between a male and female in which there is at least some slight penetration of the woman's vagina by the man's penis. It is legally significant in that it is a necessary legal characteristic or element of rape, child molestation, or consensual sexual relations with a female below the age of consent ("statutory rape").
carrier n. in general, any person or business which transports property or people by any means of conveyance (truck, auto, taxi, bus, airplane, railroad, ship), almost always for a charge. The carrier is the transportation system and not the owner or operator of the system. There are two types of carriers: common carrier (in the regular business or a public utility of transportation) and a private carrier (a party not in the business, which agrees to make a delivery or carry a passenger in a specific instance).
carryback n. in taxation accounting, using a current tax year's deductions, business losses or credits to refigure and amend a previously filed tax return to reduce the tax liability.
carrying for hire n. the act of transporting goods or individuals for a fee. It is important to determine if the carrier has liability for safe delivery or is subject to regulation.
carrying on business v. pursuing a particular occupation on a continuous and substantial basis. There need not be a physical or visible business "entity" as such.
carryover n. in taxation accounting, using a tax year's deductions, business losses or credits to apply to the following year's tax return to reduce the tax liability.
cartel n. 1) an arrangement among supposedly independent corporations or national monopolies in the same industrial or resource development field organized to control distribution, set prices, reduce competition, and sometimes share technical expertise. Often the participants are multinational corporations which operate across numerous borders and have little or no loyalty to any home country, and great loyalty to profits. The most prominent cartel is OPEC (Organization of Petroleum Exporting Countries), which represents all of the oil producing countries in the Middle East, North Africa and Venezuela. Many cartels operate behind a veil of secrecy. 2) a criminal syndicate like the international drug cartel headquartered in Colombia.
case n. short for a cause of action, lawsuit, or the right to sue (as in "does he have a case against Anil?"). It is also shorthand for the reported decisions which can be cited as precedents.
case law n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law," which is the statutes and codes (laws) enacted by legislative bodies; "regulatory law," which is regulations required by agencies based on statutes. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes.
case of first impression n. a case in which a question of interpretation of law is presented which has never arisen before in any reported case.
case system n. the method of studying law generally used in Indian law schools, in which the students read, outline (brief), discuss and hear lectures about the cases. Each case presented stands for a particular rule of law in the subject matter covered and is contained in "casebooks" on particular topics (contracts, torts, criminal law, constitutional law, agency, etc.). The system is useful since it relates the law to real and factual situations which assist students in memorization and encourages deductive reasoning. The case system is reinforced by textbooks and outlines on the subject matter, which were formerly the principal sources of learning.
cashier's check n. a check issued by a bank on its own account for the amount paid to the bank by the purchaser with a named payee, and stating the name of the party purchasing the check (the remitter). The check is received as cash since it is guaranteed by the bank and does not depend on the account of a private individual or business. Cashiers' checks are commonly used when payment must be credited immediately upon receipt for business, real estate transfers, tax payments and the like.
casual adj. defining something that happens by chance, without being foreseen, or informally. This includes "casual" labor or employment, which is someone hired to do a task just because he/she was available at the moment. "Casual laborer" carries the implication that the laborer does not belong to a union and that the employer and the laborer will not pay appropriate taxes on the wages paid.
casualty n. 1) an accident which could not have been foreseen or guarded against, such as a shipwreck caused by storm or fire caused by lightning. 2) the loss, as of life, from such an unavoidable accident. The courts remain inconsistent on the exact definition.
casualty loss n. in taxation, loss due to damage which qualifies for a casualty loss tax deduction. It must be caused by a sudden, unexpected or unusual occurrence such as a storm, flood, fire, shipwreck, earthquake or act of God, but would not include gradual damage from water seepage or erosion.
cause from Latin causa 1) v. to make something happen. 2) n. the reason something happens. A cause implies what is called a "causal connection" as distinguished from events which may occur but do not have any effect on later events. 3) n. short for cause of action.
cause of action n. the basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the "elements" required by statute. Examples: to have a cause of action for breach of contract there must have been an offer of acceptance; for a tort (civil wrong) there must have been negligence or intentional wrong-doing and failure to perform; for libel there must have been an untruth published which is particularly harmful; and in all cases there must be a connection between the acts of the defendant and damages. In many lawsuits there are several causes of action stated separately, such as fraud, breach of contract, and debt, or negligence and intentional destruction of property.
caveat n. (kah-vee-ott) from Latin caveat for "let him beware." 1) a warning or caution. 2) a popular term used by lawyers to point out that there may be a hidden problem or defect. In effect, "I just want to warn you that…."
caveat emptor (kah-vee-ott emptor) Latin for "let the buyer beware." The basic premise that the buyer buys at his/her own risk and therefore should examine and test a product himself/herself for obvious defects and imperfections. Caveat emptor still applies even if the purchase is "as is" or when a defect is obvious upon reasonable inspection before purchase. Since implied warranties (assumed quality of goods) and consumer protections have come upon the legal landscape, the seller is held to a higher standard of disclosure than "buyer beware" and has responsibility for defects which could not be noted by casual inspection (particularly since modern devices cannot be tested except by use and many products are pre-packaged).
cease and desist order n. an order of a court or government agency to a person, business or organization to stop doing something upon a strong showing that the activity is harmful and/or contrary to law. The order may be permanent or hold until a final judicial determination of legality occurs. In many instances the activity is believed to cause irreparable damage such as receipt of funds illegally, felling of timber contrary to regulation, selling of shares of stock without a proper permit, or oil drilling which would damage the ecology.
certificate of deposit (cd) n. a document issued by a bank in return for a deposit of money which pays a fixed interest rate for a specified period (from a month to several years). Interest rates on CD's are usually higher than savings accounts because banking institutions require a commitment to leave money in the CD for a fixed period of time. Often there is a financial penalty (fee) for cashing in a CD before the pledged time runs out.
certificate of incorporation n. document which is used to prove a corporation's existence upon the filing of articles of incorporation.
certificate of title n. generally, the title document for a motor vehicle issued by the state in which it is registered, describing the vehicle by type and engine number, as well as the name and address of the registered owner and the lienholder (financial institution that loaned money to buy the car).
certified check n. a check issued by a bank which certifies that the maker of the check has enough money in his/her account to cover the amount to be paid. The bank sets aside the funds so that the check will remain good even if other checks are written on the particular account. Like a cashier's check, a certified check guarantees that it is immediately good since it is guaranteed by the bank and the recipient does not have to wait until it "clears."
certiorari n. (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision.
cestui que trust n. (properly pronounced ses-tee kay, but lawyers popularly pronounce it setty kay) from old French. 1) an old-fashioned expression for the beneficiary of a trust. 2) "the one who trusts" or the person who will benefit from the trust and will receive payments or a future distribution from the trust's assets.
cestui que use (pronounced ses-tee kay use or setty kay use) n. an old-fashioned term for a person who benefits from assets held in a trust for the beneficiary's use. The term "beneficiary" is now used instead
chain of title n. the succession of title ownership to real property from the present owner back to the original owner at some distant time. Chains of title include notations of deeds, judgments of distribution from estates, certificates of death of a joint tenant, foreclosures, judgments of quiet title (lawsuit to prove one's right to property title) and other recorded transfers (conveyances) of title to real property. Usually title companies or abstractors are the professionals who search out the chain of title and provide a report so that a purchaser will be sure the title is clear of any claims.
chambers n. the private office of a judge, usually close to the courtroom so that the judge can enter the court from behind the bench and not encounter people on the way. Judges hear some motions, discuss formal legal problems like jury instructions, or conduct hearings on sensitive matters such as adoptions "in chambers."
champerty n. an agreement between the party suing in a lawsuit (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery (money won and paid). In common law this was illegal on the theory that it encouraged lawsuits.
chancellor n. from the old English legal system, a chancellor is a judge who sits in what is called a chancery (equity) court with the power to order something be done (as distinguished from just paying damages).
chancery n. a court that can order acts performed.
change of circumstances n. the principal reason for a court modifying (amending) an existing order for the payment of alimony and/or child support. The change may be an increase or decrease in the income of either the party obligated to pay or the ex-spouse receiving payment, or the health, the employment, or needs of either party. Thus, if an ex-husband's income is substantially increased or the ex-wife becomes ill and cannot work, the judge may order the ex-husband to pay her more. Remarriage of a spouse who is receiving alimony automatically terminates the alimony order, unless there is a special provision that it continue, which is rare
character witness n. a person who testifies in a trial on behalf of a person (usually a criminal defendant) as to that person's good ethical qualities and morality both by the personal knowledge of the witness and the person's reputation in the community. Such testimony is primarily relevant when the party's honesty or morality is an issue, particularly in most criminal cases and civil cases such as fraud.
charge n. 1) in a criminal case, the specific statement of what crime the party is accused (charged with) contained in the indictment or criminal complaint. 2) in jury trials, the oral instructions by the judge to the jurors just before the jury begins deliberations. This charge is based on jury instructions submitted by attorneys on both sides and agreed upon by the trial judge. 3) a fee for services.
charitable contribution n. in taxation, a contribution to an organization which is officially created for charitable, religious, educational, scientific, artistic, literary, or other good works. Such contributions are deductible from gross income, and thus lower the taxes paid.
charity n. 1) in general the sentiment of benevolence, doing good works, assisting the less fortunate, philanthropy and contributing to the general public. 2) an organization which exists to help those in need or provide educational, scientific, religious and artistic assistance to members of the public. Charities are usually corporations established under state guidelines and require government approval in order for contributions to them to be deductible from gross income by donors.
charter n. the name for articles of incorporation as in a corporate charter.
chattel n. an item of personal property which is movable, as distinguished from real property (land and improvements).
chattel mortgage n. an outmoded written document which made a chattel (tangible personal asset) security for a loan of a certain amount.
check n. a draft upon a particular account in a bank, in which the drawer or maker (the person who has the account and signs the check) directs the bank to pay a certain amount to the payee (which may include the drawer, "cash," or someone else). Other checks include cashier's checks issued by the bank for a sum paid to the bank, and certified checks in which the bank sets aside an amount from the maker's bank account and then guarantees the check can be cashed immediately.
chief justice n. the presiding judge of the Supreme Court. The Chief Justice of the Supreme Court is appointed by the President.
child n. 1) a person's natural offspring.
child custody n. a court's determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor (child) under 18. Child custody can be decided by a local court in a divorce or if a child, relative, close friend or state agency questions whether one or both parents is unfit, absent, dead, in prison or dangerous to the child's well-being. In such cases custody can be awarded to a grandparent or other relative, a foster parent or an orphanage or other organization or institution. While a divorce is pending the court may grant temporary custody to one of the parents, require conferences or investigation (if the parents cannot agree, custody is automatically referred to a mediator, commissioner or social worker) before making a final ruling. There is a difference between physical custody, which designates where the child will actually live, and legal custody, which gives the custodial person(s) the right to make decisions for the child's welfare. If the parents agree, the court can award joint custody, physical and/or legal. Joint legal custody is becoming increasingly common. The basic consideration on custody matters is supposed to be the best interests of the child or children. In most cases the non-custodial parent is given visitation rights, which may include weekends, parts of vacations and other occasions. The court can always change custody if circumstances warrant.
child support n. court-ordered funds to be paid by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the amounts are based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, for an extended period such as college attendance. The amount and continuation of support may be changed by the court upon application of either party depending on a proved change of circumstance of the parents or child. Child support should not be confused with alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes (but may allow a dependent exemption) nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.
churning n. the unethical and usually illegal practice of excessive buying and selling of shares of stock for a customer by a stockbroker or sales agent for the purpose of obtaining high sales commissions.
circumstantial evidence n. evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. There is a public perception that such evidence is weak ("all they have is circumstantial evidence"), but the probable conclusion from the circumstances may be so strong that there can be little doubt as to a vital fact ("beyond a reasonable doubt" in a criminal case, and "a preponderance of the evidence" in a civil case). Particularly in criminal cases, "eyewitness" ("I saw Mary shoot John") type evidence is often lacking and may be unreliable, so circumstantial evidence becomes essential. Prior threats to the victim, fingerprints found at the scene of the crime, ownership of the murder weapon, and the accused being seen in the neighborhood, certainly point to the suspect as being the killer, but each bit of evidence is circumstantial.
citation n. 1) a notice to appear in court due to the probable commission of a minor crime such as a traffic violation, drinking liquor in a park where prohibited, etc. Failure to appear can result in a warrant for the citee's arrest. 2) a notice to appear in court in a civil matter in which the presence of a party appears necessary, usually required by statute, such as a person whose relatives wish to place him/her under a conservatorship (take over and manage his/her affairs). 3) the act of referring to (citing) a statute, precedent-setting case or legal textbook, in a brief (written legal court statement) or argument in court, called "citation of authority." 4) the section of the statute or the name of the case as well as the volume number, the report series and the page number of a case referred to in a brief, points and authorities, or other legal argument.
cite v. 1) to make reference to a decision in another case to make a legal point in argument. 2) to give notice of being charged with a minor crime and a date for appearance in court to answer the charge rather than being arrested (usually given by a police officer).
citizen n. person who by place of birth, nationality of one or both parents, or by going through the naturalization process has sworn loyalty to a nation.
civil adj. 1) that part of the law that encompasses business, contracts, estates, domestic (family) relations, accidents, negligence and everything related to legal issues, statutes and lawsuits, that is not criminal law. In a few areas civil and criminal law may overlap or coincide. For example, a person may be liable under a civil lawsuit for negligently killing a pedestrian with his auto by running over the person and be charged with the crime of vehicular homicide due to his/her reckless driving. Assault may bring about arrest by the police under criminal law and a lawsuit by the party attacked under civil law. 2) referring to one's basic rights guaranteed under the Constitution (and the interpretations and statutes intended to implement the enforcement of those rights) such as voting, equitable taxation, freedom of speech, press, religion and assembly.
civil action n. any lawsuit relating to civil matters and not criminal prosecution.
civil calendar n. the list of lawsuits (cases) that are approaching trial in any court. Attorneys and/or parties whose cases are coming to the top of the list receive notice of the "calling" of the civil calendar on a particular day for setting a trial date. Unfortunately, some courts are so clogged with pending lawsuits that one case may be called on several civil calendars, possibly months apart, before being finally sent to trial.
civil code n. the name for the collection of statutes and laws which deal with business and negligence lawsuits and practices.
civil law n. 1) a body of laws and legal concepts which come down from old Roman laws established by Emperor Justinian, and which differ from English common law. 2) generic term for non-criminal law.
civil liability n. potential responsibility for payment of damages or other court-enforcement in a lawsuit, as distinguished from criminal liability, which means open to punishment for a crime.
civil liberties n. rights or freedoms given to the people by Common Law, or legislation, allowing the individual to be free to speak, think, assemble, organize, worship, or petition without government (or even private) interference or restraints. These liberties are protective in nature, while civil rights form a broader concept and include positive elements such as the right to use facilities, the right to an equal education, or the right to participate in government.
civil penalties n. fines or surcharges imposed by a governmental agency to enforce regulations such as late payment of taxes, failure to obtain a permit, etc.
civil procedure n. the complex and often confusing body of rules and regulations which establish the format under which civil lawsuits are filed, pursued and tried. Civil procedure refers only to form and procedure, and not to the substantive law which gives people the right to sue or defend a lawsuit.
civil rights n. those rights guaranteed by the Constitution, including the right to due process, equal treatment under the law of all people regarding enjoyment of life, liberty, property, and protection. Positive civil rights include the right to vote, the opportunity to enjoy the benefits of a democratic society, such as equal access to public schools, recreation, transportation, public facilities, and housing, and equal and fair treatment by law enforcement and the courts.
claim 1) v. to make a demand for money, for property, or for enforcement of a right provided by law. 2) n. the making of a demand (asserting a claim) for money due, for property, from damages or for enforcement of a right. If such a demand is not honored, it may result in a lawsuit. In order to enforce a right against a government agency (ranging for damages from a negligent bus driver to a shortage in payroll) a claim must be filed first. If rejected or ignored by the government, it is lawsuit time.
claim against an estate n. upon the death of a person and beginning of probate (filing of will, etc.), a person believing he/she is owed money should file a written claim (statement) promptly with the executor or administrator of the estate, who will then approve it, in whole or in part, or deny the claim. If the claim is not approved the claimant can demand a hearing to have the court determine his/her rights. The period for filing a claim begins upon publication of a death notice or a date specified by state law and continues for a few months (four in California, for example). If there is no probate the claim should be made to the heirs.
claim in bankruptcy n. the written claim filed by persons or businesses owed money (creditors) by a party who files for bankruptcy (debtor) to benefit from the distribution if money becomes available. The known creditors receive written notice of the bankruptcy and will receive a creditor's claim form. They may also receive notice that the bankrupt party has no assets to distribute and that they should not file a claim until further notice (this is bad news for the creditor).
class n. in legal (not sociological) terms, all those persons in the same category, level of rights (e.g. heirs of dead person who are related by the same degree), or who have suffered from the same incident. Whether a person is part of a class is often crucial in determining who can sue on behalf of the people who have been similarly damaged or collect his/her share if a class action judgment is given.
class action n. a lawsuit filed by one or more people on behalf of themselves and a larger group of people "who are similarly situated." Examples might include: all women who have suffered from defective contraceptive devices, all those overcharged by a public utility during a particular period, or all those who were underpaid by an employer in violation of the Labor Act. If a class action is successful, a period of time is given for those who can prove they fit the class to file claims to participate in the judgment amount. Class actions are difficult and expensive to file and follow through, but the results can be helpful to people who could not afford to carry a suit alone. They can force businesses that have caused broad damage or have a "public be damned" attitude to change their practices and/or pay for damages. They often result in high fees for the winning attorneys, although often attorneys do not collect a fee at the beginning of a class action suit but might charge a contingent fee (such as one-third of the final judgment), which, occasionally, can be millions of dollars. Such fees usually require court approval.
clean hands doctrine n. a rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have "clean hands" or not have done anything wrong) in regard to the subject matter of his/her claim. His/her activities not involved in the legal action can be abominable because they are considered irrelevant. As an affirmative defense (positive response) a defendant might claim the plaintiff (party suing him/her) has a "lack of clean hands" or "violates the clean hands doctrine" because the plaintiff has misled the defendant or has done something wrong regarding the matter under consideration. Example: A former partner sues on a claim that he was owed money on a consulting contract with the partnership when he left, but the defense states that the plaintiff (party suing) has tried to get customers from the partnership by spreading untrue stories about the remaining partner's business practices.
clear and convincing evidence n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond the "reasonable doubt" needed to convict in a criminal case.
clear title n. holding ownership of real property without any claims by others on the owner's title and no history of past claims which might affect the ownership.
clerk n. 1) an official or employee who handles the business of a court or a system of courts, maintains files of each case, and issues routine documents. Most courtrooms have a clerk to keep records and assist the judge in the management of the court. 2) a young lawyer who assists a judge or a senior attorney in research and drafting of documents, usually for a year or two, and benefits in at least two ways: learning from the judge or attorney and enjoying association with them. Law clerks for judges, particularly on the Courts of Appeal and the Supreme Court, are chosen from among the top students graduating from law school. 3) a person who works in an office or a store who performs physical work such as filing, stocking shelves, or counter sales.
close corporation n. a corporation which is permitted by law to operate more informally than most corporations (allowing decisions without meetings of the board of directors) and has only a limited number of shareholders. Usually a close corporation's shareholders are involved in the actual operation of the business and often are family members.
closed shop n. a business that will hire only union members by choice or by agreement with the unions.
closing n. the final step in the sale and purchase of real estate in which a deed of title, financing documents, title insurance policies, and remaining funds due are exchanged. Some of the final documents, including the deed and mortgage or deed of trust, are then delivered to the county recorder to be recorded. Depending on local practice, the closing is handled by a title company, escrow holder or attorney.
closing argument n. the final argument by an attorney on behalf of his/her client after all evidence has been produced for both sides. The lawyer for the plaintiff or prosecution (in a criminal case) makes the first closing argument, followed by counsel for the defendant, and then the plaintiff's attorney can respond to the defense argument. Unlike the "opening statement," which is limited to what is going to be proved, the "closing argument" may include opinions on the law, comment on the opposing party's evidence, and usually requests a judgment or verdict (jury's decision) favorable to the client.
cloud on title (cloud) n. an actual or apparent outstanding claim on the title to real property. "Clouds" can include an old mortgage or deed of trust with no recording showing the secured debt was paid off, a failure to properly transfer all interests in the real property (such as mineral rights) to a former owner, a previous deed which was improperly written or signed, an unresolved legal debt or levy by a creditor or a taxing authority, or some other doubtful link in the chain of title. Often the "cloud" can be removed by a quiet title action, by finding a person to create or execute a document to prove a debt had been paid or corrected. Title companies will refuse to insure title to be transferred with a "cloud," or they will insure ownership except for ("insure around") the "cloud."
code n. a collection of written laws gathered together, usually covering specific subject matter. Despite their apparent permanence, codes are constantly being amended by legislative bodies. Some codes are administrative and have the force of law even though they were created and adopted by regulatory agencies and are not actually statutes or laws.
codefendant n. when more than one person or entity is sued in one lawsuit, each party sued is called a codefendant.
codicil n. a written amendment to a person's will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends. A codicil can add to, subtract from or modify the terms of the original will. When the person dies, both the original will and the codicil are submitted for approval by the court (probate) and form the basis for administration of the estate and distribution of the belongings of the writer.
codify v. to arrange and label a system of laws.
cohabitation n. living together in the same residence, generally either as husband and wife or for an extended period of time as if the parties were married. Cohabitation implies that the parties are having sexual intercourse while living together, but the definition would not apply to a casual sexual encounter. Legal disputes have arisen as to whether cohabitation would refer to same sex partners, which is important to those involved since "cohabitation" is the basis of certain rights and privileges under various laws, regulations and contracts. The findings of the courts vary on this question, but the trend is to include long-standing homosexual relationships as cohabitation.
coinsurance n. an insurance policy in which the insurance company insures only a partial value of the property owned by the insured owner. Essentially the owner and the insurance company share the risk.
collateral attack n. a legal action to challenge a ruling in another case. For example, Jose Mathew has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paternity in the divorce action.
collateral descendant n. a relative descended from a brother or sister of an ancestor, and thus a cousin, niece, nephew, aunt or uncle.
collateral estoppel n. the situation in which a judgment in one case prevents (estops) a party to that suit from trying to litigate the issue in another legal action. In effect, once decided, the parties are permanently bound by that ruling.
collusion n. where two persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating. Collusion can include secret price or wage fixing, secret rebates, or pretending to be independent of each other when actually conspiring together for their joint ends. It can range from small-town shopkeepers or heirs to a grandma's estate, to gigantic electronics companies.
collusive action n. a lawsuit brought by parties pretending to be adversaries in order to obtain by subterfuge an advisory opinion or precedent-setting decision from the court. If a judge determines the action does not involve a true controversy he/she will dismiss it.
color of law n. the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exists. An outstanding example is found in the civil rights acts which penalize law enforcement officers for violating civil rights by making arrests "under color of law" of peaceful protesters or to disrupt voter registration. It could apply to phony traffic arrests in order to raise revenue from fines or extort payoffs to forget the ticket.
color of title n. the appearance of having title to personal or real property by some evidence, but in reality there is either no title or a vital defect in the title. One might show a title document to real property, but in reality he/she may have deeded the property to another; a patent to an invention may have passed to the inventor's widow, who sells the rights to one party and then, using the original patent documents, sells the patent to a second party based on this "color of title."
comaker n. when two or more people sign a check or a promissory note, each is a comaker, and each is liable for the entire amount to be paid.
comity n. when one court defers to the jurisdiction of another in a case in which both would have the right to handle the case.
commencement of action n. an action (a lawsuit) commences (begins officially) when the party suing files a written complaint or petition with the clerk of the court.
comment n. a statement made by a judge or an attorney during a trial which is based on an alleged fact, but not a proven fact. If a comment is made in the presence of the jury, the jurors should be reminded it is not evidence and should not be considered. But how can a juror forget? The old adage: "a bell once rung, cannot be unrung," applies.
commercial frustration n. an unforeseen uncontrollable event which occurs after a written or oral contract is entered into between parties, and makes it impossible for one of the parties to fulfill his/her duties under the contract. This circumstance allows the frustrated party to rescind the contract without penalty. Such frustration (called frustration of purpose) could include the destruction by fire of the goods to be purchased, the denial of a permit to construct a building by a potential buyer, or denial of an application for a zoning variance to allow expansion by a contractor.
commercial law n. all the law which applies to the rights, relations and conduct of persons and businesses engaged in commerce, merchandising, trade and sales.
commingling n. the act of mixing the funds belonging to one party with those of another party, or, most importantly with funds held in trust for another. Spouses or business partners may commingle without a problem, except that a spouse may thus risk turning separate property into community property (transmutation), and a business partner may have to account to the other. However, trustees, guardians or lawyers holding client funds must be careful not to commingle those funds with their own, since commingling is generally prohibited as a conflict of interest. Use of commingled funds for an investment, even though it might benefit both the trustee and the beneficiary, is still improper. Inadvertent commingling or temporary commingling (say, upon receipt of a settlement check in which both the client and attorney have an interest) requires prompt separation of funds and accounting to the client or beneficiary. To avoid commingling, trustees, lawyers, guardians and those responsible for another's funds set up trust accounts for funds of another.
commission n. 1) a fee paid based on a percentage of the sale made by an employee or agent, as distinguished from regular payments of wages or salary. 2) a group appointed pursuant to law to conduct certain government business, especially regulation.
commitment n. a judge's order sending someone to jail or prison, upon conviction or before trial, or directing that a mentally unstable person be confined to a mental institution. Technically the judge orders law enforcement personnel to take the prisoner or patient to such places.
common area n. in condominium and some cooperative housing projects, the areas not owned by an individual owner of the condominium or cooperative residence, but shared by all owners, either by percentage interest or owned by the management organization. Common areas may include recreation facilities, outdoor space, parking, landscaping, fences, laundry rooms and all other jointly used space. Management is by a homeowners' association or cooperative board, which collects assessments from the owners and pays for upkeep, some insurance, maintenance and reserves for replacement of improvements in the common area. This can also refer to the area in a shopping center or mall outside of the individual stores, for which each business pays a share of maintenance based on percentage of total store space occupied.
common carrier n. an individual, a company or a public utility (like municipal buses) which is in the regular business of transporting people and/or freight. This is distinguished from a private carrier, which only transports occasionally or as a one-time-only event.
common counts n. claims for debt alleged in a lawsuit (included in the complaint) which are general and alleged together so that the defendant cannot squirm out of liability on some technicality on one of the counts. Common counts may include claims of debt for goods sold and delivered, for work performed, for money loaned or advanced, for money paid requiring repayment, for money received on behalf of the plaintiff, or for money due on an account stated or on an open book account.
common law n. the traditional unwritten law of England, based on custom and usage. The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror invaded England in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. By the 14th century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery), which came from the royal power to order or prohibit specific acts.
common property n. 1) real property owned by "tenants in common," who each have an "undivided interest" in the entire property. 2) property managed by a homeowners' association in a condominium project or a subdivision development, which all owners may use and each owns a percentage interest in. 3) lands owned by the government for public (common) use, like parks and national forests.
common stock n. stock in a corporation in which dividends (payouts) are calculated upon a percentage of net profits, with distribution determined by the board of directors. Usually holders of common stock have voting rights. These are distinguished from preferred stock in which the profits are a predetermined percentage and are paid before the common shareholders who gamble on higher profits, and collectively have voting control of the corporation
common-law marriage n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis.
community property n. property and profits received by a husband and wife during the marriage, with the exception of inheritances, specific gifts to one of the spouses, and property and profits clearly traceable to property owned before marriage, all of which is separate property. Community property is a concept which began in Spain to protect rich women from losing everything to profligate husbands. Community property recognizes the equal contribution of both parties to the marriage even though one or the other may earn more income through employment. By agreement or action the married couple can turn (transmute) separate property into community property, including by commingling community and separate funds in one account. Community property is recognized based on fact or agreement of the parties, rather than holding of title. Upon divorce community property is divided equally without regard to fault.
commutation n. the act of reducing a criminal sentence resulting from a criminal conviction by the executive clemency of the Governor of the state, or President. This is not the same as a pardon, which wipes out the conviction or the actual or potential charge A pardon implies either that the conviction was wrong, that there has been complete rehabilitation of the party, or that he/she has lived an exemplary life for many years and deserves to have his/her name cleared in old age. Commutation implies the penalty was excessive or there has been rehabilitation, reform or other circumstances such as good conduct or community service. Commutation is sometimes used when there is evidence that the defendant was not guilty, but it would prove embarrassing to admit an outright error by the courts.
commute a sentence See: commutation
company n. any formal business entity for profit, which may be a corporation, a partnership, association or individual proprietorship. Often people think the term "company" means the business is incorporated, but that is not true. In fact, a corporation usually must use some term in its name such as "corporation," "incorporated," "corp." or "inc." to show it is a corporation.
comparative negligence n. a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident.
compensation n. 1) payment for work performed, by salary, wages, commission or otherwise. It can include giving goods rather than money. 2) the amount received to "make one whole" (or at least better) after an injury or loss, particularly that paid by an insurance company either of the party causing the damage or by one's own insurer.
compensatory damages n. damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action).
competent adj. 1) in general, able to act in the circumstances, including the ability to perform a job or occupation, or to reason or make decisions. 2) in wills, trusts and contracts, sufficiently mentally able to understand and execute a document. To be competent to make a will a person must understand what a will is, what he/she owns (although forgetting a few items among many does not show incompetency), and who are relatives who would normally inherit such as children and spouse (although forgetting a child in a will is not automatic proof of lack of competency, since it may be intentional or the child has been long gone). 3) in criminal law, sufficiently mentally able to stand trial, if he/she understands the proceedings and can rationally deal with his/her lawyer. This is often broadly interpreted by psychiatrists whose testimony may persuade a court that a party is too psychotic to be tried. If the court finds incompetency then the defendant may be sent to a mental facility until such time as he/she regains sanity. At that time a trial may be held, but this is rare. 4) in evidence, "competent" means "relevant" and/or "material." Lawyers often make the objection to evidence: "incompetent, irrelevant and immaterial" to cover all bases.
complainant n. a person or entity who begins a lawsuit by filing a complaint and is usually called the plaintiff, or in some cases the petitioner.
complaint n. the first document filed with the court by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully (usually by an attorney) to properly state the factual as well as legal basis for the claim. When the complaint is filed, the court clerk will issue a summons, which gives the name and file number of the lawsuit and the address of the attorney filing the complaint, and instructs the defendant that he/she/it has a specific time to file an answer or other response. A copy of the complaint and the summons must be served on a defendant before a response is required.
compos mentis n. (com-pose-men-tis) Latin for "having a sound mind."
compound interest n. payment of interest upon principal and previously accumulated interest, which increases the amount paid for money use above simple interest. Thus, it can increase more rapidly if compounded daily, monthly or quarterly. The genius physicist Albert Einstein called compound interest man's "greatest invention." Most lenders agree.
compound question n. the combination of more than one question into what seems to be a single question asked of a witness during a trial or deposition. A compound question can be objected to by opposing counsel since it is confusing to the witness, who is entitled to answer each question separately. If the objection is sustained the question must be withdrawn and asked in a series of separate questions.
compounding a felony n. when a person injured by a felony (being shot, having one's business trashed, being robbed) reaches an agreement with the one causing the harm that the injured party (victim) will not prosecute (complain to law authorities or testify) the apparent felon in return for money payment, reparations, return of stolen goods or other recompense.
compromise 1) n. an agreement between opposing parties to settle a dispute or reach a settlement in which each gives some ground, rather than continue the dispute or go to trial. Judges encourage compromise and settlement, which is often economically sensible, since it avoids mounting attorneys' fees and costs. 2) v. to reach a settlement in which each party gives up some demands.
compromise verdict n. a decision made by a jury in which the jurors split the difference between the high amount of damages which one group of jurors feel is justified and the low amount other jurors favor. Since this is a "chance" verdict not computed on a careful determination of the damages, it may do an injustice to one party or the other, and is thus misconduct, which can result in an appeals court overturning the verdict.
concealed weapon n. a weapon, particularly a handgun, which is kept hidden on one's person, or under one's control (in a glove compartment or under a car seat).
concealment n. fraudulent failure to reveal information which someone knows and is aware that in good faith he/she should communicate to another. Examples include failure to disclose defects in goods sold (the horse has been sick, the car has been in an accident), leaving out significant liabilities in a credit application, or omitting assets from a bankruptcy schedule to keep them from being available for distribution to creditors. Such concealment at minimum can be a cause for rescission (cancellation) of a contract by the misled party or basis for a civil lawsuit for fraud.
conclusion n. 1) in general, the end. 2) in a trial, when all evidence has been introduced and final arguments made, so nothing more can be presented, even if a lawyer thinks of something new or forgotten. 3) in a trial or court hearing, a final determination of the facts by the trier of fact (jury or judge) and/or a judge's decision on the law.
conclusion of fact n. in a trial, the final result of an analysis of the facts presented in evidence, made by the trier of fact. When a judge is the trier of fact he/she will present orally in open court or in a written judgment his/her findings of fact to support his/her decision. In most cases either party is entitled to written conclusion of facts if requested.
conclusion of law n. a judge's final decision on a question of law which has been raised in a trial or a court hearing, particularly those issues which are vital to reaching a statement. These may be presented orally by the judge in open court, but are often contained in a written judgment in support of his/her judgment such as an award of damages or denial of a petition. In most cases either party is entitled to written conclusions of law if requested.
concurrent sentences n. sentences for more than one crime which are to be served at one time. When a criminal defendant is convicted of two or more crimes, a judge sentences him/her to a certain period of time for each crime. Then out of compassion, leniency, plea bargaining or the fact that the several crimes are interrelated, the judge will rule that the sentences may all be served at the same time, with the longest period controlling.
condemn v. 1) for a public agency to determine that a building is unsafe or unfit for habitation and must be torn down or rebuilt to meet building and health code requirements. 2) for a governmental agency to take private property for public use under the right of eminent domain, but constitutionally the property owner must receive just compensation. If an agreement cannot be reached then the owner is entitled to a court determination of value in a condemnation action (lawsuit), but the public body can take the property immediately upon deposit of the estimated value. 3) to sentence a convicted defendant to death. 4) send to prison.
condemnation n. the legal process by which a governmental body exercises its right of "eminent domain" to acquire private property for public uses (highways, schools, redevelopment, etc.). Condemnation includes a resolution of public need, an offer to purchase, and, if a negotiated purchase is not possible, then a condemnation suit. The government may take the property at the time of suit if it deposits money with the court in the amount of the government's appraisal.
condemnation action n. a lawsuit brought by a public agency to acquire private property for public purposes (schools, highways, parks, hospitals, redevelopment, civic buildings, for example), and a determination of the value to be paid. While the government has the right to acquire the private property (eminent domain), the owner is entitled under the Constitution to receive just compensation to be determined by a court.
condition n. a term or requirement stated in a contract, which must be met for the other party to have the duty to fulfill his/her obligations.
condition precedent n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. Examples: if the ship makes it to port, the buyer agrees to pay for the freight on the ship and unload it.
condition subsequent n. 1) in a contract, a happening which terminates the duty of a party to perform or do his/her part. 2) in a deed to real property, an event which terminates a person's interest in the property.
conditional bequest n. in a will, a gift which will take place only if a particular event has occurred by the time the maker of the will dies.
conditional sale n. a sale of property or goods which will be completed if certain conditions are met (as agreed) by one or both parties to the transaction.
condominium n. title to a unit of real property which, in reality, is the airspace which an apartment, office or store occupies. An increasingly common form of property title in a multi-unit project, condominiums actually date back to ancient Rome, hence the Latin name. The owner of the condominium also owns a common tenancy with owners of other units in the common area, which includes all the driveways, parking, elevators, outside hallways, recreation and landscaped areas, which are managed by a homeowners' or tenant's association. If the condominium unit is destroyed by fire or other disaster, the owner has the right to rebuild in his/her airspace.
condone v. 1) to forgive, support, and/or overlook moral or legal failures of another without protest, with the result that it appears that such breaches of moral or legal duties are acceptable. An employer may overlook an employee overcharging customers or a police officer may look the other way when a party uses violent self-help to solve a problem. 2) to forgive the marital infidelity of one's spouse and resume marital sexual relations on the condition that the sin is not repeated.
confess v. in criminal law, to voluntarily state that one is guilty of a criminal offense. This admission may be made to a law enforcement officer or in court either prior to or upon arrest, or after the person is charged with a specific crime. A confession must be truly voluntary (not forced by threat, torture, or trickery).
confession n. the statement of one charged with a crime that he/she committed the crime. Such an admission is generally put in writing (by the confessor, law enforcement officers or their stenographer) and then read and signed by the defendant. If the defendant cannot read English, he/she has the right to have his/her confession read aloud or translated. It can be used against the defendant in trial (and his/her codefendants) if it is truly voluntary.
confession and avoidance n. when a defendant admits the allegations in a complaint against him/her in a lawsuit or accusations in a criminal case but alleges other facts (affirmative defenses) to show that the original allegations do not prove a case against him/her. Often this means the defendant confesses to the accuracy of the stated facts and tries to avoid their legal impact.
confession of judgment n. a written agreement in which the defendant in a lawsuit admits liability and accepts the amount of agreed-upon damages he/she must pay to plaintiff (person suing him/her), and agrees that the statement may be filed as a court judgment against him/her if he/she does not pay or perform as agreed. This avoids further legal proceedings and may prevent a legal judgment being entered (filed) if the terms are fulfilled by the defendant.
confidence game n. the obtaining of money from others through trick or swindle, generally by gaining the victim's trust and confidence
confidential communication n. certain written communications which can be kept confidential and need not be disclosed in court as evidence, answered by a witness either in depositions or trial, or provided to the parties to a lawsuit or their attorneys. This is based on the inherent private relationship between the person communicating and the confidant's occupation or relationship to him/her. They include communications between husband and wife, lawyer and client, physician or other medical person (most therapists) and patient, minister or priest and parishioner (or anyone seeking spiritual help), and journalist. Moral conflicts may arise when a murderer or child molester confesses to his/her priest, who is pledged to silence and confidentiality by his priestly vows and cannot reveal the confession in legal cases.
confidential relation n. a relationship in which one person has confidence in and relies on another because of some combination of a history of trust, older age, family connection and/or superior training and knowledge, to a point where the party relied upon dominates the situation, for good or bad. While it may include attorney and client, stockbroker and customer, real estate agent and buyer, a senior family member and an unsophisticated relative, the relationship is defined on a case-by-case basis, with reliance and dominance the key factors. In this situation, the trusting party does not have to be as vigilant or suspicious as with strangers or people who are not relied upon. The time clock (statute of limitations) to bring a lawsuit against a crook who is in a confidential relationship may not start to run until the misdeeds become extremely obvious.
confiscate v. to take one's goods or property without legal right, although there may appear to be some lawful basis. In the case of a government seizing property, it may include taking without the just compensation as guaranteed by the Constitution. There are some acts of legal confiscation, such as taking an automobile used in illegal drug traffic.
conflict of interest n. a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties. This includes when an individual's personal interests or concerns are inconsistent with the best for a customer, or when a public official's personal interests are contrary to his/her loyalty to public business. An attorney, an accountant, a business adviser or realtor cannot represent two parties in a dispute and must avoid even the appearance of conflict. He/she may not join with a client in business without making full disclosure of his/her potential conflicts, he/she must avoid commingling funds with the client, and never, never take a position adverse to the customer
confrontation n. 1) fight or argument. 2) the right of a criminal defendant "to be confronted with the witnesses against him". Confrontation includes the right to object to the witness against him/her (sometimes depending on whether the witness can identify the defendant) and to cross-examine that witness.
confusingly similar adj. in the law of trademarks, when a trademark, logo or business name is so close to that of a pre-existing trademark, logo or name that the public might misidentify the new one with the old trademark, logo or name. Such confusion may not be found if the products or businesses are clearly not in the actual or potential product markets or geographic area of the other.
conjugal rights n. a spouse's so-called "rights" to the comforts and companionship from his/her mate, meaning sexual relations.
conscientious objector n. a person who refuses to serve in the military due to religious or strong philosophical views against war or killing.
conscious parallelism n. an undiscussed imitation by a business of a competitor's action, such as changing prices up or down without the active conspiracy between business rivals, which would make this coincidental activity a violation of anti-trust laws.
consent 1) n. a voluntary agreement to another's proposition. 2) v. to voluntarily agree to an act or proposal of another, which may range from contracts to sexual relations
consent decree n. an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or if the court does not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable since the parties worked it out. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing criminal penalties. In general a consent decree and a consent judgment are the same.
consent judgment n. a judgment issued by a judge based on an agreement between the parties to a lawsuit to settle the matter, aimed at ending the litigation with a judgment that is enforceable.
consequential damages n. damages claimed and/or awarded in a lawsuit which were caused as a direct foreseeable result of wrongdoing.
conservatee n. a person whom a court has determined because of physical or mental limitations or just plain old age requires a conservator to handle his/her financial affairs, and/or his/her actual personal activities such as arranging a residence, health care and the like.
conservator n. a guardian and protector appointed by a judge to protect and manage the financial affairs and/or the person's daily life due to physical or mental limitations or old age. The conservator may be only of the "estate" (meaning financial affairs), but may be also of the "person," when he/she takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee. The process is that a relative or friend petitions the appropriate local court for appointment of a specific conservator, with written notice served on the potential conservatee. The object of this concern is interviewed by a court-appointed investigator to determine need, desire and understanding of the potential conservatee as well as the suitability of the proposed conservator. An open hearing is held before the appointment is made. The conservator is required to make regular accountings which must be approved by the court. The conservator may be removed by order of the court if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties.
consideration n. 1) payment or money. 2) a vital element in the law of contracts, consideration is a benefit which must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value (at least to the parties), and is exchanged for the performance or promise of performance by the other party (such performance itself is consideration). In a contract, one consideration (thing given) is exchanged for another consideration. Not doing an act (forbearance) can be consideration, such as "I will pay you Rs. 10,000 not to build a road next to my fence." Sometimes consideration is "nominal," meaning it is stated for form only, such as "Rs 500 as consideration for conveyance of title," which is used to hide the true amount being paid. Contracts may become unenforceable or rescindable (undone by rescission) for "failure of consideration" when the intended consideration is found to be worth less than expected, is damaged or destroyed, or performance is not made properly. Acts which are illegal or so immoral that they are against established public policy cannot serve as consideration for enforceable contracts.
consign v. 1) to deliver goods to a merchant to sell on behalf of the party delivering the items, as distinguished from transferring to a retailer at a wholesale price for re-sale. 2) to deliver to a carrier to be taken to an agent of the sender. 3) when a debtor has belongings but no money to pay his/her creditors and deposits his/her goods with a trustee who will sell them to raise money to pay the owner's debts and creditors. This is done by agreement between a debtor and his/her creditors or by order of a judge.
consignee n. a person or business holding another's goods for sale or for delivery to a designated agent.
consignment n. the act of consigning goods to one who will sell them for the owner or transport them for the owner.
consortium n. 1) a group of separate businesses or business people joining together and cooperating to complete a project, work together to perform a contract or conduct an on-going business. 2) the marital relationship, particularly sexual intimacies, between husband and wife. Consortium arises in a lawsuit as a claim of "loss of consortium." Often it means that due to one spouse's injuries or emotional distress he/she cannot have sexual relations for a period of time or permanently, which is a loss to the mate for which he/she should be awarded damages. How loss of consortium is valued in money terms is a difficult question.
conspiracy n. when people work together by agreement to commit an illegal act. A conspiracy may exist when the parties use legal means to accomplish an illegal result, or to use illegal means to achieve something that in itself is lawful. To prove a conspiracy those involved must have agreed to the plan before all the actions have been taken, or it is just a series of independent illegal acts. A conspiracy can be criminal for planning and carrying out illegal activities, or give rise to a civil lawsuit for damages by someone injured by the conspiracy. Thus, a scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of fraud and conspiracy, and also allow a purchaser of an auto to sue for damages for the fraud and conspiracy.
conspirator n. a person or entity who enters into a plot with one or more other people or entities to commit illegal acts, legal acts with an illegal object, or using illegal methods, to the harm of others.
constitutional rights n. rights given or reserved to the people by the Constitution.
construction n. the act of a lawyer or court in interpreting and giving meaning to a statute or the language of a document such as a contract or will when there is some ambiguity or question about its meaning. In constitutional law, there is a distinction between liberal construction (broad construction) and strict construction (narrow construction). Liberal construction adds modern and societal meanings to the language, while strict construction adheres closely to the original language and intent without interpretation.
constructive adj. a legal fiction for treating a situation as if it were actually so. Some examples help to clarify this term: although George does not have the jewelry in his possession, he has the key to the safe deposit box and the right to enter so he has "constructive possession".
constructive eviction n. when the landlord does not go through a legal eviction of a tenant but takes steps which keep the tenant from continuing to live in the premises. This could include changing the locks, turning off the drinking water, blocking the driveway, yelling at the tenant all the time or nailing the door shut.
constructive fraud n. when the circumstances show that someone's actions give him/her an unfair advantage over another by unfair means (lying or not telling a buyer about defects in a product, for example), the court may decide from the methods used and the result that it should treat the situation as if there was actual fraud even if all the technical elements of fraud have not been proven.
constructive notice n. a fiction that a person got notice even though actual notice was not personally delivered to him/her. The law may provide that a public notice put on the courthouse bulletin board is a substitute for actual notice.
constructive possession n. when a person does not have actual possession, but has the power to control an asset, he/she has constructive possession. Having the key to a safe deposit box, for example, gives one constructive possession.
constructive trust n. when a person has title to property and/or takes possession of it under circumstances in which he/she is holding it for another, even though there is no formal trust document or agreement. The court may determine that the holder of the title holds it as constructive trustee for the benefit of the intended owner. This may occur through fraud, breach of faith, ignorance or inadvertence.
construe v. to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal, widely accepted meanings.
consumer protection laws n.laws set up to protect the consumer (the retail purchasers of goods and services) from inferior, adulterated, hazardous or deceptively advertised products, and deceptive or fraudulent sales practices. Eg. wholesome poultry and meat, misbranding and adulteration of food and cosmetics, truth in lending, false advertising, the soundness of banks, securities sales, standards of housing materials, flammable fabrics, and various business practices.
contemplation of death n. the anticipation of death in a relatively short time due to age, illness, injury or great danger, which causes a person to make a gift, transfer property or take some other dramatic action.
contempt of court n. there are essentially two types of contempt: a) being rude, disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge; b) willful failure to obey an order of the court. This latter can include failure to pay child support or alimony. The court's power to punish for contempt (called "citing" one for contempt) includes fines and/or jail time (called "imposing sanctions"). Incarceration is generally just a threat and if imposed, usually brief. Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. "Criminal contempt" involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.
contiguous adj. connected or "next to", usually meaning adjoining pieces of real estate.
contingency n. an event that might not occur.
contingent adj. possible, but not certain.
contingent beneficiary n. a person or entity named to receive a gift under the terms of a will, trust or insurance policy, who will only receive that gift if a certain event occurs or a certain set of circumstances happen.
contingent fee n. a fee to a lawyer which will be due and payable only if there is a successful conclusion of the legal work, usually winning or settling a lawsuit in favor of the client (particularly in negligence cases), or collecting funds due with or without filing a lawsuit. The fee is generally a percentage of the recovery (money won), but may be partly a fee for time worked and partly a percentage.
contingent interest n. an interest in real property which, according to the deed (or a will or trust), a party will receive only if a certain event occurs or certain circumstances happen. Examples: surviving a person who had a life estate (the right to use the property for his/her life), or having children at the time such a life estate ends.
contingent remainder n. an interest, particularly in real estate property, which will go to a person or entity only upon a certain set of circumstances existing at the time the title-holder dies. Examples of those potential circumstances include surviving one's brother or still operating the family farm next door.
continuance n. a postponement of a date of a trial, hearing or other court appearance to a later fixed date by order of the court, or upon a stipulation (legal agreement) by the attorneys and approved by the court or by the clerk of the court.
continuing objection n. an objection to certain questions or testimony during a trial which has been "overruled" by the judge, but the attorney who made the objection announces he/she is "continuing" the objection to all other questions on the same topic or with the same legal impropriety in the opinion of the attorney. Thus a "continuing" objection does not require an objection every time the same question or same subject is introduced. Example: the attorney for the plaintiff (the person suing) begins asking questions about emotional distress, which the defendant's attorney objects to as "immaterial," but the judge allows the first questions. The defense attorney states he has a "continuing" objection to all questions about the emotional distress.
continuing trespass n. the repeated unauthorized use of another's real property, as compared to an occasional illegal entry.
contra adj. Latin for "against" or "opposite to".
contract 1) n. an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. Since the law of contracts is at the heart of most business dealings, it is one of the three or four most significant areas of legal concern and can involve variations on circumstances and complexities. The existence of a contract requires finding the following factual elements: a) an offer; b) an acceptance of that offer which results in a meeting of the minds; c) a promise to perform; d) a valuable consideration (which can be a promise or payment in some form); e) a time or event when performance must be made (meet commitments); f) terms and conditions for performance, including fulfilling promises; g) performance, if the contract is "unilateral". A unilateral contract is one in which there is a promise to pay or give other consideration in return for actual performance. A bilateral contract is one in which a promise is exchanged for a promise. Contracts can be either written or oral, but oral contracts are more difficult to prove. In some cases a contract can consist of several documents, such as a series of letters, orders, offers and counteroffers. There are a variety of types of contracts: "conditional" on an event occurring; "joint and several," in which several parties make a joint promise to perform, but each is responsible; "implied," in which the courts will determine there is a contract based on the circumstances. Parties can contract to supply all of another's requirements, buy all the products made, or enter into an option to renew a contract. The variations are almost limitless. Contracts for illegal purposes are not enforceable at law. 2) v. to enter into an agreement.
contract of adhesion n. See also: adhesion contract
contractor n. 1) a person or entity that enters into a contract. 2) commonly, a person or entity that agrees to construct a building or to provide or install specialized portions of the construction. The party responsible for the overall job is a "general contractor," and those he/she/it hires to construct or install certain parts (electrical, plumbing, roofing, tile-laying, etc.) are "subcontractors," who are responsible to the general contractor and not to the property owner. An owner must be sure that the subcontractors are paid by the general contractor by demanding and receiving proof of payment, or the subcontractor will be entitled to payment from the owner based on a mechanic's lien against the property. 3) a person who performs services but is not an employee, often called an "independent contractor."
contribution n. 1) donation to a charity or political campaign. 2) the sharing of a loss by each of several persons who may have been jointly responsible for injury to a third party, who entered into a business which lost money or who owe a debt jointly. Quite often this arises when one responsible party pays more than his share and then demands contribution from the others in proportion to their share of the obligation.
contributory negligence n. a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant.
control 1) n. the power to direct, manage, oversee and/or restrict the affairs, business or assets of a person or entity. 2) v. to exercise the power of control.
controlled substance n. a drug which has been declared to be illegal for sale or use, but may be dispensed under a physician's prescription. The basis for control and regulation is the danger of addiction, abuse, physical and mental harm (including death), the trafficking by illegal means, and the dangers from actions of those who have used the substances.
controversy n. 1) disagreement, argument or quarrel. 2) a dispute, which must be an actual contested issue between parties in order to be heard by a court.
conversion n. a civil wrong (tort) in which one converts another's property to his/her own use, which is a fancy way of saying "steals." Conversion includes treating another's goods as one's own, holding onto such property which accidentally comes into the convertor's (taker's) hands, or purposely giving the impression the assets belong to him/her. This gives the true owner the right to sue for his/her own property or the value and loss of use of it, as well as going to law enforcement authorities since conversion usually includes the crime of theft.
convey v. to transfer title (official ownership) to real property (or an interest in real property) from one (grantor) to another (grantee) by a written deed (or an equivalent document such as a judgment of distribution which conveys real property from an estate). It only applies to real property.
conveyance n. a generic term for any written document which transfers (conveys) real property or real property interests from one party to another. A conveyance must be acknowledged before a notary (or if a court judgment be certified as the same as the document on file) and recorded with theRecorder of Deeds.
convict 1) v. to find guilty of a crime after a trial. 2) n. a person who has been convicted of a felony and sent to prison.
conviction n. the result of a criminal trial in which the defendant has been found guilty of a crime.
cooperative n. an association of individual businesses, farmers, ranchers or manufacturers with similar interests, intending to cooperate in marketing, shipping and related activities (sometimes under a single brand name) to sell their products efficiently, and then share the profits based on the production, capital or effort of each. Cooperatives include dairy milk producers, cotton gins and thousands of other enterprises of all sizes. There are also cooperatives in which consumers form retail outlets like grocery stores and share the profits based on the amount of patronage of each member, but they have found it difficult to compete with the giant supermarket chains. Some cooperatives exist to operate housing complexes.
cooperative housing n. an arrangement in which an association or corporation owns a group of housing units and the common areas for the use of all the residents. The individual participants own a share in the cooperative which entitles them to occupy an apartment as if they were owners, to have equal access to the common areas and to vote for members of the board of directors which manages the cooperative. A cooperative differs from a condominium project in that the owners of the condominium units actually own their space and a percentage interest in the common area. In a cooperative there are often restrictions on transfer of shares such as giving priority to other members, limits on income or maximum sales price.
cop a plea n. slang for a "plea bargain" in which an accused defendant in a criminal case agrees to plead guilty or "no contest" to a crime in return for a promise of a recommendation of leniency in sentencing to be made by the prosecutor to the judge and/or an agreement by the prosecutor to drop some of the charges. Often the judge agrees to the recommendation before the plea is entered (becomes final).
copartner n. one who is a member of a partnership. The prefix "co" is a redundancy, since a partner is a member of a partnership. The same is true of the term "copartnership."
copyright 1) n. the exclusive right of the author or creator of a literary or artistic property (such as a book, movie or musical composition) to print, copy, sell, license, distribute, transform to another medium, translate, record or perform or otherwise use (or not use) and to give it to another by will. As soon as a work is created and is in a tangible form (such as writing or taping) the work automatically has copyright protection. On any distributed and/or published work a notice should be affixed stating the word copyright, copy or ©, with the name of the creator and the date of copyright (which is the year of first publication). The notice should be on the title page or the page immediately following and for graphic arts on a clearly visible or accessible place.
coroner n. a county official with the responsibility to determine the cause of death of anyone who dies violently (by attack or accident), suddenly, or suspiciously. The coroner or one of his/her staff must examine the body at the scene of such a death and make a report. If the cause is not obvious or certified by an attending physician, then the coroner may order a "coroner's inquest" which requires an autopsy (postmortem). If that is not conclusive, the coroner may hold a hearing as part of the inquest, although this is rare due to scientific advances in pathology.
corporate opportunity n. a business opportunity which becomes known to a corporate official, particularly a director or other upper management, due to his/her position within the corporation. In essence, the opportunity or knowledge belongs to the corporation, and the officials owe a duty not to use that opportunity or knowledge for their own benefit. The corporation may have the right to damages (to be paid off) for such improper appropriation (use) of the opportunity on the theory that the official holds it in "constructive trust" for the corporation. The corporation may obtain an injunction (court order) to prevent someone's use of the knowledge or opportunity. In such cases angry stockholders may bring their own legal action for their benefit in what is called a derivative action. Such insider misappropriation (inappropriate use of information) may also be criminal theft, or be violative of securities laws.
corporation n. an organization formed with state governmental approval to act as an artificial person to carry on business (or other activities), which can sue or be sued, and (unless it is non-profit) can issue shares of stock to raise funds with which to start a business or increase its capital. One benefit is that a corporation's liability for damages or debts is limited to its assets, so the shareholders and officers are protected from personal claims, unless they commit fraud. For private business corporations the articles of incorporation filed with the Secretary of State of the incorporating state must include certain information, including the name of the responsible party or parties (incorporators and agent for acceptance of service), the amount of stock it will be authorized to issue, and its purpose Corporation shareholders elect a board of directors, which in turn adopts bylaws, chooses the officers and hires top management (which in smaller corporations are often the directors and/or shareholders). Annual meetings are required of both the shareholders and the board, and major policy decisions must be made by resolution of the board (which often delegates much authority to officers and committees).
corpus n. 1) Latin for body. 2) the principal (usually money, securities and other assets) of a trust or estate as distinguished from interest or profits.
corpus delicti n. (corpus dee-lick-tie) Latin for the substantial fact that a crime has been committed, and in popular crime jargon, the body of the murder victim.
corpus juris n. the body of the law, meaning a compendium of all laws, cases and the varied interpretations of them.
corroborate v. to confirm and sometimes add substantiating (reinforcing) testimony to the testimony of another witness or a party in a trial
corroborating evidence n. evidence which strengthens, adds to, or confirms already existing evidence.
cosign v. to sign a promissory note or other obligation in order to share liability for the obligation
cost bill n. a list of claimed court costs submitted by the prevailing (winning) party in a lawsuit after the judge states his/her judgment formally called a "memorandum of costs." Statutes limit what can be included in these costs
cost of completion n. the amount of money (damages) required to complete performance (finish the job) when a contract has been breached by the failure to perform. Example: when a general contractor breaches by not completing a house, the cost of completion is the actual cost of bringing in a new builder to finish what is left to do. The actual costs become the measure of damages rather than an estimate of cost based on percentage of work to be done.
costs n. shorthand for court costs.
cotenancy n. the situation when more than one person has an interest in real property at the same time, which may include tenancy in common, joint tenancy or tenancy by the entirety.
