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SELECT A WORD TO VIEW THE COMPLETE DEFINITION:
abandon
v. to intentionally and permanently give up, surrender, leave, desert or relinquish all interest or ownership in property, a home or other premises, a right of way, and even a spouse, family, or children. The word is often used in situations to determine whether a tenant has left his/her apartment a...
abandoned property
n. property left behind (often by a tenant) intentionally and permanently when it appears that the former owner (or tenant) does not intend to come back, pick it up, or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long peri...
abandonment
n. the act of intentionally and permanently giving up, surrendering, deserting or relinquishing property, premises, a right of way, a ship, contract rights, a spouse and/or children. Abandonment of a spouse means intent at permanent separation, and with children a lengthy period of neither contact n...
abate
v. to do away with a problem, such as a public or private nuisance or some structure built contrary to public policy. This can include dikes which illegally direct water onto a neighbor's property, high volume noise from a rock band or a factory, an improvement constructed in violation of building a...
abduction
n. the criminal taking away of a person by persuasion (convincing someone-particularly a minor or a woman-he/she is better off leaving with the persuader), by fraud (telling the person he/she is needed, or that the mother or father wants him/her to come with the abductor), or by open force or violen...
abrogate
v. to annul or repeal a law or pass legislation that contradicts the prior law. Abrogate also applies to revoking or withdrawing conditions of a contract.
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
n. 1) speeding up the time when there is vesting (absolute ownership) of an interest in an estate, when the interest in front of it is terminated earlier than expected; 2) in a contract or promissory note, when the payment of debt is moved up to the present time due to some event like non-payment of...
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
n. 1) receiving something from another with the intent to keep it, and showing that this was based on a previous agreement. 2) agreeing verbally or in writing to the terms of a contract, which is one of the requirements to show there was a contract (an offer and an acceptance of that offer). A writt...
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...
accommodation
n. 1) a favor done without compensation (pay or consideration), such as a signature guaranteeing payment of a debt, sometimes called an accommodation endorsement. Such accommodation is not the smartest business practice, since the holder of the note can go after the accommodator rather than the debt...
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 ...
accretion
n. 1) in real estate, the increase of the actual land on a stream, lake or sea by the action of water which deposits soil upon the shoreline. Accretion is Mother Nature's little gift to a landowner. 2) in estates, when a beneficiary of the person who died gets more of the estate than he/she was mean...
accrue
v. 1) growing or adding to, such as interest on a debt or investment which continues to accumulate. 2) the coming into being of the right to bring a lawsuit. For example, the right to sue on a contract only accrues when the contract is breached (not on mere suspicion that it might be breached) or wh...
acknowledgment
n. the section at the end of a document where a notary public verifies that the signer of the document states he/she actually signed it. Typical language is: "State of Texas, County of Deaf Smith: (signed and sealed) On July 1, 1994, before me, a notary public for said state, personally appeared Jam...
act
1) n. in general, any action by a person. 2) n. a statutory plan passed by Congress or any legislature which is a "bill" until enacted and becomes law. 3) v. for a court to make a decision and rule on a motion or petition, as in "the court will act on your motion for a new trial."
act of God
n. a natural catastrophe which no one can prevent such as an earthquake, a tidal wave, a volcanic eruption, a hurricane or a tornado. Acts of God are significant for two reasons 1) for the havoc and damage they wreak, and 2) because often contracts state that "acts of God" are an excuse for delay or...
actionable
adj. when enough facts or circumstances exist to meet the legal requirements to file a legitimate lawsuit. If the facts required to prove a case cannot be alleged in the complaint, the case is not "actionable" and the client and his/her attorney should not file a suit. Of course, whether many cases ...
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 litem
adj. legal Latin meaning "for the purposes of the legal action only." Most often the term applies to a parent who files a lawsuit for his or her minor child as "guardian at litem" (guardian just for the purposes of the lawsuit) or for a person who is incompetent. Either at the time the lawsuit is fi...
addendum
n. an addition to a completed written document. Most commonly this is a proposed change or explanation (such as a list of goods to be included) in a contract, or some point that has been the subject of negotiation after the contract was originally proposed by one party. Real property sales agreement...
ademption
n. the act of adeeming, which is revoking (getting rid of) a gift mentioned in a will by destruction, or selling or giving away the gift before death.
adequate remedy
n. a remedy (money or performance) awarded by a court or through private action (including compromise) which affords "complete" satisfaction, and is "practical, efficient and appropriate" in the circumstances. In part this depends on what relief (like an order granting one an easement over a neighbo...
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...
adjudication
n. the act of giving a judicial ruling such as a judgment or decree. The term is used particularly in bankruptcy proceedings, in which the order declaring a debtor bankrupt is called an adjudication.
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 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.
admiralty
n. concerning activities which occur at sea, including on small boats and ships in navigable bays. Admiralty law (maritime law) includes accidents and injuries at sea, maritime contracts and commerce, alleged violations of rules of the sea over shipping lanes and rights-of-way, and mutiny and other ...
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...
admit
v. 1) to state something is true in answering a complaint filed in a lawsuit. The defendant will admit or deny each allegation in his or her answer filed with the court. If he or she agrees and states that he/she did what he/she is accused of, then the allegation need not be proved in trial. 2) in c...
adopt
v. 1) to take on the relationship of parent to child of another person, particularly (but not necessarily) a minor, by official legal action. 2) to accept or make use of, such as to adopt another party's argument in a lawsuit.
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 action
n. the process of a business or governmental agency in which it gives special rights of hiring or advancement to ethnic minorities to make up for past discrimination against that minority. Affirmative action has been the subject of legal battles on the basis that it is reverse discrimination against...
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-acquired title
n. title to property acquired after the owner attempts to sell or transfer the title to another person before he/she actually got legal title. When the title is acquired by the seller in this paper shuffle, title automatically goes to the person to whom it was sold, passing through the person who ac...
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...
agency
n. the relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. "Agency" may arise when an employer (principal) and employee (agent) ask someone to make a delivery or name someone as an agent in a contract. The basic rule is th...
agent
n. a person who is authorized to act for another (the agent's principal) through employment, by contract or apparent authority. The importance is that the agent can bind the principal by contract or create liability if he/she causes injury while in the scope of the agency. Who is an agent and what i...
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...
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...
agreement
1) n. any meeting of the minds, even without legal obligation. 2) in law, another name for a contract including all the elements of a legal contract: offer, acceptance, and consideration (payment or performance), based on specific terms.
aleatory
adj. uncertain; usually applied to insurance contracts in which payment is dependent on the occurrence of a contingent event, such as injury to the insured person in an accident or fire damage to his insured building.
aliquot:
(al-ee-kwoh) adj. a definite fractional share, usually applied when dividing and distributing a dead person's estate or trust assets.
allegation
n. a statement of claimed fact contained in a complaint (a written pleading filed to begin a lawsuit), a criminal charge, or an affirmative defense (part of the written answer to a complaint). Until each statement is proved it is only an allegation. Some allegations are made "on information and beli...
allege
v. to claim a fact is true, commonly in a complaint which is filed to commence a lawsuit, in an "affirmative defense" to a complaint, in a criminal charge of the commission of a crime or any claim.
alluvion
n. an increase in one's land from soil deposited on the shoreline by natural action of a stream, river, bay or ocean.
alter ego
n. a corporation, organization or other entity set up to provide a legal shield for the person actually controlling the operation. Proving that such an organization is a cover or alter ego for the real defendant breaks down that protection, but it can be difficult to prove complete control by an ind...
alternative pleading
n. a legal fiction in which a party to a lawsuit or a defendant charged with a crime can plead two ways which are inconsistent with each other. Examples: a) someone hurt in an accident can plead that the other party was negligent or ran into him intentionally. b) "not guilty" and "not guilty by reas...
amend
v. to alter or change by adding, subtracting, or substituting. One can amend a statute, a contract or a written pleading filed in a law -suit. The change is usually called an amendment. The legislature will amend a statute, the parties to a contract can amend it, and a party to a lawsuit can amend h...
amended complaint
n. what results when the party suing (plaintiff or petitioner) changes the complaint he/she has filed. It must be in writing, and can be done before the complaint is served on any defendant, by agreement between the parties (usually their lawyers), or upon order of the court. Complaints are amended ...
amended pleading
n. a changed written pleading in a lawsuit, including complaint or answer to a complaint. Pleadings are amended for various reasons, including correcting facts, adding causes of action (legal bases for a suit), adding affirmative defenses, or responding to a court's finding that a pleading is inadeq...
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...
antenuptial (prenuptial) agreement
n. a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These are fairly common if either or both parties have substantial...
anticipatory breach
n. when a party to a contract repudiates (reneges on) his/her obligations under that contract before fully performing those obligations. This can be by word ("I won't deliver the rest of the goods" or "I can't make any more payments") or by action (not showing up with goods or stopping payments). Th...
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...
apparent authority
n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been...
appeal
1) v. to ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling. After the lower court judgment is entered into the record, the losing party (appellant) must file a notice of appeal, request transcripts or other records of the trial court (or agree wit...
appearance
n. the act of a party or an attorney showing up in court. Once it is established that an attorney represents the person (by filing a notice of appearance or representation or actually appearing), the lawyer may make an appearance for the client on some matters without the client being present. An at...
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...
arbitration
n. a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may b...
arbitrator
n. one who conducts an arbitration, and serves as a judge who conducts a "mini-trial," somewhat less formally than a court trial. In most cases the arbitrator is an attorney, either alone or as part of a panel. Most court jurisdictions now have lists of attorneys who serve as arbitrators. Other arbi...
arguendo
prep. Latin meaning "for the sake of argument," used by lawyers in the context of "assuming arguendo" that the facts were as the other party contends, but the law prevents the other side from prevailing. Example: "assuming arguendo" that the court finds our client, the defendant, was negligent, the ...
argumentative
adj. the characterization of a question asked by the opposing attorney which does not really seek information but challenges the truthfulness or credibility of the witness. Since such a question is not allowable, often it is the basis of an objection before the question is answered, much like irrele...
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...
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...
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.
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.
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.
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.
at will employment
n. a provision found in many employment contracts which suggest the employee works at the will of the employer, and which the employers insert in order to avoid claims of termination in breach of contract, breach of the covenant of good faith and fair dealing, or discrimination. Inclusion of such a ...
attempt
v. and n. to actually try to commit a crime and have the ability to do so. This means more than just thinking about doing a criminal act or planning it without overt action. It also requires the opportunity and ability. Attempts can include attempted murder, attempted robbery, attempted rape, attemp...
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
n. 1) an agent or someone authorized to act for another. 2) a person who has been qualified by a state or federal court to provide legal services, including appearing in court. Each state has a bar examination which is a qualifying test to practice law. The examinations vary in difficulty, but canno...
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-client privilege
n. the requirement that an attorney may not reveal communications, conversations and letters between himself/ herself and his/her client, under the theory that a person should be able to speak freely and honestly with his/her attorney without fear of future revelation. In a trial, deposition, and wr...
attorney-in-fact
n. someone specifically named by another through a written "power of attorney" to act for that person in the conduct of the appointer's business. In a "general power of attorney" the attorney-in-fact can conduct all business or sign any document, and in a "special power of attorney" he/she can only ...
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...
audit
n. an examination by a trained accountant of the financial records of a business or governmental entity, including noting improper or careless practices, recommendations for improvements, and a balancing of the books. An audit performed by employees is called "internal audit," and one done by an ind...
auditor
n. an accountant who conducts an audit to verify the accuracy of the financial records and accounting practices of a business or government. A proper audit will point out deficiencies in accounting and other financial operations. Many counties have an appointed or elected auditor to make independent...
authority
n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different typ...
authorize
v. to officially empower someone to act.
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...
bad faith
1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. Most states recognize what is called "implied covenant of g...
bail bond
n. a bond provided by an insurance company through a bail bondsman acting as agent for the company, to secure the release from jail of an accused defendant pending trial. Usually there is a charge of 10 percent of the amount of the bond (e.g. $100 for a $1,000 bond) and often the defendant must put ...
bailee
n. a person, also called a custodian, with whom some article is left, usually pursuant to a contract (called a "contract of bailment"), who is responsible for the safe return of the article to the owner when the contract is fulfilled. These can include banks holding bonds, storage companies where fu...
bailment
n. 1) the act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property. Examples: bonds left with the bank, autos parked in a garage, animals lodged with a kennel, or a storage facility ...
bailor
n. a person who leaves goods in the custody of another, usually under a "contract of bailment," in which the custodian ("bailee") is responsible for the safekeeping and return of the property. Sometimes the bailor is not the owner but a person who is a servant of the owner or a finder (say, of jewel...
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...
bank
n. 1) an officially chartered institution empowered to receive deposits, make loans, and provide checking and savings account services, all at a profit. In the United States banks must be organized under strict requirements by either the federal or a state government. Banks receive funds for loans f...
bankruptcy
n. a federal system of statutes and courts which permits persons and businesses which are insolvent (debtors) or (in some cases) face potential insolvency, to place his/her/its financial affairs under the control of the bankruptcy court. The procedure is that when the debtor's debts exceed his/her/i...
bankruptcy court
n. the specialized federal court in which bankruptcy matters under the Federal Bankruptcy Act are conducted. There are several bankruptcy courts in each state, and each one's territory covers several counties. The office of a court clerk, where petitions can be filed, is located next to each court.
bar examination
n. the examination given in each state by either the highest court or, if an "integrated" bar, by the state bar association (subject to appeal to the State Supreme Court) for admission as an attorney. The examinations vary in difficulty, but most include up to three days of questions, many of which ...
bargain
n. 1) a mutual agreement or contract between two parties which is voluntary and involves the exchange of consideration (money, goods, services, or a promise for a promise). 2) a supposed good deal.
battery
n. the actual intentional striking of someone, with intent to harm, or in a "rude and insolent manner" even if the injury is slight. Negligent or careless unintentional contact is not battery no matter how great the harm. Battery is a crime and also the basis for a lawsuit as a civil wrong if there ...
