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SELECT A WORD TO VIEW THE COMPLETE DEFINITION:
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 wh...
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.
abstention doctrine
n. when the Supreme Court refuses to exercise its federal constitutional jurisdiction or declines to consider a question of state law arising from a case being appealed from a state court.
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 i...
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 ...
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 ...
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 h...
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 ...
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 sheriff or process server show up at the door. The agreement of "acceptance of service" must be in writing or there is no proof that it happened. In mo...
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, i...
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 th...
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. I...
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 ...
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 collectin...
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.
accused
n. a person charged with a crime.
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. Federal courts, including the U.S. Supreme Court, will only consider an "actual controversy", on appeal, since they will not give...
ad seriatim
adj. (add sear-ee-ah-tim) Latin for "one after another".
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 restr...
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 hig...
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 ge...
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 federal government) involving rules, regulations, applications, licenses, permits, available information, hearings, appeals and decision-making. Federal agency procedures are governed by the Admin...
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...
Administrative Procedure Act
n. the federal act which established the rules and regulations for applications, claims, hearings and appeals involving governmental agencies. There are similar acts in many states which spell out the rules for dealing with state government agencies.
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...
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 ...
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 fa...
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...
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 ("Miranda warning") 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...
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 ...
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 ca...
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 leg...
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. State atto...
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 ...
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 up to age 70, which is made illegal by the Age Discrimination Unemployment Act, first adopted in 1967. The claimant's problem is proof of age discrimination, but employers should beware. Even flight attendants in their late 30s hav...
agent for acceptance of service
n. states require that a corporation name an actual person (usually in the articles of incorporation or other filing with the Secretary of State) who is authorized to accept service of any lawsuit or claim against the corporation. Many larger corporations, particularly those which operate in several...
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 argu...
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 Harry for Harold, initials or a maiden name).
alienation of affections
n. convincing a wife to leave her husband, often for another man, causing the husband to lose conjugal relations. This is primarily of historic interest, since alienation of affections was a civil wrong for which a deprived husband could sue the party convincing the wife to leave, but the right to s...
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.
American Bar Association
n. the largest organization of American lawyers, which has no official standing, but is prestigious in formulating guidelines for the practice of law, giving direction to legislation, lobbying for the law profession, and evaluating federal judges. Less then one-third of attorneys belong to the A.B.A...
American Civil Liberties Union
n. a membership organization founded in 1920 to defend and protect "the rights of man set forth in the Declaration of Independence and the Constitution." The ACLU researches the legalities of public policies and actions and defends clients in court when civil liberties are in question, without charg...
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. For example, the American Civil Liberties Union often files briefs on behalf of a party...
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. Examples: a) the amnesty given to Confederate officials and soldiers after the Civil War, or b) President Jimmy Carter's granting amnesty (under cert...
ancillary administration
n. administration of an estate's assets in another state. An "ancillary administrator" is chosen by the executor or administrator of an estate to handle the property (primarily real estate) of the deceased's estate in a state other than the one in which the estate is probated. Example: John Dunn die...
ancillary jurisdiction
n. a term used in federal courts when the court decides matters not normally under federal jurisdiction so that it can give a judgment on the entire controversy, when the main issue is a federal matter which it is authorized by law to determine.
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 "affir...
antitrust laws
n. acts adopted by Congress to outlaw or restrict business practices considered to be monopolistic or which restrain interstate commerce. The Sherman Antitrust Act of 1890 declared illegal "every contract, combination…or conspiracy in restraint of trade or commerce" between states or foreign countri...
appraise
v. to professionally evaluate the value of property includ- ing 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 t...
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 underva...
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.
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 f...
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 c...
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.
articles of impeachment
n. the charges brought (filed) to impeach a public official. In regard to the President, Vice President and federal judges, the articles are prepared and voted upon by the House of Representatives, and if it votes to charge the official with a crime, the trial is held by the Senate.
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. Each state has its own system of approval of articles, prohibits names which are confusingly similar...
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 obvio...
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. In some states if the assault is with a deadly weapon (such as sniping with a rifle), the intended victim doe...
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. This function is usually performed by employees of the County Assessor. In California, under Proposition 13, the new assessmen...
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), fix...
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.
assigned risk
n. a person whose official driving record (accidents and tickets) is so poor that he/she cannot purchase commercial auto insurance, and must be assigned to a state operated or designated insurance program at high rates.
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.
assignment for benefit of creditors
n. a method used for a debtor to work out a payment schedule to his/her creditors through a trustee who receives directly a portion of the debtor's income on a regular basis to pay the debtor's bills.
Associate Justice
n. a member of the U.S. Supreme Court appointed by the President and confirmed by the U.S. Senate. There are eight Associate Justices and one Chief Justice. They serve for life or until voluntary retirement or removal after being convicted after impeachment. (Only one was ever charged (1805) and he ...
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 peopl...
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: Bob Buyer pays part of the price of a piece of real property by taking over the debt that Sally Seller had on the property. However, usually the...
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...
assured
n. the person or entity that is insured, often found in insurance contracts.
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. All states require at least two witnesses (three in Vermont) to attest that a will was signed and declared to be a will (except a will written in one's own ha...
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's advertising
n. the commercials which appear on television or crowd the yellow pages of the telephone book. Until the Supreme Court ruled (1977) that any restriction on lawyer advertising was an abridgement of free speech, advertising by lawyers was illegal and cause for discipline or disbarment. One problem is ...
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 (like $250 to write a will), 3) contingent fee (such as one-third of the gross recovery, and nothing if there is no recovery), 4) statutory fees (such as percentages...
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 q...
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 plac...
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 ...
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. The most famous American case is the Mississippi River'"s change which put Vicksburg on the other side of the river.
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. Since the early 1960s most accredited law schools grant a Juris Doctor (JD) degree instea...
back-to-back life sentences
n. slang 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...
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. The offices of a bail bondsman (or woman) are usually found close to the local courthouse and jail, his/her advertising 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. ...
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 pro...
bankruptcy proceedings
n. the bankruptcy procedure is: a) filing a petition (voluntary or involuntary) to declare a debtor person or business bankrupt, under Chapter 7, Chapter 11, or Chapter 13, to allow reorganization or refinancing under a plan to meet the debts of the party unable to meet his/her/its obligations. The ...
bar association
n. an organization of lawyers. There are two types, one of which is official and usually called an "integrated bar," which is qualified by the particular state's highest court to establish rules for admission and conduct. There are also local bar associations by city or county which are unofficial a...
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 origi...
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.
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 use exists is held by another.
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 t...
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 "...
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.
bestiality
n. copulation by a human with an animal, which is a crime in all states as a "crime against nature."
beyond a reasonable doubt
adj. part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced "beyond a reason- able doubt" of his or her guilt. Sometimes referred to as "to a moral certainty," the phrase is fraught with uncertainty as to mean...
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...
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. Thus, a general claim that defendant owes plaintiff $50,000 for goods delivered or damaged must be broken down so the defendant can understand and defend. In ...
Bill of Rights
n. the first ten amendments to the federal Constitution demanded by several states in return for ratifying the Constitution, since the failure to protect these rights was a glaring omission in the Constitution as adopted in convention in 1787. Adopted and ratified in 1791, the Bill of Rights are: Fi...
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 th...
blank endorsement
n. endorsement of a check or other negotiable paper without naming the person to whom it would be paid.
blue laws
n. state or local laws which prohibit certain activities, particularly entertainment, sports or drinking on Sunday, to honor the Christian Sabbath. They were employed in the New England colonies controlled by the puritans who kept the Sabbath sacred. "Blue" was slang for puritanical. In most cases b...
blue sky laws
n. laws intended to protect the public from purchasing stock in fraudulent companies that lack substance, such as those selling swamp land, non-existent gold strikes and dry oil wells, or who have no assets besides a post office box. Blue sky laws require that corporations advertising and selling sh...
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 b...
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 tru...
bondsman
n. 1) someone who sells bail bonds. 2) a surety (guarantor or insurance company, who/which provides bonds for performance.
breach of promise
n. historically, the dumping of a female fiancee by her intended husband after he had proposed marriage and she had accepted. She was entitled to file a suit for damages for the embarrassment of the broken engagement. Such lawsuits were gradually outlawed in various states and no longer exist.
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.
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...
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 sales acts
n. state laws (spelled out in the Uniform Commercial Code adopted generally throughout the country) which require a seller of the business including his/her inventory to a) publish notice of the sale, b) give written notice to all creditors, and c) set up an escrow of the funds realized from the sal...
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 ac...
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 presump...