cotenant n. one who holds an interest in real property together with one or more others.
co-trustee n. a trustee of a trust when there is more than one trustee serving at the same time, usually with the same powers and obligations. Occasionally a co-trustee may be a temporary fill-in, as when the original trustee is ill but recovers. The co-trustee must act in consultation with the other trustee(s), unless the language of the trust allows one co-trustee to act alone.
counsel 1) n. a lawyer, attorney, attorney-at-law, counsellor, counsellor-at-law, solicitor, barrister, advocate or proctor (a lawyer in admiralty court), licensed to practice law. 2) v. to give legal advice.
counsellor n. a licensed attorney.
count n. each separate statement in a complaint which states a cause of action which, standing alone, would give rise to a lawsuit, or each separate charge in a criminal action. For example, the complaint in a civil (non-criminal) lawsuit might state: First Count (or cause of action) for negligence, and then state the detailed allegations; Second Count for breach of contract; Third Count for debt and so forth. In a criminal case each count would be a statement of a different alleged crime. There are also so-called common counts which cover various types of debt.
counter offer n. an offer made in response to a previous offer by the other party during negotiations for a final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract.
counterclaim n. a retaliatory claim by a defendant against a plaintiff in a lawsuit included in the defendant's answer and intending to off-set and/or reduce the amount of the plaintiff's original claim against the defendant.
counterfeit 1) adj. describing a document, particularly money, which is forged or created to look real and intended to pass for real. 2) v. to criminally forge or print a false copy of money, bonds, or other valuable documents, intending to profit from the falsity. 3) n. shorthand for phoney money passed for real.
counterpart n. in the law of contracts, a written paper which is one of several documents which constitute a contract, such as a written offer and a written acceptance. Often a contract is in several counterparts which are the same but each paper is signed by a different party, particularly if they are in different localities.
course n. in the midst of or actively involved in at that time, as "in the course of business, course of employment, course of trade."
course of employment adj. actively involved in a person's employment at a particular time, most likely when an accident occurred, which is required to make a claim for work-related injury under Worker's Compensation Acts.
court n. 1) the judge, as in "The court rules in favor of the plaintiff." 2) any official tribunal (court) presided over by a judge or judges in which legal issues and claims are heard and determined.
court calendar n. the list of matters to be heard or set for trial or hearing by a court.
court costs n. fees for expenses that the courts pass on to attorneys, who then pass them on to their clients or to the losing party. Court costs usually include: filing fees, charges for serving summons and subpenas, court reporter charges for depositions, court transcripts and copying papers and exhibits. The prevailing party in a lawsuit is usually awarded court costs. Attorneys' fees can be included as court costs only if there is a statute providing for attorneys' fee awards in a particular type of case, or if the case involved a contract which had an attorneys' fee clause (commonly found in promissory notes, mortgages and deeds of trust). If a losing party does not agree with the claimed court costs (included in a filed cost bill) he/she/it may move (ask) the judge to "tax costs" (meaning reduce or disallow the cost), resulting in a hearing at which the court determines which costs to allow and in what amount (how much).
court docket n.See also: docket
court of appeals n. any court which hears appeals from judgments and rulings of trial courts or lower appeals courts.
court of law n. any tribunal within a judicial system.
court trial ("non-jury trial"): a trial with a judge but no jury.
court-martial 1) n. a military court for trying offenses in violation of army, navy or other armed service rules and regulations, made up of military officers, who act as both finders of fact (in effect, a jury) and as arbiters (judges) of the law applying to the case. 2) v. to charge a member of the military with an offense against military law or to find him/her guilty of such a violation.
covenant 1) n. a promise in a written contract or a deed of real property. The term is used only for certain types of promises such as a covenant of warranty, which is a promise to guarantee the title (clear ownership) to property, a promise agreeing to joint use of an easement for access to real property, or a covenant not to compete, which is commonly included in promises made by a seller of a business for a certain period of time. Mutual covenants among members of a homeowners association are promises to respect the rules of conduct or restrictions on use of property to insure peaceful use, limitations on intrusive construction, etc., which are usually part of the recorded covenants, conditions and restrictions which govern a development or condominium project. Covenants which run with the land, such as permanent easement of access or restrictions on use, are binding on future title holders of the property. Covenants can be concurrent (mutual promises to be performed at the same time), dependent (one promise need be performed if the other party performs his/hers), or independent (a promise to be honored without reference to any other promise). 2) v. to promise.
covenant not to compete n. a common provision in a contract for sale of a business in which the seller agrees not to compete in the same business for a period of years or in the geographic area. This covenant is usually allocated (given) a value in the sales price.
credibility n. whether testimony is worthy of belief, based on competence of the witness and likelihood that it is true. Unless the testimony is contrary to other known facts or is extremely unlikely based on human experience, the test of credibility is purely subjective.
credible witness n. a witness whose testimony is more than likely to be true based on his/her experience, knowledge, training and appearance of honesty and forthrightness, as well as common human experience. This is subjective in that the trier of fact (judge or jury) may be influenced by the demeanor of the witness or other factors.
creditor n. a person or entity to whom a debt is owed.
creditor's claim n. a claim required to be filed in writing, in a proper form by a person or entity owed money by a debtor who has filed a petition to declare the debtor bankrupt, or is owed money by a person who has died. Notice of the need to file a creditor's claim in the estate of a person who has died must be printed in a legal advertisement giving notice of death. Then a creditor has only a few months to file the claim, and it must be in a form approved by the courts.
creditor's rights n. the field of law dealing with the legal means and procedures to collect debts and judgments.
crime n. a violation of a law in which there is injury to the public or a member of the public and a term in jail or prison, and/or a fine as possible penalties. There is some sentiment for excluding from the "crime" category crimes without victims, such as consensual acts, or violations in which only the perpetrator is hurt or involved such as personal use of illegal drugs.
crime against nature n. an oldfashioned term for sodomy.
crime of passion n. a defendant's excuse for committing a crime due to sudden anger or heartbreak, in order to eliminate the element of "premeditation." This usually arises in murder or attempted murder cases, when a spouse or sweetheart finds his/her "beloved" having sexual intercourse with another and shoots or stabs one or both of the coupled pair. To make this claim the defendant must have acted immediately upon the rise of passion, without the time for contemplation or allowing for "a cooling of the blood." The benefit of eliminating premeditation is to lessen the provable homicide to manslaughter with no death penalty and limited prison terms.
criminal 1) n. a popular term for anyone who has committed a crime, whether convicted of the offense or not. More properly it should apply only to those actually convicted of a crime. Repeat offenders are sometimes called habitual criminals. 2) adj. describing certain acts or people involved in or relating to a crime. Examples of uses include "criminal taking," "criminal conspiracy," a "criminal gang."
criminal attorney n. a popular term for an attorney who specializes in defending people charged with crimes. Many lawyers handle criminal defense but also have other clientele.
criminal calendar n. the list of criminal cases to be called in court on a particular time and date. The parties charged and their attorneys are given a written notice of the time and place to appear. The criminal calendar may list arraignments, bail settings, cases continued (put off) awaiting a plea of guilt or innocence, changes of pleas, setting of hearing or trial dates, motions brought by attorneys, pronouncing sentences, hearing reports of probation officers, appointment of public defenders or other attorneys, and other business concerning criminal cases.
criminal justice n. a generic term for the procedure by which criminal conduct is investigated, evidence gathered, arrests made, charges brought, defenses raised, trials conducted, sentences rendered and punishment carried out.
criminal law n. those statutes dealing with crimes against the public and members of the public, with penalties and all the procedures connected with charging, trying, sentencing and imprisoning defendants convicted of crimes
cross-complaint n. after a complaint has been filed against a defendant for damages or other orders of the court, the defendant may file a written complaint against the party suing him/her or against a third party as long as the subject matter is related to the original complaint. The defendant's filing of a complaint is called a cross-complaint, and the defendant is then called a cross-complainant and the party he/she sues is called a cross-defendant. The defendant must still file an answer or other response to the original complaint. If the cross-complaint is against the original plaintiff (original suer) then it can be served on the plaintiff's attorney by mail, but a third party must be served in person with the cross-complaint and a new summons issued by the clerk of the court. The cross-defendants must then file answers or other responses. These are called pleadings and must be carefully drafted (usually by an attorney) to properly state the factual as well as legal basis for the claim and contain a prayer for damages or other relief.
cross-examination n. the opportunity for the attorney (or an unrepresented party) to ask questions in court of a witness who has testified in a trial on behalf of the opposing party. The questions on cross-examination are limited to the subjects covered in the direct examination of the witness, but importantly, the attorney may ask leading questions, in which he/she is allowed to suggest answers or put words in the witness's mouth. (For example, "Isn't it true that you told Mrs. Jones she had done nothing wrong?" which is leading, as compared to "Did you say anything to Mrs. Jones?") A strong cross-examination (often called just "cross" by lawyers and judges) can force contradictions, expressions of doubts or even complete obliteration of a witness's prior carefully rehearsed testimony. On the other hand, repetition of a witness' s story, vehemently defended, can strengthen his/her credibility.
cruel and unusual punishment n. governmental penalties against convicted criminal defendants which are barbaric, involve torture and/or shock the public morality. Tortures like the rack (stretching the body inch by inch) or the thumbscrew, dismemberment, breaking bones, maiming, actions involving deep or long-lasting pain are all banned. But solitary confinement, enforced silence, necessary force to prevent injury to fellow prisoners or guards, psychological humiliation and bad food are generally allowed. In short, there is a large gray area, in which "cruel and unusual" is definitely subjective based on individual sensitivities and moral outlook.
cruelty n. the intentional and malicious infliction of physical or psychological pain on another.
cruelty to animals n. the crime of inflicting physical pain, suffering or death on an animal, usually a tame one, beyond necessity for normal discipline. It can include neglect that is so monstrous (withholding food and water) that the animal has suffered, died or been put in imminent danger of death.
culpability culpable
culpable adj. sufficiently responsible for criminal acts or negligence to be at fault and liable for the conduct. Sometimes culpability rests on whether the person realized the wrongful nature of his/her actions and thus should take the blame.
cumis counsel n. an attorney employed by a defendant in a lawsuit when there is an insurance policy supposedly covering the claim, but there is a conflict of interest between the insurance company and the insured defendant. Such a conflict might arise if the insurance company is denying full coverage.
cumulative sentence n. when a criminal defendant has been found guilty of more than one offense, the judge may sentence him/her to prison for successive terms for each crime (e.g. five years for burglary, three years for possession of stolen property, which add up and accumulate to eight years). The other choice would be to sentence the defendant to a concurrent sentence, in which the lesser term would be merged with the longer, they would run at the same time, and thus result in a five-year term in the example.
cumulative voting n. in corporations, a system of voting by shareholders for directors in which the shareholder can multiply his voting shares by the number of candidates and vote them all for one person for director. This is intended to give minority shareholders a chance to elect at least one director whom they favor. For example, there are five directors to be elected, and 10,000 shares issued, a shareholder with 1,000 shares could vote 5,000 for his candidate rather than being limited to 1,000 for each of five candidates, always outvoted by shareholders with 1,001 or more shares.
curtesy n. in old common law, the right of a surviving husband to a life estate in the lands of his deceased wife, if they had a surviving child or children who would inherit the land.
custody n. 1) holding property under one's control. 2) law enforcement officials' act of holding an accused or convicted person in criminal proceedings, beginning with the arrest of that person. 3) in domestic relations (divorce, dissolution) a court's determination of which parent (or other appropriate party) should have physical and/or legal control and responsibility for a minor child.
cut a check v. to write (prepare) and sign a check.
cy pres doctrine n. (see-pray doctrine) from French, meaning "as close as possible." When a gift is made by will or trust (usually for charitable or educational purposes), and the named recipient of the gift does not exist, has dissolved or no longer conducts the activity for which the gift is made, then the estate or trustee must make the gift to an organization which comes closest to fulfilling the purpose of the gift. Sometimes this results in heated court disputes in which a judge must determine the appropriate substitute to receive the gift.
d.b.a. n. short for "doing business as," when a person or entity uses a business name instead of his/her/its own.
damages n. the amount of money which a plaintiff (the person suing) may be awarded in a lawsuit. There are many types of damages. Special damages are those which actually were caused by the injury and include medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. The second basic area of damages are general damages, which are presumed to be a result of the other party's actions, but are subjective both in nature and determination of value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, loss of companionship, loss of reputation (in a libel suit, for example), humiliation from scars, loss of anticipated business and other harm. The third major form of damage is exemplary (or punitive) damages, which combines punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff. On occasion punitive damages can be greater than the actual damages, as, for example, in a sexual harassment case or fraudulent schemes. Although often asked for, they are seldom awarded. Nominal damages are those given when the actual harm is minor and an award is warranted under the circumstances. Liquidated damages are those pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract.
dangerous adj. unsafe, hazardous, fraught with risk. It can be negligence for which a lawsuit can be brought if damage results from creating or leaving unguarded, a dangerous condition which can cause harm to others, a dangerous instrumentality (any device which can cause harm, including explosives and poisonous substances) or dangerous weapon which is inherently hazardous to anyone handling it or within the weapon's range.
dangerous weapon n. any gun, knife, sword, crossbow, slingshot or other weapon which can cause bodily harm to people (even though used for target shooting). If a person is harmed by such a weapon that is left unguarded, improperly used, or causes harm even to a person who plays with it without permission, the victim or his/her survivors can sue for negligence and possibly win a judgment.
date rape n. forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted the acts by verbal refusals, denials or pleas to stop, and/or physical resistance. The fact that the parties knew each other or that the woman willingly accompanied the man are not legal defenses to a charge of rape.
day in court n. popular term for everyone's opportunity to bring a lawsuit or use the court system if he/she thinks he/she has a gripe which can be resolved in court.
de facto adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.
de facto corporation n. a company which operates as if it were a corporation although it has not completed the legal steps to become incorporated or has been dissolved or suspended but continues to function. The court temporarily treats the corporation as if it were legal in order to avoid unfairness to people who thought the corporation was legal.
de jure adj. Latin for "lawful," as distinguished from de facto (actual).
de jure corporation n. a corporation in good standing under the law, as compared to a de facto corporation which is acting while not fulfilling legal requirements.
de minimis adj. (dee-minnie-miss) Latin for "of minimum importance" or "trifling." Essentially it refers to something or a difference that is so little, small, minuscule or tiny that the law does not refer to it and will not consider it.
de novo adj. Latin for "anew," which means starting over, as in a trial de novo. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, de novo.
deadly weapon n. any weapon which can kill. This includes not only weapons which are intended to do harm like a gun or knife, but also blunt instruments like clubs, an automobile or any object which actually causes death. This becomes important when trying to prove criminal charges brought for assault with a deadly weapon.
dealer n. anyone who buys goods or property for the purpose of selling as a business. It is important to distinguish a dealer from someone who occasionally buys and occasionally sells, since dealers may need to obtain business licenses, register with the sales tax authorities, and may not defer capital gains taxes by buying other property.
death penalty n. the sentence of execution for murder and some other capital crimes.
death row n. nickname for that portion of a prison in which prisoners are housed who are under death sentences and are awaiting appeals and/or potential execution.
debenture n. a form of bond certificate issued by a corporation to show funds invested, repayment of which is guaranteed by the overall capital value of the company under certain specific terms. Thus, it is more secure than shares of stock or general bonds.
debt n. 1) a sum of money due to another. 2) obligation to deliver particular goods or perform certain acts according to an agreement, such as returning a favor. 3) a cause of action in a lawsuit for a particular amount owed.
debtor n. 1) a person or entity that owes an amount of money or favor to another. 2) in bankruptcy, the party whose affairs are the subject of the proceedings is called the "debtor."
deceased 1) adj. dead. 2) n. the person who has died, as used in the handling of his/her estate, probate of will and other proceedings after death, or in reference to the victim of a homicide (as: "The deceased had been shot three times") In probate law the more genteel word is the "decedent".
decedent n. the person who has died, sometimes referred to as the "deceased".
deceit n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.
deception n. the act of misleading another through intentionally false statements or fraudulent actions.
decide v. for a judge, arbitrator, court of appeals or other magistrate or tribunal to reach a determination (decision) by choosing what is right and wrong according to the law as he/she sees it.
decision n. judgment, decree or determination of findings of fact and/or of law by a judge, arbitrator, court, governmental agency or other official tribunal (court).
declarant n. the person making a statement, usually written and signed by that person, under "penalty of perjury" pursuant to the laws of the state in which the statement, called a declaration, is made. The declaration is more commonly used than the affidavit, which is similar to a declaration but requires taking an oath to swear to the truth attested to (certified in writing) by a notary public. In theory, a declarant who knowingly does not tell the truth would be subject to the criminal charge of perjury. Such violations are seldom pursued.
declaration n. 1) any statement made, particularly in writing. 2) a written statement made "under penalty of perjury" and signed by the declarant, which is the modern substitute for the more cumbersome affidavit, which requires swearing to its truth before a notary public.
declaration of mailing n. a form stating that a particular document has been mailed to a particular person or persons (such as opposing attorneys or the clerk of the court) and declaring the truth of that fact "under penalty of perjury", and signed by the person in the law office responsible for mailing it. This is almost always required to be attached to filed documents so that the court is assured it has been sent to the other party.
declaration of trust n. the document signed by a trustor (settlor) creating a trust into which assets are placed, a trustee is appointed to manage the trust (who may be the party who created the trust), the powers and duties of management of the principal and profits of the trust are stated, and distribution of profits and principal is spelled out.
declaratory judgment n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion", it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it.
declaratory relief n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.
decree n. in general, synonymous with judgment. However, in some areas of the law, the term decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law and in equity (court rulings ordering or prohibiting certain acts). Thus, there may be references to a final or interlocutory decree of divorce, final decree of distribution of a dead person's estate, etc.
decriminalization n. the repeal or amendment of statutes which made certain acts criminal, so that those acts no longer are crimes subject to prosecution.
dedication n. the giving of land by a private person or entity to the government, typically for a street, park or school site, as part of and a condition of a real estate development. The city (or other public body) must accept the dedication before it is complete. In many cases there are "dedicated" streets on old subdivision maps which were never officially accepted and, in effect, belong to no one. The adjoining property owners can sue for a judgment to give them the title to the unclaimed (unowned) street or property by a quiet title action or request abandonment by the government which did not accept the street or other property.
deduction n. an expenditure which an income tax payer may subtract from gross (total) income to determine taxable income. This is not the same as an exemption, which is for one's marital status, blindness and number of dependents (e.g. children), which, added together, reduce the tax owed.
deed 1) n. the written document which transfers title (ownership) or an interest in real property to another person. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed by the grantor, who must then acknowledge before a notary public that he/she/it executed the deed. To complete the transfer (conveyance) the deed must be recorded in the office of the Recorder of Deeds. There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title. This is not to be confused with a deed of trust, which is a form of mortgage. 2) v. to transfer title by a written deed.
deed of trust n. a document which pledges real property to secure a loan, used instead of a mortgage. The property is deeded by the title holder (trustor) to a trustee (often a title or escrow company) which holds the title in trust for the beneficiary (the lender of the money). When the loan is fully paid, the trustor requests the trustee to return the title by reconveyance. If the loan becomes delinquent the beneficiary can file a notice of default and, if the loan is not brought current, can demand that the trustee begin foreclosure on the property so that the beneficiary may either be paid or obtain title.
defalcation v. from Latin for "deduction," withholding or misappropriating funds held for another, particularly by a public official, or failing to make a proper accounting.
defamation n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one's occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.
default 1) n. failure to respond to a summons and complaint served on a party in the time required by law. If a legal answer or other response is not filed, the suing party (plaintiff) can request a default be entered in the record, which terminates the rights of the defaulting party to defend the case. 2) the failure to make a payment when due, which can lead to a notice of default and the start of foreclosure proceedings if the debt is secured by a mortgage or deed of trust. 3) v. to fail to file an answer or other response to a summons and complaint, or fail to make a payment when due.
default judgment n. if a defendant in a lawsuit fails to respond to a complaint in the time set by law, then the plaintiff (suer) can request that the default (failure) be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment. If the complaint was for a specific amount of money owed on a note, other money due, or a specific contract price (or if the amount due is easy to calculate) then the clerk of the court can enter a default judgment. If proof of damages or other relief is necessary, a hearing will be held in which the judge determines terms of the default judgment. In either case the defendant cannot speak for himself/herself. A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.
defeasance n. an antiquated word for a document which terminates the effect of an existing writing such as a deed, bond or contract if some event occurs.
defect n. an imperfection, quite often so great that the machinery or written document cannot be used. A car that will not run or has faulty brakes has a defect, and so does a deed in which a party who signed the deed to give over property did not have title to the property described. There are also minor defects, like scratches that only lessen value but do not make an object useless.
defective adj. not being capable of fulfilling its function, ranging from a deed of land to a piece of equipment.
defective title n. an apparent title to real property which fails because a claimed prior holder of the title did not have title, or there is a faulty description of the property or some other "cloud" over it, which may or may not be apparent from reading the deed.
defendant n. 1) the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution. In some types of cases (such as divorce) a defendant may be called a respondent.
defense n. 1) a general term for the effort of an attorney representing a defendant during trial and in pre-trial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) a response to a complaint, called an affirmative defense, to counter, defeat or remove all or a part of the contentions of the plaintiff.
defense attorney n. 1) the attorney representing the defendant in a lawsuit or criminal prosecution. 2) a lawyer who regularly represents defendants who have insurance and who is chosen by the insurance company. 3) a lawyer who regularly represents criminal defendants. Attorneys who regularly represent clients in actions for damages are often called "plaintiff's attorneys".
deficiency judgment n. a judgment for an amount not covered by the value of security put up for a loan or installment payments. The right to a deficiency judgment is often written into a lease or installment contract on a vehicle. There is a danger that the sale of a repossessed vehicle will be at a wholesale price or to a friend at an auction, leaving the debtor holding the bag for the difference between the sale price and remainder due on the lease or contract.
deficit n. a shortage, less than is due, or in the case of a business or government budget, more expenditures than income.
defraud v. to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another.
degree of kinship n. the level of relationship between two persons related by blood, such as parent to child, one sibling to another, grandparent to grandchild or uncle to nephew, first cousins, etc., calculated as one degree for each step from a common ancestor. This may become important when determining the heirs of an estate when there is no will.
delegate 1) v. to assign authority to another. 2) n. a person chosen to attend a convention, conference or meeting on behalf of an organization, constituency, interest group or business.
deleterious adj. harmful.
deliberate 1) adj. (dee-lib-er-et) done with care and intention or premeditated. 2) v. (dee-lib-er-ate) to consider the facts, the laws and/or other matters, particularly by members of a jury, a panel of judges or by any group including a legislature.
deliberation n. the act of considering, discussing and, hopefully, reaching a conclusion, such as a jury's discussions, voting and decision-making.
delinquent 1) adj. not paid in full amount or on time. 2) n. short for an underage violator of the law as in juvenile delinquent.
deliver v. to actually hand an object, money or document to another.
delivery n. the actual handing to another of an object, money or document (such as a deed) to complete a transaction. The delivery of a deed transfers title (provided it is then recorded), and the delivery of goods makes a sale complete and final if payment has been made. Symbolic or constructive delivery (depositing something with an agent or third person) falls short of completion unless agreed to by the parties.
demand 1) v. to claim as a need, requirement or entitlement, as in to demand payment or performance under a contract. In a lawsuit for payment of a debt or performance of an act, the party suing (plaintiff) should allege that he/she/it demanded payment or performance. 2) n. a claim, such as an unqualified request for payment or other action. 3) the amount requested by a plaintiff (usually in writing) during negotiations to settle a lawsuit. 4) adj. referring to a note payable at any time a request to pay is made.
demand note n. a promissory note which is payable any time the holder of the note makes a request. This is different from a note due at a specific time, upon occurrence of an event, or by installments.
demise 1) v. an old-fashioned expression meaning to lease or transfer (convey) real property for years or life, but not beyond that. 2) n. the deed that conveys real property only for years or life. 3) n. death. 4) n. failure.
demonstrative evidence n. actual objects, pictures, models and other devices which are supposedly intended to clarify the facts for the judge and jury: how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime. Many of these are not supposed to be actual evidence, but "aids" to understanding. A model of a knee or a photograph of an accident scene obviously helps, but color photos of an operation in progress or a bullet-riddled body can excite the passions of a jury. The borderline balance between legitimate aids and evidence intended to inflame a juror's emotions is in the hands of the trial judge.
demurrer n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint.
denial n. a statement in the defendant's answer to a complaint in a lawsuit that an allegation (claim of fact) is not true. If a defendant denies all allegations it is called a general denial. In answering, the defendant is limited to admitting, denying or denying on the basis he/she/it has no information to affirm or deny. The defendant may also state affirmative defenses.
dependent 1) n. a person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce his/her income taxes. 2) adj. requiring an event to occur, as the fulfillment of a contract is dependent on the expert being available.
depletion n. when a natural resource (particularly oil) is being used up. The annual amount of depletion may, ironically, provide a tax deduction for the company exploiting the resource because if the resource they are exploiting runs out, they will no longer be able to make money from it.
deponent n. a person testifying (stating answers in response to questions) at a deposition.
deportation n. the act of expelling a foreigner from a country, usually because he/she has a criminal record, committed a crime, lied on his/her entry documents, is in the country illegally or his/her presence is deemed to be against the best interests of the nation. Deportation is usually to the country of origin.
depose v. 1) to ask questions of a witness or a party to a lawsuit at a deposition (testimony outside of the courtroom before trial). 2) to testify at a deposition.
deposition n. the taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery (investigation), set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpena must be served on him/her if he/she is reluctant to testify. The testimony is taken down by the court reporter, who will prepare a transcript if requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available.
depreciate v. in accounting, to reduce the value of an asset each year theoretically on the basis that the assets (such as equipment, vehicles or structures) will eventually become obsolete, worn out and of little value.
depreciation n. the actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a business deduction for income tax reduction, spread out over the expected useful life of the asset or at a higher rate in the early years of use.
depreciation reserve n. a business fund in which the probable replacement cost of equipment is accumulated each year over the life of the asset, so it can be replaced readily when it becomes obsolete and totally depreciated.
derelict n. something or someone who is abandoned, such as a ship left to drift at sea or a homeless person ignored by family and society.
dereliction n. 1) abandoning possession, which is sometimes used in the phrase "dereliction of duty." It includes abandoning a ship, which then becomes a "derelict" which salvagers can board. 2) an old expression for increase of land due to gradual lowering of a tide line (which means the land is building up).
derivative action n. a lawsuit brought by a corporation shareholder against the directors, management and/or other shareholders of the corporation, for a failure by management. In effect, the suing shareholder claims to be acting on behalf of the corporation, because the directors and management are failing to exercise their authority for the benefit of the company and all of its shareholders. This type of suit often arises when there is fraud, mismanagement, self-dealing and/or dishonesty which are being ignored by officers and the board of directors of a corporation.
descent n. the rules of inheritance established by law in cases in which there is no will naming the persons to receive the possessions of a person who has died. Depending on which relatives survive, the estate may go all or in part to the surviving spouse, and down the line from a parent to children (or if none survive, to grandchildren), or up to surviving parents, or collaterally to brothers and sisters. If there are no survivors among those relatives, then aunts, uncles, cousins, nieces and nephews may inherit, depending on their degree of kinship (closeness of family relationship).
descent and distribution n. the system of laws which determine who will inherit and divide the possessions of a person who has died without a will (intestate).
desert v. to intentionally abandon a person or thing.
desertion n. the act of abandoning, particularly leaving one's spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues.
determinable adj. defining something which may be terminated upon the occurrence of a particular event, used primarily to describe an interest in real property, such as a fee simple determinable, in which property is deeded to another, but may revert to the giver or go to a third person if, as examples, the receiver (grantee) marries, divorces or no longer lives in the house.
devise 1) v. an old-fashioned word for giving real property by a will, as distinguished from words for giving personal property. 2) n. the gift of real property by will.
devisee n. a person who receives a gift of real property by a will. The distinction between gifts of real property and personal property is actually blurred, so terms like beneficiary or legatee cover those receiving any gift by a will.
devolution n. 1) the transfer of title to real property by the automatic operation of law. 2) n. the transfer of rights, powers or an office (public or private) from one person or government to another.
devolve v. when property is automatically transferred from one party to another by operation of law, without any act required of either past or present owner. The most common example is passing of title to the natural heir of a person upon his/her death. 2) passing of authority to a vice president on the death of a president. 3) to give a territory sovereign rights to run itself.
dicta n. the plural of dictum.
dictum n. Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)".
diligence n. reasonable care or attention to a matter, which is good enough to avoid a claim of negligence, or is a fair attempt (as in due diligence in a process server's attempt to locate someone).
diminished capacity n. essentially a psychological term which has found its way into criminal trials. A contention of diminished capacity means that although the accused was not insane, due to emotional distress, physical condition or other factors he/she could not fully comprehend the nature of the criminal act he/she is accused of committing, particularly murder or attempted murder. It is raised by the defense in attempts to remove the element of premeditation or criminal intent and thus obtain a conviction for a lesser crime, such as manslaughter instead of murder. While the theory has some legitimacy, at times juries have been overly impressed by psychiatric testimony.
diminution in value n. in the event of a breach of contract, the decrease in value of property due to the failure to construct something exactly as specified in the contract.
direct and proximate cause n. the immediate reason of damage caused by an act or omission (negligence); the negligence must have caused the damages, without intervention of another party, and cannot be remote in time or place. Example (in a complaint): "Defendant's negligent acts (speeding and losing control of his vehicle) directly and proximately caused plaintiff's injuries".
direct evidence n. real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.
direct examination n. the first questioning of a witness during a trial or deposition (testimony out of court), as distinguished from cross-examination by opposing attorneys and redirect examination when the witness is again questioned by the original attorney.
directed verdict n. a verdict by a jury based on the specific direction by a trial judge that they must bring in that verdict because one of the parties has not proved his/her/its case as a matter of law (failed to present credible testimony on some key element of the claim or of the defense). A judge in a criminal case may direct a verdict of acquittal on the basis that the prosecution has not proved its case, but the judge may not direct a verdict of guilty, since that would deprive the accused of the constitutional right to a jury trial.
director n. a member of the governing board of a corporation or association elected or re-elected at annual meetings of the shareholders or members. As a group the directors are responsible for the policy making, but not day-to-day operation, which is handled by officers and other managers. In some cases, a director may also be an officer, but need not be a shareholder.Often lay people dealing with corporations confuse directors with officers. Officers are employees hired by the board of directors to manage the business.
disability n. 1) a condition which prevents one from performing all usual physical or mental functions. This usually means a permanent state, like blindness, but in some cases is temporary. In recent times society and the law have dictated that people with disabilities should be accommodated and encouraged to operate to their maximum potential and have the right to participate in societal and governmental activity without impediments. 2) a legal impediment, including being a minor who cannot make a contract, or being insane or incompetent.
disbar v. to remove an attorney from the list of practicing attorneys for improper conduct. This penalty is usually invoked by the State Bar Association (if so empowered) and will automatically prohibit the attorney from practicing law before the courts in that state or from giving advice for a fee to clients. The causes of permanent disbarment include conviction of a felony involving "moral turpitude", forgery, fraud, a history of dishonesty, consistent lack of attention to clients, abandoning several clients, alcoholism or drug abuse which affect the attorney's ability to practice, theft of funds, or any pattern of violation of the professional code of ethics. Singular incidents (other than felony conviction) will generally result in reprimand, suspension and/or a requirement that the lawyer correct his/her conduct.
disbarment n. the ultimate discipline of an attorney, which is taking away his/her license to practice law, often for life. Disbarment only comes after investigation and opportunities for the attorney to explain his/her improper conduct. Sometimes an attorney may be reinstated upon a showing of rehabilitation and/or cure.
discharge v. 1) to perform one's duties. 2) to dismiss someone from a job. 3) to pay one's debts or obligations. 4) in bankruptcy, to issue an order of the court that all debts (with certain statutory exceptions) are forgiven and need not be paid.
discharge in bankruptcy n. an order given by the bankruptcy judge, at the conclusion of all legal steps in processing a bankrupt person's assets and debts, which forgives those remaining debts which cannot be paid, with certain exceptions. Debts for fraudulent or illegal actions, alimony and child support and taxes are not dischargeable and remain owed (but often not collectible if the bankrupt person has nothing). A discharge in bankruptcy is bad news for unsecured creditors.
disclaimer n. 1) denial or renunciation by someone of his/her title to property. 2) denial of responsibility for another's claim, such as an insurance company's refusal to admit coverage under an insurance policy. 3) statement of non-responsibility, as is made when dissolving a partnership or business.
discount n. the payment of less than the full amount due on a promissory note or price for goods or services. Usually a discount is by agreement and includes the common situation in which a holder of a long-term promissory note or material goods will sell it/them for less than face value in order to get cash now-the difference is the discount.
discovery n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.
discretion n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: a) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; b) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; c) a Governor may have discretion to grant a pardon; or d) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.
discrimination n. unequal treatment of persons, for a reason which has nothing to do with legal rights or ability. Laws prohibit discrimination in employment, availability of housing, rates of pay, right to promotion, educational opportunity, civil rights, and use of facilities based on race, nationality, creed, color, age, sex or sexual orientation. The rights to protest discrimination or enforce one's rights to equal treatment are provided in various laws, which allow for private lawsuits with the right to damages.
disfigure v. to cause permanent change in a person's body, particularly by leaving visible scars which affect a person's appearance. In lawsuits or claims due to injuries caused by another's negligence or intentional actions, such scarring can add considerably to general damages.
dishonor v. to refuse to pay the face amount of a cheque or the amount due on a promissory note
disinherit v. to intentionally take actions to guarantee that a person who would normally inherit upon a party's death (wife, child or closest relative) would get nothing. Usually this is done by a provision in a will or codicil (amendment) to a will which states that a specific person is not to take anything," "no descendant of my hated brother shall take anything on account of my death"). It is not enough to merely ignore or not mention a child in a will since he/she may become a "pretermitted heir" (a child apparently forgotten).
disinheritance n. the act of disinheriting.
disjunctive allegations n. the attempt to claim in a civil lawsuit that one thing "or" another occurred, and in criminal charges that the accused committed one crime "or" another. Such complaints are disallowed because the defendant is entitled to know what he/she must defend.
dismiss v. the ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff's lawsuit is terminated (thrown out) at that point without further evidence or testimony. This judgment may be made before, during or at the end of a trial, when the judge becomes convinced that the plaintiff has not and cannot prove his/her/its case. This can be based on the complaint failing to allege a cause of action, on a motion for summary judgment, plaintiff's opening statement of what will be proved, or on some development in the evidence by either side which bars judgment for the plaintiff. The judge may dismiss on his own or upon motion by the defendant. The plaintiff may voluntarily dismiss a cause of action before or during trial if the case is settled, if it is not provable or trial strategy dictates getting rid of a weak claim. A defendant may be "dismissed" from a lawsuit, meaning the suit is dropped against that party.
dismissal n. 1) the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) a judge's ruling that a lawsuit or criminal charge is terminated. 3) an appeals court's act of dismissing an appeal, letting the lower court decision stand. 4) the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing the suit again if the defendant does not follow through on the terms of the settlement.
disorderly conduct n. 1) actions that disturb others. 2) minor criminal offenses, such as public drunkenness, loitering, disturbing the peace, and loud threats or parties.
disorderly house n. 1) polite term for house of prostitution. 2) place of illegal gambling.
disposing mind and memory n. the mental ability to understand in general what one possesses and the persons who are the "natural objects of bounty" (wife and/or children), at the time of making a will.
disposition n. the court's final determination of a lawsuit or criminal charge
dispossess v. to eject someone from real property, either legally or by self-help
dissent n. 1) the opinion of a judge of a court of appeals, including the Supreme Court, which disagrees with the majority opinion. Sometimes a dissent may eventually prevail as the law or society evolves. 2) stated disagreement with prevailing thought.
dissolution n. modern, gentler sounding, term for divorce and symbolic of the no-fault, non-confrontational approach to dissolving a marriage.
dissolution of corporation n. termination of a corporation, either a) voluntarily by resolution, paying debts, distributing assets and filing dissolution documents or b) by state suspension for not paying corporate taxes or some other action of the government.
distinguish v. to argue that the rule in one appeals court decision does not apply to a particular case although there is an apparent similarity (i.e. it is "distinguished").
distress 1) n. the self-help taking of another's possessions in order to force payment of a claim, which is generally illegal without a court order. 2) adj. at lowest price due to negative circumstances.
distribute v. 1) the dividing up of those assets of an estate or trust when someone has died according to the terms of the deceased's will or trust, or in absence of a will, according to the laws of descent and distribution. 2) division of profits or assets of a corporation or business.
distribution n. the act of dividing up the assets of an estate or trust, or paying out profits or assets of a corporation or business according to the ownership percentages.
disturbing the peace n. upsetting the quiet and good order particularly through loud noise, by fighting or other unsocial behavior which frightens or upsets people. It is a misdemeanor, punishable by fine or brief term in jail.
diversion n. in criminal procedure, a system for giving a chance for a first- time criminal defendant in lesser crimes to make restitution for damage due to the crime, obtain treatment for alcohol or drug problems and/or counselling for antisocial or mentally unstable conduct. If the defendant cooperates and the diversion results in progress, the charges eventually may be dismissed. Usually diversion may not be granted for a second offense.
divestiture n. the court-ordered or voluntary giving up of a possession or right, to prevent monopoly or other restraint of trade.
divestment n. the act of stripping one's investment from an entity.
dividend n. a portion of profit, usually based on the number of shares of stock in a corporation and the rate of distribution approved by the board of directors or management, that is paid to shareholders for each share they own. Dividends are not always paid in money, but can be paid in shares of stock, known as a stock dividend.
divorce 1) n. the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution) by one party. The substantive issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees.
dna n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the famous "double helix") in the nucleus of each living cell, the combination of which determines each individual's hereditary characteristics. In law, the importance is the discovery that each person's DNA is different and is found in each living cell, so blood, hair, skin or any part of the body can be used to identify and distinguish an individual from all other people. DNA testing can result in proof of one's involvement or lack of involvement in a crime scene. While recent DNA tests have proved a convicted killer on death row did not commit a crime and resulted in his release, current debate concerns whether DNA evidence is scientifically certain enough to be admitted in trials. The trend is strongly in favor of admission.
docket 1) n. the cases on a court calendar. 2) n. brief notes, usually written by the court clerk, stating what action was taken that day in court. 3) v. to write down the name of a case to be put on calendar or make notes on action in court.
document n. a popular generic word among lawyers for any paper with writing on it. Technically it could include a piece of wood with a will or message scratched on it.
documentary evidence n. any document (paper) which is presented and allowed as evidence in a trial or hearing, as distinguished from oral testimony. However, the opposing attorney may object to its being admitted. In the first place, it must be proved by other evidence from a witness that the paper is genuine (called "laying a foundation"), as well as pass muster over the usual objections such as relevancy.
doing business v. carrying on the normal activities of a corporation on a regular basis or with substantial contacts-not just an occasional shipment. This is important to determine if an out-of-state corporation is "doing business" in a state so that it can be served with a complaint, is subject to certain state taxes and/or must register as a "foreign" corporation operating within the state.
domestic partners n. unmarried couples, living together in long-standing relationships, who may be entitled to some of the same benefits as married people, such as job-related health plans.
domestic relations n. a polite term for the legal field of divorce, dissolution, annulment, child custody, child support and alimony.
domestic violence n. the continuing crime and problem of the physical beating of a wife, girlfriend or children, usually by the woman's male partner (although it can also be female violence against a male). It is now recognized as an antisocial mental illness. Sometimes a woman's dependence, low self-esteem and fear of leaving cause her to endure this conduct or fail to protect a child. Prosecutors and police often face the problem that a battered woman will not press charges or testify due to fear, intimidation and misplaced "love". Increasingly domestic violence is attracting the sympathetic attention of law enforcement, the courts and community services, including shelters and protection for those in danger.
domicile n. the place where a person has his/her permanent principal home to which he/she returns or intends to return.
dominant estate n. in real estate law, the property retained when the owner splits off and conveys part of the property to another party but retains some rights such as an easement for access (a driveway) or utilities. The property sold off upon which there is the easement is called the servient estate. These are also called dominant tenement and servient tenement, respectively.
dominant tenement n. See also: dominant estate
donation n. gift. If made to a qualified non-profit charitable, religious, educational or public service organization, it may be deductible as a contribution in calculating income tax.
donative intent n. conscious desire to make a gift, as distinguished from giving something for nothing by mistake or under pressure.
donee n. a person or entity receiving an outright gift or donation.
donor n. a person or entity making a gift or donation.
double jeopardy n. placing someone on trial a second time for an offense for which he/she has been previously acquitted, even when new incriminating evidence has been unearthed.
double taxation n. taxation of the same property for the same purpose twice in one year. This is generally prohibited if it occurs through such circumstances as transfer of property which has been taxed once and then the tax is imposed on a new owner. However, if all property in a jurisdiction is taxed twice in the same year, it is legal since it is not discriminatory or unfair.
dower n. an old English common law right of a widow to one-third of her late husband's estate.
dowry n. from the days when a groom expected to profit from a marriage, the money and personal property which a bride brings to her new husband which becomes his alone.
draft 1) n. a bill of exchange or check in which one party (including a bank) is directed by the party drafting (writing) the bill or check to take money from the drafter's (writer's) bank account and pay it to another person or entity. 2) v. to prepare and sign a bill of exchange or check. 3) n. a less than final document, which is ready for discussion, rewriting and/or editing, such as a book, a proposal, or a legislative bill.
draw v. 1) to prepare any document. 2) specifically to have prepared and signed a bill of exchange or check.
drawee n. the party who is to be paid on a bill of exchange or check.
drawer n. the person who signs a bill of exchange.
drop dead date n. a provision in a contract or a court order which sets the last date an event must take place (such as payment) or otherwise certain consequences will automatically follow, such as cancelling the contract, taking property or entering a judgment.
due n. and adj. owed as of a specific date. A popular legal redundancy is that a debt is "due, owing and unpaid." Unpaid does not necessarily mean that a debt is due.
due and owing adj. See also: due
due care n. the conduct that a reasonable man or woman will exercise in a particular situation, in looking out for the safety of others. If one uses due care then an injured party cannot prove negligence. This is one of those nebulous standards by which negligence is tested. Each juror has to determine what a "reasonable" man or woman would do.
due process of law n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness.
duress n. the use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find the document null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime.
duty n. 1) a legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that there was a duty by defendant to plaintiff. This can be a duty of care in a negligence case or a duty to perform in a contract case. 2) a tax on imports.
duty of care n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
dying declaration n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances. Although hearsay since the dead person cannot testify in person, it is admissible on the theory that a dying person has no reason not to tell the truth.
earnest payment n. a deposit paid to demonstrate commitment and to bind a contract, with the remainder due at a particular time. If the contract is breached by failure to pay, then the earnest payment is kept by the recipient as pre-determined (liquidated) or committed damages.
easement n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property (often redundantly stated "access and egress," since entry and exit are over the same path), for utility or sewer lines both under and above ground, entry to make repairs on a fence or slide area, drive cattle across and other uses.
egress n. way of departure. A word usually used in conjunction with "access" or "ingress."
ejectment n. a lawsuit brought to remove a party who is occupying real property. This is not the same as an unlawful detainer (eviction) suit against a non-paying or unsatisfactory tenant. It is against someone who has tried to claim title to the property.
ejusdem generis (eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.
election of remedies n. an outmoded requirement that if a plaintiff (party filing suit) asks for two remedies based on legal theories which are inconsistent (a judge can grant only one or the other), the plaintiff must decide which one is the most provable and which one he/she really wants to pursue, usually just before the trial begins. Example: suing someone for both breach of contract and for fraud (a secret plan not to fulfill the contract when it was made). Fraud might bring punitive damages, but proof of fraud might be more difficult than of breach of contract. Increasingly, the courts have dispensed with the election of remedies as unfair to the plaintiff since the evidence has not been fully presented.
election under the will n. statutes which give a widow a particular percentage of the late husband's estate (such as dower), the surviving wife may elect to take that percentage instead of any lesser amount (or assets with unacceptable conditions such as an estate which will be cancelled if she remarries) left to her under his will.
eleemosynary (eh-luh-moss-uh-nary) adj. charitable, as applied to a purpose or institution.
element n. 1) an essential requirement to a cause of action (the right to bring a lawsuit to enforce a particular right). Each cause of action (negligence, breach of contract, trespass, assault, etc.) is made up of a basic set of elements which must be alleged and proved. Each charge of a criminal offense requires allegation and proof of its elements. 2) essential requirement of a zoning general plan.
emancipation n. freeing a minor child from the control of parents and allowing the minor to live on his/her own or under the control of others. It usually applies to adolescents who leave the parents' household by agreement or demand. Emancipation may also end the responsibility of a parent for the acts of a child, including debts, negligence or criminal acts. Sometimes it is one of the events which cuts off the obligation of a divorced parent to pay child support.
embezzlement n. the crime of stealing the funds or property of an employer, company or government or misappropriating money or assets held in trust.
embezzler n. a person who commits the crime of embezzlement by fraudulently taking funds or property of an employer or trust.
emblements n. crops to which a tenant who cultivated the land is entitled by agreement with the owner. If the tenant dies before harvest the crop will become the property of his/her estate.
emergency n. a sudden, unforeseen happening which requires action to correct or to protect lives and/or property.
eminent domain n. the power of a governmental entity to take private real estate for public use, with or without the permission of the owner.
emolument n. salary, wages and benefits paid for employment or an office held.
emotional distress n. an increasingly popular basis for a claim of damages in lawsuits for injury due to the negligence or intentional acts of another.
employee n. a person who is hired for a wage, salary, fee or payment to perform work for an employer. The employee is called an agent and the employer is called the principal. This is important to determine if one is acting as employee when injured (for worker's compensation) or when he/she causes damage to another, thereby making the employer liable for damages to the injured party.
employer n. a person or entity which hires the services of another called a principal.
employment n. the hiring of a person for compensation. It is important to determine if acts occurred in the "scope of employment" to establish the possible responsibility of the employer to the employee for injuries on the job or to the public for acts of the employee.
en banc (on bonk) French for "in the bench," it signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one, three or four judge panel. The larger number sit in judgment when the court feels there is a particularly significant issue at stake or when requested by one or both parties to the case and agreed to by the court.
enabling clause n. a provision in a new statute which empowers a particular public official (Governor, State Treasurer) to put it into effect, including making expenditures.
enclosure (inclosure)n. land bounded by a fence, wall, hedge, ditch or other physical evidence of boundary. Unfortunately, too often these creations are not included among the actual legally described boundaries and cause legal problems
encroach v. to build a structure which is in whole or in part across the property line of another's real property. This may occur due to incorrect surveys, guesses or miscalculations by builders and/or owners when erecting a building. The solutions vary from giving the encroaching party an easement or lease (for a price, usually) for the lifetime of the building, or if the structure is small, actually moving it onto the owner's own property.
encroachment n. the act of building a structure which is in whole or in part on a neighbor's property.
encumbrance (incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes. While the owner has title, any encumbrance is usually on record and must be paid for at some point.
endorse (indorse) v. 1) to sign one's name to the back of a check, bill of exchange or other negotiable instrument with the intention of making it cashable or transferable. 2) to pledge support to a program, proposal or candidate.
endorsement (indorsement)n. 1) the act of the owner or payee signing his/her name to the back of a check, bill of exchange or other negotiable instrument so as to make it payable to another or cashable by any person. An endorsement may be made after a specific direction "for deposit only", called a qualified endorsement, or with no qualifying language, thereby making it payable to the holder, called a blank endorsement. There are also other forms of endorsement which may give credit or restrict the use of the check. 2) the act of pledging or committing support to a program, proposal or candidate.
endowment n. the creation of a fund, often by gift or bequest from a dead person's estate, for the maintenance of a public institution, particularly a college, university or scholarship.
enjoin v. for a court to order that someone either do a specific act, cease a course of conduct or be prohibited from committing a certain act. To obtain such an order, called an injunction, a private party or public agency has to file a petition for a writ of injunction, serve it on the party he/she/it hopes to be enjoined, allowing time for a written response. Then a court hearing is held in which the judge will consider evidence, both written and oral, listen to the arguments and then either grant the writ or deny it. If granted the court will issue a final or permanent injunction. A preliminary injunction or temporary injunction is an order made by the court while the matter is being processed and considered, based on the petition and any accompanying declarations, either of which is intended to keep matters in status quo (as they are) or prevent possible irreparable harm (like cutting trees, poisoning a stream or moving out of the country with a child or money) until a final decision is made.
enjoyment n. 1) to exercise a right. 2) pleasure. 3) the use of funds or occupancy of property. Sometimes this is used in the phrase "quiet enjoyment" which means one is entitled to be free of noise or interference.
enter a judgment v. to officially record a judgment on the "judgment roll," which entry is normally performed by the court clerk once the exact wording of the judgment has been prepared or approved and signed by the trial judge. All times for appeal and other post-judgment actions are based on the date of the entry of judgment and not the date when the judgment is announced.
entity n. a general term for any institution, company, corporation, partnership, government agency, university or any other organization which is distinguished from individuals.
entrapment n. in criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the "criminal." Entrapment, if proved, is a defense to a criminal prosecution. The accused often claims entrapment in so-called "stings" in which undercover agents buy or sell narcotics, prostitutes' services or arrange to purchase goods believed to be stolen.
entry of judgment n. the placement of a judgment on the official roll of judgments.
environmental impact report n. a study of all the factors which a land development or construction project would have on the environment in the area, including population, traffic, schools, fire protection, endangered species, archeological artifacts and community beauty. A report has to be submitted to the local governments before the development or project can be approved, unless the governmental body finds there is no possible impact, which finding is called a "negative declaration."
environmental law n Laws intended to protect the environment, wildlife, land and beauty, prevent pollution or over-cutting of forests, save endangered species, conserve water, develop and follow general plans and prevent damaging practices. These laws often give individuals and groups the right to bring legal actions or seek court orders to enforce the protections or demand revisions of private and public activity which may have detrimental effects on the environment.
equal opportunity 1) n. a right supposedly guaranteed by law against any discrimination in employment, education, housing or credit rights due to a person's race, color, sex (or sometimes sexual orientation), religion, national origin, age or handicap. A person who believes he/she has not been granted equal opportunity or has been outright sexually harassed or discriminated against may file a lawsuit. 2) adj. a term applied to employers, lenders and landlords, who advertise that they are "equal opportunity employers," subtly suggesting all others are not, even though they are required by law to be so.
equal protection of the law n. the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts, both in procedures and in the substance of the law. It is akin to the right to due process of law, but in particular applies to equal treatment as an element of fundamental fairness.
equitable adj. 1) just, based on fairness and not legal technicalities. 2) refers to positive remedies (orders to do something, not money damages) employed by the courts to solve disputes or give relief.
equitable estoppel n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: "he who seeks equity, must do equity".
equitable lien n. a lien on property imposed by a court in order to achieve fairness, particularly when someone has possession of property which he/she holds for another.
equity n. 1) a venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing a lien, dividing assets, or injunctive relief (ordering a person to do something) to prevent irreparable damage. The rules of equity arose in England where the strict limitations of common law would not solve all problems, so the King set up courts of chancery (equity) to provide remedies through the royal power. 2) the net value of real property, determined by subtracting the amount of unpaid debts secured by (against) the property from the appraised value of the property.
equity of redemption n. the right of a mortgagor (person owing on a loan or debt against their real property), after commencement of foreclosure proceedings, to "cure" his/her default by making delinquent payments. The mortgagor also must pay all accumulated costs as well as the delinquency to keep the property.
equivalent n., adj. equal in value, force or meaning.
ergo (air-go)conj. Latin for "therefore," often used in legal writings. Its most famous use was in Cogito, ergo sum: "I think, therefore I am" principle by French philosopher Rene Descartes (1596-1650).
erroneous adj. 1) in error, wrong. 2) not according to established law, particularly in a legal decision or court ruling.
error n. a mistake by a judge in procedure or in substantive law, during a hearing, upon petitions or motions, denial of rights, during the conduct of a trial (either granting or denying objections), on approving or denying jury instructions, on a judgment not supported by facts or applicable law or any other step in the judicial process. If a majority of an appeals court finds an error or errors which affect the result, or a denial of fundamental rights such as due process, the higher court will reverse the lower court's error in whole or in part (the entire judgment or a part of it), and remand (send it back) with instructions to the lower court. Appeals courts often find errors which have no prejudicial effect on the rights of a party and are thus harmless error.
errors and omissions n. short hand for malpractice insurance which gives physicians, attorneys, architects, accountants and other professionals coverage for claims by patients and clients for alleged professional errors and omissions which amount to negligence.
escalator clause n. a provision in a lease or other agreement in which rent, installment payments or alimony, for example, will increase from time to time when the cost of living index (or a similar gauge) goes up. Often there is a maximum amount of increase ("cap") and seldom is there a provision for reduction if the cost of living goes down or for deflation instead of inflation.
escape clause n. a provision in a contract which allows one of the parties to be relieved from (get out of) any obligation if a certain event occurs.
escheat n. from old French eschete, which meant "that which falls to one," the forfeit of all property (including bank accounts) to the state treasury if it appears certain that there are no heirs, descendants or named beneficiaries to take the property upon the death of the last known owner.
escrow 1) n. a form of account held by an "escrow agent" (an individual, escrow company or title company) into which is deposited the documents and funds in a transfer of real property, including the money, a mortgage or deed of trust, an existing promissory note secured by the real property, escrow "instructions" from both parties, an accounting of the funds and other documents necessary to complete the transaction by a date ("closing") agreed to by the buyer and seller. When the funding is complete and the deed is clear, the escrow agent will then record the deed to the buyer and deliver funds to the seller. The escrow agent or officer is an independent holder and agent for both parties who receives a fee for his/her/its services. 2) n. originally escrow meant the deed held by the escrow agent. 3) n. colloquially, the escrow agent is called an "escrow," while actually the escrow is the account and not a person. 4) v. to place the documents and funds in an escrow account, as in: "we will escrow the deal."
escrow agent n. a person or entity holding documents and funds in a transfer of real property, acting for both parties pursuant to instructions. Typically the agent is a person (commonly an attorney), escrow company or title company, depending on local practice.
escrow instructions n. the written instructions by buyer and seller of real estate given to a title company, escrow company or individual escrow in "closing" a real estate transaction. These instructions are generally prepared by the escrow holder and then approved by the parties and their agents.
espionage n. the crime of spying on the government and/or transferring government secrets on behalf of a foreign country. The other country need not be an "enemy," so espionage may not be treason, which involves aiding an enemy.
esquire n. a form of address showing that someone is an attorney. Originally in England an Esquire was a rank just above "gentleman" and below "knight." It became a title for barristers, sheriffs and judges.
estate n. 1) all that one owns in real estate and other assets. 2) commonly, all the possessions of one who has died and are subject to probate (administration supervised by the court) and distribution to heirs and beneficiaries, all the possessions which a guardian manages for a ward (young person requiring protection and administration of affairs), or assets a conservator manages for a conservatee (a person whose physical or mental lack of competence requires administration of his/her affairs). 3) an alternative term for real property interest which is used in conjunction with another defining word, like "life estate," "estate for years," or "real estate."
estate by entirety n. tenancy by the entirety.
estop v. to halt, bar or prevent.
estoppel n. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act or judgment against the person in an identical legal case. Estoppel includes being barred by false representation or concealment (equitable estoppel), failure to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court ruling against the party on the same matter in a different case (collateral estoppel).
et al. n. abbreviation for the Latin phrase et alii meaning "and others." This is commonly used in shortening the name of a case.
et seq. (et seek) n. abbreviation for the Latin phrase et sequentes meaning "and the following." It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated.
et ux. (et uhks) n. abbreviation for the Latin words et uxor meaning "and wife." It is usually found in deeds, tax assessment rolls and other documents in the form "John Abraham et ux.," to show that the wife as well as the husband own property. The connotation that somehow the wife is merely an adjunct to her husband, as well as the modern concepts of joint tenancy, tenancy in common, community property where applicable and equal rights of the sexes have combined to make the expression a chauvinistic anachronism.
evasion of tax n. the intentional attempt to avoid paying taxes through fraudulent means, as distinguished from late payment, using legal "loopholes" or errors.
eviction n. a generic word for the act of expelling (kicking out) someone from real property either by legal action (suit for unlawful detainer), a claim of superior (actual) title to the property, or actions which prevent the tenant from continuing in possession (constructive eviction). Most frequently eviction consists of ousting a tenant who has breached the terms of a lease or rental agreement by not paying rent or a tenant who has stayed (held over) after the term of the lease has expired or only had a month-to-month tenancy.
evidence n. every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial). It also includes so-called "circumstantial evidence" which is intended to create belief by showing surrounding circumstances which logically lead to a conclusion of fact. Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence. Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence. Evidence must survive objections of opposing attorneys that it is irrelevant, immaterial or violates rules against "hearsay" (statements by a party not in court), and/or other technicalities.
ex delicto (ex dee-lick-toe)adj. Latin for a reference to something that arises out of a fault or wrong, but not out of contracts. Of only academic interest today, it identified actions which were civil wrongs (torts).
ex officio a (ex oh-fish-ee-oh)dj. Latin for "from the office," to describe someone who has a right because of an office held, such as being allowed to sit on a committee simply because one is president of the corporation.
