Promissory Note, When The

The People’s Law Dictionary Taking The Mystery Out of Legal Language

• A to Z listing of all the legal terms you will ever need

• Includes the Constitution of the United States of America

• Explains all of the major Supreme Court decisions

Gerald N. Hill Kathleen Thompson Hill

} “Injustice anywhere is a threat to justice everywhere.” —Martin Luther King, Jr., from page 149.

Law is one of humanity’s most magnificent cre- ations. The idea that human beings can agree upon a set of rules which govern their conduct and apply to all equally is the bedrock of modern democratic civilization. As Samuel Johnson said, the law is “the last result of human wisdom acting upon human experience for the benefit of the public.”

Unfortunately, legal language is rarely understood by anyone but lawyers. There’s nothing new about this. In 1748, Montesquieu wrote that “the language of the laws should be simple.” More than two thousand years ago, the Greek playwright Aeschylus warned that “wrong must not win on technicalities.”

Today, legal language is even more complex, while

the need to understand it is greater than ever. Even a house closing involves agreements, acknowledgements, and warranties in legal jargon worthy of a merger between two major corporations. The law touches everyone. We all will deal with some form of legal document and legal proceeding: a purchase agreement, an employment contract, an auto loan, or perhaps most impor-

tantly, a will.

The law has also become increasingly popular as a form of mass entertainment. Legal thrillers are

best sellers; legal TV shows fill the airwaves; live coverage of major trials spotlights attorneys and judges sparring under rules and in language we long to understand.

This dictionary demystifies legal language. Every

definition is written simply and clearly and put in a real-life context. Easy-to-access definitions are followed by further explanations, examples, pronunciation guides and references to related terms.

The People’s Law Dictionary includes terms you may be familiar with, terms you thought you knew but really didn’t, and terms you’ve never

heard of but need to know. Browsing through it, you’ll learn a wealth of fascinating facts and

continued on back flap

The People’s Law Dictionary Taking The Mystery Out of Legal Language

Gerald N. Hill Kathleen Thompson Hill

MJF BOOKS NEW YORK I

The information in this book is complete and true to the best of our knowledge. The authors and publisher disclaim all liability in connection with the use of this book.

Published by MJF Books Fine Communications 322 Eighth Avenue New York, NY 10001

The People 's Law Dictionary LC Control Number 2002106264 ISBN 1-56731-553-4

Previously published as Real Life Dictionary ofthe Law

This edition published by arrangement with Gerald N. Hill & Kathleen Thompson Hill

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without the prior written permission of the publisher.

Manufactured in the United States of America on acid-free paper oo

MJF Books and the MJF colophon are trademarks of Fine Creative Media, Inc.

BG 10 98765432 1 The language of the law must not be foreign

to the ears of those who are to obey it. —Judge Learned Hand

The language of laws should be simple; directness is always better than elaborate wording. —Charles Louis de Montesquieu

INTRODUCTION. 9

DEFINITIONS

APPENDICES

I. The Constitution of the United States of America 439 II. The American Court System 457 III. Major Supreme Court Decisions 461 IV. North American and State Bar Associations 465 V. Legal Trivia 469 VI. Top Legal Films 473

The language of law often appears to be much like the hieroglyphics of ancient Egypt devised by the priests to keep knowledge of the rites of the temple from the people. To an extent, that suspicion is true, since no one will pay for common knowledge. However, the fact that legal definitions are special, obscure and confusing is also due to historic accident, the multiplicity of their sources, and the increasing complexity of modern life. The people s need to comprehend legal meanings is far more than mere curiosity. In today s world it is a public necessity.

This dictionary intends to demystify and clarify the language of the law for all people. The definitions are put into real life context, so that they do not just stand alone on the printed page, unconnected to reality. Where necessary there are explanations beyond the mere definitions, with illustrations, examples, phonic pronunciation and internal definitions so that the reader need not search from one definition to another for meaning.

To remove the veil of mystery is not easy, but necessary in a democracy in which the law is constantly demanding attention, from an apartment lease to a permit for a street dance, a speeding ticket to a class action for victims of a faulty product. Since the invention of the photocopier (now followed by the

FAX and down-loaded E-mails) this has become a paper-driven society, in which the public is flooded with documentation. The closing of a sale of a house involves agreements, acknowledgments and warranties in legal jargon worthy of a merger of two major corporations a generation ago. Trials, particularly involving crime, are often high drama attracting great attention (hence the list of leading legal films in the Appendix). Fictional law firms as well as actual high-profile cases are brought directly from courtroom to living room via television, with the lawyers and judges sparring under rules and in language which the public wants to understand. The reliance on Latin, and occasionally French, lingers from the past as the special province of lawyers. While phrases like ab initio and res ipsa loquitur are handy shorthand for attorneys, they serve to isolate the public from understanding the meanings of the law. And in their wake comes the lingo of the tax expert which confounds all but the specially trained. Readily understood definitions in English can assist in breaking down these language barriers. The present craving for simplicity, common sense and common knowledge of the meanings of legal language is not new. Thus the Greek playwright Aeschylus calls out from the fifth century before Christ that wrong must not I win on technicalities, and Montesquieu wrote in 1748 that the language of laws should be simple.

The People s Law Dictionary fulfills the general public s right to understand legal language. It also provides the thousands of law students a ready reference to assist them in their formidable task of absorbing the lore of law. The same is true of the legion of paralegals and legal secretaries who make law offices effective. And every lawyer can benefit from this single-volume source of simply worded, self-contained legal definitions which do not require further research.

In sum, our contribution to legal understanding is based on Samuel

Johnson s definition of the law as the last result of human wisdom acting upon human experience for the benefit of the public.

Gerald N. Hill Kathleen Thompson Hill THE INTERPRETER: O R BOOKE, CONTAINING the Signification of Words.

Wherein is fit forth the true meaning ofall, or the moft part of fitch words and Tcrmes, as are mentioned in the Law Writers, or Statutes of chit victorious and renowned Kingdom, requiring any Expafitie* or Interpretation.

A Worke not onely profitable, but ncccfiary for fuch as defire throughly to be inftrudtcd in die knowledge of our Lawes, Sucutcs, or other Antiquities.

Colle&ed by John Cowell, Doctor, fometnrie the Kings Majefties Profcflbur the CivillLair in the Univerfitic

In begum okfcurihUe ceptio. LONDON,

Printed for William Shearei. \6yj.

The title page to one of the earliest legal dictionaries, Cowell’s Interpreter, which had a very rocky beginning. John Cowell, professor of law at Cambridge University, originally published this pioneer work in 1607. However, Parliament found the book politically incorrect since some of the definitions upheld the King’s absolute power. So, in 1610, Parliament ordered The Interpreter “suppressed” and all copies burned. Dr. Cowell lost his professorship and the next year he died. His dictionary was not reprinted until 1637.

To the memory of our fathers

RAYMOND TEAL HILL and GEORGE EDWARD THOMPSON

DEFINITIONS

A-Z abandon: v. to intentionally and abandonment: n. the act of intention- permanently give up, surrender, ally and permanently giving up, sur- leave, desert or relinquish all in- rendering, deserting or relinquishing terest or ownership in property, a property, premises, a right of way, a home or other premises, a right of ship, contract rights, a spouse and/or way, and even a spouse, family, or children. Abandonment of a spouse children. The word is often used in means intent at permanent separa- situations to determine whether a tion, and with children a lengthy peri- tenant has left his/her apartment od of neither contact nor any support. and the property inside and does In maritime law abandonment has a not intend to come back. Thus, a special meaning: when an owner sur- landlord can take over an appar- renders a ship and its contents to a ently abandoned residence, but trustee for the benefit of claimants, must store anything a tenant particularly after a wreck. If one in- leaves behind and give notice to vents something and does not get a the tenant before selling the pos- patent but allows others to use the in- sessions which are left. To aban- vention or dedicates it to public use, don children can mean to have no the right to patent is probably aban- contact and give no support for a doned. Confusion arises over aban- year or more. (See: abandoned donment of water rights, mining property, abandonment) rights, or rights of way, since mere non-use is not sufficient to show aban- abandoned property: n. property donment. (See: abandon, aban- left behind (often by a tenant) in- doned property, patent) tentionally and permanently when

it appears that the former owner abate: v. to do away with a problem, (or tenant) does not intend to come such as a public or private nuisance or back, pick it up, or use it. Examples some structure built contrary to public include may possessions left in a policy. This can include dikes which il- house after the tenant has moved legally direct water onto a neighbor’s out or autos left beside a road for a property, high volume noise from a long period of time, or patent rights rock band or a factory, an improve- of an inventor who does not apply ment constructed in violation of build- for a patent and lets others use his ing and safety codes, or seepage from a invention without protest. One faulty septic tank. (See: abatement) may have abandoned the property of contract rights by not doing what abatement: n. 1) the removal of a prob- is required by the contract. Howev- lem which is against public or private er, an easement and other land policy, or endangers others, including rights are not abandoned property nuisances such as weeds that might

just because of non-use. (See: catch fire on an otherwise empty lot; abandon, abandonment) 2) an equal reduction of recovery of

18 abortion

debts by all creditors when there property in the estate of a person who are not enough funds or assets to has died and there is no obvious party pay the full amount; 3) an equal re- to receive title or there appears to be duction of benefits to beneficiaries no legal owner of the property, a ship-

(heirs) when an estate is not large wreck while it is being determined enough to pay each beneficiary in who has the right to salvage the ship

full. (See: abate) and its cargo, or a bankrupt person’s property before the bankruptcy court abduction: n. the criminal taking has decided what property is available away of a person by persuasion to creditors or alleged heirs. 2) legal (convincing someone—particularly jargon for “undetermined.” a minor or a woman—he/she is better off leaving with the persuader), ab initio: prep, lawyer Latin for “from by fraud (telling the person he/she is the start,” as “it was legal ab initio." needed, or that the mother or father wants him/her to come with the ab- able-bodied: adj. physically capable ductor), or by open force or violence. of working at a job or in the military. Originally abduction applied only to It is often used to describe a person protect women and children as vic- as capable of earning a living and,

tims. Currently in most states it can therefore, of paying alimony or also apply to an adult male. In fact, child support. in some states like New York abduction meant the unlawful taking abortion: n. the termination of preg- or detention of any female for pur- nancy by various means, including poses of “marriage, concubinage or medical surgery, before the fetus is

prostitution.” Kidnapping is more able to sustain independent life. Until limited, requiring force, threat of 1973 abortion was considered a crime force upon an adult or the taking of (by the mother and the doctor) unless children. (See: kidnapping) performed by physicians to protect the

life of the mother, a phrase often broadly interpreted. Untrained per- There are not enough jails, not sons performed thousands of abor- enough policemen, not enough tions each year in the U.S. using courts to enforce law not sup- a hasty, unsanitary and dangerous ported by the people. means, resulting in maiming, perma- —Senator and Vice President nent damage of organs, and death Hubert H. Humphrey of many women. The Supreme Court

ruled in the case of Roe v. Wade ( 1973) abet: v. to help someone commit a that a woman had the right to choose crime, including helping them es- abortion to end a pregnancy through cape from police or plan the crime. the first trimester (three months) (See: aid and abet) of gestation. In the latter stages of pregnancy, danger to the life of the

abeyance: 1) n. when the owner- mother could still justify a legal ship of property has not been deter- abortion. Political struggles followed

mined. Examples include title to real over legalized abortions. Some state

19 abrogate

legislatures passed limitations such abstract of judgment: n. a written as requiring teenage girls to obtain summary of a judgment which states their parents’ consent in order to how much money the losing party get an abortion. Despite appoint- owes to the person who won the law- ment of anti-abortion justices by suit (judgment creditor), the rate of in- Presidents Reagan and Bush, the terest to be paid on the judgment Supreme Court has not over-turned amount, court costs, and any specific the basic Wade case rule. President orders that the losing party (judgment Bill Clinton’s appointments are ex- debtor) must obey, which abstract is pected to make legalized abortion acknowledged and stamped so that it continue in the future. can be recorded at the county recorder. The purpose of an abstract of abrogate: v. to annul or repeal a law judgment is to create a public record or pass legislation that contradicts and create a lien or claim if necessary the prior law. Abrogate also applies on any real estate owned or later ac- to revoking or withdrawing condi- quired by the loser located in the tions of a contract. (See: repeal) county in which the abstract of judgment is recorded. If the loser does not pay the judgment voluntarily then the Avoid litigation winner can force a sheriffs sale of any —Abraham Lincoln property to collect. There are several problems: a) to find the county where abscond: v. 1) traditionally to leave a the loser owns real estate; b) the prob- jurisdiction (where the court, a ability that there are secured loans, process server or law enforcement tax liens and/or other judgments that

can find one) to avoid being served come ahead of the judgment lien; c) with legal papers or being arrested. the possibility that the loser/debtor 2) a surprise leaving with funds or may go bankrupt and avoid paying goods that have been stolen, as in the debt. (See: levy, lien) “he absconded with the loot.”

abstract of title: n. the written report absolute: adj. complete, and without on a title search which shows the condition. history of every change of ownership on a piece of real estate, and any abstention doctrine: n. when the claims against the property, such Supreme Court refuses to exercise as easements on the property, loans its federal constitutional jurisdic- against it, deeds of trust, mortgages, tion or declines to consider a ques- liens, judgments, and real property tion of state law arising from a case taxes. Some abstracts only go back in

being appealed from a state court. history to the last change in title. In some places the abstract of title abstract: n. in general, a summary of is prepared by a title company, a record or document, such as an ab- and in other places by an individual stract ofjudgment or abstract of title who is called an abstractor. Most to real property. (See: abstract of buyers and all lenders require the judgment, abstract of title) title report with an abstract. The

20 acceleration clause

information in the abstract is up to not actually been filed, just to the moment, comes from the local intimidate an enemy; filing a false county recorder’s office, and usual- declaration of service (filing a paper ly requires an expert search. (See: untruthfully stating a lie that some- chain of title, title report) one has officially given a notice to another person, filing a lawsuit which abuse of discretion: n. a polite way has no basis at law, but is intended of saying a trial judge has made to get information, force payment such a bad mistake (“clearly against through fear of legal entanglement or reason and evidence” or against es- gain an unfair or illegal advantage. tablished law) during a trial or on Some people think they are clever ruling on a motion that a person did by abusing the process this way. A not get a fair trial. A court of ap- few unscrupulous lawyers do so in- peals will use a finding of this abuse tentionally and can be subject to dis- as a reason to reverse the trial court cipline and punishment. Sometimes judgment. Examples of “abuse of a lawyer will abuse the process acci- discretion” or judges’ mistakes in- dentally; an honest one will promptly clude not allowing an important correct the error and apologize. witness to testify, making improper comments that might influence a abut: v. when two parcels of real prop- jury, showing bias, or making rul- erty touch each other. ings on evidence that deny a person

a chance to tell his or her side of the acceleration: n. 1) speeding up the matter. This does not mean a trial time when there is vesting (absolute

or the judge has to be perfect, but it ownership) of an interest in an estate,

does mean that the judge’s actions when the interest in front of it is ter- were so far out of bounds that some- minated earlier than expected; 2) in a one truly did not get a fair trial. contract or promissory note, when the

Sometimes the appeals courts admit payment of debt is moved up to the the judge was wrong, but not wrong present time due to some event like enough to have influenced the out- non-payment of an installment or sale come of the trial, often to the annoy- of the property which secures the debt. ance of the losing party. In criminal (See: acceleration clause, vest) cases abuse of discretion can include sentences that are grossly too acceleration clause: n. a provision in a harsh. In a divorce action, it in- contract or promissory note that if cludes awarding alimony way be- some specified event (like not making yond the established formula or the payments on time) occurs then the en- spouse’s or life partner’s realistic tire amount is due or other require- ability to pay. ments are due now, pronto. This clause is most often found in promisso- abuse of process: n. the use of legal ry notes with installment payments process by illegal, malicious, or for purchase of real property and re-

perverted means. Examples in- quires that if the property is sold then clude serving (officially giving) a the entire amount of the note is due complaint to someone when it has immediately (the so-called “due on sale

21 accept

clause”). Some states prohibit “due “receipt and acknowledgment of accep- on sale” and always allow the new tance of service” or similar language property owner to assume the debt. which must be signed, dated and sent (See: acceleration, assumption) back to the attorney who sent the complaint or petition. Attorneys must be accept: v. to receive something with careful that they have legal authority

approval and intention to keep it. from a client to act on his/her behalf, This use often arises on the question because a client may deny later that of accepting a payment which is late he/she gave authority to accept ser- or not complete or accepting the vice. (See: service) “service” (delivery) of legal papers.

access: n. 1) in real estate the right and acceptance: n. 1) receiving some- ability to get to the property. 2) when a thing from another with the intent husband has the opportunity to make to keep it, and showing that this love to his wife, it is said he has access. was based on a previous agreement. This rather vulgar use of “access” has 2) agreeing verbally or in writing to been important because if a husband the terms of a contract, which is one “had access” to his wife during the

of the requirements to show there time when she became pregnant, it is was a contract (an offer and an ac- presumed he is the father. Modem use ceptance of that offer). A written of blood tests and DNA studies may offer can be accepted only in writ- show the father to be someone other ing. 3) receiving goods with the in- than the husband whether the hus- tention of paying for them if a sale band “had access” or not. (See: DNA, has been agreed to. 4) agreement to egress, paternity suit) pay a bill of exchange, which can be

an “absolute acceptance” (to pay as accessory: n. a second-string player the bill is written) or “conditional who helps in the commission of a acceptance” (to pay only when some crime by driving the getaway car, pro- condition actually occurs such as viding the weapons, assisting in the the shipment or delivery of certain planning, providing an alibi, or hiding goods). “Acceptance” is most often the principal offender after the crime. used in the factual determination of Usually the accessory is not immedi- whether a contract was entered ately present during the crime, but

into. (See: contract, offer) must be aware that the crime is going to be committed or has been commit- acceptance of service: n. agreement ted. Usually an accessory’s punish- by a defendant (or his/her attorney) ment is less than that of the main per- in a legal action to accept a com- petrator, but a tough jury or judge plaint or other petition (like divorce may find the accessory just as respon- papers) without having the sheriff or sible. (See: aid and abet) process server show up at the door.