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 o...
capital assets
n. equipment, property, and funds owned by a business.
capital gains
n. the difference between the sales price and the original cost (plus improvements) of property. Capital gains taxes can be a terrible financial shock to individuals who bought a house or business many years ago for the going price and now find it is highly valued, greatly due to inflation. Example:...
capital investment
capital expenditure
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). Crimes punishable by death vary from state to state and country to country. In 38 American states these offenses may include first degree murder (premedita...
capital punishment
n. execution (death) for a capital offense. The U.S. Supreme Court has vacillated on the application of capital punishment, ruling in the Furman decision (1972) that capital punishment was a violation of the Eighth Amendment's prohibition against "cruel and unusual punishment" in certain cases, and ...
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 ca...
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.
careless
adj., adv. 1) negligent. 2) the opposite of careful. A careless act can result in liability for damages to others.
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.
case
n. short for a cause of action, lawsuit, or the right to sue (as in "does he have a case against Jones?"). It is also shorthand for the reported decisions (appeals, certain decisions of federal courts and special courts such as the tax court) which can be cited as precedents. Thus, "in the case of M...
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 i...
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. Sometimes, it is only of first impression in the particular state or jurisdiction, so decisions from other states or the federal courts may be examined as a guideline.
case system
n. the method of studying law generally used in American 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 (co...
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 ...
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...
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. Example: While driving his convertible, Johnny Youngblood begins to stare...
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 neglig...
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 activ...
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 fi...
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...
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.
challenge for cause
n. a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror. Causes include acquaintanceship with either of the parties, one of the attorneys or a witness, the potential juror's exp...
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...
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 eith...
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 ...
charitable remainder trust (Charitable Remainder Irrevocable Unitrust)
n. a form of trust in which the donor (trustor or settlor) places substantial funds or assets into an irrevocable trust (a trust in which the basic terms cannot be changed or the gift withdrawn) with an independent trustee, in which the assets are to go to charity on the death of the donor, but the ...
Chief Justice
n. the presiding judge of any State Supreme Court and the U.S. Supreme Court. The Chief Justice of the U.S. Supreme Court is appointed by the President and then must be confirmed by the U.S. Senate. The Chief Justice sets the tone for the court, assigns the writing of majority opinions to fellow jus...
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 bot...
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 dollar 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. In...
circuit courts
n. a movable court in which the judge holds court sessions at several different locations for pre-specified periods of time. In effect, the judge "rides the circuit" from town to town and takes the "court" with him/her. Formerly, the Federal District Courts of Appeal were called the Circuit Courts o...
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 t...
civil liberties
n. rights or freedoms given to the people by the First Amendment to the Constitution, 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 prote...
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 rights
n. those rights guaranteed by the Bill of Rights, the 13th and 14th Amendments to 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 opp...
claim against a governmental agency
n. any time one believes he/she has a right to payment for damages from the government or on an unpaid contract with a government agency (including city, county, state, school district) the first step is to file a written claim according to state laws which vary considerably. Usually the time to fil...
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 ...
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 ...
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 or breast implants, all those overcharged by a public utility during a particular perio...
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 be...
clear and present danger
n. the doctrine established in an opinion written by Oliver Wendell Holmes, Jr. in Schenk vs. United States (1919) which is used to determine if a situation creates a threat to the public, individual citizens or to the nation. If so, limits can be placed on First Amendment freedoms of speech, press ...
close corporation
n. a corporation which is permitted by state 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 bus...
closed shop
n. a business that will hire only union members by choice or by agreement with the unions, although the Labor-Management Relations Act prohibits closed shop practices which require employees to be union members. A "union shop" is a business in which a majority of the workers have voted to name a uni...
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 rec...
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 respon...
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...
Code of Professional Responsibility
n. a set of rules governing the ethical conduct of attorneys in the practice of the law. It covers such topics as conflicts of interest, honesty with clients, confidentiality and conduct toward other attorneys and the courts. First developed and pushed by the American Bar Association, the code has b...
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 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...
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.
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. Suc...
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. These range from the local planning or zoning commission to ...
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 mo...
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 pe...
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 o...
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).
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 ...
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 ...
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...
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 ...
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) a...
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 (a jury or by the judge if there is no jury). 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 d...
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 judgm...
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 inter...
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. Examples: if the Dingbat Company closes its business, a supplier will not be required to fulfill its cont...
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. Example: Ruth's will provides that "Griselda will receive the nursery furniture if she has children at the time of my death." This is slightly different from an executory beques...
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. Example: Hotrod agrees to buy Tappit's 1939 LaSalle for $1,000 cash if Tappit can get the car running by September 1st.
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, tor...
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...
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 ...
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. T...
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...
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...
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 th...
conjugal rights
n. a spouse's so-called "rights" to the comforts and companionship from his/her mate, meaning sexual relations. Some states allow prisoners to have "conjugal visits" so that they may have private visits and sexual relations with their spouse (or "significant other") in a special room or apartment.
conscientious objector
n. a person who refuses to serve in the military due to religious or strong philosophical views against war or killing. Refusing to answer a draft call is a federal felony, but when a person's religious beliefs are long-standing and consistent (as with the Quakers) then the objection to service is e...
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. Example: a) Air Chance Airline offers a two-for-one special for al...
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 parti...
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 ch...
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 perform...
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. Example: leaving one's auto at a dealer to sell and split the profit. 2) to deliver to a carrier to be taken to an agent of the...
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. For example, six companies, including Bechtel and Kaiser, joined together in a consortium to build Boulder (now Hoover)...
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...
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. Conspirators may range from small-time bootleggers to electronics companies meeting to fix prices in viol...
constable
n. a law officer for a particular area such as a rural township, much like a sheriff (who serves a county) and usually elected, who is responsible for such duties as serving summonses, complaints, subpenas, and court orders, assisting the local court, as well as "keeping the peace." In England this ...
constitution
n. the fundamental, underlying document which establishes the government of a nation or state. The U.S. Constitution, originally adopted in convention on September 17, 1787, ratified by the states in 1788, and thereafter amended 27 times, is the prime example of such a document. It is the basis for ...
constitutional rights
n. rights given or reserved to the people by the U.S. Constitution, and in particular, the Bill of Rights (first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties or taxes on transporting goods from one state to another (Article I, Section 9); jury trials ...
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 str...
constructive
adj. a legal fiction for treating a situation as if it were actually so. Some examples help to clarify this term: a) although Jeremiah Gotrocks 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"; b) although ...
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 sh...
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 act...
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. A prime example is allowing service by publication when a spouse has left the stat...
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...
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. almost all states and the federal government have enacted laws and set up agencies 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. Federal statutes and regu...
contiguous
adj. connected or "next to", usually meaning adjoining pieces of real estate.
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 ...
continuing trespass
n. the repeat-ed unauthorized use of anoth- er's real property, as compared to an occasional illegal entry.
controlled substance
n. a drug which has been declared by federal or state law 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 th...
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. The U.S. Supreme Court particularly requires an "actual controversy" and avoids giving "what if" advisory opinions.
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 i...
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 (or town house) as if they were owners, to have equal ac...
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. There are several encyclopedias of the law which fit this definition, the most famous of which is Corpus Juris Secundum. Several states have such series of books covering explanations of the law o...
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...
costs
n. shorthand for court costs.
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. In the United States they all mean the same thing. 2) v. to give legal advice. 3) v. in some jurisdictions, to urge someone to ...
counsellor
n. a licensed attorney.
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 state Worker's Compensation Acts.
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 (which can be very expensive), court transcripts and co...
court of appeals
n. any court (state or federal) which hears appeals from judgments and rulings of trial courts or lower appeals courts.
Court of Customs and Patent Appeals
n. a federal court established (1929) to hear appeals from decisions by the U.S. Patent Office and from the U.S. Customs Court. It sits in Washington, D. C. and is composed of five judges.
covenant that runs with the land
n. a promise contained in a deed to land or real estate which is binding upon the current owner and all future owners.
covenants, conditions and restrictions
n. commonly called "CC and Rs," these are written rules, limitations and restrictions on use, mutually agreed to by all owners of homes in a subdivision or condominium complex. CC and Rs may limit size and placement of homes, exterior colors, pets, ages of residents, use of barbecues and other condu...
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...
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 in bankruptcy court (or had a petition filed 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...
creditor's rights
n. the field of law dealing with the legal means and procedures to collect debts and judgments.
crime against nature
n. an oldfashioned term for sodomy (anal sexual intercourse), which has been a crime in most states. Several states have removed consensual anal intercourse between consenting adults from the crime. However, in Indiana an ex-wife insisted on a criminal charge of sodomy being filed against her former...
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 st...
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.
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 compla...
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 a...
cruel and unusual punishment
n. governmental penalties against convicted criminal defendants which are barbaric, involve torture and/or shock the public morality. They are specifically prohibited under the Eighth Amendment to the U.S. Constitution. However, nowhere are they specifically defined. Tortures like the rack (stretchi...
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.
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. In some sta...
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 ...
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 surviv- ing child or children who would inherit the land. A few states still recognize this charming anachro- nism.