ex parte (ex par-tay, but popularly, ex party) adj. 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. Most jurisdictions require at least a diligent attempt to contact the other party's lawyer at the time and place of any ex parte hearing.
ex post facto adj. Latin for "after the fact," which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increasing the penalty for a crime after it is committed.
examination n. 1) the questioning of a witness by an attorney. Direct examination is interrogation by the attorney who called the witness, and cross-examination is questioning by the opposing attorney. A principal difference is that an attorney putting questions to his own witness cannot ask "leading" questions, which put words in the mouth of the witness or suggest the answer, while on cross-examination he/she can pose a question that seems to contain an answer or suggest language for the witness to use or agree to. 2) in bankruptcy, the questions asked of a debtor by the judge, trustee in bankruptcy, attorneys or even creditors, to determine the state of the debtor's affairs. 3) in criminal law, a preliminary examination is a hearing before a judge or other magistrate to determine whether a defendant charged with a felony should be held for trial. Usually this is held by a lower court and if there is any substantial evidence to show a felony has been committed by the defendant he/she is bound over to the appropriate court for trial, but otherwise the charge will be dismissed by the judge.
exception n. 1) a formal objection during trial ("We take exception, or simply, "exception")" to the ruling of a judge on any matter, including rulings on objections to evidence, to show to a higher court that the lawyer did not agree with the ruling. In modern practice, it is not necessary "to take exception" to a judge's adverse ruling, since it is now assumed that the attorney against whom the ruling is made objects. This also keeps the transcribed record from being cluttered with shouts of "exception." 2) in contracts, statutes or deeds, a statement that some matter is not included.
exception in deed n. a notation in a deed of title to real property which states that certain interests, such as easements or a life estate, are not included in the transfer (conveyance) of title.
excessive bail n. an amount of bail ordered posted by an accused defendant which is much more than necessary or usual to assure he/she will make court appearances, particularly in relation to minor crimes. If excessive bail is claimed, the defendant can make a motion for reduction of bail, and if it is not granted, he/she can then apply directly to a court of appeal for reduction.
exchange 1) v. to trade or barter property, goods and/or services for other property, goods and/or services, unlike a sale or employment in which money is paid for the property, goods or services. 2) n. the act of making a trade or barter. An exchange of "equivalent" property, including real estate, can defer capital gains taxation until the acquired property is sold.
excise n. a tax upon manufacture, sale or for a business license or charter, as distinguished from a tax on real property, income or estates. Sometimes it is redundantly called an excise tax.
exclusionary rule n. the rule that evidence secured by illegal means and in bad faith cannot be introduced in a criminal trial. The technical term is that it is "excluded" upon a motion to suppress made by the lawyer for the accused.
exculpatory adj. applied to evidence which may justify or excuse an accused defendant's actions and which will tend to show the defendant is not guilty or has no criminal intent.
excusable neglect n. a legitimate excuse for the failure of a party or his/her lawyer to take required action (like filing an answer to a complaint) on time. This is usually claimed to set aside a default judgment for failure to answer (or otherwise respond) in the period set by law. However, if the defendant loses the complaint or fails to call his/her attorney the courts will be less lenient. In any event, the defendant must also show he/she had some worthwhile defense.
execute v. 1) to finish, complete or perform as required, as in fulfilling one's obligations under a contract or a court order. 2) to sign and otherwise complete a document, such as acknowledging the signature if required to make the document valid. 3) to seize property under court order. 4) to put to death pursuant to a sentence rendered by a court.
executed 1) adj. to have been completed. (Example: "it is an executed contract") 2) v. to have completed or fully performed. (Example: "he executed all the promises made in the contract") 3) v. completed and formally signed a document, such as a deed, contract or lease. 4) v. to have been put to death for a crime pursuant to a death sentence.
execution n. 1) the act of getting an officer of the court to take possession of the property of a losing party in a lawsuit (judgment debtor) on behalf of the winner (judgment creditor), sell it and use the proceeds to pay the judgment. The procedure is to take the judgment to the clerk of the court and have a writ of execution issued which is taken to the constable or other authorized official with instructions on what property to execute upon. In the case of real property the official must first levy (place a lien on the title), and then execute upon it (seize it). However, the judgment debtor (loser in the lawsuit) may pay the judgment and costs before sale to redeem real estate. 2) carrying out a death sentence.
executive clemency n. the power of a President in criminal cases to pardon a person convicted of a crime, commute the sentence (shorten it, often to time already served) or reduce it from death to another lesser sentence. There are many reasons for exercising this power, including real doubts about the guilt of the party, apparent excessive sentence, humanitarian reasons such as illness of an aged inmate, to clear the record of someone who has demonstrated rehabilitation or public service.
executive order n. a President's or Governor's declaration which has the force of law, usually based on existing statutory powers, and requiring no action by the state legislature.
executive privilege n. a claim by the President or another high official of the executive branch that he/she need not answer a request (including a subpena issued by a court) for confidential government or personal communications, on the ground that such revelations would hamper effective governmental operations and decision-making. The rationale is that such a demand would violate the principle of separation of powers among the executive, legislative and judicial branches.
executor n. the person appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor. The executor must insure that the person's desires expressed in the will are carried out. Practical responsibilities include gathering up and protecting the assets of the estate, obtaining information in regard to all beneficiaries named in the will and any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor's claims, making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate (which the executor can select).
executory adj. something not yet performed or done. Examples: an executory contract is one in which all or part of the required performance has not been done; an executory bequest is a gift under a will which has not been distributed to the beneficiary.
executory interest n. an interest in property (particularly real estate) which will only pass to another in the future, or never, if certain events occur.
executrix (pl. executrices) n. Latin for female executor. However, the term executor is now unisex.
exemplary damages n. often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. Examples of acts warranting exemplary damages: publishing that someone had committed murders when the publisher knew it was not true but hated the person; an ex-husband trashes his former wife's property; a stockbroker buys and sells a widow's stocks to generate commissions resulting in her losing all her capital (money). These damages are awarded both as a punishment and to set a public example. They reward the plaintiff for the horrible nature of what she/he went through or suffered. Although often requested, exemplary damages are seldom awarded. There have been major awards in egregious (remarkable or outstanding) cases, such as fraud schemes, sexual harassment or other intentional and vicious actions even when the provable actual damages were not extensive
exemption n. 1) in income taxation, a credit given for each dependent, blindness or other disability, and senior citizens, which result in a downward calculation in tax levels. These are not to be confused with deductions, which reduce gross income upon which taxes are paid. 2) a right to be excluded from, such as not being subject to attachment of one's wages if one is in a low-income bracket.
exhibit n. 1) a document or object (including a photograph) introduced as evidence during a trial. These are subject to objections by opposing attorneys just like any evidence. 2) a copy of a paper attached to a pleading (any legal paper filed in a lawsuit), declaration, affidavit or other document, which is referred to and incorporated into the main document.
expectancy n. a possibility of future enjoyment of something one counts on receiving, usually referring to real property or the estate of a deceased person, such as a remainder, reversion, or distribution after the death of someone who has use for life.
expense n. in business accounting and business taxation, any current cost of operation, such as rent, utilities and payroll, as distinguished from capital expenditure for long-term property and equipment.
expert testimony n. opinions stated during trial or deposition (testimony under oath before trial) by a specialist qualified as an expert on a subject relevant to a lawsuit or a criminal case
expert witness n. a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects. Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.
express adj. direct, unambiguous, distinct language, particularly in a contract, which does not require thought, guessing, inference or implication to determine the meaning.
express contract n. a contract in which all elements are specifically stated (offer, acceptance, consideration), and the terms are stated, as compared to an "implied" contract in which the existence of the contract is assumed by the circumstances.
expropriation n. a taking of property or rights by governmental authority such as eminent domain, possibly including an emergency situation, such as taking a person's truck or bulldozer to build a levee during a flood. In such a case just compensation eventually must be paid to the owner, who can make a claim against the taker.
extension n. granting of a specific amount of extra time to make a payment, file a legal document after the date due or continue a lease after the original expiration of the term
extenuating circumstances n. surrounding factors (sometimes called mitigation) which make a crime appear less serious, less aggravated or without criminal intent, and thus warranting a more lenient punishment or lesser charge (manslaughter rather than murder, for example).
extinguishment n. the cancellation or destruction of a right, quite often because the time for enforcement has passed.
extortion n. obtaining money or property by threat to a victim's property or loved ones, intimidation, or false claim of a right.
extradition n. the surrender by one country of a person charged with a crime in another country. International extradition is more difficult and is governed in many cases by treaty. While most countries will extradite persons charged with serious crimes, some will not, others refuse to extradite for certain crimes, set up legal roadblocks.
extrajudicial adj. referring to actions outside the judicial (court) system, such as an extralegal confession, which, if brought in as evidence, may be recognized by the judge during a trial.
extraordinary fees n. attorneys' fees claimed, usually in the administration of a dead person's estate, for work beyond the normal, including filing collection suits, preparing tax returns or requiring unusual effort beneficial to the estate. This claim is in addition to the usual statutory or court-approved legal fees. The attorney must submit proof of time, effort and benefit to justify the claim, and the final determination is at the judge's discretion.
extreme cruelty n. an archaic requirement to show infliction of physical or mental harm by one of the parties to his/her spouse to support a judgment of divorce or an unequal division of the couple's property.
extrinsic fraud n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from "intrinsic fraud," which is the fraud that is the subject of a lawsuit.
eyewitness n. a person who has actually seen an event and can so testify in court.
face amount n. the original amount due on a promissory note or insurance policy as stated therein, without calculating interest.
face value n. in shares of stock, the original cost of the stock shown on the certificate, or "par value."
fact n. an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury).
fact finder (finder of fact) n. in a trial of a lawsuit or criminal prosecution, the jury or judge (if there is no jury) who decides if facts have been proven. Occasionally a judge may appoint a "special master" to investigate and report on the existence of certain facts.
factor n. 1) a salesman who sells in his/her own name on behalf of others, taking a commission for services. 2) something that contributes to the result.
failure of consideration n. not delivering goods or services when promised in a contract. When goods a party had bargained for have become damaged or worthless, failure of consideration (to deliver promised goods) makes the expectant recipient justified to withhold payment, demand performance or take legal action.
failure of issue n. when someone dies leaving no children or other direct descendants.
fair comment n. a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment.
fair market value n. the amount for which property would sell on the open market if put up for sale. This is distinguished from "replacement value," which is the cost of duplicating the property. Real estate appraisers will use "comparable" sales of similar property in the area to determine market value, adding or deducting amounts based on differences in quality and size of the property.
fair use n. the non-competitive right to use of copyrighted material without giving the author the right to compensation or to sue for infringement of copyright. With the growing use of copy machines, teachers and businesses copy articles, pages of texts, charts and excerpts for classroom use, advice to employees or to assist in research without violating the copyright.
false arrest n. physically detaining someone without the legal right to do so. Quite often this involves private security people or other owners or employees of retail establishments who hold someone without having seen a crime committed in their presence or pretend that they are police officers. While they may be entitled to make a "citizen's arrest" they had better be sure that they have a person who has committed a crime, and they must call law enforcement officers to take over at the first opportunity. Other common false arrest situations include an arrest by a police officer of the wrong person or without probable cause to believe a crime has been committed and/or without a warrant. Only when the arresting party knowingly holds someone who has not committed a crime, is the false arrest itself a crime. However, probable false arrest can be the basis of a lawsuit for damages, including mental distress and embarrassment.
false imprisonment n. depriving someone of freedom of movement by holding a person in a confined space or by physical restraint including being locked in a car, driven about without opportunity to get out, being tied to a chair or locked in a closet. It may be the follow-up to a false arrest (holding someone in the office of a department store, for example), but more often it resembles a kidnapping with no belief or claim of a legal right to hold the person. Therefore, false imprisonment is often a crime and if proved is almost always the basis of a lawsuit for damages.
false pretenses n. the crime of knowingly making untrue statements for the purpose of obtaining money or property fraudulently. This can range from claiming zircons are diamonds and turning back the odometer on a car, to falsely stating that a mine has been producing gold when it has not. It is one form of theft.
family n. 1) husband, wife and children. 2) all blood relations. 3) all who live in the same household including servants and relatives, with some person or persons directing this economic and social unit.
family purpose doctrine n. a rule of law that the registered owner of an automobile is responsible for damages to anyone injured when the auto is driven by a member of the family with or without the owner's permission. The theory of this liability is that the vehicle is owned for family purposes.
fee n. 1) absolute title in land, from old French, fief, for "payment," since lands were originally given by lords to those who served them. The word "fee" can be modified to show that the title was "conditional" on some occurrence or could be terminated ("determinable") upon a future event. 2) a charge for services
fee simple n. absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of "fee," but is used to show the fee (absolute title) is not a "conditional fee," or "determinable fee," or "fee tail".
fee tail n. an old feudal expression for a title to real property which can only be passed to one's heirs "of his body" or certain heirs who are blood relatives. If the blood line ran out (no children) then the title would revert to the descendants of the lord who originally gave the land to the title-holding family. Thus, it could not be transferred to anyone outside the family. The intention was to keep lands within a family line and not subdivided. In 16th century England, trusts were established to get around this "restraint on alienation" so the land could be held in trust for another person to use. Fee tail is of historic and academic interest only.
felon n. a person who has been convicted of a felony, which is a crime punishable by death or a term in prison.
felonious adj. referring to an act done with criminal intent. The term is used to distinguish between a wrong which was not malicious, and an intentional crime, as in "felonious assault," which is an attack meant to do real harm.
felony n. 1) a crime sufficiently serious to be punishable by death or a term in prison, as distinguished from a misdemeanor which is only punishable by confinement to local jail and/or a fine.
felony murder doctrine n. a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the holdup men or women is killed, his/her fellow robbers can be charged with murder.
fictitious defendants n. when a party suing (plaintiff) is not sure if he/she knows if there are unknown persons involved in the incident or the business being sued, there are named fictitious persons, usually designated Doe I, Doe II, and so forth, or "Green and Red Company," with an allegation in the complaint that if and when the true names are discovered they will be inserted in the complaint by amendment. Naming fictitious defendants stops the statute of limitations (the time in which a party has to file a lawsuit) from running out even though the true name is not yet known. Sometimes during the investigation or discovery (taking depositions or asking written questions under oath) new information about a potential defendant is found and the real name substituted. Then that person is served with a summons and complaint. If no substitution of a real name for a Doe has been made by the time of trial, usually the fictitious defendants are then dismissed from the case since they never existed in the first place, and the case continues against the named defendants.
fiduciary 1) n. from the Latin fiducia, meaning "trust," a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stockbrokers, title companies or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid "self-dealing" or "conflicts of interests" in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another.
fiduciary relationship n. where one person places complete confidence in another in regard to a particular transaction or one's general affairs or business. The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.
fighting words n. words intentionally directed toward another person which are so nasty and full of malice as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically (hit, stab, shoot, etc.). While such words are not an excuse or defense for a retaliatory assault and battery, if they are threatening they can form the basis for a lawsuit for assault.
file 1) v. to deposit with the clerk of the court a written complaint or petition which is the opening step in a lawsuit and subsequent documents, including an answer, demurrer, motions, petitions and orders. All of these are placed in a case file which has a specific number assigned to it which must be stated on every document. The term is used: "When are you going to file the complaint," or "The answer will be filed tomorrow." 2) n. the master folder of a lawsuit kept by the clerk of the court, including all legal pleadings (documents) filed by both sides. Each document in the file must have a stamp showing the date it was received and the name of the clerk who received it. Any document which is filed must be served on the opposing attorney, usually by mail, except that the first paper filed (summons complaint, petition, motion) must be served on all defendants personally (hand delivered by a process server). 3) n. the record an attorney keeps on a case, containing all papers deposited with the clerk, as well as all correspondence and notes on the case.
final decree n. another name for a final judgment.
final judgment n. the written determination of a lawsuit by the judge who presided at trial (or heard a successful motion to dismiss or a stipulation for judgment), which renders (makes) rulings on all issues and completes the case unless it is appealed to a higher court. It is also called a final decree or final decision
final settlement n. an agreement reached by the parties to a lawsuit, usually in writing and/or read into the record in court, settling all issues. Usually there are elements of compromise, waiver of any right to reopen or appeal the matter even if there is information found later which would change matters (such as recurrence of a problem with an injury), mutual release of any further claim by each party, a statement that neither side is admitting fault, and some action or payment by one or both sides. In short, the case is over, provided the parties do what they are supposed to do according to the final settlement's terms. With the glut of cases crowding court calendars and overwhelming the system and delays in getting to trial (due to three factors: increased criminal case load, increased litigious nature of society and an insufficient number of judges), judges encourage attempts to settle, including mandatory settlement conferences with judges or experienced settlement attorneys present.
finding n. the determination of a factual question vital (contributing) to a decision in a case by the trier of fact (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact. A finding of fact is distinguished from a conclusion of law which is determined by the judge as the sole legal expert. Findings of fact and conclusions of law, need not be made if waived or not requested by the trial attorneys, leaving just the bare judgment in the case.
findings of fact n. See also: finding
firm offer n. in contract law, an offer (usually in writing) which states it may not be withdrawn, revoked or amended for a specific period of time. If the offer is accepted without a change during that period, there is a firm, enforceable contract.
first degree murder n. it is generally a killing which is deliberate and premeditated (planned, after lying in wait, by poison or as part of a scheme), in conjunction with felonies such as rape, burglary, or involving multiple deaths, the killing of certain types of people (such as a child, a police officer, a prison guard, a fellow prisoner), or certain weapons, particularly a gun. It is distinguished from second degree murder in which premeditation is usually absent, and from manslaughter, which lacks premeditation and suggests that at most there was intent to harm rather than to kill.
first impression adj. referring to a legal issue which has never been decided by an appeals court and, therefore, there is no precedent for the court to follow. To reach a decision the court must use its own logic, analogies from prior rulings by appeals courts and refer to commentaries and articles by legal scholars. In such cases the trial judge usually asks for legal briefs by attorneys for both sides to assist him/her.
fixture n. a piece of equipment which has been attached to real estate in such a way as to be part of the premises and its removal would do harm to the building or land. Thus, a fixture is transformed from a movable asset to an integral part of the real property. Essentially a question of fact, it often arises when a tenant has installed a lighting fixture, a heater, window box or other item which is bolted, nailed, screwed or wired into the wall, ceiling or floor. Trade fixtures are those which a merchant would normally use to operate the business and display goods and may be removed at the merchant's expense for any necessary repair.
flight n. running away or hiding by a person officially accused of a crime with the apparent intent of avoiding arrest or prosecution.
floating easement n. an easement (a right to use another's property for a particular purpose) which allows access and/or egress but does not spell out the exact dimensions and location of the easement.
fob 1) adj. short for free on board, meaning shipped to a specific place without cost.
for value received prep. a phrase used in a promissory note, a bill of exchange or a deed to show that some consideration (value) has been given without stating what that payment was.
forbearance n. an intentional delay in collecting a debt or demanding performance on a contract, usually for a specific period of time. Forbearance is often consideration for a promise by the debtor to pay an added amount.
forced sale n. a sale of goods seized by the police to satisfy (pay) a judgment.
forcible entry n. the crime of taking possession of a house or other structure or land by the use of physical force or serious threats against the occupants. This can include breaking windows or doors or using terror to gain entry, as well as forcing the occupants out by threat or violence after having come in peacefully.
foreclosure n. the system by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), requires sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, when the debtor fails to make payment. After the payments on the promissory note (which is evidence of the loan) have become delinquent for several months, the lender can have a notice of default served on the debtor (borrower) stating the amount due and the amount necessary to "cure" the default. If the delinquency and costs of foreclosure are not paid within a specified period, then the lender (or the trustee using deeds of trust) will set a foreclosure date, after which the property may be sold at public sale. Up to the time of foreclosure the defaulting borrower can pay all delinquencies and costs (which are then greater due to foreclosure costs) and "redeem" the property. Upon sale of the property the amount due is paid to the creditor (lender or owner of the judgment) and the remainder of the money received from the sale, if any, is paid to the lender. There is also judicial foreclosure in which the lender can bring suit for foreclosure against the defaulting borrower for the delinquency and force a sale.
foreclosure sale n. the actual forced sale of real property at a public auction after foreclosure on that property as security under a mortgage or deed of trust for a loan that is substantially delinquent. The lender who has not been paid may bid for the property, using his/her/its own unpaid note toward payment, which can result in a bargain purchase.
forensic 1) adj. from Latin forensis for "belonging to the forum," ancient Rome's site for public debate and currently meaning pertaining to the courts. Thus, forensic testimony or forensic medicine are used to assist the court or the attorneys in legal matters, including trials.
forensic medicine n. research, reports and testimony in court by experts in medical science to assist in determining a legal question. Cause of death is a common issue determined by pathologists who may be coroners or medical examiners.
forensic testimony n. any testimony of expert scientific, engineering, economic or other specialized nature used to assist the court and the lawyers in a lawsuit or prosecution.
forensics n. public speaking or argumentation.
foreseeability n. reasonable anticipation of the possible results of an action, such as what may happen if one is negligent or consequential damages resulting from breach of a contract.
foreseeable risk n. a danger which a reasonable person should anticipate as the result from his/her actions. Foreseeable risk is a common affirmative defense put up as a response by defendants in lawsuits for negligence. A mother is severely injured while accompanying her child on a roller coaster when the car jumps the track and comes loose. While there is potential risk, she had the right to anticipate that the roller coaster was properly maintained and did not assume the risk that it would come apart. Signs that warn "use at your own risk" do not bar lawsuits for risks that are not foreseeable.
forfeit v. to lose property or rights involuntarily as a penalty for violation of law. Example: the government can take automobiles or houses which are used for illegal drug trafficking or manufacture. A drug pusher may forfeit his/her car (property) if caught carrying drugs in it and found guilty.
forfeiture n. loss of property due to a violation of law.
forger n. a person who commits the crime of forgery, by making false documents or signatures.
forgery n. 1) the crime of creating a false document, altering a document, or writing a false signature for the illegal benefit of the person making the forgery. This includes improperly filling in a blank document, like an automobile purchase contract, over a buyer's signature, with the terms different from those agreed. It does not include such innocent representation as a staff member autographing photos of politicians or movie stars. While similar to forgery, counterfeiting refers to the creation of phoney money, stock certificates or bonds which are negotiable for cash. 2) a document or signature falsely created or altered.
fornication n. sexual intercourse between a man and woman who are not married to each other. This usage comes from Latin fornicari, meaning vaulted, which became the nickname for brothel, because prostitutes operated in a vaulted underground cavern in Rome. Fornication is still a misdemeanor, as is adultery (sexual intercourse by a married person with someone not his/her spouse), but is virtually never prosecuted.
forthwith adv. a term found in contracts, court orders and statutes, meaning as soon as it can be reasonably done. It implies immediacy, with no excuses for delay.
forum n. a court which has jurisdiction to hold a trial of a particular lawsuit or petition.
forum non conveniens (for-uhm nahn cahn-vee-nee-ehns) n. Latin for a forum which is not convenient. This doctrine is employed when the court chosen by the plaintiff (the party suing) is inconvenient for witnesses or poses an undue hardship on the defendants, who must petition the court for an order transferring the case to a more convenient court.
foster child n. a child without parental support and protection, placed with a person or family to be cared for, usually by local welfare services or by court order. The foster parent(s) do not have custody, nor is there an adoption, but they are expected to treat the foster child as they would their own in regard to food, housing, clothing and education. Most foster parents are paid by the local government or a state agency.
four corners of an instrument n. the term for studying an entire document to understand its meaning, without reference to anything outside of the document ("extrinsic evidence"), such as the circumstances surrounding its writing or the history of the party signing it. If possible a document should be construed based on what lies within its four corners, unless such examination cannot solve an ambiguity in its language.
franchise 1) n. a right granted by the government to a person or corporation, such as a taxi permit, bus route, an airline's use of a public airport, business license or corporate existence. 2) n. the right to vote in a public election. 3) v. to grant (for a periodic fee or share of profits) the right to operate a business or sell goods or services under a brand or chain name. Well-known franchise operations include McDonald's, Holiday Inns, and Amway Distributors. 4) n. the right one has to operate a store or sell goods or services under a franchise agreement.
franchise tax n. a state tax on corporations or businesses.
fraud n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud. Quite often there are several persons involved in a scheme to commit fraud and each and all may be liable for the total damages. Inherent in fraud is an unjust advantage over another which injures that person or entity. It includes failing to point out a known mistake in a contract or other writing (such as a deed), or not revealing a fact which he/she has a duty to communicate, such as a survey which shows there are only 10 acres of land being purchased and not 20 as originally understood. Constructive fraud can be proved by a showing of breach of legal duty (like using the trust funds held for another in an investment in one's own business) without direct proof of fraud or fraudulent intent. Extrinsic fraud occurs when deceit is employed to keep someone from exercising a right, such as a fair trial, by hiding evidence or misleading the opposing party in a lawsuit. Since fraud is intended to employ dishonesty to deprive another of money, property or a right, it can also be a crime for which the fraudulent person(s) can be charged, tried and convicted.
fraud in the inducement n. the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act. Example: "there will be tax advantages to you if you let me take title to your property".
fraudulent conveyance n. the transfer (conveyance) of title to real property for the express purpose of putting it beyond the reach of a known creditor. In such a case the creditor may bring a lawsuit to void the transfer. However, if the transfer was made without knowledge of the claim (or before a debt has matured), for other legitimate reasons, and/or in the normal course of business, then the creditor's attempt to obtain a judgment setting aside the conveyance will probably fail.
free and clear adj. referring to the ownership of real property upon which there is no lien, encumbrance, recorded judgment or the right of anyone to make a claim against the property. The term is used in contracts for sale of real property and deeds, to state that the title has no claim against it.
free on board (fob) adj. referring to purchased goods shipped without transportation charge to a specific place.
freehold n. any interest in real property which is a life estate or of uncertain or undetermined duration (having no stated end), as distinguished from a leasehold which may have declining value toward the end of a long-term lease (such as the 99-year variety).
fresh pursuit n. immediate chase of a suspected criminal by a law enforcement officer, in which situation the officer may arrest the suspect without a warrant.
friendly suit n. a lawsuit filed in order to obtain a court order when the parties to the suit agree on the expected outcome. Such a legal action will be dismissed if it is an attempt to get an advisory opinion, is collusive (deceitfully planned) to get a judgment to set a legal precedent or where there is no real controversy. However, such suits are allowed in situations in which the statutes require a court ruling to achieve a "reasonable result," such as reforming (correcting) a trust or agreement in which there was an error.
frisk v. quickly patting down the clothes of a possible criminal suspect to determine if there is a concealed weapon. This police action is generally considered legal (constitutional) without a search warrant. Generally it is preferred that women officers frisk women and men officers frisk men.
frivolous adj. referring to a legal move in a lawsuit clearly intended merely to harass, delay or embarrass the opposition. Frivolous acts can include filing the lawsuit itself, a baseless motion for a legal ruling, an answer of a defendant to a complaint which does not deny, contest, prove or controvert anything, or an appeal which contains not a single arguable basis (by any stretch of the imagination) for the appeal. A frivolous lawsuit, motion or appeal can result in a successful claim by the other party for payment by the frivolous suer of their attorneys' fees for defending the case. Judges are reluctant to find an action frivolous, based on the desire not to discourage people from using the courts to resolve disputes.
fruit of the poisonous tree n. in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it.
frustration of purpose n. sometimes called commercial frustration, when unexpected events arise which make a contract impossible to be performed, entitling the frustrated party to rescind the contract without paying damages.
fugitive from justice n. a person convicted or accused of a crime who hides from law enforcement.
full disclosure n. the need in business transactions to tell the "whole truth" about any matter which the other party should know in deciding to buy or contract. In real estate salesthere is a full disclosure form which must be filled out and signed under penalty of perjury for knowingly falsifying or concealing any significant fact.
fungible things n. sometimes merely called "fungibles," goods which are interchangeable, often sold or delivered in bulk, since any one of them is as good as another. Grain or gravel are fungibles, as are securities which are identical.
future interest n. a right to receive either real property or personal property some time in the future, either upon a particular date or upon the occurrence of an event. Typical examples are getting title upon the death of the person having present use, outliving another beneficiary, reaching maturity (age 18) or upon marriage.
gag order n. a judge's order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. The supposed intent is to prevent prejudice due to pre-trial publicity which would influence potential jurors. A gag order has the secondary purpose of preventing the lawyers from trying the case in the press and on television, and thus creating a public mood (which could get ugly) in favor of one party or the other. Based on the "freedom of the press" provision. the court cannot constitutionally restrict the media from printing or broadcasting information about the case, so the only way is to put a gag on the participants under the court's control.
garnish v. to obtain a court order directing a party holding funds (such as a bank) or about to pay wages (such as an employer) to an alleged debtor to set that money aside until the court determines (decides) how much the debtor owes to the creditor. Garnishing funds is also a warning to the party holding the funds (garnishee) not to pay them, and to inform the court as to how much money is being held. If the garnishee (such as a bank or employer) should mistakenly give the money to the account owner or employee, the garnishee will be liable to pay the creditor what he/she/it has coming.
garnishee n. a person or entity, quite often a bank or employer, which receives a court order not to release funds held for or owed to a customer or employee, pending further order of the court.
garnishment n. the entire process of petitioning for and getting a court order directing a person or entity (garnishee) to hold funds they owe to someone who allegedly is in debt to another person, often after a judgment has been rendered. Usually the actual amounts owed have not been figured out or are to be paid by installments directly or through the law enforcement officer.
gender bias n. unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and expectations due to attitudes based on the sex of an employee or group of employees. Gender bias can be a legitimate basis for a lawsuit under anti-discrimination statutes.
general appearance n. an attorney's representation of a client in court for all purposes connected with a pending lawsuit or prosecution. After "appearing" in court, the attorney is then responsible for all future appearances in court unless officially relieved by court order or substitution of another attorney. A lawyer may be leery of making a general appearance unless all details of representation (such as the amount and payment of his/her fees) have been worked out with the client. This is distinguished from a special appearance, which is only for a particular purpose or court session and does not make the attorney responsible for future conduct of the case.
general counsel n. the chief attorney for a corporation, who is paid usually full time for legal services. Attorneys who work only for one business are "house counsel."
general damages n. monetary recovery (money won) in a lawsuit for injuries suffered (such as pain, suffering, inability to perform certain functions) or breach of contract for which there is no exact money value which can be calculated. They are distinguished from special damages, which are for specific costs, and from punitive (exemplary) damages for punishment and to set an example when malice, intent or gross negligence was a factor.
general denial n. a statement in an answer to a lawsuit or claim by a defendant in a lawsuit, in which the defendant denies everything alleged in the complaint without specifically denying any allegation. It reads: "Defendant denies each and every allegation contained in the complaint on file herein," or similar inclusive language.
general partner n. usually one of the owners and operators of a partnership, which is a joint business entered into for profit, in which responsibility for management, profits and, most importantly, the liability for debts is shared by the general partners. Anyone entering into a general partnership (the most common business organization involving more than one owner) must remember that each general partner is liable for all the debts of the partnership. Furthermore, any partner alone can bind the partnership on contracts.
general plan n. a plan of a city, county or area which establishes zones for different types of development, uses, traffic patterns and future development.
generation skipping adj., adv. referring to gifts made through trusts by a grandparent to a grandchild, skipping one's child (the grandchild's parent).
gift n. the voluntary transfer of property (including money) to another person completely free of payment or strings while both the giver and the recipient are still alive. Large gifts are subject to the gift tax.
gift tax n. a tax on large gifts.
go bail v. slang for putting up the bail money to get an accused defendant out of jail after an arrest or pending trial or appeal.
good cause n. a legally sufficient reason for a ruling or other action by a judge. The language is commonly: "There being good cause shown, the court orders…."
good faith n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.
good samaritan rule n. from a Biblical story, if a volunteer comes to the aid of an injured or ill person who is a stranger, the person giving the aid owes the stranger a duty of being reasonably careful. In some circumstances negligence could result in a claim of negligent care if the injuries or illness were made worse by the volunteer's negligence.
good title n. ownership of real property which is totally free of claims against it and therefore can be sold, transferred or put up as security (placing a mortgage or deed of trust on the property).
goods n. items held for sale in the regular course of business, as in a retail store.
goodwill n. the benefit of a business having a good reputation under its name and regular patronage. Goodwill is not tangible like equipment, right to lease the premises or inventory of goods. It becomes important when a business is sold, since there can be an allocation in the sales price for the value of the goodwill, which is always a subjective estimate. Included in goodwill upon sale may be the right to do business without competition by the seller in the area and/or for a specified period of time. Sellers like the allocation to goodwill to be high since it is not subject to capital gains tax, while buyers prefer it to be low, because it cannot be depreciated for tax purposes like tangible assets. Goodwill also may be overestimated by a proud seller and believed by an unknowing buyer.
governmental immunity n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.
grace period n. a time stated in a contract in which a late payment or performance may be made without penalty. Often after the grace period ends without payment or performance by the person who is supposed to pay, the contract is suspended. Example: if a person does not pay his/her insurance payment (premium) by the stated deadline, he/she usually has a few days extra to pay before the absolute deadline. If the person does not pay by then, the insurance company cancels the contract, i.e. your insurance
grand jury n. a jury in each county who serves for a term of a year and is usually selected from a list of nominees offered by the judges in the county.
grand larceny n. the crime of theft of another's property (including money) over a certain value, as distinguished from petty (or petit) larceny in which the value is below the grand larceny limit.
grand theft n. See also: grand larceny
grant v. to transfer real property from a title holder (grantor) or holders to another (grantee) with or without payment. However, there is an important difference between the types of deeds used. A grant deed warrants (guarantees) that the grantor (seller) has full right and title to the property, while a quitclaim deed only grants whatever the grantor owns (which may be nothing) and guarantees nothing.
grant deed n. the document which transfers title to real property or a real property interest from one party (grantor) to another (grantee). It must describe the property by legal description of boundaries and/or parcel numbers, be signed by all people transferring the property, and be acknowledged before a notary public. Importantly, a grant deed warrants that the grantor actually owned the title to transfer, which a quitclaim deed would not, since it only transfers what the grantor owned, if anything.
grantee n. the party who receives title to real property (buyer, recipient, donee) from the seller (grantor) by a document called a grant deed or quitclaim deed.
grantor n. the party who transfers title in real property (seller, giver) to another (buyer, recipient, donee) by grant deed or quitclaim deed.
grantor-grantee index n. a set of books and/or computerized lists found in the office of every Recorder of Deeds which lists all recorded transfers of title by deed (as well as liens, mortgages, deeds of trust and other documents affecting title). Each yearly index is usually alphabetized by the last names of grantors (the party transferring title) and grantee (the recipients of title). The listing includes the date of transfer, and cross-references to the book and page or document number where a copy of the document was recorded and can be examined. This is a key instrument in tracking a chain of title.
gratuitous adj. or adv. voluntary or free.
gravamen n. Latin for "to weigh down," the basic gist of every claim (cause of action) or charge in a complaint filed to begin a lawsuit. Example: in an accident case, the gravamen may be the negligence of the defendant, and in a contract case, it may be the breach of the defendant.
gross income n. in calculating income tax, the income of an individual or business from all sources before deducting allowable expenses, which will result in net income.
gross negligence n. carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil. If one has borrowed or contracted to take care of another's property, then gross negligence is the failure to actively take the care as one would of his/her own property. If gross negligence is found by the trier of fact (judge or jury), it can result in the award of punitive damages on top of general and special damages.
guarantee 1) v. to pledge or agree to be responsible for another's debt or contractual performance if that other person does not pay or perform. Usually, the party receiving the guarantee will first try to collect or obtain performance from the debtor before trying to collect from the one making the guarantee (guarantor). 2) the promise to pay another's debt or fulfill contract obligations if that party fails to pay or perform. 3) n. occasionally, the person to whom the guarantee is made. 4) a promise to make a product good if it has some defect.
guarantor n. a person or entity that agrees to be responsible for another's debt or performance under a contract if the other fails to pay or perform.
guaranty v. and n. an older spelling of guarantee, which the renowned Oxford etymologist Dr. Walter Skeat called a "better spelling" (1882).
guardian n. a person who has been appointed by a judge to take care of a minor child or incompetent adult (both called "ward") personally and/or manage that person's affairs. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian. In the case of a minor, the guardianship remains under court supervision until the child reaches majority at 18. Naming someone in a will as guardian of one's child in case of the death of the parent is merely a nomination. The judge does not have to honor that request, although he/she usually does. Sadly, often a parent must petition to become the guardian of his/her child's "estate" if the child inherits or receives a gift of substantial assets, including the situation in which a parent gives his/her own child an interest in real property or stocks. Therefore, that type of gift should be avoided and a trust created instead. While the term "guardian" may refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs, this is more often called a "conservator" under a conservatorship.
guardian ad litem n. a person appointed by the court only to take legal action on behalf of a minor or an adult not able to handle his/her own affairs. Duties may include filing a lawsuit for an injured child, defending a lawsuit or filing a claim against an estate. Usually a parent will file a petition to be appointed the guardian ad litem of a child hurt in an accident at the same time the lawsuit is filed.
guest n. 1) in general, a person paying to stay in a hotel for a short time. 2) a person staying at another's residence without charge, called a "social guest." An important distinction is that a non-paying guest is not owed the duty of being provided a safe boarding space, as is a paying customer. Thus if a social guest trips on a slippery rug, he/she has no right to sue for negligence, but a paying guest might.
guilty adj. having been convicted of a crime or having admitted the commission of a crime by pleading "guilty" (saying you did it). A defendant may also be found guilty by a judge after a plea of "no contest," or in Latin nolo contendere. The term "guilty" is also sometimes applied to persons against whom a judgment has been found in a lawsuit for a civil wrong, such as negligence or some intentional act like assault or fraud, but that is a confusing misuse of the word since it should only apply to a criminal charge.
habeas corpus (hay-bee-us core-puss) n. Latin for "you have the body," it is a writ (court order) which directs the law enforcement officials (prison administrators, police) who have custody of a prisoner to appear in court with the prisoner to help the judge determine whether the prisoner is lawfully in prison or jail. The writ is obtained by petition to a judge in the district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been summarily terminated without cause. Historically called "the great writ," the renowned scholar of the Common Law, William Blackstone, called it the "most celebrated writ in English law." It may also be used as a means to contest child custody and deportation proceedings in court.
habitable adj. referring to a residence that is safe and can be occupied in reasonable comfort. Although standards vary by region, the premises should be closed in against the weather, provide running water, access to decent toilets and bathing facilities, heating, and electricity. Particularly in multi-dwelling buildings freedom from noxious smells, noise and garbage are included in the standard. This can become important in landlord-tenant disputes or government actions to force a landlord to make the premises livable (abatement of deficiencies). Example: if the roof begins to leak, the water goes off, the electricity shorts out or the toilet breaks, the landlord has a duty to make repairs when requested or the tenant may order the repairs and deduct the cost from the rent.
habitual criminal n. under the statutes, a person who has been convicted of either two or three felonies (or of numerous misdemeanors), a fact which may increase punishment for any further criminal convictions.
half blood 1) adj. sharing one parent only. 2) n. a half brother or half sister. "Half blood" should not be confused with "half breed," which was a pejorative expression for a person born of parents of two races.
harass (either harris or huh-rass) v. systematic and/or continual unwanted and annoying pestering, which often includes threats and demands. This can include lewd or offensive remarks, sexual advances, threatening telephone calls from collection agencies, hassling by police officers or bringing criminal charges without cause.
harassment (either harris-meant or huh-rass-meant) n. the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. The purposes may vary, including racial prejudice, personal malice, an attempt to force someone to quit a job or grant sexual favors, apply illegal pressure to collect a bill or merely gain sadistic pleasure from making someone anxious or fearful. Such activities may be the basis for a lawsuit if due to discrimination based on race or sex, a violation on the statutory limitations on collection agencies, involve revenge by an ex-spouse, or be shown to be a form of blackmail. The victim may file a petition for a "stay away" (restraining) order, intended to prevent contact by the offensive party. A systematic pattern of harassment by an employee against another worker may subject the employer to a lawsuit for failure to protect the worker.
harmless error n. an error by a judge in the conduct of a trial which an appellate court finds is not sufficient for it to reverse or modify the lower court's judgment at trial. Harmless error would include: a technical error which has no bearing on the outcome of the trial, an error that was corrected (such as allowing testimony and then ordering it stricken and admonishing the jury to ignore it), the issue affected by the error was found in the appellant's favor (such as hearsay evidence on premeditation, but the jury found no premeditation), and the appeals court's view that even though there were errors the appealing party could not have won in trial in any event. This last gives the appeals court broad latitude to rule that errors were not significant. It is frustrating to appealing parties and their attorneys for the appeals court to rule that there were indeed several errors, and then say: "However, they appear to be harmless."
head of household n. 1) in income tax law, the person filing a tax return who manages the household which has dependents such as children and/or other dependent relatives living in the home, but does not file on a joint return with a spouse. The calculation of taxes is somewhat more favorable to a head of household than to a person filing singly. 2) anyone who manages the affairs of the family living in a household, who need not be the husband/father or wife/mother, but could be a grandparent, uncle, aunt, son or daughter. 3) "head of family."
headnote n. the summary of the key legal points determined by an appeals court, which appears just above each decision in published reports of cases. Headnotes are useful for a quick scan of the judgment, but they are the editor's remarks and not the court's.
hearing n. any proceeding before a judge or other magistrate (such as a hearing officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact or both issues of fact and law. While technically a trial with a judge sitting without a jury fits the definition, a hearing usually refers to brief sessions involving a specific question at some time prior to the trial itself, or such specialized proceedings as administrative hearings. In criminal law, a "preliminary hearing" is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.
hearsay n. 1) second-hand evidence in which the witness is not telling what he/she knows personally, but what others have said to him/her. 2) a common objection made by the opposing lawyer to testimony when it appears the witness has violated the hearsay rule. 3) scuttlebutt or gossip.
hearsay rule n. the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine (ask questions on) him or her. However, as significant as the hearsay rule itself are the exceptions to the rule which allow hearsay testimony such as: a) a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court (called an "admission against interest"); b) business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept; c) official government records which can be shown to be properly kept; d) a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness's memory about the event; e) a "learned treatise" which means historical works, scientific books, published art works, maps and charts; f) judgments in other cases; g) a spontaneous excited or startled utterance ("oh, God, the bus hit the little girl"); h) contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous; i) a statement which explains a person's state of mind at the time of an event; j) a statement which explains a person's future intentions ("I plan to….") if that person's state of mind is in question; k) prior testimony, such as in deposition (taken under oath outside of court), or at a hearing, if the witness is not available (including being dead); l) a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial (this differs from an admission against interest, which is admissible in trial if it differs from testimony at trial); m) a dying declaration by a person believing he/she is dying; n) a statement made about one's mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead ("my back hurts horribly," and then dies); o) a statement about one's own will when the person is not available; p) other exceptions based on a judge's discretion that the hearsay testimony in the circumstances must be reliable.
heat of passion n. in a criminal case, when the accused was in an uncontrollable rage at the time of commission of the alleged crime. If so, it may reduce the charge, indictment or judgment down from murder to manslaughter, since the passion precluded the defendant having premeditation or being fully mentally capable of knowing what he/she was doing.
heir n. one who acquires property upon the death of another, based on the rules of descent and distribution, namely, being the child, descendant or other closest relative of the dear departed. It also has come to mean anyone who "takes" (receives something) by the terms of the will. An heir cannot be determined until the moment of death of the person leaving the property, since a supposed beneficiary (heir apparent) might die first. A presumptive heir is someone who would receive benefits unless a child was later born to the current owner of the property the presumptive heir hopes to get someday. A legally adopted child gains the chance to be an heir upon adoption as if he/she were the natural child of the adoptive parent or parents and is called an adoptive heir. A collateral heir is a relative who is not a direct descendant, but a brother, sister, uncle, aunt, cousin, nephew, niece or a parent. It is noteworthy that a spouse is not an heir unless specifically mentioned in the will. He/She may, however, receive an inheritance through marital property or community property laws. A child not mentioned in a will can claim to be a pretermitted heir, i.e. inadvertently or accidentally omitted from the will, and can claim he/she would (should) have received as an heir.
heir apparent n. the person who is expected to receive a share of the estate of a family member if he/she lives longer, or is not specifically disinherited by will.
heiress n. feminine heir, often used to denote a woman who has received a large amount upon the death of a rich relative, as in the "department store heiress."
heirs of the body n. descendants of one's bloodline, such as children or grandchildren until such time as there are no direct descendants. If the bloodline runs out, the property will "revert" to the nearest relative traced back to the original owner.
held v. decided or ruled, as "the court held that the contract was valid."
hereditament n. any kind of property which can be inherited. This is old-fashioned language still found in some wills and deeds.
hidden asset n. an item of value which does not show on the books of a business, often excluded for some improper purpose such as escaping taxation or hiding it from a bankruptcy trustee. However, there may be a legitimate business reason for not including all assets on a profit and loss statement.
highway n. any public street, road, turnpike or canal which any member of the public has the right to use, provided he/she/it follows the laws governing its use, such as having a driver's license if operating a vehicle. Thus, the use is really a privilege and not an absolute right.
hit and run n. the crime of a driver of a vehicle who is involved in a collision with another vehicle, property or human being, who knowingly fails to stop to give his/her name, license number and other information as required by statute to the injured party, a witness or law enforcement officers. If there is only property damage and no other person is present, leaving the information attached to the damaged property may be sufficient, provided the person causing the accident makes a report to the police. It is not a violation of the constitutional protection against self-incrimination to be required to stop and give this information since it is a report and not an admission of guilt. Some hit and run cases are difficult to determine, such as the driver leaves the accident scene to go a block to his/her house or the neighborhood repair garage, and then walks back to the scene.
hobby loss n. in income tax, a loss from a business activity engaged in more for enjoyment than for profit, which can be deducted against annual income only.
hold harmless n. a promise to pay any costs or claims which may result from an agreement. Quite often this is part of a settlement agreement, in which one party is concerned that there might be unknown lawsuits or claims stemming from the situation, so the other party agrees to cover them.
holder n. a general term for anyone in possession of property, but usually referring to anyone holding a promissory note, check, bond or other paper, either handed to the holder (delivery) or signed over by endorsement, for which he/she/it is entitled to receive payment as stated in the document.
holder in due course n. one holding a check or promissory note, received for value (he/she paid for it) in good faith and with no suspicion that it might be no good, claimed by another, overdue or previously dishonored (a bank had refused to pay since the account was overdrawn). Such a holder is entitled to payment by the maker of the check or note.
holding 1) n. any ruling or decision of a court. 2) n. any real property to which one has title. 3) n. investment in a business. 4) v. keeping in one's possession.
holding company n. a company, usually a corporation, which is created to own the stock of other corporations, thereby often controlling the management and policies of all of them.
holdover tenancy n. the situation when a tenant of real estate continues to occupy the premises without the owner's agreement after the original lease or rental agreement between the owner (landlord) and the tenant has expired. The tenant is responsible for payment of the monthly rental at the existing rate and terms, which the landlord may accept without admitting the legality of the occupancy. A holdover tenant is subject to a notice to quit (get out) and, if he/she does not leave, to a lawsuit for unlawful detainer.
homestead 1) n. the house and lot of a homeowner which the head of the household (usually either spouse) can declare in writing to be the principal dwelling of the family, record that declaration of homestead with the Recorder of Deeds and thereby exempt part of its value from judgment creditors. A similar exemption is available in bankruptcy without filing a declaration of homestead. 2) v. jargon for filing a declaration of homestead, as in "he homesteaded the property."
hometowned adv. legalese for a lawyer or client suffering discrimination by a local judge who seems to favor local parties and/or attorneys over those from out of town.
homicide n. the killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter, but not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting accident or automobile wreck without a violation of law like reckless driving, or legal (government) execution. Suicide is a homicide, but in most cases there is no one to prosecute if the suicide is successful. Assisting or attempting suicide can be a crime.
hornbook law n. lawyer lingo for a fundamental and well-accepted legal principle that does not require any further explanation, since a hornbook is a primer of basics.
hostile possession n. occupancy of a piece of real property coupled with a claim of ownership (which may be implied by actions, such as putting in a fence) over anyone, including the holder of recorded title. It may be an element of gaining title through long-term adverse possession or claiming real estate which has no known owner.
hostile witness n. technically an "adverse witness" in a trial who is found by the judge to be hostile (adverse) to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his/her client. When the attorney calling the witness finds that the answers are contrary to the legal position of his/her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be "hostile" or "adverse." If the judge declares the witness to be hostile (i.e. adverse), the attorney may ask "leading" questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition.
hot pursuit n. when a law enforcement officer is so close behind the alleged criminal that he/she may continue the chase into another jurisdiction without stopping or seeking a warrant for an arrest in the other county or state. It is equivalent to fresh pursuit.
hotchpot n. the putting together, blending or mixing of various properties in order to achieve equal division among beneficiaries or heirs. There may be cash, securities, personal belongings, and even real estate which are part of the residue of an estate to be given to "my children, share and share alike." To make such distribution possible, all of the items are put in the hotchpot and then divided.
house counsel n. any attorney who works only for a particular business.
household n. a family living together, all of whom need not be related.
hung jury n. slang for a hopelessly deadlocked jury in a criminal case, in which neither side is able to prevail. Usually it means there is no unanimous verdict. If the jury is hung the trial judge will declare a mistrial. A new trial from scratch, with a new jury panel, is required. The prosecutor can decide not to re-try the case, particularly if a majority of the jury favored acquittal.
hypothecate v. from Greek for "pledge," a generic term for using property to secure payment of a loan, which includes mortgages, pledges and putting up collateral, while the borrower retains possession.
i.e. prep. abbreviation for id est, which is Latin for "that is" or "that is to say." It is used to expand or explain a general term as in "his children (i.e. Matthew, Mark, Luke and Joan)." It should not be confused with "e.g.," which means "for example."
illegal 1) adj. in violation of statute, regulation or ordinance, which may be criminal or merely not in conformity. Thus, an armed robbery is illegal, and so is an access road which is narrower than the county allows, but the violation is not criminal. 2) status of a person residing in a country of which he/she is not a citizen and who has no official permission to be there.
illegal immigrant n. a non-citizen who has entered the country without government permission or stayed beyond the termination date of a visa.
illusory promise n. an agreement to do something that is so indefinite one cannot tell what is to be done or the performance is optional (usually because it is just a gesture and not a true agreement). Therefore, the other party need not perform or pay since he/she got nothing in what he/she may have thought was a contract.
immaterial adj. a commonly heard objection to introducing evidence in a trial on the ground that it had nothing substantial to do with the case or any issue in the case. It can also apply to any matter (such as an argument or complaint) in a lawsuit which has no bearing on the issues to be decided in a trial. The public is often surprised at what is immaterial, such as references to a person's character or bad deeds in other situations.
immediately adv. 1) at once. 2) in orders of the court or in contracts it means "as soon as can be done" without excuse.
immunity n. exemption from penalties, payments or legal requirements, granted by authorities or statutes. Generally there are three types of immunity at law: a) a promise not to prosecute for a crime in exchange for information or testimony in a criminal matter, granted by the prosecutors, a judge, a grand jury or an investigating legislative committee; b) public officials' protection from liability for their decisions (like a city manager or member of a public hospital board); c) governmental (or sovereign) immunity, which protects government agencies from lawsuits unless the government agreed to be sued; d) diplomatic immunity which excuses foreign ambassadors from most criminal laws.
impanel v. to select and install a jury.
impaneling n. the act of selecting a jury from the list of potential jurors, called the "panel" or "venire." The steps are 1) drawing names at random from a large number of jurors called; 2) seating 12 tentative jurors (or fewer where agreed to); 3) hearing individual juror requests for being excused, to be determined by the judge; 4) questions from judge and lawyers for both sides, called "voir dire"; 5) challenges of tentative jurors either for cause (decided by the judge) or peremptory (no reason given) by the lawyers; 6) swearing in the jurors who survive this process.
impeach v. 1) to discredit the testimony of a witness by proving that he/she has not told the truth or has been inconsistent, by introducing contrary evidence, including statements made outside of the courtroom in depositions or in statements of the witness heard by another. 2) to charge a public official with a public crime for which the punishment is removal from office.
impeachment n. 1) discrediting a witness by showing that he/she is not telling the truth or does not have the knowledge to testify as he/she did. 2) the trying of a public official for charges of illegal acts committed in the performance of public duty. It is not the conviction for the alleged crime nor the removal from office. It is only the trial itself.
impleader n. a procedural device before trial in which a party brings a third party into the lawsuit because that third party is the one who owes money to an original defendant, which money will be available to pay the original plaintiff. The theory is that two cases may be decided together and justice may be done more efficiently than having two suits in a series.
implied adj., adv. referring to circumstances, conduct or statements of one or both parties which substitute for explicit language to prove authority to act, warranty, promise, trust, agreement, consent or easement, among other things. Thus circumstances "imply" something rather than spell it out.
implied consent n. consent when surrounding circumstances exist which would lead a reasonable person to believe that this consent had been given, although no direct, express or explicit words of agreement had been uttered. Examples: a) a "contract" based on the fact that one person has been doing a particular thing and the other person expects him/her to continue; b) the defense in a "date rape" case in which there is a claim of assumed consent due to absence of protest or a belief that "no" really meant "yes," "maybe" or "later."
implied contract n. an agreement which is found to exist based on the circumstances when to deny a contract would be unfair and/or result in unjust enrichment to one of the parties. An implied contract is distinguished from an "express contract."
implied warranty n. an assumption at law that products are "merchantable," meaning they work and are useable as normally expected by consumers, unless there is a warning that they are sold "as is" or second-hand without any warranty. A grant deed of real property carries the implied warranty of good title, meaning the grantor (seller) had a title (ownership) to transfer.
impossibility n. when an act cannot be performed due to nature, physical impediments or unforeseen events. It can be a legitimate basis to rescind (mutually cancel) a contract.
impotence n. the male's inability to copulate. Impotence can be grounds for annulment of a marriage if the condition existed at the time of the marriage and grounds for divorce. It should not be confused with sterility, which means inability to produce children.
impound v. 1) to collect funds, in addition to installment payments, from a person who owes a debt secured by property, and place them in a special account to pay property taxes and insurance when due. This protects the lender or seller from the borrower's possible failure to keep up the insurance or a mounting tax bill which is a lien on the property. 2) to take away records, money or property, such as an automobile or building, by government action pending the outcome of a criminal prosecution. The records may be essential evidence, or the money or property may be forfeit to the state as in illegal drug cases.
improvement n. any permanent structure on real property, or any work on the property (such as planting trees) which increases its value.
impute v.(1) to attach to a person responsibility (and therefore financial liability) for acts or injuries to another, because of a particular relationship, such as mother to child, guardian to ward, employer to employee or business associates. Example: a 16-year-old boy drives his father's car without a license and runs someone down. The child's negligence may be imputed to the parent 2) to attribute knowledge and/or notice to a person only because of his/her relationship to the one actually possessing the information. Example: if a partner in a business is informed of something, that knowledge is imputed to his/her partner, and the partner is expected to have the information also
in absentia (in ab-sensh-ee-ah) adj. or adv. phrase. Latin for "in absence," or more fully, in one's absence. Occasionally a criminal trial is conducted without the defendant being present when he/she walks out or escapes after the trial has begun, since the accused has thus waived the constitutional right to face one's accusers.
in camera adj. or adv. phrase. Latin for "in chambers." This refers to a hearing or discussions with the judge in the privacy of his chambers (office rooms) or when spectators and jurors have been excluded from the courtroom.
in chambers adj. referring to discussions or hearings held in the judge's office, called his chambers. It is also called "in camera."
in extremis (in ex-tree-miss) adj. from Latin, facing imminent death.
in fee simple adj. referring to holding clear title to real property.
in forma pauperis (in form-ah paw-purr-iss) adj. or adv. Latin for "in the form of a pauper," referring to a party to a lawsuit who gets filing fees waived by filing a declaration of lack of funds (has no money to pay). These declarations are most often found in divorces by young marrieds or poor defendants who have been sued.
in haec verba (in hike verb-ah)prep. Latin for "in these words," which refers to stating the exact language of an agreement in a complaint or other pleading rather than attaching a copy of the agreement as an exhibit incorporated into the pleading.
in kind adj. referring to payment, distribution or substitution of things in lieu of money, a combination of goods and money, or money instead of an article. It is an expression often found in wills and trusts, which empowers the executor or trustee to make distribution to beneficiaries "in kind" according to his/her discretion as long as the value is equivalent to the value intended to be given to each beneficiary. This is important since it allows distribution of furniture, heirlooms, stocks and bonds, automobiles or even real property (as well as money) among the beneficiaries without selling assets to get cash.
in lieu prep. instead. "In lieu taxes" are use taxes paid instead of sales tax. A "deed in lieu of foreclosure" occurs when a debtor just deeds the property securing the loan to the lender rather than go through the foreclosure process.
in limine (in lim-in-ay) from Latin for "at the threshold," referring to a motion before a trial begins. A motion to suppress illegally obtained evidence is such a motion.
in loco parentis prep. (in loh-coh pah-rent-iss) Latin for "instead of a parent" or "in place of a parent," this phrase identifies a foster parent, a county custodial agency or a boarding school which is taking care of a minor, including protecting his/her rights.
in pari delicto adv. (in pah-ree dee-lick-toe) Latin for "in equal fault," which means that two (or more) people are all at fault or are all guilty of a crime. In contract law, if the fault is more or less equal then neither party can claim breach of the contract by the other; in an accident, neither can collect damages, unless the fault is more on one than the other under the rule of "comparative negligence"; in defense of a criminal charge, one defendant will have a difficult time blaming the other for inducing him or her into the criminal acts if the proof is that both were involved.