The agreement of “acceptance of ser- accommodation: n. 1) a favor done vice” must be in writing or there is without compensation (pay or con- no proof that it happened. In most sideration), such as a signature jurisdictions there is a form entitled guaranteeing payment of a debt,

22 accretion

sometimes called an accommoda- stated is a bill, invoice or a summary tion endorsement. Such accommo- of invoices, signed by the customer or dation is not the smartest business sent to the customer who pays part or

practice, since the holder of the all of it without protest. This is impor- note can go after the accommoda- tant when a frustrated businessman tor rather than the debtor and will sues for “account stated” which sets do so if the accommodator has lots both the debtor’s liability and the of money or is easier to locate than exact amount the debtor must pay,

the debtor. 2) giving in to an ad- which is less complicated than claim- versary on a point to make a deal ing a debt is due and payable. An ac- work. (See: guarantor) count stated may carry a longer statute of limitations (time to file suit) accomplice: n. someone who assists than some other forms of debt de- in the commission of a crime and, pending on the state. (See: debt) unlike a mere accessory, is usually

present or directly aids in the accounts payable: n. bills that are crime (like holding a gun on the owed. (See: debt) bank guard while the vault is loot- ed, or holding a victim of assault accounts receivable: n. the amounts and battery). Also unlike an acces- of money due or owed to a business sory who can claim being only a or professional by customers or subordinate figure, the accomplice clients. Generally, accounts receiv- may share in the same charge and able refers to the total amount due punishment as the principal crimi- and is considered in calculating the nal. (See: accessory) value of a business or the business’s problems in paying its own debts. accord and satisfaction: n. an Evaluation of the chances of collect- agreement to accept less than is ing based on history of customers’ legally due in order to wrap up the payments, quality of customers and matter. Once the accord and satis- age of the accounts receivable and faction is made and the amount debts is important. A big mistake paid (even though it is less than made by people overly eager to buy a owed) the debt is wiped out since business is to give too high a value to the new agreement (accord) and the accounts receivable without con- payment (the satisfaction) replaces sidering the chances of collection. the original obligation. It is often used by creditors as “a bird in the America is the paradise of hand is worth two in the bush” prac- lawyers. ticality. (See: novation) —Justice David J. Brewer account stated: n. a statement be-

tween a creditor or the person to accretion: n. 1) in real estate, the in- whom money is owed and a debtor crease of the actual land on a stream, (the person who owes) that a partic- lake or sea by the action of water ular amount is owed to the seller as which deposits soil upon the shoreline.

of a certain date. Often the account Accretion is Mother Nature’s little gift

23 accrue

to a landowner. 2) in estates, when legal and suitable for recording. a beneficiary of the person who died (See: acknowledgment) gets more of the estate than he/she was meant to because another ben- acknowledgment: n. the section at the eficiary or heir dies or rejects the end of a document where a notary gift. Example: if a brother and sis- public verifies that the signer of the ter were supposed to divide a share document states he/she actually

of Dad’s estate, but brother doesn’t signed it. Typical language is: “State want it, then sister’s share grows of Texas, County of Deaf Smith: accretion. by 3) in trusts, accretion (signed and sealed) On July 1, 1994, occurs when a beneficiary gets a before me, a notary public for said surprising increase in benefits due state, personally appeared James Fi- to an unexpected event. (See: pro- field, personally known to me, or bate, trust) proved to be said person by proper proof, and acknowledged that he exe- accrue: v. 1) growing or adding to, cuted the above Deed.” Then the no- such as interest on a debt or in- tary signs the acknowledgment and

vestment which continues to accu- puts on his/her seal, which is usually

mulate. 2) the coming into being of a rubber stamp, although some still the right to bring a lawsuit. For ex- use a metal seal. The person acknowl- ample, the right to sue on a con- edging that he/she signed must be tract only accrues when the con- ready to produce a driver’s license or tract is breached (not on mere sus- other proof of existence, and must sign picion that it might be breached) or the notary’s journal. The acknowledg- when the other party repudiates ment is vital for any document which the contract (anticipatory breach). must be recorded by the County Recorder or Recorder of Deeds, includ- accusation: n. 1) in legal terms ac- ing deeds, deeds of trust, mortgages, cusation means officially charging powers of attorney that may involve someone with a crime either by in- real estate, some leases and various dictment by a Grand Jury or filing other papers. charges by a District Attorney. 2) in lay terms any claim of wrongdoing acquit: v. what a jury or judge sitting by another person. without a jury does at the end of a criminal trial if the jury or judge accused: n. a person charged with finds the accused defendant not a crime. guilty. (See: verdict)

acknowledge: v. 1) generally to acquittal: n. what an accused crimi-

admit something, whether bad, nal defendant receives if he/she is good or indifferent. 2) to verify to a found not guilty. It is a verdict (a notary public or other officer (such judgment in a criminal case) of not as a County Clerk) that the signer guilty. (See: acquit) executed (wrote, signed) the docu-

ment like a deed, lease, or power act: 1) n. in general, any action by a per- of attorney, to make it certified as son. 2) n. a statutory plan passed by

24 addendum

Congress or any legislature which is insurance company gets religion. At a “bill” until enacted and becomes times disputes arise as to whether a law. 3) v. for a court to make a deci- violent storm or other disaster was an sion and rule on a motion or peti- act of God (and therefore exempt from tion, as in “the court will act on your a claim) or a foreseeable natural motion for a new trial.” event. God knows the answer! action: n. a lawsuit in which one actual controversy: n. a true legal dis- party (or parties) sues smother. (See: pute which leads to a genuine lawsuit cause of action, lawsuit) rather than merely a “cooked up” legal action filed to get a court to give the actionable: adj. when enough facts equivalent of an advisory opinion. or circumstances exist to meet the Federal courts, including the U.S.

legal requirements to file a legiti- Supreme Court, will only consider an mate lawsuit. If the facts required “actual controversy”, on appeal, since to prove a case cannot be alleged in they will not give advisory (informal) the complaint, the case is not “ac- opinions or make judgments on tionable” and the client and his/her “friendly suits” filed to test the poten- attorney should not file a suit. Of tial outcome. (See: friendly suit) course, whether many cases are actionable is a matter ofjudgment and actual notice: n. having been informed

interpretation of the facts and/or directly of something or having seen it law, resulting in many lawsuits that occur, as distinguisned from construc-

clog the courts. Incidentally, if a tive notice (e.g. a notice was mailed case is filed which is clearly not ac- but not received, published in a news-

tionable, it may result in a lawsuit paper, or placed in official records). against the filer of the original suit (See: notice) for malicious prosecution by the defendant after he/she has won the addendum: n. an addition to a com- original suit. (See: cause of action, pleted written document. Most com- lawsuit, malicious prosecution) monly this is a proposed change or ex-

planation (such as a list of goods to be act of God: n. a natural catastrophe included) in a contract, or some point which no one can prevent such as an that has been the subject of negotia- earthquake, a tidal wave, a volcanic tion after the contract was originally eruption, a hurricane or a tornado. proposed by one party. Real property Acts of God are significant for two sales agreements often have addenda reasons: 1) for the havoc and dam- (plural of addendum) as the buyer age they wreak, and 2) because and seller negotiate fine points (how often contracts state that “acts of payments will be made, what appli- God” are an excuse for delay or fail- ances will be included, date of trans-

ure to fulfill a commitment or to fer of title, the terms of financing by complete a construction project. the seller and the like). Although Many insurance policies exempt often they are not, addenda should be coverage for damage caused by acts signed separately and attached to the of God, which is one time an original agreement so that there will

25 adeem

be no confusion as to what is in- granted is “adequate” when it has cluded or intended. Unsigned ad- done the best it can in the circum- denda could be confused with rough stances. Example: a “stay away” drafts or unaccepted proposals or order telling an abusive husband to included fraudulently. keep his distance from his wife but not putting him in jail. The order is adeem: v. to revoke a gift made in a only a piece of paper until he violates will by destroying, selling or giving it, giving cause for his arrest. away the gift item during the lifetime of the testator (writer of the adhesion contract (contract of ad- will). Example: a person writes in hesion): n. a contract (often a signed his/her will, “I leave my son my form) so imbalanced in favor of one

1988 Cadillac automobile” and then party over the other that there is a Dad totals or sells the car. Nasty strong implication it was not freely legal fights can arise if the supposed bargained. Example: a rich landlord adeemed gift is not clearly identi- dealing with a poor tenant who has no fied, as in “I give Robert my family choice and must accept all terms of a car.” Then the giver sells the Cadil- lease, no matter how restrictive or lac and buys a Jeep. Better will lan- burdensome, since the tenant cannot guage would be: “To Johnny any (or afford to move. An adhesion contract the newest) automobile of which I can give the little guy the opportunity shall be possessed at the time of my to claim in court that the contract death.” (See: ademption) with the big shot is invalid. This doctrine should be used and applied more ademption: n. the act of adeeming, often, but the same big guy-little guy which is revoking (getting rid of) a inequity may apply in the ability to af- gift mentioned in a will by destruc- ford a trial or find and pay a resource- tion, or selling or giving away the ful lawyer. (See: contract) gift before death. (See: adeem) ad hoc: adj. Latin shorthand meaning adequate remedy: n. a remedy “for this purpose only.” Thus, an ad (money or performance) awarded hoc committee is formed for a specific by a court or through private ac- purpose, usually appointed to solve a tion (including compromise) which particular problem. An ad hoc attor- affords “complete” satisfaction, ney is one hired to handle one problem and is “practical, efficient and ap- only and often is a specialist in a par- propriate” in the circumstances. In ticular area or considered especially part this depends on what relief able to argue a key point. (like an order granting one an easement over a neighbor’s proper- adjourn: v. the final closing of a meet- ty or an order keeping the drunken ing, such as a convention, a meeting of husband away from the complain- the board of directors, or any official ing wife) a party is seeking. A gathering. It should not be confused court is a bit self-congratulatory with a recess, meaning the meeting and subjectively judgmental when will break and then continue at a later it announces that the remedy time. (See: recess, session)

26 )

administer

adjudication: n. the act of giving a we’ll pay your bills. You don’t need an judicial ruling such as a judgment attorney. He’ll only confuse things.”), or decree. The term is used particu- get a statement from the injured with- larly in bankruptcy proceedings, in out counsel, or delay the payout with which the order declaring a debtor the promise he/she will negotiate any bankrupt is called an adjudication. reasonable demand, and then making (See: bankruptcy) an offer of payment that is absurdly low. Some insurance companies try to adjusted basis: n. in accounting, the make the attorney deal with the ad- original cost of an asset adjusted for juster, which is cheaper than sending costs of improvements, deprecia- the case to defense attorneys. Ad- tion, damage and other events justers also represent the company in which may have affected its value approving settlements. during the period of ownership. This

is important in calculating capital ad litem adj. legal Latin meaning “for the gains for income tax purposes since purposes of the legal action only.” Most the adjusted basis is generally high- often the term applies to a parent who er than the original price and will files a lawsuit for his or her minor child lower capital gains taxes. (See: as “guardian at litem” (guardian just for basis, income tax) the purposes of the lawsuit) or for a per-

son who is incompetent. Either at the

time the lawsuit is filed or shortly there- A lawyer has no business with after, the parent petitions the court to the justice or injustice of the allow him/her to be guardian ad litem, cause which he undertakes, which is brought ex parte (without a no- unless his client asks his ticed hearing) and is almost always opinion, and then he is bound granted. A person acting ad litem has to give it honestly. The justice the responsibility to pursue the lawsuit or injustice of the cause is to and to account for the money recovered be decided by the judge. for damages. If a child in such a lawsuit —Samuel Johnson reaches majority (18 in most states)

while the suit is pending, the ad litem adjuster: n. an employee (usually a guardianship terminates and the “new” non-lawyer) of an insurance compa- adult can run his/her own lawsuit. ny or an adjustment firm employed Some courts require an order terminat- by an insurance company to negoti- ing the guardianship ad litem upon ate an early settlement of a claim for proof of coming of age. (See: guardian damages against a person, a busi- ad litem ness or public body (like a city).

While a fair and responsible ad- administer: v. 1) to conduct the duties juster can serve a real purpose in of a job or position. 2) particularly, to getting information and evaluating manage the affairs of the estate of a the case for the insurance company, person who has died under supervi- some adjusters try to make a settle- sion of the local court. 3) to give an ment before the injured person has oath, as in “administer the oath.” (See: retained an attorney (“don’t worry, administrator, executor, probate)

27 administrative hearing

administrative hearing: n. a hear- administrative law judge: n. a pro- ing before any governmental fessional hearing officer who works for agency or before an administrative the government to preside over hear- law judge. Such hearings can ings and appeals involving govern- range from simple arguments to mental agencies. They are generally what amounts to a trial. There is experienced in the particular subject no jury, but the agency or the ad- matter of the agency involved or of ministrative law judge will make a several agencies. Formerly called ruling. (See: administrative law, “hearing officers,” they discovered hearing) that there was more prestige and higher pay in being called “judge.” administrative law: n. the procedures created by administrative Administrative Procedure Act: n. agencies (governmental bodies of the federal act which established the the city, county, state or federal gov- rules and regulations for applications, ernment) involving rules, regula- claims, hearings and appeals involving tions, applications, licenses, per- governmental agencies. There are sim- mits, available information, hear- ilar acts in many states which spell out ings, appeals and decision-making. the rules for dealing with state gov- Federal agency procedures are government agencies. (See: administra- erned by the Administrative Proce- tive hearing, administrative law) dure Act, and many states have adopted similar procedural formats administrator: n. the person appoint- either by law or regulation. It is im- ed by the court to handle the estate portant to consider two vital factors of someone who died without a will, in dealing with administrative agen- with a will but no nominated execu- cies: the rules 1) and regulations are tor, or the executor named in the will often special for each agency and are has died, has been removed from the not usually found in the statutes but case or does not desire to serve. If in those regulations; 2) a member of there is a will but no available ex- the public must “exhaust his/her ad- ecutor, the administrator is called an ministrative remedies” (take every “administrator with will annexed.” step, including appeals) with the The procedure is that if an estate agency and its system before he/she must be probated (filed and ap- can challenge the administrative proved by a court) then someone ruling with a lawsuit in court. There (usually a relative or close friend) pe- are exceptions (such as emergency titions the court in the appropriate or obvious futility) to exhausting county (usually where the late one’s remedies, but those are rare. lamented last lived) for appointment Administrative law can be a techni- of a particular person as administra- cal jungle, and many lawyers make tor. If an estate requires attention lots of money from knowing how to and no one has come forward to ad- hack their way through it on behalf minister the estate, then the county of their clients. (See: administra- Public Administrator may do so. In tive law judge, Administrative most cases state law requires that Procedure Act) the administrator post a bond

28 admission of guilt

ordered by the court to protect jury’s shock at gory details may out- the estate from mishandling or weigh that probative value. In crimi- malfeasance. If the will includes nal cases the courts tend to be more real property in another state restrictive on letting the jury hear then the administrator or executor such details for fear they will result in must find someone in the other “undue prejudice.” Thus, the jury may state to handle the change of title only hear a sanitized version of the and paying of local taxes, and that facts in prosecutions involving vio- person is called an “ancillary ad- lence. (See: evidence, objections) ministrator.” (See: administer, ancillary administrator, execu- admission: n. a statement made by a tor, probate) party to a lawsuit or a criminal defendant, usually prior to trial, that certain admiralty: n. concerning activities facts are true. An admission is not to which occur at sea, including on be confused with a confession of blame small boats and ships in navigable or guilt, but admits only some facts. In bays. Admiralty law (maritime law) civil cases, each party is permitted to includes accidents and injuries at submit a written list of alleged facts sea, maritime contracts and com- and request the other party to admit or merce, alleged violations of rules of deny whether each is true or correct.

the sea over shipping lames and Failure to respond in writing is an rights-of-way, and mutiny and other admission of the alleged facts and crimes on shipboard. Jurisdiction may be used in trial. (See: admission over all these matters rests in the against interest, confession) federal courts, which do not use ju-

ries in admiralty cases. There are admission against interest: n. an other special rules in processing admission of the truth of a fact by maritime cases, which are often any person, but especially by the handled by admiralty law special- parties to a lawsuit, when a state- ists. Lawyers appearing in admiral- ment obviously would do that person ty cases are called “proctors.” (See: harm, be embarrassing, or be maritime law) against his/her personal or business interests. Another party can quote in admissible evidence: n. evidence court an admission against interest which the trial judge finds is useful even though it is only hearsay. (See: in helping the trier of fact (a jury if admission, hearsay) there is a jury, otherwise the judge),

and which cannot be objected to admission of evidence: n. a judge’s on the basis that it is irrelevant, acceptance of evidence in a trial. immaterial, or violates the rules (See: evidence) against hearsay and other objections. Sometimes the evidence admission of guilt: n. a statement by which a person tries to introduce someone accused of a crime that has little relevant value (usually he/she committed the offense. If the called probative value) in determin- admission is made outside court to a ing some fact, or prejudice from the police officer it may be introduced as

29 admission to bail

evidence if the defendant was bond, and surrender the client. (See: given the proper warnings as to bail, bail bondsman) his/her rights (“Miranda warning”)

before talking. (See: admission, admit: v. 1) to state something is true confession, guilty, Miranda in answering a complaint filed in a warning, rights) lawsuit. The defendant will admit or deny each allegation in his or her an- admission to bail: n. an order of a swer filed with the court. If he or she court in a criminal case allowing an agrees and states that he/she did what accused defendant to be freed pend- he/she is accused of, then the allega- ing trial if he/she posts bail (de- tion need not be proved in trial. 2) in

posits either cash or a bond) in an criminal law, to agree a fact is true or amount set by the court. Theoreti- confess guilt. 3) to allow as evidence in cally the posting of bail is intended a trial, as the judge says: “Exhibit D, to guarantee the appearance of the the letter, is admitted.” (See: admis- defendant in court when required. sion, evidence) In minor routine cases (e.g. petty

theft or drunk driving) a judge auto- adopt: v. 1) to take on the relationship matically sets bail based on a rate of parent to child of another person, schedule which can be obtained and particularly (but not necessarily) a put up quickly. Otherwise bail is set minor, by official legal action. 2) to ac- at the first court appearance (ar- cept or make use of, such as to adopt raignment). Although the U.S. Con- another party’s argument in a law- stitution guarantees the right to suit. (See: adoption) bail, in extreme cases (murder, treason, mayhem) the court is not re- adoption: n. the taking of a child into quired to admit a prisoner to bail of one’s family, creating a parent to child

any amount due to the likelihood of relationship, and giving him or her all the defendent fleeing the area, or the rights and privileges of one’s own causing further harm. Bail bonds- child, including the right to inherit as men are usually readily available if the child were the adopter’s natural near larger courthouses and jails, child. The adoption procedure varies charge ten percent of the amount of depending on whether the child comes the court-required bond, and often through an agency which handles demand collateral for the amount adoptions or comes from a stranger or posted. If the defendant fails to a relative, and on the age of the child show up in court or flees (“jumps and the adoptive parent or parents. bail”), the defendant may have to The hopeful adoptive parent must file give up his/her deposit (bail). When a petition, which may be handled by the case is concluded, the bail is “ex- the adoption agency. Natural parents onerated” (released) and returned to must either give binding written per- the bail bond company or to whoev- mission for the adoption or have aban- er put up the cash. If a bail bonds- doned the child for a lengthy period of man has good reason to believe his time. An investigation will be made by client is attempting to flee he may a county office (probation or family bring him/her in to jail, revoke the services) as to the future parents’