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 par...
Customs Court
n. a federal court established (1926) to hear appeals from decisions of customs officials on classification of merchandise, duty rates and interpretation of customs laws. In turn its decisions can be appealed to the Court of Customs and Patent Appeals.
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 ...
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 ...
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 poisono...
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...
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. In a million dollar deal, a $10 mistake is de minimis.
debtor in possession
n. in bankruptcy proceedings when a debtor has filed for the right to submit a plan for reorganization or refinancing under Chapter 11, and the debtor is allowed to continue to manage his/her/its business without an appointed trustee, that debtor is called a "debtor in possession."
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."
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).
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 ...
deed of trust
n. a document which pledges real property to secure a loan, used instead of a mortgage in Alaska, Arizona, California, Colorado, Georgia, Idaho, Illinois, Mississippi, Missouri, Montana, North Carolina, Texas, Virginia and West Virginia. The property is deeded by the title holder (trustor) to a trus...
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.
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 contenti...
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 ac...
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 o...
deleterious
adj. harmful.
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...
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 ...
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.
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. The rules of descent vary somewhat from state to state and will usually be governed by the law of the state in which the deceased party lived. Dep...
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...
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.
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...
direct and proximate cause
n. the immediate reason damage was caused by an act or omission (negligence); the negligence must have caused the damages, without intervention of another party, and can- not be remote in time or place. Example (in a complaint): "Defendant's negligent acts (speeding and losing control of his vehicle...
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 ...
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) or the highest state court, and will automatically prohibit the attorney from practicing law before the courts in that state or from giv...
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 ...
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...
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...
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 ...
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 cont...
discrimination
n. unequal treatment of persons, for a reason which has nothing to do with legal rights or ability. Federal and state 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, nat...
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 check 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 ...
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...
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 ac...
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 U.S. Supreme Court, which disagrees with the majority opinion. Sometimes a dissent may eventually prevail as the law or society evolves. Prime examples include the many dissenting opinions of Oliver Wendell Holmes, Associate Justice o...
dissolution
n. modern, gentler sounding, term for divorce, officially used in California since 1970 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 with the Secretary of State; 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.
District Attorney (D.A.)
n. an elected official of a county or a designated district with the responsibility for prosecuting crimes. The duties include managing the prosecutor's office, investigating alleged crimes in cooperation with law enforcement, and filing criminal charges or bringing evidence before the Grand Jury th...
district court
n. 1) in the federal court system, a trial court for federal cases in a court district, which is all or a portion of a state. 2) a local court in some states.
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 perform community service, 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 th...
diversity of citizenship
n. when opposing parties in a lawsuit are citizens of different states (including corporations incorporated or doing business in different states) or a citizen of a foreign country, which places the case under federal court jurisdiction, pursuant to Article III, section 2 of the U.S. Constitution, a...
divestiture
n. the court-ordered or voluntary giving up of a possession or right, which is a common result in an antitrust action to prevent monopoly or other restraint of trade.
divestment
n. the act of stripping one's investment from an entity.
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 t...
domestic partners
n. unmarried couples, including homosexuals, 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 ...
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 a...
dram shop rule
n. a statute (Dram Shop Act) or case law in 38 states which makes a business which sells alcoholic drinks or a host who serves liquor to a drinker who is obviously intoxicated or close to it, strictly liable to anyone injured by the drunken patron or guest. To the contrary, California recently passe...
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 some...
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 defendan...
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 "a...
egress
n. way of departure. A word usually used in conjunction with "access" or "ingress."
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: i...
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...
eleemosynary
(eh-luh-moss-uh-nary) adj. charitable, as applied to a purpose or institution.
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.
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. Originally damages for emotional distress were only awardable in conjunction with damages for actual physical harm. Recently courts in many states, including New York ...
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.
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 ("pay to Dolly Madison" or "for deposit o...
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." Example: Larry Landlord ...
erroneous
adj. 1) in error, wrong. 2) not according to established law, particularly in a legal decision or court ruling.
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 t...
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 "instr...
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 federal government and/or transferring state 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, usually written Albert Pettifog, Esquire, or simply Esq. 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 requiri...
estate by entirety
n. tenancy by the entirety
estate tax
n. generally a federal tax on the transfer of a dead person's assets to his heirs and beneficiaries. Although a transfer tax, it is based on the amount in the decedent's estate (including distribution from a trust at the death) and can include insurance proceeds. Currently such federal taxation appl...
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 inclu...
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, as in "the rules of the road are found in Vehicle Code Section 1204, et seq."
evasion of tax
n. the intentional attempt to avoid paying taxes through fraudulent means, as distinguished from late payment, using legal "loopholes" or errors.
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. Such laws are specifically prohibited by the U.S. Constitution, Article I, Section 9. Therefore, if ...
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...
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. It is based on the constitutional requirement that "…no [person] can be deprived of ...
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. Illness, press of business by the...
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.
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 t...
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 ...
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.
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. Example: waiting more than four years after the due date to make a demand for payment on a promissory note wipes out the person's right to collect the money owed to him/her. It can also occur by f...
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 fee...
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 "intrins...
eyewitness
n. a person who has actually seen an event and can so testify in court.
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 trade laws
n. state laws which permit manufacturers or producers to set minimum rates for resale of the product. They have been repealed or found violative of state constitutions in many states.
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 empl...
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 ...
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 of...
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 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. This doctrine is the law i...
federal courts
n. the court system which handles civil and criminal cases based on jurisdictions enumerated in the Constitution and federal statutes. They include federal district courts which are trial courts, district courts of appeals and the U.S. Supreme Court, as well as specialized courts such as bankruptcy,...
federal question
n. one basis for filing a lawsuit in federal district court is that it is based on subjects enumerated in the U.S. Constitution or when a federal statute is involved. Thus, existence of such a federal question gives the federal court jurisdiction.
Federal Tort Claims Act
n. a statute (1948) which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, givi...
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." Like "fee" it is ofte...
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.
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 ...
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 super...
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 ...
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...
first degree murder
n. although it varies from state to state, 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, arson, or involving multiple deaths, the killing of certain types of people...
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 scholar...
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.
forced sale
n. a sale of goods seized by the sheriff to satisfy (pay) a judgment.
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 payme...
foreclosure sale
n. the actual forced sale of real property at a public auction (often on the courthouse steps following public notice posted at the courthouse and published in a local newspaper) after foreclosure on that property as security under a mortgage or deed of trust for a loan that is substantially delinqu...
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 skier hits a bump on a ski run, falls and breaks his leg. This is a foreseeable risk of skiing...
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...
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 rega...
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...
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 oper...
franchise tax
n. a state tax on corporations or businesses.
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. It can also refer to chasing a suspect or escaped felon into a neighboring jurisdiction in an emergency, as distinguished from entering another jurisdicti...
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 rea...
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 anyt...
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 grow...
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. Example: Jack Appleseller contracts to buy a commercial building to rent out, and, while the sale ...
fugitive from justice
n. a person convicted or accused of a crime who hides from law enforcement in the state or flees across state lines to avoid arrest or punishment. Under Article IV, Section 2 of the U.S. Constitution, Governors are required to "deliver up" and return any fugitives from justice to the state where the...
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 sales in many states there is a full disclosure form which must be filled out and signed under penalty of perjury for knowingly falsifying ...
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 ...
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 ...
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 p...
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 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 dollar value which can be calculated. They are distinguished from special damages, which are for specific costs, and...
generation skipping
adj., adv. referring to gifts made through trusts by a grandparent to a grandchild, skipping one's child (the grandchild's parent). Originally intended to avoid or defer federal gift or estate taxes if paid through a "generation skipping trust," it is now subject to a generation skipping tax, and if...
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 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 wor...
goods
n. items held for sale in the regular course of business, as in a retail store.
grandfather clause
n. 1) a clause in a statute or zoning ordinance (particularly a city ordinance) which permits the operator of a business or a land owner to be exempt from restrictions on use if the business or property continues to be used as it was when the law was adopted. Upon passage of the statute or regulatio...
gratuitous
adj. or adv. voluntary or free.
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 ...
guest
n. 1) in general, a person paying to stay in a hotel, motel or inn 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 cu...
guest statute
n. a state law which sets standards of care by the driver of a car to a non-paying passenger. Although state laws vary, the basic concept is that the social passenger can bring suit for negligence against the driver for gross negligence only if the driver could have foreseen that his/her actions or ...
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 or sheriff) who have custody of a prisoner to appear in court with the prisoner to help the judge determine whether the prisoner is lawfully ...
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 ch...
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...
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 al...
head of household
n. 1) in federal 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 hou...
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 oth...
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 capab...
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.
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.
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 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 t...
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 County Recorder or Recorder of Deeds and thereby exempt part of its value (based on state st...
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 n...
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 tha...
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.
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.
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 c...