in perpetuity adj. forever, as in one's right to keep the profits from the land in perpetuity.
in personam adj. (in purr-soh-nam) from Latin for "directed toward a particular person." In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an "in personam judgment." In personam is distinguished from in rem, which applies to property or "all the world" instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.
in pro per adj. short for in propria persona
in propria persona adj. from Latin "for one's self," acting on one's own behalf, generally used to identify a person who is acting as his/her own attorney in a lawsuit. The popular abbreviation is "in pro per." In the filed legal documents (pleadings), the party's name, address and telephone number are written where the name, address and telephone number of the attorney would normally be stated. The words "in propria persona" or "in pro per" are typed where normally it would say "attorney for plaintiff".
in re prep. short for "in regard to" or concerning. Often "in re" is found near the top of lawyers' letters to identify the subject matter, as "In re Estate of Rohit Bajaj". It is also used in naming legal actions in which there is only one party, the petitioning party.
in rem adj. from Latin "against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. Thus, if title to property is the issue, the action is "in rem." The term is important since the location of the property determines which court has jurisdiction and enforcement of a judgment must be upon the property and does not follow a person. "In rem" is different from "in personam," which is directed toward a particular person.
in terrorem clause (in tehr-roar-em)n. from Latin for "in fear," a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off, instead of getting the full gift provided in the will. The clause is intended to discourage beneficiaries from causing a legal ruckus after the will writer is gone. However, if the will is challenged and found to be invalid (due to lack of mental capacity, undue influence or failure to have it properly executed), then such a clause also fails. So a prospective challenger takes his/her chances. The courts have ruled that merely putting in a claim for moneys due from the estate is not a legal challenge to the will itself and is permissible without losing the gift.
in toto (in toe-toe)adj. Latin for "completely" or "in total," referring to the entire thing, as in "the goods were destroyed in toto," or "the case was dismissed in toto."
incapacity adj. 1) not being able to perform any gainful employment due to congenital disability, illness (including mental), physical injury, advanced age or intellectual deficiency. This is significant in claims for worker's compensation, or in disability insurance. 2) lacking the ability to understand one's actions in making a will, executing some other document or entering into an agreement. A challenge to the validity of a will often turns on a claim that the person (now dead and unable to testify) lacked the capacity to understand what he/she owned, who were the "natural objects of his/her bounty" (close relatives primarily), that no one was able to dominate the testator's (will writer's) judgment so as to exert "undue influence." Mental weakness may show lack of capacity to make a will, as can fear, intimidation or persistent drunkenness. Example: an old lady is kept well supplied with whiskey for several months by her greedy sisters, who finally convince her to change the will from benefitting her children to benefitting them when she is drunk and fearful they will cut off her supply. A court would probably find she had lacked capacity to decide to make the latest version of the will.
incest n. sexual intercourse between close blood relatives, including brothers and sisters, parents and children, grandparents and grandchildren, or aunts or uncles with nephews or nieces. However, it is often co-existent with sexual abuse since usually the younger person is a victim of the predatory sexual activities of an older relative.
inchoate adj. or adv. referring to something which has begun but has not been completed, either an activity or some object which is incomplete. It may define a potential crime like a conspiracy which has been started but not perfected or finished (buying the explosives, but not yet blowing up the bank safe), a right contingent on an event (receiving property if one outlives the grantor of the property) or a decision or idea which has been only partially considered, such as a contract which has not been formalized.
incidental beneficiary n. someone who obtains a benefit as the result of the main purpose of the trust. Example: the co-owner of property with a named beneficiary may benefit from moneys provided to improve the building they jointly own, or a grandchild might benefit from his/her parent receiving a gift which could be used by the entire family, or which he/she may inherit from the parent.
income n. money, goods or other economic benefit received. Under income tax laws, income can be "active" through one's efforts or work (including management) or "passive" from rentals, stock dividends, investments and interest on deposits in which there is neither physical effort nor management. For tax purposes, income does not include gifts and inheritances received. Taxes are collected based on income by the government.
income tax n. a tax on an individual's net income, after deductions for various expenses and payments such as charitable gifts, calculated on a formula which takes into consideration whether it is paid jointly by a married couple, the number of dependents of the taxpayers, special breaks for disabilities and other factors.
incompatibility n. the state of a marriage in which the spouses no longer have the mutual desire to live together and/or stay married, and is thus a ground for divorce (dissolution) even though one spouse may disagree.
incompatible adj. 1) inconsistent. 2) unmatching. 3) unable to live together as husband and wife due to irreconcilable differences. In no-fault divorce states, if one of the spouses desires to end the marriage, that fact proves incompatibility, and a divorce (dissolution) will be granted even though the other spouse does not want a divorce. The term also has the general meaning that two people do not get along with each other.
incompetency n. the condition of lacking the ability to handle one's affairs due to mental or physical incapacity. Before a condition of incompetency is officially declared by a court, a hearing must be held with the person who is involved interviewed by a court investigator; the person must be present and/or represented by an attorney.
incompetent adj. 1) referring to a person who is not able to manage his/her affairs due to mental deficiency (low I.Q., deterioration, illness or psychosis) or sometimes physical disability. Being incompetent can be the basis for appointment of a guardian or conservator (after a hearing in which the party who may be found to be incompetent has been interviewed by a court investigator and is present and/or represented by an attorney) to handle his/her person and/or affairs (often called "estate"). 2) in criminal law, the inability to understand the nature of a trial. In these cases the defendant is usually institutionalized until such time as he/she regains sanity and can be tried. 3) a generalized reference to evidence which cannot be introduced because it violates various rules against being allowed, particularly because it has no bearing on the case. It may be irrelevant (not sufficiently significant) or immaterial (does not matter to the issues).
incompetent evidence n. testimony, documents or things which one side attempts to present as evidence during trial, which the court finds (usually after objection by the opposition) are not admissible because they are irrelevant or immaterial to the issues in the lawsuit. Thus, trial lawyers often object with: "incompetent, irrelevant and immaterial," figuring that covers the waterfront of most objections.
incontrovertible evidence n. evidence introduced to prove a fact in a trial which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint which shows someone had been present in a room, or a blood test which scientifically proves that a person is not the parent of a child.
incorporate v. 1) to obtain an official charter or articles of incorporation from the state for an organization, which may be a profit-making business, a professional business such as a law office or medical office or a non-profit entity which operates for charitable, social, religious, civic or other public service purposes. The process includes having one or more incorporators, choose a name not currently used by (nor confusingly similar to) any corporation, prepare articles, determine who will be responsible for accepting service of process, decide on the stock structure, adopt a set of bylaws, file the articles of incorporation, and hold a first meeting of incorporators to launch the enterprise. Other steps follow such as electing a board of directors, selecting officers, issuing stock according to law and, if there is going to be a stock offering to the public, following the regulations of the SEBI. 2) to include into a unit.
incorporate by reference v. to include language from another document or elsewhere in a document by reference rather than repeat it. Typical language: "Plaintiff incorporates by reference all of the allegations contained in the First and Second Causes of Action hereinabove stated."
incorporation n. the act of incorporating an organization.
incorporeal adj. referring to a thing which is not physical, such as a right. This is distinguished from tangible.
incriminate v. to make a statement in which one admits that he/she has committed a crime or gives information that another named person has committed a crime.
incumbrance n. See also: encumbrance
indecent exposure n. the crime of displaying one's genitalia to one or more other people in a public place, usually with the apparent intent to shock the unsuspecting viewer and give the exposer a sexual charge.
indefeasible adj. cannot be altered or voided, usually in reference to an interest in real property.
indemnify v. to guarantee against any loss which another might suffer. Example: two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless.
indemnity n. the act of making someone "whole" (give equal to what they have lost) or protected from (insured against) any losses which have occurred or will occur.
indenture n. a type of real property deed in which two parties agree to continuing mutual obligations. One party may agree to maintain the property, while the other agrees to make periodic payments. 2) a contract binding one person to work for another. 3) v. to bind a person to work for another.
independent contractor n. a person or business which performs services for another person or entity under a contract between them, with the terms spelled out such as duties, pay, the amount and type of work and other matters. An independent contractor is distinguished from an employee, who works regularly for an employer. The exact nature of the independent contractor's relationship with the party hiring him/her/it has become vital since an independent contractor pays his/her/its own income taxes without payroll deduction, has no retirement or health plan rights, and often is not entitled to worker's compensation coverage. An independent contractor must be able to determine when and where work is performed, be able to work for others, provide own equipment and other factors which are indicative of true independence.
indeterminate sentence n. the prison term imposed after conviction for a crime which does not state a specific period of time or release date, but just a range of time, such as "five-to-ten years." It is one side of a continuing debate as to whether it is better to make sentences absolute (subject to reduction for good behavior) without reference to potential rehabilitation, modification or review in the future.
indicia n. (in-dish-yah) from Latin for "signs," circumstances which tend to show or indicate that something is probable. It is used in the form of "indicia of title," or "indicia of partnership," particularly when the "signs" are items like letters, certificates or other things that one would not have unless the facts were as the possessor claimed.
indictable offense n. a crime (offense) for which a Grand Jury rules that there is enough evidence to charge a defendant with a felony. These crimes include murder, manslaughter, rape, kidnapping, grand theft, robbery, burglary, arson, conspiracy, fraud and other major crimes, as well as attempts to commit them.
indictment n. a charge of a felony (serious crime) voted by a Grand Jury based upon a proposed charge, witnesses' testimony and other evidence presented by the public prosecutor.. To bring an indictment the Grand Jury will not find guilt, but only the probability that a crime was committed, that the accused person did it and that he/she should be tried. If the judge finds there is enough evidence, he/she will order the case sent to the appropriate court for trial.
indigent 1) n. a person so poor and needy that he/she cannot provide the necessities of life (food, clothing, decent shelter) for himself/herself. 2) n. one without sufficient income to afford a lawyer for defense in a criminal case. If the court finds a person is an indigent, the court must appoint a public defender or other attorney to represent him/her. 3) adj. referring to a person who is very poor and needy.
indispensable party n. a person or entity which must be included in a lawsuit so that the court can make a final judgment or order that will conclude the controversy.
indorsement n. See also: endorsement
infancy n. although the popular use of the word means the early years of age in law, it is under-age or minority. Historically this meant under 21 years, but statutes adopted end minority and infancy at 18. An "infant" cannot file a lawsuit without a "guardian ad litem" (one-purpose guardian) acting for him/her, cannot enter into a contract that is enforceable during his/her minority.
inference n. a rule of logic applied to evidence in a trial, in which a fact is "proved" by presenting other "facts" which lead to only one reasonable conclusion-that if A and B are true, then C is. The process is called "deduction" or "deductive reasoning" and is a persuasive form of circumstantial evidence.
information n. an accusation or criminal charge brought by the public prosecutor without a Grand Jury indictment. This "information" must state the alleged crimes in writing and must be delivered to the defendant at the first court appearance (arraignment). If the accusation is for a felony, there must be a preliminary hearing within a short period in which the prosecution is required to present enough evidence to convince the judge holding the hearing that the crime or crimes charged were committed and the defendant is likely to have committed them. If the judge becomes convinced, the defendant must face trial, and if the judge does not, the case against the defendant is dismissed. Sometimes it is a mixed bag, in that some of the charges in the information are sufficient for trial and the case is sent (remanded) to the appropriate court, and some are dismissed.
information and belief n. a phrase often used in legal pleadings (complaints and answers in a lawsuit), declarations under penalty of perjury, and affidavits under oath, in which the person making the statement or allegation qualifies it. In effect, he/she says: "I am only stating what I have been told, and I believe it." This makes clear about which statements he/she does not have sure-fire, personal knowledge (perhaps it is just hearsay or surmise) and protects the maker of the statement from claims of outright falsehood or perjury. The typical phraseology is: "Plaintiff is informed and believes, and upon such information and belief, alleges that defendant diverted the funds to his own use".
informed consent n. agreement to do something or to allow something to happen only after all the relevant facts are known. In contracts, an agreement may be reached only if there has been full disclosure by both parties of everything each party knows which is significant to the agreement. A patient's consent to a medical procedure must be based on his/her having been told all the possible consequences, except in emergency cases when such consent cannot be obtained. A physician or dentist who does not tell all the possible bad news as well as the good, operates at his/her peril of a lawsuit if anything goes wrong. In criminal law, a person accused or even suspected of a crime cannot give up his/her legal rights such as remaining silent or having an attorney, unless he/she has been fully informed of his/her rights.
infra prep. Latin for "below," this is legal shorthand to indicate that the details or citation of a case will come later on in the brief. Infra is distinguished from supra, which shows that a case has already been cited "above".
infringement n. 1) a trespassing or illegal entering. 2) in the law of patents (protected inventions) and copyrights (protected writings or graphics), the improper use of a patent, writing, graphic or trademark without permission, without notice, and especially without contracting for payment of a royalty. Even though the infringement may be accidental (an inventor thinks he is the first to develop the widget although someone else has a patent), the party infringing is responsible to pay the original patent or copyright owner substantial damages, which can be the normal royalty or as much as the infringers' accumulated gross profits.
ingress 1) n. entrance. 2) n. the right to enter. 3) v. the act of entering. Often used in the combination "ingress and egress," which means entering and leaving, to describe one's rights to come and go under an easement over another's property.
inherit v. to receive all or a portion of the estate of an ancestor upon his/her death, usually from a parent or other close relative pursuant to the laws of descent. Technically, one would "inherit" only if there is no will, but popularly it means any taking from the estate of a relative, including a wife or husband, by will or not.
inheritance n. whatever one receives upon the death of a relative due to the laws of descent and distribution, when there is no will. However, inheritance has come to mean anything received from the estate of a person who has died, whether by the laws of descent or as a beneficiary of a will or trust.
injunction n. a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to a) petition for the injunction to protect his/her rights; to b) get an "order to show cause" from the judge telling the other party to show why the injunction should not be issued; c) serve (personally delivered) the order to show cause on the party whom he/she wishes to have ordered to act or be restrained ("enjoined"); partake in a hearing in which both sides attempt to convince the judge why the injunction should or should not be granted. If there is danger of immediate irreparable harm at the time the petition is filed, a judge may issue a temporary injunction which goes into effect upon it being served (deliver or have delivered) to the other party. This temporary injunction will stay in force until the hearing or sometimes until the outcome of a lawsuit is decided in which an injunction is one of the parts of the plaintiff's demands. A final and continuing injunction is called a permanent injunction. Examples of injunctions include prohibitions against cutting trees, creating nuisances, polluting a stream, or removing funds from a bank account pending determination of ownership. So-called "mandatory" injunctions which require acts to be performed, may include return of property, keeping a gate to a road unlocked, clearing off tree limbs from a right-of-way, turning on electricity or heat in an apartment building, or depositing disputed funds with the court.
injunctive relief n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Such an act is the use of judicial (court) authority to handle a problem and is not a judgment for money. Whether the relief will be granted is usually argued by both sides in a hearing rather than in a full-scale trial, although sometimes it is part of a lawsuit for damages and/or contract performance. Historically, the power to grant injunctive relief stems from English equity courts rather than damages from law courts.
injury n. any harm done to a person by the acts or omissions of another. Injury may include physical hurt as well as damage to reputation or dignity, loss of a legal right or breach of contract. If the party causing the injury was either willful (intentionally causing harm) or negligent then he/she is responsible (liable) for payment of damages for the harm caused. Theoretically, potential or continuing injury may be prevented by an order of the court upon a petition for an injunction.
innocent adj. without guilt (not guilty). Usually the plea which an accused criminal defendant gives to the court at the time of his/her first appearance (or after a continued appearance). Such pleas often disturb the public in cases in which guilt seems obvious from the start. However, everyone is entitled to a fair trial, and the innocent plea gives defense lawyers an opportunity to investigate, find extenuating circumstances, develop reasons punishment should be lenient, and let the memories of witnesses fade.
innuendo n. from Latin innuere, "to nod toward." In law it means "an indirect hint." "Innuendo" is used in lawsuits for defamation (libel or slander), usually to show that the party suing was the person about whom the nasty statements were made or why the comments were defamatory.
inquest n. an investigation and/or a hearing held by the coroner (a county official) when there is a violent death either by accident or homicide, the cause of death is not immediately clear, there are mysterious circumstances surrounding the death, or the deceased was a prisoner. Usually an autopsy by a qualified medical examiner from the coroner's office is a key part of the inquest. In rare cases a jury may be used to determine the cause of death.
insanity n. mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject to uncontrollable impulsive behavior. Insanity is distinguished from low intelligence or mental deficiency due to age or injury. If a complaint is made to law enforcement, or to medical personnel that a person is evidencing psychotic behavior, he/she may be confined to a medical facility long enough to be examined by psychiatrists who submit written reports to the local court. A hearing is then held before a judge, with the person in question entitled to legal representation, to determine if she/he should be placed in an institution or special facility. The person ordered institutionalized at the hearing may request a trial to determine sanity. Particularly since the original hearings are often routine with the psychiatric findings accepted by the judge. In criminal cases, a plea of "not guilty by reason of insanity" will require a trial on the issue of the defendant's insanity (or sanity) at the time the crime was committed. In these cases the defendant usually claims "temporary insanity" (crazy then, but okay now). The traditional test of insanity in criminal cases is whether the accused knew "the difference between right and wrong," following the "M'Naughten rule" from 19th century England. A claim by a criminal defendant of his/her insanity at the time of trial requires a separate hearing to determine if a defendant is sufficiently sane to understand the nature of a trial and participate in his/her own defense. If found to be insane, the defendant will be ordered to a mental facility, and the trial will be held only if sanity returns.
insanity defense n. the claim of a defendant in a criminal prosecution that he/she was insane when the crime was committed, usually only temporarily.
insertion n. the addition of language at a place within an existing typed or written document, which is always suspect unless initialled by all parties.
insider n. someone who has a position in a business or stock brokerage, which allows him/her to be privy to confidential information (such as future changes in management, upcoming profit and loss reports, secret sales figures and merger negotiations) which will affect the value of stocks or bonds. While there is nothing wrong with being an insider, use of the confidential information unavailable to the investing public in order to profit through sale or purchase of stocks or bonds is unethical and a crime under the Securities and Exchange Act.
insider trading n. the use of confidential information about a business gained through employment in a company or a stock brokerage, to buy and/or sell stocks and bonds based on the private knowledge that the value will go up or down. The victims are the unsuspecting investing public.
insolvency n. 1) the condition of having more debts (liabilities) than total assets which might be available to pay them, even if the assets were mortgaged or sold. 2) a determination by a bankruptcy court that a person or business cannot raise the funds to pay all of his/her debts. The court will then "discharge" (forgive) some or all of the debts, leaving those creditors holding the bag and not getting what is owed them. The supposedly insolvent individual debtor, even though found to be bankrupt, is allowed certain exemptions, which permit him/her to retain a car, business equipment, personal property and often a home as long as he/she continues to make payments on a loan secured by the property.
inspection of documents n. the right to examine and copy the opposing party's papers in a lawsuit which are relevant to the case. A demand (legal request) may be made, but the categories of documents must be stated so that the other party can know what he/she must produce. If the opposition either refuses to produce some documents or appears to hold back, the party wanting to see the documents can bring a "motion to produce" requesting a court order to produce and a penalty (sanctions) to be paid for failure to honor the demand. A party may also use a subpena duces tecum to obtain specific documents if they are known to exist. All of these procedures are part of the discovery process, intended to give both sides extensive pre-trial information. Such exchanges of documents can lead to settlement, minimize surprises at trial and keep one side from hiding material, thus preventing the other from being able to introduce relevant material at trial. However, it is well known that many law firms obfuscate, delay, pretend to misunderstand requests and fail to be forthcoming.
installment contract n. an agreement in which payments of money, delivery of goods or performance of services are to be made in a series of payments, deliveries or performances, usually on specific dates or upon certain happenings. One significance is that failure to pay an installment when due is a breach in which damages can be assessed based on the portion which has not been paid, and is an excuse for the other party not to perform further. In many installment contracts, failure to make a payment gives the seller of an article the right to repossess (take it back).
instruction n. an explanation of the law governing a case which the judge gives orally to the jury after the attorneys have presented all the evidence and have made final arguments, but before the jury begins deliberations.
instrument n. 1) a written legal document such as a contract, lease, deed, will or bond. 2) an object used to perform some task or action, ranging from a surgeon's scalpel to any hard thing used in an assault (a blunt instrument).
insufficient evidence n. a finding (decision) by a trial judge or an appeals court that the prosecution in a criminal case or a plaintiff in a lawsuit has not proved the case because the attorney did not present enough convincing evidence. Insufficient evidence usually results in dismissal of the case after the prosecution or the plaintiff has completed his/her introduction of evidence or, if on appeal, reversal of the judgment by the trial court.
insurance n. a contract (insurance policy) in which the insurer (insurance company) agrees for a fee (insurance premiums) to pay the insured party all or a portion of any loss suffered by accident or death. The losses covered by the policy may include property damage or loss from accident, fire, theft or intentional harm; medical costs and/or lost earnings due to physical injury; long-term or permanent loss of physical capacity; claims by others due to the insured's alleged negligence (e.g. public liability auto insurance); loss of a ship and/or cargo; finding a defect in title to real property; dishonest employees; or the loss of someone's life. Life insurance may be on the life of a spouse, a child, one of several business partners or an especially important manager ("key man" insurance), all of which is intended to provide for survivors or to ease the burden created by the loss of a financial contributor. So-called "mortgage" insurance is life insurance which will pay off the remaining amount due on a home loan on the death of the husband or wife.
insured n. 1) the person or entity who will be compensated for loss by an insurer under the terms of a contract called an insurance policy. 2) the person whose life is insured by life insurance, after whose death the benefits go to others.
insurer n. an insurance company which agrees to pay someone who pays them for insurance for losses suffered pursuant to the terms of an insurance policy. For this benefit the customer pays the company a fee, called a premium.
intangible property n. items such as stock in a company which represent value but are not actual, tangible objects.
intent n. mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent". Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime.
inter alia (in-tur eh-lee-ah) prep. Latin for "among other things". This phrase is often found in legal pleadings and writings to specify one example out of many possibilities. Example: "The judge said, inter alia, that the time to file the action had passed".
inter se (in-tur say)prep. Latin for "among themselves," meaning that, for instance, certain corporate rights are limited only to the shareholders or only to the trustees as a group.
inter vivos (in-tur veye-vohs) adj. Latin for "among the living", usually referring to the transfer of property by agreement between living persons and not by a gift through a will. It can also refer to a trust (inter vivos trust) which commences during the lifetime of the person (trustor or settlor) creating the trust as distinguished from a trust created by a will (testamentary trust), which comes into existence upon the death of the writer of the will.
inter vivos trust n. a trust created by a writing (declaration of trust) which commences at that time, while the creator (called a trustor or settlor) is alive, sometimes called a "living trust." The property is then placed in trust with a trustee (often the trustor during his/her lifetime) and distribution will take place according to the terms of the trust-possibly both during the trustor's lifetime and then upon the trustor's death. This is different from a testamentary trust, which is created by the terms of a will and places some assets from the dead person's estate in a trust to exist from the date of death and until fully distributed.
interest n. 1) any and all, partial or total right to property or for the use of property, including an easement to pass over a neighboring parcel of land, a possibility of acquiring title upon the happening of some event, or outright title. While most often referring to real property, one may have an interest in a business, a bank account or any article. 2) the financial amount (money) paid by someone else for the use of a person's money, as on a loan or debt, on a savings account in a bank, on a certificate of deposit, promissory note or the amount due on a judgment. Interest is usually stated in writing at the time the money is loaned. There are variable rates of interest, particularly on savings accounts which depend on funding from the Reserve or other banks and are controlled by the prevailing interest rates on those funds. Maximum interest rates on loans made by individuals are controlled by statute. To charge more than that rate is usury, the penalty for which may be the inability of a creditor to collect through the courts. The interest rates demanded by lending institutions are not so restricted. Simple interest is the annual rate charged for a loan, and compound interest includes interest upon interest during the year. 3) one's involvement in business, activities or with an individual which is sufficient to create doubt about a witness being objective-damaging his/her credibility. 4) one's involvement in business, activities or with an individual which is sufficient connection to give a person "standing" (the right based on interest in the outcome of the lawsuit or petition) to bring a lawsuit on a particular matter or act on behalf of other people.
interim order n. a temporary order of the court pending a hearing, trial, a final order or while awaiting an act by one of the parties.
interlineation n. the act of writing between the lines of a document, usually to add something that was omitted or thought of later. The issue (debated question) is whether both parties to a document (a contract, for example) had agreed upon the addition or whether the new words were part of the document (like a will) when it was signed. Good practice is either to have all parties initial the change at the point of the writing or have the document re-typed and then signed.
interlocutory adj. provisional and not intended to be final. This usually refers to court orders which are temporary.
interlocutory decree n. a court judgment which is temporary and not intended to be final until either a) other matters come before the judge, or b) there is a specified passage of time to determine if the interlocutory decree (judgment) is "working" (becomes accepted by both parties) and should become final.
international law n. treaties between countries; multi-lateral agreements; some commissions covering particular subjects, such as whaling or copyrights; procedures and precedents of the International Court of Justice ("World Court") which only has jurisdiction when countries agree to appear; the United Nations Charter; and custom. However, there is no specific body of law which governs the interaction of all nations.
interpleader n. the procedure when two parties are involved in a lawsuit over the right to collect a debt from a third party, who admits the money is owed but does not know which person to pay. The debtor deposits the funds with the court ("interpleads"), asks the court to dismiss him/her/it from the lawsuit and lets the claimants fight over it in court.
interrogation n. questioning of a suspect or witness by law enforcement authorities. Once a person being questioned is arrested (is a "prime" suspect), he/she is entitled to be informed of his/her legal rights, and in no case may the interrogation violate rules of due process.
interrogatories n. a set of written questions to a party to a lawsuit asked by the opposing party as part of the pre-trial discovery process. These questions must be answered in writing under oath or under penalty of perjury within a specified time. Normal practice is for the lawyers to prepare the questions and for the answering party to have help from his/her/its attorney in understanding the meaning (sometimes hidden) of the questions and to avoid wording in his/her answers which could be interpreted against the party answering. Objections as to relevancy or clarity may be raised either at the time the interrogatories are answered or when they are used in trial.
interstate commerce n. commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the government.
intervene v. to obtain the court's permission to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit. Such intervention will be allowed only if the party wanting to enter into the case has some right or interest in the suit and will not unduly prejudice the ability of the original parties to the lawsuit to conduct their case.
intervening cause n. an event which occurs between the original improper or dangerous action and the damage itself. Thus, the "causal connection" between the wrong and damages is broken by the intervening cause. This is a "but for" situation, in which the intervention becomes the real reason harm resulted. The result is that the person who started the chain of events is no longer responsible and will not be found liable for damages to the injured person.
intervention n. the procedure under which a third party may join an on-going lawsuit, providing the facts and the law issues apply to the intervenor as much as to one of the existing contestants. The determination to allow intervention is made by a judge after a petition to intervene and a hearing on the issue. Intervention must take place fairly early in the lawsuit, shortly after a complaint and answer have been filed and not just before trial since that could prejudice one or both parties who have prepared for trial on the basis of the original litigants. Intervention is not to be confused with joinder, which involves requiring all parties who have similar claims to join in the same lawsuit to prevent needless repetitious trials based on the same facts and legal questions, called multiplicity of actions.
intestacy n. the condition of having died without a valid will. In such a case if the dead party has property it will be distributed according to statutes, primarily by the law of descent and distribution and others dealing with marital property and community property. In probate the administration of the estate of a person without a will is handled by an administrator (usually a close relative, the spouse, a close associate) or a public administrator if there is no one willing to act, since there is no executor named in a will.
intestate adj. referring to a situation where a person dies without leaving a valid will. This usually is voiced as "he died intestate," "intestate estate," or "intestate succession".
intestate succession n. the distribution when a person dies without leaving a valid will and the spouse and heirs will take (receive the possessions) by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse.
intoxication n. 1) the condition of being drunk as the result of drinking alcoholic beverages and/or use of narcotics. In the eyes of the law this definition may differ depending on the situation to which it is applied. 2) as it applies to drunk driving, the standard of intoxication between .08 and .10 alcohol in the bloodstream, or a combination of alcohol and narcotics which would produce the same effect even though the amount of alcohol is below the minimum. 3) as it applies to public drunkenness the standard is subjective, meaning the person must be unable to care for himself, be dangerous to himself or others, be causing a disturbance or refuse to leave or move along when requested. 4) a defense in a criminal case in which the claim is made by the defendant that he/she was too intoxicated to form an intent to commit the crime or to know what he/she was doing, where the amount of intoxication is subjective but higher than for drunk driving. There is also the question if the intoxication was an intentional aforethought to the crime ("I wanted to get drunk so I had the nerve to kill her"). Unintentional intoxication can show lack of capacity to form an intent and thus reduce the possible level of conviction and punishment, as from voluntary (intentional) manslaughter down to involuntary (unintentional but through a wrongful act) manslaughter. However, in vehicular manslaughter, the intoxication is an element in the crime, whether getting drunk was intentional or not, since criminal intent was not a factor.
intrinsic fraud n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. This is distinguished from extrinsic fraud (collateral fraud) which was a deceptive means to keeping one from enforcing his/her legal rights.
inure v. result in. Commonly used in legal terminology in the phrase: "to inure to the benefit of John".
invasion of privacy n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. However, public personages are not protected in most situations, since they have placed themselves already within the public eye, and their activities (even personal and sometimes intimate) are considered newsworthy, i.e. of legitimate public interest. However, an otherwise non-public individual has a right to privacy from: a) intrusion on one's solitude or into one's private affairs; b) public disclosure of embarrassing private information; c) publicity which puts him/her in a false light to the public; d) appropriation of one's name or picture for personal or commercial advantage. Lawsuits have arisen from magazine articles on obscure geniuses, use of a wife's name on a hospital insurance form to obtain insurance payment for delivery of a mistress's baby, unauthorized use of a girl's photo to advertise a photographer, and "tabloid" journalism treatment of people as freaks.
inverse condemnation n. the taking of property by a government agency which so greatly damages the use of a parcel of real property that it is the equivalent of condemnation of the entire property. Thus the owner claims he/she is entitled to payment for the loss of the property (in whole or in part) under the constitutional right to compensation for condemnation of property under the government's eminent domain right.
invest v. to put money into a business or buy property or securities for the purpose of eventually obtaining a profit. This is distinguished from a gift or a loan made merely to accommodate a friend or taking a complete gamble.
investment n. the money put into use for profit, or the property or business interest purchased for profit.
invitee n. a person who comes onto another's property, premises or business establishment upon invitation. The invitation may be direct and express or "implied," as when a shop is open and the public is expected to enter to inspect, purchase or otherwise do business on the premises. It may be legally important, because an invitee is entitled to assume safe conditions on the property or premises, so the owner or proprietor might be liable for any injury suffered by the invitee while on the property due to an unsafe condition which is not obvious to the invitee (a latent defect) and not due to the invitee's own negligence. An invitee is distinguished from a trespasser who cuts across the owner's vacant lot, or a burglar who falls through a faulty skylight. Examples of failures unexpected by an invitee: a person falls through a covered-over well, faulty stairs, weak floors, slippery floors on rainy days, spills of jam which are not promptly cleaned up although known to the management, lack of adequate security guards to protect against muggers, and various careless acts of retail employees.
involuntary adj. or adv. without intent, will or choice. Participation in a crime is involuntary if forced by immediate threat to life or health of oneself or one's loved ones and will result in dismissal or acquittal.
ipse dixit (ip-sah dicks-it) v. Latin for "he himself said it," meaning the only proof we have of the fact is that this person said it.
ipso facto (ip-soh fact-toe)prep. Latin for "by the fact itself". A simple example: "a blind person, ipso facto, is not entitled to a driver's license".
irreconcilable differences n. the usual basis for granting a divorce (dissolution). If one party says the marriage is irretrievable and refuses to reconcile then such differences are proved to exist.
irrelevant adj. not important, pertinent, or germane to the matter at hand or to any issue before the court. This is the most common objection raised by attorneys to questions asked or to answers given during testimony in a trial. The objection is made as soon as an alert attorney believes the opposition is going into matters which are not concerned with the facts or outside the issues of the lawsuit. It is often stated in the trio: "Irrelevant, immaterial and incompetent" to cover the bases. The judge must then rule on the relevancy of the question. If the question has been answered before the lawyer could say "objection," the judge may order that answer stricken from the record. Blotting it from a jury's memory or conscience, though, is impossible.
irreparable damage or injury n. the type of harm which no monetary compensation can cure or put conditions back the way they were, such as cutting down shade trees, polluting a stream, not giving a child needed medication, not supporting an excavation which may cause collapse of a building, tearing down a structure, or a host of other actions or omissions. The phrase must be used to claim that a judge should order an injunction, writ, temporary restraining order or other judicial assistance, generally known as equitable relief. Such relief is a court order of positive action, such as prohibiting pollution or requiring the shoring up of a defective wall.
issue 1) n. a person's children or other lineal descendants such as grandchildren and great-grandchildren. It does not mean all heirs, but only the direct bloodline. Occasionally, there is a problem in determining whether a writer of a will or deed meant issue to include descendants beyond his or her immediate children. While a child or children are alive, issue refers only to them, but if they are deceased then it will apply to the next living generation unless there is language in the document which shows it specifically does not apply to them. 2) n. any matter of dispute in a legal controversy or lawsuit, very commonly used in such phrases as "the legal issues are," "the factual issues are," "this is an issue which the judge must decide," or "please, counsel, let us know what issues you have agreed upon." 3) v. to send out, promulgate, publish or make the original distribution, such as a corporation selling and distributing shares of stock to its initial investors. 4) n. the shares of stock or bonds of a corporation which have been sold and distributed.
j n. abbreviation for Judge
jd n. short for Juris Doctor, identifying the holder as having received that law degree.
jeopardy n. peril, particularly danger of being charged with or convicted of a particular crime. Once a person has been acquitted, he/she may not be charged again for that crime. However, if there was a mistrial, hung jury or reversal of conviction on appeal (but the defendant was not declared innocent in the ruling), the defendant may be charged with the crime again and tried again.
jobber n. a merchant who buys products (usually in bulk or lots) and then sells them to various retailers. This middleman generally specializes in specific types of products, such as auto parts, electrical and plumbing materials, or petroleum. A jobber differs from a broker or agent, who buys and acts for specific clients.
joinder n. the joining together of several lawsuits or several parties all in one lawsuit, provided that the legal issues and the factual situation are the same for all plaintiffs and defendants. Joinder requires a) that one of the parties to one of the lawsuits make a motion to join the suits and the parties in a single case; b) notice must be made to all parties; c) there must be a hearing before a judge to show why joinder will not cause prejudice (hurt) to any of the parties to the existing lawsuits; and d) an order of the judge permitting joinder. Joinder may be mandatory if a person necessary to a fair result was not included in the original lawsuit, or it may be permissive if joining the cases together is only a matter of convenience or economy.
joinder of issue n. that point in a lawsuit when the defendant has challenged (denied) some or all of plaintiff's allegations of facts, and/or when it is known which legal questions are in dispute. This is stated in the expression: "the issue is joined," in the same manner as a military man would say: "the battle has been joined," meaning the fight is underway. Thus, the pre-trial legal underbrush has been cleared away, the motions made, and the pre-trial discovery (depositions, requests for documents, written questions and answers, and other demands for information) sufficiently completed, all of which makes clear what matters are to be decided by trial.
joint adventure n. when two or more people go together on a trip or some other action, not necessarily for profit, which may make them all liable for an accident or debt arising out of the activity.
joint and several adj. referring to a debt or a judgment for negligence, in which each debtor (one who owes) or each judgment defendant (one who has a judgment against him/her) is responsible (liable) for the entire amount of the debt or judgment. Thus, in drafting a promissory note for a debt, it is important to state that if there is more than one person owing the funds to be paid, the debt is joint and several, since then the person owed money (creditor, promisee) can collect the entire amount from any of the joint signers of the note, and not be limited to a share from each debtor. If a party injured in an accident sues several parties for causing his/her damages, the court may find that several people were "jointly" negligent and contributed to the damages. The entire judgment may be collected from any of the defendants found responsible, unless the court finds different amounts of negligence of each defendant contributed to the injury. Defense attorneys should require the trier of fact (jury or judge sitting without a jury) to break down the amount of negligence of each defendant and the plaintiff if there is contributory negligence. Often the court will refuse to do so, allowing the plaintiff to collect from whichever defendant has the "deep pocket" (lots of money), and letting the defendant who pays demand contributions from the other defendants.
joint custody n. in divorce actions, a decision by the court (often upon agreement of the parents) that the parents will share custody of a child. There are two types of custody, physical and legal. Joint physical custody (instead of one parent having custody with the other having visitation), does not mean exact division of time with each parent, but can be based on reasonable time with each parent either specifically spelled out (certain days, weeks, holidays, alternative periods) or based on stated guidelines and shared payment of costs of raising the child. Joint legal custody means that both parents can make decisions for the child, including medical treatment, but where possible they should consult the other. Upon the death or disability of either parent, legal custody will go to the remaining parent and will give the active parent the sole ability to act as parent for the child without further order of the court. The primary affect of this is a psychological benefit for the parent and the child, so that a child can be told that both parents cared for the child, even though the child had to live most of the time with one of them.
joint enterprise n. a generic term for an activity of two or more people, usually (but not necessarily) for profit, which may include partnership, joint venture or any business in which more than one person invests, works, has equal management control and/or is otherwise involved for an agreed upon goal or purpose. One significant factor is that if a court finds that two or more people are involved in a joint enterprise and there is negligent damage to an outside party by any one of the enterprisers, or breach of a contract made by the joint enterprise, each of those who are part of the enterprise will be liable for all the damages to the party. However, not all joint enterprises are partnerships or joint ventures, although the terms are often used improperly as if they were synonymous.
joint liability n. when two or more persons are both responsible for a debt, claim or judgment. It can be important to the person making the claim, as well as to a person who is sued, who can demand that anyone with joint liability for the alleged debt or claim for damages be joined in (brought into) the lawsuit.
joint powers agreement n. a contract between a city, a county and/or a special district in which the city or county agrees to perform services, cooperate with, or lend its powers to the special district or other government entity.
joint tenancy n. a crucial relationship in the ownership of real property, which provides that each party owns an undivided interest in the entire parcel, with both having the right to use all of it and the right of survivorship, which means that upon the death of one joint tenant, the other has title to it all. Procedurally, on the death of one joint tenant, title in the survivor is completed by recording an "affidavit of death of joint tenant," describing the property and the deceased tenant, with a death certificate attached, all of which is sworn to by the surviving joint tenant. This process avoids probate of the property, but may have some tax consequences which should be explored with an accountant at the time of recording the original deed. If the owners do not want full title to the property to pass to the survivor, then joint tenancy should not be used. Joint tenancy (as well as any other common ownership) between a parent and a minor child should be avoided since the property cannot be transferred in the future without the parent becoming appointed a guardian of the child's estate by court order, and the property and the proceeds therefrom will be under court control until the child is 18.
joint tortfeasors n. two or more persons whose negligence in a single accident or event causes damages to another person. In many cases the joint tortfeasors are jointly and severally liable for the damages, meaning that any of them can be responsible to pay the entire amount, no matter how unequal the negligence of each party was.
joint venture n. an enterprise entered into by two or more people for profit, for a limited purpose, such as purchase, improvement and sale or leasing of real estate. A joint venture has most of the elements of a partnership, such as shared management, the power of each venturer to bind the others in the business, division of profits and joint responsibility for losses. However, unlike a partnership, a joint venture anticipates a specific area of activity and/or period of operation, so after the purpose is completed, bills are paid, profits (or losses) are divided, and the joint venture is terminated.
judge 1) n. an official with the authority and responsibility to preside in a court, try lawsuits and make legal rulings. Judges are almost always attorneys. 2) v. to rule on a legal matter, including determining the result in a trial if there is no jury.
judge advocate n. a military officer with legal training who has the mixed duties of giving advice on legal matters to the group of officers sitting as a court-martial (both judge and jury) and acting as the prosecutor of the accused serviceman or woman. A judge advocate holds responsibility to protect the accused from procedural improprieties such as questions from the members of the court which might incriminate the accused in violation of the Constitution. The accused person also has a military officer as counsel, who may not be an attorney.
judge advocate general (J.A.G.) n. a military officer who advises the government on courts-martial and administers the conduct of courts-martial. The officers who are judge advocates and counsel assigned to the accused come from the office of the judge advocate general or are appointed by it to work on certain courts-martial.
judgment n. the final decision by a court in a lawsuit, criminal prosecution or appeal from a lower court's judgment, except for an "interlocutory judgment," which is tentative until a final judgment is made. The word "decree" is sometimes used as synonymous with judgment.
judgment by default n. See also: default judgment
judgment creditor n. the winning plaintiff in a lawsuit to whom the court decides the defendant owes money. A judgment creditor can use various means to collect the judgment. The judgment is good for a specified number of years and then may be renewed by a filed request. If the defendant debtor files for bankruptcy, the judgment creditor will have priority (the right to share in assets) ahead of general creditors who are not secured by mortgages or deeds of trust and do not have judgments. However, if the bankrupt person has no assets, this becomes an empty advantage.
judgment debt n. the amount of money in a judgment award to the winning party, which is owed to the winner by the losing party.
judgment debtor n. the losing defendant in a lawsuit who owes the amount of the judgment to the winner.
judicial adj., adv. 1) referring to a judge, court or the court system. 2) fair.
judicial discretion n. the power of the judge to make decisions on some matters without being bound by precedent or strict rules established by statutes. On appeal a higher court will usually accept and confirm decisions of trial judges when exercising permitted discretion, unless capricious, showing a pattern of bias, or exercising discretion beyond his/her authority.
judicial foreclosure n. a judgment by a court in favor of foreclosure of a mortgage or deed of trust, which orders that the real property which secured the debt be sold under foreclosure proceedings to pay the debt. The party suing probably has chosen to seek a judicial foreclosure rather than use the foreclosure provisions of the mortgage or deed of trust. Usually this move is made to get a "deficiency judgment" for any amount still owed after the foreclosure sale.
judicial notice n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact.
judicial proceedings n. any action by a judge re: trials, hearings, petitions or other matters formally before the court.
judicial sale n. a sale of goods by an official (keeper, trustee) appointed by the court and ordered by a court, usually to satisfy a judgment or implement another order of the court. Such sales require public notice of time, place and a description of the goods to be sold.
jump bail v. to fail to appear for a court appearance after depositing (posting) bail with the intention of avoiding prosecution, sentencing or going to jail. Posting bail guarantees that the accused person will give up the money if he/she does not show up in court. It allows the accused person to remain free pending the final decision on his/her criminal case. In some circumstances a criminal defendant can be declared to have jumped bail even before missing an appearance in court, if it is discovered he/she has left the country, disappeared or made plans to flee. At that point the court can revoke the bail and issue a warrant for the defendant's arrest. It is also called "skipping" bail.
jurat (jur-at) n. Latin for "been sworn," the portion of an affidavit in which a person has sworn that the contents of his/her written statement are true, filled in by the notary public with the date, name of the person swearing, sometimes the place where sworn, and the name of the person before whom the oath was made. A jurat is not to be confused with an "acknowledgment" in which the signer of a document such as a deed to real property has sworn to the notary public that he/she executed the document, and the notary signs and seals the document to that effect.
jurisdiction n. the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. It is vital to determine before a lawsuit is filed which court has jurisdiction.
jurisdictional amount n. the range between the minimum and maximum amount of money or value in dispute in a lawsuit (generally based on the amount demanded in the lawsuit), which determines which court has jurisdiction to try the case.
jurisprudence n. the entire subject of law, the study of law and legal questions.
jurist n. although it means any attorney or legal scholar, jurist popularly refers to a judge.
juror n. any person who actually serves on a jury. Lists of potential jurors are chosen from various sources such as registered voters. The names are drawn by lot (more often by computer random selection) and requested to appear for possible service. Before a trial begins the names of jurors are assigned to a trial court, and a further selection process is made. A member of a Grand Jury is called a grand juror.
jury n. one of the remarkable innovations of the English common law (from the Angles and Saxons, but also employed in Normandy prior to the Norman Conquest in 1066), it is a group of citizens called to hear a trial of a criminal prosecution or a lawsuit, decide the factual questions of guilt or innocence or determine the prevailing party (winner) in a lawsuit and the amount to be paid, if any, by the loser. Once selected, the jury is sworn to give an honest and fair decision.
jury box n. the enclosed area in which the jury sits in assigned seats during a jury trial.
jury fees n. the rather minimal amount paid each day to jurors. In criminal trials this amount is paid by the government, but in civil lawsuits the jury fees are paid by the parties to the lawsuit in equal amounts. It is important for a party requesting a jury trial to deposit ("post") the first day's jury fees with the clerk of the court a set time in advance of the trial date, or the right to a jury trial may be lost on the basis that he/she/it has "waived" the right to a jury. The winner of the lawsuit (prevailing party) is usually entitled to reimbursement (payment by the loser) of jury fees as a court cost.
jury of one's peers n. a guaranteed right of criminal defendants, in which "peer" means an "equal." This has been interpreted by courts to mean that the available jurors include a broad spectrum of the population, particularly of race, national origin and gender. Jury selection may include no process which excludes those of a particular race or intentionally narrows the spectrum of possible jurors. See also: jury
jury panel n. the list from which jurors for a particular trial may be chosen.
jury selection n. the means by which a jury is chosen, with a panel of potential jurors called, questioning of the jury by the judge and attorneys (voir dire), dismissal for cause, peremptory challenges by the attorneys without stating a cause and finally impaneling of the jury.
jury stress n. a form of mental, emotional, psychological, physical and sexual tension found to affect juries in long trials due to exhaustion, sequestration, the mountain of evidence and the desire to do the right thing.
jury tampering n. the crime of attempting to influence a jury through any means other than presenting evidence and argument in court, including conversations about the case outside the court, offering bribes, making threats or asking acquaintances to intercede with a juror.
jury trial n. a trial of a lawsuit or criminal prosecution in which the case is presented to a jury and the factual questions and the final judgment are determined by a jury. This is distinguished from a "court trial" in which the judge decides factual as well as legal questions, and makes the final judgment.
just compensation n. 1) in general a fair and reasonable amount of money to be paid for work performed or to make one "whole" after loss due to damages. 2) the full value to be paid for property taken by the government for public purposes.
justice n. 1) fairness. 2) moral rightness. 3) a scheme or system of law in which every person receives his/her/its due from the system, including all rights, both natural and legal. One problem is that attorneys, judges and legislatures often get caught up more in procedure than in achieving justice for all. Example: the adage "justice delayed is justice denied," applies to the burdensome procedures, lack of sufficient courts, the clogging of the system with meritless cases and the use of the courts to settle matters which could be resolved by negotiation. The imbalance between court privileges obtained by attorneys for the wealthy and for the person of modest means, the use of delay and "blizzards" of unnecessary paper by large law firms, and judges who fail to cut through the underbrush of procedure all erode justice. 4) an appellate judge, the Chief Justice of the Supreme Court.
justice of the peace (JP) n. a judge who handles minor legal matters such as misdemeanors, small claims actions and traffic matters in "justice courts." Dating back to early English common law, "JPs" were very common up to the 1950s, but they now exist primarily in rural "justice districts" from which it is unreasonable for the public to travel to the county seat for trials of minor matters.
justiciable n. referring to a matter which is capable of being decided by a court. Usually it is combined in such terms as: "justiciable issue," "justiciable cause of action" or "justiciable case."
justifiable homicide n. a killing without evil or criminal intent, for which there can be no blame, such as self-defense to protect oneself or to protect another or the shooting by a law enforcement officer in fulfilling his/her duties. This is not to be confused with a crime of passion or claim of diminished capacity, which refer to defenses aimed at reducing the penalty or degree of crime.
juvenile court n. a special court or department of a trial court which deals with under-age defendants charged with crimes or who are neglected or out of the control of their parents. The normal age of these defendants is under 18, but juvenile court does not have jurisdiction in cases in which minors are charged as adults. The procedure in juvenile court is not always adversarial (although the minor is entitled to legal representation by a lawyer). It can be an attempt to involve parents or social workers and probation officers in the process to achieve positive results and save the minor from involvement in future crimes. However, serious crimes and repeated offenses can result in sentencing juvenile offenders to prison, with transfer to prison upon reaching adulthood with limited maximum sentences. Where parental neglect or loss of control is a problem, the juvenile court may seek out foster homes for the juvenile, treating the child as a ward of the court.
juvenile delinquent n. a person who is under age (usually below 18), who is found to have committed a crime which have declared by law that a minor lacks responsibility and thus may not be sentenced as an adult.
k n. the shorthand symbol for "contract" used almost universally by lawyers and law students.
kangaroo court n. 1) a mock court set up without legal basis, such as a fraternity, sports team or army squad might set up to punish minor violations of organizational decorum. 2) slang for a court of law in which the violations of procedure, precedents, and due process are so gross that fundamental justice is denied. It usually means that the judge is incompetent or obviously biased.
kidnapping (also spelled kidnaping) n. the taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation. Although it is not necessary that the purpose be criminal (since all kidnapping is a criminal felony) the capture usually involves some related criminal act such as holding the person for ransom, sexual and/or sadistic abuse, or rape. It includes taking due to irresistible impuls. Originally it meant the stealing of children, since "kid" is child in Scandinavian languages, but now applies to adults as well.
kin n. blood relative.
labor and materials (time and materials) n. what some builders or repair people contract to provide and be paid for, rather than a fixed price or a percentage of the costs.
laches n. the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal ambush." Examples: a) knowing the correct property line, Mathew fails to bring a lawsuit to establish title to a portion of real estate until Riya has built a house which encroaches on the property in which Owner has title; b) Robin learns that his father has died, but waits four years to come forward until the entire estate has been distributed on the belief that Robin was dead; c) Susan has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country. The defense of laches is often raised in the list of "affirmative defenses" in answers filed by defendants, but is seldom applied by the courts. Laches is not to be confused with the "statute of limitations," which sets specific periods to file a lawsuit for types of claims (negligence, breach of contract, fraud, etc).
land n. real property, real estate (and all that grows thereon), and the right to minerals underneath and the airspace over it. It may include improvements like buildings, but not necessarily. The owner of the land may give a long-term (like 99 years) lease to another with the right to build on it. The improvement is a "leasehold" for ownership of the right to use without ownership of the underlying land. The right to use the air above a parcel of land is subject to height limitations by local ordinance, state laws.
landlady n. female of landlord or owner of real property from whom one rents or leases.
landlocked adj. referring to a parcel of real property which has no access or egress (entry or exit) to a public street and cannot be reached except by crossing another's property. In such a case there is an "implied easement" over the adjoining lot from which it was created (carved out).
landlord n. a person who owns real property and rents or leases it to another, called a "tenant."
landlord and tenant n. the name for the area of law concerning renting and leasing property and the rights of both the owner and the renter or lessee.
landlord's lien n. the right of a landlord to sell bandoned personal property left on rented or leased premises by a former tenant to cover unpaid rent or damages to the property. However, to exercise this lien the landlord must carefully follow procedures which generally require written notice to the ex-tenant and a public sale.
lapse 1) v. to fail to occur, particularly a gift made in a will. 2) v. to become non-operative. 3) n. the termination of a gift made by will or for future distribution from a trust, caused by the death of the person to whom the gift was intended (the beneficiary, legatee, devisee) prior to the death of the person making the will or creating the trust (the testator, trustor or settlor).
larceny n. the crime of taking the goods of another person without permission (usually secretly), with the intent of keeping them. It is one form of theft.
last antecedent rule n. a doctrine of interpretation (construction) of statutes that any qualifying words or phrases refer to the language immediately preceding the qualifier, unless common sense shows that it was meant to apply to something more distant or less obvious. Example: "The commercial vehicular license shall not apply to boats, tractors, and trucks, with only four wheels and under three tons…," the qualifier "only four wheels and under three tons" applies only to trucks and not boats or tractors.
last clear chance n. a rule of law in determining responsibility for damages caused by negligence, which provides that if the plaintiff (the party suing for damages) is negligent, that will not matter if the defendant (the party being sued for damages caused by his/her negligence) could have still avoided the accident by reasonable care in the final moments (no matter how slight) before the accident. The theory is that although the plaintiff may have been negligent, his/her negligence no longer was the cause of the accident because the defendant could have prevented the accident. Most commonly applied to auto accidents, a typical case of last clear chance would be when one driver drifts over the center line, and this action was noted by an oncoming driver who proceeds without taking simple evasive action, crashes into the first driver and is thus liable for the injuries to the first driver who was over the line.
last will and testament n. a fancy and redundant way of saying "will." Lawyers and clients like the formal resonance of the language. Will and testament mean the same thing. A document will be the "last" will if the maker of it dies before writing another one.
latent defect n. a hidden flaw, weakness or imperfection in an article which a seller knows about, but the buyer cannot discover by reasonable inspection. It includes a hidden defect in the title to land, such as an incorrect property description. Generally, this entitles the purchaser to get his/her money back (rescind the deal) or get a replacement without a defect on the basis of "implied" warranty of quality that a buyer could expect ("merchantability"). Even an "as is" purchase could be rescinded if it could be shown the seller knew of the flaw.
lateral support n. the right of a land owner to assurance that his/her neighbor's land will provide support against any slippage, cave-in or landslide. Should the adjoining owner excavate into the soil for any reason (foundation, basement, leveling) then there must be a retaining wall constructed (or other protective engineering) to prevent a collapse. A classic example: a developer excavated into a hill along both the western and southern lines to create a pad for an apartment building and delayed putting in the retaining wall. Cracks appeared in the buildings next to the digging site, and the owners filed a lawsuit asking for an injunction to require the developer to build a wall. The judge so ordered, but the cave-in occurred anyway, the neighboring buildings toppled into the hole, and, in the subsequent lawsuit by the owners of the neighboring fallen buildings, the developer had to pay the entire value of the buildings which were destroyed. Most lateral support problems are less dramatic.
law n. 1) any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience. Custom or conduct governed by the force of the local king were replaced by laws almost as soon as man learned to write. The earliest lawbook was written about 2100 B.C. for Ur-Nammu, king of Ur, a Middle Eastern city-state. Within three centuries Hammurabi, king of Babylonia, had enumerated laws of private conduct, business and legal precedents. It took another thousand years before written law codes developed among the Greek city-states (particularly Athens) and Israel. China developed similar rules of conduct, as did Egypt. William the Conqueror combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. 2) n. a statute, ordinance or regulation enacted by the legislative branch of a government and signed into law, or in some nations created by decree without any democratic process. This is distinguished from "natural law," which is not based on statute, but on alleged common understanding of what is right and proper (often based on moral and religious precepts as well as common understanding of fairness and justice). 3) n. a generic term for any body of regulations for conduct, including specialized rules (military law), moral conduct under various religions and for organizations, usually called "bylaws."
law and motion calendar n. a court calendar in which only motions and special legal arguments are heard.
law book n. any of numerous volumes dealing with law, including statutes, reports of cases, digests of cases, commentaries on particular topics, encyclopedias, textbooks, summaries of the law, dictionaries, legal forms and various combinations of these such as case reports with commentaries. Statutes are published, usually with comments, "annotations" and brief statements of decisions which contribute to the interpretations of each particular statute. Collections of digests (brief summaries) of case decisions divided by topics are available for each of the court rulings. There are books on almost every legal subject. Almost all collections of statutes, digests, form books and commentaries are regularly updated with the latest decisions, legislative enactments and recent comments, often with loose-leaf "pocket parts" added each year, and completely new volumes when numerous changes have accumulated. Many of the books are now being replaced or supplemented by computer disks or computer modem services. The earliest known law book was written in 2100 B.C. for the king of Ur.
law of admiralty n. statutes, customs and treaties dealing with actions on navigable waters. It is synonymous with maritime law.
law of the case n. once a judge has decided a legal question during the conduct of a lawsuit, he/she is unlikely to change his/her views and will respond that the ruling is the "law of the case."
law of the land n. a slang term for existing laws.
lawsuit n. a common term for a legal action by one person or entity against another person or entity, to be decided in a court of law, sometimes just called a "suit." The legal claims within a lawsuit are called "causes of action."
lay a foundation v. in evidence, to provide to the judge the qualification of a witness (particularly an expert witness) or a document or other piece of evidence which assures the court of the talent and experience of a witness or the authenticity of the document or article. Example: a medical report cannot be introduced unless the physician who wrote it testifies that he wrote it, or a photograph must be authenticated by the photographer or by testimony that it truly reflects a particular place or event. An expert witness is qualified by testimony as to his/her experience and training.
leading 1) v. short for "leading the witness," in which the attorney during a trial or deposition asks questions in a form in which he/she puts words in the mouth of the witness or suggests the answer. Leading is improper if the attorney is questioning a witness called by that attorney and presumably friendly to the attorney's side of the case. Thus, the opposing attorney will object that a question is "leading," and if so the judge will sustain (uphold) the objection and prohibit the question in that form. However, leading questions are permissible in cross-examination of a witness called by the other party or if the witness is found to be hostile or adverse to the position of the attorney conducting the questioning. 2) adj. referring to a question asked of a witness which suggests the answer.