30 :

adverse

suitability to adoption, their rela- ad valorem adj. Latin for “based on tionship status, their home situa- value,” which applies to property tion, and their health, as well as the taxes based on a percentage of the best interests of the child. If the county’s assessment of the property’s

child is old enough to understand value. The assessed value is the stan- the procedure he or she may have a dard basis for local real property say in the adoption. Finally there is taxes, although some place “caps” a hearing before a local court judge (maximums) on the percentage of (called “surrogate” in some states) value (as under Proposition 13 in Cal- and an adoption order made. In ifornia) or “parcel taxes” which estab- many states a new birth certificate lish a flat rate per parcel. (See: prop- can be issued, with the adoptive erty tax) parents listed as the parents. If

there is an adoption of an adult, the advance: n. a payment which is made

adopting adult usually must be sev- before it is legally due, such as before eral years older, based on the state shipment is made, a sale is completed, law. In recent years, there has been a book is completed by the author, or much controversy over adoption by a note is due to be paid. single parents, including gays and lesbians, with the tendency toward advancement: n. a gift made by a per- allowing such adoptions, provided son to one of his or her children or all other criteria beneficial to the heirs (a presumptive heir since an heir child are met. (See: adopt) is only determined on the date of death) in anticipation of a gift from the ad seriatim (add sear-ee-ah-tim): still-living parent’s potential estate as adj. Latin for “one after another”. an advance on one’s inheritance. Ex-

(See: seriatim ) ample: John Richguy is going to leave his son $100,000 under his will or a adultery: n. consensual sexual rela- percentage of the estate on John’s tions when one of the participants death. John gives the son $50,000 with

is legally married to another. In the intention that it would be deduct- some states it is still a crime and ed from the inheritance. The main and in many states it is grounds problem is one of proof that the ad- for divorce for the spouse of the vanced sum was against the projected married adulterer. The criminal inheritance. A person making an ad- charges are almost never brought, vancement should leave a written and in those states in which there statement about the advancement or is no-fault divorce (or dissolution), get a signed receipt. Such gifts made adultery is legally not relevant. shortly before death are more readily Until the 1970s, in community treated as an advancement than one property states adultery was made several years earlier. (See: ben- grounds for giving the person eficiary, estate, gift in contempla- cheated upon most of the couple’s tion of death) property, often resulting in lurid and long trials and grist for scan- adverse: adj. clearly contrary, such as dal newspapers. an adverse party being the one suing

31 adverse interest

you. An adverse interest in real attorney called the witness to testify property is a claim against the prop- on behalf of his/her client. When the erty, such as an easement. attorney calling the witness finds that answers are contrary to the adverse interest: n. a right or con- legal position of his/her client or the cern that is contrary to the interest witness becomes openly antagonis- or claim of another. tic, the attorney may request the judge to declare the witness to be adverse party: n. the opposite side in “adverse” or “hostile.” If the judge a lawsuit. Sometimes when there declares the witness to be adverse are numerous parties and cross- (i.e. hostile) then the attorney may complaints, parties may be adverse ask “leading” questions which sug- to each other on some issues and in gest answers or are challenging to agreement on other matters. Two the testimony just as on cross exam- beneficiaries of a person who has ination of a witness who has testi- died may join together to claim a will fied for the opposition. (See: wit- was valid, but fight each other over ness, cross examination, leading the assets of the dead person’s estate hostile witness) if the court rules the will was legal.

advisory opinion: n. an opinion stat- adverse possession: n. a means to ed by a judge or a court upon the re- acquire title to land through obvious quest of a legislative body or govern- occupancy of the land, while claim- ment agency. An advisory opinion has ing ownership for the period of no force of law but is given as a mat- years set by the law of the state ter of courtesy. A private citizen can- where the property exists. This can not get an advisory ruling from a arise when a rancher fences in a court and can only get rulings in an parcel contending he was to get title actual lawsuit. State attorneys gener- from some prior owner, and then al also give advisory opinions at the grazes cattle on the property for request of government officials. These many years without objection by the opinions are often cited as the proba- title holder. Payment of real proper- ble correct law on the subject but are ty taxes and making improvements not binding. (See: actual controver- (such as paving or fencing) for the sy, friendly suit) statutory period (varies by state) are evidence of adverse possession affiant: n. a person who signs an affi- but cannot be used by a land grab- davit and swears to its truth before a ber with no claim to title other than notary public or some person autho- possession. (See: possession, pre- rized to take oaths, like a County scriptive easement) Clerk. (See: affidavit, declarant)

adverse witness: n. a witness in a affidavit: n. 1) any written document in trial who is found by the judge to which the signer swears under oath be adverse to the position of the before a notary public or someone au- party whose attorney is question- thorized to take oaths (like a County ing the witness, even though the Clerk), that the statements in the

32 after-acquired title

document are true. 2) in many real estate in a permanent way, in- states a declaration under penalty cluding planting trees and shrubs, of perjury, which does not require constructing a building, or adding to the oath-taking before a notary, existing improvements. The key is

is the equivalent of an affidavit. that affixed items are permanent and (See: declaration) cannot be picked up and moved away like a washing machine. 2) to sign or affirm: v. what an appeals court does seal, as affix a signature or a seal.

if it agrees with and confirms a lower court’s decision. a fortiori (ah-for-she-ory) prep. Latin for “with even stronger reason,” affirmative action: n. the process of which applies to a situation in which

a business or governmental agency if one thing is true then it can be in-

in which it gives special rights of ferred that a second thing is even hiring or advancement to ethnic mi- more certainly true. Thus, if Abel is norities to make up for past dis- too young to serve as administrator, crimination against that minority. then his younger brother Cain cer- Affirmative action has been the sub- tainly is too young. ject of legal battles on the basis that

it is reverse discrimination against after-acquired property: n. 1) per- Caucasians, but in most challenges sonal or real property acquired by a to affirmative action the programs debtor after he/she has agreed that all have been upheld. In 1995 there his/her property secures a debt. Thus, was substantial political agitation the new property also becomes securi- to repeal or modify federal and state ty for the debt. This includes improve- affirmative action laws. ments to real property which is security on a deed of trust or mortgage and affirmative defense: n. part of an personal property pledged in a securi- answer to a charge or complaint in ty agreement (UCC-1). 2) in bank- which a defendant takes the offense ruptcy, property acquired by the and responds to the allegations with bankrupt person after he/she has filed his/her own charges, which are papers to be declared bankrupt. This called “affirmative defenses.” These after-acquired property is not includ- defenses can contain allegations, ed in the assets which may be used to take the initiative against state- pay any debts which existed at the ments of facts contrary to those stat- time of bankruptcy filing. (See: bank- ed in the original complaint against ruptcy, secured transaction) them, and include various defenses based on legal principles. Many of after-acquired title: n. title to proper- these defenses fall into the “boiler- ty acquired after the owner attempts plate” (stated in routine, non-specif- to sell or transfer the title to another

ic language) category, but one or person before he/she actually got legal more of the defenses may help the title. When the title is acquired by the defendant. (See: defense) seller in this paper shuffle, title automatically goes to the person to whom affix: v. 1) to attach something to it was sold, passing through the

33 after-discovered evidence

person who acquired title “like a is that the principal becomes respon- dose of salts” on its way to the new sible for the acts of the agent, and the purchaser. Example: John signs, ac- agent’s acts are like those of the prin- knowledges, and records a deed of cipal (Latin: respondeat superior). the ranch to Sam, but John has not Factual questions arise such as: was yet received title from the estate of the agent in the scope of employment his late father. When John gets title when he/she ran down the little child, from his father’s estate and records got drunk and punched someone, or it, the after-acquired title goes auto- sold impure wheat? There is also the matically to Sam. (See: title) problem of whether the principal acted in such a way as to make others after-discovered evidence: n. evi- believe someone was his agent—this dence found by a losing party after is known as “apparent” or “ostensi- a trial has been completed and judg- ble” authority. When someone who ment (or criminal conviction) given, is or is not an employee uses compa- also called newly-discovered evi- ny business cards, finance docu- dence. If the evidence absolutely ments, or a truck with the company could not have been discovered at the logo, such use gives apparent author- time of trial, it may be considered on ity as an agent. (See: agent, author- a motion for a new trial. (See: evi- ity, respondeat superior, scope dence, writ of coram nobis) of employment)

age discrimination: n. an employ- agent: n. a person who is authorized to er’s unfair treatment of a current act for another (the agent’s principal) or potential employee up to age through employment, by contract or 70, which is made illegal by the apparent authority. The importance is Age Discrimination Unemploy- that the agent can bind the principal ment Act, first adopted in 1967. by contract or create liability if he/she The claimant’s problem is proof of causes injury while in the scope of the age discrimination, but employers agency. Who is an agent and what is should beware. Even flight atten- his/her authority are often difficult dants in their late 30s have proved and crucial factual issues. (See: that there was age discrimination agency, authority) in replacing them with younger, “more attractive” women. (See: agent for acceptance of service: n. wrongful termination) states require that a corporation name an actual person (usually in the agency: n. the relationship of a per- articles of incorporation or other filing son (called the agent) who acts on with the Secretary of State) who is au- behalf of another person, company, thorized to accept service of any law- or government, known as the prin- suit or claim against the corporation. cipal. “Agency” may arise when an Many larger corporations, particular- employer (principal) and employee ly those which operate in several (agent) ask someone to make a de- states, name a professional agent livery or name someone as an which represents many corporations. agent in a contract. The basic rule (See: corporation)

34 )

alienation of affections age of consent: n. (See: legal age, aleatory: adj. uncertain; usually ap- majority plied to insurance contracts in which payment is dependent on the occur- aggravated assault: n. the crime of rence of a contingent event, such as physically attacking another per- injury to the insured person in an son which results in serious bodily accident or fire damage to his in- harm and/or is made with a deadly sured building. or dangerous weapon such as a gun, knife, sword, ax or blunt in- alias: n. 1) a name used other than the strument. Aggravated assault is given name of a person or reference to usually a felony punishable by a that other name, which may not be an term in state prison. (See: assault) attempt to hide his/her identity (such as Harry for Harold, initials or a maid- agreed statement: n. occasionally en name). (See: a.k.a.) the two parties on opposite sides of a lawsuit or on an appeal from a trial alibi: n. an excuse used by a person judgment will agree upon certain accused or suspected of a crime. In facts and sign a statement to be used the original Latin it means “in an- in court for that purpose. Agreed other place,” which has to be the ul- statements are only used when the timate alibi. only remaining dispute boils down to a question of law and legal argu- alien: 1) n. a person who is not a citizen ment and not of the actual facts. of the country. 2) in the United States any person bom in another country to

agreement: 1) n. any meeting of the parents who are not American and minds, even without legal obliga- who has not become a naturalized cit- tion. 2) in law, another name for a izen. There are resident aliens official- contract including all the elements ly permitted to live in the country and of a legal contract: offer, accep- illegal aliens who have sneaked into tance, and consideration (payment the country or stayed beyond the time or performance), based on specific allowed on a visa. 3) v. to convey title terms. (See: contract) to property.

aid and abet: v. help commit a crime. alienation: n. the transfer of title to A lawyer redundancy since abet real property, voluntarily and com- means aid, which lends credence to pletely. It does not apply to interests the old rumor that lawyers used to other than title, such as a mortgage. be paid by the word. (See: abet) (See: alien)

a.k.a.: prep, abbreviation for “also alienation of affections: n. convincing known as” when someone uses dif- a wife to leave her husband, often for ferent initials, a nickname, a maid- another man, causing the husband to en or married name. Example: lose conjugal relations. This is primar- Harold G. Snodgrass, a.k.a. Harry ily of historic interest, since alienation Snodgrass, a.k.a. H. G. Snodgrass, of affections was a civil wrong for a.k.a. “Snuffy the Snod.” which a deprived husband could sue

35 alimony

the party convincing the wife to allegation: n. a statement of claimed leave, but the right to sue has been fact contained in a complaint (a writ- abolished in almost all states. ten pleading filed to begin a lawsuit), a criminal charge, or an affirmative alimony: n. support paid by one ex- defense (part of the written answer spouse to the other as ordered by a to a complaint). Until each state-

court in a divorce (dissolution) case. ment is proved it is only an allega- Alimony is also called “spousal sup- tion. Some allegations are made “on port” in California and some other information and belief” if the person states. Usually it is paid by the making the statement is not sure of male to his ex, but in some cases a a fact. (See: complaint) wealthy woman may have to pay

her husband, or, in same-sex rela- allege: v. to claim a fact is true, com-

tionships the “breadwinner” may monly in a complaint which is filed to pay to support his/her stay-at-home commence a lawsuit, in an “affirma- former partner. Many counties and tive defense” to a complaint, in a crim- states have adopted formulas for inal charge of the commission of a alimony based on the income of crime or any claim. (See: allegation) each party. Payment of alimony is

usually limited in time based on all the estate I own: n. a phrase from the number of years of marriage. a poorly drafted will which means Lengthy marriages may result in a the possessions owned by the de- lifetime of payments. A substantial ceased at the moment of death, not change in circumstance, such as ill- when the will was written. (See: will) ness, retirement, or loss of income, can be grounds for the court to alluvion: n. an increase in one’s land grant a modification or termination from soil deposited on the shoreline by of the payment. Failure to pay or- natural action of a stream, river, bay dered alimony can result in con- or ocean. (See: accretion) tempt of court citations and even jail time. The level of alimony can alter ego: n. a corporation, organiza- be determined by written agree- tion or other entity set up to provide ment and submitted to the court for a legal shield for the person actually a stipulated order. Income tax-wise, controlling the operation. Proving alimony is deductible as an expense that such an organization is a cover for the payer and charged as in- or alter ego for the real defendant to come the recipient. Child support breaks down that protection, but it is not alimony. (See: child sup- can be difficult to prove complete port, dissolution of marriage, control by an individual. In the case divorce, spousal support) of corporations, proving one is an alter ego is one way of “piercing the aliquot: (al-ee-kwoh) adj. a definite corporate veil.” In a lawsuit com- fractional share, usually applied plaint, it might be stated (pleaded) when dividing and distributing a that “the Hotshot Corporation was dead person’s estate or trust assets. the alter ego of Joseph Snakeoil.” (See: share) (See: pierce the corporate veil)

36 ;

amended pleading

amended only by the parties partici- Facts are stubborn things pating in the contract. If the contract and whatever may be our is written, it can be amended only in wishes, our inclinations, or writing (although, curiously, an oral the dictates of our passions, contract can be amended orally or in they ctmnot alter the state of writing). A pleading can be amended facts and evidence. before it is served on the other party, John Adams, while defend- — by stipulation or agreement in court ing soldiers accused the of between the parties (actually usually Boston Massacre between their attorneys), or upon order of the court. (See: amended alternative pleading: n. a legal fic- complaint, amended pleading, tion in which a party to a lawsuit statute, stipulation) or a defendant charged with a crime can plead two ways which amended complaint: n. what results are inconsistent with each other. when the party suing (plaintiff or pe- Examples: a) someone hurt in an titioner) changes the complaint he/she accident can plead that the other has filed. It must be in writing, and party was negligent or ran into can be done before the complaint is him intentionally, b) “not guilty” served on any defendant, by agree- and “not guilty by reason of insan- ment between the parties (usually ity” (in which there is the implied their lawyers), or upon order of the admission that the defendant com- court. Complaints are amended to cor- mitted the act). rect facts, add new causes of action (bases for the lawsuit), substitute dis- ambiguity: n. when language has covered names for persons sued as more than one meaning. If the am- “Does,” or to properly plead a cause of biguity is obvious it is called action (the legal basis for suing) after “patent,” and if there is a hidden the court has found the complaint in-

ambiguity it is called “latent.” If adequate. (See: amend, cause of ac-

there is an ambiguity, and the orig- tion, complaint, demurrer) inal writer cannot effectively ex-

plain it, then the ambiguity will be amended pleading: n. a changed writ- decided in the light most favorable ten pleading in a lawsuit, including to the other party. complaint or answer to a complaint. Pleadings are amended for various

amend: v. to alter or change by reasons, including correcting facts, adding, subtracting, or substituting. adding causes of action (legal bases for One can amend a statute, a contract a suit), adding affirmative defenses, or or a written pleading filed in a law - responding to a court’s finding that a suit. The change is usually called an pleading is inadequate as a matter of amendment. The legislature will law. Amendments cannot be made amend a statute, the parties to a willy-nilly, but only prior to being

contract can amend it, and a party served, upon stipulation by the parties to a lawsuit can amend his or her or order of the court. (See: amend, own pleading. A contract can be amended complaint, demurrer)

37 American Bar Association

American Bar Association: n. the liberal, the ACLU has defended ex-Ku largest organization of American Klux Klan leader David Duke’s right lawyers, which has no official stand- to be on the ballot and the Ku Klux ing, but is prestigious in formulating Klan’s right to obtain parade permits. guidelines for the practice of law, giv- Address: 132 West 43rd Street, New ing direction to legislation, lobbying York, NY 10036; tel.: (212) 944-9800. for the law profession, and evaluating federal judges. Less then one- American Depository Receipt: n. third of attorneys belong to the called in the banking trade an ADR, A.B.A., and it is often dominated by it is a receipt issued by American the larger urban law firms and those banks to Americans as a substitute who are interested in bar association for actual ownership of shares of for- politics. Nevertheless the A.B.A., its eign stocks. ADRs are traded on leaders, and its legal opinions are American stock exchanges and over- highly respected, and thus it is an the-counter easily without the neces- important bellwether in legal circles. sity of trading the foreign shares It publishes the monthly ABA Jour- themselves. nal, books, specialized reports, and law office management manuals. amicus curiae: n. Latin for “friend of The holds ABA a large annual na- the court,” a party or an organization tional convention. Annual dues run interested in an issue which files a as high as $225 (for attorneys with brief or participates in the argument 10 years experience). Address: 750 in a case in which that party or orga- North Lake Shore Drive, Chicago, IL nization is not one of the litigants. For 60611; tel.: (312) 988-5522. example, the American Civil Liberties Union often files briefs on behalf of a American Civil Liberties Union: n. party who contends his constitutional a membership organization founded rights have been violated, even in 1920 to defend and protect “the though the claimant has his own at- rights of man set forth in the Decla- torney. Friends of the Earth or the ration of Independence and the Con- Sierra Club may file a supporting am- stitution.” The ACLU researches the icus curiae brief in an environmental legalities of public policies and ac- action in which they are not actually tions and defends clients in court parties. Usually the court must give when civil liberties are in question, permission for the brief to be filed and without charge and often as amicus arguments may only be made with the curiae (friend of the court). It has agreement of the party the amicus cu- committees on academic freedom, riae is supporting, and that argument state issues, media rights, free comes out of the time allowed for that speech and association, due process, party’s presentation to the court. equal rights, labor/management relations and privacy. It also finances amnesty: n. a blanket Volition of an projects on voting rights, reproduc- offense by the government, with the tive freedom, women’s rights, and legal result that those charged or con- lesbian and gay rights. While some victed have the charge or conviction people consider I it to be extremely wiped out. Examples: a) the amnesty