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...
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.
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 f...
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 ...
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. Thus, Boys' Town is legally in loco parentis to John...
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 ...
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 t...
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 or given only a dollar, instead of getting the full gift provided in the will. The clause is intended to discoura...
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. It is a crime in all states, even if consensual by both parties. However, it is often co-existent with sexual abuse si...
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.
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 be...
indictable offense
n. a crime (offense) for which a Grand Jury rules that there is enough evidence to charge a defendant with a felony (a crime punishable by death or a term in the state penitentiary). These crimes include murder, manslaughter, rape, kidnapping, grand theft, robbery, burglary, arson, conspiracy, fraud...
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. Example: Ned Neighbor brings an action to enforce his claimed right to cross the property of Oliver and Olivia Owner, but only names Oliver as a defendan...
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 me...
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.
inquest
n. 1) 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...
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 compla...
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 th...
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. It is a crime under the Securi...
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 "discha...
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 d...
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 dama...
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 prosecuti...
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 inte...
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.
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 t...
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...
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, the right to drill for oil, a possibility of acquiring title upon the happening of some event, or outright title. While most often referring to real prop...
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 (such as 30 days). Several states ask basic "form" interrogatories ...
interstate commerce
n. commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the federal government according to powers spelled out in Article I of the Constitution. The federal government can also regulate commerce within a state when it may impact interstate...
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...
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 est...
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. Collectively these are called the laws of intestate success...
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.
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 ...
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 constituti...
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.
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." An expression more popular with comedians imitating lawyers than with lawyers themselves. 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) in no-fault divorce states. If one party says the marriage is irretrievable and refuses to reconcile then such differences are proved to exist.
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 imme...
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 ha...
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 sta...
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...
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. ...
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 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 ...
Jones Act
n., adj. a federal law which covers injuries to crewmen at sea, gives jurisdiction to the federal courts and sets up various rules for conduct of these cases under maritime law. A claim for recompense (payment) for damages at sea is called a "Jones Act case."
judgment notwithstanding the verdict
(N.O.V.) n. reversal of a jury's verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law. The judge will then enter a different verdict as "a matter of law." Essentially the judge should have required a "directed verdict" (instruction t...
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,...
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 provis...
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 or sheriff) 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.
Juris Doctor
(J.D.) n. the law degree granted upon graduation by many university law schools with accepted high standards of admission and grading. This often supersedes the Bachelor of Laws in recognition that the law curriculum entitles a person to a graduate degree.
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. State courts have jurisdiction over matters within that state...
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. Example: in California, municipal courts have jurisdiction up to $25,000, superior cou...
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.
jury fees
n. the rather minimal amount paid each day to jurors, plus payment for mileage from home to court. In criminal trials this amount is paid by the government (usually county government in state cases), but in civil lawsuits the jury fees are paid by the parties to the lawsuit in equal amounts. It is i...
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 tho...
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.
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 guaranteed by the Fifth Amendment to the U.S. Constitution, which states: "…nor...
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 a...
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...
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, ...
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. In many states, if the person performing the work is not a licensed contractor, he/she is limited to labor and materials in any lawsuit for contrac...
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, Oliver Owner fails to bring a lawsuit to...
landlord's lien
n. the right of a landlord to sell abandoned 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 differ in each state, but generally require written ...
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 t...
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 ...
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 acciden...
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.
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 protect...
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."
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."
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 allow...
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 wi...
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...
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 own...
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, which may range from television spots with actors to garish ads in telephone books' yellow pag...
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 p...
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...
legal services
n. the work performed by a lawyer for a client.
legalese
n. slang for the sometimes arcane, convoluted and specialized jargon of lawyers and legal scholars.
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-included offense
n. in criminal law, a crime which is proved by the same facts as a more serious crime. Example: Ignatz "Itchy" Fingers is charged with armed robbery, but the prosecution fails to prove Itchy used his pistol since the victims do not recall the gun, but does prove he took the jewels. Thus, he is convi...
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.
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...
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 necessa...
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 o...
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 (like syphilis) or dishonesty in business. Such claims are considered so obviously harmful that malice need not b...
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 t...
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 product.
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...
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 th...
life without possibility of parole
n. a sentence sometimes given for particularly vicious criminals in murder cases or to repeat felons, particularly if the crime is committed in a state which has no death penalty, the jury chooses not to impose the death penalty, or the judge feels it is simpler to lock the prisoner up and "throw aw...
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...
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 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, a...
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.
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 formul...
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 ...
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 w...
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 c...
locus
(low-cuss) n. Latin for "place," it means "place which" this or that occurred.
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 ...
long-arm statute
n. law which gives a local state court jurisdiction over an out-of-state company or individual whose actions caused damage locally or to a local resident. The legal test is whether the out-of-state defendant has contacts within the state which are "sufficiently substantial." An accident or injury wi...
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 wrongdoing. 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 ...
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 wrongdoing. 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 men...
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 wrongdoing of another. Examples: compensation for each day a car is out of commission during repairs or for the period of non-occupancy while a burne...
magistrate
n. 1) a generic term for any judge of a court, or anyone officially performing a judge's functions. 2) in a few states, an officer of the court at the lowest level who hears small claims lawsuits, serves as a judge for charges of minor crimes and/or conducts preliminary hearings in criminal cases to...
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...
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 f...
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,...
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. Examples: After petitions were filed with sufficient valid signatures to qualify a p...
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 ...
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.
marshal
1) n. a federal court official who may serve papers and act as a law enforcement officer in keeping order in court, protecting federal officials, making arrests or participating in court-ordered police activities. Each district court has a federal marshal and a corps of deputies. 2) n. in several st...
Massachusetts Trust
n. a business in which the investors give management authority to a trustee and receive "trust certificates" representing their investments. Since they own only the certificates and do not participate in management, the investors can only lose their investment and are not personally liable for any d...
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...
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 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 t...
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 of most states, and include: "When the reason of a rule ceases, so should the rule itself." "He who consents to an act is not wronged by it." "No one can take adva...
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 va...
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 th...
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...
mental suffering
n. emotional pain synonymous with "mental anguish."
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 descripti...
ministerial act
n. an act, particularly of a governmental employee, which is performed according to statutes, legal authority, established procedures or instructions from a superior, without exercising any individual judgment.
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 ruli...
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 a...
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 state prison term. They are tried in the lowest local court such as municipal, police or justice courts. Typical misdemeanors include: petty the...
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 l...
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 situati...
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 misstating 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 Jackson Pollock when it is a fake and thus is able...
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 unders...
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 ...
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...
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 pr...
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, ...
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...
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 l...
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 ...
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 orall...
motion to suppress
n. a motion (usually on behalf of a criminal defendant) to disallow certain evidence in an upcoming trial. Example: a confession which the defendant alleges was signed while he was drunk or without the reading of his Miranda rights. Since the motion is made at the threshold of the trial, it is a mot...
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...
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 considerati...
National Labor Relations Board
n. an independent regulatory commission created in 1935 by the National Labor Relations Act (Wagner Act), with five members appointed by the President subject to confirmation by the Senate. The NLRB is intended to protect employees' rights to unionize, prevent abuses by employers or unions, and over...
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) essen- tial. 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 (such as shifting jurisdiction from a state...
negligence per se
(purr say) n. negligence due to the violation of a public duty, such as high speed driving.
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 ...
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. The federal estate tax (and/or state inheritance tax wher...
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 th...
no fault insurance
n: a type of automobile insurance required of car owners by law in 19 states (New York, Michigan, Massachusetts, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Kansas, Kentucky, Maryland, Minnesota, New Jersey, North Dakota, Oregon, South Carolina, South Dakota) and the Distric...
no-par stock
n. shares in a corporation which are issued without a price per share stated on the stock certificate.
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 ...
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. The most famous case of nominal damages was when Prime Minister Winston Churchill was awarded a shilling (about 25 cents) in a libel lawsuit he had brought against author Louis A...
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...
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-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...
not guilty by reason of insanity
n. plea in court of a person charged with a crime who admits the criminal act, but whose attorney claims he/she was so mentally disturbed at the time of the crime that he/she lacked the capacity to have intended to commit a crime. Such a plea requires that the court set a trial on the issue of insan...
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.
noxious
adj. harmful to health, often referring to nuisances.
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 collec...
O.S.C.
n. short for order to show cause.
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 are not protect...
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.
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. If the chances of being afflicted by such an illness are significantly higher than the average in the population, then a former employee may r...
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 co...
offense
n. a crime or punishable violation of law of any type or magnitude.
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. Example: Harry Hardhead makes a claim or files a lawsuit asking for $20,000 from Danny Debtor as the final ...
offshore corporation
n. a corporation chartered under the laws of a country other than the United States. Some countries (particularly in the Caribbean) are popular nations of incorporation since they have little corporate regulation or taxes and only moderate management fees. Professional trustees and nominal officials...