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.
benefit
1) n. any profit or acquired right or privilege, primarily through a contract. 2) in worker's compensation the term "benefit" is the insurance payment resulting from a fatal accident on the job, while "compensation" is for injury without death. 3) in income taxation, anything that brings economic ga...
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...
bequeath
v. to give personal property under provisions of a will (as distinct from "devise," which is to give real estate). 2) the act of giving any asset by the terms of a will.
BFP
n. slang for bona fide purchaser, which means someone who purchased something (e.g. a bond, a promissory note, or jewelry) with no reason to be suspicious that it was stolen, belonged to someone else, or was subject to another party's claim. The BFP must have paid a full and fair price and have rece...
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...
bid
n. an offer to purchase with a specific price stated. It includes offers during an auction in which people compete by raising the bid until there is no more bidding, or contractors offer to contract to build a project or sell goods or services at a given price, with usually the lowest bidder getting...
bifurcation
n. the act of a judge in dividing issues before a trial so that one issue will be ruled upon before hearing evidence on the other issue. (See bifurcate
bilateral contract
n. an agreement in which the parties exchange promises for each to do something in the future. "Susette Seller promises to sell her house to Bobby Buyer and Buyer promises to pay Seller $100,000 for it." This is distinct from a "unilateral contract," in which there is a promise to pay if the other p...
bill
n. 1) what is commonly called a "check" by which the signer requires the bank to pay a third party a sum of money. This is a holdover from the days when a person would draw up a "bill of exchange." 2) a statement of what is owed. 3) any paper money. 4) a legislative proposal for enactment of a law. ...
bill of attainder
n. a legislative act which declares a named person guilty of a crime, particularly treason. Such bills are prohibited by Article I, Section 9 of the Constitution.
bill of lading
n. a receipt obtained by the shipper of goods from the carrier (trucking company, railroad, ship or air freighter) for shipment to a particular buyer. It is a contract protecting the shipper by guaranteeing payment and satisfies the carrier that the recipient has proof of the right to the goods. The...
bill of 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...
blackmail
n. the crime of threatening to reveal embarrassing, disgraceful or damaging facts (or rumors) about a person to the public, family, spouse or associates unless paid off to not carry out the threat. It is one form of extortion (which may include other threats such as physical harm or damage to proper...
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...
boiler room
n. a telephone bank operation in which fast-talking telemarketers or campaigners attempt to sell stock, services, goods, or candidates and act as if they are calling from an established company or brokerage. Often the telemarketers are totally fraudulent and in violation of security laws.
boilerplate
n., adj. slang for provisions in a contract, form or legal pleading which are apparently routine and often preprinted. The term comes from an old method of printing. Today "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed. A layperson should beware that the p...
bona fide
adj. Latin for "good faith," it signifies honesty, the "real thing" and, in the case of a party claiming title as bona fide purchaser or holder, it indicates innocence or lack of knowledge of any fact that would cast doubt on the right to hold title.
bona fide purchaser
n. commonly called BFP in legal and banking circles; a person who has purchased an asset (including a promissory note, bond or other negotiable instrument) for stated value, innocent of any fact which would cast doubt on the right of the seller to have sold it in good faith. This is vital if the tru...
bond
n. 1) written evidence of debt issued by a company with the terms of payment spelled out. A bond differs from corporate shares of stock since bond payments are pre-determined and provide a final payoff date, while stock dividends vary depending on profitability and corporate decisions to distribute....
bottomry
n. a mortgage contract in which a ship and/or its freight is pledged as security for a loan for equipment, repair, or use of a vessel. The contract is generally called a "bottomry bond." If the loan is not paid back, the lender can sell the ship and/or its freight.
boycott
n. organized refusal to purchase products or patronize a store to damage the producer or merchant monetarily, to influence its policy, and/or to attract attention to a social cause. Labor unions and their sympathizers have boycotted lettuce and grapes not picked by union farm workers, and civil righ...
breach
1) n. literally, a break. A breach may be a failure to perform a contract (breaking its terms), failure to do one's duty (breach of duty, or breach of trust), causing a disturbance, threatening, or other violent acts which break public tranquility (breach of peace), illegally entering property (brea...
breach of contract
n. failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being ...
breach of the peace
n. any act which disturbs the public or even one person. It can include almost any criminal act causing fear or attempting intimidation, such as displaying a pistol or shouting inappropriately.
breach of trust
n. 1) any act which is in violation of the duties of a trustee or of the terms of a trust. Such a breach need not be intentional or with malice, but can be due to negligence. 2) breaking a promise or confidence.
breaking and entering
n. 1) the criminal act of entering a residence or other enclosed property through the slightest amount of force (even pushing open a door), without authorization. If there is intent to commit a crime, this is burglary. If there is no such intent, the breaking and entering alone is probably at least ...
bribery
n. the crime of giving or taking money or some other valuable item in order to influence a public official (any governmental employee) in the performance of his/her duties. Bribery includes paying to get government contracts (cutting in the roads commissioner for a secret percentage of the profit), ...
brief
1) n. a written legal argument, usually in a format prescribed by the courts, stating the legal reasons for the suit based on statutes, regulations, case precedents, legal texts, and reasoning applied to facts in the particular situation. A brief is submitted to lay out the argument for various peti...
broker
n. in general, a person who arranges contracts between a buyer and seller for a commission (a percentage of the sales price). These include real estate brokers (who have responsibility over an agency and its sales agents as well as their own conduct), insurance brokers (handling more than one compan...
brought to trial
v. the act of actually beginning a trial, usually signaled by swearing in the first witness (not the impanelling of the jury or beginning opening statements).
bucket shop
n. an unofficial and usually illegal betting operation in which the prices of stocks and commodities are posted and the customers bet on the rise and fall of prices without actually buying stock, commodities, or commodity futures. Bucket shops are seldom seen today since there are many opportunities...
burden of proof
n. the requirement that the plaintiff (the party bringing a civil lawsuit) show by a "preponderance of evidence" or "weight of evidence" that all the facts necessary to win a judgment are presented and are probably true. In a criminal trial the burden of proof required of the prosecutor is to prove ...
burglary
n. the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply...
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...
but for rule
n. one of several tests to determine if a defendant is responsible for a particular happening. In this test, was there any other cause, or would it have occurred "but for" the defendant's actions? Example: "But for" defendant Drivewild's speeding, the car would not have gone out of control, and ther...
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
1) n. from Latin for caput, meaning "head," the basic assets of a business (particularly corporations or partnerships) or of an individual, including actual funds, equipment and property as distinguished from stock in trade, inventory, payroll, maintenance and services. 2) adj. related to the basic ...
capitalization
n. 1) the act of counting anticipated earnings and expenses as capital assets (property, equipment, fixtures) for accounting purposes. 2) the amount of anticipated net earnings which hypothetically can be used for conversion into capital assets.
caption
n. the first section of any written legal pleading (papers) to be filed, which contains the name, address, telephone number of the attorney, the person or persons the attorney represents, the court name, the title of the case, the number of the case, and the title of the documents (complaint, accusa...
careless
adj., adv. 1) negligent. 2) the opposite of careful. A careless act can result in liability for damages to others.
carnal knowledge
n. from Latin carnalis for "fleshly:" sexual intercourse between a male and female in which there is at least some slight penetration of the woman's vagina by the man's penis. It is legally significant in that it is a necessary legal characteristic or element of rape, child molestation, or consensua...
carrying for hire
n. the act of transporting goods or individuals for a fee. It is important to determine if the carrier has liability for safe delivery or is subject to regulation.
cartel
n. 1) an arrangement among supposedly independent corporations or national monopolies in the same industrial or resource development field organized to control distribution, set prices, reduce competition, and sometimes share technical expertise. Often the participants are multinational corporations...
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 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...
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...
chain of title
n. the succession of title ownership to real property from the present owner back to the original owner at some distant time. Chains of title include notations of deeds, judgments of distribution from estates, certificates of death of a joint tenant, foreclosures, judgments of quiet title (lawsuit t...
champerty
n. an agreement between the party suing in a lawsuit (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery (money won and paid). In common law this was illegal on the theory that it encouraged lawsuits. Today it is...
chancery
n. a court that can order acts performed. Today chancery courts are merged with law courts in most states.
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...
churning
n. the unethical and usually illegal practice of excessive buying and selling of shares of stock for a customer by a stockbroker or sales agent for the purpose of obtaining high sales commissions.
circumstantial evidence
n. evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. There is a public perception that such evidence is weak ("all they have is circumstantial evidence"), but the probable conclusion from the circumstances may be so strong that t...
citation
n. 1) a notice to appear in court due to the probable commission of a minor crime such as a traffic violation, drinking liquor in a park where prohibited, letting a dog loose without a leash, and in some states for possession of a small amount of marijuana. Failure to appear can result in a warrant ...
citizen
n. person who by place of birth, nationality of one or both parents, or by going through the naturalization process has sworn loyalty to a nation. The United States has traditionally taken the position that an American citizen is subject to losing his/her citizenship if he/she commits acts showing l...
civil
adj. 1) that part of the law that encompasses business, contracts, estates, domestic (family) relations, accidents, negligence and everything related to legal issues, statutes and lawsuits, that is not criminal law. In a few areas civil and criminal law may overlap or coincide. For example, a person...
civil code
n. in many states, the name for the collection of statutes and laws which deal with business and negligence lawsuits and practices.
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...
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...
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...
cloud on title (cloud)
n. an actual or apparent outstanding claim on the title to real property. "Clouds" can include an old mortgage or deed of trust with no recording showing the secured debt was paid off, a failure to properly transfer all interests in the real property (such as mineral rights) to a former owner, a pre...
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
n. a collection of written laws gathered together, usually covering specific subject matter. Thus, a state may have a civil code, corporations code, education code, evidence code, health and safety codes, insurance code, labor code, motor vehicle code, penal code, revenue and taxation code, and so f...
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...
codicil
n. a written amendment to a person's will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends. A codicil can add to, subtract from or modify the terms of the original will. When the person dies, both the original will and the codicil...
cohabitation
n. living together in the same residence, generally either as husband and wife or for an extended period of time as if the parties were married. Cohabitation implies that the parties are having sexual intercourse while living together, but the definition would not apply to a casual sexual encounter....
collateral
1) n. property pledged to secure a loan or debt, usually funds or personal property as distinguished from real property (but technically collateral can include real estate). 2) adj. referring to something that is going on at the same time parallel to the main issue in a lawsuit or controversy which ...
collateral attack
n. a legal action to challenge a ruling in another case. For example, Joe Parenti has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paterni...
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.
color of law
n. the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exists. An outstanding example is found in the civil rights acts which penalize law enforcement officers for violating civil rights by making arrests "under color of law" of pe...
commencement of action
n. an action (a lawsuit) commences (begins officially) when the party suing files a written complaint or petition with the clerk of the court. Under a unique New York statute a plaintiff may prepare a summons and get a case number before filing a complaint.
comment
n. a statement made by a judge or an attorney during a trial which is based on an alleged fact, but not a proven fact. If a comment is made in the presence of the jury, the jurors should be reminded it is not evidence and should not be considered. But how can a juror forget? The old adage: "a bell o...
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...
commingling
n. the act of mixing the funds belonging to one party with those of another party, or, most importantly with funds held in trust for another. Spouses or business partners may commingle without a problem, except that a spouse may thus risk turning separate property into community property (transmutat...
common law
n. the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English ki...
common-law marriage
n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis (usually for seven years). Common-law marriage is legal in Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma,...
community property
n. property and profits received by a husband and wife during the marriage, with the exception of inheritances, specific gifts to one of the spouses, and property and profits clearly traceable to property owned before marriage, all of which is separate property. Community property is a concept which...
commutation
n. the act of reducing a criminal sentence resulting from a criminal conviction by the executive clemency of the Governor of the state, or President of the United States in the case of federal crimes. This is not the same as a pardon, which wipes out the conviction or the actual or potential charge ...
company
n. any formal business entity for profit, which may be a corporation, a partnership, association or individual proprietorship. Often people think the term "company" means the business is incorporated, but that is not true. In fact, a corporation usually must use some term in its name such as "corpor...
compensatory damages
n. damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action).
competent
adj. 1) in general, able to act in the circumstances, including the ability to perform a job or occupation, or to reason or make decisions. 2) in wills, trusts and contracts, sufficiently mentally able to understand and execute a document. To be competent to make a will a person must understand what...
complaint
n. the first document filed with the court (actually with the County Clerk or Clerk of the Court) by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or d...
concealed weapon
n. a weapon, particularly a handgun, which is kept hidden on one's person, or under one's control (in a glove compartment or under a car seat). Carrying a concealed weapon is a crime in most states unless the party with the weapon is a law enforcement officer or has a permit to carry a concealed wea...
concealment
n. fraudulent failure to reveal information which someone knows and is aware that in good faith he/she should communicate to another. Examples include failure to disclose defects in goods sold (the horse has been sick, the car has been in an accident), leaving out significant liabilities in a credit...