38 answer

given to Confederate officials and the estate is probated. Example: soldiers after the Civil War, or b) John Dunn dies in Montana where he President Jimmy Carter’s granting had been living and leaves a parcel of amnesty (under certain conditions) land in downtown Columbus, Ohio. to those who violated the Selective There must be ancillary administra- Service Act in evading the draft tion in Ohio to obtain Ohio court ap- during the Vietnam War. The basis proval and tax agency clearance. for amnesty is generally because Technically ancillary means “aiding” the war or other conditions that or “subordinate.” (See: administra- made the acts criminal no longer tion, probate) exist or have faded in importance. Amnesty is not a pardon as some ancillary jurisdiction: n. a term used believe, since a pardon implies for- in federal courts when the court de- giveness, and amnesty indicates a cides matters not normally under fed-

reason to overlook or forget the of- eral jurisdiction so that it can give a fenses. (See: pardon) judgment on the entire controversy, when the main issue is a federal mat- amortization: n. a periodic payment ter which it is authorized by law to de- plan to pay a debt in which the in- termine. (See: pendent jurisdiction) terest and a portion of the principal are included in each payment by an and: conj. this little word is important established mathematical formula. in law, particularly when compared to

Most commonly it is used on a real or. Most commonly it determines if property loan or financing of an au- one or both owners have to sign docu- tomobile or other purchase. By fig- ments. Example: when an automobile

uring the interest on the declining registration reads that the title is for principal and the number of years of Barney and Sarah Oldfield, then both

the loan, the monthly payments are must sign off upon sale, but if it says

averaged and determined. Since the “or” then only one will have to sign; if

main portion of the early payments Barney dies then the title is automat-

is interest, the principal does not de- ically in Sarah’s name if it reads “or,”

cline rapidly until the latter stages but not if it reads “and.” of the loan term. If the amortization

leaves a principal balance at the annuity: n. 1) an annual sum paid from

close of the time for repayment, this a policy or gift. 2) short for a pur- final lump sum is called a “balloon” chased annuity policy which will pay payment. (See: promissory note) dividends to the owner regularly for

years or for life. ancillary administration: n. administration of an estate’s assets in answer: n. in law, a written pleading another state. An “ancillary admin- filed by a defendant to respond to a istrator” is chosen by the executor complaint in a lawsuit filed and served or administrator of an estate to upon that defendant. An answer gen- handle the property (primarily real erally responds to each allegation in estate) of the deceased’s estate in a the complaint by denying or admitting

state other than the one in which it, or admitting in part and denying in

39 antenuptial (prenuptial) agreement

part. The answer may also com- those obligations. This can be by word prise “affirmative defenses” includ- (“I won’t deliver the rest of the goods” ing allegations which contradict the or “I can’t make any more payments”) complaint or contain legal theories or by action (not showing up with (like “unclean hands,” “contributory goods or stopping payments). The re- negligence” or “anticipatory breach”) sult is that the other party does not which are intended to derail the have to perform his/her obligations claims in the complaint. Sometimes and cannot be liable for not doing so. the is answer in the form of a “gen- This is often a defense to a lawsuit for eral denial,” denying everything. payment or performance on a contract. The answer must be in typed form, One cannot repudiate his obligations follow specific rules of pleading es- and demand that the other person per- tablished by law and the courts, and form. (See: breach, contract) be filed with the court and served on the defendant within a specific antitrust laws: n. acts adopted by Con- statutory time (e.g. 20 or 30 days gress to outlaw or restrict business after service of the complaint). If the practices considered to be monopolis- complaint is verified as under penal- tic or which restrain interstate com- ty of perjury, the answer must be merce. The Sherman Antitrust Act of also. There is a fairly steep filing fee 1890 declared illegal “every contract, for each defendant filing an answer. combination... or conspiracy in re- In short, if served a complaint, one straint of trade or commerce” between should see a lawyer as soon as possi- states or foreign countries. The Clay- ble to prevent a default judgment. ton Antitrust Act of 1914, amended by (See: complaint, demurrer, gen- the Robinson-Patman Act of 1936, eral denial, verification) prohibits discrimination among customers through pricing and disallows antenuptial (prenuptial) agree- mergers, acquisitions or takeovers of ment: n. a written contract between one firm by another if the effect will two people who are about to marry, “substantially lessen competition.” In- setting out the terms of possession terstate commerce includes commerce of assets, treatment of future earn- within a state which affects the flow of ings, control of the property of each, that commerce, thus making it pretty and potential division if the mar- broad. There are also some state laws riage is later dissolved. These are against restraint of trade. The An- fairly common if either or both par- titrust Division of the U.S. Depart- ties have substantial assets, chil- ment of Justice enforces for the feder- dren from a previous marriage, po- al government, but private lawsuits to tential large inheritances, high in- halt antitrust activities have become comes, or have been “taken” by a increasingly popular, particularly prior spouse. since attorney’s fees are awarded to the winning party. This is a legal spe- anticipatory breach: n. when a cialty which has kept some industries party to a contract repudiates (re- relatively honest and made some neges on) his/her obligations under lawyers wealthy. (See: price fixing, that contract before fully performing restraint of trade)

40 appearance

trial court (or agree with the other Ignorance of the law excuses party on an “agreed-upon state- no man. ment”), file briefs with the appeals —John Selden court citing legal reasons for overturning the ruling, and show how apparent authority: n. the appear- those reasons (usually other appeal ance of being the agent of another decisions called “precedents”) relate (employer or principal) with the to the facts in the case. No new evi- power to act for the principal. Since dence is admitted on appeal, for it is under the law of agency the employ- strictly a legal argument. The other er (the principal) is liable for the acts party (Respondent or appellee) usu- of his employee (agent), if a person ally files a responsive brief counter-

who is not an agent appears to an ing these arguments. The appellant outsider (a customer) to have been then can counter that response with given authority by the principal, a final brief. If desired by either then the principal is stuck for the party, they will then argue the case acts of anyone he allows to appear to before the appeals court, which may have authority. This “apparent au- sustain the original ruling, reverse thority” can be given by providing it, send it back to the trial court, or Joe Slobovia (who has no authority reverse in part and confirm in part. to contract) with materials, sta- For state cases there are Supreme tionery, forms, a truck with a com- Courts (called Courts of Appeal in pany logo, or letting him work out of New York and Maryland) which are the company office, so that a reason- the highest appeals courts, and most able person would think Joe had au- states have lower appeals courts as thority to act for the company. Then well. For Federal cases there are the contract or the price quote given Federal Courts of Appeal in ten dif- by Joe and accepted by a third party ferent “circuits,” and above them is

is binding on the company. Appar- the Supreme Court, which selective- ent authority may also arise when ly hears only a few appeals at the Joe works for the company, has no highest level. 2) n. the name for the authority to contract, but appears to process of appealing, as in “he has have been given that authority. Be- filed an appeal.” (See: courts, ap- ware of the salesman who exceeds pendix on courts) his authority or the hanger-on who claims to work for the boss. (See: appear: v. for a party or an attorney to agency, ostensible authority) show up in court. (See: appearance)

appeal: 1) v. to ask a higher court to appearance: n. the act of a party or an reverse the decision of a trial court attorney showing up in court. Once it after final judgment or other legal is established that an attorney repre- ruling. After the lower court judg- sents the person (by filing a notice of

ment is entered into the record, appearance or representation or actu- the losing party (appellant) must ally appearing), the lawyer may make file a notice of appeal, request an appearance for the client on some transcripts or other records of the matters without the client being

41 appellant

present. An attorney makes a “spe- furniture, securities, or in certain cases cial appearance” when he/she is ap- the loss of value (or cost of replace- pearing only for the purpose of what ment) due to damage. This may be nec- is before the court that day—such essary in determining the value of the as arraignment of one charged with estate of someone who has died, partic- a crime. If an attorney makes a ularly when the items must be divided “general appearance” he or she is among the beneficiaries, to determine telling the court that the client is the value of assets for insurance cover- definitely his or hers and the court age, to divide partnership assets, set a can proceed. In the future that at- sales price, determine taxes, or make torney will be required to represent insurance claims. (See: appraiser) the client. Some appearances are voluntary, but most are compulsory appraiser: n. a professional who and are by notice to the party or, if makes appraisals of the value of prop- represented, to his/her attorney. erty. Some specialize in real property, There are variations on appearance and others in other types of assets rules in states, federal courts, local from rugs to rings. A careful, well- court procedures, and according to trained and practical appraiser may the desires of particular judges. be more important than any other (See: appear, general appear- professional in a transaction, since ance, special appearance) one who grossly undervalues or over- values property (or has no knowledge appellant: n. the party who appeals of true value) can wreak havoc. a trial court decision he/she/it has Where possible, a person should ask lost. (See: appeal) for a profile of other clients and train-

ing, and ask whether the appraiser is appellate court: n. a court of ap- “MAI” (Member, Appraisal Insti- peals which hears appeals from tute). (See: appraise) lower court decisions. The term is often used in legal briefs to describe appreciate: v. to increase in value a court of appeals. (See: appeal) over a period of time through the natural course of events, including appellee: n. in some jurisdictions inflation, greater rarity, or public ac- the name used for the party who ceptance. This can include real prop- has won at the trial court level, but erty, jewelry, rare books, art works the loser (appellant) has appealed or securities. (See: appreciation) the decision to a higher court. Thus the appellee has to file a response appreciation: n. the increase in value to the legal brief filed by the appel- through the natural course of events lant. In many jurisdictions the ap- as distinguished from improvements pellee is called the “respondent.” or additions. (See: appreciate) (See: appeal, respondent)

approach: v. short for “approach the appraise: v. to professionally evalu- bench,” as in “may I approach, your ate the value of property includ- honor,” or “will counsel approach?” ing real estate, jewelry, antique (See: approach the bench)

42 arbitration approach the bench: v. an attor- a negative side: an a priori assump- ney’s movement from the counsel tion made without question on the table to the front of the bench (the basis that no analysis or study is nec- large desk at which the judge sits) essary, can be mental laziness when in order to speak to the judge off the the reality is not so certain. record and/or out of earshot of the jury. Since the bench area is the sa- arbiter: n. in some jurisdictions the cred territory of the judge the attor- name for a referee appointed by the ney must ask permission as “may I court to decide a question and report approach the bench,” or simply, back to the court, which must confirm

“may I approach.” If the judge con- the arbiter’s finding before it is bind- sents, then opposing counsel must ing on the parties. be allowed to come forward and participate in the conversation. The arbitrary: adj. not supported by fair purpose can range from explaining or substantial cause or reason. Most the order of witnesses, a technical often it is used in reference to a problem or the need to take a recess judge’s ruling. to go to the restroom. arbitration: n. a mini-trial, which may approach the witness: v. a request be for a lawsuit ready to go to trial, by an attorney to the judge for per- held in an attempt to avoid a court mission to go up to a witness on trial and conducted by a person or a the witness stand to show the panel of people who are not judges. witness a document or exhibit. The arbitration may be agreed to by

“May I approach the witness?” is the parties, may be required by a pro- the typical request, and it is al- vision in a contract for settling dis- most always granted. putes, or may be provided for under statute. To avoid clogged court calen- appurtenant: adj. pertaining to dars the parties often agree to have something that attaches. In real the matter determined by a panel property law this describes any such as one provided by the American right or restriction which goes with Arbitration Association (which has a that property, such as an ease- specific set of rules), a retired judge, ment to gain access across the some other respected lawyer, or some neighbor’s parcel, or a covenant organization that provides these ser- (agreement) against blocking the vices. Usually contract-required arbi- neighbor’s view. Thus, there are tration may be converted into a legal references to appurtenant ease- judgment on petition to the court, un- ment or appurtenant covenant. less some party has protested that (See: real property, easement) there has been a gross injustice, collusion or fraud. Many states provide for a priori assumption: (ah-pree-ory) mandatory arbitration of cases on a n. from Latin, an assumption that is non-binding basis in the hope that true without further proof or need to these “mini-trials” (proceedings) con-

prove it. It is assumed the sun will ducted by experienced attorneys will come up tomorrow. However, it has give the parties a clearer picture of the

43 arbitrator

probable result and lead to accep- but wants to make a legal argument tance of the arbitrator’s decision. only. The word appears most com- (See: arbitrator) monly in appeals briefs.

arbitrator: n. one who conducts an argumentative: adj. the characteriza- arbitration, and serves as a judge tion of a question asked by the oppos- who conducts a “mini-trial,” some- ing attorney which does not really what less formally than a court seek information but challenges the trial. In most cases the arbitrator is truthfulness or credibility of the wit- an attorney, either alone or as part ness. Since such a question is not allow- of a panel. Most court jurisdictions able, often it is the basis of an objec- now have lists of attorneys who tion before the question is answered, serve as arbitrators. Other arbitra- much like irrelevant, immaterial or tors come from arbitration services hearsay. The definition of argumen- which provide lists from which the tative is somewhat vague, and differ- parties can agree on an arbitrator ent judges hear it differently. A sim- (many of whom are retired judges— ple example would be “Do you believe even “People’s Court” Judge Wapn- you should pay your mistress’ rent er is on such a panel in Los Angeles before catching up with delinquent County). There is also the Ameri- child support?” or “Do you think that can Arbitration Association which bloody glove just walked over there?” usually has a panel of attorneys chosen by the association. Profes- arm’s length: adj. the description of sional arbitration services are paid an agreement made by two parties well to move cases along. There are freely and independently of each also arbitrators who are experts on other, and without some special rela- everything from construction to tionship, such as being a relative, maritime damage. In some con- having another deal on the side or tracts there is a provision for such one party having complete control of an expert-type arbitrator named by the other. It becomes important to each side with a third chosen by the determine if an agreement was freely other two. (See: arbitration) entered into to show that the price, requirements, and other conditions arguendo: prep. Latin meaning “for were fair and real. Example: if a man the sake of argument,” used by sells property to his son the value set

lawyers in the context of “assuming may not be the true value since it arguendo” that the facts were as the may not have been an “arm’s length” other party contends, but the law transaction. (See: contract) prevents the other side from pre-

vailing. Example: “assuming ar- arraign: v. to bring a criminal defen- guendo” that the court finds our dant before the court, at which time client, the defendant, was negligent, the charges are presented to him/her, the other party (plaintiff) was so the opportunity to enter a plea (or ask contributorily negligent he cannot for a continuance to plead) is given, a recover damages. In short, the determination of whether the party lawyer is not admitting anything, has a lawyer is made (or whether a

44 articles of impeachment

lawyer needs to be appointed), if nec- izen’s arrest, but can hold someone essary setting the amount of bail, and briefly until a law officer is sum- future appearances are scheduled. moned. A “citizen’s arrest” can be (See: appearance, arraignment) made by any person when a crime has been committed in his/her pres- arraignment: n. the hearing in which ence. However, such self-help arrests a person charged with a crime is ar- can lead to lawsuits for “false arrest” raigned in his or her first appearance if proved to be mistaken, unjustified before a judge. This is the initial ap- or involving unnecessary holding. 2) pearance of a criminal defendant (un- to delay the enforcement of a judgment less continued from an earlier time) in by a judge while errors in the record

which all the preliminaries are taken are corrected. (See: arrest warrant,

care of. (See: arraign) false arrest, Miranda warning, probable cause, warrant) arrears: n. money not paid when due, usually the sum of a series of unpaid arrest warrant: n. a judge’s order to amounts, such as rent, installments law enforcement officers to arrest on an account or promissory note, or and bring to jail a person charged monthly child support. Sometimes with a crime, also called a warrant of these are called “arrearages.” arrest. The warrant is issued upon a sworn declaration by the district at- arrest: v. 1) to take or hold a sus- torney, a police officer or an alleged pected criminal with legal authori- victim that the accused person com-

ty, as by a law enforcement officer. mitted a crime. (See: warrant) An arrest may be made legally based on a warrant issued by a arson: n. the felony crime of intention- court after receiving a sworn state- ally burning a house or other building. ment of probable cause to believe The perpetrators range from mentally

there has been a crime committed ill pyromaniacs to store owners hoping by this person, for an apparent to get insurance proceeds. Historically, crime committed in the presence of arson meant just the burning of a the arresting officer, or upon proba- house, but now covers any structure. A ble cause to believe a crime has death resulting from arson is murder. been committed by that person. Once the arrest has been made, the article: n. a paragraph or section of any officer must give the arrestee writing such as each portion of a will, his/her rights (“Miranda rights”) at corporate charter (articles of incorpora- the first practical moment, and ei- tion), or different sections of a statute. ther cite the person to appear in court or bring him/her in to jail. A articles of impeachment: n. the person arrested must be brought charges brought (filed) to impeach before a judge for arraignment in a a public official. In regard to the short time (e.g. within two business President, Vice President and federal days), and have his/her bail set. A judges, the articles are prepared and private “security guard” cannot ac- voted upon by the House of Representa- tually arrest someone except by cit- tives, and if it votes to charge the

45 articles of incorporation

official with a crime, the trial is held It is not desirable to by the Senate. (See: impeachment) cultivate a respect for the law, so much as for the right. articles of incorporation: n. the —Henry David basic charter of a corporation which Thoreau spells out the name, basic purpose, incorporators, amount and types of assault: 1) v. the threat or attempt to stock which may be issued, and any strike another, whether successful or special characteristics such as not, provided the target is aware of the being non-profit. Each state has its danger. The assaulter must be rea- own system of approval of articles, sonably capable of carrying through prohibits names which are confus- the attack. In some states if the as- ingly similar to those of existing sault is with a deadly weapon (such corporations (so an incorporator as sniping with a rifle), the intended can test the name by applying to victim does not need to know of the reserve the name), sets specific re- peril. Other state laws distinguish be- quirements for non-profits (chari- tween different degrees (first or sec- table, religious, educational, public ond) of assault depending on whether benefit, and so forth), and regu- there is actual hitting, injury or just a lates the issuance of shares of threat. “Aggravated assault” is an at- stock. Articles must be signed by tack connected with the commission the incorporating person or persons of another crime, such as beating a or by the first board of directors. clerk during a robbery or a particu- Major stock issuances require ap- larly vicious attack. 2) n. the act of plication to the Securities and Ex- committing an assault, as in “there was change Commission, the starting an assault down on Third Avenue.” point for filing and approval of arti- Assault is both a criminal wrong, for cles of incorporation is usually the which one may be charged and tried, state’s Secretary of State. There and civil wrong for which the target will be a fee and, often, a deposit of may sue for damages due to the as- an estimated first year’s taxes. sault, including for mental distress. (See: corporation)

assault and battery: n. the combina- as is: adj. description of a condition tion of the two crimes of threat in a sales contract in which the (assault) and actual beating (bat- buyer agrees to take the property tery). They are both also intentional (e.g. house, horse, auto, or appli- civil wrongs for which the party at- ance) without the right to com- tacked may file a suit for damages. plain if it is faulty. However, the (See: assault, battery) buyer must have had the right to reasonable inspection, so that assess: v. to set a value on property, he/she has a chance to find any ob- usually for the purpose of calculating vious deficiency. Intentionally hid- real property taxes. The assessed ing a known defect will make a value is multiplied by the tax rate to seller liable for fraud and serves to determine the annual tax bill. This cancel the “as is” provision. function is usually performed by em-