leading question n. a question asked of a witness by an attorney during a trial or a deposition (questioning under oath outside of court), suggesting an answer or putting words in the mouth of the witness. Such a question is often objected to, usually with the simple objection: "leading." A leading question is allowable only when directed to the opposing party to the lawsuit or to an "adverse witness" during cross-examination (the chance to question after direct testimony) on the basis that such a witness can readily deny the proposed wording. Typical improper leading question: "Didn't the defendant appear to you to be going too fast in the limited visibility?" The proper question would be: "How fast do you estimate the defendant was going?" followed by "What was the visibility?" and "How far could you see?"
leading the witness n. asking a question during a trial or deposition which puts words in the mouth of the witness or suggests the answer, which is improper questioning of a witness called by that attorney, but is proper in cross-examination or allowed if a witness is declared by the judge to be a hostile or adverse witness.
lease 1) n. a written agreement in which the owner of property (either real estate or some object like an automobile) allows use of the property for a specified period of time (term) for specific periodic payments (rent), and other terms and conditions. Leases of real property describe the premises (often by address); penalties for late payments, termination upon default of payment or breach of any significant conditions; increases in rent based on cost of living or some other standard; inclusion or exclusion of property taxes and insurance in rent; limitations on use (a residence for the family only, no pets); charges for staying on beyond the term (holding over); any right to renew the lease for another period; and/or a requirement for payment of attorneys' fees and costs in case of the need to enforce the lease (including eviction). A lease is distinguished from a mere renting of the premises on a month-to-month basis and cannot exceed a year unless agreed to in writing. A "triple net" lease includes both taxes and insurance in the rent. 2) v. to rent out real property or an object pursuant to a written agreement.
leasehold n. the real estate which is the subject of a lease (a written rental agreement for an extended period of time). The term is commonly used to describe improvements on real property when the improvements are built on land owned by one party which is leased for a long term (such as 99 years) to the owner of the building. For example, the SK Land Company owns a lot and leases it for 99 years to the Highrise Development Corporation, which builds a 20-story apartment building and sells each apartment to individual owners as condominiums. At the end of the 99 years the building has to be moved (impossible), torn down, sold to SK Land Company (which need not pay much since the building is old and Highrise has no choice), or a new lease negotiated. Obviously, toward the end of the 99 years the individual condominiums will go down in value, partly from fear of lessened resale potential. This is generally theoretical (except to lending companies because the security does not include the land) since there are few buildings with less than 50 or 60 years to go on the leases or their expected lifetimes, although there are some commercial buildings which are within 20 years of termination of such leases. In most cases the buildings are obsolete by the end of the leasehold
legacy n. a gift of personal property or money to a beneficiary (legatee) of a will. While technically legacy does not include real property (which is a "devise"), legacy usually refers to any gift from the estate of one who has died. It is synonymous with the word "bequest."
legal adj., adv. according to law, not in violation of law or anything related to the law.
legal action n. any lawsuit, petition or prosecution.
legal advertising n. 1) notices of probate sales and other documents required by law to be published in court-approved local newspapers of general circulation. 2) commercials for the legal services of lawyers and law firms.
legal age n. the age at which a person is responsible for his/her own actions (including the capacity to enter into a contract which is enforceable by the other party), for damages for negligence or intentional wrongs without a parent being liable and for punishment as an adult for a crime. The basic legal age defined is 18 years.
legal aid society n. an organization formed to assist persons who have limited or no financial means but need legal help, usually sponsored by the local bar association's donations, sometimes with some local governmental financial support. Such societies examine the assets and income of the applicant, decide if the person has a legitimate need for legal services, give counselling, provide mediation, prepare simple documents, and if absolutely necessary give free legal assistance from a panel of volunteer attorneys.
legal duty n. the responsibility to others to act according to the law. Proving the duty (such as not to be negligent, to keep premises safe) and then showing that the duty was breached are required elements of any lawsuit for damages due to negligence or intentional injuries.
legal fiction n. a presumption of fact assumed by a court for convenience, consistency or to achieve justice. There is an old adage: "Fictions arise from the law, and not law from fictions."
legal separation n. a court-decreed right to live apart, with the rights and obligations of divorced persons, but without divorce. The parties are still married and cannot remarry. A spouse may petition for a legal separation usually on the same basis as for a divorce, and include requests for child custody, alimony, child support and division of property. For people who want to avoid the supposed stigma of divorce, who hold strong religious objections to divorce or who hope to save a marriage, legal separation is an apparent solution.
legal services n. the work performed by a lawyer for a client.
legal tender n. all money issued by the government.
legalese n. slang for the sometimes arcane, convoluted and specialized jargon of lawyers and legal scholars.
legatee n. a person or organization receiving a gift or money under the terms of the will of a person who has died. Although technically a legatee does not receive real property (a devisee), "legatee" is often used to designate a person who takes anything pursuant (according) to the terms of a will. The best generic term is beneficiary, which avoids the old-fashioned distinctions between legatees taking legacies (personal property) and devisees taking devises (real property), terms which date from the Middle Ages.
legitimate adj., adv1) legal, proper, real. 2) referring to a child born to parents who are married. A baby born to parents who are not married is illegitimate, but can be made legitimate (legitimatized) by the subsequent marriage of the parents. 3) v. to make proper and/or legal.
lessee n. the person renting property under a written lease from the owner (lessor). He/she/it is the tenant and the lessor is the landlord.
lesser crime n. See also: lesser-included offense
lesser-included offense n. in criminal law, a crime which is proved by the same facts as a more serious crime. Example: Edward is charged with armed robbery, but the prosecution fails to prove Edward used his pistol since the victims do not recall the gun, but does prove he took the jewels. Thus, he is convicted of larceny, which is a lesser form of theft and he will receive a lighter sentence.
lessor n. the owner of real property who rents it to a lessee pursuant to a written lease. Thus, he/she/it is the landlord and the lessee is the tenant.
let v. 1) to allow or permit. This is distinguished from "against one's will." 2) to lease or rent real property, particularly a room or apartment, to another person.
letter of credit n. a document issued by a bank guaranteeing to provide a customer a line of credit (automatic loan up to a certain amount) for money or security for a loan. Such a letter is used primarily to facilitate long-distance business transactions.
letters n. shorthand for letters testamentary or letters of administration.
letters of administration n. a document issued by the court clerk which states the authority of the administrator of an estate of a person who has died, when there is no will or no available executor named by a will and an administrator has been appointed by the court. It is issued during probate of the estate as soon as the court approves the appointment of the administrator, who files a security bond if one is required. Certified copies of the letters are often required by banks and other financial institutions, the government, stock transfer agents or other courts before transfer of money or assets to the administrator of the estate.
letters testamentary n. a document issued by the court clerk which states the authority of the executor of an estate of a person who has died. It is issued during probate of the estate as soon as the court approves the appointment of the executor named in the will and the executor files a security bond if one is necessary (most well-drafted wills waive the need for a bond). Certified copies of the letters are often required by banks and other financial institutions, the government, stock transfer agents or other courts before transfer of money or assets to the executor of the estate.
leverage 1) n. the use of borrowed money to purchase real estate or business assets, usually involving money equaling a high percentage of the value of the purchased property. 2) v. to borrow most of the funds necessary as a loan against real estate to buy other real estate or business assets. The dangers of high leverage are over-appraisal of the property to satisfy a lender, a decline in the value of the property (which may have been purchased during a period of high inflation), high carrying costs (interest, insurance, taxes, maintenance) which exceed income, vacancies and/or inability to finance improvements to increase profits. Too often the result is the collapse of "paper" real estate empires which have been created by risky leveraging.
levy 1) v. to seize (take) property upon a writ of execution (an order to seize property) issued by the court to pay a money judgment granted in a lawsuit. 2) v. the act of a governmental legislative body, such as a board of supervisors or commissioners assessing a tax on all property, all sales, business licenses or any thing or transaction which may be taxed. Thus, the county "levies" a tax on businesses. 3) n. the seizure of property to satisfy a judgment.
lewd and lascivious adj., adv. references to conduct which includes people living together who are known not to be married, entertainment which aims at arousing the libido or primarily sexual sensation, open solicitation for prostitution or indecent exposure of genitalia (which is itself a crime). Due to the tendency of judges to be overly careful in writing about moral and/or sexual matters, the definitions have been cloaked in old-fashioned modesty. Today the term usually applies to pornography, prostitution and indecent acts.
liability n. one of the most significant words in the field of law, liability means legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff's allegations are shown to be true. This requires evidence of the duty to act, the failure to fulfill that duty and the connection (proximate cause) of that failure to some injury or harm to the plaintiff. Liability also applies to alleged criminal acts in which the defendant may be responsible for his/her acts which constitute a crime, thus making him/her subject to conviction and punishment. Example: A signer of a promissory note has liability for money due if it is not paid and so would a co-signer who guarantees it. A contractor who has agreed to complete a building has liability to the owner if he fails to complete on time.
liable adj. responsible or obligated. Thus, a person or entity may be liable for damages due to negligence, liable to pay a debt, liable to perform an act which he/she/it contracted to do, or liable to punishment for commission of a crime. Failure to meet the responsibility or obligation opens one up to a lawsuit, and committing a crime can lead to a criminal prosecution.
libel 1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for general damages, for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called special damages. Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. 2) v. to broadcast or publish a written defamatory statement.
libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for "general damages," and not just specific losses.
liberty n. freedom from restraint and the power to follow one's own will to choose a course of conduct. Liberty, like freedom, has its inherent restraint to act without harm to others and within the accepted rules of conduct for the benefit of the general public.
license 1) n. governmental permission to perform a particular act (like getting married), conduct a particular business or occupation, operate machinery or vehicles after proving ability to do so safely or use property for a certain purpose. 2) n. the certificate that proves one has been granted authority to do something under governmental license. 3) n. a private grant of right to use real property for a particular purpose, such as putting on a concert. 4) n. a private grant of the right to use some intellectual property such as a patent or musical composition. 5) v. to grant permission by governmental authority or private agreement.
licensee n. a person given a license by the government or under private agreement.
licensor n. a person who gives another a license, particularly a private party doing so, such as a business giving someone a license to sell its products.
lie detector test n. a popular name for a polygraph which tests the physiological reaction of a person to questions asked by a testing expert. A potential or actual criminal defendant or possible witness cannot be forced or ordered to take a lie detector test. Some habitual liars pass lie detector tests, and innocent, honest people fail them due to nervousness and other factors. However, law enforcement authorities usually believe the results, which occasionally exonerate (clear) a suspect. Since the results are sometimes unreliable, they are not admissible in a trial and may not be referred to.
lien n. any official claim or charge against property or funds for payment of a debt or an amount owed for services rendered. A lien is usually a formal document signed by the party to whom money is owed and sometimes by the debtor who agrees to the amount due. A lien carries with it the right to sell property, if necessary, to obtain the money. A mortgage or a deed of trust is a form of lien, and any lien against real property must be recorded to be enforceable, including an abstract of judgment which turns a judgment into a lien against the judgment debtor's property. There are numerous types of liens including: a mechanic's lien against the real property upon which a workman, contractor or supplier has provided work or materials, an attorney's lien for fees to be paid from funds recovered by his/her efforts, a medical lien for medical bills to be paid from funds recovered for an injury, a landlord's lien against a tenant's property for unpaid rent or damages, a tax lien to enforce the government's claim of unpaid taxes.
lienor n. a person who holds a lien on another's property or funds.
life estate n. the right to use or occupy real property for one's life. Often this is given to a person (such as a family member) by deed or as a gift under a will with the idea that a younger person would then take the property upon the death of the one who receives the life estate. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant-this is called "reversion".
limitation of actions n. the period of time in which a person has to file with the clerk of the court or appropriate agency what he/she believes is a valid lawsuit or claim. The period varies greatly depending on what type of case is involved, whether the suit is against the government, whether it is by a minor, and most importantly, in what jurisdiction the right to sue arose.
limited jurisdiction n. courts' authority over certain types of cases such as bankruptcy, claims against the government, probate, family matters, immigration and customs or limitations on courts' authority to try cases involving maximum amounts of money or value.
limited liability n. the maximum amount a person participating in a business can lose or be charged in case of claims against the company or its bankruptcy. A stockholder in a corporation can only lose his/her investment, and a limited partner can only lose his/her investment, but a general partner can be responsible for all the debts of the partnership. Parties to a contract can limit the amount each might owe the other, but cannot contract away the rights of a third party to make a claim.
limited partnership n. a special type of partnership which is very common when people need funding for a business, or when they are putting together an investment in a real estate development. A limited partnership requires a written agreement between the business management, who is (are) general partner or partners, and all of the limited partners. Each limited partner makes an investment of funds into the partnership and is supposed to receive a pre-stated share of the profit, which is ordinarily greater than that of each of the general partners up to a point (such as return of the investment), and, thereafter, the limited partners will receive a lesser share than the general partner(s). The limited partners also will receive the tax benefit of a "passed through" loss (a personal income tax deduction for part of the loss) during the development stages of the partnership when the expenses exceed any receipts. Quite often there is also a provision for eventual buy-out of the limited partners by the general partner(s). The limited partners may not participate in the management decisions of the partnership or they will lose their limited partnership status. They do have the power to vote to remove the general partner(s), although usually the partnership agreement is structured so that such removal is virtually impossible unless the general partner in question has committed fraud. Since the limited investors have no control of the conduct over the partnership, they should make sure they have considerable knowledge about the reputation and record of the general partner(s) and the type of business. In fact, it require that there be some pre-existing acquaintanceship between the general and the limited partners or a detailed prospectus provided by the general partner(s) meeting very stringent and specific requirements of disclosure. In addition to priority in profit, tax deductions, and potential share in the success of the enterprise, the limited partner is "limited" in potential loss, since all he/she can lose is his/her investment, and the general partners alone are subject to claims, debts in bankruptcy and lawsuits against the partnership. Limited partnerships must file their name and names and addresses of general partners with the Secretary of State or other designated officer in the state in which the partnership is created so the public can find out who the responsible parties are. Like a corporation, a limited partnership may not have a name which is too similar to another limited partnership or corporation.
lineal descendant n. a person who is in direct line to an ancestor, such as child, grandchild, great-grandchild and on forever. A lineal descendant is distinguished from a "collateral" descendant, which would be from the line of a brother, sister, aunt or uncle.
lineup n. a law enforcement method used in an attempt to have a witness or victim identify a person suspected of committing a crime. The suspect is included in a line of people, including non-criminals and others (such as plainclothesmen, office clerks, etc.). Law enforcement officials ask each person in the lineup to speak and turn to profile, while the witness or victim studies each of them and then is asked which person in the lineup, if any, committed the crime in his/her presence. One danger with this system is that the officers will suggest by manner or tone which is the suspect, or that one person in the lineup appears, by dress or conduct, to seem more suspicious. This type of identification is precarious at best.
liquidate v. to sell the assets of a business, paying bills and dividing the remainder among shareholders, partners or other investors.
liquidated damages n. an amount of money agreed upon by both parties to a contract which one will pay to the other upon breaching (breaking or backing out of) the agreement or if a lawsuit arises due to the breach. Sometimes the liquidated damages are the amount of a deposit or a down payment, or are based on a formula (such as 10% of the contract amount). The non-defaulting party may obtain a judgment for the amount of liquidated damages, often based on a stipulation (clear statement) contained in the contract, unless the party who has breached the contract can make a strong showing that the amount of liquidated damages was so "unconscionable" (far too high under the circumstances) that it appears there was fraud, misunderstanding or basic unfairness.
lis pendens (lease pen-dense) n. Latin for "a suit pending," a written notice that a lawsuit has been filed which concerns the title to real property or some interest in that real property. The lis pendens (or notice of pending action) is filed with the clerk of the court, certified that it has been filed, and then recorded. This gives notice to the defendant who owns real estate that there is a claim on the property, and the recording informs the general public (and particularly anyone interested in buying or financing the property) that there is this potential claim against it. The lis pendens must include a legal description of the real property, and the lawsuit must involve the property. Otherwise, if there is a petition to remove the lis pendens from real property not involved in the lawsuit, the plaintiff who originally recorded a false lis pendens will be subject to payment of attorney's fees as a penalty.
literary property n. the writings of an author which entitles him/her to the use of the work, including publication, and sale or license for a profit to others who will then have the right to publish it. Literary property includes books, articles, poetry, movie scripts, computer programs and any writing which lends itself to publication or use. A close question can arise when a professional writer sends letters to others: are they literary property? Probably not if they were intended to be just personal communications. To protect any literary work and profits from it, the writer should mark it as copyrighted.
litigant n. any party to a lawsuit. This means plaintiff, defendant, petitioner, respondent, cross-complainant and cross-defendant, but not a witness or attorney.
litigious adj. referring to a person who constantly brings or prolongs legal actions, particularly when the legal maneuvers are unnecessary or unfounded. Such persons often enjoy legal battles, controversy, the courtroom, the spotlight, use the courts to punish enemies, seek profit, and pursue minor matters which do not deserve judicial attention. Some of these people are called "professional plaintiffs."
living trust n. sometimes called an inter vivos (Latin for "within one's life") trust, a trust created by a declaration of trust executed by the trustor or trustors (also called settlor or settlors) during his/her/their lifetime, as distinguished from a "testamentary trust," which is created by a will and only comes into force upon the death of the person who wrote the will. A living trust should not be confused with a "living will," which provides for medical care decisions when a person is terminally ill. While a living trust is a generic name for any trust which comes into existence during the lifetime of the person or persons creating the trust, most commonly it is a trust in which the trustor(s) or settlor(s) receive benefit(s) from the profits of the trust during their lifetimes, followed by a distribution upon the death of the last trustor (settlor) to die, or the trust continues on for the benefit of others (such as the next generation) with profits distributed to them. There are other types of living trusts including irrevocable trust, insurance trust, charitable remainder trust and some specialized trusts to manage some parts of the assets of a person or persons.
living will n. also called "a durable power of attorney," it is a document authorized by statutes in which a person appoints someone as his/her proxy or representative to make decisions on maintaining extraordinary life support if the person becomes too ill, is in a coma or is certain to die. The basic language has been developed by medical associations or other experts and may provide various choices as to when such maintenance of life can be terminated. The decision must be made in consultation with the patient's doctor. The living will permits a terminal patient to die in dignity and protects the physician or hospital from liability for withdrawing or limiting life support.
locus (low-cuss) n. Latin for "place," it means "place which" this or that occurred.
loiter v. to linger or hang around in a public place or business where one has no particular or legal purpose. There are statutes or ordinances against loitering by which the police can arrest someone who refuses to "move along." There is a question as to whether such laws are constitutional. However, there is often another criminal statute or ordinance which can be applied specifically to control aggressive begging, soliciting prostitution, drug dealing, blocking entries to stores, public drunkenness or being a public nuisance.
long cause n. a lawsuit in which it is estimated that a trial will take more than one day. In many courts the so-called "short cause" cases will be scheduled more quickly than long cause cases, since "short cause" cases are easier to fit into busy court calendars. If a trial estimated as a "short cause" turns out to take longer than one day, the judge may declare a mistrial and force the parties to try the case over again from scratch at a later date as a "long cause."
loss n. 1) the value placed on injury or damages due to an accident caused by another's negligence, a breach of contract or other wrong doing. The amount of monetary damages can be determined in a lawsuit. 2) when expenses are greater than profits, the difference between the amount of money spent and the income earned.
loss of bargain n. the inability to complete a sale or other business deal, caused by another's breach of contract, intentional interference with one's business, negligence or some other wrong doing. The amount of monetary damages resulting from this loss can be determined in a lawsuit.
loss of consortium n. the inability of one's spouse to have normal marital relations, which is a euphemism for sexual intercourse. Such loss arises as a claim for damages when a spouse has been injured and cannot participate in sexual relations for a period of time or permanently due to the injury, or suffers from mental distress, due to a defendant's wrong doing, which interferes with usual sexual activity. Thus, the uninjured spouse can join in the injured mate's lawsuit on a claim of loss of consortium, the value of which is speculative, but can be awarded if the jury (or judge sitting as trier of fact) is sufficiently impressed by the deprivation.
loss of use n. the inability to use an automobile, premises or some equipment due to damage to the vehicle, premises or articles caused by the negligence or other wrong doing of another. Examples: compensation for each day a car is out of commission during repairs or for the period of non-occupancy while a burned building is restored. A common standard of compensation (payment) is rental value of the automobile or premises, but the period of loss must be "reasonable," meaning the damages will be limited to a period in which a person would normally and promptly proceed to have the vehicle repaired or arrange reconstruction of the building or premises.
lower court n. 1) any court of lesser rank, 2) a reference in an appeal to the trial court which originally heard the case. Typical language in an appeals decision: "In the lower court, the judge ruled defendant had no basis for…."
m. o. n. slang for modus operandi, the way or pattern in which a repeat criminal usually commits his/her crime.
magistrate n. 1) a generic term for any judge of a court, or anyone officially performing a judge's functions. 2) an official who conducts routine hearings assigned by the judges, including preliminary hearings in criminal cases.
magna carta n. Latin for "Great Charter," it was a document delineating a series of laws establishing the rights of English barons and major landowners and limiting the absolute authority of the King of England. It became the basis for the rights of English citizens. It was signed reluctantly by King John on June 15, 1215, at Runnymede, at a table set up in a field under a canopy surrounded by the armed gentry. The Magna Carta was confirmed by John's son, Henry III, and in turn by Henry's son, Edward I. As John Cowell would write four centuries later: "although this charter consists of not above thirty seven Charters or Lawes yet it is of such extent, as all the Law wee have, is thought in some form to depend on it." Essentially a document for the nobility, it became the basis of individual rights as a part of the English Constitution, which is generally more custom than written documents. It is also spelled Magna Charta.
mail box rule n. in contract law, making a written offer or acceptance of offer valid if sent in the mail, with postage, within the time in which the offer must be accepted, unless the offer requires acceptance by personal delivery on or before the specified date. The rule may also apply to mailing payments of insurance premiums when due. However, relying on this so-called "rule" can be dangerous, since the party awaiting the acceptance or payment may cancel the offer if there is no response in hand when the time runs out.
maim v. to inflict a serious bodily injury, including mutilation or any harm which limits the victim's ability to function physically. Originally, in English common law it meant to cut off or permanently cripple a body part like an arm, leg, hand or foot. In criminal law, such serious harm becomes an "aggravated" assault, which is a felony subject to a prison term.
majority n. 1) the age when a person can exercise all normal legal rights, including contracting and voting. It is 18. 2) 50 percent, plus one of votes cast.
make v. 1) to create something. 2) to sign a check, promissory note, bill of exchange or some other note which guarantees, promises or orders payment of money.
make one whole v. to pay or award damages sufficient to put the party who was damaged back into the position he/she would have been in without the fault of another.
maker n. 1) the person who signs a check or promissory note, which makes him/her responsible for payment. 2) a person who endorses a check or note over to another person before it is delivered, making the endorser obligated to pay until it is delivered.
malfeasance n. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality or knowingly exceeding authority for improper reasons. Malfeasance is distinguished from "misfeasance," which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing.
malice n. a conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the other's well-being. Often the mean nature of the act itself implies malice, without the party saying "I did it because I was mad at him, and I hated him", which would be express malice. Malice is an element in first degree murder. In a lawsuit for defamation (libel and slander) the existence of malice may increase the judgment to include general damages. Proof of malice is absolutely necessary for a "public figure" to win a lawsuit for defamation.
malice aforethought n. 1) the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. 2) a general evil and depraved state of mind in which the person is unconcerned for the lives of others. Thus, if a person uses a gun to hold up a bank and an innocent bystander is killed in a shoot-out with police, there is malice aforethought.
malicious prosecution n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys' fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original lawsuit is decided in favor of the victim.
malpractice n. An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. However, malpractice does not include the exercise of professional judgment even when the results are detrimental to the client or patient. Except in cases of extremely obvious or intentional wrongs, in order to prove malpractice there must be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce his/her own expert to counter that testimony. Professions which are subject to lawsuits based on claims of malpractice include lawyers, physicians, dentists, hospitals, accountants, architects, engineers and real estate brokers.
malum in se (mal-uhm in say) adv. Latin referring to an act that is "wrong in itself", in its very nature being illegal because it violates the natural, moral or public principles of a civilized society. In criminal law it is one of the collection of crimes which are traditional and not just created by statute, which are "malum prohibitum".
malum prohibitum (mal-uhm prohibit-uhm) adj. Latin meaning "wrong due to being prohibited", which refers to crimes made so by statute, compared to crimes based on English common law and obvious violations of society's standards which are defined as malum in se. Statutory crimes include criminal violations of regulatory acts, "white collar crimes" such as improper use of insider information, issuance of stocks without a permit which are intentionally not supported by real assets and tax avoidance.
mandamus (man-dame-us) n. Latin for "we order", a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.
mandate n. 1) any mandatory order or requirement under statute, regulation, or by a public agency. 2) order of an appeals court to a lower court (usually the original trial court in the case) to comply with an appeals court's ruling, such as holding a new trial, dismissing the case or releasing a prisoner whose conviction has been overturned. 3) same as the writ of mandamus, which orders a public official or public body to comply with the law.
mandatory adj., adv. absolutely demanded or required.
mandatory joinder n. the required inclusion of a party in a lawsuit whom the court finds is absolutely necessary to a resolution of all issues in the case.
manifest 1) adj., adv. completely obvious or evident. 2) n. a written list of goods in a shipment.
manslaughter n. the unlawful killing of another person without premeditation or so-called "malice aforethought" (an evil intent prior to the killing). It is distinguished from murder (which brings greater penalties) by lack of any prior intention to kill anyone or create a deadly situation. There are two levels of manslaughter: voluntary and involuntary. Voluntary manslaughter includes killing in heat of passion or while committing a felony. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony, such as reckless driving (called "vehicular manslaughter").
marital deduction n. an estate tax deduction allowed a surviving spouse of half of the value of the estate of the deceased spouse. In trusts which a married couple creates, they can agree that on the death of the first to go, the amount of the property which is given to the survivor is limited to the amount which will not be subject to estate tax, thus delaying some or all estate tax until the death of the surviving spouse. Such trust provisions should be written only by an attorney and with consultation with an accountant or financial adviser.
marital rights n. an old-fashioned expression for the rights of a husband (not rights of a wife) to sexual relations with his wife and to control her operation of the household.
maritime law n. Also called "admiralty law" or "the law of admiralty," the laws and regulations, including international agreements and treaties, which exclusively govern activities at sea or in any navigable waters.
mark n. an "X" made by a person who is illiterate or too weak to sign his/her full name. If the mark is intended as a signature to a will it should be formally witnessed (as signatures are) to make the will valid.
marked for identification adj. documents or objects presented during a trial before there has been testimony which confirms their authenticity and/or relevancy. Each item is given an exhibit identification letter or number and thus is marked for identification. The marked exhibits are actually introduced into evidence (made part of the official record) upon request of the lawyer offering the evidence and approval by the judge or by stipulation of both attorneys. Occasionally an exhibit marked for identification is rejected as evidence due to the judge agreeing (sustaining) with an opposing lawyer's objection such as for lack of relevancy or failure to show it is genuine or best evidence.
market value n. the price which a seller of property would receive in an open market by negotiation, as distinguished from a "distress" price on a forced or foreclosure sale, or from an auction. Market value of real property is normally determined by a professional appraiser who makes comparisons to similar property sales in the area, which are often called "comparables".
marketable title n. the title to real property which has no encumbrances (mortgage, deed of trust, lien or claim) and which is free of any reasonable objection (excluding minor mistakes in the description or typographical errors). A court will enforce a contract to buy and sell real estate if there is marketable title.
marriage n. the joining of a male and female in matrimony by a person qualified by law to perform the ceremony (a priest, judge, or some similar official). The minimum age for marriage is 18. Marriages in which the age requirements are not met can be annulled.
marshal 1) n. a court official who may serve papers and act as a law enforcement officer in keeping order in court, protecting officials, making arrests or participating in court-ordered police activities. 2) n. a law enforcement officer, who serves official documents and occasionally assists in police matters. 3) v. to collect the assets of the estate of a person who has died. This is a function of an executor or administrator of an estate. Sometimes the executor or administrator may ask the court to allow the sale or division of gifts in order to achieve the distribution the testator (writer of a will) desired. This is part of the marshaling process. 4) v. in bankruptcy, to establish priorities among creditors.
master n. 1) employer, in the area of law known as "master and servant", which more properly should be called employer and employee. 2) a person, supposedly with special expertise, appointed by a judge to investigate a problem (such as whether a parent's home is appropriate for child visitation) and report back to the judge his/her findings and recommendations.
master and servant n. the body of law, including statutes and legal decisions which are precedents, which relates to the relationship of an employer and employee.
material adj. relevant and significant. In a lawsuit, "material evidence" is distinguished from totally irrelevant or of such minor importance that the court will either ignore it, rule it immaterial if objected to, or not allow lengthy testimony upon such a matter. A "material breach" of a contract is a valid excuse by the other party not to perform. However, an insignificant divergence from the terms of the contract is not a material breach.
material representation n. a convincing statement made to induce someone to enter into a contract to which the person would not have agreed without that assertion. Thus, if the material representation proves not to be true or to be misleading, the contract can be rescinded or cancelled without liability.
material witness n. a person who apparently has information about the subject matter of a lawsuit or criminal prosecution which is significant enough to affect the outcome of the case or trial. Thus, the court must make every reasonable effort to allow such a witness to testify, including a continuance (delay in a trial) to accommodate him/her if late or temporarily unavailable.
matter of record n. anything, including testimony, evidence, rulings and sometimes arguments, which has been recorded by the court reporter or court clerk. It is an expression often heard in trials and legal arguments that "such and such is a matter of record" as distinguished from actions outside the court or discussions not written down or taped.
maturity n. 1) the date when the payment of the principal amount owed under the terms of a promissory note or bill of exchange becomes due. Quite often a note states that failure to pay interest or installment payments when due "accelerates" the note, making the "maturity date" immediate if such payments are demanded and not paid. 2) the age when one becomes an adult, which is 18 for most purposes.
maxims n. a collection of legal truisms which are used as "rules of thumb" by both judges and lawyers. They are listed in the codified statutes, and include: "When the reason of a rule ceases, so should the rule itself".
may v. a choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same careful analysis must be made of the word "shall". Non-lawyers tend to see the word "may" and think they have a choice or are excused from complying with some statutory provision or regulation.
mayhem 1) n. the criminal act of disabling, disfiguring or cutting off or making useless one of the members (leg, arm, hand, foot, eye) of another either intentionally or in a fight, called maiming. The serious nature of the injury makes mayhem a felony, which is called "aggravated assault". 2) v. to commit mayhem is to cause gross harm in an uncontrolled fashion.
mechanic's lien n. the right of a craftsman, laborer, supplier, architect or other person who has worked upon improvements or delivered materials to a particular parcel of real estate (either as an employee of the owner or as a sub-contractor to a general contractor) to place a lien on that real property for the value of the services and/or materials if not paid. Numerous other technical laws surround mechanic's liens, including requirements of prompt written notice to the owner of the property (even before the general contractor has been tardy in making payment), limits on the amount collectable, and various time limitations to enforce the lien. Ultimate, last-resort enforcement of the mechanic's lien is accomplished by filing a lawsuit to foreclose the lien and have the property sold in order to be paid. Property owners should make sure that their general contractors pay their employees or subcontractors to avoid a mechanic's lien, since the owner could be forced to pay the debts of a general contractor even though the owner has already paid the contractor. If the worker or supplier does not sue to enforce the mechanic's lien, he/she may still sue for the debt.
mediation n. the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation) and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.
mediator n. a person who conducts mediation. A mediator is usually a lawyer or retired judge but can be a non-attorney specialist in the subject matter (like child custody) who tries to bring people and their disputes to early resolution through a conference. The mediator is an active participant in the discussions and attempts to work out a solution, unlike an arbitrator, who sits as a judge.
meet and confer n. a requirement of courts that before certain types of motions and/or petitions will be heard by the judge, the lawyers (and sometimes their clients) must "meet and confer" to try to resolve the matter or at least determine the points of conflict. This has the beneficial effect of resolving many matters, reducing the time for arguments and making the lawyers and clients face up to the realities of their positions. On the other hand, it also can be a total waste of time for the parties and their attorneys. The meet and confer rule is particularly common (and useful) in domestic relations disputes over temporary support, custody, visitation and such issues which are freighted with emotion.
meeting of the minds n. when two parties to an agreement (contract) both have the same understanding of the terms of the agreement. Such mutual comprehension is essential to a valid contract. It is provable by the express provisions of a written contract, without reference to any statements or hidden thoughts outside the writing.
memorandum n. 1) a brief writing, note, summary or outline. 2) A "memorandum of decision," or "memorandum opinion," is a brief statement by a judge announcing his/her ruling without detail or giving extensive reasons, which may or may not be followed by a more comprehensive written decision. Such memoranda (plural) are issued by appeals courts in language such as: "The decision below is affirmed".
mens rea (menz ray-ah) n. Latin for a "guilty mind," or criminal intent in committing the act.
mental anguish n. mental suffering which includes fright, feelings of distress, anxiety, depression, grief and/or psychosomatic physical symptoms. It is distinguished from physical pain due to an injury, but it may be considered in awarding damages for physical injury due to a defendant's negligence or intentional infliction of harm. Where there is no physical injury, damages can still be awarded for mental anguish if it is reasonable to presume such would naturally flow from the incident. Examples: holding a pistol to one's head, any threat of bodily harm when it appears it could be carried out, swinging with a scythe even though the assailant missed, or witnessing injury or death to a loved one. There are also situations in which the obvious result of the alleged wrongdoing would be mental distress due to embarrassment or damage to one's reputation through libel, and therefore damages can be awarded to the distressed party. However, there are limits: in general, breach of contract judgments cannot include damages for mental anguish due to the loss of a deal or employment.
mental competency n. See also: competent
mental cruelty n. a term, rapidly going out of fashion and out of the statutes, which has been used to justify granting a divorce when the law required that some wrong had to be found in the defending spouse. In absence of actual physical cruelty (or unwillingness to discuss it) the person wanting the divorce could testify to a list of indignities ("he swore at me, he came home late, he humiliated me in front of friends, he was hateful to my mother" or similar tales told about the wife) which would be verified by a relative or a friend to satisfy the judge that the petitioning spouse would suffer mental harm if the marriage continued and proved that there were grounds for a divorce.
mental suffering n. emotional pain synonymous with "mental anguish".
mercantile law n. that broad area of the law (also called commercial law), statutes, cases and customs which deal with trade, sales, buying, selling, transportation, contracts and all forms of business transactions.
merchantable adj. a product of a high enough quality to make it fit for sale. To be merchantable an article for sale must be usable for the purpose it is made. It must be of average worth (not necessarily special) in the marketplace and must not be broken, unworkable, damaged, contaminated or flawed.
merger n. 1) in corporate law, the joining together of two corporations in which one corporation transfers all of its assets to the other, which continues to exist. In effect one corporation "swallows" the other, but the shareholders of the swallowed company receive shares of the surviving corporation. A merger is distinguished from a "consolidation," in which both companies join together to create a new corporation. 2) in real property law, when an owner of an interest in property acquires a greater or lesser interest in the same property, the two interests become one. Examples: a person with a life estate is given the title to the property by inheritance, the life estate is merged with the titled interest. 3) another important form of merger occurs when a person acquires two parcels of land which were once a single lot that had been divided into two lots by a "lot split" granted by the city or county. If the minimum lot size has been increased by changes in local ordinances and the two lots are now sub-standard size, the buyer who acquires title in the two lots may find that they are "merged" into one lot and he or she has lost the right to build a house on each lot. To avoid this problem, the buyer should make sure title in each lot is obtained under a different name, i.e. husband taking one, and wife the other.
mesne (mean, with a silent s) adj. from Norman French for intermediate, the middle point between two extremes. It is seldom used, except in reference to "mesne profits."
mesne profits n. profits which have accrued while there was a dispute over land ownership. If it is determined the party using the land did not have legal ownership, the true owner can sue for some or all of the profits made in the interim by the illegal tenant, which are thus called "mesne profits".
metes and bounds (meets and bounds) n. a surveyor's description of a parcel of real property, using carefully measured distances, angles and directions, which results in what is called a "legal description" of the land, as distinguished from merely a street address or parcel number. Such a metes and bounds description is required to be recorded in official county records on a subdivision map and in the deeds when the boundaries of a parcel or lot are first drawn.
military law n. regulations governing the conduct of men and women in the armed services in relation to their military (not civilian) activities.
mining claim n. a description by boundaries of real property in which metal ore and/or minerals may be located.
minor n. someone under legal age, which is generally 18, except for certain purposes such as drinking alcoholic beverages.
minority n. 1) in voting, a side with less than half the votes. 2) a term for people who are less in number by population in a particular region. 3) the period of life under legal age.
minutes n. 1) the written record of meetings, particularly of boards of directors and/or shareholders of corporations, kept by the secretary of the corporation or organization. 2) the record of courtroom proceedings, such as the start and recess of hearings and trials, names of attorneys, witnesses and rulings of the court, kept by the clerk of the court or the judge. Such court minutes are not a transcript of everything that is said, which is taken down by the court reporter if recorded at all.
mirror wills n. the wills of a husband and wife which are identical except that each leaves the same gifts to the other, and each names the other as executor.
misadventure n. a death due to unintentional accident without any violation of law or criminal negligence. Thus, there is no crime.
misappropriation n. the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility to care for and protect another's assets (a fiduciary duty). It is a felony (a crime punishable by a prison sentence).
misdemeanor n. a lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies, which can be punished by a prison term. They are tried in the lowest local court such as municipal courts. Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances.
misfeasance n. management of a business, public office or other responsibility in which there are errors and an unfortunate result through mistake or carelessness, but without evil intent and/or violation of law. Misfeasance is distinguished from "malfeasance", which is intentional conduct in violation of the law.
misjoinder n. the inclusion of parties (plaintiffs or defendants) or causes of action (legal claims) in a single lawsuit contrary to statute. Reasons for a court ruling that there is misjoinder include: a) the parties do not have the same rights to a judgment; b) they have conflicting interests; c) the situations in each claim (cause of action) are different or contradictory; or d) the defendants are not involved (even slightly) in the same transaction. In a criminal prosecution the most common cause for misjoinder is that the defendants were involved in different alleged crimes, or the charges are based on different transactions.
misnomer n. the wrong name.
misprision of a felony n. the crime of concealing another's felony (serious crime) from law enforcement officers.
misrepresentation n. the crime of mis-stating facts to obtain money, goods or benefits of another to which the accused is not entitled. Examples: a person a) falsely claims to represent a charity to obtain a donation which he/she keeps; b) says a painting is a genuine when it is a fake and thus is able to sell it for a price much greater than its true value. Misrepresentation is also called "false pretenses".
mistake n. 1) an error in comprehending facts, meaning of words or the law, which causes one party or both parties to enter into a contract without understanding the obligations or results. Such a mistake can entitle one party or both parties to a rescission (cancellation) of the contract. A mistaken understanding of the law (as distinguished from facts) by one party only is usually no basis for rescission since "ignorance of the law is no excuse". 2) an error discovered to be incorrect at a later time.
mistrial n. the termination of a trial before its normal conclusion because of a procedural error, statements by a witness, judge or attorney which prejudice a jury, a deadlock by a jury without reaching a verdict after lengthy deliberation (a "hung" jury), or the failure to complete a trial within the time set by the court. When such situations arise, the judge, either on his own initiative or upon the motion (request) of one of the parties will "declare a mistrial", dismiss the jury if there is one and direct that the lawsuit or criminal prosecution be set for trial again, starting from the beginning.
mitigating circumstances n. in criminal law, conditions or happenings which do not excuse or justify criminal conduct, but are considered out of mercy or fairness in deciding the degree of the offense the prosecutor charges or influencing reduction of the penalty upon conviction. Example: a young man shoots his father after years of being beaten, belittled, sworn at and treated without love. "Diminished capacity" are forms of such mitigating circumstances.
mitigation of damages n. the requirement that someone injured by another's negligence or breach of contract must take reasonable steps to reduce the damages, injury or cost, and to prevent them from getting worse. Thus, a person claiming to have been injured by another motorist should seek medical help and not let the problem worsen. If a tenant moves out before a lease has expired, a landlord must make reasonable attempts to re-let the property and take in some rents (which are credited against the amount remainder of the lease) to mitigate his/her loss.
modification n. a change in an existing court order or judgment made necessary by a change in circumstances since the order or judgment was made or to cure an error. A motion (petition) to the court for modification is common after divorce judgments because the courts "retain jurisdiction" over matters concerning the children which may need changes such as terms of child support and custody.
modus operandi (mode-us ah-purr-and-ee or ah-purr-and-eye) n. from Latin, a criminal investigation term for "way of operating", which may prove the accused has a pattern of repeating the same criminal acts using the same method. Examples: a repeat offender always wore a blue ski mask and used a sawed-off shotgun, climbed up trellises to burglarize, pretended to be a telephone repairman to gain entrance or set up phoney companies to disguise a fraudulent scheme.
moiety (moy-et-tee) n. half. Generally a reference to interest in real property, moiety is seldom used today.
molestation n. the crime of sexual acts with children up to the age of 18, including touching of private parts, exposure of genitalia, taking of pornographic pictures, rape, inducement of sexual acts with the molester or with other children and variations of these acts by pedophiles. Molestation also applies to incest by a relative with a minor family member and any unwanted sexual acts with adults short of rape.
monopoly n. a business or inter-related group of businesses which controls so much of the production or sale of a product or kind of product as to control the market, including prices and distribution. Business practices, combinations and/or acquisitions which tend to create a monopoly may violate various statutes which regulate or prohibit business trusts and monopolies or prohibit restraint of trade. However, limited monopolies granted by a manufacturer to a wholesaler in a particular area are usually legal, since they are like "licenses". Public utilities such as electric, gas and water companies may also hold a monopoly in a particular geographic area since it is the only practical way to provide the public service, and they are regulated by state public utility commissions.
month-to-month adj. referring to a tenancy in which the tenant pays monthly rent and has no lease, and the tenancy can be terminated by the landlord at any time on thirty days notice.
monument n. 1) an established landmark which a surveyor uses as part of a legal description of real property. 2) a building or other structure of historic importance, which may be recognized formally and marked by central, state or local agencies, and therefore may not be torn down or substantially altered.
moot adj. 1) unsettled, open to argument or debatable, specifically about a legal question which has not been determined by any decision of any court. 2) an issue only of academic interest.
moot court n. law school exercise in which students argue both sides of an appeal from a fictitious lawsuit in a mock court. There are also moot court contests between teams from different law schools.
moot point n. 1) a legal question which no court has decided, so it is still debatable or unsettled. 2) an issue only of academic interest.
moral certainty n. in a criminal trial, the reasonable belief (but falling short of absolute certainty) of the trier of the fact (jury or judge sitting without a jury) that the evidence shows the defendant is guilty. Moral certainty is another way of saying "beyond a reasonable doubt". Since there is no exact measure of certainty it is always somewhat subjective and based on "reasonable" opinions of judge and/or jury.
moral turpitude n. gross violation of standards of moral conduct, vileness. An act involving moral turpitude is considered intentionally evil, making the act a crime. The existence of moral turpitude can bring a more severe criminal charge or penalty for a criminal defendant.
moratorium n. 1) any suspension of activity, particularly voluntary suspension of collections of debts by a private enterprise or by government or pursuant to court order. 2) in bankruptcy, a halt to the right to collect a debt. In times of economic crisis or a natural disaster like a flood or earthquake, there may be a moratorium on foreclosures or mortgage payments until the public can get back to normal activities and earnings.
mortgage n. a document in which the owner pledges his/her/its title to real property to a lender as security for a loan described in a promissory note. Mortgage is an old English term derived from two French words "mort" and "gage" meaning "dead pledge." To be enforceable the mortgage must be signed by the owner (borrower), acknowledged before a notary public, and recorded with the Recorder of Deeds. If the owner (mortgagor) fails to make payments on the promissory note (becomes delinquent) then the lender (mortgagee) can foreclose on the mortgage to force a sale of the real property to obtain payment from the proceeds, or obtain the property itself at a court sale upon foreclosure. However, catching up on delinquent payments and paying costs of foreclosure ("curing the default") can save the property. A purchase-money mortgage is one given by a purchaser to a seller of real property as partial payment. A mortgagor may sell the property either "subject to a mortgage" in which the property is still security and the seller is still liable for payment, or the buyer "assumes the mortgage" and becomes personally responsible for payment of the loan. Under English common law a mortgage was an actual transfer of title to the lender, with the borrower having the right to occupy the property while it was in effect, but non-payment ended the right of occupation.
mortgagee n. the person or business making a loan that is secured by the real property of the person (mortgagor) who owes him/her/it money.
mortgagor n. the person who has borrowed money and pledged his/her real property as security for the money provided by the lender (mortgagee).
motion n. a formal request made to a judge for an order or judgment. Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later date, to get a modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party's case, for a rehearing, for sanctions (payment of the moving party's costs or attorney's fees), or for dozens of other purposes. Most motions require a written petition, a written brief of legal reasons for granting the motion (often called "points and authorities"), written notice to the attorney for the opposing party and a hearing before a judge. However, during a trial or a hearing, an oral motion may be permitted.
motion for a new trial n. a request made by the loser for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge sitting without a jury obviously came to an incorrect result. This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial.
motion for a summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on testimony recorded outside court, affidavits (declarations under penalty of perjury), depositions, admissions of fact and/or answers to written interrogatories, claiming that all factual and legal issues can be decided in the moving party's favor. These alleged facts are accompanied by a written legal brief (points and authorities) in support of the motion. The opposing party needs to show by affidavits, written declarations or points and authorities (written legal argument in support of the motion) that there are "triable issues of fact" and/or of law by points and authorities. If there are any triable issues the motion must be denied and the case can go to trial. Sometimes, if there are several claims (causes of action) such a motion may cause the judge to find (decide) that some causes of action can be decided under the motion, leaving fewer matters actually to be tried.
motion for dismissal (non-suit) n. application by a defendant in a lawsuit or criminal prosecution asking the judge to rule that the plaintiff (the party who filed the lawsuit) or the prosecution has not and cannot prove its case. Attorneys most often make this motion after the plaintiff or prosecutor has presented all the evidence they have, but they can make it at the end of the evidence presentation but before judgment or upon evidence being presented that proves to the judge that the defendant cannot lose. Quite often this is an oral motion, and arguments are made in the judge's chambers where the jury cannot hear. It is also sometimes called a motion for nonsuit.
motion in limine (lim-in-nay) n. Latin for "threshold," a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial.
motion to strike n. a request for a judge's order to eliminate all or a portion of the legal pleading (complaint, answer) of the opposition on any one of several grounds. It is often used in an attempt to have an entire cause of action removed ("stricken") from the court record. A motion to strike is also made orally during trial to ask the judge to order "stricken" answers by a witness in violation of rules of evidence (laws covering what is admissible in trial). Even though the jury is admonished to ignore such an answer or some comment, the jury has heard it, and "a bell once rung, cannot be unrung".
motion to suppress n. a motion (usually on behalf of a criminal defendant) to disallow certain evidence in an upcoming trial.
motive n. in criminal investigation the probable reason a person committed a crime, such as jealousy, greed, revenge or part of a theft. While evidence of a motive may be admissible at trial, proof of motive is not necessary to prove a crime.
mouthpiece n. old-fashioned slang for one's lawyer.
movant n. the party in a lawsuit or other legal proceeding who makes a motion (application for a court order or judgment).
move v. to make a motion in court applying for a court order or judgment.
multifarious adj., adv. reference to a lawsuit in which either party or various causes of action (claims based on different legal theories) are improperly joined together in the same suit. This is more commonly called misjoinder.
multiplicity of suits n. several actual or potential lawsuits which should be joined together in one suit and one trial. It is a basic principle of law that multiplicity is to be avoided when possible, practical and fair. Example: several suits are filed by different people against the same person or entity, based on the same set of facts and the same legal issues. On motion of either party or by the judge's own determination, the judge can order the cases consolidated.
municipal adj. referring to an incorporated or chartered city or town.
municipal court n. a lower court which usually tries criminal misdemeanors and civil lawsuits involving lesser amounts of money than district courts.
muniment of title n. documentary evidence of title to real property. A muniment could be a deed, a decree of distribution proving inheritance, or a contract of sale.
murder n. the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority. In those clear circumstances, this is first degree murder. By statute, a killing in which there is torture, movement of the person before the killing (kidnapping) or the death of a police officer or prison guard, or it was as an incident to another crime (as during a hold-up or rape), to be first degree murder, with or without premeditation and with malice presumed. Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life of others (such as firing a gun into a crowd or bashing someone with any deadly weapon). Depending on the circumstances and law, murder in the first or second degree may be chargeable to a person who did not actually kill, but was involved in a crime with a partner who actually did the killing or someone died as the result of the crime. A charge of murder requires that the victim must die within a year of the attack. Death of an unborn child who is "quick" (fetus is moving) can be murder, provided there was premeditation, malice and no legal authority. Thus, abortion is not murder under the law.
mutual adj., adv. referring to anything in which both parties have reciprocal rights, understanding or agreement.
mutual wills n. wills made by two people (usually spouses, but could be "partners") in which each gives his/her estate to the other, or with dispositions they both agree upon. A later change by either is not invalid unless it can be proved that there was a contract in which each makes the will in the consideration for the other person making the will.
n.o.v. adj. shorthand acronym of Latin for non obstante veredicto (nahn ahb-stan-tuh very-dick-toe) meaning "notwithstanding the verdict," referring to a decision of a judge to set aside (reverse) a jury's decision in favor of one party in a lawsuit or a guilty verdict when the judge is convinced the judgment is not reasonably supported by the facts and/or the law. The result is called a "judgment N.O.V." Granting a motion for such a ruling means the court realizes it should have directed the jury to reach an opposite verdict in the first place.
natural person n. a real human being, as distinguished from a corporation, which is often treated at law as a fictitious person.
necessary adj., adv. 1) essential. 2) less forcefully, it can mean convenient, useful or making good sense.
necessary inference n. 1) a conclusion militated by reason and logic applied to known facts. 2) unavoidable meaning.
necessary party n. a person or entity whose interests will be affected by the outcome of a lawsuit, whose absence as a party in the suit prevents a judgment on all issues, but who cannot be joined in the lawsuit because that would deny jurisdiction to the particular court. In this rare technical situation, a necessary party who is not in the suit differs from an "indispensable party," who must be joined if the lawsuit is to proceed, and from a "proper party," who could be joined but is not essential.
negative declaration n. a finding by a city council or other local government that a proposed development or project would have no effect on the environment and therefore the developer need not prepare and file an "environmental impact report."
negative pregnant n. a denial of an allegation in which a person actually admits more than he/she denies by denying only a part of the alleged fact. Example: Plaintiff alleges Defendant "misused more than a hundred thousand rupees placed in his trust in 1994." Defendant denies the amount was more than a hundred thousand, and denies it was given to him in 1994. Thus, he did not deny the misuse, just the amount and the date.
negligence n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from "intentional torts" (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In making a claim for damages based on an allegation of another's negligence, the injured party (plaintiff) must prove: a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public, b) that the defendant's action (or failure to act) was negligent-not what a reasonably prudent person would have done, c) that the damages were caused ("proximately caused") by the negligence. An added factor in the formula for determining negligence is whether the damages were "reasonably foreseeable" at the time of the alleged carelessness. If the injury is caused by something owned or controlled by the supposedly negligent party, but how the accident actually occurred is not known (like a ton of bricks falls from a construction job), negligence can be found based on the doctrine of res ipsa loquitor (Latin for "the thing speaks for itself").
negligence per se (purr say) n. negligence due to the violation of a public duty, such as high speed driving.
negligent adj., adv. careless in not fulfilling responsibility.
negotiable instrument n. check, promissory note, bill of exchange, security or any document representing money payable which can be transferred to another by handing it over (delivery) and/or endorsing it (signing one's name on the back either with no instructions or directing it to another, such as "pay to the order of Ravi Shankar").
negotiation n. 1) the transfer of a check, promissory note, bill of exchange or other negotiable instrument to another for money, goods, services or other benefit. 2) give-and-take discussion or conference in an attempt to reach an agreement or settle a dispute.
net n., adj. the amount of money or value remaining after all costs, losses, taxes, depreciation of value and other expenses and deductions have been paid and/or subtracted. Thus the term is used in net profit, net income, net loss, net worth or net estate.
net estate n. the remaining estate of a person who has died, calculated by taking the value of all assets and subtracting all debts of the person who died, including funeral costs, expenses of administering the estate and any other allowable deductions.
new matter n. newly claimed facts or legal issues raised (brought up) by a defendant (the party being sued) to defend himself/herself/itself beyond just denying the allegations in the complaint filed by the person bringing the lawsuit (plaintiff). Such new matters are called "affirmative defenses."
next friend n. a person (often a relative) who voluntarily helps a minor or incompetent in legal matters, particularly by filing a lawsuit.
next of kin n. 1) the nearest blood relatives of a person who has died, including the surviving spouse. 2) anyone who would receive a portion of the estate by the laws of descent and distribution if there is no will.
nihil (ni [as in it]-hill) n. from Latin for nothing.
nil n. from Latin nihil, nothing or zero.
nisi prius (nee-see pree-us) adj. Latin for "unless first," in some jurisdictions it means the original trial court which heard a case as distinguished from a court of appeals, as in court nisi prius. "Court of original jurisdiction" is often substituted for the term nisi prius.
no contest n. in criminal law, a defendant's plea in court that he/she will not contest the charge of a particular crime, also called nolo contendere. While technically not an admission of guilt for commission of the crime, the judge will treat a plea of "no contest" as such an admission and proceed to find the defendant guilty as charged. A "no contest" plea is often made in cases in which there is also a possible lawsuit for damages by a person injured by the criminal conduct (such as reckless driving, assault with a deadly weapon, aggravated assault), because it cannot be used in the civil lawsuit as an admission of fault. "No contest" is also used where there has been a "plea bargain" in which the defendant does not want to say he/she is guilty but accepts the sentence recommended by the prosecutor in exchange for not contesting the charge (which is often reduced to a lesser crime). It is standard practice for the judge to ask either the attorneys or the defendant, "Is there a factual basis for the plea?" before accepting it and finding the defendant guilty.
no fault divorce n. divorces (dissolutions) in which neither spouse is required to prove "fault" or marital misconduct on the part of the other. To obtain a divorce a spouse must merely assert incompatibility or irreconcilable differences, meaning the marriage has irretrievably broken down. This means there is no defense to a divorce petition (so a spouse cannot threaten to "fight" a divorce), there is no derogatory testimony, and marital misconduct cannot be used to achieve a division of property favorable to the "innocent" spouse.
nolle prosequi (no-lay pro-say-kwee) n. Latin for "we shall no longer prosecute," which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution's claim or the district attorney has become convinced the accused is innocent.
nolo contendere (no-low kahn-ten-durr-ray) n. Latin for "I will not contest" the charges, which is a plea made by a defendant to a criminal charge, allowing the judge to then find him/her guilty, often called a "plea of no contest."
nominal damages n. a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right but suffered no substantial harm.
nominal party n. a defendant or a plaintiff included in a lawsuit because of a technical connection with the matter in dispute, and necessary for the court to decide all issues and make a proper judgment, but with no responsibility, no fault and no right to recovery. Example: suing an escrow holder or trustee who is holding a title to real property or deposited funds but has no interest in the property, funds or the lawsuit. Thus the court can order the nominal defendant to transfer title or pay out the funds when the rights of the real parties are decided.
nominee n. 1) a person or entity who is requested or named to act for another, such as an agent or trustee. 2) a potential successor to another's rights under a contract. 3) the executor proposed by a person in a will is a nominee until officially appointed by the judge after the testator (will writer) has died, and the will is submitted for probate (administration of the estate). 4) a person chosen by convention, petition or primary election to be a candidate for public office.
non compos mentis (nahn com-pose meant-is) adj. referring to someone who is insane or not mentally competent to conduct one's affairs.
non sequitur (nahn sek [as in heck]-kwit-her) n. Latin for "it does not follow." The term usually means that a conclusion does not logically follow from the facts or law, stated: "That's a non sequitur."
non-conforming use n. the existing use (residential, commercial, agricultural, light industrial, etc.) of a parcel of real property which is zoned for a more limited or other use in the city or county's general plan. Usually such use is permitted only if the property was being so used before the adoption of the zoning ordinance which it violates. Example: a corner parcel has been used for a gasoline station for years, and now the city has zoned the entire area as residential (for homes only). The non-conforming use will be allowed as "grandfathered in," but if the station is torn down the only use would be residential.
non-contestability clause n. an insurance policy provision which requires the insurance company to challenge any statement in the application for the insurance within a specific time. This prevents the company from denying coverage on the basis of fraud or error in the application when a claim is made by the policyholder.
non-contiguous adj. referring to two or more parcels of real property which are not connected.
non-discretionary trust n. a trust in which the trustee is directed to invest only in specifically named securities and to diversify the investments among certain types of securities. The trustee has no discretion or personal decision-making power in the matter.
non-feasance n. the failure of an agent (employee) to perform a task he/she has agreed to do for his/her principal (employer), as distinguished from "misfeasance" (performing poorly) or "malfeasance" (performing illegally or wrongly).
non-profit corporation n. an organization incorporated under state as operating for educational, charitable, social, religious, civic or humanitarian purposes. A non-profit corporation (also called "not for profit corporation") is formed by incorporators, has a board of directors and officers, but no shareholders. These incorporators, directors and officers may not receive a distribution of (any money from) profits, but officers and management may be paid reasonable salaries for services to the corporation.