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...
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...
condemn
v. 1) for a public agency to determine that a building is unsafe or unfit for habitation and must be torn down or rebuilt to meet building and health code requirements. 2) for a governmental agency to take private property for public use under the right of eminent domain, but constitutionally the pr...
condition
n. a term or requirement stated in a contract, which must be met for the other party to have the duty to fulfill his/her obligations.
condition precedent
n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. Examples: if the shi...
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 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.
condominium
n. title to a unit of real property which, in reality, is the airspace which an apartment, office or store occupies. An increasingly common form of property title in a multi-unit project, condominiums actually date back to ancient Rome, hence the Latin name. The owner of the condominium also owns a ...
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 ...
confidential relation
n. a relationship in which one person has confidence in and relies on another because of some combination of a history of trust, older age, family connection and/or superior training and knowledge, to a point where the party relied upon dominates the situation, for good or bad. While it may include ...
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...
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...
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...
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...
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 ...
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 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.
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...
contemplation of death
n. the anticipation of death in a relatively short time due to age, illness, injury or great danger, which causes a person to make a gift, transfer property or take some other dramatic action. (Lawyers who like Latin call this causa mortis.) It can be important since such a gift or transfer can be s...
contract
1) n. an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. Since the law of contracts is at the heart of most business dealings, it is one of the three or four most significant ar...
contractor
n. 1) a person or entity that enters into a contract. 2) commonly, a person or entity that agrees to construct a building or to provide or install specialized portions of the construction. The party responsible for the overall job is a "general contractor," and those he/she/it hires to construct or ...
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...
controlling law
n. the laws of the state which will be relied upon in interpreting or judging disputes involving a contract, trust or other documents. Quite often an agreement will state as one of its provisions that the controlling law will be that of a particular state.
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.
cooperative
n. an association of individual businesses, farmers, ranchers or manufacturers with similar interests, intending to cooperate in marketing, shipping and related activities (sometimes under a single brand name) to sell their products efficiently, and then share the profits based on the production, ca...
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...
corporate opportunity
n. a business opportunity which becomes known to a corporate official, particularly a director or other upper management, due to his/her position within the corporation. In essence, the opportunity or knowledge belongs to the corporation, and the officials owe a duty (a fiduciary duty) not to use th...
corporation
n. an organization formed with state governmental approval to act as an artificial person to carry on business (or other activities), which can sue or be sued, and (unless it is non-profit) can issue shares of stock to raise funds with which to start a business or increase its capital. One benefit i...
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.
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...
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 ...
count
n. each separate statement in a complaint which states a cause of action which, standing alone, would give rise to a lawsuit, or each separate charge in a criminal action. For example, the complaint in a civil (non-criminal) lawsuit might state: First Count (or cause of action) for negligence, and t...
counter offer
n. an offer made in response to a previous offer by the other party during negotiations for a final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract. Example: Susan Seller offers to sell he...
counterpart
n. in the law of contracts, a written paper which is one of several documents which constitute a contract, such as a written offer and a written acceptance. Often a contract is in several counterparts which are the same but each paper is signed by a different party, particularly if they are in diffe...
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
n. 1) the judge, as in "The court rules in favor of the plaintiff." 2) any official tribunal (court) presided over by a judge or judges in which legal issues and claims are heard and determined. In the United States there are essentially two systems: federal courts and state courts. The basic federa...
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-martial
1) n. a military court for trying offenses in violation of army, navy or other armed service rules and regulations, made up of military officers, who act as both finders of fact (in effect, a jury) and as arbiters (judges) of the law applying to the case. A general court-martial is conducted by a mi...
covenant
1) n. a promise in a written contract or a deed of real property. The term is used only for certain types of promises such as a covenant of warranty, which is a promise to guarantee the title (clear ownership) to property, a promise agreeing to joint use of an easement for access to real property, o...
covenant not to compete
n. a common provision in a contract for sale of a business in which the seller agrees not to compete in the same business for a period of years or in the geographic area. This covenant is usually allocated (given) a value in the sales price.
credibility
n. whether testimony is worthy of belief, based on competence of the witness and likelihood that it is true. Unless the testimony is contrary to other known facts or is extremely unlikely based on human experience, the test of credibility is purely subjective.
credible witness
n. a witness whose testimony is more than likely to be true based on his/her experience, knowledge, training and appearance of honesty and forthrightness, as well as common human experience. This is subjective in that the trier of fact (judge or jury) may be influenced by the demeanor of the witness...
crime
n. a violation of a law in which there is injury to the public or a member of the public and a term in jail or prison, and/or a fine as possible penalties. There is some sentiment for excluding from the "crime" category crimes without victims, such as consensual acts, or violations in which only the...
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
1) n. a popular term for anyone who has committed a crime, whether convicted of the offense or not. More properly it should apply only to those actually convicted of a crime. Repeat offenders are sometimes called habitual criminals. 2) adj. describing certain acts or people involved in or relating t...
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...
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...
culpable
adj. sufficiently responsible for criminal acts or negligence to be at fault and liable for the conduct. Sometimes culpability rests on whether the person realized the wrongful nature of his/her actions and thus should take the blame.
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...
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 ...
date rape
n. forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted the acts by verbal refusals, denials or pleas to stop, and/or physical resistance. The fact that the parties knew eac...
de facto
adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.
de jure
adj. Latin for "lawful," as distinguished from de facto (actual).
de jure corporation
n. a corporation in good standing under the law, as compared to a de facto corporation which is acting while not fulfilling legal requirements.
deadly weapon
n. any weapon which can kill. This includes not only weapons which are intended to do harm like a gun or knife, but also blunt instruments like clubs, baseball bats, monkey wrenches, an automobile or any object which actually causes death. This becomes important when trying to prove criminal charges...
debt
n. 1) a sum of money due to another. 2) obligation to deliver particular goods or perform certain acts according to an agreement, such as returning a favor. 3) a cause of action in a lawsuit for a particular amount owed.
deception
n. the act of misleading another through intentionally false statements or fraudulent actions.
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 mailing
n. a form stating that a particular document has been mailed to a particular person or persons (such as opposing attorneys or the clerk of the court) and declaring the truth of that fact "under penalty of perjury," and signed by the person in the law office responsible for mailing it. This is almost...
declaratory judgment
n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion," it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contra...
declaratory relief
n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.
decree
n. in general, synonymous with judgment. However, in some areas of the law, the term decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law and in equity (court rulings ordering or prohibiting certain acts). Thus, there may be references to a...
decriminalization
n. the repeal or amendment of statutes which made certain acts criminal, so that those acts no longer are crimes subject to prosecution. Many states have decriminalized certain sexual practices between consenting adults, "loitering" (hanging out without any criminal activity), or outmoded racist law...
dedication
n. the giving of land by a private person or entity to the government, typically for a street, park or school site, as part of and a condition of a real estate development. The local county or city (or other public body) must accept the dedication before it is complete. In many cases there are "dedi...
deduction
n. an expenditure which an income tax payer may subtract from gross (total) income to determine taxable income. This is not the same as an exemption, which is for one's marital status, age over 65, blindness and number of dependents (e.g. children), which, added together, reduce the tax owed.
deed
1) n. the written document which transfers title (ownership) or an interest in real property to another person. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed by the grantor, who must then acknowl...
defamation
n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made wi...
default judgment
n. if a defendant in a lawsuit fails to respond to a complaint in the time set by law (commonly 20 or 30 days), then the plaintiff (suer) can request that the default (failure) be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment. If the compla...
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 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...
deficiency judgment
n. a judgment for an amount not covered by the value of security put up for a loan or installment payments. In most states the party owed money can only get a deficiency judgment if he/she chooses to file a suit for judicial foreclosure instead of just foreclosing on real property. However, some sta...
deliberate
1) adj. (dee-lib-er-et) done with care and intention or premeditated. 2) v. (dee-lib-er-ate) to consider the facts, the laws and/or other matters, particularly by members of a jury, a panel of judges or by any group including a legislature.
deliberation
n. the act of considering, discussing and, hopefully, reaching a conclusion, such as a jury's discussions, voting and decision-making.
deliver
v. to actually hand an object, money or document to another.
delivery
n. the actual handing to another of an object, money or document (such as a deed) to complete a transaction. The delivery of a deed transfers title (provided it is then recorded), and the delivery of goods makes a sale complete and final if payment has been made. Symbolic or constructive delivery (d...
demand
1) v. to claim as a need, requirement or entitlement, as in to demand payment or performance under a contract. In a lawsuit for payment of a debt or performance of an act, the party suing (plaintiff) should allege that he/she/it demanded payment or performance. 2) n. a claim, such as an unqualified ...
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...
demurrer
n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to d...
denial
n. a statement in the defendant's answer to a complaint in a lawsuit that an allegation (claim of fact) is not true. If a defendant denies all allegations it is called a general denial. In answering, the defendant is limited to admitting, denying or denying on the basis he/she/it has no information ...
dependent
1) n. a person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce his/her income taxes. 2) adj. requiring an event to occur, as the fulfillment of a contract is dependent on the expert being available.
deportation
n. the act of expelling a foreigner from a country, usually because he/she has a criminal record, committed a crime, lied on his/her entry documents, is in the country illegally or his/her presence is deemed by the Immigration and Naturalization Service, FBI or State Department officials to be again...
depreciation
n. the actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a busine...
derivative action
n. a lawsuit brought by a corporation shareholder against the directors, management and/or other shareholders of the corporation, for a failure by management. In effect, the suing shareholder claims to be acting on behalf of the corporation, because the directors and management are failing to exerci...
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...
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.
devolve
v. when property is automatically transferred from one party to another by operation of law, without any act required of either past or present owner. The most common example is passing of title to the natural heir of a person upon his/her death. 2) passing of authority to a vice president on the de...
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...
diminution in value
n. in the event of a breach of contract, the decrease in value of property due to the failure to construct something exactly as specified in the contract.
direct and proximate cause
n. the immediate reason 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...
direct evidence
n. real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.
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 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...
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...
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.
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.
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.
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.
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.
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.
divorce
1) n. the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution in some states, including California) by one party. Some states still require at least a minimal showing of fault, but no-fault divorce is now the rule in which "incompatibility" is suf...
DNA
n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the famous "double helix") in the nucleus of each living cell, the combination of which determines each individual's hereditary characteristics. In law, the importance is the discovery that each person's DNA is different and is fo...
docket
1) n. the cases on a court calendar. 2) n. brief notes, usually written by the court clerk, stating what action was taken that day in court. 3) v. to write down the name of a case to be put on calendar or make notes on action in court.
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 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 ...
double jeopardy
n. placing someone on trial a second time for an offense for which he/she has been previously acquitted, even when new incriminating evidence has been unearthed. This is specifically prohibited by the Fifth Amendment to the U.S. Constitution, which states: "…nor shall any person be subject for the s...
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...
drop dead date
n. a provision in a contract or a court order which sets the last date an event must take place (such as payment) or otherwise certain consequences will automatically follow, such as cancelling the contract, taking property or entering a judgment.
due 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...
duty
n. 1) a legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that there was a duty by defendant to plaintiff. This can be a duty of care in a negligence case or a duty to perform in a contract case. 2) a tax on imports.
duty of care
n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting m...
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...
EIR
n. popular acronym for environmental impact report, required by many states as part of the application to a county or city for approval of a land development or project.
ejectment
n. a lawsuit brought to remove a party who is occupying real property. This is not the same as an unlawful detainer (eviction) suit against a non-paying or unsatisfactory tenant. It is against someone who has tried to claim title to the property. Example: George Grabby lives on a ranch which he clai...
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...
elder law
n. a specialty in legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other concerns of older people. As more people live longer it has become an increasingly...
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...
element
n. 1) an essential requirement to a cause of action (the right to bring a lawsuit to enforce a particular right). Each cause of action (negligence, breach of contract, trespass, assault, etc.) is made up of a basic set of elements which must be alleged and proved. Each charge of a criminal offense r...
emancipation
n. freeing a minor child from the control of parents and allowing the minor to live on his/her own or under the control of others. It usually applies to adolescents who leave the parents' household by agreement or demand. Emancipation may also end the responsibility of a parent for the acts of a chi...
emergency
n. a sudden, unforeseen happening which requires action to correct or to protect lives and/or property.
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 ...
employee
n. a person who is hired for a wage, salary, fee or payment to perform work for an employer. In agency law the employee is called an agent and the employer is called the principal. This is important to determine if one is acting as employee when injured (for worker's compensation) or when he/she cau...
employment
n. the hiring of a person for compensation. It is important to determine if acts occurred in the "scope of employment" to establish the possible responsibility of the employer to the employee for injuries on the job or to the public for acts of the employee.
enclosure
(inclosure)n. land bounded by a fence, wall, hedge, ditch or other physical evidence of boundary. Unfortunately, too often these creations are not included among the actual legally described boundaries and cause legal problems.
encroach
v. to build a structure which is in whole or in part across the property line of another's real property. This may occur due to incorrect surveys, guesses or miscalculations by builders and/or owners when erecting a building. The solutions vary from giving the encroaching party an easement or lease ...
encroachment
n. the act of building a structure which is in whole or in part on a neighbor's property.
encumbrance
(incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes, tax liens, mechanic's liens, easements and water or timber rights. While the owner has title, any encumbrance is us...