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, ph...
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. Thus, an attorney will argue that the prior case of, for example, Steele v. M...
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 incon...
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.
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...
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 fo...
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.
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 com...
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 t...
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 adm...
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.
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...
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 appl...
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. 2) in Louisiana, the governmental equivalent of a county.
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 settleme...
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 eff...
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 McConnell (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 McConnell") ...
party of the second part
n. a reference to a party to a written contract, as distinguished from "the party of the first part."
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 trans...
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 fo...
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, eviden...
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...
peaceable possession
n. in real estate, holding property without any adverse claim to possession or title by another.
pendent jurisdiction
n. in federal procedure, the policy that allows a federal court to decide a legal question normally tried in state courts because it is based on the same facts as a lawsuit which is under federal court jurisdiction. (It also may be spelled: pendant
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 $100,000 to my daughter, Eleanor, and if she shall predecease me, to he...
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 di...
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.
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 liab...
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, Susannah").
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...
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 ...
personalty
n. movable assets (things, including animals) which are not real property, money or investments.
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 t...
pink slip
n. 1) slang for official automobile registration certificate, due to its color in some states. 2) slang for notice of being fired or laid off from a job.
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 again...
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 "...
police powers
n. from the 10th Amendment to the Constitution, which reserves to the states the rights and powers "not delegated to the United States," which include protection of the welfare, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (whi...
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 (including Congress) or the executive branch and not by the courts. Since 1960 the U.S. Supreme Court has been willing...
positive law
n. statutory man-made law, as compared to "natural law," which is purportedly based on universally accepted moral principles, "God's law," and/or derived from nature and reason. The term "positive law" was first used by Thomas Hobbes in Leviathan (1651).
posse comitatus
(pahs-see coh-mitt-tah-tus) n. from Latin for "possible force," the power of the sheriff 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 ...
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 build...
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 or of intent to conduct a sheriff's sale, 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 pl...
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 ...
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, Eugene."
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 ben...
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, cabana, detached garage) is insured or whether a person accused of burglary has actually entered a str...
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 of the state (commonly five years or more). Examples: Phillip Packer drives across the corner of Ralph Roundup's ranch t...
prescriptive easement
n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state 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 easemen...
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 be...
presiding judge
n. 1) in both state and federal appeals court, 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 ann...
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, reaso...
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 th...
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 be careful to give the "Miranda warnings," or take the risk that any admissions (any evidence gained from the statements) by the s...
principal place of business
n. location of head office of a business where the books and records are kept and/or management works. In most states corporations must report their principal place of business to the Secretary of State.
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). Stemming from the First Amendment to the Constitution, the ban on prior restraint allows publication of libel, s...
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. However, the record of "priors" can have an impact on sent...
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...
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.
privilege against self incrimina-tion
n. a right to refuse to testify against oneself in a criminal prosecution or in any legal proceeding which might be used against the person. This privilege is guaranteed by the Fifth Amendment to the Constitution, which provides: "No person…shall be compelled in any criminal case to be a witness aga...
privileges and immunities
n. the fundamental rights that people enjoy in free governments, protected by the U.S. Constitution in Article IV: "The citizens of each state shall be entitled to all privileges and immunities in the several States," and specifically to be protected against state action by the Constitution's 14th A...
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."
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 ...
probative facts
n. evidence which tends to prove something which is relative to the issues in a lawsuit or criminal prosecution.
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...
process server
n. a person who serves (delivers) legal papers in lawsuits, either as a profession or as a government official, such as a deputy sheriff, marshal or constable.
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. Most states provide for such corporations under special statutes which allow the corpo...
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 t...
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 sta...
promissory note
n. a written promise by a person (variously called maker, obligor, payor, promisor) to pay a specific amount of money (called "principal") to another (payee, obligee, promisee), usually to include a specified amount of interest on the unpaid principal amount (what he/she owes). The specified time of...
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. Most states (and the federal Securities and Exchange Act) limit promotional stock to an amou...
propria persona
adj. from Latin, for oneself.
proprietary interest
n. a total or partial ownership.
proprietary rights
n. those rights which go with ownership of real property or a business.
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. This is normally the function of the District Attorney (called States Attorney or city prosecutor in some places) and the U.S. Attorney in federal criminal cases. A state ...
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, including District Attorney, States Attorney, U.S. Attorney, Attorney General, Solicitor General, or special prosecutor. A special prosecutor may be assigned to investigate as well as prosecute if necessary when a government official ...
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 p...
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 ...
prostitution
n. the profession of performing sexual acts for money. Prostitution is a crime throughout the United States, except for a few counties in the state of Nevada, where it is allowed in licensed houses of prostitution. Soliciting acts of prostitution is also a crime, called pandering or simply, soliciti...
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 of the ...
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 county board, 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 imp...
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 n...
public administrator
n. a county 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 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 ...
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 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, an...
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, pub...
publish
v. to make public to at least one other person by any means.
punitive damages
n. (synony- mous with exemplary damages), damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.
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 community property
n. in community property states, property acquired by a couple who have not been married, but have lived and purchased the property as if they were married. Often this includes property purchased or received by a couple shortly before marriage.
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 enti...
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. Example: a public utilities hearing on setting telephone company rates is quasi-judicial.
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). 2) in the United States, organizations of women lawyers, dating from when women were a small minority of practicing attorneys and needed to encourage each other, u...
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 summar...
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 sol...
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 County Recorder will have priority and prevail over later recordings no matter when the documents were dated.
Racketeer Influenced Corrupt Organization (RICO) statue
n. a federal law which makes it a crime for organized criminal conspiracies to operate legitimate businesses.
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.
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.
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. nicknamed REIT, 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 p...
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 i...
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...
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. T...
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 ...
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 su...
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.
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 be...
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.
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 equipme...
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 ...
recording acts
n. the statutes of each state which established the keeping of official records by County Recorders or 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.
recourse
n. the right to demand payment to the writer of a check or bill of exchange.
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 volun...
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 remember...
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 Commission by a corporation making an issuance of shares to be advertised and sold to the general public in more than one state (in interstate commerce), which must be approved by the SEC before it will approve the stock issuance.
registry of deeds
n. the records of land title documents kept by the County Recorder or Recorder of Deeds. These are usually kept on microfilm reels of copies of the original documents, which can be found by tracing the names of owners in the Grantor-Grantee index. These are public information but may require the ass...
regulations
n. rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. 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. One problem is...
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.
release on one's own recognizance
v. for a judge to allow a criminal defendant pre-trial freedom without posting bail, based on the past history of the defendant, roots in the community, regular employment, the recommendation of the prosecutor, the type of crime, and in total the likelihood of making all appearances in court and the...
remise
v. to give up something, sometimes used in quitclaim deeds.
reports
n. the published decisions of appeals courts in all states and federal courts, which are found in federal, state and regional series (called "reporters") which are constantly updated with pamphlets called "advance sheets" which are soon followed by bound volumes. There are also reports of specialize...
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 contr...
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."
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 ...
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 acci...
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 ...
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. Example: an Ohio court determines that John is the father of B...
resale
n. selling again, particularly at retail. 2) adj. referring to sales to the general public, as distinguished from wholesale, sales to retailers. In many states 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. Example: Sydney Sparetire speeds on a ...
reservation
n. a provision in a deed which keeps (reserves) to the grantor some right or portion of the property. The language might read: "Sarah Sims reserves to herself an easement of access to lots 6, 7 and 8," or "reserves mineral rights," or "except she reserves lot 5."
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 condominiums or a housing cooperative) operated by a homeowners association or other governing body. Most states require that homeowners associations mainta...
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 benefi...
resisting arrest
n. the crime of using physical force (no matter how slight in the eyes of most law enforcement officers) to prevent arrest, handcuffing and/or taking the accused to jail. It is also called "resisting an officer" (but that can include interfering with a peace officer's attempt to keep the peace) and ...
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 ...
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 equiva...
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 in the United States on a variety of subjects written and updated by well-known legal scholars under the auspices of the American Law Institute since the 1930s. While not having the force of statutes or of decided precedents, the Restatement (as la...
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 ca...
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 (shortened to TRO).
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 a...
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 pre...
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 state law to impose restrictions ...
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 except of dark wood and not more than six feet high, no tennis court or swimming pool may be constructed within 30 feet...
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. Example: "for transfer only to Frank Lowry, [signed] J. Ripps." 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 ...
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 petiti...
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 Generous deeded property to the local hospital district for "use for health facilities only," and the hospital is eventually torn ...
rights
n. 1) 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). 2) slang for the information which must be given by law enforcement officers to a person who is about to be arrested, is a...
riparian rights
n. the right of the owner of the land forming the bank of a river or stream to use water from the waterway on the land, such as for drinking water or irrigation. State laws vary as to the extent of the rights, but controversy exists as to the extent of riparian rights for diversion of water to sell ...