46 assume

ployees of the County Assessor. In assignment for benefit of creditors: California, under Proposition 13, the n. a method used for a debtor to work new assessment can only take place out a payment schedule to his/her upon sale of real property. creditors through a trustee who receives directly a portion of the debtor’s asset: n. generally any item of property income on a regular basis to pay the that has monetary value, including debtor’s bills. articles with only sentimental value (particularly in the estates of the Associate Justice: n. a member of dead). Assets are shown in balance the U.S. Supreme Court appointed sheets ofbusinesses and inventories by the President and confirmed of probate estates. There are current by the U.S. Senate. There are eight assets (which includes accounts re- Associate Justices and one Chief ceivable), fixed assets (basic equip- Justice. They serve for life or until ment and structures), and such involuntary retirement or removal tangibles as business good will and after being convicted after impeach- rights to market a product. ment. (Only one was ever charged (1805) and he was acquitted.) (See:

assign: 1) v. to transfer to another Supreme Court) person any asset such as real property or a valuable right such as a association: n. any group of people who contract or promissory note. 2) n. have joined together for a particular the person (assignee) who receives purpose, ranging from social to busi- a piece of property by purchase, ness, and usually meant to be a con- gift or by will. The word often shows tinuing organization. It can be formal, up in contracts and wills. with rules and/or bylaws, membership requirements and other trappings assigned risk: n. a person whose of an organization, or it can be a official driving record (accidents collection of people without structure. and tickets) is so poor that he/she An association is not a legally estab- cannot purchase commercial auto lished corporation or a partnership. insurance, and must be assigned To make this distinction the term to a state operated or designated “unincorporated association” is often insurance program at high rates. used, although technically redundant.

assignee: n. a person to whom prop- assume: v. to take over the liability for

erty is transferred by sale or gift, par- a debt on a promissory note, which is ticularly real property. (See: assign) often done by the buyer of real property which has a secured debt upon it.

assignment: n. the act of transfer- Example: Bob Buyer pays part of the ring an interest in property or some price of a piece of real property by tak- right (such as contract benefits) to ing over the debt that Sally Seller had another. It is used commonly by on the property. However, usually the lawyers, accountants, business peo- original owner to whom Sally owes the

ple, title companies and others deal- debt must agree to the assumption. ing with property. (See: assign) (See: assumption)

47 assumption

assumption: n. the act of taking attachment: n. the seizing of money or over a debt as part of payment for property prior to getting a judgment in property which secures that debt. court, in contemplation that the plain- (See: assume) tiff will win at trial (usually in simple cases of money owed) and will require assumption of risk: n. 1) taking a the money or property to cover (satis- chance in a potentially dangerous fy) the judgment. The Supreme Court situation. This is a typical affirma- has ruled that an attachment may be tive defense in a negligence case, in made only after a hearing before a which the defendant claims that the judge in which both sides can argue situation (taking a ski-lift, climbing the danger that the party being sued steep cliff, a riding in an old crowded (defendant) is likely to leave the area car, working on the girders of a sky- or otherwise avoid probable payment. scraper) was so inherently or obvi- A temporary attachment may be al- ously hazardous that the injured lowed by court order without both par- plaintiff should have known there ties being present based on a declara- was danger and took the chance that tion of the party wanting the attach- he/she could be injured. 2) the act of ment that there is clear proof that the contracting to take over the risk, defendant is going to flee. The court such as buying the right to a ship- must also require a bond to cover dam- ment and accepting the danger that ages to the defendant if the attach- it could be damaged or prove unprof- ment proves not to have been neces- itable. (See: affirmative defense) sary. Before the hearing requirement, pre-judgment attachments were com- assured: n. the person or entity that mon in which automobiles and bank is insured, often found in insurance accounts were held by the sheriff contracts. (See: insurance) merely upon the plaintiff seeking the attachment getting a writ of attach- attached: adj. 1) referring to two ment, posting a bond. (See: writ of buildings which are connected, or attachment) equipment which is solidly incorporated into a structure such as bolted attempt: v. and n. to actually try to com- to the floor or wired to the ceiling mit a crime and have the ability to do (and not capable of being removed so. This means more than just thinking without damage to the structure). If about doing a criminal act or planning an item is so attached it probably it without overt action. It also requires has become a part of the real prop- the opportunity and ability. Attempts erty, except for “trade fixtures,” can include attempted murder, at- which can be detached. 2) referring tempted robbery, attempted rape, at- to money or an object which is taken tempted forgery, attempted arson, and by court order based on a sworn a host of other crimes. The person ac- claim by a plaintiff (person suing) cused cannot attempt to commit mur- that the owner-defendant being der with an unloaded gun or attempt sued may soon depart to avoid pay- rape over the telephone. The attempt ment of the debt. (See: attach- becomes a crime in itself, and usually ment, fixture, trade fixture) means one really tried to commit the

48 attorney’s advertising

crime, but failed through no fault of three-year minimum course of study) himself or herself. Example: if a hus- or in seven states has fulfilled exten- band laces his wife’s cocktail with sive other training. Passage of the bar

cyanide, it is no defense that by chance examination qualifies the attorney for the intended victim decided not to that state only and for the federal drink the deadly potion. One defen- courts located in that state (and other dant claimed he could not attempt federal courts upon request). Some rape in an old Model A coupe be- states will accept attorneys from other

cause it was too cramped to make states, but many will not grant this the act possible. The court threw out “reciprocity” and require at least a this defense. Sometimes a criminal basic test for out-of-state attorneys.

defendant is accused of both the Attorneys from other states may prac-

crime (e.g. robbery) and the attempt tice in a limited way, but cannot ap- in case the jury felt he tried but did pear (except on a single case with court not succeed. permission) in state courts (but in federal courts). Graduation from law attest: v. 1) to confirm (usually in school does not make one an attorney. writing) that a document is genuine. There are also patent attorneys who

2) to bear witness that someone ac- can practice in federal patent courts tually signed a document, such as a only and have both legal and engineer-

will. All states require at least two ing training. Most patent attorneys witnesses (three in Vermont) to at- today are regular attorneys who spe- test that a will was signed and de- cialize. (See: attorney at law, court, clared to be a will (except a will reciprocity) written in one’s own handwriting in some states). (See: holographic attorney at law (or attorney-at- will, will, witness) law): n. a slightly fancier way of saying attorney or lawyer.

attestation: n. the act of witnessing a signature for the purpose of declar- Th’ supreme court follows the ing that a document (like a will) was illiction returns. declared by the properly signed and —Finley Peter Dunne, Mr. Doo- signer to be his or her signature. leys Opinions (See: attest)

attorney: n. 1) an agent or someone attorney’s advertising: n. the com- authorized to act for another. 2) a mercials which appear on television or person who has been qualified by a crowd the yellow pages of the tele- state or federal court to provide legal phone book. Until the Supreme Court services, including appearing in ruled (1977) that any restriction on court. Each state has a bar examina- lawyer advertising was an abridge-

tion which is a qualifying test to ment of free speech, advertising by practice law. The examinations vary lawyers was illegal and cause for dis- in difficulty, but cannot be taken cipline or disbarment. One problem is until the applicant is a graduate of that the size and cleverness of the ads an accredited law school (with a are no indication of the quality of the

49 attorney-client privilege

talent, experience, integrity, or level highest ranking legal officer of the of personal attention by the government. The federal Attorney lawyers. It has been said that “the General is chief of the Department of bigger the ad, the worse the attor- Justice appointed by the President ney,” but that is an exaggeration. with confirmation required by the Advertising has led to a “chain Senate, and a member of the Cabinet. store” approach to law representa- He or she is in charge of federal pros- tion and the use of paralegals and ecutions (including overseeing the green attorneys at low wages to numerous regional U.S. Attorneys), handle high volume practices. and numerous cases and matters in which the federal government has a attorney-client privilege: n. the re- legal interest, particularly when the quirement that an attorney may not federal government is a party or fed- reveal communications, conversa- eral regulations are at issue. The At- tions and letters between himself/ torney General also has oversight of herself and his/her client, under the Federal Bureau of Investigation the theory that a person should be and other law enforcement operations able to speak freely and honestly of the Justice Department. Although with his/her attorney without fear elected, state Attorneys General have of future revelation. In a trial, de- similar functions within their states, position, and written questions (in- although the supervision of local pros- terrogatories), the attorney is re- ecutions is seldom exercised unless quired and the client is entitled to there is some gross mismanagement. refuse to answer any question or Different legislatures have assigned produce any document which was varying functions to the state depart- part of the attorney-client contact. ments of justice, including consumer The problem sometimes arises as protection, environmental law, super- to whether the conversation was in vision of trusts and non-profit corpo- an attorney-client relationship. If rations, and other issues in which the a man tells his neighbor who hap- state government may have a partic- pens to be an attorney that he em- ular interest in protecting the citi- bezzled funds, is he doing so while zenry. (See: Solicitor General) seeking legal advice or just chat- ting over the fence (which is the attorney-in-fact: n. someone specifi- test)? If a document was prepared cally named by another through a as part of the legal preparation for written “power of attorney” to act for a client, it usually is a “work prod- that person in the conduct of the ap- uct” and is also privileged. Similar pointer’s business. In a “general privileges exist between pastor power of attorney” the attorney-in- and parishioner and doctor and pa- fact can conduct all business or sign tient. (See: attorney’s work prod- any document, and in a “special power uct, privileged communication, of attorney” he/she can only sign doc- work product) uments or act in relation to special identified matters. Too often people Attorney General: n. in each state sign themselves as attomey-in-fact and the federal government the for relatives or associates without

50 attorney’s work product

any power of attorney. If someone bankruptcy or guardianships), 6) claims to be able to sign for another, some mixture of hourly and contin- a demand to see the written power gent fee or other combination. It is wise of attorney is reasonable and nec- (and often mandatory) for the attor- essary. In real estate matters the ney and the client to have a signed power of attorney must be formally contract for any extensive legal work, acknowledged before a notary pub- particularly in contingent fee cases.

lic so that it can be recorded along Most attorneys keep records of time with the real estate deed, deed of spent on cases to justify fees (and trust, mortgage, or other docu- keep track of when actions were ment. (See: power of attorney) taken), even when the work is not on an hourly basis. A “retainer” is a down payment on fees, often required by It is far better to have lets learn- the attorney in order to make sure he ing and more moral character in or she is not left holding the bag for the practice the law than it is of work performed, or at least as a good to have great learning and no faith indication that the client is seri- morals. ous and can afford the services. On — Vice President Thomas R. the other hand, contingent fees re- Marshall quire limits (often one-third) to protect the unwary client. Attorney fee attorney of record: n. the attorney disputes can be decided by arbitration, who has appeared in court and/or often operated by the local bar associa- signed pleadings or other forms on tion. Attorney’s fees are not awarded behalf of a client. The lawyer re- to the winning party in a lawsuit ex- mains the attorney of record until cept where there is a provision in a some other attorney or the client contract for the fees or there is a substitutes for him/her, he/she is al- statute which provides for an award lowed by the court to withdraw, or of fees in the particular type of case. after the case is closed. Sometimes

lawyers find themselves still on the attorney’s work product: n. written record in cases (such as divorces) materials, charts, notes of conversa- which they believe have long since tions and investigations, and other been completed. materials directed toward preparation of a case or other legal representation. attorney’s fee: n. the payment for Their importance is that they cannot

legal services. It can take several be required to be introduced in court or

forms: 1) hourly charge, 2) flat fee otherwise revealed to the other side. for the performance of a particular Sometimes there is a question as to service (like $250 to write a will), 3) whether documents were prepared by contingent fee (such as one-third of the attorney and/or the client for their the gross recovery, and nothing if use in the case preparation or are doc-

there is no recovery), 4) statutory uments which are independent and fees (such as percentages of an es- legitimate evidence. (See: attorney- tate for representing the estate), 5) client privilege, privileged com- court-approved fees (such as in munication, work product)

51 attractive nuisance doctrine

attractive nuisance doctrine: n. a records of a business or governmen- legal doctrine which makes a per- tal entity, including noting improper son negligent for leaving a piece of or careless practices, recommenda- equipment or other condition on tions for improvements, and a bal- property which would be both at- ancing of the books. An audit per- tractive and dangerous to curious formed by employees is called “inter- children. These have included trac- nal audit,” and one done by an inde- tors, unguarded swimming pools, pendent (outside) accountant is an open pits, and abandoned refriger- “independent audit.” Even an inde- ators. Liability could be placed on pendent audit may be limited in that the people owning or controlling the financial information is given to the premises even when the child the auditor without an examination was a trespasser who sneaked on of all supporting documents. Audi- the property. Basically the doctrine tors will note that the audit was was intended to make people care- based on such limited information ftd about what dangerous conditions and will refuse to sign the audit as a they left untended. Some jurisdic- guarantee of the accuracy of the in- tions (including California) have formation provided. (See: auditor) abolished the attractive nuisance doctrine and replaced it with specific auditor: n. an accountant who con- conditions (e.g. open pit and refrig- ducts an audit to verify the accuracy erators) and would make property of the financial records and account- owners liable only by applying rules ing practices of a business or govern- of foreseeable danger which make ment. A proper audit will point out negligence harder to prove. deficiencies in accounting and other financial operations. Many counties “at will” employment: n. a provision have an appointed or elected auditor found in many employment con- to make independent audits of all tracts which suggest the employee governmental agencies in the county works at the will of the employer, government. The term “auditor” is and which the employers insert in often misused as meaning any ac- order to avoid claims of termination countant. (See: audit) in breach of contract, breach of the covenant of good faith and fair deal- authorities: n. 1) previous decisions ing, or discrimination. Inclusion of by courts of appeal which provide such a term puts the burden on the legal guidance to a court on ques- discharged employee to show that tions in a current lawsuit, which are he or she had reasons to believe the called “precedents.” Legal briefs employment was permanent. The (written arguments) are often called employer uses the “at will” provision “points and authorities.” Thus, a to claim: We could fire the employee lawyer “cites” the previously decided at any time, no matter what the rea- cases as “authorities” for his/her sons. (See: wrongful termination) legal positions. 2) a common term for law enforcement, as in “I’m going to audit: n. an examination by a call the authorities” (i.e. police). (See: trained accountant of the financial brief, cite, decision, precedent)

52 award authority: n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority, including “apparent authority” when a principal gives an agent various signs of authority to make others believe he or she has authority; “express authority” or “limited authority,” which spells out exactly what authority is granted (usually a written set of instructions) “implied authority,” which flows from the position one holds and “general authority,” which is the broad power to act for another. (See: agency, agent, apparent authority, authorize, ostensible authority, principal)

authorize: v. to officially empower someone to act. (See: authority)

avulsion: n. the change in the border of two properties due to a sudden change in the natural course of a stream or river, when the border is defined by the channel of the waterway. The most famous Ameri- can case is the Mississippi River’s change which put Vicksburg on the other side of the river.

award: 1) n. the decision of an arbitrator or commissioner (or any non-judicial arbiter) of a controversy. 2) v. to give a judgment of money to a party to a lawsuit, arbitration, or administrative claim. Example: “Plaintiff is awarded $27,000.” (See: judgment)

53 Bachelor of Laws: n. the degree in dence of uncollectibility or a lengthy law from a law school, abbreviated passage of time. Discharge in bank- to LLB, which means that the recip- ruptcy, the running of the statute of ient has successfully completed limitations to bring a lawsuit, disap- three years of law studies in addi- pearance of the debtor, a pattern of tion to at least three undergraduate avoiding debts or the destruction of years on any subject. Since the early the collateral security can all make a 1960s most accredited law schools debt “bad.” For income tax deduction grant a Juris Doctor (JD) degree in- purposes such a debt in business is stead of the LLB. Law schools which deductible against ordinary income made the switch allowed the prior (found in federal income tax Form holders of the LLB to claim the JD 1040 Schedule C) and such a person- retroactively. (See: Juris Doctor) al debt is deductible against short- term capital gains. A debt due for services rendered is not a bad debt Laws grind the poor, and rich for tax purposes, since there is just men rule the lau>. no income on which to be taxed. —Oliver Goldsmith

bad faith: 1) n. intentional dishonest back-to-back life sentences: n. act by not fulfilling legal or contractu- slang for consecutive life terms imal obligations, misleading another, en- posed by a judge when there were tering into an agreement without the two crimes committed by the de- intention or means to fulfill it, or vio- fendant, both of which can result lating basic standards of honesty in in punishment of a life term, such dealing with others. Most states recog- as two murders, or a murder and a nize what is called “implied covenant rape involving aggravated assault. of good faith and fair dealing” which is The purpose of making the sen- breached by acts of bad faith, for which tences subsequent (“back-to-back”) a lawsuit may be brought (filed) for the and not “concurrent” (served at the breach (just as one might sue for same time) is to lessen the chance breach of contract). The question of of parole, since if parole were per- bad faith may be raised as a defense to missible after 25 years, the defen- a suit on a contract. 2) adj. when there dant would then begin the second is bad faith then a transaction is called “life” sentence and would wait an- a “bad faith” contract or “bad faith” other 25 years for a parole hearing. offer. (See: clean hands doctrine, (See: concurrent sentence) fraud, good faith)

debt: bad n. an uncollectible debt. bail: 1) n. the money or bond put up to The problem is to determine when secure the release of a person who has a debt is realistically dead, which been charged with a crime. For minor means there must be some evi- crimes bail is usually set by a schedule

54 bailiff

which will show the amount to be who specializes in providing bail paid before any court appearance bonds for people charged with crimes (arraignment). For more serious and awaiting trial in order to have crimes the amount of bail is set by them released. The offices of a bail the judge at the suspect’s first court bondsman (or woman) are usually appearance. The theory is that bail found close to the local courthouse and

guarantees the appearance of the jail, his/her advertising is found in the defendant in court when required. yellow pages, and some make “house While the Constitution guarantees calls” to the jail or hand out cards in the right to reasonable bail, a court court. Bail bondsmen usually charge may deny bail in cases charging the suspect a fee of 10 percent of the murder or treason, or when there is amount of the bond. If a bail bonds- a danger that the defendant will flee man has reason to believe a person he

or commit mayhem. In some traffic bailed out is about to flee, he may re- matters the defendant may forfeit voke the bond and surrender his client

the bail by non-appearance since to jail. (See: bail, bail bond) the bail is equivalent to the fine. 2) v. to post money or bond to secure bailee: n. a person, also called a custo-

an accused defendant’s release. This dian, with whom some article is left, is generally called “bailing out” a usually pursuant to a contract (called prisoner. (See: bail bond, bail a “contract of bailment”), who is re- bondsman, own recognizance) sponsible for the safe return of the article to the owner when the contract is bail bond: n. a bond provided by an fulfilled. These can include banks insurance company through a bail holding bonds, storage companies bondsman acting as agent for the where furniture or files are deposited, company, to secure the release from a parking garage, or a kennel or horse jail of an accused defendant pending ranch where an animal is boarded. trial. Usually there is a charge of 10 Leaving goods in a sealed rented box, percent of the amount of the bond like a safe deposit box, is not a bail- (e.g. $100 for a $1,000 bond) and ment, and the holder is not a bailee often the defendant must put up since he cannot handle or control the some collateral like a second deed of goods. (See: bailment, bailor) trust or mortgage on one’s house.