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...
enjoin
v. for a court to order that someone either do a specific act, cease a course of conduct or be prohibited from committing a certain act. To obtain such an order, called an injunction, a private party or public agency has to file a petition for a writ of injunction, serve it on the party he/she/it ho...
enter a judgment
v. to officially record a judgment on the "judgment roll," which entry is normally performed by the court clerk once the exact wording of the judgment has been prepared or approved and signed by the trial judge. All times for appeal and other post-judgment actions are based on the date of the entry ...
entrapment
n. in criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated...
environmental impact report
n. a study of all the factors which a land development or construction project would have on the environment in the area, including population, traffic, schools, fire protection, endangered species, archeological artifacts and community beauty. Many states require such reports be submitted to local ...
environmental law
n. a body of state and federal statutes intended to protect the environment, wildlife, land and beauty, prevent pollution or over-cutting of forests, save endangered species, conserve water, develop and follow general plans and prevent damaging practices. These laws often give individuals and groups...
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 ...
equity
n. 1) a venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing ...
error
n. a mistake by a judge in procedure or in substantive law, during a hearing, upon petitions or motions, denial of rights, during the conduct of a trial (either granting or denying objections), on approving or denying jury instructions, on a judgment not supported by facts or applicable law or any o...
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.
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.
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.
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...
eviction
n. a generic word for the act of expelling (kicking out) someone from real property either by legal action (suit for unlawful detainer), a claim of superior (actual) title to the property, or actions which prevent the tenant from continuing in possession (constructive eviction). Most frequently evic...
evidence
n. every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and ...
ex delicto
(ex dee-lick-toe)adj. Latin for a reference to something that arises out of a fault or wrong, but not out of contracts. Of only academic interest today, it identified actions which were civil wrongs (torts).
ex parte
(ex par-tay, but popularly, ex party) adj. Latin meaning "for one party," referring to motions, hearings or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a jud...
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 ...
exception
n. 1) a formal objection during trial ("We take exception, or simply, "exception")" to the ruling of a judge on any matter, including rulings on objections to evidence, to show to a higher court that the lawyer did not agree with the ruling. In modern practice, it is not necessary "to take exception...
exchange
1) v. to trade or barter property, goods and/or services for other property, goods and/or services, unlike a sale or employment in which money is paid for the property, goods or services. 2) n. the act of making a trade or barter. An exchange of "equivalent" property, including real estate, can defe...
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.
exculpatory
adj. applied to evidence which may justify or excuse an accused defendant's actions and which will tend to show the defendant is not guilty or has no criminal intent.
excusable neglect
n. a legitimate excuse for the failure of a party or his/her lawyer to take required action (like filing an answer to a complaint) on time. This is usually claimed to set aside a default judgment for failure to answer (or otherwise respond) in the period set by law. Illness, press of business by the...
execute
v. 1) to finish, complete or perform as required, as in fulfilling one's obligations under a contract or a court order. 2) to sign and otherwise complete a document, such as acknowledging the signature if required to make the document valid. 3) to seize property under court order. 4) to put to death...
executed
1) adj. to have been completed. (Example: "it is an executed contract") 2) v. to have completed or fully performed. (Example: "he executed all the promises made in the contract") 3) v. completed and formally signed a document, such as a deed, contract or lease. 4) v. to have been put to death for a ...
execution
n. 1) the act of getting an officer of the court to take possession of the property of a losing party in a lawsuit (judgment debtor) on behalf of the winner (judgment creditor), sell it and use the proceeds to pay the judgment. The procedure is to take the judgment to the clerk of the court and have...
executive order
n. a President's or Governor's declaration which has the force of law, usually based on existing statutory powers, and requiring no action by the Congress or state legislature.
executor
n. the person appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor. The executor must insure that the person's desires expressed in the will are ca...
executory
adj. something not yet performed or done. Examples: an executory contract is one in which all or part of the required performance has not been done; an executory bequest is a gift under a will which has not been distributed to the beneficiary.
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...
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.
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).
extrajudicial
adj. referring to actions outside the judicial (court) system, such as an extralegal confession, which, if brought in as evidence, may be recognized by the judge during a trial.
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.
fact
n. an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury).
fact finder (finder of fact)
n. in a trial of a lawsuit or criminal prosecution, the jury or judge (if there is no jury) who decides if facts have been proven. Occasionally a judge may appoint a "special master" to investigate and report on the existence of certain facts.
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.
fair comment
n. a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment. The U.S. Supreme Court has ruled that to protect free speech, statements made about a public person (politician, offi...
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.
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.
fertile octogenarian
n. an unrealistic notion that any person (male or female) is capable of having a child no matter at what age, infirmity or physical deficiency. Thus, if property title could not pass to one's child as long as he or she might have or acquire a sibling, then he/she must wait until mother and dad have ...
fiduciary
1) n. from the Latin fiducia, meaning "trust," a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, bu...
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...
final decree
n. another name for a final judgment. In states where there are interlocutory decrees of divorce (in the hope that a further wait may lead to reconciliation), followed several months later by the actual divorce, the second order is called a final decree, issued after the filing of a declaration that...
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...
finding
n. the determination of a factual question vital (contributing) to a decision in a case by the trier of fact (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact. A finding of fact is distinguished from a conclusion of law which is determined by th...
firm offer
n. in contract law, an offer (usually in writing) which states it may not be withdrawn, revoked or amended for a specific period of time. If the offer is accepted without a change during that period, there is a firm, enforceable contract.
fixture
n. a piece of equipment which has been attached to real estate in such a way as to be part of the premises and its removal would do harm to the building or land. Thus, a fixture is transformed from a movable asset to an integral part of the real property. Essentially a question of fact, it often ari...
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.
forbearance
n. an intentional delay in collecting a debt or demanding performance on a contract, usually for a specific period of time. Forbearance is often consideration for a promise by the debtor to pay an added amount.
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...
foreign corporation
n. a corporation which is incorporated under the laws of a different state or nation. A "foreign" corporation must file a notice of doing business in any state in which it does substantial regular business. It must name an "agent for acceptance of service" in that state, or the Secretary of State in...
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...
forfeit
v. to lose property or rights involuntarily as a penalty for violation of law. Example: the government can take automobiles or houses which are used for illegal drug trafficking or manufacture. A drug pusher may forfeit his/her car (property) if caught carrying drugs in it and found guilty. A parent...
forgery
n. 1) the crime of creating a false document, altering a document, or writing a false signature for the illegal benefit of the person making the forgery. This includes improperly filling in a blank document, like an automobile purchase contract, over a buyer's signature, with the terms different fro...
forthwith
adv. a term found in contracts, court orders and statutes, meaning as soon as it can be reasonably done. It implies immediacy, with no excuses for delay.
fraud
n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive dama...
fraud in the inducement
n. the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act. Example: "there will be tax ad...
free and clear
adj. referring to the ownership of real property upon which there is no lien, encumbrance, recorded judgment or the right of anyone to make a claim against the property. The term is used in contracts for sale of real property and deeds, to state that the title has no claim against it.
free on board (FOB)
adj. referring to purchased goods shipped without transportation charge to a specific place. Free on board at the place of manufacture shows there is a charge for delivery. Example: if an automaker in Detroit sells a car "FOB Detroit," then there will be a shipping charge if delivery is taken anywhe...
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...
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 ...
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 ...
full faith and credit
n. the provision in Article IV, Section 1 of the U.S. Constitution which states: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." Thus, a judgment in a lawsuit or a criminal conviction rendered in one state shall be recog...
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...
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...
general partner
n. 1) usually one of the owners and operators of a partnership, which is a joint business entered into for profit, in which responsibility for management, profits and, most importantly, the liability for debts is shared by the general partners. Anyone entering into a general partnership (the most co...
good cause
n. a legally sufficient reason for a ruling or other action by a judge. The language is commonly: "There being good cause shown, the court orders…."
good faith
n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.
governmental immunity
n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Federal Tort Claims Act...
grace period
n. a time stated in a contract in which a late payment or performance may be made without penalty. Often after the grace period ends without payment or performance by the person who is supposed to pay, the contract is suspended. Example: if a person does not pay his/her insurance payment (premium) b...
Grand Jury
n. a jury in each county or federal court district which serves for a term of a year and is usually selected from a list of nominees offered by the judges in the county or district. The traditional 23 members may be appointed or have their names drawn from those nominated. A Grand Jury has two respo...
grant deed
n. the document which transfers title to real property or a real property interest from one party (grantor) to another (grantee). It must describe the property by legal description of boundaries and/or parcel numbers, be signed by all people transferring the property, and be acknowledged before a no...
gravamen
n. Latin for "to weigh down," the basic gist of every claim (cause of action) or charge in a complaint filed to begin a lawsuit. Example: in an accident case, the gravamen may be the negligence of the defendant, and in a contract case, it may be the breach of the defendant.
gross 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 ...
guarantee
1) v. to pledge or agree to be responsible for another's debt or contractual performance if that other person does not pay or perform. Usually, the party receiving the guarantee will first try to collect or obtain performance from the debtor before trying to collect from the one making the guarantee...
guarantor
n. a person or entity that agrees to be responsible for another's debt or performance under a contract if the other fails to pay or perform.
guardian ad litem
n. a person appointed by the court only to take legal action on behalf of a minor or an adult not able to handle his/her own affairs. Duties may include filing a lawsuit for an injured child, defending a lawsuit or filing a claim against an estate. Usually a parent will file a petition to be appoint...
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 ...
guilty
adj. having been convicted of a crime or having admitted the commission of a crime by pleading "guilty" (saying you did it). A defendant may also be found guilty by a judge after a plea of "no contest," or in Latin nolo contendere. The term "guilty" is also sometimes applied to persons against whom ...
habitable
adj. referring to a residence that is safe and can be occupied in reasonable comfort. Although standards vary by region, the premises should be closed in against the weather, provide running water, access to decent toilets and bathing facilities, heating, and electricity. Particularly in multi-dwell...
habitual criminal
n. under the statutes of many states, a person who has been convicted of either two or three felonies (or of numerous misdemeanors), a fact which may increase punishment for any further criminal convictions.
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...
hearing
n. any proceeding before a judge or other magistrate (such as a hearing officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact or both issues of fact and law. While technically a trial with a judge sitting without a jury fits the ...
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...
held
v. decided or ruled, as "the court held that the contract was valid."
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.
homicide
n. the killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter, but not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting ...
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...
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...
immaterial
adj. a commonly heard objection to introducing evidence in a trial on the ground that it had nothing substantial to do with the case or any issue in the case. It can also apply to any matter (such as an argument or complaint) in a lawsuit which has no bearing on the issues to be decided in a trial. ...
immediately
adv. 1) at once. 2) in orders of the court or in contracts it means "as soon as can be done" without excuse.
impaneling
n. the act of selecting a jury from the list of potential jurors, called the "panel" or "venire." The steps are 1) drawing names at random from a large number of jurors called; 2) seating 12 tentative jurors (or fewer where agreed to); 3) hearing individual juror requests for being excused, to be de...
impeachment
n. 1) discrediting a witness by showing that he/she is not telling the truth or does not have the knowledge to testify as he/she did. 2) the trying of a public official for charges of illegal acts committed in the performance of public duty. It is not the conviction for the alleged crime nor the rem...
implied
adj., adv. referring to circumstances, conduct or statements of one or both parties which substitute for explicit language to prove authority to act, warranty, promise, trust, agreement, consent or easement, among other things. Thus circumstances "imply" something rather than spell it out.
implied consent
n. consent when surrounding circumstances exist which would lead a reasonable person to believe that this consent had been given, although no direct, express or explicit words of agreement had been uttered. Examples: a) a "contract" based on the fact that one person has been doing a particular thing...
implied contract
n. an agreement which is found to exist based on the circumstances when to deny a contract would be unfair and/or result in unjust enrichment to one of the parties. An implied contract is distinguished from an "express contract."
implied covenant of good faith and fair dealing
n. a general assumption of the law of contracts, that people will act in good faith and deal fairly without breaking their word, using shifty means to avoid obligations or denying what the other party obviously understood. A lawsuit (or one of the causes of action in a lawsuit) based on the breach o...
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.
impound
v. 1) to collect funds, in addition to installment payments, from a person who owes a debt secured by property, and place them in a special account to pay property taxes and insurance when due. This protects the lender or seller from the borrower's possible failure to keep up the insurance or a moun...
impute
v. 1) to attach to a person responsibility (and therefore financial liability) for acts or injuries to another, because of a particular relationship, such as mother to child, guardian to ward, employer to employee or business associates. Example: a 16-year-old boy drives his father's car without a l...
in haec verba
(in hike verb-ah)prep. Latin for "in these words," which refers to stating the exact language of an agreement in a complaint or other pleading rather than attaching a copy of the agreement as an exhibit incorporated into the pleading.
in pari delicto
adv. (in pah-ree dee-lick-toe) Latin for "in equal fault," which means that two (or more) people are all at fault or are all guilty of a crime. In contract law, if the fault is more or less equal then neither party can claim breach of the contract by the other; in an accident, neither can collect da...