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 ass...
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. Essentially it is a test of equilibrium (balance), reflexes and mental acuity, consisting of standing on one foot and then the other, walking a straight line, touching one's no...
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.
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. The maximum period in which real property title may be held without allowing title to vest in another is "lives in being...
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. Most states have statewide rules of court. Federal court rules are adopted by the district courts based on the Federal Rules of Procedure, and c...
said
adj. a reference back to a thing that was previously mentioned or identified, popular in legal documents, as "the said driver drove said 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...
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...
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 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...
satisfaction of mortgage
n. a document signed by a lender acknowledging that a mortgage has been fully paid. It must be recorded with the County Recorder (or 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 busi...
savings and loan
n. a banking and lending institution, chartered either by a state or the federal 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. In the early 1980s savings and loans were "de-regulated," ...
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: Dick Deliver drives a truck deli...
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 ...
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 state of incorpor...
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 par...
search
v. 1) to examine another's premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional under the 4th and 14th Amendments for law enforcement officers to conduct a search without a "search warrant" issued by a judge or without facts which give the officer "probabl...
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). The ...
search warrant
n. a written order by a judge which permits a law enforcement officer to search a specific place (eg. 112 Magnolia Avenue, Apartment 3, or a 1991 Pontiac, Texas license number 123ABC) and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weap...
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. Exact disti...
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. Example: Big Basket Markets are being struck by the Retail Clerks Unio...
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 in most states as unfair business practices and may result in criminal penalties or refusal of a court to enforce a contract (...
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 secu...
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 (varying by states) after the tenant vacates, less the cost of repairing any unusual damage...
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 federal 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 ...
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. At one time seduction was a crime in many states, but if the seducee (usually female) is of the age of consent and is not dr...
seisin
(sees-in) n. an old feudal 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 ...
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...
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 sel...
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 an...
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 prope...
self-incrimination
n. making statements or producing evidence which tends to prove that one is guilty of a crime. The 5th Amendment to the U.S. Constitution guarantees that one cannot "be compelled in any criminal case to be a witness against himself…" and the 14th Amendment applies that guarantee to state cases. Thus...
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...
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 state law (or federal law in convictions for a federal crime). Popularly, "sentence" ...
separate property
n. in community property states (California, Texas, Arizona, Idaho, Louisiana, New Mexico, Nevada and Washington), the property owned by one spouse which he/she acquired: a) before marriage, b) by inheritance, c) as a gift, d) assets traceable to other separate property such as money received from s...
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 sepa...
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 pre...
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 ...
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, nanny, traveling companion or live-in health care giver). 2) the domes...
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 ca...
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 de...
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 docume...
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 e...
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 (as in the "Spring Term" or the "October Term").
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 h...
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...
settlor
n. the person who creates a trust by a written trust declaration, called a "Trustor" in many (particularly western) states 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 f...
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...
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 ...
sex offender
n. generic term for all persons convicted of crimes involving sex, including rape, molestation, sexual harassment and pornography production or distribution. In most states convicted sex offenders are supposed to report to local police authorities, but many do not.
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 "coope...
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 sha...
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. Example: Teal Testator wills her 2,000 shares of IBM stock "to my four nephews, Matthew, Mark, Luke ...
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...
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' derivative action
n. a lawsuit by a corporation's shareholders, theoretically on behalf of the corporation, to protect and benefit all shareholders against the corporation for improper management.
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 b...
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...
Shepardize
n. a method of locating reports of appeals decisions based on prior precedents from Shepard's Citations, books which list the volume and page number of published reports of every appeals court decision which cites a previously decided case or a statute. Shepard's exists for all sets of reports of ap...
sheriff
n. the top law enforcement officer for a county, 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 judgme...
sheriff's sale
n. an auction sale of property held by the sheriff pursuant to a writ (court order) of execution (to seize and sell the property) to satisfy (pay) a judgment, after notice to the public.
shield laws
n. statutes enacted in some states 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 journal...
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...
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 c...
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 mus...
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. Examples: an order to a husband directing that he show cause why the wife in a divo...
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 ...
sign
v. 1) to write one's signature on a document, including an "X" by an illiterate or physically impaired person, provided the mark is properly witnessed in writing as "Eddie Jones, his mark." An attorney-in-fact given authority to act for another person by a power of attorney may sign for the one givi...
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, withou...
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 sa...
simple trust
n. a trust which requires that all income be distributed each year and not accumulated.
simultaneous death act
n. a statute in effect in most states which provides that 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. Example: if Charlie Careless had not left the keys in the ignition, his 10-year-old son could not have started the car and backed it over Polly Playmate. So Charlie's act was the sine qua non o...
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...
small claims court
n. a division of most municipal, city or other lowest local courts which hear cases involving relatively small amounts of money and without a request for court orders like eviction. The highest (jurisdictional) amount that can be considered in small claims court varies by state, but goes as high as ...
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 all states in the same way that rape is. Homosexual (male to male) sodomy between consenting adults has ...
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." In the United...
Solicitor General
n. the chief trial attorney in the federal Department of Justice responsible for arguing cases before the Supreme Court and ranking second to the Attorney General in the Department.
solitary confinement
n. the placement of a prisoner in a federal or state prison in a cell away from other prisoners, usually as a form of internal penal discipline, but occasionally to protect the con- vict from other prisoners or to prevent the prisoner from causing trouble. Long-term solitary confinement may be found...
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 ...
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 fa...
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) a...
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 s...
special circumstances
n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which state 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 f...
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...
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 prosecutor
n. an attorney from outside of the government selected by the Attorney General or Congress to investigate and possibly prosecute a federal government official for wrongdoing in office. The theory behind appointing a special prosecutor is that there is a built-in conflict of interest between the Depa...
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, Sophie."
specific devise
n. the gift in a will of a certain piece of real estate to a certain person or persons. Example: "I leave the Lazy Z Ranch to my brother, David."
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. Example: Findings: Was defendant exceedi...
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 an...
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 y...
speedy trial
n. in criminal prosecutions, the right of a defendant to demand a trial within a short time since to be held in jail without trial is a violation of the "due process" provision of the 5th Amendment (applied to the states by the 14th Amendment). Each state has a statute or constitutional provision li...
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 securi...
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 e...
spot zoning
n. a provision in a general plan which benefits a single parcel of land by creating a zone for use just for that parcel and different from the surrounding properties in the area. Example: in a residential neighborhood zoned for single-family dwellings with a minimum of 10,000 square feet, the corner...
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, spousal support is the term used in California and a few other states as part of new non-confrontational language (such as "dissolution" instead of "divorce") now used ...
springing interest
n. a future right to title to real property created by a deed or will. Example: "I give title to my daughter Mabel for her lifetime, and, on her death, title to my grandson Rex." Rex 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 ri...
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 i...
standing
n. the right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in federal court if a) there is an actual controversy, b) a federal statute gives the federal court jurisdiction, and c) the parties are residents of different states or otherwise fit the...
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 ...
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 ch...
state
n. 1) the federal or state government and any of its departments, agencies or components (such as a city, county or board). 2) any of the 50 states comprising the United States. 3) a nation's government.
state action
n. in federal Civil Rights Acts, dating back to 1875, any activity by the government of a state, any of its components or employees (like a sheriff) who uses the "color of law" (claim of legal right) to violate an individual's civil rights. Such "state action" gives the person whose rights have been...
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 ...
status conference
n. a pre-trial meeting of attorneys before a judge required under federal Rules of Procedure and in many states required to inform the court as to how the case is proceeding, what discovery has been conducted (depositions, interrogatories, production of documents), any settlement negotiations, proba...
statute
n. a federal or state written law enacted by the Congress or state legislature, respectively. Local statutes or laws are usually called "ordinances." Regulations, rulings, opinions, executive orders and proclamations are not statutes.
statute of frauds
n. law in every state 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. The periods vary by state. Federal statutes set the limitations for suits filed in federal courts. If the lawsuit or claim is not filed before the statutory deadline, the right ...
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 c...
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. In all but three states the age of consent is 18, and the age above which the female is no longer a child varies, althoug...
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 state, 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 par...
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 shar...
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 th...
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 secr...
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 ...
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 loquit...
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)...
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 h...
subchapter S corporation
n. the choice by a small corporation to be treated under "subchapter S" by the Internal Revenue Service, which allows the corporation to be treated like a partnership for taxation purposes. This may provide the benefit of passing losses (particularly in the early development of the business) to the ...
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, e...
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 ...
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...
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 obligat...
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 recor...
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. Example: lawyer Frank Foghorn is interviewing a witness in an accident case who tells Foghorn that Foghorn's client was jaywalking outside the crosswalk when str...
subpena
(subpoena): (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 tak...
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 p...
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. Example: Fred Farmer ...