Upon acquittal, conviction, or other bailiff: n. 1) a court official, usually a conclusion of the case, the bail bond deputy sheriff, who keeps order in the is “exonerated” and returned to the courtroom and handles various er- insurance company. If the person rands for the judge and clerk. 2) in who has been bailed out disappears some jurisdictions, a person appointed and does not appear in court, the by the court to handle the affairs of an bond funds will be forfeited unless incompetent person or to be a “keeper” the defendant is found and re- of goods or money pending further

turned. (See: bail, bail bondsman) order of the court. “Bailiff" has its origin in Old French and Middle English bail bondsman: n. a professional for custodian, and in the Middle Ages agent for an insurance company was a significant position in the

55 bailment

English court system. The word bait and switch: n. a dishonest sales “bailiwick” originally meant the ju- practice in which a business adver- risdictional territory of a bailiff. tises a bargain price for an item in order to draw customers into the bailment: n. 1) the act of placing store and then tells the prospective

property in the custody and control buyer that the advertised item is of another, usually by agreement of poor quality or no longer available in which the holder (bailee) is re- and attempts to switch the customer sponsible for the safekeeping and to a more expensive product. Elec- return of the property. Examples: tronic items such as stereos, televi- bonds left with the bank, autos sions, or telephones are favorites, parked in a garage, animals lodged but there are also loan interest rates with a kennel, or a storage facility which turn out to be only for short (as long as the goods can be moved term or low maximums, and then and are under the control of the the switch is to a more expensive

custodian). While most are “bail- loan. In most states this practice is ments for hire” in which the custo- a crime and can also be the basis dian (bailee) is paid, there is also for a personal lawsuit if damages “constructive bailment” when the can be proved. The business using circumstances create an obligation “bait and switch” is an apt target for upon the custodian to protect the a class action since there are many goods, and “gratuitous bailment” customers but each transaction in which there is no payment, but scarcely warrants the costs of a sep- the bailee is still responsible, such arate suit. as when a finder of a lost diamond ring places it with a custodian balance due: n. the amount of a pending finding the owner. 2) the debt still owed on an account or the goods themselves which are held principal owed on a promissory note. by a bailee. Thus, the “bailor” In the case of a promissory note, the (owner) leaves the “bailment” balance due is not the sum of install- (goods) with the “bailee” (custodi- ments due, since these include amor- an), and the entire transaction is a tized interest, but may be the princi- “bailment.” (See: bailee, bailor) pal due without further interest.

bailor: n. a person who leaves goods balance sheet: n. the statement of the in the custody of another, usually assets and the liabilities (amounts under a “contract of bailment,” in owed) of a business at a particular which the custodian (“bailee”) is time usually prepared each month, responsible for the safekeeping quarter of a year, annually, or upon and return of the property. Some- sale of the business. It is intended times the bailor is not the owner to show the overall condition of the but a person who is a servant of business. A balance sheet should not the owner or a finder (say, of jew- be confused with a profit and loss elry) who places the goods with the statement, which is an indicator of bailee until the owner is found. the current activity and health of (See: bailee, bailment) the business.

56 bankruptcy

bank: n. 1) an officially chartered bankruptcy: n. a federal system of institution empowered to receive statutes and courts which permits deposits, make loans, and provide persons and businesses which are in- checking and savings account ser- solvent (debtors) or (in some cases) vices, all at a profit. In the United face potential insolvency, to place States banks must be organized his/her/its financial affairs under the under strict requirements by either control of the bankruptcy court. The the federal or a state government. procedure is that when the debtor’s Banks receive funds for loans from debts exceed his/her/its assets or abil- the Federal Reserve System pro- ity to pay, the debtor can file a peti- vided they meet safe standards of tion with the bankruptcy court for

operation and have sufficient fi- voluntary bankruptcy or the debtor’s nancial reserves. Bank accounts unpaid creditors can file an “involun- are insured up to $100,000 per ac- tary” petition to force the debtor count by the Federal Deposit In- into bankruptcy, although voluntary surance Corporation. Most banks bankruptcy is far more common. The are so-called “commercial” banks most common petition is under Chap- with broad powers. In the east and ter 7, in which a trustee is appointed midwest there are some “savings” by the court, the current assets are banks which are basically mutual counted up by the trustee (with many banks owned by the depositors, of them exempt from bankruptcy), concentrate on savings accounts, who pays debts to the extent possible and place their funds in such safe with priority for taxes, then secured investments as government bonds. debts (mortgages or some judgments), Savings and loan associations have and finally unsecured debts. Then the been allowed to perform some court adjudicates (officially declares) banking services under so-called the debtor a bankrupt and discharges deregulation in 1981, but are not the unpayable debts, to the loss of the full-service commercial banks and creditors. Exempt from sale to pay lack strict regulation. Mortgage debts are a portion of the value of a loan brokers and thrift institutions home (equal to a homestead), secured (often industrial loan companies) notes that can be kept current, an au- are not banks and do not have in- tomobile, tools of the trade, furniture, surance and governmental control. and some other items. The concept is Severe losses to customers of these to give someone a fresh start, but it institutions have occurred in times has often led to careless, profligate of economic contraction or due to business operations and casual run- insider profiteering or outright ning up bills with those giving credit fraud. Credit unions are not banks, being badly hurt by bankruptcies. but are fairly safe since they are Not dischargeable in bankruptcy are operated by the members of the in- alimony and child support, taxes, and dustry, union or profession of the fraudulent transactions. depositors and borrowers. 2) a Filing a bankruptcy petition auto- group of judges sitting together as matically suspends all existing legal an appeals court, referred to as “in actions (even on the eve of trial or bank” or “en banc.” judgment, or on the day of foreclosure

57 bankruptcy court

on real property), and is often used bankruptcy court: n. the specialized to forestall foreclosure or imposition federal court in which bankruptcy of judgment. After 45 or more days matters under the Federal Bankrupt- a creditor with a debt secured by cy Act are conducted. There are sev- real or personal property can peti- eral bankruptcy courts in each state, tion the court to have the “automat- and each one’s territory covers sever- ic stay” of legal rights removed and al counties. The office of a court clerk, a foreclosure to proceed. Upon adju- where petitions can be filed, is located dication (officially declared) as a next to each court. (See: bankrupt- bankrupt a party cannot file for cy, bankruptcy proceedings) bankruptcy again for seven years. Chapter 11 bankruptcy allows a bankruptcy proceedings: n. the bank- business to reorganize and refi- ruptcy procedure is: a) filing a petition nance to be able to prevent final in- (voluntary or involuntary) to declare a solvency. Often there is no trustee, debtor person or business bankrupt, but a “debtor in possession,” and under Chapter 7, Chapter 11, or Chap- considerable time to present a plan ter 13, to allow reorganization or refi- of reorganization. Sometimes this nancing under a plan to meet the debts works, but often it is just a bottom- of the party unable to meet his/her/its less pit of more debt and delay. The obligations. The petition is supposed to final plan often requires creditors to include a schedule of debts, assets and take only a small percentage of the income potential, b) A hearing called debts due (what is owed them) or to “first meeting of creditors” with notice take payment over a long period of to all known creditors. This is often time. Chapter 13 is similar to Chap- brief and usually results in the judge ter 11, but is for individuals to work assigning the matter to a professional out payment schedules, which is trustee, c) Later the trustee reports more likely to be worthwhile. and there is a determination of what Bankruptcy law has become a debts are dischargeable, what assets specialty due to complex regula- are exempt, and what payments are tion as well as administration. Ini- possible, d) If there are assets available tial fees must be paid front up by then the creditors are requested in the petitioner or the creditors, but writing to file a “creditor’s claim.” e) much of the assets be may eaten There may be other hearings, reports, up by the court-approved fees of proposals, hearings on claims of fraud- the trustees and attorneys (al- ulent debts, petitions for removing the though often the attorneys find no stay on foreclosures and other matters. assets available for payment). f) Debts secured by property or by judg- There are some limited state ment lien are paid up to the amount of bankruptcy laws to aid debtors, assets and funds available, g) The final but they are seldom employed, step is a hearing on discharge of the except to create creditors’ commit- bankrupt, which wipes out unsecured tees, which can be developed debts (or a pro rata share of them). voluntarily. (See: bankruptcy Under Chapter 11 and 13 proceed- court, bankruptcy proceedings, the process will be more drawn ings, trustee in bankruptcy) out and can go on for years as plans

58 bargain

are proposed, possibilities of refi- working with the local courts on rules. nancing are considered and, There is also theAmerican BarAssoci- in effect, the debtor tries either ation, a national voluntary organiza- to legitimately get out from under tion of attorneys. (See: appendix his/her/its financial woes or delay State BarAssociations) while current profits are made and prayers for economic salvation bar examination: n. the examination are made. (See: bankruptcy, given in each state by either the high- bankruptcy court, claim in est court or, if an integrated bar, by bankruptcy) the state bar association (subject to appeal to the State Supreme Court) for bar. 1) n. collectively all attorneys, as admission as an attorney. The exam- the bar, which comes from the bar inations vary in difficulty, but most in- or railing which separates the gener- clude up to three days of questions, al spectator area of the courtroom many of which are essay type posing from the area reserved for judges, factual situations which call upon an attorneys, parties and court officials. ability to identify and analyze the legal A party to a case or criminal defen- issues and to demonstrate substan- dant is before the bar when he/she tial knowledge ofvarious areas of the

is inside the railing. 2) v. to prevent law. Usually there are some multiple some legal maneuver, as in bar- choice or true and false questions, dering a lawsuit due to the running pending on the state. The pass/fail rate

out of the time to file. 3) to prohibit varies from state to state and year to and keep someone from entering a year. Some states, like California, have room, building, or real property. a pass rate of below 60 percent of ap- plicants, but do allow several tries. Other states pass 90 percent, lb quali- I would pray, O Lord, never to di- fyonemusthavereceivedalaw degree minish my passion for a client’s (LLB or JD) from an established law cause, for from it springs the school or, in seven states, prove that flame which leaps across thejury he/she studied for several years in law box and sets fire to the conviction school and/or with an attorney. Very ofthejurors. few non-graduates pass the examina- —Louis Niter, A Lawyer’s Prayer tion. Some states require a special bar examination for attorneys from other bar association: n. an organization of states, while others recognize out-of-

lawyers. There are two types, one of state attorneys ifthey have established which is official and usually called local residence. Passing a state s bar an integrated bar, which is quali- examination will automatically qualify fied by the particular state s highest the attorney to practice in the federal court to establish rules for admission courts in that district. (See: attorney) and conduct. There are also local bar

associations by city or county which bargain: n. 1) a mutual agreement or are unofficial and voluntary, but do contract between two parties which is conduct the business of attorneys, voluntary and involves the exchange such as settling fee disputes and of consideration (money, goods,

59 barratry

services, or a promise for a promise). ple: Daniel Oldboy buys a house for 2) a supposed good deal. (See: agree- $30,000, and when he dies the place is ment, consideration, contract) worth $250,000. When his son and heir receives the property, the son can barratry: n. creating legal business sell it for $250,000 with no capital by stirring up disputes and quar- gains tax, but if Dad had sold it before rels, generally for the benefit of the his death there would have been cap- lawyer who sees fees in the matter. ital gains on $220,000. It can be more Barratry is illegal in all states and complicated than this simple example subject to criminal punishment with assets jointly held with a spouse, and/or discipline by the state bar, exchanges of property, and other vari- but there must be a showing that ations which require professional as- the resulting lawsuit was totally sistance. (See: adjusted basis) groundless. There is a lot of border-line barratry in which attor- battery: n. the actual intentional strik- neys, in the name of being tough or ing of someone, with intent to harm, or protecting the client, fail to seek in a “rude and insolent manner” even avenues for settlement of disputes if the injury is slight. Negligent or or will not tell the client he/she has careless unintentional contact is not no legitimate claim. battery no matter how great the harm. Battery is a crime and also the basis barrister: n. in the United States a for a lawsuit as a civil wrong if there is fancy name for a lawyer or attorney. damage. It is often coupled with “as- In Great Britain, there is a two-tier sault” (which does not require actual bar made up of solicitors, who per- touching) in “assault and battery.” form all legal tasks except appear- (See: assault, assault and battery) ance in court, and barristers, who try cases. Some solicitors will “take beach bum trust provision: n. a re- the silk” (quaint expression) and be- quirement in a trust that a beneficia- come barristers. (See: solicitor) ry can only receive profit from the trust equal to the amount he/she basis: n. the original cost of an asset earns. This provision is intended to to be used to determine the amount encourage the beneficiary to work, of capital gain tax upon its sale. An and not just lie around the beach and “adjusted basis” includes improve- live off the trust. (See: trust) ments, expenses, and damages between the time the original basis bearer: n. anyone holding something, (price) is established and transfer such as a check, promissory note, (sale) of the asset. “Stepped up bank draft, or bond. This becomes basis” means that the original basis important when the document (gen- of an asset (especially real proper- erally called a “negotiable instru- ty) will be stepped up to current ment”) states it is “payable to bear- value at the time of the death of the er,” which means whoever holds this owner, and thus keep down capital paper can receive the funds due on gain taxes if the beneficiary of the it. (See: bearer paper, negotiable dead person sells the asset. Exam- instrument)

60 benefit of counsel bearer paper: n. negotiable instru- beneficial use: n. the right to enjoy ment (e.g. a bond) which is payable the use of something (particularly to whoever has possession (the such pleasant qualities as light, air, bearer). (See: bearer) view, access, water in a stream) even though the title to the property in belief: n. convinced of the truth of a which the use exists is held by an- statement or allegation. In a com- other. (See: use) mon phrase “upon information and belief,” the so-called belief is based beneficiary: n. a broad definition for only on unconfirmed information, any person or entity (like a charity)

so the person declaring the belief is who is to receive assets or profits from hedging his/her bet as to whether an estate, a trust, an insurance policy

the belief is correct. (See: infor- or any instrument in which there is mation and belief) distribution. There is also an “incidental beneficiary” or a “third party

bench: n. 1) general term for all beneficiary” who gets a benefit al- judges, as in “the bench,” or for the though not specifically named, such particular judge or panel ofjudges, as someone who will make a profit if as in an order coming from the a piece of property is distributed to “bench.” 2) the large, usually long another. (See: incidental beneficia- and wide desk raised above the ry, third-party beneficiary) level of the rest of the courtroom,

at which the judge or panel of benefit: 1) n. any profit or acquired

judges sit. (See: approach the right or privilege, primarily through bench, court, judge, sidebar, a contract. 2) in worker’s compensa- witness stand) tion the term “benefit” is the insurance payment resulting from a fatal bench warrant: n. a warrant is- accident on the job, while “compensa- sued by a judge, often to command tion” is for injury without death. 3) in someone to appear before the income taxation, anything that judge, with a setting of an amount brings economic gain. 4) “fringe ben- of bail to be posted. Often a bench efits” may be part of the compensa- warrant is used in lesser matters tion for employment other than to encourage the party to appear in salary or wages, and may include court. (See: warrant) health or disability insurance. 5) v. to gain something, as “This sale will beneficial interest: n. the right of benefit Ken Murray.” (See: contract, a party to some profit, distribution, Workers’ Compensation Act) or benefit from a contract or trust. A beneficial interest is distin- benefit of counsel: n. having the op- guished from the rights of someone portunity to have an attorney and like a trustee or official who has legal advice in any legal matter, but responsibility to perform and/or particularly while appearing in court. title to the assets but does not If someone makes an appearance or share in the benefits. (See: con- agrees to a contract without benefit tract, trust) of counsel, when a lawyer would be

61 bequeath

either essential or at least quite Sometimes referred to as “to a moral valuable, he/she may challenge the certainty,” the phrase is fraught court rulings or the contract terms, with uncertainty as to meaning, but usually without success since fail- try: “you better be damned sure.” By ure to have an attorney is the per- comparison it is meant to be a son’s own fault. tougher standard than “preponderance of the evidence,” used as a test bequeath: v. to give personal prop- to give judgment to a plaintiff in a erty under provisions of a will (as civil (non-criminal) case. (See: con- distinct from “devise,” which is to viction, moral certainty, reason- give real estate). 2) the act of giv- able doubt) ing any asset by the terms of a will. (See: bequest, will) BFP: n. slang for bona fide purchaser, which means someone who pur- bequest: n. the gift of personal prop- chased something (e.g. a bond, a erty under the terms of a will. Be- promissory note, or jewelry) with no quests are not always outright, but reason to be suspicious that it was may be “conditional” upon the hap- stolen, belonged to someone else, or pening or non-happening of an was subject to another party’s claim. event (such as marriage), or “execu- The BFP must have paid a full and tory” in which the gift is contingent fair price and have received the item upon a future event. Bequest can be in the normal course of business, of specific assets or of the “residue” otherwise he/she might have some (what is left after specific gifts have doubts (“wanta buy a watch, cheap?” been made). (See: legacy, will) from a character on a street comer). (See: bona fide purchaser) best evidence rule: n. the legal doctrine that an original piece bias: n. the predisposition of a judge, ar- of evidence, particularly a docu- bitrator, prospective juror, or anyone ment, is superior to a copy. If the making a judicial decision, against or original is available, a copy will in favor of one of the parties or a class not be allowed as evidence in a of persons. This can be shown by retrial. (See: evidence) marks, decisions contrary to fact, reason or law, or other unfair conduct. bestiality: n. copulation by a human Bias cam be toward an ethnic group, with an animal, which is a crime in homosexuals, women or men, defen- all states as a “crime against na- dants or plaintiffs, large corporations, ture.” (See: crime against nature) or local parties. Getting a “hometown”

decision is a form of bias which is the beyond a reasonable doubt: adj. bane of the out-of-town lawyer. There part of jury instructions in all is also the subtle bias of some male criminal trials, in which the jurors judges in favor of pretty women. Obvi- are told that they can only find ous bias is a ground for reversal on ap- the defendant guilty if they are peal, but it is hard to prove, since convinced “beyond a reason- judges are usually careful to display able doubt” of his or her guilt. apparent fairness in their comments.