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 re
prep. short for "in regard to" or concerning. Often "in re" is found near the top of lawyers' letters to identify the subject matter, as "In re Matheson v. Roth," or "In re Estate of Ruth Bentley." It is also used in naming legal actions in which there is only one party, the petitioning party, as in...
in rem
adj. from Latin "against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. Thus, if title to property is the issue, the action is "in rem." The term is important since the location of the property determines which court ...
incapacity
adj. 1) not being able to perform any gainful employment due to congenital disability, illness (including mental), physical injury, advanced age or intellectual deficiency. This is significant in claims for worker's compensation, disability insurance, or Social Security claims under "SSI." 2) lackin...
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...
inchoate
adj. or adv. referring to something which has begun but has not been completed, either an activity or some object which is incomplete. It may define a potential crime like a conspiracy which has been started but not perfected or finished (buying the explosives, but not yet blowing up the bank safe),...
income
n. money, goods or other economic benefit received. Under income tax laws, income can be "active" through one's efforts or work (including management) or "passive" from rentals, stock dividends, investments and interest on deposits in which there is neither physical effort nor management. For tax pu...
income tax
n. a tax on an individual's net income, after deductions for various expenses and payments such as charitable gifts, calculated on a formula which takes into consideration whether it is paid jointly by a married couple, the number of dependents of the taxpayers, special breaks for ages over 65, disa...
incompatible
adj. 1) inconsistent. 2) unmatching. 3) unable to live together as husband and wife due to irreconcilable differences. In no-fault divorce states, if one of the spouses desires to end the marriage, that fact proves incompatibility, and a divorce (dissolution) will be granted even though the other sp...
incontrovertible evidence
n. evidence introduced to prove a fact in a trial which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint which shows someone had been present in a room, or a blood test which scientifically proves that a person is not the...
incorporate by reference
v. to include language from another document or elsewhere in a document by reference rather than repeat it. Typical language: "Plaintiff incorporates by reference all of the allegations contained in the First and Second Causes of Action hereinabove stated."
incorporation
n. the act of incorporating an organization.
indemnify
v. to guarantee against any loss which another might suffer. Example: two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless.
indemnity
n. the act of making someone "whole" (give equal to what they have lost) or protected from (insured against) any losses which have occurred or will occur.
indenture
n. a type of real property deed in which two parties agree to continuing mutual obligations. One party may agree to maintain the property, while the other agrees to make periodic payments. 2) a contract binding one person to work for another. 3) v. to bind a person to work for another.
independent contractor
n. a person or business which performs services for another person or entity under a contract between them, with the terms spelled out such as duties, pay, the amount and type of work and other matters. An independent contractor is distinguished from an employee, who works regularly for an employer....
indicia
n. (in-dish-yah) from Latin for "signs," circumstances which tend to show or indicate that something is probable. It is used in the form of "indicia of title," or "indicia of partnership," particularly when the "signs" are items like letters, certificates or other things that one would not have unle...
indictment
n. a charge of a felony (serious crime) voted by a Grand Jury based upon a proposed charge, witnesses' testimony and other evidence presented by the public prosecutor (District Attorney). To bring an indictment the Grand Jury will not find guilt, but only the probability that a crime was committed, ...
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...
infancy
n. although the popular use of the word means the early years of age up to seven, in law, it is under-age or minority. Historically this meant under 21 years, but statutes adopted in almost all states end minority and infancy at 18. An "infant" cannot file a lawsuit without a "guardian ad litem" (on...
inference
n. a rule of logic applied to evidence in a trial, in which a fact is "proved" by presenting other "facts" which lead to only one reasonable conclusion-that if A and B are true, then C is. The process is called "deduction" or "deductive reasoning" and is a persuasive form of circumstantial evidence.
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...
infra
prep. Latin for "below," this is legal shorthand to indicate that the details or citation of a case will come later on in the brief. Infra is distinguished from supra, which shows that a case has already been cited "above." The typical language is Jones v. McLaughlin, infra, meaning the exact citati...
infringement
n. 1) a trespassing or illegal entering. 2) in the law of patents (protected inventions) and copyrights (protected writings or graphics), the improper use of a patent, writing, graphic or trademark without permission, without notice, and especially without contracting for payment of a royalty. Even ...
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.
injunction
n. a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to a) petition for the injunction to protect his/her rights;...
injunctive relief
n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Such an act is the use of judicial (court) authority to handle a problem and is not a judgment for money. Whether the relief will be grante...
injury
n. any harm done to a person by the acts or omissions of another. Injury may include physical hurt as well as damage to reputation or dignity, loss of a legal right or breach of contract. If the party causing the injury was either willful (intentionally causing harm) or negligent then he/she is resp...
innuendo
n. from Latin innuere, "to nod toward." In law it means "an indirect hint." "Innuendo" is used in lawsuits for defamation (libel or slander), usually to show that the party suing was the person about whom the nasty statements were made or why the comments were defamatory. Example: "the former Mayor ...
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...
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...
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).
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.
intangible property
n. items such as stock in a company which represent value but are not actual, tangible objects.
intent
n. mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent." Example: lack of intent may reduce a charge of manslaughter...
inter alia
(in-tur eh-lee-ah) prep. Latin for "among other things." This phrase is often found in legal pleadings and writings to specify one example out of many possibilities. Example: "The judge said, inter alia, that the time to file the action had passed."
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...
interim order
n. a temporary order of the court pending a hearing, trial, a final order or while awaiting an act by one of the parties.
interlineation
n. the act of writing between the lines of a document, usually to add something that was omitted or thought of later. The issue (debated question) is whether both parties to a document (a contract, for example) had agreed upon the addition or whether the new words were part of the document (like a w...
interlocutory decree
n. a court judgment which is temporary and not intended to be final until either a) other matters come before the judge, or b) there is a specified passage of time to determine if the interlocutory decree (judgment) is "working" (becomes accepted by both parties) and should become final. Interlocuto...
international law
n. treaties between countries; multi-lateral agreements; some commissions covering particular subjects, such as whaling or copyrights; procedures and precedents of the International Court of Justice ("World Court") which only has jurisdiction when countries agree to appear; the United Nations Charte...
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...
intervention
n. the procedure under which a third party may join an on-going lawsuit, providing the facts and the law issues apply to the intervenor as much as to one of the existing contestants. The determination to allow intervention is made by a judge after a petition to intervene and a hearing on the issue. ...
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...
intoxication
n. 1) the condition of being drunk as the result of drinking alcoholic beverages and/or use of narcotics. In the eyes of the law this definition may differ depending on the situation to which it is applied. 2) as it applies to drunk driving (DUI, DWI) the standard of intoxication varies by state bet...
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 ...
invitee
n. a person who comes onto another's property, premises or business establishment upon invitation. The invitation may be direct and express or "implied," as when a shop is open and the public is expected to enter to inspect, purchase or otherwise do business on the premises. It may be legally import...
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."
irrelevant
adj. not important, pertinent, or germane to the matter at hand or to any issue before the court. This is the most common objection raised by attorneys to questions asked or to answers given during testimony in a trial. The objection is made as soon as an alert attorney believes the opposition is go...
irreparable damage or injury
n. the type of harm which no monetary compensation can cure or put conditions back the way they were, such as cutting down shade trees, polluting a stream, not giving a child needed medication, not supporting an excavation which may cause collapse of a building, tearing down a structure, or a host o...
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...
jobber
n. a merchant who buys products (usually in bulk or lots) and then sells them to various retailers. This middleman generally specializes in specific types of products, such as auto parts, electrical and plumbing materials, or petroleum. A jobber differs from a broker or agent, who buys and acts for ...
joinder
n. the joining together of several lawsuits or several parties all in one lawsuit, provided that the legal issues and the factual situation are the same for all plaintiffs and defendants. Joinder requires a) that one of the parties to one of the lawsuits make a motion to join the suits and the parti...
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
adj., adv. referring to property, rights or obligations which are united, undivided and shared by two or more persons or entities. Thus, a joint property held by both cannot be effectively transferred unless all owners join in the transaction. If a creditor sues to collect a joint debt, he/she must ...
joint adventure
n. when two or more people go together on a trip or some other action, not necessarily for profit, which may make them all liable for an accident or debt arising out of the activity.
joint and several
adj. referring to a debt or a judgment for negligence, in which each debtor (one who owes) or each judgment defendant (one who has a judgment against him/her) is responsible (liable) for the entire amount of the debt or judgment. Thus, in drafting a promissory note for a debt, it is important to 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 venture
n. an enterprise entered into by two or more people for profit, for a limited purpose, such as purchase, improvement and sale or leasing of real estate. A joint venture has most of the elements of a partnership, such as shared management, the power of each venturer to bind the others in the business...
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."
judge advocate
n. a military officer with legal training who has the mixed duties of giving advice on legal matters to the group of officers sitting as a court-martial (both judge and jury) and acting as the prosecutor of the accused serviceman or woman. A judge advocate holds responsibility to protect the accused...
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 notice
n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, t...
judicial proceedings
n. any action by a judge re: trials, hearings, petitions or other matters formally before the court.
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...
juror
n. any person who actually serves on a jury. Lists of potential jurors are chosen from various sources such as registered voters, automobile registration or telephone directories. The names are drawn by lot (more often by computer random selection) and requested to appear for possible service. Befor...
jury
n. one of the remarkable innovations of the English common law (from the Angles and Saxons, but also employed in Normandy prior to the Norman Conquest in 1066), it is a group of citizens called to hear a trial of a criminal prosecution or a lawsuit, decide the factual questions of guilt or innocence...
jury trial
n. a trial of a lawsuit or criminal prosecution in which the case is presented to a jury and the factual questions and the final judgment are determined by a jury. This is distinguished from a "court trial" in which the judge decides factual as well as legal questions, and makes the final judgment.
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."
K
n. the shorthand symbol for "contract" used almost universally by lawyers and law students.
kidnapping
(also spelled kidnaping) n. the taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation. Altho...
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...
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...
law
n. 1) any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience. Custom or conduct governed by the force of the local king were replaced by laws almost as soo...
law book
n. any of numerous volumes dealing with law, including statutes, reports of cases, digests of cases, commentaries on particular topics, encyclopedias, textbooks, summaries of the law, dictionaries, legal forms and various combinations of these such as case reports with commentaries. Statutes of ever...
law of admiralty
n. statutes, customs and treaties dealing with actions on navigable waters. It is synonymous with maritime law.
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."
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 age
n. the age at which a person is responsible for his/her own actions (including the capacity to enter into a contract which is enforceable by the other party), for damages for negligence or intentional wrongs without a parent being liable and for punishment as an adult for a crime. In almost all stat...
legal duty
n. the responsibility to others to act according to the law. Proving the duty (such as not to be negligent, to keep premises safe, or to drive within the speed limit) and then showing that the duty was breached are required elements of any lawsuit for damages due to negligence or intentional injurie...
legal fiction
n. a presumption of fact assumed by a court for convenience, consistency or to achieve justice. There is an old adage: "Fictions arise from the law, and not law from fictions."
lemon law
n. statutes adopted in some states to make it easier for a buyer of a new vehicle to sue for damages or replacement if the dealer or manufacturer cannot make it run properly after a reasonable number of attempts to fix the car. Without a "lemon law" auto makers have often demanded the buyer come bac...
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...
letter of credit
n. a document issued by a bank guaranteeing to provide a customer a line of credit (automatic loan up to a certain amount) for money or security for a loan. Such a letter is used primarily to facilitate long-distance business transactions.
levy
1) v. to seize (take) property upon a writ of execution (an order to seize property) issued by the court to pay a money judgment granted in a lawsuit. The levy is actually made by a sheriff or other official at the request of the holder of the judgment (the winner in the lawsuit), and the property w...
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...
liability
n. one of the most significant words in the field of law, liability means legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract ...
liable
adj. responsible or obligated. Thus, a person or entity may be liable for damages due to negligence, liable to pay a debt, liable to perform an act which he/she/it contracted to do, or liable to punishment for commission of a crime. Failure to meet the responsibility or obligation opens one up to a ...
libel
1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadca...
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...
liberty
n. freedom from restraint and the power to follow one's own will to choose a course of conduct. Liberty, like freedom, has its inherent restraint to act without harm to others and within the accepted rules of conduct for the benefit of the general public.
license
1) n. governmental permission to perform a particular act (like getting married), conduct a particular business or occupation, operate machinery or vehicles after proving ability to do so safely or use property for a certain purpose. 2) n. the certificate that proves one has been granted authority t...
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...
lien
n. any official claim or charge against property or funds for payment of a debt or an amount owed for services rendered. A lien is usually a formal document signed by the party to whom money is owed and sometimes by the debtor who agrees to the amount due. A lien carries with it the right to sell pr...
limited liability
n. the maximum amount a person participating in a business can lose or be charged in case of claims against the company or its bankruptcy. A stockholder in a corporation can only lose his/her investment, and a limited partner can only lose his/her investment, but a general partner can be responsible...
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...
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...
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...
mail box rule
n. in contract law, making a written offer or acceptance of offer valid if sent in the mail, with postage, within the time in which the offer must be accepted, unless the offer requires acceptance by personal delivery on or before the specified date. The rule may also apply to mailing payments of in...
majority
n. 1) the age when a person can exercise all normal legal rights, including contracting and voting. It is 18 for most purposes, but there are rights such as drinking alcoholic beverages which is set at 21. 2) 50 percent, plus one of votes cast.
malice
n. a conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the other's well-being. Often th...