non-suit n. a ruling by the judge in a lawsuit either when the plaintiff (the party who filed the suit) does not proceed to trial at the appointed time or has presented all his/her/its evidence and, in the judge's opinion, there is no evidence which could prove the plaintiff's case. A non-suit terminates the trial at that point and results in a dismissal of the plaintiff's case and judgment for the defendant.
no-par stock n. shares in a corporation which are issued without a price per share stated on the stock certificate.
not guilty n. 1) plea of a person who claims not to have committed the crime of which he/she is accused, made in court when arraigned (first brought before a judge) or at a later time set by the court. The choices of what one can plea are: guilty, not guilty, no contest, not guilty by reason of insanity, or incompetent to stand trial.
notary notary public
note n. a promissory note, a written statement of debt by one or more people to one or more people, with a statement of a specific amount owed or due, date it is due, interest (if any) on the amount, and other terms such as installments, penalty for late payment, full amount due if delinquent, how secured (as by real property), and attorneys' fees and costs if required to collect on the note.
notice n. 1) information, usually in writing in all legal proceedings, of all documents filed, decisions, requests, motions, petitions, and upcoming dates. Notice is a vital principle of fairness and due process in legal procedure and must be given to both parties, to all those affected by a lawsuit or legal proceeding, to the opposing attorney and to the court. In short, neither a party nor the court can operate in secret, make private overtures or conceal actions. Notice of a lawsuit or petition for a court order begins with personal service on the defendants (delivery of notice to the person) of the complaint or petition, together with a summons or order to appear (or file an answer) in court. Thereafter, if a party is represented by an attorney, notice can usually be given to the attorney by mail. If there is a so-called ex parte hearing (an emergency session with a judge with only the requesting party or his/her attorney present) the party wanting the hearing must make a diligent attempt to give notice to the other party. A court may allow "constructive" notice by publication in an approved legal newspaper of a summons in a lawsuit. 2) a writing informing a party to a contract, promissory note, lease, rental agreement or other legal relationship of a delinquency in payment, default, intent to foreclose, notice to pay rent or quit (leave) or other notice required by the agreement, mortgage, deed of trust or statute. 3) information. 4) being informed of a fact, or should have known based on the circumstances, as "he had notice that the roof was not water-tight."
notice of default n. a notice to a borrower with property as security under a mortgage or deed of trust that he/she is delinquent in payments. If the delinquency (money owed and late), plus costs of preparing the legal papers for the default, are not paid within a certain time, foreclosure proceedings may be commenced. Other people with funds secured by the same property are usually entitled to receive copies of the notice of default.
notice to quit n. the notice given by a landlord (owner) to a tenant to leave the premises (quit) either by a certain date (usually 30 days) or to pay overdue rent or correct some other default (having pets, having caused damage, too many roommates, using the property for illegal purposes, etc.) within a short time (usually three days). A notice to quit must contain certain information, such as: names of the persons to leave, whether their tenancy is by written or oral agreement, an amount of any financial delinquency and the period it covers, and to whom they should surrender the premises. Such notice and failure of the tenant to quit (leave) is a requirement to bring a lawsuit for unlawful detainer (often referred to as "eviction").
notorious possession n. occupation of real property or holding personal property in a way which anyone can observe is as if the person is the owner.
novation n. agreement of parties to a contract to substitute a new contract for the old one. It extinguishes (cancels) the old agreement. A novation is often used when the parties find that payments or performance cannot be made under the terms of the original agreement, or the debtor will be forced to default or go into bankruptcy unless the debt is restructured. While voluntary, a novation is often the only way any funds can be paid.
noxious adj. harmful to health, often referring to nuisances.
nugatory adj. of no force or effect; invalid. Example: a statute which is unconstitutional is a nugatory law.
nuisance n. the unreasonable, unwarranted and/or unlawful use of property, which causes inconvenience or damage to others, either to individuals and/or to the general public. Nuisances can include noxious smells, noise, burning, misdirection of water onto other property, illegal gambling, unauthorized collections of rusting autos, indecent signs and pictures on businesses and a host of bothersome activities. Where illegal they can be abated (changed, repaired or improved) by criminal or quasi-criminal charges. If a nuisance interferes with another person's quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to desist (stop) or limit the activity (such as closing down an activity in the evening).
nullity n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment.
nunc pro tunc (nuhnk proh tuhnk) adj. Latin for "now for then," this refers to changing back to an earlier date of an order, judgment or filing of a document. Such a retroactive re-dating requires a court order which can be obtained by a showing that the earlier date would have been legal, and there was error, accidental omission or neglect which has caused a problem or inconvenience which can be cured. Often the judge will grant the nunc pro tunc order ex parte (with only the applicant appearing and without notice). Examples: a court clerk fails to file an answer when he/she received it, and a nunc pro tunc date of filing is needed to meet the legal deadline (statute of limitations); a final divorce judgment is misdirected and, therefore, not signed and dated until the day after the re-marriage of one of the parties-the nunc pro tunc order will prevent the appearance or actuality of a bigamous marriage.
o.r. n. short for "own recognizance," meaning the judge allowed a person accused in a criminal case to go free pending trial without posting bail. A person so released is often referred to as having been "OR-ed."
o.s.c. n. short for order to show cause.
oath n. 1) a swearing to tell the truth, the whole truth and nothing but the truth, which would subject the oath-taker to a prosecution for the crime of perjury if he/she knowingly lies in a statement either orally in a trial or deposition or in writing. Criminal perjury charges are rare, however, since the person stating the untruth will almost always claim error, mistake, loss of memory or opinion. At the beginning of any testimony by a witness, the clerk or court reporter administers an oath to the witness. 2) The "swearing in" of a person assuming a public office, sometimes called the "oath of office." 3) sworn commitment of allegiance, as to one's country.
obiter dicta (oh-bitter dick-tah) n. remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts. Generally, obiter dicta is simply dicta.
object 1) v. to ask the court not to allow a particular question asked of a witness by the opposing lawyer on the basis that it is either legally not permitted, confusing in its wording or improper in its "form." An attorney may also object to an answer to the question on the basis that it is not "responsive" since a witness is limited to answering a question as asked and is not allowed to make unsolicited comments. The trial attorney must be alert and quick in order to object before the witness answers. This is called an "objection" and must be based on a specific list of legal restrictions on questions. 2) n. a particular thing. 3) n. an aim or purpose, as "the object of the contract..."
objection n. a lawyer's protest about the legal propriety of a question which has been asked of a witness by the opposing attorney, with the purpose of making the trial judge decide if the question can be asked. A proper objection must be based on one of the specific reasons for not allowing a question. These include: irrelevant, immaterial, incompetent (often stated together, which may mean the question is not about the issues in the trial or the witness is not qualified to answer), hearsay (the answer would be what someone told the witness rather than what he/she knew first-hand), leading (putting words in the mouth of one's own witness), calls for a conclusion (asking for opinion, not facts), compound question (two or more questions asked together), or lack of foundation (referring to a document lacking testimony as to authenticity or source). An objection must be made quickly and loudly to halt the witness before he/she answers. The judge will either "sustain" the objection (ruling out the question) or "overrule" it (allow the question). The judge may ask for an "offer of proof" in which the lawyer asking the question must explain to the court the reason the question is relevant, and what evidence his/her questions will bring out. Badly worded, confusing or compound questions are usually challenged by an objection to the form of the question, which is essentially a demand that the question be withdrawn and reworded. An attorney may "object" to a witness's answer as "non-responsive" to the question, but the proper request should be that the answer or a comment without a question be "stricken" from the record.
obligation n. a legal duty to pay or do something.
obligee (ah-bluh-jee) n. the person or entity to whom an obligation is owed, like the one to be paid on a promissory note.
obligor (ah-bluh-gore) n. the person or entity who owes an obligation to another, as one who must pay on a promissory note.
obscene adj., adv. a highly subjective reference to material or acts which display or describe sexual activity in a manner appealing only to "prurient interest," with no legitimate artistic, literary or scientific purpose. Pictures, writings, film or public acts which are found to be obscene. However, the courts have had difficulty making a clear non-subjective definition since "one person's obscenity is another person's art".
obstruction of justice n. an attempt to interfere with the administration of the courts, the judicial system or law enforcement officers, including threatening witnesses, improper conversations with jurors, hiding evidence or interfering with an arrest. Such activity is a crime.
occupancy n. 1) living in or using premises, as a tenant or owner. 2) taking possession of real property or a thing which has no known owner, with the intention of gaining ownership.
occupant n. 1) someone living in a residence or using premises, as a tenant or owner. 2) a person who takes possession of real property or a thing which has no known owner, intending to gain ownership.
occupation n. 1) fairly permanent trade, profession, employment, business or means of livelihood. 2) possession of real property or use of a thing.
occupational disease n. an illness resulting from long-term employment in a particular type of work, such as black lung disease among miners, or cancer among asbestos installers.
occupational hazard n. a danger or risk inherent in certain employments or workplaces, such as deep-sea diving, cutting timber, high-rise steel construction, high-voltage electrical wiring, use of pesticides, painting bridges and many factories.
occupy the field v. to preempt (monopolize) an area of statutory law by a higher authority.
of counsel adj. reference to an attorney who is not actively involved in the day-to-day work of a law firm, but may be available in particular matters or for consultation. This designation often identifies a semi-retired partner, an attorney who occasionally uses the office for a few clients or one who only consults on a particular case or on his/her specialty. Putting the name of the attorney "of counsel" on a law firm's stationery gives the office the prestige of the lawyer's name and reputation, without requiring his/her full-time presence.
off calendar adj. refers to an order of the court to take a lawsuit, petition or motion off the list of pending cases or motions which are scheduled to be heard. A case or motion will be ordered off calendar if the lawyers agree (stipulate) to drop it, if the moving party's lawyer fails to appear, if a suit is settled pending final documentation or any number of procedural reasons for the judge to determine the case should not proceed at that time. A suit or motion can be put back "on calendar" by stipulation of the lawyers or upon motion of either party.
offender n. an accused defendant in a criminal case or one convicted of a crime.
offense n. a crime or punishable violation of law of any type or magnitude.
offer n. a specific proposal to enter into an agreement with another. An offer is essential to the formation of an enforceable contract. An offer and acceptance of the offer creates the contract.
offer of proof n. an explanation made by an attorney to a judge during trial to show why a question which has been objected to as immaterial or irrelevant will lead to evidence of value to proving the case of the lawyer's client. The offer provides the opposition a preview of the questions (and helps prevent surprise), but is essential to overcome the objections.
offeree n. a person or entity to whom an offer to enter into a contract is made by another (the offeror).
offeror n. a person or entity who makes a specific proposal to another (the offeree) to enter into a contract.
officer n. 1) a high-level management official of a corporation or an unincorporated business, hired by the board of directors of a corporation or the owner of a business, such as a president, vice president, secretary, financial officer or chief executive officer (CEO). Such officers have the actual or apparent authority to contract or otherwise act on behalf of the corporation or business. 2) a public official with executive authority ranging from city manager to governor. 3) a law enforcement person such as a policeman.
officer of the court n. any person who has an obligation to promote justice and effective operation of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks and other personnel. As officers of the court lawyers have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the location of documents and other matters related to conduct of the courts.
official 1) adj. referring to an act, document or anything sanctioned or authorized by a public official or public agency. 2) n. a public officer or governmental employee who is empowered to exercise judgment. 3) n. an officer of a corporation or business.
official misconduct n. improper and/or illegal acts by a public official which violate his/her duty to follow the law and act on behalf of the public good. Often such conduct is under the guise or "color" of official authority.
officious intermeddler n. a volunteer who assists and/or benefits another without contractual responsibility or legal duty to do so, but nevertheless wants compensation for his/her actions. The courts generally find that the intermeddler must rely on the equally voluntary gratitude of the recipient of the alleged benefit.
offset 1) n. also called a "setoff," the deduction by a debtor from a claim or demand of a debt or obligation. Such an offset is based upon a counterclaim against the party making the original claim. 2) v. to counterclaim an alleged debt owed by a claimant to reduce the demand of that claimant.
omission n. 1) failure to perform an act agreed to, where there is a duty to an individual or the public to act (including omitting to take care) or where it is required by law. Such an omission may give rise to a lawsuit in the same way as a negligent or improper act. 2) inadvertently leaving out a word, phrase or other language from a contract, deed, judgment or other document. If the parties agree that the omission was due to a mutual mistake, the document may be "reformed," but this may require a petition for a court order making the correction if it had been relied upon by government authorities or third parties.
omnibus clause n. 1) an automobile insurance policy clause which provides coverage no matter who is driving the car. 2) a provision in a judgment for distribution of an estate of a deceased person, giving "all other property" to the beneficiaries named in the will.
on all fours adj. a reference to a lawsuit in which all the legal issues are identical (or so close as to make no difference) to another case, particularly an appeals decision which is a precedent in deciding the suit before the court.
on demand adj. in a promissory note, a requirement that the amount due must be paid when the person to whom the funds are owed demands payment (rather than upon a certain date or on installments). Such a note is called a "demand note."
on file prep. having been formally filed with the clerk of the court or the judge, such as a pleading is "on file."
on or about prep. a phrase referring to a date or place used in a complaint in a lawsuit or criminal charge if there is any uncertainty at all, in order to protect the person making the allegations of fact from being challenged as being inaccurate.
on or before prep. a phrase usually found in a contract or promissory note, designating performance or payment by a particular date, but which may be done prior to that date.
on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the judge considers the case "on the merits" as if this mistake had not occurred.
on the stand prep. testifying during a trial, in which the witness almost always sits in a chair beside the judge's bench, often raised above the floor level of the courtroom and behind a knee-high panel.
open court n. the conduct of judicial proceedings (trials, hearings and routine matters such as trial settings) in which the public may be present. Some hearings and discussions are held in the judge's chambers or with the courtroom cleared of non-participants and/or the jury such as adoptions, sanity hearings, juvenile criminal charges and arguments over evidence and motions which might prejudice the jury.
opening statement n. the explanation by the attorneys for both sides at the beginning of the trial of what will be proved during the trial. The defendant's attorney may delay the opening statement for the defense until the plaintiff's evidence has been introduced. Unlike a "closing argument," the opening statement is supposed to be a factual presentation and not an argument.
operation of law n. a change or transfer which occurs automatically due to existing laws and not an agreement or court order. Examples: a joint tenant obtains full title to real property when the other joint tenant dies; a spouse in a community property will take title to all community property if the spouse dies without a will that leaves some of the dead mate's interest in the community property to another; or a guardianship of a minor ad litem (for purposes of a lawsuit) ends automatically upon the child turning 18.
opinion n. the explanation of a court's judgment. When a trial court judgment is appealed to a court of appeals, the appeals judge's opinion will be detailed, citing case precedents, analyzing the facts, the applicable law and the arguments of the attorneys for the parties. Those opinions considered by the court to be worthy of serving as a precedent or involving important legal issues will be published in the official reports available in most law libraries.
option n. a right to purchase property or require another to perform upon agreed-upon terms. An option is paid for as part of a contract, but must be "exercised" in order for the property to be purchased or the performance of the other party to be required. "Exercise" of an option normally requires notice and payment of the contract price. Thus, a potential buyer of a tract of land might pay Rs 5,000 for the option which gives him/her a period of time to decide if he/she wishes to purchase, tying up the property for that period, and then pay Rs 500,000 for the property. If the time to exercise the option expires then the option terminates. The amount paid for the option itself is not refundable since the funds bought the option whether exercised or not. Often an option is the right to renew a contract such as a lease, broadcasting a television series, the employment of an actor or athlete, or some other existing business relationship. A "lease-option" contract provides for a lease of property with the right to purchase the property during or upon expiration of the lease.
or conj. either; in the alternative. It is often vital to distinguish between "or" and "and." Example: Title to the Cadillac written "Mary or Thomas Paul" means either one could transfer the car, but if written "Mary and Thomas Paul," both must sign to change title.
oral contract n. an agreement made with spoken words and either no writing or only partially written. An oral contract is just as valid as a written agreement. The main problem with an oral contract is proving its existence or the terms. As one wag observed: "An oral contract is as good as the paper it's written on." An oral contract is often provable by action taken by one or both parties which is obviously in reliance on the existence of a contract. The other significant difference between oral and written contracts is that the time to sue for breach of an oral contract (the statute of limitations) is sometimes shorter.
order 1) n. every direction or mandate of a judge or a court which is not a judgment or legal opinion (although both may include an order) directing that something be done or that there is prohibition against some act. This can range from an order that a case will be tried on a certain date, to an order that a convicted defendant be executed in the prison. 2) v. for a judge to direct that a party before the court perform a particular act or refrain from certain acts, or to direct a public official or court employee to take certain actions such as seizing property.
order to show cause n. a judge's written mandate that a party appear in court on a certain date and give reasons, legal and/or factual, (show cause) why a particular order should not be made. This rather stringent method of making a party appear with proof and legal arguments is applied to cases of possible contempt for failure to pay child support, sanctions for failure to file necessary documents or appear previously, or to persuade the judge he/she should not grant a writ of mandate against a governmental agency.
ordinance n. a statute enacted by a city or town.
ordinary adj. regular, customary and continuing, and not unusual or extraordinary, as in ordinary expense, ordinary handling, ordinary risks or ordinary skill.
ordinary course of business n. conduct of business within normal commercial customs and usages.
original jurisdiction n. the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.
orphan n. a child, particularly a minor, whose two natural parents are dead. In some cases, such as whether a child is eligible for public financial assistance to an orphan, "orphan" can mean a child who has lost one parent.
ostensible agent n. a person who has been given the appearance of being an employee or acting (an agent) for another (principal), which would make anyone dealing with the ostensible agent reasonably believe he/she was an employee or agent. This could include giving the ostensible agent stationery or forms of the company, letting him/her use the company truck, telephone or desk in the company office. Businesses should be careful not to allow such situations in which an ostensible agent could bind the business on a contract or make the apparent employer responsible for damages for an accident, libel or assault by the "agent."
ostensible authority n. apparent authority to do something or represent another person or entity.
ouster n. 1) the wrongful dispossession (putting out) of a rightful owner or tenant of real property, forcing the party pushed out of the premises to bring a lawsuit to regain possession. This often arises between partners (in a restaurant or store) or roommates, when one co-owner or co-tenant forces out the other, changes locks or makes occupancy intolerable. 2) removal of someone from a position or office against his/her expectations or will.
out of court adj. referring to actions, including negotiations between parties and/or their attorneys, without any direct involvement of a judge or the judicial system. Most commonly it refers to an "out-of-court settlement" in which the parties work out a settlement agreement, which they may present to the court for inclusion in a judgment approving the agreement so that the parties can request a court to enforce the settlement in case one of the parties reneges and fails to honor the terms of the settlement. Quite often a judgment approving an out-of-court settlement is held in abeyance and replaced by a dismissal if the terms are fulfilled. Some out-of-court settlements are kept confidential and the lawsuit is dismissed.
outbuilding n. a structure not connected with the primary residence on a parcel of property. This may include a shed, garage, barn, cabana, pool house or cottage.
outlaw n. popularly, anyone who commits serious crimes and acts outside the law.
out-of-pocket expenses n. moneys paid directly for necessary items by a contractor, trustee, executor, administrator or any person responsible to cover expenses not detailed by agreement. They may be recoverable from a defendant in a lawsuit for breach of contract; allowable for reimbursement by trustees, executors or administrators; or deductible by a landlord from a tenant's security deposit for damages beyond normal wear and tear.
output contract n. an agreement in which a producer agrees to sell its entire production to the buyer, who in turn agrees to purchase the entire output, whatever that is. Example: an almond grower has a "home" for his output, and the packer of nuts is happy to have a sure-fire supply, even though it may have to store away a glut.
overcharge v. 1) to charge more than a posted or advertised price. 2) to file a criminal complaint for crimes of greater degree than the known facts support, in an effort by the prosecutor to intimidate the accused.
overrule v. 1) to reject an attorney's objection to a question to a witness or admission of evidence. By overruling the objection, the trial judge allows the question or evidence in court. If the judge agrees with the objection, he/she "sustains" the objection and does not allow the question or evidence. 2) to decide (by a court of appeals) that a prior appeals decision on a legal issue was not correct and is therefore no longer a valid precedent on that legal question.
overt act n. in criminal law, an action which might be innocent itself but if part of the preparation and active furtherance of a crime, can be introduced as evidence of a defendant's participation in a crime.
owe v. to have a legal duty to pay funds to another. However, to owe does not make the amount "payable" if the date for payment has not yet arrived.
own v. to have legal title or right to something. Mere possession is not ownership.
own recognizance (O.R.) n. the basis for a judge allowing a person accused of a crime to be free while awaiting trial, without posting bail, on the defendant's own promise to appear and his/her reputation. The judge may consider the seriousness of the crime charged, the likelihood the defendant will always appear, the length of time the person has lived in the area, his/her reputation in the community, his/her employment, financial burdens and the demeanor of the accused.
owner n. one who has legal title or right to something. Contrary to the cynical adage: "Possession is nine-tenths of the law," possession does not necessarily make one a legal owner.
ownership n. legal title coupled with exclusive legal right to possession. Co-ownership, however, means that more than one person has a legal interest in the same thing.
paid into court adj. referring to money deposited with the clerk of the court by a person or entity who knows that the money is owed but does not know to whom they should pay it until the outcome of a lawsuit between two other parties is decided. In short, the party handing over the money is saying: "Here is the money. You two argue over it, but spare me the trouble and cost of the suit." Example: A contractor buys supplies from a hardware store on credit. The store is owned by two people who have dissolved their partnership and are fighting over who owns accounts receivable, including the funds owed by the contractor. The contractor knows he owes the money for his supplies, wants to meet his obligations, and wants to get rid of the debt. So the contractor gives what he thinks he owes the hardware store to the court to hold while the two former partners settle their differences.
pain and suffering n. the physical and mental distress suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression and embarrassment from scarring, all of which are part of the "general damages" recoverable by someone injured by another's negligence or intentional attack. The monitory value of damages for pain and suffering is subjective, as distinguished from medical bills, future medical costs and lost wages which can be calculated, called "special damages."
palimony n. a substitute for alimony in cases in which the couple were not married but lived together for a long period and then terminated their relationship. The key issue is whether there was an agreement that one partner would support the other in return for the second making a home and performing other domestic duties beyond sexual pleasures. Written palimony contracts are rare, but the courts have found "implied" contracts, when a woman has given up her career, managed the household or assisted in the man's business for a lengthy period of time. The line between a mutual "affair" and a relationship warranting palimony is a difficult one which must be decided on a case by case basis. Palimony suits may be avoided by contracts written prior to or during the relationship.
pander 1) v. to solicit customers for a prostitute. 2) n. a pimp, who procures customers for a prostitute or lures a woman into prostitution, all for his own profit. 3) v. catering to special interests without any principles, such as a politician who says to whatever group he/she is addressing just what they want to hear to win their support, contributions or favors.
panderer n. 1) a person who panders or solicits for a prostitute. 2) some politicians catering to special interests.
panel n. the list of people selected to appear for jury duty.
paper hanger n. slang for a person who criminally writes and cashes "bad" checks on accounts he/she either does not have or which have no money in them.
par n. 1) an equal level. 2) the face value of a stock or bond, printed on the certificate, which is the amount the original purchaser paid the issuing corporation. However, most common stocks are issued as "no-par value," and the value reflects the current market for the stock. Preferred stocks state a par value upon which the dividends are calculated, and the par value of bonds establishes the final pay-off amount upon maturity, usually many years in the future.
paralegal n. a non-lawyer who performs routine tasks requiring some knowledge of the law and procedures and who is employed by a law office or works free-lance as an independent for various lawyers. Usually paralegals have taken a prescribed series of courses in law and legal processes, which is much less demanding than those required for a licensed attorney. Paralegals are increasingly popular, often handling much of the paperwork in probates of estates, divorce actions, bankruptcies, investigations, analyzing depositions, preparing and answering interrogatories and procedural motions and other specialized jobs.
paramount title n. a right to real property which prevails over any other person's claim of title.
parcel n. a defined piece of real estate, usually resulting from the division of a large area of land. It can range in size from a small lot to a gigantic ranch. 2) a package.
pardon 1) v. to use the executive power of a Governor or President to forgive a person convicted of a crime, thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime for which the pardon was given. A pardon strikes the conviction from the books as if it had never occurred, and the convicted person is treated as innocent. Sometimes pardons are given to an older rehabilitated person long after the sentence has been served to clear his/her record. However, a pardon can also terminate a sentence and free a prisoner when the chief executive is convinced there is doubt about the guilt or fairness of the trial, the party is rehabilitated and has performed worthy public service, or there are humanitarian reasons such as terminal illness. A pardon is distinguished from "a commutation of sentence" which cuts short the term; "a reprieve," which is a temporary halt to punishment, particularly the death penalty, pend- ing appeal or determination of whether the penalty should be reduced; "amnesty," which is a blanket "forgetting" of possible criminal charges due to a change in public circumstances (such as the end of a war or the draft system); or a "reduction in sentence," which shortens a sentence and can be granted by a judge or an executive.
parens patriae (paa-rens pat-tree-eye) n. Latin for "father of his country," the term for the doctrine that the government is the ultimate guardian of all people under a disability, especially children, whose care is only "entrusted" to their parents. Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is 18 years old, and a judge may change custody, child support or other rulings affecting the child's well-being, no matter what the parents may have agreed or the court previously decided.
parent n. the lawful and natural father or mother of a person. The word does not mean grandparent or ancestor, but can include an adoptive parent as a replacement for a natural parent.
parental neglect n. a crime consisting of acts or omissions of a parent (including a step-parent, adoptive parent or someone who, in practical terms, serves in a parent's role) which endangers the health and life of a child or fails to take steps necessary for the proper raising of a child. The neglect can include leaving a child alone when he or she needs protection; failure to provide food, clothing, medical attention or education to a child; or placing the child in dangerous or harmful circumstances, including exposing the child to a violent, abusive or sexually predatory person.
pari delicto adj. equal fault.
parish n. 1) a geographic area served by a church (particularly Catholic) originally measured by whether people living in the area could walk to the church.
parody n. the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning. Parodies have been challenged as copyright infringements on the original works, particularly since some have reaped terrific profits. Recent decisions favor the parodies and say they have an originality of their own and, thus, are not infringements.
parol adj. oral.
parol evidence rule n. if there is evidence in writing (such as a signed contract) the terms of the contract cannot be altered by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.
parole n. 1) the release of a convicted criminal defendant after he/she has completed part of his/her prison sentence, based on the concept that during the period of parole, the released criminal can prove he/she is rehabilitated and can "make good" in society. A parole generally has a specific period and terms such as reporting to a parole officer, not associating with other ex-convicts, and staying out of trouble. Violation of the terms may result in revocation of parole and a return to prison to complete his/her sentence. 2) a promise by a prisoner of war that if released he will not take up arms again.
partial adj. not complete or entire.
partial breach n. the failure to meet a term of a contract which is so minimal that it does not cause the contract to fail or justify breach (breaking the contract) by the other contracting party. A partial breach can be remedied (made up) by a small reduction in payment or other adjustment. Example: a landlord promises to rent an apartment furnished, and when the tenants move in some furnishings are not there. The landlord may lower the rent temporarily until he/she can bring in the missing or expected items.
partial disability n. the result of an injury which permanently reduces a person's ability to function, but still permits some working or other activity. In worker's compensation cases an injured worker is often awarded a percentage rating of permanent partial disability, which will entitle him/her to a money settlement. The percentage payoff is often based on a physician's evaluation of what part of the person's normal functioning is gone.
partial verdict n. in a criminal trial, the result when the jury finds the defendant guilty of one or more charges but not guilty (or deadlocks) on one or more other charges.
participate v. to invest and then receive a part or share, as in business profits, payments on a promissory note, title to land, or as one of the beneficiaries of the estate of a person who has died.
partition n. a lawsuit which one co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. Partition cases are common when co-owners differ on whether to sell, keep or divide the property.
partner n. 1) one of the co-owners and investors in a "partnership" which is an on-going business enterprise entered into for profit. A "general partner" is responsible for the debts, contracts and actions of all the partners in the business, is an equal in management decisions unless there is an agreement establishing management duties and rights, and shares in the profits and losses based on the percentage of the investment (either in money or effort) in the partnership. A "limited partner" does not share responsibility for debts beyond his/her investment, cannot share in management, and shares in profits based on a written agreement. A "silent partner" is no different from any partner except he/she is not visible to the public and has no part in day-to-day management. 2) slang for "domestic partner," usually two people living together, either homosexual or heterosexual, sharing lives and possessions, and not married.
partnership n. a business enterprise entered into for profit which is owned by more than one person, each of whom is a "partner." A partnership may be created by a formal written agreement, but may be based on an oral agreement or just a handshake. Each partner invests a certain amount (money, assets and/or effort) which establishes an agreed-upon percentage of ownership, is responsible for all the debts and contracts of the partnership even though another partner created the debt or entered into the contract, has a share in management decisions, and shares in profits and losses according to the percentage of the total investment. Often a partnership agreement may provide for certain division of management, shares of investment, profit and/or rights to buy out a partner upon leaving the partnership or death. Each partner owes the other partners a duty of full disclosure of information which affects the business and cannot commandeer for himself/herself business opportunities which rightfully belong to the partnership. A partnership which does business under a trade name must file with the county or state a certificate of "doing business under a fictitious name," which gives notice to the public of the names of partners and the business address. A "limited partnership" limits the responsibility for debts beyond the investment to the managing "general partners." The investing "limited partners" cannot participate in management and are limited to specific percentages of profit. A partnership differs from a "joint venture," which involves more than one investor for only a specific short-term project and prompt division of profits.
party n. 1) one of the participants in a lawsuit or other legal proceeding who has an interest in the outcome. Parties include plaintiff (person filing suit), defendant (person sued or charged with a crime), petitioner (files a petition asking for a court ruling), respondent (usually in opposition to a petition or an appeal), cross-complainant (a defendant who sues someone else in the same lawsuit), or cross-defendant (a person sued by a cross-complainant). 2) a person or entity involved in an agreement. 3) a common reference by lawyers to people or entities involved in lawsuits, transactions, contracts or accidents, as in "both parties knew what was expected," "he is a party to the contract," "he was not a party to the criminal conspiracy…."
party of the first part n. reference in a written contract to identify one of the people entering into the agreement. The agreement would read "Mary Abraham (hereinafter called The Party of the First Part)." Better practice is to identify the parties by a short form of their name ("hereinafter referred to as Mary") or as Buyer, Seller, Owner, Trustee or some other useful identification. Name use aids in following and understanding the contract and avoids confusion with "the party of the second part," which identifies another party to the agreement.
party of the second part n. a reference to a party to a written contract, as distinguished from "the party of the first part."
party wall n. a wall shared by two adjoining premises which is on the property line, such as in townhouses, condominiums, row houses or two units in a duplex. Both owners are responsible for maintaining structural integrity of the wall, even if the wall is entirely on the property of one of the parties.
passenger n. a rider who has paid a fare on a train, bus, airline, taxi, ship, ferry, automobile or other carrier in the business of transporting people for a fee (a common carrier). A passenger is owed a duty of care by such a carrier and has a right to sue for damages for injuries suffered while being transported without proof of negligence. One tricky issue is whether a person who has entered the depot, station or airport, but not yet purchased a ticket or has not boarded, is entitled to the rights of a passenger to recover for damages. A passenger without payment of fare who is injured must prove the driver's negligence in a suit for damages.
passion n. See also: heat of passion
passive adj. referring to being inactive. A "passive trustee" is one who has no responsibilities other than to hold title or wait for an event which would activate the trust. "Passive income" for tax purposes includes any income in which there is no effort or active management, and is treated differently for some purposes. It may include stock dividends, trust profits, rents with no management involvement and interest on bank accounts.
patent 1) adj. obvious. Used in such expressions as a "patent defect" in an appliance. 2) n. an exclusive right to the benefits of an invention or improvement granted by the Patent Office, for a specific period of time, on the basis that it is novel (not previously known or described in a publication), "non-obvious" (a form which anyone in the field of expertise could identify), and useful. There are three types of patents: a) "utility patent" which includes a process, a machine (mechanism with moving parts), manufactured products, and compounds or mixtures (such as chemical formulas); b) "design patent" which is a new, original and ornamental design for a manufactured article; and c) "plant patent" which is a new variety of a cultivated asexually reproduced plant. Patent law specialists can make a search of patents to determine if the proposed invention is truly unique, and if apparently so, can file an application, including detailed drawing and specifications. While awaiting issuance of the patent, products or designs should be marked "patent pending" or "pat. pending." Upon receiving the patent the product can be marked with the word "patent" and the number designated by the Patent Office. The rights can be transferred provided the assignment is signed and notarized to create a record or "licensed" for use. Manufacture of a product upon which there is an existing patent is "patent infringement" which can result in a lawsuit against the infringer with substantial damages granted. 3) n. a nearly obsolete expression for a grant of public land by the government to an individual.
patent ambiguity n. an obvious inconsistency in the language of a written document.
patent defect n. an obvious flaw in a product or a document (such as leaving out the property description in a deed).
patent infringement n. the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. The infringing party will be liable to the owner of the patent for all profits made from the use of the invention, as well as any harm which can be shown by the inventor, whether the infringement was intentional or not.
patent pending n. often abbreviated to "pat. pend." or "pat. pending," the term is printed on a product to inform others that an application for a patent has been filed with the Patent Office, but the patent has not yet been granted.
paternity suit n. a lawsuit, usually by a mother, to prove that a named person is the father of her child (or the fetus she is carrying). Evidence of paternity may include blood tests (which can eliminate a man as a possible father), testimony about sexual relations between the woman and the alleged father, evidence of relationship of the couple during the time the woman became pregnant, admissions of fatherhood, comparison of child in looks, eye and hair color, race and, increasingly, DNA evidence. In addition to the desire to give the child a known natural father, proof of paternity will lead to the right to child support, birthing expenses and the child's inheritance from his father. The threat of a paternity suit against a man married to another may lead to a prompt and quiet settlement.
pawn v. to pledge an item of personal property as security for a loan, with the property left with the pawnbroker. The interest rates are on the high side, the amount of the loan is well below the value of the pledged property, and the broker has the right to sell the item without further notice if the loan is not paid.
pay v. to deliver money owed.
payable 1) adj. referring to a debt which is due. A debt may be owed, but not yet payable until a certain date or event. 2) n. a debt which is due. "Payables" are all the liabilities (debts) of a business.
payable on demand adj. a debt on a promissory note or bill of exchange which must be paid when demanded by the payee (party to whom the debt is owed).
payee n. the one named on a check or promissory note to receive payment.
payment in due course n. the giving of funds to the holder of a promissory note or bill of exchange when due, without any knowledge that the document had been acquired by fraud or that the holder did not have valid title. The true owner of the bill or note cannot also demand payment, but must look to the recipient of the funds.
payment in full n. the giving of all funds due to another. This language is often inserted on the back of a check above the place for endorsement to prove that the payee accepts the payment as complete.
payor (payer) n. the party who must make payment on a promissory note.
peace bond n. a bond required as part of a court order to guarantee that a person will stay away from another person he/she has threatened or bothered. The bond will be forfeit (given up) if the order is violated, but that is no consolation to a person injured, molested or murdered by the violator.
peaceable possession n. in real estate, holding property without any adverse claim to possession or title by another.
peculation n. misappropriation of public (government) funds or property.
pecuniary adj. relating to money, as in "pecuniary loss."
pedophilia n. an obsession with children as sex objects. Overt acts, including taking sexually explicit photographs, molesting children and exposing one's genitalia to children, are all crimes. The problem with these crimes is that pedophilia is also treated as a mental illness, and the pedophile is often released only to repeat the crimes or escalate the activity to the level of murder.
peeping tom n. a person who stealthily peeks into windows, holes in restroom walls or other openings with the purpose of getting a sexual thrill from seeing women or girls undressed or couples making love. The term comes from the legendary Tom who was the one person who peeked when Lady Godiva rode her horse naked through the streets of Coventry to protest taxes. Being a peeping tom is treated as a crime based on sexual deviancy. It forms the basis for a lawsuit by the victim on the basis of invasion of privacy.
peer n. an equal. A "jury of one's peers," to which criminal defendants are constitutionally entitled, means an impartial group of citizens from the judicial district (e.g. county) in which the defendant lives. It does not mean a jury ethnically, educationally, economically or sexually the same as the defendant.
peer review n. an examination and evaluation of the performance of a professional or technician by a board or committee made up of people in the same occupation. This may arise in determining whether a person has been legitimately discharged, denied promotion or penalized by an employer, or is found to have failed to meet minimum standards of performance and is thus liable in a lawsuit claiming damages due to negligence.
penal adj. referring to criminality, as in defining "penal code" (the laws specifying crimes and punishment), or "penal institution" (a prison or penitentiary confining convicted felons).
penalty n. 1) in criminal law, a money fine or forfeiture of property ordered by the judge after conviction for a crime. 2) an amount agreed in advance if payment or performance is not made on time, such as a "late payment" on a promissory note or lease, or a financial penalty for each day a building contractor fails to complete a job.
pendente lite (pen-den-tay lee-tay) adj. Latin for awaiting the litigation (lawsuit). It is applied to court orders (such as temporary child support) which are in effect until the case is tried, or rights which cannot be enforced until the lawsuit is over.
penitentiary n. a prison in which convicts are held for commission of major crimes (felonies).
per prep. from Latin for "by means of" or simply, "by" as in "per day" (by day) or "per capita" (by head).
per capita adj. Latin for "by head," meaning to be determined by the number of people. To find the per capita cost, the total number of persons are added up and the bill, tax or benefits are divided equally among those persons.
per curiam adj. Latin for "by the court," defining a decision of an appeals court as a whole in which no judge is identified as the specific author.
per diem adj. or n. Latin for "per day," it is short for payment of daily expenses and/or fees of an employee or an agent.
per se (purr say) adj. Latin for "by itself," meaning inherently. Thus, a published writing which falsely accuses another of having a sexually transmitted disease or being a convicted felon is "libel per se," without further explanation of the meaning of the statement.
per stirpes (purr stir-peas) adj. Latin for "by roots," by representation. The term is commonly used in wills and trusts to describe the distribution when a beneficiary dies before the person whose estate is being divided. Example: "I leave Rs 10,00,000 to my daughter, and if she shall predecease me, to her children, per stirpes." Thus, if the daughter dies before her parent, then the Rs 10,00,000 will be divided among her children equally. A way to make this more clear is to substitute for per stirpes: "…to her children, by right of representation, share and share alike," which is clear to the non-lawyer. If there is no provision for distribution to children of a predeceased child, then the gift will become part of the residue (what is left after specific gifts), and then the grandchildren may not share if there are surviving children of the giver.
peremptory adj. absolute, final and not entitled to delay or reconsideration. The term is applied to writs, juror challenges or a date set for hearing.
peremptory challenge n. the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on law, the number of parties to a case, and whether it is a civil or criminal trial.
peremptory writ of mandate (or mandamus) n. a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. This is distinguished from an alternative writ of mandate (mandamus), which orders the governmental agency, court or officials to obey the order or show cause at a hearing why it should not. The usual practice is for anyone desiring such an order to file a petition for the alternative writ. If the officials do not comply with the order and fail to convince the court that the writ of mandate should be denied, then the court will issue the peremptory writ. In some emergency situations or when there is no conceivable reason for the government not to follow the law, then the peremptory writ will be issued after a notice of hearing without the alternative writ.
perfect (with stress on the second syllable) v. 1) to complete; to take all required steps to achieve a result, such as obtaining a lien or other security by legal action or completing and filing all documents to present a case to a court of appeals. A mechanic's lien for labor and/or materials used to improve real property is "perfected" by filing a lawsuit and obtaining a judgment that the lien attaches to the property. 2) to make perfect.
perfected adj. having completed all necessary legal steps to achieve a result, such as perfected title to property.
perform v. 1) to fulfill one's obligations under a contract. 2) to comply with requirements of a court order.
performance n. fulfillment of one's obligations required by contract. Specific performance of a contract may be demanded in a lawsuit. Partial performance is short of full performance spelled out in the contract, but if the contract provided for a series of acts or deliveries with payment for each of the series, there may be partial recovery for what has been performed or delivered even if there is not full performance.
perjurer n. a person who intentionally lies while under an oath administered by a notary public, court clerk or other official, and thus commits the crime of perjury. A perjurer may commit perjury in oral testimony or by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, tax return) knowing the document contains false information.
perjury n. the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.
permanent disability n. an injury which impairs the physical and/or mental ability of a person to perform his/her normal work or non-occupational activities supposedly for the remainder of his/her life. Under worker's compensation laws (covering on-the-job injuries) once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability is also one basis for awarding general damages in a lawsuit for injury suffered due to the negligence or intentional attack of another.
permanent injunction n. a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or petition asking for the "permanent" injunction.
permanent injury n. physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful of another, a permanent injury can be a major element in an award of general damages.
permissive adj. 1) referring to any act which is allowed by court order, legal procedure, or agreement. 2) tolerant or allowing of others' behavior, suggesting contrary to others' standards.
permit 1) v. to allow by silence, agreement or giving a license. 2) n. a license or other document given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts. These can include building a structure, using a building, driving on the highway, conducting a retail business, and dozens of other activities. The purpose of permits is supposedly to guarantee that laws and regulations have been obeyed, but they also are a source of public revenue.
perpetuity n. forever.
person n. 1) a human being. 2) a corporation treated as having the rights and obligations of a person. Counties and cities can be treated as a person in the same manner as a corporation. However, corporations, counties and cities cannot have the emotions of humans such as malice, and therefore are not liable for punitive damages unless there is a statute authorizing the award of punitive damages.
personal effects n. things which include clothes, cosmetics and items of adornment. This is not the same as "personalty" which means all tangible property which is not real property, money or investments. The expression is often found in wills ("I leave my personal effects to my niece, Susan").
personal property n. same as "personalty."
personal service n. delivering a summons, complaint, notice to quit tenancy or other legal document which must be served by handing it directly to the person named in the document. Personal service is distinguished from "constructive service," which includes posting the notice and then mailing a copy or publishing a summons on a person the court has found is hiding to avoid service, and from "substituted service," which is giving the document to someone else (another resident, a secretary or receptionist, or other responsible adult) at the address.
personal services n. in contract law, the talents of a person which are unusual, special or unique and cannot be performed exactly the same by another. These can include the talents of an artist, an actor, a writer or professional services. The value of personal services is greater than general labor, so woodcarving is personal service and carpentry is not. Therefore, if an actor contracts to perform in a movie and fails to show, he/she will be liable for damages based on the difficulty to replace him. An artist who contracts to paint a picture cannot send a substitute, since he/she was retained for his/her unique ability and product.
personalty n. movable assets (things, including animals) which are not real property, money or investments.
petit jury n. old-fashioned name for the jury sitting to hear a lawsuit or criminal prosecution, called "petit" (small) to distinguish it from a "grand" jury, which has other duties.
petition 1) n. a formal written request to a court for an order of the court. It is distinguished from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of a case, reduction of bail in criminal cases, a decree of distribution of an estate, appointment of a guardian, and a host of other matters arising in legal actions. 2) n. a general term for a writing signed by a number of people asking for a particular result from a private governing body (such as a homeowners association, a political party, or a club). 3) in public law, a writing signed by a number of people which is required to place a proposition or ordinance on the ballot, nominate a person for public office, or demand a recall election. Such petitions for official action must be signed by a specified number of registered voters. 4) v. to make a formal request of a court; to present a written request to an organization's governing body signed by one or more members. 5) n. a suit for divorce in which the parties are called petitioner and respondent.
petitioner n. one who signs and/or files a petition.
petty larceny n. a term used for theft of a small amount of money or objects of little value. It is distinguished from grand larceny, which is theft of property of greater worth and a felony punishable by a term in prison.
physician-patient privilege n. the right and obligation of a physician to refuse to testify in a trial or other legal proceeding about any statement made to him/her by a patient on the basis that any communication between doctor and patient is confidential. A patient could sue the physician for damages if the doctor breaches the confidence by testifying. Of course, in most trials involving injuries the physician will testify with the plaintiff's permission. Note: when the defendant's physician examines the injured plaintiff, the plaintiff has given permission for that examination and potential testimony, so a plaintiff must be cautious in making statements.
picketing n. standing or parading near a business or government office usually with signs of protest or claims in labor disputes or public policy controversies (peace marches to pro- or anti-abortion advocates). Picketing is constitutionally guaranteed as free speech, but in some cases it may be limited by court order to prevent physical combat, blocking of entrances or threats to the public safety.
pierce the corporate veil v. to prove that a corporation exists merely as a completely controlled front (alter ego) for an individual or management group, so that in a lawsuit the individual defendants can be held responsible (liable) for damages for actions of the corporation. If a corporation has issued stock and held regular meetings of shareholders and directors, it is unlikely a judge will "pierce" the veil and limit the liability to the corporation, unless there is proof that the corporation was created to accomplish a fraud on those dealing with it.
pilferage n. a crime of theft of little things, usually from shipments or baggage.
pimp n. a person who procures a prostitute for customers or vice versa, sharing the profits of the person's activities. Supposedly he provides protection for the prostitutes, but quite often he will threaten, brutalize, rape, cheat and induce drug addiction of the prostitutes. A pimp commits the crime of pandering
pink slip n. 1) slang for official automobile registration certificate, due to its color. 2) slang for notice of being fired or laid off from a job.
piracy n. the crime of robbery of ships or boats on the oceans. Accusation, trial and punishment of pirates may be under international agreement applicable anywhere, or under the laws of the particular nation where the accused has been captured.
plagiarism n. taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one's own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.
plain view doctrine n. the rule that a law enforcement officer may make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Example: a policeman stops a motorist for a minor traffic violation and can see in the car a pistol on the back seat, giving him "reasonable cause" to enter the vehicle to make a search.
plaintiff n. the party who initiates a lawsuit by filing a complaint with the clerk of the court against the defendant(s) demanding damages, performance and/or court determination of rights.
plaintiff's attorney n. the attorney who represents a plaintiff (the suing party) in a lawsuit. In lawyer parlance a "plaintiff's attorney" refers to a lawyer who regularly represents persons who are suing for damages, while a lawyer who is regularly chosen by an insurance company to represent its insureds is called a "defense attorney."
plea n. 1) in criminal law, the response by an accused defendant to each charge of the commission of a crime. Pleas normally are "not guilty," "guilty," "no contest" (admitting the facts, but unwilling to plead "guilty," thus resulting in the equivalent of a "guilty" verdict but without admitting the crime), or "not guilty by reason of insanity" (at the time of the criminal act). However, the accused may make a "dilatory plea" challenging the jurisdiction of the court or claiming that he/she is the wrong defendant, requiring a special hearing. He/she may admit the acts but have excuses to be considered (a "plea in abatement"), which may affect the judge's sentence. Pleas are entered orally at arraignment (first court appearance) or a continued (postponed) arraignment. If after a preliminary hearing the judge determines the defendant must face trial for a felony, he/she will have to enter a plea again before a judge of the trial court. 2) any written answer or other response filed by a defendant to a complaint or petition in a civil lawsuit.
plea bargain n. in criminal procedure, a negotiation between the defendant and his attorney on one side and the prosecutor on the other, in which the defendant agrees to plead "guilty" or "no contest" to some crimes, in return for reduction of the severity of the charges, dismissal of some of the charges, the prosecutor's willingness to recommend a particular sentence or some other benefit to the defendant. Sometimes one element of the bargain is that the defendant reveal information such as location of stolen goods, names of others participating in the crime or admission of other crimes (such as a string of burglaries). The judge must agree to the result of the plea bargain before accepting the plea. If he does not, then the bargain is cancelled. Reasons for the bargain include a desire to cut down on the number of trials, danger to the defendant of a long term in prison if convicted after trial and the ability to get information on criminal activity from the defendant. There are three dangers: a) an innocent defendant may be pressured into a confession and plea out of fear of a severe penalty if convicted; b) particularly vicious criminals will get lenient treatment and be back "on the street" in a short time; c) results in unequal treatment. Public antipathy to plea bargaining has led to some statutes prohibiting the practice, but informal discussions can get around the ban
plea in abatement n. See also: plea
plead v. 1) in civil lawsuits and petitions, to file any document (pleading) including complaints, petitions, declarations, motions and memoranda of points and authorities. 2) in criminal law, to enter a plea of a defendant in response to each charge of criminal conduct.
pleading n. 1) every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well-organized and comprehensive.
pledge v. to deposit personal property as security for a personal loan of money. If the loan is not repaid when due, the personal property pledged shall be forfeit to the lender. The property is known as collateral. To pledge is the same as to pawn. 2) to promise to do something.
plenary adj. full, complete, covering all matters, usually referring to an order, hearing or trial.
police court n. a municipal court which handles misdemeanors (minor crimes) and traffic violations, as well as conducting arraignments (first appearances) and preliminary hearings of those accused of felonies to decide if there is cause to send the defendant to a higher court for trial. Police courts only handle criminal cases-unlike those municipal courts which also have jurisdiction over some civil cases.
police powers n. fot the protection and welfare of the society, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement.
political question n. the determination by a court (particularly the Supreme Court) that an issue raised about the conduct of public business is a "political" issue to be determined by the legislature or the executive branch and not by the courts.
polygamy n. having more than one wife or husband at the same time, usually more than just two (which is "bigamy").
polygraph n. a lie detector device, from Greek for "many" (poly) "message" (graph) since numerous physiological responses are tested when questions are answered.
pornography n. pictures and/or writings of sexual activity intended solely to excite lascivious feelings of a particularly blatant and aberrational kind, such as acts involving children, animals, orgies, and all types of sexual intercourse. The printing, publication, sale and distribution of "hard core" pornography is either a felony or misdemeanor. Since determining what is pornography and what is "soft core" and "hard core" are subjective questions to judges, juries and law enforcement officials, it is difficult to define, since the law cases cannot print examples for the courts to follow.
posse comitatus (pahs-see coh-mitt-tah-tus) n. from Latin for "possible force," the power of the law enforcement officer to call upon any able- bodied adult men (and presumably women) in the county to assist him in apprehending a criminal. The assembled group is called a posse for short.
possess v. to own, have title to, occupy, physically hold or have under exclusive control. In wills there is often the phrase "of which I die possessed," in describing the estate.
possession n. 1) any article, object, asset or property which one owns, occupies, holds or has under control. 2) the act of owning, occupying, holding or having under control an article, object, asset or property. "Constructive possession" involves property which is not immediately held, but which one has the right to hold and the means to get (such as a key to a storeroom or safe deposit box). "Criminal possession" is the holding of property which it is illegal to possess such as controlled narcotics, stolen goods or liquor by a juvenile.
possession of stolen goods n. the crime of possession of goods which one knows or which any reasonable person would realize were stolen. It is generally a felony. Innocent possession is not a crime, but the goods are generally returned to the legal owner.
possessory interest n. in real estate, the intent and right of a person to occupy and/or exercise control over a particular plot of land. A possessory interest is distinguished from an interest in the title to property, which may not include the right to immediately occupy the property. Example: a long-term lease.
possibility of a reverter n. the potential that the title to a real property interest will return to the original grantor or giver or to his/her lineal descendants. Examples of events which could cause the title to revert: A gift of property to a hospital on condition that it be used forever for health care, but if the building is no longer used for that purpose the property will revert to the family of the original grantor; the real property is given to a daughter and her children, but will revert to her brother's descendants if her line dies out without further issue.
post v. 1) to place a notice on the entrance or a prominent place on real property, such as a notice to quit (leave), pay rent, which requires mailing of a copy to the occupant to complete service of the notice. 2) to place a legal notice on a designated public place at the courthouse. 3) a commercial term for recording a payment. 4) to mail.
post mortem n. Latin for "after death," an examination of a dead body to determine cause of death, generally called an autopsy.
postdated check n. a check delivered now with a written date in the future, so that it cannot be cashed until that date. The danger to the recipient is that such a check is legally only a promissory note due at the later date, and if the account is closed or short when the check is presented at the bank, the payee has no rights to demand payment by the bank or claim that the delivery of a bad check was criminal.
pot n. slang for marijuana, an illegal narcotic.
pour over will n. a will of a person who has already executed a trust in which all property is designated to be distributed or managed upon the death of the person whose possessions are in trust, leaving all property to the trust. A pour over will is a protection which is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party's death. A pour over will often provides that if the trust is invalid in whole or in part, the distribution under the will must be made under the same terms as stated in the invalid trust.
power n. the right, authority and ability to take some action or accomplish something, including demanding action, executing documents, contracting, taking title, transferring, exercising legal rights and many other acts.
power of acceptance n. the ability to accept an offer and thus create a binding contract. In real estate an acceptance can only be made for a period specified in the offer, and the power is terminated permanently by the making of a counter-offer. Thus, one cannot make a counter-offer and then decide to accept the original offer.
power of appointment n. the right to leave property by will, transfer, gift or distribution under a trust. Such a power is often found in a trust in which each of the trustors (the creators of the trust, usually a husband and wife) is empowered to write a will leaving his or her share (or some part) to someone. If the power of appointment is not used then it expires on the death of the person with the power.
power of attorney n. a written document signed by a person giving another person the power to act in conducting the signer's business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (the agent) is "attorney in fact" for the person giving the power, and usually signs documents. There are two types of power of attorney: a) general power of attorney, which covers all activities, and b) special power of attorney, which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts or executing a limited partnership agreement. A power of attorney may expire on a date stated in the document or upon written cancellation. Usually the signer acknowledges before a notary public that he/she executed the power, so that it is recordable if necessary, as in a real estate transaction.
practicable adj. when something can be done or performed.
practice 1) n. custom or habit as shown by repeated action, as in "it is the practice in the industry to confirm orders before shipping." 2) n. the legal business, as in "law practice," or "the practice of the law." 3) v. to repeat an activity in order to maintain or improve skills, as "he practices the violin every evening." 4) v. to conduct a law business, as "she practices law".
pray v. to formally request judicial judgment, relief and/or damages at the end of a complaint or petition.
prayer n. the specific request for judgment, relief and/or damages at the conclusion of a complaint or petition. A typical prayer would read: "The plaintiff prays for 1) special damages in the sum of Rs 17,500; 2) general damages according to proof [proved in trial]; 3) reasonable attorney's fees; 4) costs of suit; and 5) such other and further relief as the court shall deem proper." A prayer gives the judge an idea of what is sought, and may become the basis of a judgment if the defendant defaults (fails to file an answer). Sometimes a plaintiff will inflate damages in the prayer for publicity or intimidation purposes, or because the plaintiff believes that a gigantic demand will be a better starting point in negotiations.
precatory adj. referring to a wish or advisory suggestion which does not have the force of a demand or a request which under the law must be obeyed. Thus "precatory words" in a will or trust would express a "hope that my daughter will keep the house in the family," but do not absolutely prevent her from selling it.
precedent 1) n. a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment. The doctrine that a lower court must follow a precedent is called stare decisis 2) adj. before, as in the term "condition precedent," which is a situation which must exist before a party to a contract has to perform.
predecease v. to die before someone else, as "if my brother, Harry, should predecease me, his share of my estate I give to his son".
preemptive right n. the right of a shareholder in a corporation to have the first opportunity to purchase a new issue of stock of that corporation in proportion to the amount of stock already owned by the shareholder.
preference n. in bankruptcy, the payment of a debt to one creditor rather than dividing the assets equally among all those to whom he/she/it owes money, often by making a payment to a favored creditor just before filing a petition to be declared bankrupt. Such a preference is prohibited by law, and the favored creditor must pay the money to the bankruptcy trustee. However, the court may give secured creditors (with a judgment, lien, deed of trust, mortgage or collateralized loan) a legal preference over "general" creditors in distributing available funds or assets.
preferred dividend n. a payment of a corporation's profits to holders of preferred shares of stock.
preferred stock n. a class of shares of stock in a corporation which gives the holders priority in payment of dividends (and distribution of assets in case of dissolution of the corporation) over owners of "common" stock at a fixed rate. While the assurance of first chance at profits is a psychological and real benefit, preferred stock shareholders do not participate in higher dividends if the corporation makes large profits, and usually cannot vote for directors.
preliminary hearing n. in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable by a term in the prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime. A preliminary hearing is held in the lowest local court, but only if the prosecutor has filed the charge without asking the Grand Jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court for trial. If there is no such convincing evidence, the judge will dismiss the charges.
preliminary injunction n. a court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act which is in dispute, thereby maintaining the status quo until there is a final judgment after trial.
premeditation n. planning, plotting or deliberating before doing something. Premeditation is an element in first degree murder and shows intent to commit that crime.
premises n. 1) in real estate, land and the improvements on it, a building, store, shop, apartment, or other designated structure. The exact premises may be important in determining if an outbuilding (shed, garage) is insured or whether a person accused of burglary has actually entered a structure. 2) in legal pleading, premises means "all that has herein above been stated", as in a request at the end of a complaint asking for "any further order deemed proper in the premises" (an order based on what has been stated in the complaint).
premium n. 1) payment for insurance coverage either in a lump sum or by installments. 2) an extra payment for an act, option or priority.
prenuptial agreement n. also called an antenuptial agreement, a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been "taken" by a previous spouse.
prerogative writ n. an historic generic term for any writ (court order) directed to government agencies, public officials or another court.
prescription n. the method of acquiring an easement upon another's real property by continued and regular use without permission of the property owner for a period of years required by the law.
prescriptive easement n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by the law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
presentment n. 1) making a demand for payment of a promissory note when it is due. 2) a report to a court by a Grand Jury, made on its own initiative without a request or presentation of evidence by the local prosecutor, that a "public" crime (illegal act by public officials or affecting the public good) has been committed.