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. ...
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 dam...
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 per...
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 cont...
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, wit...
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...
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: Carl Convict has been found guilty of manslaughter, assault with a deadly weapon and armed robbery, for which the maximum sentences ar...
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 c...
sui generis
(sooh-ee jen-ur-iss) n. Latin for "one of a kind," unique.
suicide
n. the intentional killing of oneself. Ironically, in most states suicide is 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, either specifi...
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. Example: "Wanda Williams will pay Wilma Jackson $10,000 for redecorating her house,...
summary adjudication of issues
n. a court order ruling that certain factual issues are already determined prior to trial. This summary adjudication is based upon a motion by one of the parties contending that these issues are settled and need not be tried. The motion is supported by declarations under oath, excerpts from depositi...
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 ar...
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 ...
Superior Court
n. the name used in 16 states for the basic county trial court.
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 t...
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 suppres...
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. Thus a case when first cited will be referred to as Guinn v. United States, (1915) 238 U.S. 347, meaning it can be found in volume 238 of the U.S. Reports (...
supremacy clause
n. Article VI, section 2 of the U.S. Constitution, which reads: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judge...
Supreme Court
n. 1) the highest court in the United States, which has the ultimate power to decide constitutional questions and other appeals based on the jurisdiction granted by the Constitution, including cases based on federal statutes, between citizens of different states, and when the federal government is a...
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 o...
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 unti...
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. 1) 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. 2) a judge in some states (notably New York) responsible only for probates, estates and adoptions.
surrogate court
n. a court in a few states (including New York) with jurisdiction over probates, estates and adoptions.
survivor
n. a person who outlives another, as in "to my sons, Arnold and Zeke, 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 tha...
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 part...
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...
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,...
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 o...
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 th...
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 federal crime. Evasion is distinguished from attempts to use interpretation of tax laws and/or imaginative...
tax sale
n. an auction sale of a taxpayer's property conducted by the federal government to collect unpaid taxes.
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...
tenancy at sufferance
n. a "hold-over" tenancy after a lease has expired but before the landlord has demanded that the tenant quit (vacate) the premises. During a tenancy at sufferance the tenant is bound by the terms of the lease (including payment of rent) which existed before it expired. The only difference between a ...
tentative trust
n. a bank account deposited in the name of the depositor "in trust for" someone else, which is a tentative trust until the death of the depositor since the money can be withdrawn at any time.
testacy
n. dying with a will (a testament). It is compared to "intestacy," which is dying without a will.
testamentary
adj. pertaining to a will.
testamentary capacity
n. having the mental competency to execute a will at the time the will was signed and witnessed. To have testamentary capacity, the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other ...
testamentary disposition
n. how the terms of a will divide the testator's (will writer's) estate, including specific gifts to named beneficiaries.
testamentary trust
n. a trust created by the terms of a will. Example: "The residue of my estate shall form the corpus (body) of a trust, with the executor as trustee, for my children's health and education, which shall terminate when the last child attains the age of 25, when the remaining corpus and any accumulated ...
testator
n. a person who has written a will which is in effect at the time of his/her death.
testatrix
n. female form of testator, although distinguishing between genders is falling out of fashion.
testify
v. to give oral evidence under oath in answer to questions posed by attorneys either at trial or at a deposition (testimony under oath outside of court), with the opportunity for opposing attorneys to cross-examine the witness in regard to answers given.
testimony
n. oral evidence given under oath by a witness in answer to questions posed by attorneys at trial or at a deposition (questioning under oath outside of court).
three strikes, you're out
n. recent (beginning 1994) legislation enacted in several states (and proposed in many others, as well as possible federal law) which makes life terms (or extremely long terms without parole) mandatory for criminals who have been convicted of a third felony (as in California) or of three felonies in...
tide lands
n. land between the high and low tides, which is uncovered each day by tidal action. This land belongs to the owner of the land which fronts on the sea at that point.
time is of the essence
n. a phrase often used in contracts which in effect says: the specified time and dates in this agreement are vital and thus mandatory, and "we mean it." Therefore any delay-reasonable or not, slight or not-will be grounds for cancelling the agreement.
time served
n. the period a criminal defendant has been in jail, often while awaiting bail or awaiting trial. Often a judge will give a defendant "credit for time served," particularly when sentencing for misdemeanors. Example: Johnny Jumpstart was arrested for drunk driving and spent the night in jail before h...
title abstract
n. a history of the chain of title.
title insurance
n. a policy issued by an insurance company guaranteeing that the title to a parcel of real property is clear and properly in the name of the title owner and that the owner has the right to deed the property (convey or sell) to another. Should a problem later arise with the title (such as an inaccura...
title search
n. the examination of county records for the property's title history by a title company, an abstractor, attorney or escrow officer to determine the "chain of title" and the current status of title, including owner, legal description, easements, property taxes due, encumbrances (mortgages or deeds o...
tools of trade
n. in bankruptcy law, the equipment a person requires in order to pursue his occupation, which is exempt from claims of creditors. They are also generally exempt from attachment by judgment creditors since it is important for a person to earn an income to support the family and pay creditors.
tort claims act
n. a federal or state act which, under certain conditions, waives governmental immunity and allows lawsuits by people who claim they have been harmed by torts (wrongful acts), including negligence, by government agencies or their employees. These acts also establish the procedure by which such claim...
tortfeasor
n. a person who commits a tort (civil wrong), either intentionally or through negligence.
tortious
adj. referring to an act which is a tort (civil wrong).
trade secret
n. a process, method, plan, formula or other information unique to a manufacturer, which gives it an advantage over competitors. Therefore the trade secret has value and may be protected by a court-ordered injunction against use or revelation of trade secrets by an employee, former employee or someo...
transcript
n. the written record of all proceedings, including testimony, in a trial, hearing or deposition (out-of-court testimony under oath). Jurisdictions vary as to whether the attorneys' final arguments are recorded, with the Federal Court Reporter Act, but not all states, requiring inclusion. A copy of ...
transfer
n. 1) the movement of property from one person or entity to another. 2) passage of title to property from the owner to another person. 3) a piece of paper given to allow a person or shipment to continue travel.
transfer agent
n. a person or company retained by a corporation to process transfers and registration of shares of stock (stock certificates). One difficulty is that the stock certificates do not always include the name and address of the current transfer agent, but the information can be obtained from the corpora...
transfer in contemplation of death
n. giving property under the belief of the giver that he/she is about to die or has a terminal illness. However, health recovery may result in cancellation of the gift. This is also called a "gift causa mortis."
transferred intent
n. in both criminal and tort (civil wrong) law, when an intent to cause harm to one person results in harm to another person instead of the intended target, the law transfers the intent to the actual harm. Examples: a) with malice aforethought Nate Nogood intends to shoot his girlfriend and misses h...
treason
n. the crime of betraying one's country, defined in Article III, section 3 of the U.S. Constitution: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Treason requires overt acts and includes the giving o...
treasury bill
n. a promissory note issued in multiples of $10,000 by the U.S. Treasury with a maturity date of not more than one year.
treasury bond
n. a long-term bond issued by the U.S. Treasury.
treasury note
n. a promissory note issued by the U.S. Treasury, for a period of one to five years.
treasury stock
n. stock of a private corporation which was issued and then bought back by the corporation or otherwise reacquired by the corporation. Treasury stock held by a corporation earns dividends for the corporation, but the corporation may not cast votes in decision-making the way a regular shareholder wou...
treble damages
n. tripling damages allowed by state statute in certain types of cases, such as not making good on a bad check or intentionally refusing to pay rent. Federal antitrust violations also carry treble damage penalties.
trespass
n. entering another person's property without permission of the owner or his/her agent and without lawful authority (like that given to a health inspector) and causing any damage, no matter how slight. Any interference with the owner's (or a legal tenant's) use of the property is a sufficient showin...
triple net lease
n. a lease in which the lessee's (tenant's) rent includes a share of real property taxes, insurance and maintenance as well as the basic rent. A "triple-net-lease" is standard in leases of commercial property in shopping centers and malls.
trust
n. an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust). Most trusts are founded by the persons (called trustors, settlors and/or donors) who execute a written declaration of trust which es...
trust deed
n. another name for a deed of trust, a form of mortgage used in some states, in which title is transferred to a trustee to protect the lender (beneficiary) until the loan is paid back.
trust fund
n. the principal (called the corpus) of a trust, made up of its assets and, sometimes, accumulated profits.
trustee
n. a person or entity who holds the assets (corpus) of a trustee for the benefit of the beneficiaries and manages the trust and its assets under the terms of the trust stated in the declaration of trust which created it. In many "living trusts" the creator of the trust (trustor, settlor) names himse...
trustee in bankruptcy
n. a person appointed by a bankruptcy court to supervise the affairs of a person or business which is in bankruptcy, determine both assets and debts, marshal (gather) and manage the assets if necessary, and report to the court. Most trustees in bankruptcy are full-time professionals and are paid fro...
trustor
n. the creator of a trust (who normally places the original assets into the trust), called a "settlor" or "donor" in many states. Trustor is a title used primarily in western states.
turn states' evidence
v. for a person accused of a crime to decide to give the prosecutor evidence about the crime, including facts about other participants in the crime (or other crimes) in return for lenient treatment, a plea bargain and/or a recommendation of a light sentence.