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...
malpractice
n. An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdo...
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,...
malum prohibitum
(mal-uhm prohibit-uhm) adj. Latin meaning "wrong due to being prohibited," which refers to crimes made so by statute, compared to crimes based on English common law and obvious violations of society's standards which are defined as malum in se. Statutory crimes include criminal violations of regulat...
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...
Mann Act
n. a federal statute making it a crime to transport a woman across state lines for "immoral" purposes. The Mann Act was intended to prevent the movement of prostitutes from one state to another or in and out of the country in the so-called "white slave" trade. However, it also applies to a male taki...
maritime law
n. Also called "admiralty law" or "the law of admiralty," the laws and regulations, includ-ing international agreements and treaties, which exclusively govern activities at sea or in any navigable waters. In the United States, federal courts have jurisdiction over maritime law.
marked for identification
adj. documents or objects presented during a trial before there has been testimony which confirms their authenticity and/or relevancy. Each item is given an exhibit identification letter or number and thus is marked for identification. The marked exhibits are actually introduced into evidence (made ...
marketable title
n. the title to real property which has no encumbrances (mortgage, deed of trust, lien or claim) and which is free of any reasonable objection (excluding minor mistakes in the description or typographical errors). A court will enforce a contract to buy and sell real estate if there is marketable tit...
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...
martial law
n. a system of complete control by a country's military over all activities, including civilian, in a theoretical or actual war zone, or during a period of emergency caused by a disaster such as an earthquake or flood, with the military commander having dictatorial powers. In the United States marti...
material
adj. relevant and significant. In a lawsuit, "material evidence" is distinguished from totally irrelevant or of such minor importance that the court will either ignore it, rule it immaterial if objected to, or not allow lengthy testimony upon such a matter. A "material breach" of a contract is a val...
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.
matter of record
n. anything, including testimony, evidence, rulings and sometimes arguments, which has been recorded by the court reporter or court clerk. It is an expression often heard in trials and legal arguments that "such and such is a matter of record" as distinguished from actions outside the court or discu...
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...
may
v. a choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same caref...
mayhem
1) n. the criminal act of disabling, disfiguring or cutting off or making useless one of the members (leg, arm, hand, foot, eye) of another either intentionally or in a fight, called maiming. The serious nature of the injury makes mayhem a felony, which is called "aggravated assault" in most states....
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...
mediation
n. the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-cou...
mediator
n. a person who conducts mediation. A mediator is usually a lawyer or retired judge but can be a non-attorney specialist in the subject matter (like child custody) who tries to bring people and their disputes to early resolution through a conference. The mediator is an active participant in the disc...
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 cruelty
n. a term, rapidly going out of fashion and out of the statutes, which has been used to justify granting a divorce when the state laws required that some wrong had to be found in the defending spouse. In absence of actual physical cruelty (or unwillingness to discuss it) the person wanting the divor...
mercantile law
n. that broad area of the law (also called commercial law), statutes, cases and customs which deal with trade, sales, buying, selling, transportation, contracts and all forms of business transactions. Much of the law of business transactions is covered by the Uniform Commercial Code, which has been ...
military law
n. regulations governing the conduct of men and women in the armed services in relation to their military (not civilian) activities.
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.
minority
n. 1) in voting, a side with less than half the votes. 2) a term for people in a predominantly Caucasian country who are not Caucasian, such as the United States where Caucasians comprise the majority and the minorities include African Americans, Hispanics, Asians, indigenous Americans (Indians) and...
Miranda warning
n. the requirement, also called the Miranda rule, set by the U.S. Supreme Court in Miranda v. Arizona (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: the right to remain silent, the right to legal counsel, and the r...
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...
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...
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...
monopoly
n. a business or inter-related group of businesses which controls so much of the production or sale of a product or kind of product as to control the market, including prices and distribution. Business practices, combinations and/or acquisitions which tend to create a monopoly may violate various fe...
moral certainty
n. in a criminal trial, the reasonable belief (but falling short of absolute certainty) of the trier of the fact (jury or judge sitting without a jury) that the evidence shows the defendant is guilty. Moral certainty is another way of saying "beyond a reasonable doubt." Since there is no exact measu...
moral turpitude
n. gross violation of standards of moral conduct, vileness. An act involving moral turpitude is considered intentionally evil, making the act a crime. The existence of moral turpitude can bring a more severe criminal charge or penalty for a criminal defendant.
moratorium
n. 1) any suspension of activity, particularly voluntary suspension of collections of debts by a private enterprise or by government or pursuant to court order. 2) in bankruptcy, a halt to the right to collect a debt. In times of economic crisis or a natural disaster like a flood or earthquake, ther...
mortgage
n. a document in which the owner pledges his/her/its title to real property to a lender as security for a loan described in a promissory note. Mortgage is an old English term derived from two French words "mort" and "gage" meaning "dead pledge." To be enforceable the mortgage must be signed by the o...
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 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...
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...
muniment of title
n. documentary evidence of title to real property. A muniment could be a deed, a decree of distribution proving inheritance, or a contract of sale.
murder
n. the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority. In those clear circumstances, this is first degree murder. By statute, many states consider a killin...
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...
N.O.V.
adj. shorthand acronym of Latin for non obstante veredicto (nahn ahb-stan-tuh very-dick-toe) meaning "notwithstanding the verdict," referring to a decision of a judge to set aside (reverse) a jury's decision in favor of one party in a lawsuit or a guilty verdict when the judge is convinced the judgm...
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...
necessary inference
n. 1) a conclusion militated by reason and logic applied to known facts. 2) unavoidable meaning.
negative declaration
n. a finding by a city council or other local government that a proposed development or project would have no effect on the environment and therefore the developer need not prepare and file an "environmental impact report."
negative pregnant
n. a denial of an allegation in which a person actually admits more than he/she denies by denying only a part of the alleged fact. Example: Plaintiff alleges Defendant "misused more than a hundred thousand dollars placed in his trust in 1994." Defendant denies the amount was more than a hundred thou...
negligence
n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from "intentional torts" (assault or trespass, for example) or from crimes, but a cri...
net
: n., adj. the amount of money or value remaining after all costs, losses, taxes, depreciation of value and other expenses and deductions have been paid and/or subtracted. Thus the term is used in net profit, net income, net loss, net worth or net estate.
net estate
n. the remaining estate of a person who has died, calculated by taking the value of all assets and subtracting all debts of the person who died, including funeral costs, expenses of administering the estate and any other allowable deductions. The federal estate tax (and/or state inheritance tax wher...
new matter
n. newly claimed facts or legal issues raised (brought up) by a defendant (the party being sued) to defend himself/herself/itself beyond just denying the allegations in the complaint filed by the person bringing the lawsuit (plaintiff). Such new matters are called "affirmative defenses."
next friend
n. a person (often a relative) who voluntarily helps a minor or incompetent in legal matters, particularly by filing a lawsuit. However, this informal practice has been supplanted in almost all states by petitions for appointment of a guardian ad litem at the time the lawsuit is filed.
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...
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 ...
nominee
n. 1) a person or entity who is requested or named to act for another, such as an agent or trustee. 2) a potential successor to another's rights under a contract. Example: In a real estate purchase agreement, Bob Buyer agrees to purchase the property, but provides that title (legal ownership) will b...
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-profit corporation
n. an organization incorporated under state laws and approved by both the state's Secretary of State and its taxing authority as operating for educational, charitable, social, religious, civic or humanitarian purposes. A non-profit corporation (also called "not for profit corporation") is formed by ...
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...
notice
n. 1) information, usually in writing in all legal proceedings, of all documents filed, decisions, requests, motions, petitions, and upcoming dates. Notice is a vital principle of fairness and due process in legal procedure and must be given to both parties, to all those affected by a lawsuit or leg...
novation
n. agreement of parties to a contract to substitute a new contract for the old one. It extinguishes (cancels) the old agreement. A novation is often used when the parties find that payments or performance cannot be made under the terms of the original agreement, or the debtor will be forced to defau...
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...
nullity
n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment.
nunc pro tunc
(nuhnk proh tuhnk) adj. Latin for "now for then," this refers to changing back to an earlier date of an order, judgment or filing of a document. Such a retroactive re-dating requires a court order which can be obtained by a showing that the earlier date would have been legal, and there was error, ac...
object
1) v. to ask the court not to allow a particular question asked of a witness by the opposing lawyer on the basis that it is either legally not permitted, confusing in its wording or improper in its "form." An attorney may also object to an answer to the question on the basis that it is not "responsi...
objection
n. a lawyer's protest about the legal propriety of a question which has been asked of a witness by the opposing attorney, with the purpose of making the trial judge decide if the question can be asked. A proper objection must be based on one of the specific reasons for not allowing a question. These...
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 hazard
n. a danger or risk inherent in certain employments or workplaces, such as deep-sea diving, cutting timber, high-rise steel construction, high-voltage electrical wiring, use of pesticides, painting bridges and many factories. The risk factor may limit insurance coverage of death or injury while at w...
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...
offer
n. a specific proposal to enter into an agreement with another. An offer is essential to the formation of an enforceable contract. An offer and acceptance of the offer creates the contract.
offeree
n. a person or entity to whom an offer to enter into a contract is made by another (the offeror).
offeror
n. a person or entity who makes a specific proposal to another (the offeree) to enter into a contract.
officer
n. 1) a high-level management official of a corporation or an unincorporated business, hired by the board of directors of a corporation or the owner of a business, such as a president, vice president, secretary, financial officer or chief executive officer (CEO). Such officers have the actual or app...
official
1) adj. referring to an act, document or anything sanctioned or authorized by a public official or public agency. The term can also apply to an organizational act or product which is authorized by the organization, such as an Official Boy Scout knife or emblem, an official warranty, membership card ...
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.
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...
on or about
prep. a phrase referring to a date or place used in a complaint in a lawsuit or criminal charge if there is any uncertainty at all, in order to protect the person making the allegations of fact from being challenged as being inaccurate. Thus, a complaint will read "On or about July 11, 1994, Defenda...
on or before
prep. a phrase usually found in a contract or promissory note, designating performance or payment by a particular date, but which may be done prior to that date.
on the merits
adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either incon...
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...
opinion
n. the explanation of a court's judgment. When a trial court judgment is appealed to a court of appeals, the appeals judge's opinion will be detailed, citing case precedents, analyzing the facts, the applicable law and the arguments of the attorneys for the parties. Those opinions considered by the ...
option
n. a right to purchase property or require another to perform upon agreed-upon terms. An option is paid for as part of a contract, but must be "exercised" in order for the property to be purchased or the performance of the other party to be required. "Exercise" of an option normally requires notice ...
oral contract
n. an agreement made with spoken words and either no writing or only partially written. An oral contract is just as valid as a written agreement. The main problem with an oral contract is proving its existence or the terms. As one wag observed: "An oral contract is as good as the paper it's written ...
order
1) n. every direction or mandate of a judge or a court which is not a judgment or legal opinion (although both may include an order) directing that something be done or that there is prohibition against some act. This can range from an order that a case will be tried on a certain date, to an order t...
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...
ordinance
n. a statute enacted by a city or town.
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...
out of court
adj. referring to actions, including negotiations between parties and/or their attorneys, without any direct involvement of a judge or the judicial system. Most commonly it refers to an "out-of-court settlement" in which the parties work out a settlement agreement, which they may present to the cour...
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...
outlaw
n. popularly, anyone who commits serious crimes and acts outside the law.
overcharge
v. 1) to charge more than a posted or advertised price. 2) to file a criminal complaint for crimes of greater degree than the known facts support, in an effort by the prosecutor to intimidate the accused.
overt act
n. in criminal law, an action which might be innocent itself but if part of the preparation and active furtherance of a crime, can be introduced as evidence of a defendant's participation in a crime. Example: Rental of a van, purchase of explosives, obtaining a map of downtown New York City and goin...
paid into court
adj. referring to money deposited with the clerk of the court by a person or entity who knows that the money is owed but does not know to whom they should pay it until the outcome of a lawsuit between two other parties is decided. In short, the party handing over the money is saying: "Here is the mo...
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...
palimony
n. a substitute for alimony in cases in which the couple were not married but lived together for a long period and then terminated their relationship. The key issue is whether there was an agreement that one partner would support the other in return for the second making a home and performing other ...
paralegal
n. a non-lawyer who performs routine tasks requiring some knowledge of the law and procedures and who is employed by a law office or works free-lance as an independent for various lawyers. Usually paralegals have taken a prescribed series of courses in law and legal processes, which is much less dem...
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...
parental neglect
n. a crime consisting of acts or omissions of a parent (including a stepparent, adoptive parent or someone who, in practical terms, serves in a parent's role) which endangers the health and life of a child or fails to take steps necessary to the proper raising of a child. The neglect can include lea...
parol evidence rule
n. if there is evidence in writing (such as a signed contract) the terms of the contract cannot be altered by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.
partial breach
n. the failure to meet a term of a contract which is so minimal that it does not cause the contract to fail or justify breach (breaking the contract) by the other contracting party. A partial breach can be remedied (made up) by a small reduction in payment or other adjustment. Example: a landlord pr...
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...
partition
n. a lawsuit which one co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total p...
partner
n. 1) one of the co-owners and investors in a "partnership" which is an on-going business enterprise entered into for profit. A "general partner" is responsible for the debts, contracts and actions of all the partners in the business, is an equal in management decisions unless there is an agreement ...