presiding judge n. 1) the judge who chairs the panel of three or more judges during hearings and supervises the business of the court. 2) in those counties or other jurisdictions with several judges, the one is chosen to direct the management of the courts, usually on an annual or other rotating basis. The presiding judge usually makes assignments of judges to specialized courts (juvenile, probate, criminal, law and motion, family law, etc.), oversees the calendar, and chairs meetings of the judges.
presumption n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof it is not; a person who has disappeared and not been heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.
presumption of innocence n. a fundamental protection for a person accused of a crime, which requires the prosecution to prove its case against the defendant beyond a reasonable doubt. This is opposite from the criminal law in many countries, where the accused is considered guilty until he/ she proves his/her innocence or the government completely fails to prove its case.
pretermitted heir n. the child of a person who has written a will in which the child is not left anything and is not mentioned at all. After the death of the parent, a pretermitted heir has the right to demand the share he/she would have received as an heir under the laws of distribution and descent. The reasoning is that the parent either inadvertently forgot the child or incorrectly believed the child was dead, and did not mean to leave him/her out. Thus, if someone wishes to disinherit a child or omit him/her from his/her will, that parent should specifically state in the will: "I leave nothing to my son, David," with or without a reason. Otherwise there may be unfair and unintended results.
pretrial discovery n. See also: discovery
prevailing party n. the winner in a lawsuit. Many contracts, leases, mortgages, deeds of trust or promissory notes provide that the "prevailing party" shall be entitled to recovery of attorney's fees and costs if legal action must be taken to enforce the agreement. Even if the plaintiff gets much less than the claim, he/she/it is the prevailing party entitled to include attorney's fees in the collectable costs. Usually there is no prevailing party when a complaint is voluntarily dismissed prior to trial or settled before or after trial has begun.
price fixing n. a criminal violation of antitrust statutes in which several competing businesses reach a secret agreement (conspiracy) to set prices for their products to prevent real competition and keep the public from benefitting from price competition. Price fixing also includes secret setting of favorable prices between suppliers and favored manufacturers or distributors to beat the competition.
prima facie (pry-mah fay-shah) adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a prima facie case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution's apparent "open and shut" case.
prima facie case n. a plaintiff's lawsuit or a criminal charge which appears at first blush to be "open and shut."
prime suspect n. the one person law enforcement officers believe most probably committed a crime being investigated. Once a person is determined to be a prime suspect, the police must take the risk that any admissions (any evidence gained from the statements) by the suspect may be excluded in trial.
primogeniture n. from Latin for "first born," the ancient rule from England (except in the County of Kent) that the oldest son would inherit the entire estate of his parents (or nearest ancestor), and, if there was no male heir, the daughters would take (receive the property) in equal shares. The intent was to preserve larger properties from being broken up into small holdings, which might weaken the power of nobles.
principal n. 1) main person in a business. 2) employer, the person hiring and directing employees (agents) to perform his/her/its business. It is particularly important to determine who is the principal since he/she/it is responsible for the acts of agents in the "scope of employment" under the doctrine of respondeat superior. 3) in criminal law, the main perpetrator (organizer and active committer) of a crime, as distinguished from an "accessory" who helps the principal in some fashion. The criminal principal is usually the person who originates the idea of committing the crime and/or directly carries it out, and is more likely to be charged with a higher degree of the crime, and receive a stiffer prison sentence. 4) adj. chief, leading, highest.
principal place of business n. location of head office of a business where the books and records are kept and/or management works.
prior restraint n. an attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press (even in the guise of an anti-nuisance ordinance).
prior(s) n. slang for a criminal defendant's previous record of criminal charges, convictions, or other judicial disposal of criminal cases (such as probation, dismissal or acquittal). Only previous felony convictions can be introduced into evidence.
priority n. the right to be first or ahead of the rights or claims of others. In bankruptcy law, the right to collect before other creditors is given to taxing authorities, judgment holders, secured creditors, bankruptcy trustees and attorneys. The right also can apply to mortgages, deeds of trusts or liens given priority in the order they were recorded (in the "race to the courthouse").
privacy n. the right to be free of unnecessary public scrutiny or to be let alone. Once a person is a "public figure" or involved in newsworthy events, the right to privacy may evaporate.
private carrier n. one who provides transportation or delivery of goods for money, just for the particular instance, and not as a regular business. It is distinguished from a "common carrier" which is in the business, such as buses, railroads, trucking companies, airlines and taxis. However, a private carrier may be liable for injuries to anyone who pays or shares the cost of transport.
private nuisance n. the interference with an individual's peaceful enjoyment of one's property, which can be the basis for a lawsuit both for damages caused by the nuisance and an order (injunction) against continuing the noxious (offensive) activity or condition. Examples: fumes from a factory above the legal limit, loud noises well above the norm, or directing rain water onto another person's property.
private parts n. men's or women's genitalia, excluding a woman's breasts, usually referred to in prosecutions for "indecent exposure" or production and/or sale of pornography.
private property n. land not owned by the government or dedicated to public use.
private road n. a road or driveway on privately owned property, limited to the use of the owner or a group of owners who share the use and maintain the road without help from a government agency. A private road has not been given to a government entity and accepted by that entity for public use. Some private roads are used by the public, but should be closed off at least once a year to prove that an easement of use is not allowed and to prevent a prescriptive easement (taken by continued use) from arising.
privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.
privileged communication n. statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court. These include communications between husband and wife, attorney and client, physician or therapist and patient, and minister or priest with anyone seeing them in their religious status. Thus, such people cannot be forced to testify or reveal the conversations to law enforcement or courts, even under threat of contempt of court, and if one should break the confidentiality he/she can be sued by the person who had confidence in him/her. The reason for the privilege is to allow people to speak with candor to spouse or professional counsellor, even though it may hinder a criminal prosecution. The extreme case is when a priest hears an admission of murder or other serious crime in the confessional and can do nothing about it. The privilege may be lost if the one who made the admission waives the privilege, or, in the case of an attorney, if the client sues the attorney claiming negligence in conduct of the case.
privity n. contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, which requires that there be "privity" if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, a tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the land sales contract between seller and buyer since the tenant was not "in privity" with the seller.
pro bono adj. short for pro bono publico, Latin for "for the public good," legal work performed by lawyers without pay to help people with legal problems and limited or no funds, or provide legal assistance to organizations involved in social causes such as environmental, consumer, minority, youth, battered women and education organizations and charities.
pro forma 1) prep. Latin for "as a matter of form," the phrase refers to court rulings merely intended to facilitate the legal process (to move matters along). 2) n. an accountant's proposed financial statement for a business based on the assumption that certain events occurred, such as a 20% increase in annual sales or 6% inflation.
pro per adj. short for "propria persona," which is Latin for "for oneself," usually applied to a person who represents himself/herself in a lawsuit rather than have an attorney.
pro rata (proh rat-ah or proh ray-tah) adj. from Latin for "in proportion," referring to a share to be received or an amount to be paid based on the fractional share of ownership, responsibility or time used. Examples: an heir who receives one-quarter of an estate may be responsible for one-quarter of the estate taxes as his/her pro rata share. A buyer of a rental property will pay his/her pro rata share of the property taxes for that portion of the year in which he/she holds title.
pro se (proh say) prep. Latin for "for himself." A party to a lawsuit who represents himself (acting in propria persona) is appearing in the case "pro se."
pro tanto (proh tahn-toe) Latin for "only to that extent." Example: a judge gives an order for payments for one year, pro tanto.
pro tem 1) adj. short for the Latin pro tempore, temporarily or for the time being. In law, judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as a substitute for a regular judge. When an appeals justice is not available or there is a vacancy, a lower court judge is appointed Justice Pro Tem until a new Justice is appointed. Small claims cases are often heard by an attorney serving as Judge Pro Tem. 2) n. short for a temporary judge.
pro tempore (proh temp-oh-ray): See also: pro tem
probable cause n. sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. While some cases are easy (pistols and illicit drugs in plain sight, gunshots, a suspect running from a liquor store with a clerk screaming "help"), actions "typical" of drug dealers, burglars, prostitutes, thieves, or people with guilt "written across their faces," are more difficult to categorize. "Probable cause" is often subjective, but if the police officer's belief or even hunch was correct, finding stolen goods, the hidden weapon or drugs may be claimed as self-fulfilling proof of probable cause. Technically, probable cause has to exist prior to arrest, search or seizure.
probate 1) n. the process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate court where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the court determines the will is valid, the court then "admits" the will to probate. 2) n. a general term for the entire process of administration of estates of dead persons, including those without wills, with court supervision. The means of "avoiding" probate exist, including creating trusts in which all possessions are handled by a trustee, making lifetime gifts or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner. Even if there is a will, probate may not be necessary if the estate is small with no real estate title to be transferred or all of the estate is either jointly owned or community property. Reasons for avoiding probate are the fees set by statute and/or the court for attorneys, executors and administrators, the need to publish notices, court hearings, paperwork, the public nature of the proceedings and delays while waiting for creditors to file claims even when the deceased owed no one. 3) v. to prove a will in court and proceed with administration of a deceased's estate under court supervision. 4) adj. reference to the appropriate court for handling estate matters, as in "probate court."
probation n. a chance to remain free (or serve only a short time) given by a judge to a person convicted of a crime instead of being sent to jail or prison, provided the person can be good. Probation is only given under specific court-ordered terms, such as paying a fine, maintaining good behavior, getting mental therapy and reporting regularly to a probation officer. Violation of probation terms will usually result in the person being sent to jail for the normal term. Repeat criminals are normally not eligible for probation. Probation is not the same as "parole," which is freedom under certain restrictions given to convicts at the end of their imprisonment.
probative adj. tending to prove something. Thus, testimony which is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel.
probative facts n. evidence which tends to prove something which is relative to the issues in a lawsuit or criminal prosecution.
probative value n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed by the trial judge against prejudicing in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, balanced against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions.
procedure n. the methods and mechanics of the legal process. These include filing complaints, answers and demurrers; serving documents on the opposition; setting hearings, depositions, motions, petitions, interrogatories; preparing orders; giving notice to the other parties; conduct of trials; and all the rules and laws governing that process.
proceeding n. any legal filing, hearing, trial and/or judgment in the ongoing conduct of a lawsuit or criminal prosecution. Collectively they are called "proceedings," as in "legal proceedings."
process n. in law, the legal means by which a person is required to appear in court or a defendant is given notice of a legal action against him/her/it. When a complaint in a lawsuit is filed, it must be served on each defendant, together with a summons issued by the clerk of the court stating the amount of time (say, 30 days) in which the defendant has to file an answer or other legal pleading with the clerk of the court, and sent to the plaintiff. A subpena is similar to a summons but is a notice to a witness to appear at a deposition (testimony taken outside court), or at a trial. A subpena duces tecum is an order to deliver documents or other evidence either into court or to the attorney for a party to a lawsuit or criminal prosecution. An order to show cause is a court order to appear in court and give a reason why the court should not issue an order (such as paying temporary child support). The summons, complaint, subpena, subpena duces tecum and order to show cause must all be "served" on the defendant or person required to appear or produce, and this is called "service of process".
process server n. a person who serves (delivers) legal papers in lawsuits, either as a profession or as a government official.
proctor n. 1) in admiralty (maritime) law, an attorney. 2) person who keeps order.
product liability n. the responsibility of manufacturers, distributors and sellers of products to the public, to deliver products free of defects which harm an individual or numerous persons and to make good on that responsibility if their products are defective. These can include faulty auto brakes, contaminated baby food, exploding bottles of beer, flammable children's pajamas or lack of label warnings. The key element in product liability law is that a person who suffers harm need prove only the failure of the product to make the seller, distributor and/or manufacturer reliable for damages. An injured person usually need only sue the seller and let him/her/it bring the manufacturer or distributor into the lawsuit or require contribution toward a judgment. However, all those possibly responsible should be named in the suit as defendants if they are known.
professional corporation n. a corporation formed for the purpose of conducting a profession which requires a license to practice, including attorneys, physicians, dentists, certified public accountants, architects and real estate brokers.
professional negligence n. See also: malpractice
proffer v. to offer evidence in a trial.
prohibition n. forbidding an act or activity. A court order forbidding an act is a writ of prohibition, an injunction or a writ of mandate (mandamus) if against a public official.
promise 1) n. a firm agreement to perform an act, refrain from acting or make a payment or delivery. In contract law, if the parties exchange promises, each promise is "consideration" (a valuable item) for the other promise. Failure to fulfill a promise in a contract is a breach of the contract, for which the other party may sue for performance and/or damages. 2) v. to make a firm agreement to act, refrain from acting or make a payment or delivery
promissory estoppel n. a false statement treated as a promise by a court when the listener had relied on what was told to him/her to his/her disadvantage. In order to see that justice is done a judge will preclude the maker of the statement from denying it. Thus, the legal inability of the person who made the false statement to deny it makes it an enforceable promise called "promissory estoppel," or an "equitable estoppel".
promissory note n. a person who puts together a business, particularly a corporation, including the financing. Usually the promoter is the principal shareholder or one of the management team and has a contract with the incorporators or makes a claim for shares of stock for his/her efforts in organization.
promotional stock n. stock issued in a newly formed corporation and given to a promoter (organizer) of the corporation in payment for his/her efforts in putting the company together and locating shareholders or other funding.
proof n. confirmation of a fact by evidence. In a trial, proof is what the trier of the fact needs to become satisfied that there is "a preponderance of the evidence" in civil (non-criminal) cases and the defendant is guilty "beyond a reasonable doubt" in criminal prosecutions. However, each alleged fact must be proved separately, as must all the facts necessary to reach a judgment for the plaintiff (the person filing a lawsuit) or for the prosecution (the "people" or "state" represented by the prosecutor). The defendants in both civil suits and criminal trials need not provide absolute "proof" of non-responsibility in a civil case or innocence (in a criminal case), since the burden is on the plaintiff or prosecution to prove their cases (or prove the person guilty).
proper party n. a person or entity who has an interest (financial or protection of some legal rights) in the subject matter of a lawsuit and, therefore, can join in the lawsuit as he/she/it wishes, or may be brought into the suit (as an unnecessary party) by one of the parties to the legal action. However, the judgment may leave some matters undecided. A proper party is distinguished from a "necessary party," which the court will order joined in (brought into) the suit if any judgment is to be reached.
property n. anything that is owned by a person or entity. Property is divided into two types: "real property," which is any interest in land, real estate, growing plants or the improvements on it, and "personal property" (sometimes called "personalty"), which is everything else. "Common property" is ownership by more than one person of the same possession. "Public property" refers to ownership by a governmental body such as the state, county or city governments or their agencies. The government and the courts are obligated to protect property rights and to help clarify ownership.
property damage n. injury to real or personal property through another's negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home or any other possession. The amount of recovery for property damage may be established by evidence of replacement value, cost of repairs, loss of use until repaired or replaced or, in the case of heirlooms or very personal items, by subjective testimony as to sentimental value.
property tax n. an annual governmental tax on real property or personal property based on a tax rate.
propria persona adj. from Latin, for oneself.
proprietary adj. referring to ownership.
proprietary interest n. a total or partial ownership.
proprietary rights n. those rights which go with ownership of real property or a business.
proprietor n. the owner of anything, but particularly the owner of a business operated by that individual.
prosecute v. 1) in criminal law, to charge a person with a crime and thereafter pursue the case through trial on behalf of the government. 2) to conduct any legal action by a lawyer on behalf of a client, including both civil and criminal cases, but most commonly referring to prosecution for crimes.
prosecution n. 1) in criminal law, the government attorney charging and trying the case against a person accused of a crime. 2) a common term for the government's side in a criminal case, as in "the prosecution will present five witnesses" or "the prosecution rests" (has completed its case).
prosecutor n. generic term for the government's attorney in a criminal case. A special prosecutor may be assigned to investigate as well as prosecute if necessary when a government official is involved directly or indirectly in the possible criminal activity.
prospectus n. a detailed statement by a corporation required when there is an issuance of stock to the general public. A prospectus includes the financial status, the officers, the plans, contingent obligations (such as lawsuits) of the corporation, recent performance and other matters which would assist the potential investor or investment adviser to evaluate the stock and the prospects of the company for profit, loss or growth. Every potential purchaser of shares of a new stock shares must receive a copy of the prospectus, even though they are difficult to understand. Offerings to the public of limited partnership interests may require that a prospectus be prepared and delivered to each investor.
prostitute n. a person who receives payment for sexual intercourse or other sexual acts, generally as a regular occupation. Although usually a prostitute refers to a woman offering sexual favors to men, male prostitutes may perform homosexual acts for money or receive payment from women for sexual services. A woman prostitute who is sent on a "date" to the hotel room or residence of a male customer is commonly referred to as a "call girl".
prostitution n. the profession of performing sexual acts for money. Prostitution is a crime. Soliciting acts of prostitution is also a crime, called pandering or simply, soliciting. Pandering on behalf of a prostitute is called pimping.
protective custody n. the act of law enforcement officials in placing a person in a government facility or foster home in order to protect him/her from a dangerous person or situation. Most commonly a child who has been neglected or battered or is in danger from a violent person is taken in as a temporary ward and held in probation facilities or placed in a foster home until a court can decide the future placement of the child. Protective custody is sometimes used to help women threatened by a husband, boyfriend or a stalker, and also for witnesses who have been threatened with physical harm or death if they testify.
protest 1) v. to complain in some public way about any act already done or about to be done, such as adoption of a regulation by a governemt, sending troops overseas, or use of the death penalty. 2) v. to dispute the amount of property taxes, the assessed evaluation of property for tax purposes or an import duty. 3) n. a written demand for payment of the amount owed on a promissory note which has not been paid when due or a check which has been dishonored (not paid by the bank).
prove v. to present evidence and/or logic that makes a fact seem certain. A party must do this to convince a trier of fact (jury or judge sitting without a jury) as to facts claimed and to win a lawsuit or criminal case.
provisional remedy n. a generic term for any temporary order of a court to protect a party from irreparable damage while a lawsuit or petition is pending.
proviso n. a term or condition in a contract or title document.
proximate cause n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the defendant's act must have been the proximate cause of the death of a victim to prove murder or manslaughter.
proxy n. 1) someone who is authorized to serve in one's place at a meeting, particularly with the right to cast votes. 2) the written authority given to someone to act or vote in someone's place. A proxy is commonly given to cast a stockholder's votes at a meeting of shareholders, and by board members and convention delegates.
public 1) n. the people of the nation, county, district or municipality which the government serves. 2) adj. referring to any agency, interest, property, or activity which is under the authority of the government or which belongs to the people. This distinguishes public from private interests as with public and private schools, public and private utilities, public and private hospitals, public and private lands and public and private roads.
public administrator n. a country official with the responsibility to handle the affairs of someone who has died with no known or available relative, executor or friend. At times the public administrator may be instructed by a court to assume similar duties for a living person when no conservator or guardian is available.
public benefit corporation n. a term used for a nonprofit community service corporation. Typical examples are clubs like Rotary and Lions.
public charge n. a general term for an indigent, sick or severely handicapped person who must be taken care of at public expense.
public corporation n. a corporation created to perform a governmental function or to operate under government control, such as a municipal water company or hospital.
public defender n. an elected or appointed public official, who is an attorney regularly assigned by the courts to defend people accused of crimes who cannot afford a private attorney. In larger counties the public defender has a large case load, numerous deputy public defenders and office staff.
public domain n. 1) in copyright law, the right of anyone to use literature, music or other previously copyrighted materials after the copyright period has expired. 2) all lands and waters owned by government.
public easement n. the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property.
public figure n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).
public nuisance n. a nuisance which affects numerous members of the public or the public at large (how many people it takes to make a public is unknown), as distinguished from a nuisance which only does harm to a neighbor or a few private individuals. Example: a factory which spews out clouds of noxious fumes is a public nuisance but playing drums at three in the morning is a private nuisance bothering only the neighbors.
public property n. property owned by the government or one of its agencies, divisions, or entities. Commonly a reference to parks, playgrounds, streets, sidewalks, schools, libraries and other property regularly used by the general public.
public record n. any information, minutes, files, accounts or other records which a governmental body is required to maintain and which must be accessible to scrutiny by the public. This includes the files of most legal actions. A court will take "judicial notice" of a public record (including hearsay in the record) introduced as evidence. For example: a recorded deed to show transfer of title or a criminal judgment are both public records.
public trust doctrine n. the principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest. Nevertheless, there has been a great deal of use for offshore oil drilling, for landfill, and marine shoreline development, in which protection of the public interest has been dubious at best.
public use n. the only purpose for which private property can be taken (condemned) by the government under its power of eminent domain. Public use includes: schools, streets, highways, hospitals, government buildings, parks, water reservoirs, flood control, slum clearance and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public.
public utility n. any organization which provides services to the general public, although it may be privately owned. Public utilities include electric, gas, telephone, water and television cable systems, as well as Taxis and bus service. They are allowed certain monopoly rights due to the practical need to service entire geographic areas with one system, but they are regulated by state, county and/or city public utility commissions.
publication n. 1) anything made public by print (as in a newspaper, magazine, pamphlet, letter, telegram, computer modem or program, poster, brochure or pamphlet), orally, or by broadcast (radio, television). 2) placing a legal notice in an approved newspaper of general publication in the county or district in which the law requires such notice to be published. 3) in the law of defamation (libel and slander) publication of an untruth about another to at least one single person. Thus one letter can be the basis of a suit for libel, and telling one person is sufficient to show publication of slander.
publish v. to make public to at least one other person by any means.
puffing n. the exaggeration of the good points of a product, a business, real property and the prospects for future rise in value, profits and growth. Since a certain amount of "puffing" can be expected of any salesman, it cannot be the basis of a lawsuit for fraud or breach of contract unless the exaggeration exceeds the reality.
punitive damages n. (synonymous with exemplary damages), damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.
putative adj. commonly believed, supposed or claimed. Thus a putative father is one believed to be the father unless proved otherwise, a putative marriage is one that is accepted as legal when in reality it was not lawful (e.g. due to failure to complete a prior divorce). A putative will is one that appears to be the final will but a later will is found that revokes it and shows that the putative will was not the last will of the deceased.
quantum meruit (kwahn-tuhm mare-ooh-it) n. Latin for "as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician's emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed.
quash v. to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as "quashing" service of a summons when the wrong person was served.
quasi (kway-zeye, kwah-zee) adj., adv. from Latin for "as if," almost, somewhat, to a degree (always used in combination with another word). Quasi refers to things and actions which are not exactly or fully what they might appear, but have to be treated "as if" they were.
quasi contract n. a situation in which there is an obligation as if there was a contract, although the technical requirements of a contract have not been fulfilled.
quasi corporation n. a business which has operated as a corporation without completing the legal requirements, often in the period just before formal incorporation.
quasi in rem adj. referring to a legal action which is primarily based on property rights, but includes personal rights as well.
quasi-criminal adj. a reference to a court's right to punish for actions or omissions as if they were criminal. The most common example is finding a parent who is delinquent in child support in contempt of court and penalizing him/her with a jail sentence. If a hearing is quasi-criminal the quasi-defendant is entitled to all due process protections afforded a criminal defendant.
quasi-judicial adj., adv. referring to the actions of an agency, boards or other government entity in which there are hearings, orders, judgments or other activities similar to those conducted by courts.
queen's bench n. 1) the highest court in Great Britain during the reign of a Queen, so that opinions are identified as a volume of Queen's Bench (QB).
query n. common lawyer lingo for a question to be answered.
question of fact n. in a lawsuit or criminal prosecution, an issue of fact in which the truth or falsity (or a mix of the two) must be determined by the "trier of fact" (the jury or the judge in a non-jury trial) in order to reach a decision in the case. A "question of fact" may also be raised in a motion for summary judgment which asks the court to determine whether there are any questions of fact to be tried, allowing the judge to rule on the case (usually to dismiss the complaint) at that point without a trial. "Questions of fact" are distinguished from "questions of law," which can only be decided by the judge.
question of law n. an issue arising in a lawsuit or criminal prosecution which only relates to determination of what the law is, how it is applied to the facts in the case, and other purely legal points in contention. All "questions of law" arising before, during and sometimes after a trial are to be determined solely by the judge and not by the jury. "Questions of law" are differentiated from "questions of fact," which are decided by the jury and only by the judge if there is no jury.
qui tam action (kwee tam) n. from Latin for "who as well," a lawsuit brought by a private citizen (popularly called a "whistle blower") against a person or company who is believed to have violated the law in the performance of a contract with the government or in violation of a government regulation, when there is a statute which provides for a penalty for such violations. Qui tam suits are brought for "the government as well as the plaintiff." In a qui tam action the plaintiff (the person bringing the suit) will be entitled to a percentage of the recovery of the penalty (which may include large amounts for breach of contract) as a reward for exposing the wrongdoing and recovering funds for the government.
quid pro quo (kwid proh kwoh) n. Latin for "something for something," to identify what each party to an agreement expects from the other, sometimes called mutual consideration. Example of its use: "What is the quid pro quo for my entering into this deal?"
quiet enjoyment n. the right to enjoy and use premises (particularly a residence) in peace and without interference. Quiet enjoyment is often a condition included in a lease. Thus, if the landlord interferes with quiet enjoyment, he/she may be sued for breach of contract. Disturbance of quiet enjoyment by another can be a "nuisance" for which a lawsuit may be brought to halt the interference or obtain damages for it.
quiet title action n. a lawsuit to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title. Such a suit usually arises when there is some question about clear title, there exists some recorded problem (such as an old lease or failure to clear title after payment of a mortgage), an error in description which casts doubt on the amount of property owned, or an easement used for years without a recorded description. An action for quiet title requires description of the property to be "quieted," naming as defendants anyone who might have an interest (including descendants-known or unknown- of prior owners), and the factual and legal basis for the claim of title. Notice must be given to all potentially interested parties, including known and unknown, by publication. If the court is convinced title is in the plaintiff (the plaintiff owns the title), a quiet title judgment will be granted which can be recorded and thus provide legal "good title." Quiet title actions are a common example of "friendly" lawsuits in which often there is no opposition.
quit v. to leave, used in a written notice to a tenant to leave the premises (notice to quit).
quitclaim deed n. a real property deed which transfers (conveys) only that interest in the property in which the grantor has title. Commonly used in transfers of title or interests in title, quitclaims are often made to family members, divorcing spouses, or in other transactions between people well-known to each other. Quitclaim deeds are also used to clear up questions of full title when a person has a possible but unknown interest in the property. Grant deeds and warranty deeds guarantee (warrant) that the grantor has full title to the property or the interest the deed states is being conveyed, but quitclaim deeds do not warrant good title.
quo warranto (kwoh wahr-rahn-toe) n. the name for a writ (order) used to challenge another's right to either public or corporate office or challenge the legality of a corporation to its charter (articles).
quorum n. the number of people required to be present before a meeting can conduct business. Unless stated differently in bylaws, articles, regulations or other rules established by the organization, a quorum is usually a majority of members. A quorum for meetings of corporate boards of directors, homeowners' associations, clubs and shareholders meetings are usually set in the bylaws. The quorum for meetings of governmental bodies such as commissions and boards are usually set by statute.
quotient verdict n. an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award. A quotient verdict is illegal and improper since it is based on guesses and not a rational discussion of the facts. Such a judgment will be set aside on a motion for a new trial and a mistrial will be declared by the judge.
race to the courthouse n. slang for the rule that the first deed, deed of trust, mortgage, lien or judgment which is recorded with the Recorder will have priority and prevail over later recordings no matter when the documents were dated.
ransom 1) n. money paid to a kidnapper in demand for the release of the person abducted. Ransom money can also be paid to return a valuable object such as a stolen painting. 2) v. to pay money to an abductor to return the person held captive.
rape 1) n. the crime of sexual intercourse (with actual penetration of a woman's vagina with the man's penis) without consent and accomplished through force, threat of violence or intimidation (such as a threat to harm a woman's child, husband or boyfriend). What constitutes lack of consent usually includes saying "no" or being too drunk or drug-influenced for the woman to be able to either resist or consent. "Date rape" involves rape by an acquaintance who refuses to stop when told to. Defense attorneys often argue that there had to be physical resistance, but the modern view is that fear of harm and the relative strengths of the man and the woman are obvious deterrents to a woman fighting back. Any sexual intercourse with a child is rape and even with consent involving a girl 14 to 18 is "statutory rape," on the basis that the female is unable to give consent. 2) v. to have sexual intercourse with a female without her consent through force, violence, threat or intimidation, or with a girl under age. Technically, a woman can be charged with rape by assisting a man in the rape of another woman. Dissatisfied with the typical prosecution of rape cases (in which the defense humiliates the accuser, and prosecutors are unable or unwilling to protect the woman from such tactics), women have been suing for civil damages for the physical and emotional damage caused by the rape, although too often the perpetrator has no funds. Protection services for rape victims have been developed by both public and private agencies. On the other side of the coin, there is the concern of law enforcement and prosecutors that women whose advances have been rejected by a man, or who have been caught in the act of consensual sexual intercourse may falsely cry "rape."
ratable adj. taxable according to value, such as an estate or property.
ratification n. confirmation of an action which was not pre-approved and may not have been authorized, usually by a principal (employer) who adopts the acts of his/her agent (employee).
ratify v. to confirm and adopt the act of another even though it was not approved beforehand.
rational basis n. a test of constitutionality of a statute, asking whether the law has a reasonable connection to achieving a legitimate and constitutional objective.
ready, willing and able adj. fully prepared to act, as in performing a contract.
real estate n. land, improvements and buildings thereon, including attached items and growing things. It is virtually the same as "real property," except real property includes interests which are not physical such as a right to acquire the property in the future.
real estate investment trust n. a real estate investment organization which finds investors and buys real property and gives each investor either a percentage interest in the property itself or an interest in a loan secured by a mortgage or deed of trust on the property. Usually the loan is used to develop the property and build upon it, and then there is a division of profits upon sale - if there is a profit.
real party in interest n. the person or entity who will benefit from a lawsuit or petition even though the plaintiff (the person filing the suit) is someone else, often called a "nominal" plaintiff. Example: a trustee files a suit against a person who damaged a building owned by the trust; the real party in the interest is the beneficiary of the trust.
real property n. 1) all land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all "interests" in the property, which may include the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate), the right to drill for oil, the right to get the property back (a reversion) if it is no longer used for its current purpose (such as use for a hospital, school or city hall), use of airspace (condominium) or an easement across another's property. Real property should be thought of as a group of rights like a bundle of sticks which can be divided. It is distinguished from personal property which is made up of movable items. 2) one of the principal areas of law like contracts, negligence, probate, family law and criminal law.
realty n. a short form of "real estate".
reasonable adj., adv. in law, just, rational, appropriate, ordinary or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities.
reasonable care n. the degree of caution and concern for the safety of himself/herself and others an ordinarily prudent and rational person would use in the circumstances. This is a subjective test of determining if a person is negligent, meaning he/she did not exercise reasonable care.
reasonable doubt n. not being sure of a criminal defendant's guilt to a moral certainty. Thus, a juror (or judge sitting without a jury) must be convinced of guilt of a crime (or the degree of crime, as murder instead of manslaughter) "beyond a reasonable doubt", and the jury will be told so by the judge in the jury instructions. However, it is a subjective test since each juror will have to decide if his/her doubt is reasonable. It is more difficult to convict under that test, than "preponderance of the evidence" to decide for the plaintiff (party bringing the suit) in a civil (non-criminal) trial.
reasonable reliance n. particularly in contracts, what a prudent person would believe and act upon if told something by another. Typically, a person is promised a profit or other benefit, and in reliance takes steps, in reliance on the promise, only to find the statements or promises were not true or were exaggerated. The one who relied can recover damages for the costs of his/her actions or demand performance if the reliance was "reasonable".
reasonable speed n. the speed of an automobile determined to be lower than the posted speed limit due to the circumstances, such as rain, icy road, heavy traffic, poor condition of the vehicle or gloom of night. Exceeding reasonable speed under the circumstances can result in being cited for speeding. In the law of negligence, exceeding reasonable speed in the prevailing conditions may be found to be negligent even though below the speed limit.
reasonable time n. in contracts, common custom in the business or under the circumstances will define "reasonable time" to perform or pay. It is bad practice to draft a contract using such a vague term.
reasonable wear and tear n. commonly used in leases to limit the tenant's responsibility (and therefore liability to repair or repaint) upon leaving. It is subjective, but the considerations include the length of time of tenancy (the longer the occupancy the more wear and tear can be expected), the lack of unusual damage such as a hole in the wall or a broken window, and the condition of the premises when the tenant moved in. This is often a source of conflict between landlord and tenant, particularly when there is a deposit for any damages "beyond reasonable wear and tear".
rebate 1) n. a discount or deduction on sales price. A secret rebate given by a subcontractor to a contractor in return for getting the job is illegal, since it cheats the person hiring the contractor. 2) v. to give a discount or deduction.
rebuttable presumption n. since a presumption is an assumption of fact accepted by the court until disproved, all presumptions are rebuttable. Thus rebuttable presumption is a redundancy.
rebuttal n. evidence introduced to counter, disprove or contradict the opposition's evidence or a presumption, or responsive legal argument.
receipt n. a written and signed acknowledgment by the recipient of payment for goods, money in payment of a debt or receiving assets from the estate of someone who has died.
receiver n. 1) a neutral person (often a professional trustee) appointed by a judge to take charge of the property and business of one of the parties to a lawsuit and receive his/her rents and profits while the right to the money has not been finally decided. Appointment of a receiver must be requested by petition of the other party to the suit, and will only be authorized if there is a strong showing that the money would not be available when a decision is made. The funds are held for the prevailing party. 2) a person appointed to receive rents and profits coming to a debtor either while a bankruptcy is being processed or while an arrangement is being worked out to pay creditors, so that funds will be paid for debts and possibly available for distribution to creditors. 3) shorthand for one who commits the crime of receiving stolen goods knowing they were obtained illegally.
receivership n. the process of appointment by a court of a receiver to take custody of the property, business, rents and profits of a party to a lawsuit pending a final decision on disbursement or an agreement that a receiver control the financial receipts of a person who is deeply in debt (insolvent) for the benefit of creditors. Thus, the term "the business is in receivership".
recess n. a break in a trial or other court proceedings or a legislative session until a certain date and time. Recess is not to be confused with "adjournment", which winds up the proceedings.
recidivist n. a repeat criminal offender, convicted of a crime after having been previously convicted.
reciprocal discovery n. the exchange of documents, lists of witnesses, and other information between the two sides of a lawsuit or criminal prosecution before trial.
reciprocity n. mutual exchange of privileges between nations, businesses or individuals.
reckless adj. in both negligence and criminal cases, careless to the point of being heedless of the consequences ("grossly" negligent). Most commonly this refers to the traffic misdemeanor "reckless driving." It can also refer to use of firearms (shooting a gun in a public place), explosives or heavy equipment.
reckless disregard n. gross negligence without concern for danger to others. Actually "reckless disregard" is redundant since reckless means there is a disregard for safety.
reckless driving n. operation of an automobile in a dangerous manner under the circumstances, including speeding (or going too fast for the conditions, even though within the posted speed limit), driving after drinking (but not drunk), having too many passengers in the car, cutting in and out of traffic, failing to yield to other vehicles and other negligent acts. It is a misdemeanor crime.
record 1) v. (ree-cored) to put a document into the official records at the office of the Recorder of Deeds. The process is that the document is taken or sent to the Recorder's office, a recording fee paid, the document is given a number (a document number, volume or reel number and page number), stamped with the date (and usually the time) of recording and the document returned. Normally recorded is any document affecting title to real property such as a deed, deed of trust, mortgage, release, declaration of homestead, easement, judgment, lien, request for notice of default, foreclosure, satisfaction of judgment, decree of distribution of a dead person's estates and sometimes long-term leases. These recordings provide a traceable chain of title to the property and give the public "constructive" notice of all interests in the property. 2) v. to write down or tape the minutes, financial transactions, discussions and other happenings at meetings. 3) n. (reck-urred) in trials, hearings or other legal proceedings the total of the proceedings which are transcribed by a court reporter and included in the minutes of the clerk or judge, as well as all the documents filed in the case. On an appeal, the record includes everything that transpired before the appeal, upon which the written briefs (opposing legal arguments) and oral argument are based. On appeal the court can consider only the record, unless there is a claim of "newly discovered evidence".
recording acts n. the statutes of each state which established the keeping of official records by Recorders of Deeds.
records n. in business, particularly corporations, all the written business documents, especially about financial dealings. Thus, shareholders and partners are entitled to access to the "records" of the business.
recoupment n. the right of a defendant in a lawsuit to demand deduction from the amount awarded to plaintiff (party bringing the suit) of a sum due the defendant from the plaintiff in the transaction which was the subject of the lawsuit. A recoupment is not the same as an "offset" (setoff), which can be money owed from any matter, including outside the lawsuit.
recourse n. the right to demand payment to the writer of a check or bill of exchange.
recover v. to receive a money judgment in a lawsuit.
recoverable adj. referring to the amount of money to which a plaintiff (the party suing) is entitled in a lawsuit. Thus, a judge might rule "Rs 12,500 is recoverable for lost wages, and Rs 5,500 is recoverable for property damage to plaintiff's vehicle."
recovery n. the amount of money and any other right or property received by a plaintiff in a lawsuit.
recusal n. the act of a judge or prosecutor being removed or voluntarily stepping aside from a legal case due to conflict of interest or other good reason.
recuse v. to refuse to be a judge (or for a judge to agree to a request by one of the parties to step aside) in a lawsuit or appeal because of a conflict of interest or other good reason (acquaintanceship with one of the parties, for example). It also applies to a judge or prosecutor being removed or voluntarily removing himself/herself from a criminal case in which he/she has a conflict of interest, such as friendship or known enmity to the defendant.
redeem v. to buy back, as when an owner who had mortgaged his/her real property pays off the debt. The term also refers to paying the amount due and all charges after a foreclosure (because of failure to make payments when due) has begun. A person who has pawned a possession may redeem the item by paying the loan and interest to the pawnbroker.
redemption n. the act of redeeming, buying back property by paying off a loan, interest and any costs of foreclosure.
reentry n. taking back possession and going into real property which one owns, particularly when a tenant has failed to pay rent or has abandoned the property, or possession has been restored to the owner by judgment in an unlawful detainer lawsuit. Reentry may also be allowed when a buyer defaults on payments on a contract of sale or upon foreclosure of a mortgage or deed of trust which secured a loan on the property. The right of reentry is usually written into leases and sometimes in mortgages.
referee n. a person to whom a judge refers a case to take testimony or acquire other evidence such as financial records and report to the court on such findings.
referendum n. the process by which the repeal or approval of an existing statute or state constitutional provision is voted upon.
reformation n. the correction or change of an existing document by court order upon petition of one of the parties to the document. Reformation will be ordered if there is proof that the parties did not intend the language as written or there was an omission due to mistake or misunderstanding. Quite often a party petitions for reformation when one or both parties realize the effect of the document as written is different from what was expected but it has already been recorded or filed with a governmental agency. Examples: a paragraph is omitted from a trust which results in the transfer to the trust being a gift subject to gift tax, and which needs to be corrected to keep the taxing authority from demanding payment. The attorney writing the final draft of a limited partnership agreement writes in a calculation which would triple the profit to a limited partner above the amount discussed by the parties, and when the limited partner refuses to change the document, the general partner sues for reformation.
refresh one's memory v. to use a document, exhibit or previous testimony in order to help a witness recall an event or prior statement when the witness has responded to a question that he/she could not remember. To attempt to "refresh" the memory of a forgetful or reluctant witness, the witness must have denied remembering and the attorney must have the witness identify the document, exhibit or prior statement (lay a foundation showing it is genuine).
register n. in corporations, the record of shareholders, and issuance and transfer of shares on the records of the corporation.
registration statement n. a detailed report to be filed with the Securities and Exchange Board by a corporation making an issuance of shares to be advertised and sold to the general public.
registry of deeds n. the records of land title documents kept by the Recorder of Deeds.
regulations n. rules and administrative codes issued by governmental agencies at all levels, municipal, state, etc. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations. The regulation-making process involves hearings, publication in governmental journals which supposedly give public notice, and adoption by the agency. The process is best known to industries and special interests concerned with the subject matter, but only occasionally to the general public.
rehearing n. conducting a hearing again based on the motion of one of the parties to a lawsuit, petition or criminal prosecution, usually by the court or agency which originally heard the matter. Rehearings are usually requested due to newly discovered evidence, an unfortunate and possibly unintended result of the original order, a change of circumstance or a simple claim that the judge or agency was just wrong.
rejection of claim n. a claim for a debt of the deceased denied (rejected) in total or in part by the executor or administrator of the estate. A claim is rejected in writing filed with the court, and a judge shall approve or disapprove the rejection if the claimant protests. If a claim is not acted upon it may be presumed to be approved. There are other types of claims which may be rejected by agencies or individuals, which can be protested in a lawsuit if all administrative procedures are used first.
release 1) v. to give up a right as releasing one from his/her obligation to perform under a contract, or to relinquish a right to an interest in real property. 2) v. to give freedom, as letting out of prison. 3) n. the writing that grants a release.
relevancy n. See also: irrelevant relevant
relevant adj. having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. Commonly, an objection to testimony or physical evidence is that it is "irrelevant".
reliance n. acting upon another's statement of alleged fact, claim or promise. In contracts, if someone takes some steps ("changes his position" is the usual legal language) in reliance on the other's statement, claim or promise then the person upon whom the actor relied is entitled to contend there is a contract he/she can enforce. However, the reliance must be reasonable.
reliction n. gradual change of water line on real property which gives the owner more dry land.
relief n. generic term for all types of benefits which an order or judgment of court can give a party to a lawsuit, including money award, injunction, return of property, property title, alimony and dozens of other possibilities.
remainder n. in real property law, the interest in real property that is left after another interest in the property ends, such as full title after a life estate (the right to use the property until one dies). A remainder must be created by a deed or will. A remainder is distinguished from a "reversion," which gives title back to the grantor of the property or to the grantor's descendants; a reversion need not be spelled out in a deed or will, but can occur automatically by "operation of law".
remainderman n. the person who will receive a remainder in real property.
remand v. to send back. An appeals court may remand a case to the trial court for further action if it reverses the judgment of the lower court, or after a preliminary hearing a judge may remand into custody a person accused of a crime if the judge finds that a there is reason to hold the accused for trial.
remedy n. the means to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, granted by judgment after trial or hearing, by agreement (settlement) between the person claiming harm and the person he/she believes has caused it, and by the automatic operation of law. Some remedies require that certain acts be performed or prohibited (originally called "equity"); others involve payment of money to cover loss due to injury or breach of contract; and still others require a court's declaration of the rights of the parties and an order to honor them. An "extraordinary remedy" is a means employed by a judge to meet particular problems, such as appointment of a referee, master or receiver to investigate, report or take charge of property. A "provisional remedy" is a temporary solution to hold matters in status quo pending a final decision or an attempt to see if the remedy will work.
remise v. to give up something, sometimes used in quitclaim deeds.
remittitur n. 1) a judge's order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff (person who brought the suit). 2) an appeal's transmittal of a case back to the trial court so that the case can be retried, or an order entered consistent with the appeals court's decision (such as dismissing the plaintiff's case or awarding costs to the winning party on appeal).
remote adj., adv. extremely far off or slight. Evidence may be so remote from the issues in a trial that it will not be allowed because it is "immaterial". An act which started the events which led to an accident may be too remote to be a cause, as distinguished from the "proximate cause".
removal n. 1) the change of a legal case from one court to another based on a motion by one of the parties stating that the other jurisdiction is more appropriate for the case. 2) taking away the position of a public official for cause, such as dishonesty, incompetence, conviction of a crime or successful impeachment.
renewal n. keeping an existing arrangement in force for an additional period of time, such as a lease, a promissory note, insurance policy or any other contract. Renewal usually requires a writing or some action which evidences the new term.
rent 1) v. to hire an object or real property for a period of time (or for an open-ended term) for specified payments. 2) n. the amount paid by the renter and received by the owner. Rent may be specified in a written lease, but also may be based on an oral agreement for either a short period or on a month-to-month basis in which the hiring may be terminated on a month's notice.
rental value n. the amount which would be paid for rental of similar property in the same condition in the same area. Evidence of rental value becomes important in lawsuits in which loss of use of real property or equipment is an issue, and the rental value is the "measure of damages." In divorce cases in which one of the spouses stays in the family residence, the use of the property has rental value which is considered in balancing the income of the parties, determining division of property or setting the amount of alimony to be paid.
renunciation n. 1) giving up a right, such as a right of inheritance, a gift under a will or abandoning the right to collect a debt on a note. 2) in criminal law, abandoning participation in a crime before it takes place, or an attempt to stop other participants from going ahead with the crime. A defendant may use renunciation as evidence of his/her innocence. Once the crime is underway, any claimed renunciation is factually too late.
reorganization n. the implementation of a business plan to restructure a corporation, which may include transfers of stock between shareholders of two corporations in a merger. In bankruptcy, a corporation in deep financial trouble may be given time to reorganize while being protected from creditors by the bankruptcy court. The theory is that if the business is able to get on its feet the creditors will eventually collect.
repair v. to restore to former condition or in some contracts to operational soundness. Contracts should spell out the repairs to be made and what the final condition will be.
repeal 1) v. to annul an existing law, by passage of a repealing statute, or by public vote on a referendum. Repeal of constitutional provisions requires an amendment. 2) n. the act of annulling a statute.
replevin n. under common law, the right to bring a lawsuit for recovery of goods improperly taken by another.
reply brief n. the written legal argument of the respondent (trial court winner) in answer to the "opening brief" of an appellant (a trial court loser who has appealed).
reports n. the published decisions of appeals courts, which are constantly updated with pamphlets called "advance sheets" which are soon followed by bound volumes. These reports are available in almost all law libraries.
repossess v. to take back property through judicial processes, foreclosure, or self-help upon default in required payments.
represent v. 1) to act as the agent for another. 2) to act as a client's attorney. 3) to state something as a fact, such as "I tell you this horse is only four years old". 4) to allege a fact in court, as "I represent to the court that we will present six witnesses", "We represent that this is the final contract between the parties".
representation n. 1) the act of being another's agent. 2) acting as an attorney for a client. 3) a statement of alleged fact either in negotiations or in court.
representative 1) n. an agent. 2) n. in probate law, a generic term for an executor or administrator of the estate of a person who has died, generally referred to as the "personal representative". 3) adj. typical, as "these pictures are representative of the conditions at the job site".
reprieve n. a temporary delay in imposition of the death penalty (a punishment which cannot be reduced afterwards) by the executive order of the Governor of the state. Reasons for reprieves include the possibility of newly discovered evidence (another's involvement, evidence of mental impairment), awaiting the result of some last-minute appeal, or concern of the Governor that there may have been some error in the record which he/she should examine. Upon the expiration of the reprieve the date for execution can be reset and the death penalty imposed. A reprieve is only a delay and is not a reduction of sentence, commutation of sentence or pardon.
repudiation n. denial of the existence of a contract and/or refusal to perform a contract obligation. Repudiation is an anticipatory breach of a contract.
reputation n. a person's good name, honor or what the community thinks of him/her. The quality and value of one's reputation is a key issue in suits for defamation (libel and slander) since the damage to one's reputation by published untruths may determine the amount of judgment against the defamer. Sometimes a person's favorable reputation is so great that most defamation cannot do him/her much harm.
reputed adj. referring to what is accepted by general public belief, whether or not correct.
request 1) v. to ask or demand a judge to act (such as issuing a writ) or demanding something from the other party (such as production of documents), usually by a party to a lawsuit (usually the attorney). 2) n. the act of asking or demanding.
requirements contract n. a contract between a supplier (or manufacturer) and a buyer, in which the supplier agrees to sell all the particular products that the buyer needs, and the buyer agrees to purchase the goods exclusively from the supplier. A requirements contract differs from an "an output contract", in which the buyer agrees to buy all the supplier produces.
res (rayz)n. Latin, "thing." In law lingo res is used in conjunction with other Latin words as "thing that".
res adjudicata n. a thing (legal matter) already determined by a court, from Latin for "the thing has been judged". More properly res judicata.
res gestae (rayz jest-tie) n. from Latin for "things done", it means all circumstances surrounding and connected with a happening. Thus, the res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime. Statements made within the res gestae of a crime or accident may be admitted in court even though they are "hearsay" on the basis that spontaneous statements in those circumstances are reliable.
res ipsa loquitur (rayz ip-sah loh-quit-her) n. Latin for "the thing speaks for itself", a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. Examples: a) a load of bricks on the roof of a building being constructed by Highrise Construction Company falls and injures Abraham Paul below, and Highrise is liable for Abraham's injury even though no one saw the load fall. b) While under anesthetic, John's nerve in his arm is damaged although it was not part of the surgical procedure, and he is unaware of which of a dozen medical people in the room caused the damage. Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to "res ips", and find it a handy shorthand for a complex doctrine.
res judicata (rayz judy-cot-ah) n. Latin for "the thing has been judged", meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Sometimes called res adjudicata.
resale n. selling again, particularly at retail. 2) adj. referring to sales to the general public, as distinguished from wholesale, sales to retailers. A "resale license" or "resale number" is required so that the state can monitor the collection of sales tax on retail sales.
rescind v. to cancel a contract, putting the parties back to the position as if the contract had not existed. Both parties rescind a contract by mutual agreement, since a unilateral cancellation of a contract is a "breach" of the contract and could result in a lawsuit by the non-cancelling party.
rescission n. the cancellation of a contract by mutual agreement of the parties.
rescue doctrine n. the rule of law that if a rescuer of a person hurt or put in peril due to the negligence or intentional wrongdoing of another (the tortfeasor) is injured in the process of the rescue, the original wrongdoer is responsible in damages for the rescuer's injury.
reservation n. a provision in a deed which keeps (reserves) to the grantor some right or portion of the property.
reserve v. to keep for oneself a right or a portion of the real property when transferring (conveying) a parcel of real estate to another.
reserve fund n. a fund of money created to take care of maintenance, repairs or unexpected expenses of a business or a multi-unit housing development (often a housing cooperative) operated by a homeowners association or other governing body.
residence n. 1) the place where one makes his/her home. However, a person may have his/her state of "domicile" elsewhere for tax or other purposes, especially if the residence is for convenience or not of long standing. 2) in corporation law, the state of incorporation.
resident n. a person who lives in a particular place. However, the term is vague depending on the permanence of the occupation.
residuary bequest n. in a will, the gift of whatever is left (the residue) after specific gifts are given. It is also called a residuary legacy.
residue n. in a will, the assets of the estate of a person who has died with a will (died testate) which are left after all specific gifts have been made. Typical language: "I leave the rest, residue and remainder [or just residue] of my estate to my grandchildren". If the residue is not given to any beneficiary it will be distributed pursuant to the laws of descent and distribution.
resisting arrest n. the crime of using physical force) to prevent arrest, handcuffing and/or taking the accused to jail. Sometimes referred to merely as "resisting".
resolution n. a determination of policy of a corporation by the vote of its board of directors. Legislative bodies also pass resolutions, but they are often statements of policy, belief or appreciation, and not always enactment of statutes or ordinances.
respondeat superior (rehs-pond-dee-at superior) n. Latin for "let the master answer", a key doctrine in the law of agency, which provides that a principal (employer) is responsible for the actions of his/her/its agent (employee) in the "course of employment". Thus, an agent who signs an agreement to purchase goods for his employer in the name of the employer can create a binding contract between the seller and the employer. Another example: if a delivery truck driver negligently hits a child in the street, the company for which the driver works will be liable for the injuries.
respondent n. 1) the party who is required to answer a petition for a court order or writ requiring the respondent to take some action, halt an activity or obey a court's direction. In such matters the moving party (the one filing the petition) is usually called the "petitioner". Thus, the respondent is equivalent to a defendant in a lawsuit, but the potential result is a court order and not money damages. 2) on an appeal, the party who must respond to an appeal by the losing party in the trial court (called "appellant") in the appeals court.
responsible adj. 1) legally liable or accountable. 2) having the ability to pay or perform.
restatement of the law n. a series of detailed statements of the basic law on a variety of subjects written and updated by well-known legal scholars. While not having the force of statutes or of decided precedents, the Restatement (as lawyers generally call it) has the prestige of the scholars who have studied the legal questions. Topics covered include agency, contracts, property, torts and trusts.
restitution n. 1) returning to the proper owner property or the monetary value of loss. Sometimes restitution is made part of a judgment in negligence and/or contracts cases. 2) in criminal cases, one of the penalties imposed is requiring return of stolen goods to the victim or payment to the victim for harm caused. Restitution may be a condition of granting a defendant probation or giving him/her a shorter sentence than normal.
restraining order n. a temporary order of a court to keep conditions as they are (like not taking a child out of the county or not selling marital property) until there can be a hearing in which both parties are present. More properly it is called a temporary restraining order.
restraint of trade n. in antitrust law, any activity (including agreements among competitors or companies doing business with each other) which tends to limit trade, sales and transportation in interstate commerce or has a substantial impact on interstate commerce. Most of these actions are illegal under the various antitrust statutes.
restraint on alienation n. an attempt in a deed or will to prevent the sale or other transfer of real property either forever or for an extremely long period of time. Such a restraint on the freedom to transfer property is generally unlawful and therefore void or voidable (can be made void if an owner objects), since a present owner should not be able to tie the hands of future generations to deal with their property. This ban on a restraint on alienation (transfer) is called "the rule against perpetuities".
restriction n. any limitation on activity, by statute, regulation or contract provision. In multi-unit real estate developments, condominium and cooperative housing projects managed by homeowners' associations or similar organizations, such organizations are usually required by law to impose restrictions on use. Thus, the restrictions are part of the "covenants, conditions and restrictions" intended to enhance the use of common facilities and property which are recorded and incorporated into the title of each owner.
restrictive covenant n. 1) an agreement included in a deed to real property that the buyer (grantee) will be limited as to the future use of the property. Example: no fence may be built on the property not more than six feet high, no tennis court or swimming pool may be constructed within 30 feet of the property line, and no structure can be built within 20 feet of the frontage street. Commonly these covenants are written so that they can be enforced by the grantor and other owners in the subdivision, so that future owners will be bound by the covenant (called "covenant running with the land" if enforceable against future owners).
restrictive endorsement n. an endorsement signed on the back of a check, note or bill of exchange which restricts to whom the paper may be transferred. Also spelled "indorsement".
result n. common lawyer lingo for outcome of a lawsuit.
resulting trust n. a trust implied by law (as determined by a court) that a person who holds title or possession was intended by agreement (implied by the circumstances) with the intended owner to hold the property for the intended owner. Thus, the holder is considered a trustee of a resulting trust for the proper owner as beneficiary. Although a legal fiction, the resulting trust forces the holder to honor the intention and prevents unjust enrichment. A resulting trust differs from a "constructive trust", which comes about when someone by accident, misunderstanding or dishonesty comes into possession of property belonging to another.
retainer n. the advance payment to an attorney for services to be performed, intended to insure that the lawyer will represent the client and that the lawyer will be paid at least that amount. Commonly in matters which will involve extensive work there will be a retainer agreement signed by the attorney and client. Further payments for services can be expected as the time spent on the legal matter increases. Most lawyers do not want to be owed money and wish to be paid either in advance or promptly as the work is performed. One reason for the retainer, and the problem a lawyer faces, is that he/she does not want to abandon a client, but at the same time does not want to be stuck with extensive unpaid fees.
retire v. 1) to stop working at one's occupation. 2) to pay off a promissory note and thus "retire" the loan. 3) for a jury to go into the jury room to decide on a verdict after all evidence, argument and jury instructions have been completed.
retraction n. 1) to withdraw any legal document in a lawsuit or other legal proceeding, or withdraw a promise or offer of contract. 2) in defamation, particularly libel, the correction of any untruth published in a newspaper or magazine or broadcast on radio or television, usually upon the demand of the person about whom the damaging false statement was made. A clear and complete retraction will usually end the right of the defamed party to go forward with a lawsuit for damages for libel.
retrial n. a new trial granted upon the motion of the losing party, based on obvious error, bias or newly discovered evidence, or after mistrial or reversed by an appeals court.
retroactive adj. referring to a court's decision or a statute enacted by a legislative body which would result in application to past transactions and legal actions. Some decisions are so fundamental to justice they may have a retroactive effect, depending on the balance between stability of the law and the public good. Retroactive is also called "retrospective".
return of service n. written confirmation under oath by a process server declaring that there was service of legal documents (such as a summons and complaint).
reversal n. the decision of a court of appeal ruling that the judgment of a lower court was incorrect and is therefore reversed. The result is that the lower court which tried the case is instructed to dismiss the original action, retry the case or change its judgment. Examples: a court which denied a petition for writ of mandate is ordered to issue the writ. A lower court which gave judgment with no evidence of damages is ordered to dismiss.
reversible error n. a legal mistake at the trial court level which is so significant (resulted in an improper judgment) that the judgment must be reversed by the appellate court. A reversible error is distinguished from an error which is minor or did not contribute to the judgment at the trial.
reversion n. in real property, the return to the grantor or his/her heirs of real property after all interests in the property given to others have terminated. Examples: a) George deeded property to the local hospital district for "use for health facilities only", and the hospital is eventually torn down and the property is now vacant. The property reverts to George's descendants. b) George wills the property to his sister's children only, who later died without children. When the last grandchild dies the property reverts to George's descendants. Reversion is also called "reverter".
reverter n. synonymous with reversion.