62 bilateral contract

The possibility of juror bias is on the amount of damages. If the explored in questioning at the be- court rules there is no liability, then ginning of trial in a questioning the amount of damages is meaning- process called voir dire. (See: homeless and further trial is necessary.

towned, voir dire ) (See: bifurcation) bid: n. an offer to purchase with a bifurcation: n. the act of a judge in specific price stated. It includes of- dividing issues before a trial so that fers during an auction in which one issue will be ruled upon before people compete by raising the bid hearing evidence on the other issue. until there is no more bidding, or (See bifurcate) contractors offer to contract to build a project or sell goods or ser- bigamy: n. the condition of having two vices at a given price, with usually wives or two husbands at the same the lowest bidder getting the job. time. A marriage in which one of the (See: contract) parties is already legally married is bigamous, void, and ground for annulment. The one who knowingly en- [The legal profession is] ever ters into a bigamous marriage is illustrating the obvious, ex- guilty of the crime of bigamy, but it plaining the evident, expati- is seldom prosecuted unless it is part ating the commonplace. of a fraudulent scheme to get anoth- —Prime Minister Benjamin er’s property or some other felony. Disraeli Occasionally people commit bigamy accidentally, usually in the belief bifurcate: v. the order or ruling of a that a prior marriage had been dis- judge that one issue in a case can be solved. The most famous case in the tried to a conclusion or a judgment United States was that of Andrew given on one phase of the case with- Jackson and his wife Rachel Robards. out trying all aspects of the matter. Ms. Robards’ husband had applied

A typical example is when the judge for a divorce, but it had not been

will grant a divorce judgment with- granted (it required legislative ap- out hearing evidence or making a proval) at the time of her second ruling on such issues as division of marriage. She completed the divorce marital property, child custody or and then the Jacksons remarried.

spousal support (alimony). Thus the Jackson was embarrassed for life parties can be free of each other over his carelessness (he was a

promptly while still fighting over lawyer and a judge), which had hurt other issues at their leisure. In a his wife’s reputation. Having several negligence case when the question wives at the same time is called of responsibility (liability) is clearly polygamy and being married to sev-

in doubt or rests on some legal tech- eral husbands is polyandry. nicality, the court may bifurcate the issues and hear evidence on the de- bilateral contract: n. an agreement in fendant’s liability and decide that which the parties exchange promises issue before going ahead with a trial for each to do something in the future.

63 bill

“Susette Seller promises to sell her bill of lading: n. a receipt obtained by house to Bobby Buyer and Buyer the shipper of goods from the carrier promises to pay Seller $100,000 for (trucking company, railroad, ship or it.” This is distinct from a “unilat- air freighter) for shipment to a partic- eral contract,” in which there is a ular buyer. It is a contract protecting promise to pay if the other party the shipper by guaranteeing payment chooses to do something. “I’ll pay and satisfies the carrier that the re- you $1,000 if you’ll stop smoking.” cipient has proof of the right to the These are basically academic dif- goods. The bill of lading is then sent to ferences which are only important the buyer by the shipper upon pay- in the rare instance in which one ment for the goods, and is thus proof person has acted in anticipation that the recipient is entitled to the that the other will have obligations goods when received. Thus, if there is as well. (See: contract, unilater- no bill of lading, there is no delivery. al contract)

bill of particulars: n. a written item- bill: n. 1) what is commonly called a ization of claims which a defendant “check” by which the signer requires in a lawsuit can demand of the plain- the bank to pay a third party a sum tiff to find out what are the details of money. This is a holdover from of the claims. Thus, a general claim the days when a person would draw that defendant owes plaintiff $50,000 up a “bill of exchange.” 2) a state- for goods delivered or damaged must ment of what is owed. 3) any paper be broken down so the defendant can money. a 4) legislative proposal for understand and defend. In criminal enactment of a law. It is called a bill cases it can give an accused person until it is passed and signed, at notice of the factual bases for the which time it is a law (statute) and charges. is no longer referred to as a bill. 5) an old-fashioned term for various Bill of Rights: n. the first ten amend- filed documents in lawsuits or crim- ments to the federal Constitution de- inal prosecutions, which is falling manded by several states in return for into disuse. ratifying the Constitution, since the failure to protect these rights was a bill of attainder: n. a legislative act glaring omission in the Constitution which declares a named person as adopted in convention in 1787. guilty of a crime, particularly trea- Adopted and ratified in 1791, the Bill son. Such bills are prohibited by Ar- of Rights are: ticle I, Section 9 of the Constitution. First: Prohibits laws establishing a religion (separation of church and bill of exchange: n. a writing by a state), and bans laws which would re- party (maker or drawer) ordering strict freedom of religion, speech, another (payor) to pay a certain press (now interpreted as covering all amount to a third party (payee). It media), right to peaceably assemble is the same as a draft. A bill of and petition the government. exchange drawn on a bank account is Second: A “well regulated Militia, a “check.” being necessary to the security of a

64 binder free state, the right of the people to jury shall be trier of the fact in such keep and bear Arms, shall not be cases as required by Common Law. infringed.” This is often claimed as Eighth: No excessive bail, excessive giving the unfettered right of indi- fines or “cruel and unusual punish- viduals to own guns, but is actually ment.” Note that denial of bail in limited to the right of “the” people, murder cases or when the accused meaning the body politic or the may flee is not “excessive,” and capital public as a group, to bear arms as punishment (like the gas chamber) militiamen. may be cruel but not necessarily Third: No quartering of soldiers unusual. in private homes without the own- Ninth: Stating these rights shall er’s consent. not be construed to deny that other Fourth: No unreasonable search rights are retained by the people. and seizures, no warrants without Tenth: Powers given to the United probable cause, and such warrants States (central government) and not must be upon “oath or affirmation” prohibited to the states, are reserved and describe the place to be to the states or to the people. searched or the person or things to be taken. In colonial America Esq. seems Fifth: Prohibits criminal charges to have been confined to jus- for death penalty (“capital punish- tices ofthe peace, who acquired ment”) or any other “infamous” thereby the informal title of crime (felony) without indictment Squire, but inasmuch as every by a Grand Jury except under mar- lawyer ofany dignity became a tial law in the time of war or “public justice almost automatically it danger”; no person may be tried was eventually applied to most twice for the same offense; no one members ofthe bar. may be compelled to be a witness —if. L. Mencken against himself (“taking the Fifth”), no one can be deprived of life, liberty or property without “due process bill of sale: n. a written statement at- of law”; no taking of property for testing to the transfer (sale) of goods, public use (eminent domain) with- possessions, or a business to a buyer. out just compensation. These rights It is useful to show that the buyer have become applicable to states now has ownership and to detail what through the 14th Amendment as was actually purchased. A bill of sale well as state constitutions. may accompany an agreement which Sixth: Rights of criminal defen- states the agreed-upon terms of sale, dants to a speedy and public trial, including the date of transfer, the impartial local jury, information on price, timing of payment and other the nature and cause of accusation, provisions. (See: contract) confront witnesses against him, right to subpena witnesses, and binder: n. a written statement of the have counsel. key terms of an agreement, in par- Seventh: Juries may be demand- ticular insurance policies, so that ed in civil cases (over $20) and the the insured as well as lenders can

65 blackmail

be assured there is valid and swamp land, non-existent gold strikes adequate insurance coverage. (See: and dry oil wells, or who have no as- insurance) sets besides a post office box. Blue sky laws require that corporations adver- blackmail: n. the crime of threatening tising and selling shares to the public to reveal embarrassing, disgraceful must get approval from the state cor- or damaging facts (or rumors) about porations commissioner and/or the Se- a person to the public, family, curities and Exchange Commission spouse or associates unless paid off after providing details on financing to not carry out the threat. It is one and management. The term comes form of extortion (which may in- from the intent to prevent the exis- clude other threats such as physical tence of corporations that have noth- harm or damage to property). (See: ing behind them but “blue sky.” (See: extortion) corporation, shares, stock)

blank endorsement: n. endorse- board of directors: n. the policy man- ment of a check or other negotiable agers of a corporation or organization paper without naming the person elected by the shareholders or mem- to whom it would be paid. (See: ne- bers. The board in turn chooses the of- gotiable instrument) ficers of the corporation, sets basic policy, and is responsible to the share- blue laws: n. state or local laws holders. In small corporations there which prohibit certain activities, are usually only three directors. In particularly entertainment, sports larger corporations board members or drinking on Sunday, to honor provide illustrious names, but the the Christian Sabbath. They were company is often run by the officers employed in the New England and middle-management who have colonies controlled by the puritans the expertise. (See: corporation) who kept the Sabbath sacred.

“Blue” was slang for puritanical. boilerplate: n., adj. slang for provi- In most cases blue laws have been sions in a contract, form or legal repealed, but vestiges remain at pleading which are apparently rou- least informally. tine and often preprinted. The term comes from an old method of print- blue ribbon jury: n. a jury selected ing. Today “boilerplate” is commonly from prominent, well-educated citi- stored in computer memory to be re- zens, sometimes to investigate a trieved and copied when needed. particular problem such as civic cor- A layperson should beware that the ruption. Use of blue ribbon juries in party supplying the boilerplate form criminal cases violates the right to usually has developed supposedly have a jury of one’s peers. “standard” terms (some of which may not apply to every situation) to blue sky laws: n. laws intended to favor and/or protect the provider. protect the public from purchasing stock in fraudulent companies that boiler room: n. a telephone bank op- lack substance, such as those selling eration in which fast-talking tele-

66 book value

marketers or campaigners attempt whomever is holding the bond. 2) to sell stock, services, goods, or written guaranty or pledge which is candidates and act as if they are purchased from a bonding company calling from an established compa- (usually an insurance firm) or by ny or brokerage. Often the tele- an individual as security (called a marketers are totally fraudulent “bondsman”) to guarantee some form and in violation of security laws. of performance, including showing up in court (“bail bond”), properly bona fide: adj. Latin for “good faith,” complete construction or other con-

it signifies honesty, the “real thing” tract terms (“performance bond”), and, in the case of a party claiming that the bonded party will not steal title as bona fide purchaser or hold- or mismanage funds, that a pur-

er, it indicates innocence or lack of chased article is the real thing, or knowledge of any fact that would that title is good. If there is a failure cast doubt on the right to hold title. then the bonding company will make good up to the amount of the bond. bona fide purchaser: n. commonly called BFP in legal and banking bondsman: n. 1) someone who sells circles; a person who has purchased bail bonds. 2) a surety (guarantor or an asset (including a promissory insurance company, who/which pro- note, bond or other negotiable in- vides bonds for performance. (See: strument) for stated value, inno- bail bond, bail bondsman, bond) cent of any fact which would cast doubt on the right of the seller to booby trap: n. a device set up to be

have sold it in good faith. This is triggered to harm or kill anyone en- vital if the true owner shows up to tering the trap, such as a shotgun claim title, since the BFP will be which will go off if a room is entered, able to keep the asset, and the real or dynamite which will explode if the owner will have to look to the ignition key on an auto is turned. If fraudulent seller for recompense. a person sets up such a trap to pro- (See: BFP, holder in due course) tect his/her property, he/she will be liable for any injury or death even to bond: n. 1) written evidence of debt an unwanted intruder such as a bur- issued by a company with the glar. Setting a booby trap to even terms of payment spelled out. A protect one’s property is a crime. bond differs from corporate shares of stock since bond payments are book account: n. an account of a cus- pre-determined and provide a final tomer kept in a business ledger of payoff date, while stock dividends debits and credits (charges and pay- vary depending on profitability ments), which shows the amount due and corporate decisions to distrib- at any given time. This can provide a ute. There are two types of such clear basis for suing for a debt. (See: bonds: “registered,” in which the account stated)

name of the owner is recorded by the company and “bearer,” in which book value: n. a determination of the interest payments are made to value of a corporation’s stock by

67 bottomry

adding up the stated value of corpo- a contract (breaking its terms), fail- rate assets as shown on the books ure to do one’s duty (breach of duty, (records) of a corporation and de- or breach of trust), causing a distur- ducting all the liabilities (debts) of bance, threatening, or other violent the corporation. This may not be acts which break public tranquility the true value of the corporation or (breach of peace), illegally enter- its shares since the assets may be ing property (breach of close), not under- or over-valued. telling the truth— knowingly or in- nocently— about title to property bottomry: n. a mortgage contract in (breach of warranty), or, in past which a ship and/or its freight is times, refusal to honor a promise to pledged as security for a loan for marry (breach of promise). 2) v. the equipment, repair, or use of a act of failing to perform one’s agree- vessel. The contract is generally ment, breaking one’s word, or other- called a “bottomry bond.” If the wise actively violating one’s duty loan is not paid back, the lender to other. (See: breach of contract, can sell the ship and/or its freight. breach of the peace, breach of promise, breach of trust, breach boycott: n. organized refusal to pur- of warranty) chase products or patronize a store

to damage the producer or mer- breach of contract: n. failing to per- chant monetarily, to influence its form any term of a contract, written policy, and/or to attract attention or oral, without a legitimate legal to a social cause. Labor unions and excuse. This may include not com- their sympathizers have boycotted pleting a job, not paying in full or on lettuce and grapes not picked by time, failure to deliver all the goods, union farm workers, and civil substituting inferior or significantly rights activists have boycotted different goods, not providing a bond stores and restaurants that had when required, being late without “white only” hiring policies. The excuse, or any act which shows the term is named for Captain Charles party will not complete the work C. Boycott, a notorious land agent (“anticipatory breach”). Breach of whose neighbors ostracized him contract is one of the most common during Ireland’s Land League rent causes of law suits for damages wars in the 1880’s. Boycotts are and/or court-ordered “specific perfor- not illegal in themselves, unless mance” of the contract. (See: antici- there are threats of violence in- patory breach, breach, specific volved. A “secondary” boycott, which performance) boycotts those who do business with the primary target of the boy- breach of the peace: n. any act cotters, is an unfair labor practice which disturbs the public or even one under federal and state laws. (See: person. It can include almost any secondary boycott) criminal act causing fear or attempting intimidation, such as displaying breach: 1) n. literally, a break. A a pistol or shouting inappropriately. breach may be a failure to perform (See: breach)

68 brief

breaking and entering: n. 1) the I do not believe in the lau> of criminal act of entering a residence hate. I may not be true to my or other enclosed property through ideals always, but I believe in the slightest amount of force (even the law of love, and I believe pushing open a door), without au- you can do nothing with ha- thorization. If there is intent to com- tred. mit a crime, this is burglary. —Clarence Darrow If there is no such intent, the breaking and entering alone is probably at least breach of promise: n. historically, illegal trespass, which is a misde- the dumping of a female fiancee meanor crime. 2) the criminal by her intended husband after he charge for the above. (See: bur- had proposed marriage and she glary, trespass) had accepted. She was entitled to file a suit for damages for the em- bribery: n. the crime of giving or tak- barrassment of the broken ening money or some other valuable gagement. Such lawsuits were item in order to influence a public gradually outlawed in various official (any governmental employee) states and no longer exist. (See: in the performance of his/her duties. breach) Bribery includes paying to get government contracts (cutting in the breach of trust: n. 1) any act which roads commissioner for a secret is in violation of the duties of a percentage of the profit), giving a trustee or of the terms of a trust. bottle of liquor to a building inspec- Such a breach need not be in- tor to ignore a violation or grant a tentional or with malice, but can permit, or selling stock to a Con- be due to negligence. 2) breaking gressman at a cut-rate price. Exam- a promise or confidence. (See: ple: Governor (later Vice President) breach) Spiro T. Agnew received five cents from the concessionaire for each breach of warranty: n. determina- pack of cigarettes sold in the Mary- tion that a statement as to title of land capital building. The definition property, including real property has been expanded to include bribes or any goods, is proved to be un- given to corporate officials to obtain true, whether intended as a false- contracts or other advantages which hood or not. It can also apply to an are against company policy. assurance of quality of a product or

item sold. The party making the brief: 1) n. a written legal argument, warranty is liable to the party to usually in a format prescribed by the whom the guarantee was made. In courts, stating the legal reasons for modem law the warranty need not the suit based on statutes, regula- be expressed in so many words, tions, case precedents, legal texts, and but may be implied from the cir- reasoning applied to facts in the par- cumstances or surrounding lan- ticular situation. A brief is submitted guage at the time of sale. (See: im- to lay out the argument for various plied warranty, warranty) petitions and motions before the

69 broker

court (sometimes called “points state and have a “fiduciary” duty to and authorities”), to counter the act in the best interests of the cus- arguments of opposing lawyers, tomer. Consumers should investigate

and to provide the judge or judges whether the broker is representing with reasons to rule in favor of the customer’s best interest or just the party represented by the brief wants to make a sale. A “pawnbro- writer. Occasionally on minor or ker” is a lender for items left for se- follow-up legal issues, the judge curity (“hocked”) at high rates. will specify that a letter or memo-

randum brief will be sufficient. On brought to trial: v. the act of actually appeals and certain other major ar- beginning a trial, usually signaled by guments, the brief is bound with swearing in the first witness (not the color-coded covers stipulated in impanelling of the jury or beginning state and/or federal court rules. opening statements). Ironically, although the term was originally intended to mean a brief bucket shop: n. an unofficial and or summary argument (shorter usually illegal betting operation than an oral presentation), legal in which the prices of stocks and briefs are quite often notoriously commodities are posted and the long. 2) v. to summarize a prece- customers bet on the rise and fall dent case or lay out in writing a of prices without actually buying legal argument. Attentive law stu- stock, commodities, or commodity dents “brief each case in their futures. Bucket shops are seldom casebooks, which means extracting seen today since there are many the rule of law, the reasoning (ra- opportunities to gamble legally on tionale), the essential facts, and the stock and commodities markets. the outcome. 3) v. to give a summary of important information to an- building and loan: n. another name other person. (See: precedent) for savings and loan association. As the name implies, originally these in- broker: n. in general, a person who stitutions were meant to provide loans arranges contracts between a buyer for building a house after the deposi- and seller for a commission (a per- tor had saved enough for a down pay- centage of the sales price). These ment. (See: savings and loan) include real estate brokers (who

have responsibility over an agency bulk sale: n. the sale of all or a large and its sales agents as well as their part of a merchant’s stock as well as own conduct), insurance brokers equipment. This generally applies to (handling more than one company retailers, restaurants, and other rather than being an agent for just businesses with inventories. (See: a single carrier), and stockbrokers, bulk sales acts) who are the upper-level of stock salespersons and/or the operators bulk sales acts: n. state laws (spelled of brokerage houses. Brokers in the out in the Uniform Commercial Code more technical fields (as above) are adopted generally throughout the regulated and licensed by each country) which require a seller of the

70 burglary

business including his/her inven- with the jury or the judge if there is tory to a) publish notice of the sale, no jury. However, the burden of b) give written notice to all credi- proof is not always on the plaintiff.