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
n. 1) one of the participants in a lawsuit or other legal proceeding who has an interest in the outcome. Parties include plaintiff (person filing suit), defendant (person sued or charged with a crime), petitioner (files a petition asking for a court ruling), respondent (usually in opposition to a pe...
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."
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...
patent
1) adj. obvious. Used in such expressions as a "patent defect" in an appliance. 2) n. an exclusive right to the benefits of an invention or improvement granted by the U.S. Patent Office, for a specific period of time, on the basis that it is novel (not previously known or described in a publication)...
patent infringement
n. the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. The infringing party will be liable to the owner of the patent for all profits made from...
pedophilia
n. an obsession with children as sex objects. Overt acts, including taking sexually explicit photographs, molesting children and exposing one's genitalia to children, are all crimes. The problem with these crimes is that pedophilia is also treated as a mental illness, and the pedophile is often rele...
penalty
n. 1) in criminal law, a money fine or forfeiture of property ordered by the judge after conviction for a crime. 2) an amount agreed in advance if payment or performance is not made on time, such as a "late payment" on a promissory note or lease, or a financial penalty for each day a building contra...
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
peremptory challenge
n. the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorn...
peremptory writ of mandate
(or mandamus) n. a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. This is distinguished from an alternative writ of mandate (mandamus), which orders the governmental agency, court or officia...
perfect
: (with stress on the second syllable) v. 1) to complete; to take all required steps to achieve a result, such as obtaining a lien or other security by legal action or completing and filing all documents to present a case to a court of appeals. A mechanic's lien for labor and/or materials used to im...
perform
v. 1) to fulfill one's obligations under a contract. 2) to comply with requirements of a court order.
performance
n. fulfillment of one's obligations required by contract. Specific performance of a contract may be demanded in a lawsuit. Partial performance is short of full performance spelled out in the contract, but if the contract provided for a series of acts or deliveries with payment for each of the series...
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...
permanent injunction
n. a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or ...
permanent injury
n. physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.
permissive
adj. 1) referring to any act which is allowed by court order, legal procedure, or agreement. 2) tolerant or allowing of others' behavior, suggesting contrary to others' standards.
permit
1) v. to allow by silence, agreement or giving a license. 2) n. a license or other document given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts. These can include building a structure, using a build...
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 ...
petition
1) n. a formal written request to a court for an order of the court. It is distinguished from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of...
pierce the corporate veil
v. to prove that a corporation exists merely as a completely controlled front (alter ego) for an individual or management group, so that in a lawsuit the individual defendants can be held responsible (liable) for damages for actions of the corporation. If a corporation has issued stock and held regu...
pimp
n. a person who procures a prostitute for customers or vice versa, sharing the profits of the person's activities. Supposedly he provides protection for the prostitutes, but quite often he will threaten, brutalize, rape, cheat and induce drug addiction of the prostitutes. A pimp commits the crime of...
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...
plain view doctrine
n. the rule that a law enforcement officer may make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Example: a policeman stops a motorist for a minor traffic violation and can see in the car a pis...
plea
n. 1) in criminal law, the response by an accused defendant to each charge of the commission of a crime. Pleas normally are "not guilty," "guilty," "no contest" (admitting the facts, but unwilling to plead "guilty," thus resulting in the equivalent of a "guilty" verdict but without admitting the cri...
plea bargain
n. in criminal procedure, a negotiation between the defendant and his attorney on one side and the prosecutor on the other, in which the defendant agrees to plead "guilty" or "no contest" to some crimes, in return for reduction of the severity of the charges, dismissal of some of the charges, the pr...
pleading
n. 1) every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petiti...
pornography
n. pictures and/or writings of sexual activity intended solely to excite lascivious feelings of a particularly blatant and aberrational kind, such as acts involving children, animals, orgies, and all types of sexual intercourse. The printing, publication, sale and distribution of "hard core" pornogr...
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 ...
power
n. the right, authority and ability to take some action or accomplish something, including demanding action, executing documents, contracting, taking title, transferring, exercising legal rights and many other acts.
power of acceptance
n. the ability to accept an offer and thus create a binding contract. In real estate an acceptance can only be made for a period specified in the offer, and the power is terminated permanently by the making of a counter-offer. Thus, one cannot make a counter-offer and then decide to accept the origi...
power of attorney
n. a written document signed by a person giving another person the power to act in conducting the signer's business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power ...
practice
1) n. custom or habit as shown by repeated action, as in "it is the practice in the industry to confirm orders before shipping." 2) n. the legal business, as in "law practice," or "the practice of the law." 3) v. to repeat an activity in order to maintain or improve skills, as "he practices the viol...
precedent
1) n. a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment. Thus, "the rule in Fishbeck v. Gladfelter is precedent for the issue before the court in this case." The doctrine that a lower court...
preemption
n. the rule of law that if the federal government through Congress has enacted legislation on a subject matter it shall be controlling over state laws and/or preclude the state from enacting laws on the same subject if Congress has specifically stated it has "occupied the field." If Congress has not...
preliminary injunction
n. a court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act which is in dispute, thereby maintaining the status quo until there is a final judgment after trial.
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...
premium
n. 1) payment for insurance coverage either in a lump sum or by installments. 2) an extra payment for an act, option or priority.
prenuptial agreement
n. also called an antenuptial agreement, a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly ...
preponderance of the evidence
n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of ...
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...
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...
prevailing party
n. the winner in a lawsuit. Many contracts, leases, mortgages, deeds of trust or promissory notes provide that the "prevailing party" shall be entitled to recovery of attorney's fees and costs if legal action must be taken to enforce the agreement. Even if the plaintiff gets much less than the claim...
price fixing
n. a criminal violation of federal antitrust statutes in which several competing businesses reach a secret agreement (conspiracy) to set prices for their products to prevent real competition and keep the public from benefitting from price competition. Price fixing also includes secret setting of fav...
principal
n. 1) main person in a business. 2) employer, the person hiring and directing employees (agents) to perform his/her/its business. It is particularly important to determine who is the principal since he/she/it is responsible for the acts of agents in the "scope of employment" under the doctrine of re...
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...
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...
privity
n. contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, which requires that there be "privity" if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, a tenant of a buyer of real property cannot su...
pro hac vice
: (proh hock vee-chay) prep. Latin for "this time only," the phrase refers to the application of an out-of-state lawyer to appear in court for a particular trial, even though he/she is not licensed to practice in the state where the trial is being held. The application is usually granted, but someti...
pro rata
(proh rat-ah or proh ray-tah) adj. from Latin for "in proportion," referring to a share to be received or an amount to be paid based on the fractional share of ownership, responsibility or time used. Examples: an heir who receives one-quarter of an estate may be responsible for one-quarter of the es...
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 value
n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed by the trial judge against prejudicing in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor ...
procedure
n. the methods and mechanics of the legal process. These include filing complaints, answers and demurrers; serving documents on the opposition; setting hearings, depositions, motions, petitions, interrogatories; preparing orders; giving notice to the other parties; conduct of trials; and all the rul...
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...
product liability
n. the responsibility of manufacturers, distributors and sellers of products to the public, to deliver products free of defects which harm an individual or numerous persons and to make good on that responsibility if their products are defective. These can include faulty auto brakes, contaminated bab...
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...
prohibition
n. forbidding an act or activity. A court order forbidding an act is a writ of prohibition, an injunction or a writ of mandate (mandamus) if against a public official.
promise
1) n. a firm agreement to perform an act, refrain from acting or make a payment or delivery. In contract law, if the parties exchange promises, each promise is "consideration" (a valuable item) for the other promise. Failure to fulfill a promise in a contract is a breach of the contract, for which 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...
promoter
n. a person who puts together a business, particularly a corporation, including the financing. Usually the promoter is the principal shareholder or one of the management team and has a contract with the incorporators or makes a claim for shares of stock for his/her efforts in organization. Most stat...
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...
proof
n. confirmation of a fact by evidence. In a trial, proof is what the trier of the fact (jury or judge without a jury) needs to become satisfied that there is "a preponderance of the evidence" in civil (non-criminal) cases and the defendant is guilty "beyond a reasonable doubt" in criminal prosecutio...
proper party
n. a person or entity who has an interest (financial or protection of some legal rights) in the subject matter of a lawsuit and, therefore, can join in the lawsuit as he/she/it wishes, or may be brought into the suit (as an unnecessary party) by one of the parties to the legal action. However, the j...
property damage
n. injury to real or personal property through another's negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree,...
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 ...
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...
prove
v. to present evidence and/or logic that makes a fact seem certain. A party must do this to convince a trier of fact (jury or judge sitting without a jury) as to facts claimed and to win a lawsuit or criminal case.
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...
proxy
n. 1) someone who is authorized to serve in one's place at a meeting, particularly with the right to cast votes. 2) the written authority given to someone to act or vote in someone's place. A proxy is commonly given to cast a stockholder's votes at a meeting of shareholders, and by board members and...
public
1) n. the people of the nation, state, county, district or municipality which the government serves. 2) adj. referring to any agency, interest, property, or activity which is under the authority of the government or which belongs to the people. This distinguishes public from private interests as wit...
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 record
n. any information, minutes, files, accounts or other records which a governmental body is required to maintain and which must be accessible to scrutiny by the public. This includes the files of most legal actions. A court will take "judicial notice" of a public record (including hearsay in the reco...
public utility
n. any organization which provides services to the general public, although it may be privately owned. Public utilities include electric, gas, telephone, water and television cable systems, as well as streetcar and bus lines. They are allowed certain monopoly rights due to the practical need to serv...
puffing
n. the exaggeration of the good points of a product, a business, real property and the prospects for future rise in value, profits and growth. Since a certain amount of "puffing" can be expected of any salesman, it cannot be the basis of a lawsuit for fraud or breach of contract unless the exaggerat...
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.
quantum meruit
: (kwahn-tuhm mare-ooh-it) n. Latin for "as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment ...
quash
v. to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as "quashing" service of a summons when the wrong person was served.
quasi
: (kway-zeye, kwah-zee) adj., adv. from Latin for "as if," almost, somewhat, to a degree (always used in combination with another word). Quasi refers to things and actions which are not exactly or fully what they might appear, but have to be treated "as if" they were.
quasi contract
n. a situation in which there is an obligation as if there was a contract, although the technical requirements of a contract have not been fulfilled.
quasi 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...
qui tam action
: (kwee tam) n. from Latin for "who as well," a lawsuit brought by a private citizen (popularly called a "whistle blower") against a person or company who is believed to have violated the law in the performance of a contract with the government or in violation of a government regulation, when there ...
quiet enjoyment
n. the right to enjoy and use premises (particularly a residence) in peace and without interference. Quiet enjoyment is often a condition included in a lease. Thus, if the landlord interferes with quiet enjoyment, he/she may be sued for breach of contract. Disturbance of quiet enjoyment by another c...
quiet title action
n. a lawsuit to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title. Such a suit usually arises when there is some question about clear title, there exists some recorded problem (such as an old lease or failure to clear title...
quitclaim deed
n. a real property deed which transfers (conveys) only that interest in the property in which the grantor has title. Commonly used in transfers of title or interests in title, quitclaims are often made to family members, divorcing spouses, or in other transactions between people well-known to each o...
quotient verdict
n. an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award. A quotient verdict is illegal and improper since it is based ...
rape
1) n. the crime of sexual intercourse (with actual penetration of a woman's vagina with the man's penis) without consent and accomplished through force, threat of violence or intimidation (such as a threat to harm a woman's child, husband or boyfriend). What constitutes lack of consent usually inclu...
ratification
n. confirmation of an action which was not pre-approved and may not have been authorized, usually by a principal (employer) who adopts the acts of his/her agent (employee).
ratify
v. to confirm and adopt the act of another even though it was not approved beforehand. Example: An employee for Holsinger's Hardware orders carpentry equipment from Phillips Screws and Nails although the employee was not authorized to buy anything. The president of Holsinger's ratifies the deal when...
ready, willing and able
adj. fully prepared to act, as in performing a contract.
real property
n. 1) all land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all "interests" in the property, which may include the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate),...
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 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 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.
rebate
1) n. a discount or deduction on sales price. A secret rebate given by a subcontractor to a contractor in return for getting the job is illegal, since it cheats the person hiring the contractor. 2) v. to give a discount or deduction.
rebuttable presumption
n. since a presumption is an assumption of fact accepted by the court until disproved, all presumptions are rebuttable. Thus rebuttable presumption is a redundancy.
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 ...
record
1) v. (ree-cored) to put a document into the official records of a county at the office of the County Recorder or Recorder of Deeds. The process is that the document is taken or sent to the Recorder's office, a recording fee paid, the document is given a number (a document number, volume or reel num...
recoupment
n. the right of a defendant in a lawsuit to demand deduction from the amount awarded to plaintiff (party bringing the suit) of a sum due the defendant from the plaintiff in the transaction which was the subject of the lawsuit. Example: Laura Landlord sues Tillie Tenant for nonpayment of rent, Tenant...
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.
redemption
n. the act of redeeming, buying back property by paying off a loan, interest and any costs of foreclosure.
reentry
n. taking back possession and going into real property which one owns, particularly when a tenant has failed to pay rent or has abandoned the property, or possession has been restored to the owner by judgment in an unlawful detainer lawsuit. Reentry may also be allowed when a buyer defaults on payme...