review n. the judicial consideration of a lower court judgment by an appellate court, determining if there were legal errors sufficient to require reversal. The process requires notice of appeal, obtaining a transcript of the trial or hearing at the trial level, obtaining all the pleadings and other documents filed in the original trial, preparation of briefs citing precedents and arguing that there was reversible error. Then the respondent (winner at the trial court) may file a responsive brief, and the appellant (the one appealing the decision) has the chance to file a brief in response to the respondent. The next step is oral argument (if allowed) before the appellate court. Appeals on procedural issues normally do not include oral argument. If the appellate court denies the appeal a rehearing may be requested but is seldom granted.
revival n. 1) requesting a court to reinstate the force of an old judgment. 2) reinstating a contract or debt by a new agreement after the right to demand performance or collect has expired under the statute of limitations (the time to sue).
revocation n. 1) mutual cancellation of a contract by the parties to it. 2) withdrawing an offer before it is accepted ("I revoke my offer"). 3) cancelling a document before it has come into legal effect or been acted upon, as revoking a will. 4) to recall a power or authority previously given, as cancelling a power of attorney or cancelling a driver's license due to traffic offenses.
revoke v. to annul or cancel an act, particularly a statement, document or promise, as if it no longer existed. Thus, a person can revoke a will or revoke an offer to enter into a contract, and a government agency can revoke a license.
rider n. 1) an attachment to a document which adds to or amends it. Typical is an added provision to an insurance policy, such as additional coverage or temporary insurance to cover a public event. 2) in legislatures, an amendment tacked on to a bill which has little or no relevance to the main purpose of the legislation, but is a way to get the amendment passed if the basic bill has support. 3) passenger.
right 1) n. an entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, real or personal. These rights include: various freedoms; protection against interference with enjoyment of life and property; civil rights enjoyed by citizens such as voting and access to the courts; natural rights accepted by civilized societies; human rights to protect people throughout the world from terror, torture, barbaric practices and deprivation of civil rights and profit from their labor; and constitutional guarantees as the right to freedoms of speech, press, religion, assembly and petition. 2) adj. just, fair, correct.
right of way n. 1) a pathway or road with a specific description. 2) the right to cross property to go to and from another parcel. The right of way may be a specific grant of land or an "easement", which is a right to pass across another's land. The mere right to cross without a specific description is a "floating" easement. Some rights of way are for limited use such as repair of electric lines or for deliveries to the back door of a store. Railroads own title to a right of way upon which to build permanent tracks. 3) in traffic ordinances, a driver is entitled to the "right of way" to proceed first ahead of other vehicles or pedestrians, depending on certain rules of the road, such as the first to reach an intersection. Failure to yield the right of way to the vehicle or person entitled to it can result in a citation and fine, to say nothing of an accident. It can also be evidence of negligence in a lawsuit for injuries suffered in an accident.
right to privacy n. the possible right to be let alone, in absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity (such as a magazine or television show) violating the right. However, the right to privacy does not extend to prohibiting someone from taking another person's picture on the street.
rights n. plural of right, which is the collection of entitlements which a person may have and which are protected by the government and the courts or under an agreement (contract).
riot n. 1) technically a turbulent and violent disturbance of peace by three or more people acting together. 2) an assemblage of people who are out of control, causing injury or endangering the physical safety of others and/or themselves, causing or threatening damage to property and often violating various laws both individually and as a group. The common thread is that the people in a riot have the power through violence to break the public peace and safety, requiring police action. Often a riot is declared after the crowd has been informed by police officers that the people constitute an "unlawful assembly" and are ordered to "disperse" immediately (historically in England called "reading the riot act"). If the crowd does not disperse, its members become subject to arrest for the crime of rioting, disturbing the peace, resisting arrest or other separate crimes ranging from assault to unlawful possession of firearms.
risk n. chances of danger or loss, particularly of property covered by an insurance policy or property being used or transported by another. Insurance companies assume the risk of loss and calculate their premiums by the value and the risk based on statistically determined chances. A trucking company assumes the risk of loss while carrying goods.
risk of loss n. the responsibility a carrier, borrower or user of property or goods assumes or an insurance company agrees to cover if there is damage or loss.
roadside test n. a preliminary test law enforcement officers use on a suspected drunk driver at the spot the driver has been pulled over.
robbery n. 1) the direct taking of property (including money) from a person (victim) through force, threat or intimidation. Robbery is a felony (crime punishable by a term in prison). "Armed robbery" involves the use of a gun or other weapon which can do bodily harm, such as a knife or club, and carries a stiffer penalty (longer possible term) than robbery by merely taking. 2) a term improperly used to describe thefts, including burglary (breaking and entering) and shoplifting (secret theft from the stock of a store), expressed: "We've been robbed".
rogatory letters n. a written request by a judge to a judge in another state asking that a witness in the other state have his/her testimony taken in the other state's court for use in the local court case.
royalty n. a percentage of gross or net profit or a fixed amount per sale to which a creator of a work is entitled which is determined by contract between the creator and the manufacturer, publisher, agent and/or distributor. Inventors, authors, movie makers, scriptwriters, music composers, musicians and other creators contract with the manufacturers, publishers, movie production companies and distributors, as well as producers and distributors for a license to manufacture and/or sell the product, who pay a royalty to the creator based on a percentage of funds received. Should someone use another person's creation either purposely or by mistake, the user could be found liable to the creator for all profits on the basis of copyright or patent infringement, which usually is far more than a royalty. However, a creator does not have to license his/her creation to anyone.
rule 1) v. to decide a legal question, by a court, as in: "I rule that the plaintiff is entitled to the goods and damages for delay in the sum of Rs 10,000". 2) v. to make a judicial command. 3) n. any regulation governing conduct. 4) n. one of the regulations of covering legal practice before a particular group of courts, collectively called "rules of court" adopted by local judges. 5) n. a legal principle set by the decision in an appellate case.
rule against perpetuities n. the legal prohibition against tying up property so that it cannot be transferred or vest title in another forever, for several future generations, or for a period of centuries.
rules of court n. a set of procedural regulations adopted by courts which are mandatory upon parties and their lawyers on matters within the jurisdiction of those courts. Local rules encompass the time allowed to file papers, the format of documents (including the paper colors of appeal court briefs), the number of copies to be filed, the procedure to file motions, the basis for calculating alimony and child support, fees for filing various documents and numerous other mundane but vital matters. These rules are violated or ignored at the peril of the client and his/her/its counsel.
ruling n. court decision on a case or any legal question.
running at large adj. 1) referring to cattle or other animals which have escaped from an enclosure and are wandering. The owner will be liable for damage caused by such animals. 2) political campaigning by a candidate running for an office from no specific district, but from an entire city or state.
running with the land adj. permanently part of the title (ownership) to real property
said adj. a reference back to a thing that was previously mentioned or identified, popular in legal documents, as "the said driver drove the automobile in a negligent manner."
sale n. transfer of something (and title to it) in return for money (or other thing of value) on terms agreed upon between buyer and seller. The price paid may be based on a posted cost, established by negotiation between seller and buyer, or by auction with potential buyers bidding until the highest bid is accepted by the seller or his agent (auctioneer).
salvage 1) v. to save goods. 2) n. payment to a person or group which saves cargo from a shipwreck.
sanction n. 1) a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court. If a fine, the sanction may be paid to the court or to the opposing party to compensate the other side for inconvenience or added legal work due to the rule violation.
satisfaction n. receiving payment or performance of what is due.
satisfaction of judgment n. a document signed by a judgment creditor (the party owed the money for the judgment) stating that the full amount due on the judgment has been paid. The judgment creditor (the party who paid the judgment) is entitled to demand that the judgment creditor (the party to whom the money judgment is owed) sign the satisfaction of judgment, file it with the court clerk, acknowledge it before a notary public, and record the document with the Recorder of Deeds if there is an abstract of judgment (a document showing the amount of the judgment which is a lien on any real property belonging to the defendant) on record.
satisfaction of mortgage n. a document signed by a lender acknowledging that a mortgage has been fully paid. It must be recorded with the Recorder of Deeds to clear the title to the real property owned by the person who paid off the debt.
save harmless v. 1) also called hold harmless, to indemnify (protect) another from harm or cost. 2) to agree to guarantee that any debt, lawsuit or claim which may arise as a result of a contract or contract performance will be paid or taken care of by the party making the guarantee. Example: the seller of a business agrees to "save harmless" the buyer from any unknown debts of the business.
savings and loan n. a banking and lending institution, chartered by the government. Savings and loans only make loans secured by real property from deposits, upon which they pay interest slightly higher than that paid by most banks.
scienter n. Latin for "having knowledge." In criminal law, it refers to knowledge by a defendant that his/her acts were illegal or his/her statements were lies and thus fraudulent.
scintilla n. Latin for "spark." Scintilla is commonly used in reference to evidence, in the context that there must be a "scintilla of evidence" (at least a faint spark) upon which to base a judgment.
scope of employment n. actions of an employee which further the business of the employer and are not personal business, which becomes the test as to whether an employer is liable for damages due to such actions under the doctrine of respondeat superior (make the master answer). Example: Mathew drives a truck delivering groceries for Super Market. If Mathew negligently runs the truck into James while making deliveries or on the way back from a delivery, then Super Market is liable since the accident was in the scope of employment. If Mathew goes outside the delivery route to have lunch with his girlfriend and on the way hits James then there is a strong inference he was outside the scope of employment.
scrivener n. a person who writes a document for another, usually for a fee. If a lawyer merely writes out the terms of a lease or contract exactly as requested by the client, without giving legal advice, then the lawyer is just a scrivener and is probably not responsible for legal errors (unless they were so obvious as to warrant comment). A non-lawyer may act as a scrivener without getting in trouble for practicing law without a license.
seal n. a device which creates an impression upon paper or melted wax, used by government agencies, corporations and notaries public to show that the document is validly executed, acknowledged or witnessed, since the seal is unique to the sealer. Corporate seals state the name, date and Place of incorporation. Notaries increasingly use a rubber stamp instead of a seal since their print is easier to microfilm for official recording than is a faint embossed impression. Contracts used to be "sealed," but that is rare today.
sealed verdict n. the decision of a jury when there is a delay in announcing the result, such as waiting for the judge, the parties and the attorneys to come back to court. The verdict is kept in a sealed envelope until handed to the judge when court reconvenes.
sealing of records n. trial records and decisions which a judge orders kept secret. Usually these are the criminal records of under-age offenders which cannot be examined without a special court order or only by those connected with law enforcement. On occasion records in civil trials are sealed on the motion of a party claiming the need to protect inventions, business secrets or national security. Sometimes sealing is stipulated as part of a settlement to keep the terms from public scrutiny.
search v. 1) to examine another's premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional to conduct a search without a "search warrant" issued by a judge or without facts which give the officer "probable cause" to believe evidence of a specific crime is on the premises and there is not enough time to obtain a search warrant. 2) to trace the records of ownership of real property in what is commonly called a "title search."
search and seizure n. examination of a person's premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, a blood-soaked blanket).
search warrant n. a written order by a judge which permits a law enforcement officer to search a specific place and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," "evidence of bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor).
second degree murder n. a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility. Second degree murder is different from first degree murder, which is a premeditated, intentional killing or results from a vicious crime such as arson, rape or armed robbery.
secondary boycott n. an organized refusal to purchase the products of, do business with or perform services for (such as deliver goods) a company which is doing business with another company where the employees are on strike or in a labor dispute.
secret rebate n. a kickback of money by a business to a "preferred" customer, not offered to the public or by a subcontractor to a contractor not shown on a job estimate. Both are illegal as unfair business practices and may result in criminal penalties or refusal of a court to enforce a contract (written or oral) in which there is such a secret rebate.
secured transaction n. any loan or credit in which property is pledged as security in the event payment is not made.
securities n. generic term for shares of stock, bonds and debentures issued by corporations and governments to evidence ownership and terms of payment of dividends or final pay-off. They are called securities because the assets and/or the profits of the corporation or the credit of the government stand as security for payment. However, unlike secured transactions in which specific property is pledged, securities are only as good as the future profitability of the corporation or the management of the governmental agency. Most securities are traded on various stock or bond markets.
security deposit n. a payment required by a landlord from a tenant to cover the expenses of any repairs of damages to the premises greater than normal "wear and tear." The security deposit must be returned within a short time after the tenant vacates, less the cost of repairing any unusual damage. Unfortunately for tenants, these damages are usually subject to the judgment of the landlord, who may desire to paint and refinish on the tenant's money, which results in many small claims suits.
security interest n. generic term for the property rights of a lender or creditor whose right to collect a debt is secured by property.
sedition n. the crime of advocacy of insurrection against the government or support for an enemy of the nation during time of war, by speeches, publications and organization. Sedition usually involves actually conspiring to disrupt the legal operation of the government and is beyond expression of an opinion or protesting government policy. Sedition is a lesser crime than "treason," which requires actual betrayal of the government, or "espionage." Espionage involves spying on the government, trading military secrets to another country (even a friendly nation), or sabotaging governmental facilities, equipment or suppliers of the government, like an aircraft factory.
seduction n. the use of charm, salesmanship, promises, gifts and flattery to induce another person to have sexual intercourse outside marriage, without any use of force or intimidation. However, just as adultery lingers in the criminal codes so does seduction.
seisin (sees-in) n. an old term for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple (full title to real property).
seized (seised) n. 1) having ownership, commonly used in wills as "I give all the property of which I die seized as follows:…." 2) having taken possession of evidence for use in a criminal prosecution. 3) having taken property or a person by force.
seizure n. the taking by law enforcement officers of potential evidence in a criminal case. The constitutional limitations on seizure are the same as for search. Thus, evidence seized without a search warrant or without "probable cause" to believe a crime has been committed and without time to get a search warrant, cannot be admitted in court, nor can evidence traced through the illegal seizure.
self-dealing n. in the stock market, using secret "inside" information gained by being an official of a corporation (or from such an officer) to buy or sell stock (or real property wanted by the corporation) before the information becomes public (like a merger, poor profit report, striking oil). Self-dealing can also apply to general partners of a limited partnership who do not inform limited partners of business opportunities which should belong to the partnership. Self-dealing can result in a lawsuit for fraud by shareholders.
self-defense n. the use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor, if the defender has reason to believe he/she/they is/are in danger. Self-defense is a common defense by a person accused of assault, battery or homicide. The force used in self-defense may be sufficient for protection from apparent harm (not just an empty verbal threat) or to halt any danger from attack, but cannot be an excuse to continue the attack or use excessive force. Examples: an unarmed man punches Jose, who hits the attacker with a stick. That is legitimate self-defense, but Jose cannot chase the attacker and shoot him or beat him senseless. If the attacker has a gun or a butcher knife and is verbally threatening, Jose is probably warranted in shooting him. Basically, appropriate self-defense is judged on all the circumstances. Reasonable force can also be used to protect property from theft or destruction. Self-defense cannot include killing or great bodily harm to defend property, unless personal danger is also involved, as is the case in most burglaries, muggings or vandalism.
self-executing adj. immediately effective without further action, legislation or legal steps. Some statutes are self-executing, as are some legal rights (such as when a person holds property as security and title passes automatically when payments are not made). Most judgments in lawsuits are not self-executing and are only documents giving the winning party the right to try to collect.
self-help n. 1) obtaining relief or enforcing one's rights without resorting to legal action, such as repossessing a car when payments have not been made, retrieving borrowed or stolen goods, demanding and receiving payment or abating a nuisance (such as digging a ditch to divert flooding from another's property). Self-help is legal as long as it does not "break the public peace" or violate some other law (although brief trespass is common). 2) the maximizing of one's opportunities.
self-incrimination n. making statements or producing evidence which tends to prove that one is guilty of a crime.
self-serving adj. referring to a question asked of a party to a lawsuit or a statement by that person that serves no purpose and provides no evidence, but only argues or reinforces the legal position of that party. Example: Question asked by a lawyer of his own client: "Are you the sort of person who would never do anything dishonest?" Such a question may be objected to as "self-serving" by the opposing lawyer and will be disallowed by the judge, unless there is some evidentiary value. Some people add self-serving comments to their testimony, such as "I never tell lies," which can be stricken from the record as a self-serving declaration.
sell v. to transfer possession and ownership of goods or other property for money or something of equivalent value.
seller n. one who sells goods or other property to a buyer (purchaser).
senior lien n. the first security interest (lien or claim) placed upon property at a time before other liens, which are called "junior" liens.
sentence 1) n. the punishment given to a person convicted of a crime. A sentence is ordered by the judge, based on the verdict of the jury (or the judge's decision if there is no jury) within the possible punishments set by law. Popularly, "sentence" refers to the jail or prison time ordered after conviction, as in "his sentence was 10 years in prison." Technically, a sentence includes all fines, community service, restitution or other punishment, or terms of probation. Defendants who are first offenders without a felony record may be entitled to a probation or pre-sentence report by a probation officer based on background information and circumstances of the crime, often resulting in a recommendation as to probation and amount of punishment. Under some circumstances the defendant may receive a "suspended sentence," which means the punishment is not imposed if the defendant does not get into other trouble for the period he/she would have spent in jail or prison; "concurrent sentences," in which the prison time for more than one crime is served at the same time and only lasts as long as the longest term; "consecutive sentences," in which the terms for several crimes are served one after another; and "indeterminate" sentences, in which the actual release date is not set and will be based on review of prison conduct. 2) v. to impose a punishment on a person convicted of a crime.
separation n. married persons living apart, either informally by one leaving the home or agreeing to "separate" while sharing a residence without sexual relations, or formally by obtaining a "legal separation" or negotiating a "separation agreement" setting out the terms of separate living.
separation agreement n. an agreement between two married people who have agreed to live apart for an unspecified period of time, perhaps forever. The agreement generally covers any alimony (money paid for spousal support), child support, custody arrangements if there are children, payment of bills and management of separate bank accounts. A separation agreement may determine division of property if the separation appears permanent. It cannot be enforced by court order unless one party files a petition for legal separation or files a lawsuit for specific performance of a contract. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.
sequester v. to keep separate or apart. In so-called "high-profile" criminal prosecutions (involving major crimes, events or persons given wide publicity) the jury is sometimes "sequestered" in a hotel without access to news media, the general public or their families except under supervision, in order to prevent the jury from being "tainted" by information or opinions about the trial outside of the evidence in the courtroom. A witness may be sequestered from hearing the testimony of other witnesses, commonly called being "excluded," until after he/she has testified, supposedly to prevent that witness from being influenced by other evidence or tailoring his/her testimony to fit the stories of others.
sequestration n. the act of a judge issuing an order that a jury or witness be sequestered (kept apart from outside contacts during trial).
seriatim (sear-ee-ah-tim) prep. Latin for "one after another" as in a series. Thus, issues or facts are discussed seriatim (or "ad seriatim"), meaning one by one in order.
servant n. an employee of an employer, technically one who works for a master. A servant is distinguished from an "independent contractor" who operates his/her own business even though spending much time on the work of a particular person or entity. The servant has established hours or piece work, is under the direction of the employer even as to details, cannot work for competitors and acts for the benefit of the employer rather than for himself/herself.
service n. 1) paid work by another person, either by contract or as an employee. "Personal services" is work that is either unique (such as an artist or actor) or based on a person's particular relationship to employer (such as a butler, or a driver). 2) the domestic activities of a wife, including the marital relationship (consortium), are legally considered "services" for which a deprived husband may sue a person who has caused injury to his wife. 3) the official delivery of legal documents ("service of process") such as a summons, subpena, complaint, order to show cause (order to appear to show reasons why a judge should not make a particular order), writ (court order), or notice to quit the premises, as well as delivery by mail or in person of documents to opposing attorneys or parties, such as answers, motions, points and authorities, demands and responses.
service by fax n. delivery of legal documents required by statute to be "served" by transmitting through telecopier phone (FAX), followed by mailing an original ("hard copy"). Increasingly, the courts recognize this as legitimate service since it is instantaneous.
service by mail n. mailing legal pleadings to opposing attorneys or parties, while filing the original with the court clerk with a declaration stating that the copy was mailed to a particular person at a specific address. Once a party has responded by filing an answer, subsequent pleadings (except orders to show cause and orders of examination) can be served upon his/her/its attorney by mail.
service by publication n. serving a summons or other legal document in a lawsuit on a defendant by publishing the document in an advertisement in a newspaper of general circulation. Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, unknown (as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence" (trying hard). Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address or to give notice to people who might have a right to object to a "quiet title" action to clear title to real property.
service of process n. the delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called "substituted service" can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office or with a designated "agent for acceptance of service", or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.
services n. work performed for pay.
servient estate n. real property which has an easement or other use imposed upon it in favor of another property (called the "dominant estate"), such as right of way or use for access to an adjoining property or utility lines. The property giving usage is the servient estate, and the property holding usage of the easement is the dominant estate.
session n. 1) a meeting (or "sitting") of a court for a particular period of time. "Session" technically means one day's business (as in "today's session"). 2) the term of an appeals court covering several months.
set v. to schedule, as to "set a case for trial."
set aside v. to annul or negate a court order or judgment by another court order. Example: a court dismisses a complaint believing the case had been settled. Upon being informed by a lawyer's motion that the lawsuit was not settled, the judge will issue an order to "set aside" the original dismissal.
setoff (offset) n. a claim by a defendant in a lawsuit that the plaintiff (party filing the original suit) owes the defendant money which should be subtracted from the amount of damages claimed by plaintiff. By claiming a setoff the defendant does not necessarily deny the plaintiff's original demand, but he/she claims the right to prove the plaintiff owes him/her an amount of money from some other transaction and that the amount should be deducted from the plaintiff's claim.
setting n. the action of a court, clerk or commissioner in scheduling a trial or hearing.
settle v. to resolve a lawsuit without a final court judgment by negotiation between the parties, usually with the assistance of attorneys and/or insurance adjusters, and sometimes prodding by a judge. Most legal disputes are settled prior to trial.
settlement n. the resolution of a lawsuit (or of a legal dispute prior to filing a complaint or petition) without going forward to a final court judgment. Most settlements are achieved by negotiation in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company's insured defendant) and the parties agree to terms of settlement. A settlement is sometimes reached based upon a final offer just prior to trial (proverbially "on the courthouse steps") or even after trial has begun. A settlement reached just before trial or after a trial or hearing has begun is often "read into the record" and approved by the court so that it can be enforced as a judgment if the terms of the settlement are not complied with. Most lawsuits result in settlement.
settlor n. the person who creates a trust by a written trust declaration, called a "Trustor" and sometimes referred to as the "Donor." The settlor usually transfers the original assets into the trust.
severable contract n. an agreement which is made up of several separate contracts between the same parties, such as series of sales, shipments or different pieces of equipment. Therefore, breach of one of the separate (severable) contracts is not a breach of the remainder of the overall contract and is not an excuse for the other party to refuse to honor any divisable part of the contract which has not been breached.
several liability n. referring to responsibility of one party for the entire debt (as in "joint and several") or judgment when those who jointly agreed to pay the debt or are jointly ordered to pay a judgment do not do so. A person who is stuck with "several liability" because the others do not pay their part may sue the other joint debtors for contribution toward the payment he/she has made.
severance n. 1) a separating by court order, such as separate trials for criminal defendants who were charged with the same crime, or trying the negligence aspect of a lawsuit before a trial on the damages. Such division of issues in a trial is sometimes also called "bifurcation." Severance is granted when a joint trial might be unfair or reaching a decision on one issue (such as negligence) may save the trouble of hearing the other questions. 2) extra pay offered and made to a person to encourage him/her to resign, retire or settle a potential claim for discharge.
sex offender n. generic term for all persons convicted of crimes involving sex, including rape, molestation, sexual harassment and pornography production or distribution.
sexual harassment n. unwanted sexual approaches (including touching, feeling, groping) and/or repeated unpleasant, degrading and/or sexist remarks directed toward an employee with the implied suggestion that the target's employment status, promotion or favorable treatment depend upon a positive response and/or "cooperation." Sexual harassment is a private nuisance, unfair labor practice which may be the basis for a lawsuit against the individual who made the advances and against the employer who did not take steps to halt the harassment.
shall v. 1) an imperative command as in "you shall not kill." 2) in some statutes, "shall" is a direction but does not mean mandatory, depending on the context.
share n. 1) a portion of a benefit from a trust, estate, claim or business usually in equal division (or a specifically stated fraction) with others ("to my three daughters, in equal shares"). 2) a portion of ownership interest in a corporation, represented by a stock certificate stating the number of shares of an issue of the corporation's stock.
share and share alike adj. referring to the equal division of a benefit from an estate, trust or gift, which includes the right of the survivors to divide the portion of any beneficiary who dies before receiving the gift.
shareholder n. the owner of one or more shares of stock in a corporation, commonly also called a "stockholder." The benefits of being a shareholder include receiving dividends for each share as determined by the board of directors, the right to vote (except for certain preferred shares) for members of the board of directors, to bring a derivative action (lawsuit) if the corporation is poorly managed, and to participate in the division of value of assets upon dissolution and winding up of the corporation, if there is any value. A shareholder should have his/her name registered with the corporation, but may hold a stock certificate which has been signed over to him/her. Before registration the new shareholder may not be able to cast votes represented by the shares.
shareholders' agreement n. an employment agreement among the shareholders of a small corporation permitting a shareholder to take a management position with the corporation without any claim of conflict of interest or self-dealing against the shareholder/manager. Such agreements are common when there are only three or four shareholders.
shareholders' meeting n. a meeting, usually annual, of all shareholders of a corporation (although in large corporations only a small percentage attend) to elect the board of directors and hear reports on the company's business situation. In larger corporations top management people hold the proxies signed over to them by many of the shareholders to vote for them.
sharp practice n. actions by a lawyer using misleading statements to opposing counsel or the court, denial of oral stipulations (agreements between attorneys) previously made, threats, improper use of process or tricky and/or dishonorable means barely within the law. A consistent pattern of sharp practice may lead to discipline by the state bar association or by the courts.
sheriff n. the top law enforcement officer for a county like United States, usually elected and responsible for police protection outside of incorporated cities, management of the county jail, providing bailiffs for protection of the courts, and such civil activities as serving summonses, subpenas and writs, conducting judgment sales, and fulfilling various functions ordered by the courts.
shield laws n. statutes enacted which declare that communications between news reporters and informants are confidential and privileged and thus cannot be testified to in court. This is similar to the doctor-patient, lawyer-client or priest-parishioner privilege. The concept is to allow a journalist to perform his/her function of gathering news without being ordered to reveal his/her sources and notes of conversations.
shifting the burden of proof n. the result of the plaintiff in a lawsuit meeting its burden of proof in the case, in effect placing the burden with the defendant, at which time it presents a defense. There may be shifts of burden of proof on specific factual issues during a trial, which may impact the opposing parties and their need to produce evidence.
short cause n. a lawsuit which is estimated by the parties (usually their attorneys) and the trial setting judge to take no more than one day. Thus, a short cause may be called on the "short cause" calendar and get priority on the calendar since it can be fitted into the court's schedule and will not tie up a courtroom for a long period. Short causes may be treated differently from "long cause" cases, such as not requiring a settlement conference or having the cases tried by "pro tem" judges. However, if a supposed "short cause" lasts beyond one day the judge is authorized to declare a mistrial and the case will be reset later as a "long cause."
shortening time n. an order of the court in response to the motion of a party to a lawsuit which allows setting a motion or other legal matter at a time shorter than provided by law or court rules. Shortening time is usually granted when the time for trial or some other court action is approaching and a hearing must be heard promptly by the judge. Example: the local rules require that a party give the other side 10 days' notice before a hearing. A hearing on adding a witness to the expert list would be useless unless heard in five days, since the trial is set to be called in nine days. The court may shorten the time to schedule the hearing to five days, provided the notice is served within 24 hours.
show cause order n. an order of the court, also called an order to show cause or OSC, directing a party to a lawsuit to appear on a certain date to show cause why the judge should not issue a specific order or make a certain finding.
sidebar n. 1) physically, an area in front of or next to the judge's bench (the raised desk in front of the judge) away from the witness stand and the jury box, where lawyers are called to speak confidentially with the judge out of earshot of the jury. 2) a discussion between the judge and attorneys at the bench off the record and outside the hearing of the jurors or spectators. 3) in journalism, a brief story on a sidelight to a news story, such as a biographical sketch about a figure in the news or an anecdote related to the main story, and sometimes enclosed within a box.
sign v. 1) to write one's signature on a document. 2) to communicate by sign language.
silent partner n. a non-legal term for an investor who puts money into a business, takes no part in management and is often unknown to customers. A "limited partner," who is prohibited from taking part in management and has no liability for debts beyond his/her investment, is a true silent partner. However, without a limited partnership agreement, a silent partner is responsible for the debts of the partnership as a general partner.
similarly situated adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a "class action," brought for the benefit of the party filing the suit as well as all those "similarly situated." To be similarly situated, the defendants, basic facts and legal issues must be the same, and separate lawsuits would be impractical or burdensome.
simple trust n. a trust which requires that all income be distributed each year and not accumulated.
simultaneous death act n. if a husband and wife or siblings die in an accident in which they died at the same moment or it cannot be determined who died first, it is presumed that each died before the other for determining inheritance.
sine qua non (see-nay kwah nahn) prep. Latin for "without which it could not be," an indispensable action or condition.
situs n. Latin for "location," be it where the crime or accident took place or where the building stands.
slander n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements, such as an untrue accusation of having committed a crime, having a loathsome disease or being unable to perform one's occupation, are treated as slander per se since the harm and malice are obvious and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.
sodomy n. anal copulation by a man inserting his penis in the anus either of another man or a woman. If accomplished by force, without consent or with someone incapable of consent, sodomy is a felony in the same way that rape is. Traditionally sodomy was called "a crime against nature." Sodomy does not include oral copulation or sexual acts with animals (bestiality).
sole proprietorship n. a business owned by one person, as distinguished from a partnership or corporation.
solicitation n. the crime of encouraging or inducing another to commit a crime or join in the commission of a crime. Solicitation may refer to a prostitute's (or her pimp's) offer of sexual acts for pay.
solicitor n. an English attorney who may perform all legal services except appear in court. Under the British system, the litigator or trial attorney takes special training in trial work and is called a "barrister." Occasionally a solicitor becomes a barrister, which is called "taking the silk".
solitary confinement n. the placement of a prisoner in a prison in a cell away from other prisoners, usually as a form of internal penal discipline, but occasionally to protect the convict from other prisoners or to prevent the prisoner from causing trouble. Long-term solitary confinement may be found to be unconstitutional as "cruel and unusual punishment".
solvency n. 1) having sufficient funds or other assets to pay debts. 2) having more assets than liabilities (debts). The contrast is "insolvency," which may be a basis for filing a petition in bankruptcy.
sound mind and memory n. having an understanding of one's actions and reasonable knowledge of one's family, possessions and surroundings. This is a phrase often included in the introductory paragraph of a will in which the testator (writer of the will) declares that he/she is "of sound mind and memory". The general test is whether the person making the will understood: a) the meaning and effect of the will, b) what the person owned (more or less), and c) the "natural objects of his/her bounty", meaning the immediate family and any other particularly close relatives or friends to whom he/she might leave things.
sounds in adj. referring to the underlying legal basis for a lawsuit or one of several causes of action in a suit, such as contract or tort (civil wrong). The phrasing might be: "Plaintiff's first cause of action against Defendant sounds in tort, and his second cause of action sounds in contract".
speaking demurrer n. an attempt to introduce evidence during a hearing on a demurrer. A demurrer is a legal opposition to a complaint in a lawsuit (or to an answer), which says, in effect, that even if the factual claims (allegations) are true, there are legal flaws or failures in the lawsuit. Therefore, since the factual allegations are admitted for the sake of argument, introducing evidence is improper, and an attorney making a "speaking demurrer" will be halted, often in mid-argument.
special adj. referring to a particular purpose, person or happening. In law these include hearings, proceedings, administrator, master, orders and so forth.
special administrator n. a person appointed by the court in a probate proceeding (management of the estate of a deceased person) to take charge of the assets and/or investigate the status of the estate and report to the court, usually when there is a dispute between beneficiaries (those who may receive from the estate) and the executor or administrator.
special appearance n. the representation by an attorney of a person in court for: a) only that particular session of the court; b) on behalf of the client's regular attorney of record; c) as a favor for an unrepresented person; or d) pending a decision as to whether the attorney agrees to handle the person's case. A special appearance is different from a "general appearance" in which the attorney is committed to represent the client in all future matters, hearings and trial of the case unless he/she is allowed to withdraw or is substituted "out of" the case by the client. Quite often an attorney will make a "special appearance" to protect the interests of a potential client but before a fee has been paid or arranged.
special circumstances n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which statutes allow or require imposition of a more severe punishment. "Special circumstances" in murder cases may well result in the imposition of the death penalty for murder or life sentence without possibility of parole. Such circumstances may include: rape, kidnapping or maiming prior to the killing, multiple deaths, killing a police officer or prison guard, or actions showing wanton disregard for life, such as throwing a bomb into a restaurant.
special damages n. damages claimed and/or awarded in a lawsuit which were out-of-pocket costs directly as the result of the breach of contract, negligence or other wrongful act by the defendant. Special damages can include medical bills, repairs and replacement of property, loss of wages and other damages which are not speculative or subjective. They are distinguished from general damages, in which there is no evidence of a specific amount.
special master n. a person appointed by the court to carry out an order of the court, such as selling property or mediating child custody cases. A "special" master differs from a "master" in that he/she takes positive action rather than just investigating and reporting to the judge.
special verdict n. the jury's decisions or findings of fact with the application of the law to those facts left up to the judge, who will then render the final verdict. This type of limited verdict is used when the legal issues to be applied are complex or require difficult computation.
specific bequest n. the gift in a will of a certain article to a certain person or persons. Example: "I give my diamond engagement ring to my niece, Sonia."
specific devise n. the gift in a will of a certain piece of real estate to a certain person or persons.
specific finding n. a decision on a fact made by a jury in its verdict and which the judge has requested the jury to determine as part of its deliberations. Often the judge gives a jury a list of decisions on findings of fact to be made to help the jurors focus on the issues.
specific legacy n. a gift in a will of a certain article or property to a certain person or persons.
specific performance n. the right of a party to a contract to demand that the defendant (the party who it is claimed breached the contract) be ordered in the judgment to perform the contract. Specific performance may be ordered instead of (or in addition to) a judgment for money if the contract can still be performed and money cannot sufficiently reward the plaintiff. Example: when a defendant was to deliver some unique item such as an art-work and did not, a judge may order the defendant to actually deliver the art-work.
speculative damages n. possible financial loss or expenses claimed by a plaintiff (person filing a lawsuit) which are contingent upon a future occurrence, purely conjectural or highly improbable. Speculative damages should not be awarded, and jury instructions should so state. Examples: a) plaintiff believes that ten years hence, as he ages, he may begin to feel pain from a healed fracture although no physician has testified that this is likely to happen; b) plaintiff claims that defendant's failure to deliver products for sale may hurt plaintiff's reputation with future customers.
spendthrift clause n. a provision in a trust or will that states that if a prospective beneficiary has pledged to turn over a gift he/she hopes to receive to a third party, the trustee or executor shall not honor such a pledge. The purpose is to prevent a "spendthrift" beneficiary from using a potential gift as security for credit on a speculative investment.
spontaneous exclamation n. a sudden statement caused by the speaker having seen a surprising, startling or shocking event (such as an accident or a death), or having suffered an injury. Even though the person who made the spontaneous exclamation is not available (such as he/she is dead or missing), a person who heard the exclamation may testify about it as an exception to the rule against "hearsay" evidence. The reason is that such an exclamation lacks planning and is assumed to have the ring of truth to it.
spousal support n. payment for support of an ex-spouse (or a spouse while a divorce is pending) ordered by the court. More commonly called alimony.
springing interest n. a future right to title to real property created by a deed or will. Example: "I give title to my daughter Mary for her lifetime, and, on her death, title to my grandson Jose." Jose has a springing interest in the property.
stakeholder n. a person having in his/her possession (holding) money or property in which he/she has no interest, right or title, awaiting the outcome of a dispute between two or more claimants to the money or property. The stakeholder has a duty to deliver to the owner or owners the money or assets once the right to legal possession is established by judgment or agreement.
standard of care n. the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ.
standing n. the right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in court if there is an actual controversy.
star chamber proceedings n. any judicial or quasi-judicial action, trial or hearing which so grossly violates standards of "due process" that a party appearing in the proceedings (hearing or trial) is denied a fair hearing. The term comes from a large room with a ceiling decorated with stars in which secret hearings of the privy council and judges met to determine punishment for disobedience of the proclamations of King Henry VIII of Great Britain (1509-1547). The high-handed, unfair, predetermined judgments, which sent the accused to the Tower of London or to the chopping block, made "star chamber" synonymous with unfairness and illegality from the bench.
stare decisis (stah-ree duh-sigh-sis) n. Latin for "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law").
state n. the state government and any of its departments, agencies or components (such as a city, board).
state of domicile n. the state in which a person has his/her permanent residence or intends to make his/her residence, as compared to where the person is living temporarily. Domicile depends on intent, location of a home where a person regularly sleeps and some conduct. A corporation's state of domicile is the state where the corporation is incorporated.
status conference n. a pre-trial meeting of attorneys before a judge to inform the court as to how the case is proceeding, what discovery has been conducted (depositions, interrogatories, production of documents), any settlement negotiations, probable length of trial and other matters relevant to moving the case toward trial. Court rules usually require the filing of a status conference statement prior to the conference.
statute n. law enacted by the state legislature. Local statutes or laws are usually called "ordinances". Regulations, rulings, opinions, executive orders and proclamations are not statutes.
statute of frauds n. law which requires that certain documents be in writing, such as real property titles and transfers (conveyances), leases for more than a year, wills and some types of contracts. The original statute was enacted in England in 1677 to prevent fraudulent title claims.
statute of limitations n. a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is forever dead (barred). The types of cases and statute of limitations periods are broken down among: personal injury from negligence or intentional wrongdoing, property damage from negligence or intentional wrongdoing, breach of an oral contract, breach of a written contract, professional malpractice, libel, slander, fraud, trespass, a claim against a governmental entity (usually a short time), and some other variations. In some instances a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or on reasonable reliance on a trusted person (a fiduciary or confidential adviser who has hidden his/her own misuse of someone else's funds or failure to pay). A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations on bringing criminal charges, but homicide generally has no time limitation on prosecution.
statutory offer of settlement n. a written offer of a specific sum of money made by a defendant to a plaintiff, which will settle the lawsuit if accepted within a short time. The offer may be filed with the court, and if the eventual judgment for the plaintiff is less than the offer, the plaintiff will not be able to claim the court costs usually awarded to the prevailing party.
statutory rape n. sexual intercourse with a female below the legal age of consent but above the age of a child, even if the female gave her consent, did not resist and/or mutually participated.
stay n. a court-ordered short-term delay in judicial proceedings to give a losing defendant time to arrange for payment of the judgment or move out of the premises in an unlawful detainer case.
stay away order n. a court order that a person may not come near and/or contact another.
stay of execution n. a court-ordered delay in inflicting the death penalty.
stipulation n. an agreement, usually on a procedural matter, between the attorneys for the two sides in a legal action. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court.
stock 1) n. inventory (goods) of a business meant for sale (as distinguished from equipment and facilities). 2) share in the ownership of a corporation (called "shares of stock" or simply "shares"). 3) cattle. 4) v. to keep goods ready for sale in a business.
stock certificate n. printed document which states the name, incorporation place, date of incorporation, the registered number of the certificate, the number of shares of stock in a corporation the certificate represents, the name of the shareholder, the date of issuance and the number of shares authorized in the particular issue of stock, signed by the president and secretary of the corporation (or with facsimile signatures). On the reverse side of the certificate is a form for transfer of the certificate to another person. After transfer the new owner should register the change of ownership with the corporation.
stock in trade n. the inventory of merchandise held for sale.
stock option n. the right to purchase stock in the future at a price set at the time the option is granted (by sale or as compensation by the corporation). To actually obtain the shares of stock the owner of the option must "exercise" the option by paying the agreed upon price and requesting issuance of the shares.
stockholder n. shareholder in a corporation.
stop and frisk n. a law enforcement officer's search for a weapon confined to a suspect's outer clothing when either a bulge in the clothing or the outline of the weapon is visible. The search is commonly called a "pat down," and any further search requires either a search warrant or "probable cause" to believe the suspect will commit or has committed a crime (including carrying a concealed weapon, which itself is a crime). The limited right to "stop and frisk" is intended to halt the practice of random searches of people in hopes of finding evidence of criminal activity or merely for purposes of intimidation, particularly of minorities.
straw man n. 1) a person to whom title to property or a business interest is transferred for the sole purpose of concealing the true owner and/or the business machinations of the parties. Thus, the straw man has no real interest or participation but is merely a passive stand-in for a real participant who secretly controls activities. Sometimes a straw man is involved when the actual owner is not permitted to act, such as a person with a criminal record holding a liquor license. 2) an argument which is intended to distract the other side from the real issues or waste the opponent's time and effort, sometimes called a "red herring" (for the belief that drawing a fish across a trail will mislead hunting dogs).
street n. a roadway in an urban area, owned and maintained by the municipality for public use. A private road cannot be a street.
strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.
strict liability n. automatic responsibility (without having to prove negligence) for damages due to possession and/or use of equipment, materials or possessions which are inherently dangerous, such as explosives, wild animals, poisonous snakes or assault weapons. This is analogous to the doctrine of res ipsa loquitur in which control, ownership and damages are sufficient to hold the owner liable.
strike 1) v. to remove a statement from the record of the court proceedings by order of the judge due to impropriety of a question, answer or comment to which there has been an objection. Often after a judge has stricken some comment or testimony (an answer made before an objection has stopped the witness), he/she admonishes (warns) the jury not to consider the stricken language, but the jury has a hard time forgetting since "a bell once rung cannot be unrung." 2) v. to order that language in a pleading (a complaint or an answer, for example) shall be removed or no longer be of any effect, usually after a motion by the opposing party and argument, on the basis that the language (which may be an entire cause of action) is not proper pleading, does not state a cause of action (a valid claim under the law) or is not in proper form. 3) n. the organized refusal of workers to remain on the job, usually accompanied by demands for a union contract, higher wages, better conditions or other employee desires, and possibly including a picket line to give voice to workers' demands and discourage or intimidate other workers and customers from entering the business, factory or store.
structure n. anything built by man/woman, from a shed to a highrise or a bridge.
sua sponte (sooh-uh spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case. These include an order transferring a case to another judge due to a conflict of interest or the judge's determination that his/her court does not have jurisdiction over the case.
subcontractor n. a person or business which has a contract (as an "independent contractor" and not an employee) with a contractor to provide some portion of the work or services on a project which the contractor has agreed to perform. In building construction, subcontractors may include such trades as plumbing, electrical, roofing, cement work and plastering. If a subcontractor is not paid for his/her work, he/she has the right to enforce a "mechanic's lien" on the real property upon which the work was done to collect.
subject to adj. referring to the acquisition of title to real property upon which there is an existing mortgage or deed of trust when the new owner agrees to take title with the responsibility to continue to make the payments on the promissory note secured by the mortgage or deed of trust. Thus, the new owner (grantee) buys the property "subject to" secured debt. However, should the new owner fail to pay, the original debtor will be liable for the payment, but the holder of the mortgage or beneficiary of the deed of trust may foreclose and the buyer could thus lose title. This differs from the new title holder "assuming" the mortgage or deed of trust by a written transfer of the obligation. Such a transfer must be approved by the lender, since the new owner's credit may or may not be as strong as the original owner/borrower's.
sublease n. the lease to another of all or a portion of premises by a tenant who has leased the premises from the owner. A sublease may be prohibited by the original lease, or require written permission from the owner. In any event, the original tenant (lessee) is still responsible for paying the rent to the owner (landlord/lessor) through the term of the original lease and sublease.
submitted n. the conclusion of all evidence and argument in a hearing or trial, leaving the decision in the hands of the judge. Typically the judge will ask the attorneys after final arguments: "Is it submitted?" If so, no further argument is permitted.
subordination n. allowing a debt or claim which has priority to take second position behind another debt, particularly a new loan. A property owner with a loan secured by the property who applies for another loan to make additions or repairs usually must get a subordination of the original loan so the new obligation is in first place. A declaration of homestead must always be subordinated to a loan.
subordination agreement n. a written contract in which a lender who has secured a loan by a mortgage or deed of trust agrees with the property owner to subordinate the first loan to a new loan (thus giving the new loan priority in any foreclosure or payoff). The agreement must be acknowledged by a notary so it can be recorded in the official county records.
subornation of perjury n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath.
subpena (suh-pea-nah) n. an order of the court for a witness to appear at a particular time and place to testify and/or produce documents in the control of the witness (if a "subpena duces tecum"). A subpena is used to obtain testimony from a witness at both depositions (testimony under oath taken outside of court) and at trial. Subpenas are usually issued automatically by the court clerk but must be served personally on the party being summoned. Failure to appear as required by the subpena can be punished as contempt of court if it appears the absence was intentional or without cause.
subpena duces tecum (suh-pea-nah dooh-chess-take-uhm or dooh-kess-take-uhm): a court order requiring a witness to bring documents in the possession or under the control of the witness to a certain place at a certain time. This subpena must be served personally on the person subpenaed. It is the common way to obtain potentially useful evidence, such as documents and business records, in the possession of a third party. A subpena duces tecum must specify the documents or types of documents (e.g. "profit and loss statements of ABC Corporation for years 1987 through 1995, all correspondence in regard to the contract between ABC Corporation and XYZ Corporation") or it will be subject to an objection that the request is "too broad and burdensome." To obtain documents from the opposing party, a "Request for Production of Documents" is more commonly used. Failure to respond to a subpena duces tecum may subject the party served with the subpena to punishment for contempt of court for disobeying a court order.
subpoena n. the original spelling of subpena, still commonly used.
subrogation n. assuming the legal rights of a person for whom expenses or a debt has been paid. Typically, subrogation occurs when an insurance company which pays its insured client for injuries and losses then sues the party which the injured person contends caused the damages to him/her.
subrogee n. the person or entity that assumes the legal right to attempt to collect a claim of another (subrogor) in return for paying the other's expenses or debts which the other claims against a third party. A subrogee is usually the insurance company which has insured the party whose expenses were paid. Thus, the subrogee insurance company may file a lawsuit against a party which caused the damages to its insured which the subrogee paid.
subrogor n. a person or entity that transfers his/her/its legal right to collect a claim to another (subrogee) in return for payment of the subrogor's expenses or debts which he/she/it claims. Thus, a person injured in an accident (subrogor) is paid by his/her/its own insurance company (subrogee) for the damages, and then the insurance company sues the party who apparently caused the damages.
subscribe v. 1) to sign at the end of a document. The courts have been flexible in recognizing signatures elsewhere on a contract or will, on the theory that a document should be found valid if possible. 2) to order and agree to pay for an issue of stock, bonds, limited partnership interest, investment or periodical magazine or newspaper.
substantial performance n. in the law of contracts, fulfillment of the obligations agreed to in a contract, with only slight variances from the exact terms and/or unimportant omissions or minor defects. A simple test is whether the omission, variance or defect can be easily compensated for with money. Examples: a) the contract is for supplying 144 pumps for Rs 14,400, and only 140 were delivered; b) the real property was supposed to be 8 acres and only contained 7 acres. This constitutes substantial performance unless the loss of one acre is crucial to the value of the property (e.g. reduced the number of lots able to be subdivided).
substantive law n. law which establishes principles and creates and defines rights limitations under which society is governed, as differentiated from "procedural law," which sets the rules and methods employed to obtain one's rights and, in particular, how the courts are conducted.
substitute in v. to take over a case from another lawyer, which must be confirmed by a written statement filed with the court.
substituted service n. accomplishing service (delivery) of legal documents required to be served personally by leaving the documents with an adult resident of the home of the person to be served, with an employee with management duties at the office of an individual, with such an employee at corporate headquarters, with a designated "agent for acceptance of service", or in some cases (like a notice to quit the premises) by posting in a prominent place followed by mailing copies by certified mail to the person to be served.
substitution n. putting one person in place of another, in particular replacement of the attorney of record in a lawsuit with another attorney (or the party acting in propria persona).
substitution of attorney n. a document in which the party to a lawsuit states that his/her attorney of record is being substituted for by another attorney or by the party acting for himself/herself (in propria persona). Normally the departing attorney and the replacement attorney will both sign the document, agreeing to the substitution, but only the new attorney need agree, since a party may replace counsel at any time.
succession n. the statutory rules of inheritance of a dead person's estate when the property is not given by the terms of a will, also called laws of "descent and distribution."
successive sentences n. in criminal law, the imposition of the penalty for each of several crimes, one after the other, as compared to "concurrent sentences" (at the same time). Example: Anthony has been found guilty of manslaughter, assault with a deadly weapon and armed robbery, for which the maximum sentences are 15 years, 10 years and 10 years, respectively. By imposing successive sentences, the judge adds the terms together and sentences convict to 35 years. Had the judge made the sentences concurrent, the maximum total would be 15 years.
suffering n. the pain, hurt, inconvenience, embarrassment and/or inability to perform normal activities as a result of injury, usually in the combination "pain and suffering," for which a person injured by another's negligence or wrongdoing may recover "general damages" (a money amount not based on specific calculation like medical bills but as compensation for the suffering which is subjective and based on the empathy of the trier of the facts - jury or judge sitting without a jury).
sui generis (sooh-ee jen-ur-iss) n. Latin for "one of a kind," unique.
suicide n. the intentional killing of oneself. Ironically, its a crime, but if successful there is no one to punish. However, attempted suicide can be a punishable crime (seldom charged against one surviving the attempt). "Assisted suicide" is usually treated as a crime, as a form of homicide (second degree murder or manslaughter), even when done as a kindness to a loved one who is terminally ill and in great pain.
suit n. generic term for any filing of a complaint (or petition) asking for legal redress by judicial action, often called a "lawsuit." In common parlance a suit asking for a court order for action rather than a money judgment is often called a "petition," but technically it is a "suit in equity".
sum certain n. a specific amount stated in a contract or negotiable instrument (like a promissory note) at the time the document is written. A sum certain does not require future calculation or the awaiting of future happenings.
summary judgment n. a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are "triable issues of fact." If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action. The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made.
summation n. the final argument of an attorney at the close of a trial in which he/she attempts to convince the judge and/or jury of the virtues of the client's case.
summons n. a document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff's attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of summons and complaint is to be filled out and signed by the process server. A copy of the summons must be served on each defendant at the same time as the complaint to start the time running for the defendant to answer. Certain writs and orders to show cause are served instead of a summons since they contain the same information along with special orders of the court. After service to the defendants, the original summons, along with the "return of service" proving the summons and complaint were served, is filed with the court to show that each defendant was served. A summons differs from a subpena, which is an order to a witness to appear.
supersedeas (sooh-purr-said-ee-uhs) Latin for "you shall desist," an order (writ) by an appeals court commanding a lower court not to enforce or proceed with a judgment or sentence pending the decision on the appeal or until further order of the appeals court.
superseding cause n. the same as an "intervening cause" or "supervening cause," which is an event which occurs after the initial act leading to an accident and substantially causes the accident. The superseding cause relieves from responsibility (liability) the party whose act started the series of events which led to the accident, since the original negligence is no longer the proximate cause
supplemental adj. referring to anything that is added to complete something, particularly a document, such as a supplemental declaration, supplemental complaint, supplemental answer, supplemental claim.
suppression of evidence n. 1) a judge's determination not to allow evidence to be admitted in a criminal trial because it was illegally obtained or was discovered due to an illegal search. 2) the improper hiding of evidence by a prosecutor who is constitutionally required to reveal to the defense all evidence. Such suppression is a violation and may result in dismissal, mistrial or reversal on appeal, as well as contempt of court for the prosecutor.
supra (sooh-prah) Latin for "above," in legal briefs and decisions it refers to the citation of a court decision which has been previously mentioned.
supreme court n. the highest court in the Country, which has the ultimate power to decide constitutional questions and other appeals based on the jurisdiction granted by the Constitution, including cases based on statutes, between citizens of different states, and when the government is a party. The Chief Justice is appointed by the President.
surcharge n. an additional charge of money made because it was omitted in the original calculation or as a penalty, such as for being late in making a payment.
surety n. a guarantor of payment or performance if another fails to pay or perform, such as a bonding company which posts a bond for a guardian, an administrator or a building contractor. Most surety agreements require that a person looking to the surety (asking for payment) must first attempt to collect or obtain performance from the responsible person or entity.
surplusage n. a term used in analyzing legal documents and pleadings to refer to wording or statements which have no legal effect and, therefore, can be ignored.
surrebutal n. in written or oral legal argument, the response to the other party's response (rebuttal) to the initial argument. In written briefs most courts will not allow more than a single surrebutal. The rule is usually the same for oral argument. However, occasionally the parties joust back and forth until the judge stops the debate.
surrender v. 1) to turn over possession of real property, either voluntarily or upon demand, by tenant to landlord. 2) to give oneself up to law enforcement officials.
surrogate n. a person acting on behalf of another or a substitute, including a woman who gives birth to a baby of a mother who is unable to carry the child.
survivor n. a person who outlives another, as in "to my sons, Amit and Anand or the survivor." The survivor is determined at the time the asset or property is received, so if both sons are alive they are both survivors.
survivorship n. the right to receive full title or ownership due to having survived another person. Survivorship is particularly applied to persons owning real property or other assets, such as bank accounts or stocks, in "joint tenancy." Joint tenancy includes the right of survivorship automatically, except that joint tenancy of a bank account creates only a presumption of survivorship, which might be disproved by evidence that the joint tenancy was only for convenience.
suspended sentence n. in criminal law, a penalty applied by a judge to a defendant convicted of a crime which the judge provides will not be enforced (is suspended) if the defendant performs certain services, makes restitution to persons harmed, stays out of trouble or meets other conditions. Should the sentenced party fail to follow these requirements, then the suspended sentence may be enforced.
sustain v. in trial practice, for a judge to agree that an attorney's objection, such as to a question, is valid. Thus, an attorney asks a witness a question, and the opposing lawyer objects, saying the question is "irrelevant, immaterial and incompetent," "leading," "argumentative," or some other objection. If the judge agrees he/she will rule "sustained," meaning the objection is approved and the question cannot be asked or answered. However, if the judge finds the question proper, he/she will "overrule" the objection.
swear v. 1) to declare under oath that one will tell the truth (sometimes "the truth, the whole truth and nothing but the truth"). Failure to tell the truth and do so knowingly is the crime of perjury. 2) to administer an oath to a witness that he/she will tell the truth, which is done by a notary public, a court clerk, a court reporter or anyone authorized by law to administer oaths. 3) to install into office by administering an oath. 4) to use profanity.
swindle v. to cheat through trick, device, false statements or other fraudulent methods with the intent to acquire money or property from another to which the swindler is not entitled. Swindling is a crime as one form of theft.
syndicate n. a joint venture among individuals and/or corporations to accomplish a particular business objective, such as the purchase, development and sale of a tract of real property, followed by division of the profits. A joint venture, and thus a syndicate, is much like a partnership, but has a specific objective or purpose, after the completion of which it will dissolve.
t.r.o. n. legal slang for temporary restraining order.
tainted evidence n. in a criminal trial, information which has been obtained by illegal means or has been traced through evidence acquired by illegal search and/or seizure. This evidence is called "fruit of the poisonous tree" and is not admissible in court.
take v. to gain or obtain possession, including the receipt of a legacy from an estate, getting title to real property or stealing an object.
tangible property n. physical articles (things) as distinguished from "incorporeal" assets such as rights, patents, copyrights and franchises. Commonly tangible property is called "personalty."
tax n. a governmental assessment (charge) upon property value, transactions (transfers and sales), licenses granting a right and/or income. These include central and state income taxes, taxes on real property, state and/or local sales tax based on a percentage of each retail transaction, duties on imports from foreign countries, business licenses, taxes on large gifts and a state "use" tax in lieu of sales tax imposed on certain goods bought outside of the state.
tax costs n. a motion to contest a claim for court costs submitted by a prevailing party in a lawsuit. It is called a "Motion to Tax Costs" and asks the judge to deny or reduce claimed costs. Example: a winning party claims a right to have his/her attorneys' fees and telephone bills paid by the loser, even though they are not allowable as costs under state law or the contract which was the subject of the suit. So the loser makes a "Motion to Tax Costs" to avoid paying these charges.
tax evasion n. intentional and fraudulent attempt to escape payment of taxes in whole or in part. If proved to be intentional and not just an error or difference of opinion, tax evasion can be a chargeable crime. Evasion is distinguished from attempts to use interpretation of tax laws and/or imaginative accounting to reduce the amount of payable tax.
tax return n. the form to be filed with a taxing authority by a taxpayer which details his/her/their income, expenses, exemptions, deductions and calculation of taxes which are chargeable to the taxpayer.
tax sale n. an auction sale of a taxpayer's property conducted by the government to collect unpaid taxes.
temporary injunction n. a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. A temporary injunction differs from a "temporary restraining order" which is a short-term, stop-gap injunction issued pending a hearing, at which time a temporary injunction may be ordered to be in force until trial. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or change before the legal questions are determined. After the trial the court may issue a "permanent injunction" (making the temporary injunction a lasting rule) or "dissolve" (cancel) the temporary injunction.
temporary insanity n. in a criminal prosecution, a defense by the accused that he/she was briefly insane at the time the crime was committed and therefore was incapable of knowing the nature of his/her alleged criminal act. Temporary insanity is claimed as a defense whether or not the accused is mentally stable at the time of trial. One