Twinkie defense
n. a claim by a criminal defendant that at the time of the crime he/she was of diminished mental capacity due to intake of too much sugar, as from eating "Twinkies," sugar-rich snacks. The defense was argued successfully by a defense psychiatrist in the notorious case of former San Francisco County ...
ultra vires
(uhl-trah veye-rehz) adj. Latin for "beyond powers," in the law of corporations, referring to acts of a corporation and/or its officers outside the powers and/or authority allowed a corporation by law. Example: Directors of Highfliers, Inc. operate a small bank for its employees and friends, which c...
ultrahazardous activity
n. an action or process which is so inherently dangerous that the person or entity conducting the activity is "strictly liable" for any injury caused by the activity. Examples: working with high explosives or conducting a professional auto race on public streets.
unclean hands
n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaint...
unconscionable
adj. referring to a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated, on t...
unconstitutional
adj. referring to a statute, governmental conduct, court decision or private contract (such as a covenant which purports to limit transfer of real property only to Caucasians) which violate one or more provisions of the U.S. Constitution. The ultimate determination of constitutionality is the U.S. S...
undisclosed principal
n. a person who uses an agent for his/her negotiations with a third party, often when the agent pretends to be acting for himself/herself. As a result, the third party does not know he/she can look to the real principal in any dispute.
undivided interest
n. title to real property held by two or more persons without specifying the interests of each party by percentage or description of a portion of the real estate. Such interests are typical between joint tenants, tenants in common and tenants by the entirety.
unified estate and gift tax
n. in federal estate taxes, the value of the estate plus gifts upon which no gift tax has been paid are combined to determine the assets upon which the tax is calculated. The estate tax "kicks in" at $600,000 for each deceased person. In larger estates an experienced accountant is virtually mandator...
uninsured motorist clause
n. the clause in a policy of insurance on an automobile which provides that if the owner (or a passenger) of the automobile is injured by a negligent driver of another vehicle who does not have liability insurance, then the insurance company will pay its insured's actual damages.
unissued stock
n. a corporation's shares of stock which are authorized by its articles of incorporation but have never been issued (sold) to anyone. They differ from "treasury stock," which is stock that was issued and then reacquired by the corporation.
unjust enrichment
n. a benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. If the money or property received rightly should have been delivered or belonged to another, then the party enriched must make restitution to the right...
unlawful assembly
n. the act of assembling for the purpose of starting a riot or breaching the peace or when such an assembly reasonably could be expected to cause a riot or endanger the public. Although freedom of assembly is guaranteed by the First Amendment to the Constitution, law enforcement has the right to req...
unreasonable search and seizure
n. search of an individual or his/her premises (including an automobile) and/or seizure of evidence found in such a search by a law enforcement officer without a search warrant and without "probable cause" to believe evidence of a crime is present. Such a search and/or seizure is unconstitutional un...
use
n. the right to enjoy the benefits of real property or personal property (but primarily used in reference to real property), whether the owner of the right has ownership of title or not. Under English common law "use" of property became extremely important since title to real property could not be c...
use tax
n. a state tax on goods purchased in another state for use in the taxing state, to make up for local sales tax. Example: Bill Buyer, who lives in California (which has a sales tax), orders a freezer from a company in a state with no sales tax. California will attempt to charge a "use" tax equivalent...
usurious
adj. referring to the interest on a debt which exceeds the maximum interest rate allowed by law.
usury
n. a rate of interest on a debt which is exorbitant and in excess of the percentage allowed by law. Each state sets its own maximum interest rate. Courts will not enforce payment of interest on a loan if the rate is usurious, so a loan may result in being interest free. Charging usury as a practice ...
valuable consideration
n. a necessary element of a contract, which confers a benefit on the other party. Valuable consideration can include money, work, performance, assets, a promise or abstaining from an act.
vehicular manslaughter
n. the crime of causing the death of a human being due to illegal driving of an automobile, including gross negligence, drunk driving, reckless driving or speeding. Vehicular manslaughter can be charged as a misdemeanor (minor crime with a maximum punishment of a year in county jail or only a fine) ...
vest
v. to give an absolute right to title or ownership, including real property and pension rights.
vested
adj. referring to having an absolute right or title, when previously the holder of the right or title only had an expectation. Example: after 20 years of employment Larry Loyal's pension rights are now vested.
vested remainder
n. the absolute right to receive title after a presently existing interest in real property terminates. A "vested remainder" is created by deed or by a decree of distribution of an estate given by will. Example: "Title to the Hard Luck Ranch to my son, Sean, subject to a life estate to my brother, D...
vexatious litigation
n. filing a lawsuit with the knowledge that it has no legal basis, with its purpose to bother, annoy, embarrass and cause legal expenses to the defendant. Vexatious litigation includes continuing a lawsuit after discovery of the facts shows it has absolutely no merit. Upon judgment for the defendant...
vicarious liability
n. sometimes called "imputed liability," attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution. Thus, an employer of an employee who injures someone through negligence while in the scope of employment (doing work ...
void for vagueness
adj. referring to a statute defining a crime which is so vague that a reasonable person of at least average intelligence could not determine what elements constitute the crime. Such a vague statute is unconstitutional on the basis that a defendant could not defend against a charge of a crime which h...
voting trust
n. a trust which solicits vote proxies of shareholders of a corporation to elect a board of directors and vote on other matters at a shareholders' meeting. A voting trust is usually operated by current directors to insure continued control, but occasionally a voting trust represents a person or grou...
waste
n. 1) any damage to real property by a tenant which lessens its value to the landlord, owner or future owner. An owner can sue for damages for waste, terminate a lease of one committing waste and/or obtain an injunction against further waste. 2) garbage, which may include poisonous effluents.
watered stock
n. shares of stock of a corporation which have been issued at a price far greater than true value. In this case, the actual value of all shares is less than the value carried on the books of the corporation.
wet reckless
n. a plea to a charge of reckless driving which was "alcohol related." A wet reckless results from a plea bargain to reduce a charge of drunk driving when the amount of blood alcohol was borderline illegal, there was no accident and no prior record. The result is a lower fine, no jail time and no re...
whiplash
n. a common neck and/or back injury suffered in automobile accidents (particularly from being hit from the rear) in which the head and/or upper back is snapped back and forth suddenly and violently by the impact. The injury is to the "soft tissues" and sometimes to the vertebrae, does not always evi...
widow's election
n. the choice a widow makes between accepting what her husband left her in his will and what she would receive by the laws of succession. Example: the state law in which the husband died would give his widow one-half of his estate by the law of succession (the other half going to the children) if th...
will contest
n. a lawsuit challenging the validity of a will and/or its terms. Bases for contesting a will include the competency of the maker of the will (testator) at the time the will was signed, the "undue influence" of someone who used pressure to force the testator to give him/her substantial gifts in the ...
witness
1) n. a person who testifies under oath in a trial (or a deposition which may be used in a trial if the witness is not available) with first-hand or expert evidence useful in a lawsuit. A party to the lawsuit (plaintiff or defendant) may be a witness. 2) n. a person who sees an event. 3) n. a person...
witness stand
n. a chair at the end of the judge's bench on the jury box side, usually with a low "modesty screen," where a witness sits and gives testimony after he/she has sworn to tell the truth. When called to testify the witness "takes the stand." Most witness stands are equipped with a microphone linked to ...
words of art
n. 1) specialized language with meaning peculiar to a particular profession, art, technical work, science or other field of endeavor. 2) jargon known only to people who specialize in a particular occupation.
Workers' Compensation Acts
n. state statutes which establish liability of employers for injuries to workers while on the job or illnesses due to the employment, and requiring insurance to protect the workers. Worker's compensation is not based on negligence of the employer, but is absolute liability for medical coverage, a pe...
Workmen's Compensation
n. a former name for worker's compensation before the unisex title of the acts was adopted.
writ of coram nobis
: (writ of core-uhm noh-bis) n. from Latin for "in our presence," an order by a court of appeals to a court which rendered judgment requiring that trial court to consider facts not on the trial record which might have resulted in a different judgment if known at the time of trial.
youthful offenders
n. under-age people accused of crimes who are processed through a juvenile court and juvenile detention or prison facilities. In most states a youth-ful offender is under the age of 18. Often a court has the latitude to try some young defendants as adults, particularly for repeat offenders who appea...
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