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...
rejection of claim
n. in probate law (administration of an estate of a person who died), a claim for a debt of the deceased denied (rejected) in total or in part by the executor or administrator of the estate. A claim is rejected in writing filed with the court, and a judge shall approve or disapprove the rejection if...
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.
relevant
adj. having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. Commonly, an objection to testimony or physical evidence is that it is "irrelevant."
reliance
n. acting upon another's statement of alleged fact, claim or promise. In contracts, if someone takes some steps ("changes his position" is the usual legal language) in reliance on the other's statement, claim or promise then the person upon whom the actor relied is entitled to contend there is a con...
remand
v. to send back. An appeals court may remand a case to the trial court for further action if it reverses the judgment of the lower court, or after a preliminary hearing a judge may remand into custody a person accused of a crime if the judge finds that a there is reason to hold the accused for trial...
remedy
n. the means to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, granted by judgment after trial or hearing, by agreement (settlement) between the person claiming harm and the person he/she believes has caused it, and by the automatic operation ...
remote
adj., adv. extremely far off or slight. Evidence may be so remote from the issues in a trial that it will not be allowed because it is "immaterial." An act which started the events which led to an accident may be too remote to be a cause, as distinguished from the "proximate cause." Example: While D...
renewal
n. keeping an existing arrangement in force for an additional period of time, such as a lease, a promissory note, insurance policy or any other contract. Renewal usually requires a writing or some action which evidences the new term.
renunciation
n. 1) giving up a right, such as a right of inheritance, a gift under a will or abandoning the right to collect a debt on a note. 2) in criminal law, abandoning participation in a crime before it takes place, or an attempt to stop other participants from going ahead with the crime. A defendant may u...
repair
v. to restore to former condition or in some contracts to operational soundness. Contracts should spell out the repairs to be made and what the final condition will be. Example: roof repairs should be more than a half-baked patching to temporarily halt leaking.
repeal
1) v. to annul an existing law, by passage of a repealing statute, or by public vote on a referendum. Repeal of constitutional provisions requires an amendment, as with the repeal of prohibition in which the 21st Amendment repealed the 18th Amendment. 2) n. the act of annulling a statute.
replevin
n. under common law, the right to bring a lawsuit for recovery of goods improperly taken by another. In almost all states the term replevin in no longer used, since the states have adopted "one cause of action" for all civil wrongs.
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.
repudiation
n. denial of the existence of a contract and/or refusal to perform a contract obligation. Repudiation is an anticipatory breach of a contract.
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 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 ...
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.
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...
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...
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...
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 ...
retraction
n. 1) to withdraw any legal document in a lawsuit or other legal proceeding, or withdraw a promise or offer of contract. 2) in defamation, particularly libel, the correction of any untruth published in a newspaper or magazine or broadcast on radio or television, usually upon the demand of the person...
retroactive
adj. referring to a court's decision or a statute enacted by a legislative body which would result in application to past transactions and legal actions. In criminal law, statutes which would increase penalties or make criminal activities which had been previously legal are prohibited by the constit...
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...
revival
n. 1) requesting a court to reinstate the force of an old judgment. 2) reinstating a contract or debt by a new agreement after the right to demand performance or collect has expired under the statute of limitations (the time to sue).
revocation
n. 1) mutual cancellation of a contract by the parties to it. 2) withdrawing an offer before it is accepted ("I revoke my offer"). 3) cancelling a document before it has come into legal effect or been acted upon, as revoking a will. 4) to recall a power or authority previously given, as cancelling a...
revoke
v. to annul or cancel an act, particularly a statement, document or promise, as if it no longer existed. Thus, a person can revoke a will or revoke an offer to enter into a contract, and a government agency can revoke a license.
right
1) n. an entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, real or personal. These rights include: various freedoms; protection against interference with enjoyment of life and property; civil rights enjoyed by citizen...
right to privacy
n. the possible right to be let alone, in absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity (such as a magazin...
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...
riot
n. 1) technically a turbulent and violent disturbance of peace by three or more people acting together. 2) an assemblage of people who are out of control, causing injury or endangering the physical safety of others and/or themselves, causing or threatening damage to property and often violating vari...
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 ...
royalty
n. a percentage of gross or net profit or a fixed amount per sale to which a creator of a work is entitled which is determined by contract between the creator and the manufacturer, publisher, agent and/or distributor. Inventors, authors, movie makers, scriptwriters, music composers, musicians and ot...
rule
1) v. to decide a legal question, by a court, as in: "I rule that the plaintiff is entitled to the goods and damages for delay in the sum of $10,000." 2) v. to make a judicial command, such as: "I find that George Gonzo is the parent of Larry Gonzo and rule that he must pay support of $150 per month...
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...
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...
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.
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...
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 ...
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 (...
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...
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 ...
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-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...
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" ...
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...
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 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...
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.
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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 ...
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.
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 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 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 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 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...
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 ...
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...
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 ...
stay away order
n. a court order that a person may not come near and/or contact another.
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 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...
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...
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)...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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.
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...
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
n. a governmental assessment (charge) upon property value, transactions (transfers and sales), licenses granting a right and/or income. These include federal and state income taxes, county and city taxes on real property, state and/or local sales tax based on a percentage of each retail transaction,...
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...
temporary injunction
n. a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. A temporary injunction differs from a "temporary restraining order" which is a short-term, stop-gap injunction issued pending a hearing, at which time a temporary injunction may be orde...
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...
tender
1) v. to present to another person an unconditional offer to enter into a contract. 2) v. to present payment to another. 3) n. delivery, except that the recipient has the choice not to accept the tender. However, the act of tender completes the responsibility of the person making the tender.
tenure
n. 1) in real property, the right to possess the property. 2) in employment contracts, particularly of public employees like school teachers or professors, a guaranteed right to a job (barring substantial inability to perform or some wrongful act) once a probationary period has passed.
term
n. 1) in contracts or leases, a period of time, such as five years, in which a contract or lease is in force. 2) in contracts, a specified condition or proviso. 3) a period for which a court sits or a legislature is in session. 4) a word or phrase for something, as "tenancy" is one term for "occupan...
third party
n. a person who is not a party to a contract or a transaction, but has an involvement (such as one who is a buyer from one of the parties, was present when the agreement was signed or made an offer that was rejected). The third party normally has no legal rights in the matter, unless the contract wa...
third-party beneficiary
n. a person who is not a party to a contract but has legal rights to enforce the contract or share in proceeds because the contract was made for the third party's benefit. Example: Grandma enters into a contract with Oldfield to purchase a Jaguar automobile to be given to grandchild as a graduation ...
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.
timely
adj. within the time required by statute, court rules or contract. Example: a notice of appeal is required to be filed within 60 days of the entry of judgment, so a notice filed on the 61st day is not "timely."
title report
n. the written analysis of the status of title to real property, including a property description, names of titleholders and how title is held (joint tenancy, etc.), tax rate, encumbrances (mortgages, liens, deeds of trusts, recorded judgments), and real property taxes due. A title report made when ...
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...
tort
n. from French for "wrong," a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real pro...
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...
tortious
adj. referring to an act which is a tort (civil wrong).
trade name
n. a name of a business or one of its products which, by use of the name and public reputation, identifies the product as that of the business. A trade name belongs to the first business to use it, and the identification and reputation give it value and the right to protect the trade name against it...
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...
trademark
n. a distinctive design, picture, emblem, logo or wording (or combination) affixed to goods for sale to identify the manufacturer as the source of the product. Words that merely name the maker (but without particular lettering) or a generic name for the product are not trademarks. Trademarks may be ...
trader
in U.S. income tax law, a person who deals in property as a business, making several purchases and sales within a year as distinguished from a few sales of assets held for investment. Thus a trader will lose the right to defer capital gains by "exchanging" for another property. The exact details req...
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 ...
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...
treaty
n. a pact between nations which, if entered into by the United States through its Executive Branch, must be approved by "two-thirds of the Senators present," under Article II, section 2 of the Constitution, to become effective. Presidents sometimes get around the Senate by entering into "Executive A...
trial
n. the examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if one has been requested. Each pa...
trier of fact
n. the judge or jury responsible for deciding factual issues in a trial. If there is no jury the judge is the trier of fact as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission or referee may be the trier of fact.
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...
Truth in Lending Act
n. a federal statute which requires a commercial lender (bank, savings and loan, mortgage broker) to give a borrower exact information on interest rates and a three-day period in which the borrower may compare and consider competitive terms and cancel the loan agreement.
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.
ultimate fact
n. in a trial, a conclusion of fact which is logically deduced from evidence ("evidentiary facts"). Example: the evidentiary facts were that driver Larry Leadfoot a) exceeded the speed limit, b) drove over the double-line, c) skidded and lost control of his car; the ultimate fact was, therefore, Lea...
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.
undue influence
n. the amount of pressure which one uses to force someone to execute a will leaving assets in a particular way, to make a direct gift while alive or to sign a contract. The key element is that the influence was so great that the testator (will writer), donor (gift giver) or party to the contract had...
unfair competition
n. wrongful and/or fraudulent business methods to gain an unfair advantage over competitors, including: a) untrue or misleading advertising, b) misleading customers by imitative trademark, name or package, c) falsely disparaging another's product. Although state laws vary, unfair competition is the ...
unilateral contract
n. an agreement to pay in exchange for performance, if the potential performer chooses to act. A "unilateral" contract is distinguished from a "bilateral" contract, which is an exchange of one promise for another. Example of a unilateral contract: "I will pay you $1,000 if you bring my car from Clev...
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.
unlawful
adj. referring to any action which is in violation of a statute, federal or state constitution, or established legal precedents
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...
unlawful detainer
n. 1) keeping possession of real property without a right, such as after a lease has expired, after being served with a notice to quit (vacate, leave) for non-payment of rent or other breach of lease, or being a "squatter" on the property. Such possession entitles the owner to file a lawsuit for "un...
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.
variance
n. 1) an exception to a zoning ordinance, authorized by the appropriate governmental body such as a planning commission, zoning board, county commissioners or city council. Example: the zoning ordinance requires that no residences can be built within 10 feet of a property's back line, but due to the...
venue
n. 1) the proper or most convenient location for trial of a case. Normally, the venue in a criminal case is the judicial district or county where the crime was committed. For civil cases, venue is usually the district or county which is the residence of a principal defendant, where a contract was ex...
verdict
n. the decision of a jury after a trial, which must be accepted by the trial judge to be final. A judgment by a judge sitting without a jury is not a verdict. A "special verdict" is a decision by the jury on the factual questions in the case, leaving the application of the law to those facts to the ...
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...
void
adj. referring to a statute, contract, ruling or anything which is null and of no effect. A law or judgment found by an appeals court to be unconstitutional is void, a rescinded (mutually cancelled) contract is void, and a marriage which has been annulled by court judgment is void.
voidable
adj. capable of being made void. Example: a contract entered into by a minor under 18 is voidable upon his/her reaching majority, but the minor may also affirm the contract at that time. "Voidable" is distinguished from "void" in that it means only that a thing can become void but is not necessarily...
voir dire
(vwahr [with a near-silent "r"] deer) n. from French "to see to speak," the questioning of prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowle...
waive
v. to voluntarily give up something, including not enforcing a term of a contract (such as insisting on payment on an exact date), or knowingly giving up a legal right such as a speedy trial, a jury trial or a hearing on extradition (the transfer to another state's jurisdiction of one accused of a c...
warranty
n. a written statement of good quality of merchandise, clear title to real estate or that a fact stated in a contract is true. An "express warranty" is a definite written statement and "implied warranty" is based on the circumstances surrounding the sale or the creation of the contract.
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.
weight of evidence
n. the strength, value and believability of evidence presented on a factual issue by one side as compared to evidence introduced by the other side.
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...
willful
adj. referring to acts which are intentional, conscious and directed toward achieving a purpose. Some willful conduct which has wrongful or unfortunate results is considered "hardheaded," "stubborn" and even "malicious." Example: "The defendant's attack on his neighbor was willful."
wiretap
n. using an electronic device to listen in on telephone lines, which is illegal unless allowed by court order based upon a showing by law enforcement of "probable cause" to believe the communications are part of criminal activities. Use of wiretap is also a wrongful act for which the party whose tel...
withdrawal
n. 1) in criminal law, leaving a conspiracy to commit a crime before the actual crime is committed, which is similar to "renunciation." If the withdrawal is before any overt criminal act the withdrawer may escape prosecution. 2) the removal of money from a bank account.
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...
work product
n. the writings, notes, memoranda, reports on conversations with the client or witness, research and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial. A "work product" may not be demanded or subpenaed by the opposing party, as ...
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
n. a written order of a judge requiring specific action by the person or entity to whom the writ is directed.
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.
writ of mandate
(mandamus) n. a court order to a government agency, including another court, to follow the law by correcting its prior actions or ceasing illegal acts.
wrongful death
n. the death of a human being as the result of a wrongful act of another person. Such wrongful acts include: negligence (like careless driving), an inten- tional attack such as assault and/or battery, a death in the course of another crime, vehicular manslaughter, manslaughter or murder. Wrongful de...
wrongful termination
n. a right of an employee to sue his/her employer for damages (loss of wage and "fringe" benefits, and, if against "public policy," for punitive damages). To bring such a suit the discharge of the employee must have been without "cause," and the employee a) had an express contract of continued emplo...
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