tors, and c) set up an escrow of the In some issues it may shift to the de- funds realized from the sale upon fendant if he/she raises a factual which the creditors can make a issue in defense, such as a claim that claim for a brief period of time. he/she was not the registered owner These statutes are intended to pre- of the car that hit the plaintiff, so the vent a merchant from quietly sell- defendant has the burden to prove ing his/her business inventory and that defense. If at the close of the disappearing without paying cur- plaintiffs presentation he/she has rent creditors. not produced any evidence on a necessary fact (e.g. any evidence of dam- bulk transfer: (See: bulk sale) age) then the case may be dismissed without the defendant having to put burden: n. anything that results in on any evidence. (See: beyond a rea- a restrictive load upon something. sonable doubt, preponderance of This is not meant in a tangible the evidence, prima facie, weight sense, but includes a “burden” on of evidence) interstate commerce (which is any

matter which limits, restricts or is In a democracy the law says that onerous such as a license or fee for it is just for the poor to have no passage), and “burdens” on land more advantage than the rich; such as zoning restrictions or and that neither should be mas- the right of a neighbor to pass over ters, but both equal. the property to reach his home -Aristotle, Politics (easement).

burden of proof: n. the requirement burglary: n. the crime of breaking that the plaintiff (the party bringing and entering into a structure for the a civil lawsuit) show by a “prepon- purpose of committing a crime. No derance of evidence” or “weight of great force is needed (pushing open a evidence” that all the facts neces- door or slipping through an open sary to win a judgment are pre- window is sufficient) if the entry is sented and are probably true. In a unauthorized. Contrary to common criminal trial the burden of proof belief, a burglary is not necessarily required of the prosecutor is to for theft. It can apply to any crime, prove the guilt of the accused “be- such as assault or sexual harass- yond a reasonable doubt,” a much ment, whether the intended criminal more difficult task. Unless there is act is committed or not. Originally a complete failure to present sub- under English common law burglary stantial evidence of a vital fact was limited to entry in residences at

(usually called an “element of the night, but it has been expanded to all cause of action”), the ultimate deci- criminal entries into any building, or sion as to whether the plaintiff has even into a vehicle. (See: breaking met his/her burden of proof rests and entering)

71 business

business: n. any activity or enterprise ner’s or stockholder’s interest in the entered into for profit. It does not enterprise. mean it is a company, a corporation, partnership, or has any such formal bylaws: n. the written rules for con- organization, but it can range from duct of a corporation, association, a street peddler to General Motors. partnership or any organization. It is sometimes significant to deter- They should not be confused with the mine if an accident, visit, travel, articles of incorporation, which only meal or other activity was part of state the basic outline of the com- “business” or for pleasure or no pany, including stock structure. By- particular purpose. laws generally provide for meetings, elections of a board of directors and business invitee: n. a person enter- officers, filling vacancies, notices, ing commercial premises for the types and duties of officers, commit- purpose of doing business, rather tees, assessments and other routine than just taking a short cut to the conduct. Bylaws are in effect a con- next street. It is important since a tract among members and must be business is liable to a business informally adopted and/or amended. vitee for injury caused by danger- (See: corporation) ous conditions such as bad floors or oil on the linoleum. There is a presumption that anyone entering a retail store or restaurant in which one may browse is a business invitee unless there is evidence to the contrary. (See: invitee)

“but for” rule: n. one of several tests to determine if a defendant is responsible for a particular happening. In this test, was there any

other cause, or would it have occurred “but for” the defendant’s actions? Example: “But for” defendant Drivewild’s speeding, the car would not have gone out of control,

and therefore the defendant is responsible. This is shorthand for whether the action was the “proximate cause” of the damage. (See: proximate cause)

buy-sell agreement: n. a contract among the owners of a business which provides terms for their purchase of a withdrawing part-

72 calendar: 1) n. the list of cases to be employed in certain Asian countries called for trial before a particular (notably Singapore) even for misde-

court; 2) v. to set and give a date and meanors (lesser crimes) in which the time for a case, petition or motion to convicted defendant receives several be heard by a court. Usually a judge, lashes with a flexible “cane” meted a trial setting commissioner, or the out by a husky and skilled whipper. clerk of the court calendars cases. Such corporal punishment as a specific punishment or sentence so far is calendar call: n. the hearing at unknown in the last century in the which a case is set for trial. United States.

call: n. the demand by a corporation canon law: n. laws and regulations over that a stockholder pay an install- ecclesiastical (church) matters devel- ment or assessment on shares al- oped between circa 1100 and 1500 and ready owned. used by the Roman Catholic Church in reference to personal morality, status and powers of the clergy, administra- Laws are sand, customs are tion of the sacraments and church and rock. personal discipline. Canon law com- Mark Twain — prises ordinances of general councils of the church, decrees, bulls and epistles calumny: n. the intentional and of the Popes, and the scriptures and generally vicious false accusation writings of the early fathers of the of a crime or other offense de- church. Canon law has no legal force signed to damage one’s reputation. except within the Vatican in Rome, (See: defamation) Italy, and in those nations in which

the Catholic Church is the “official”

cancel: v. to cross out, annul, destroy, church and where it prevails in reli-

void and/or rescind a document. gious matters which may affect all cit- Cancelling can be done in severed izens (such as abortion and divorce). ways: tear up the document or mark In Great Britain there is also a body of

on its face that it is cancelled, void, canon law dating back to pre-reforma-

or terminated if the debt for which it tion in the 16th Century, which is stood has been paid. It is important used by the Anglican (Episcopal) that the document (like a promisso- Church. Canon law is not to be con- ry note) itself become no longer oper- fused with professional canons, which ative either by destruction or mark- are rules of conduct with no religious

ing, so that it cannot be used again. connection.

cancellation: (See: cancel) cap: n. slang for maximum, as the most interest that can be charged on caning: n. a punishment for crimes an “adjustable rate” promissory note.

73 capital

capital: 1) n. from Latin for caput, business many years ago for the

meaning “head,” the basic assets of going price and now find it is highly a business (particularly corpora- valued, greatly due to inflation. Ex- tions or partnerships) or of an indi- ample: a couple buy a house in 1950 vidual, including actual funds, for $20,000 (then a high price) and

equipment and property as distin- upon retirement want to sell it for guished from stock in trade, inven- $400,000. There is a potential of tax tory, payroll, maintenance and ser- on a $360,000 gain. There are some vices. 2) adj. related to the basic as- statutory cushions to ease this blow, sets or activities of a business or in- such as a one-time $125,000 deduc- dividual, such as capital account, tion from the gain (profit) on sale of capital assets, capital expenditure, real property if the seller is over 55,

and capital gain or loss. 3) n. an deferred (temporarily put off) tax if amount of money a person owns, as investment property is “exchanged” in “how much capital do you have to (profits are invested in other proper-

put into this investment?” as distin- ty) under strict rules, making life- guished from the amount which time gifts to children or charity, or must be financed. (See: capital ac- buying another home. Another es- count, capital assets, capital cape is death, which gives the prop- gains or losses, stock in trade) erty to heirs at the value on the day of the owner’s death without capital capital account: n. the record gains tax (“stepped up basis”). Re- which lists all basic assets of a duction of capital gains tax rates has business, not including inventory been resisted by a majority of Con- or the alleged value of good will. gress, partly because lowering the rate generally would become a tax capital assets: n. equipment, proper- break for the wealthy. (See: basis, ty, and funds owned by a business. delayed exchange, exchange) (See: capital, capital account) capital investment: (See: capital capital expenditure: n. payment by expenditure) a business for basic assets such as property, fixtures, or machinery, but capital offense: n. any criminal charge not for day-to-day operations such which is punishable by the death as payroll, inventory, maintenance penalty, called “capital” since the de- and advertising. Capital expendi- fendant could lose his/her head (Latin tures supposedly increase the value for caput). Crimes punishable by of company assets and are usually death vary from state to state and intended to improve productivity. country to country. In 38 American states these offenses may include first capital gains: n. the difference be- degree murder (premeditated), mur- tween the sales price and the orig- der with special circumstances (such inal cost (plus improvements) of as intentional, multiple, involved with property. Capital gains taxes can another crime, with guns, of a police be a terrible financial shock to in- officer, or a repeat offense), and rape dividuals who bought a house or with additional bodily harm, and the

74 caption

federal crime of treason. A charge of hypothetically can be used for con- a capita] offense usually means no version into capital assets. bail will be allowed. (See: bail, capital punishment) For where no law is, there is no transgression, capital punishment: n. execution The Bible, Romans IV. 15 (death) for a capital offense. The — U.S. Supreme Court has vacillated on the application of capital punish- capitalized value: n. anticipated ment, ruling in the Furman decision earnings which are discounted (given (1972) that capital punishment was a lower value) so that they represent a violation of the Eighth Amend- a more realistic current value since ment’s prohibition against “cruel projected earnings do not always turn and unusual punishment” in certain out as favorably as expected or hoped.

cases, and then reinstated it in 1976. New York, which once led the nation capital stock: n. the original amount in executions, abolished capital pun- paid by investors into a corporation

ishment but reinstated it in 1995. for its issued stock. Capital stock

There is no capital punishment in bears no direct relationship to the Alaska, Hawaii, Iowa, Kansas, present value of stock, which can Massachusetts, Maine, Minnesota, fluctuate after the initial issue or Michigan, North Dakota, Rhode Is- first stock offering. Capital stock also land, Vermont, West Virginia and does not reflect the value of corporate the District of Columbia. There have assets, which can go up or down been no federal executions in more based on profits, losses, or purchases than 30 years. Texas, Florida, of equipment. Capital stock remains Louisiana, Georgia, Virginia, and Al- as a ledger entry at the original price. abama have held the most execu- (See: stock, corporation) tions in recent years. Means of capital punishment used in the United capricious: adv., adj. unpredictable States include lethal injection, elec- and subject to whim, often used to trocution, gas chamber, hanging, refer to judges and judicial decisions and firing squad. All capital offenses which do not follow the law, logic or require automatic appeals, which proper trial procedure. A semi-polite means that approximately 2,500 way of saying a judge is inconsistent men and women are presently on or erratic. “death row” awaiting their appeals or death. (See: capital offense, Ap- caption: n. the first section of any writ- pendix on capital punishment) ten legal pleading (papers) to be filed, which contains the name, address,

capitalization: n. 1) the act of telephone number of the attorney, the counting anticipated earnings and person or persons the attorney repre- expenses as capital assets (proper- sents, the court name, the title of the

ty, equipment, fixtures) for ac- case, the number of the case, and the counting purposes. 2) the amount title of the documents (complaint, ac- of anticipated net earnings which cusation, answer, motion, etc.). Each

75 care

jurisdiction has its own rules as to There are two types of carriers: com- the exact format of the caption. mon carrier (in the regular business or a public utility of transportation) care: n. in law, to be attentive, pru- and a private carrier (a party not in dent and vigilant. Essentially, care the business, which agrees to make a (and careful) means that a person delivery or carry a passenger in a spe- does everything he/she is supposed cific instance). Common carriers are to do (to prevent an accident). It is regulated by states and by the Inter- the opposite of negligence (and state Commerce Commission if they negligent), which makes the re- cross state lines. (See: common car- sponsible person liable for dam- rier, private carrier) ages to persons injured. If a person “exercises care,” a court cannot carryback: n. in taxation accounting, find him/her responsible for dam- using a current tax year’s deduc- ages from an accident in which tions, business losses or credits to re- he/she is involved. (See: careless) figure and amend a previously filed

tax return to reduce the tax liability. careless: adj., adv. 1) negligent. 2) (See: carryover) the opposite of careful. A careless

act can result in liability for dam- carrying for hire: n. the act of trans- to ages others. (See: care, negli- porting goods or individuals for a fee. gence, negligent) It is important to determine if the car-

rier has liability for safe delivery or is carnal knowledge: n. from Latin subject to regulation. (See: carrier, camalis for “fleshly:” sexual inter- common carrier, private carrier). course between a male and female in

which there is at least some slight carrying on business: v. pursuing a penetration of the woman’s vagina particular occupation on a continuous by the man’s penis. It is legally sig- and substantial basis. There need not nificant in that it is a necessary legal be a physical or visible business “enti- characteristic or element of rape, ty” as such. child molestation, or consensual sexual relations with a female below carryover: n. in taxation accounting, the age of consent (“statutoiy rape”). using a tax year’s deductions, busi- Age of consent varies from 14 to 18, ness losses or credits to apply to the depending upon the state. (See: following year’s tax return to reduce rape, statutory rape) the tax liability. (See: carryback)

carrier: n. in general, any person or cartel: n. 1) an arrangement among business which transports property supposedly independent corporations or people by any means of con- or national monopolies in the same in- veyance (truck, auto, taxi, bus, air- dustrial or resource development field plane, railroad, ship), almost always organized to control distribution, set for a charge. The carrier is the prices, reduce competition, and some- transportation system and not the times share technical expertise. Often owner or operator of the system. the participants are multinational

76 cashier’s check

corporations which operate across case law and, therefore, not prece- numerous borders and have little dent or new interpretations. Law stu- or no loyalty to any home country, dents principally study case law to and great loyalty to profits. The understand the application of law to most prominent cartel is OPEC facts and learn the courts’ subse- (Organization of Petroleum Ex- quent interpretations of statutes. porting Countries), which repre- (See: case system, precedent)

sents all of the oil producing countries in the Middle East, North case of first impression: n. a case in Africa and Venezuela. Many cartels which a question of interpretation of operate behind a veil of secrecy, law is presented which has never particularly since under American arisen before in any reported case.

antitrust laws (the Sherman and Sometimes, it is only of first impres- Clayton Acts) they are illegal. 2) a sion in the particular state or jurisdic- criminal syndicate like the inter- tion, so decisions from other states or national drug cartel headquartered the federal courts may be examined as in Colombia. (See: antitrust laws,) a guideline. case: n. short for a cause of action, case system: n. the method of studying lawsuit, or the right to sue (as in law generally used in American law “does he have a case against schools, in which the students read, Jones?”). It is also shorthand for the outline (brief), discuss and hear lec- reported decisions (appeals, certain tures about the cases. Each case pre- decisions of federal courts and spe- sented stands for a particular rule of cial courts such as the tax court) law in the subject matter covered and which can be cited as precedents. is contained in “casebooks” on particu-

Thus, “in the case of Malarkey v. lar topics (contracts, torts, criminal

Hogwash Printing Company, the law, constitutional law, agency, etc.).

court stated the rule as....” The system is useful since it relates the law to retd and factual situations case law: n. reported decisions of ap- which assist students in memoriza- peals courts and other courts which tion and encourages deductive reason- make new interpretations of the ing. The case system is reinforced by law and, therefore, can be cited as textbooks and outlines on the subject precedents. These interpretations matter, which were formerly the prin- are distinguished from “statutory cipal sources of learning. The method law,” which is the statutes and was introduced first at Harvard in codes (laws) enacted by legislative 1869 by professor Christopher C. bodies; “regulatory law,” which is Langdell and soon became standard. regulations required by agencies based on statutes; and in some cashier’s check: n. a check issued by a states, the common law, which is bank on its own account for the the generally accepted law carried amount paid to the bank by the pur- down from England. The rulings in chaser with a named payee, and stat- trials and hearings which are not ing the name of the party purchasing appealed and not reported are not the check (the remitter). The check is

77 casual

received as cash since it is guaran- implies what is called a “causal con- teed by the bank and does not de- nection” as distinguished from events pend on the account of a private in- which may occur but do not have any dividual or business. Cashiers’ effect on later events. Example: checks are commonly used when While driving his convertible, Johnny payment must be credited immedi- Youngblood begins to stare at pretty ately upon receipt for business, Sally Golightly, who is standing on real estate transfers, tax payments the sidewalk. While so distracted he and the like. veers into a car parked at the curb.

Johnny’s inattention (negligence) is casual: adj. defining something that the cause of the accident, and neither happens by chance, without being Sally nor her beauty is the cause. 3) foreseen, or informally. This in- n. short for cause of action. (See: cludes “casual” labor or employ- cause of action, proximate cause) ment, which is someone hired to do a task just because he/she was available at the moment. “Casual The fine for peering into your laborer” carries the implication neighbor’s house without per- is cow. that the laborer does not belong to mission one a union and that the employer and —Irish Laws, collected by the laborer will not pay appropri- Mary Dowling Daley ate taxes on the wages paid.

cause of action: n. the basis of a law- casualty: n. 1) an accident which suit founded on legal grounds and al- could not have been foreseen or leged facts which, if proved, would guarded against, such as a ship- constitute all the “elements” required wreck caused by storm or fire by statute. Examples: to have a cause caused by lightning. 2) the loss, as of action for breach of contract there of life, from such an unavoidable must have been an offer of acceptance; accident. The courts remain incon- for a tort (civil wrong) there must sistent on the exact definition. have been negligence or intentional (See: casualty loss) wrongdoing and failure to perform; for libel there must have been an untruth casualty loss: n. in taxation, loss published which is particularly harm- due to damage which qualifies for fill; and in all cases there must be a a casualty loss tax deduction. It connection between the acts of the de- must be caused by a sudden, unex- fendant and damages. In many law- pected or unusual occurrence such suits there are several causes of action as a storm, flood, fire, shipwreck, stated separately, such as fraud, earthquake or act of God, but breach of contract, and debt, or negli- would not include gradual damage gence and intentional destruction of from water seepage or erosion. property. (See: element, lawsuit)

cause: from Latin causa: 1) v. to caveat: n. (kah-vee-ott) from Latin

make something happen. 2) n. the caveat for “let him beware.” 1) a reason something happens. A cause warning or caution. 2) a popular term

78 certified check

used by lawyers to point out that document issued by a bank in return there may be a hidden problem or for a deposit of money which pays a defect. In effect, “I just want to fixed interest rate for a specified peri- warn you that...” od (from a month to several years). In- terest rates on CD’s are usually high- caveat emptor: (kah-vee-ott emptor) er than savings accounts because Latin for “let the buyer beware.” The banking institutions require a com- basic premise that the buyer buys at mitment to leave money in the CD for his/her own risk and therefore a fixed period of time. Often there is a should examine and test a product financial penalty (fee) for cashing in a himself/herself for obvious defects CD before the pledged time runs out. and imperfections. Caveat emptor still applies even if the purchase is certificate of incorporation: n. doc- “as is” or when a defect is obvious ument which some states issue to upon reasonable inspection before prove a corporation’s existence upon purchase. Since implied warranties the filing of articles of incorporation. (assumed quality of goods) and con- In most states the articles are suffi- sumer protections have come upon cient proof.

the legal landscape, the seller is held to a higher standard of disclosure certificate of title: n. generally, the

than “buyer beware” and has re- title document for a motor vehicle is-

sponsibility for defects which could sued by the state in which it is regis- not be noted by casual inspection tered, describing the vehicle by type (particularly since modem devices and engine number, as well as the cannot be tested except by use and name and address of the registered many products are pre-packaged). owner and the lienholder (financial (See: consumer protection laws) institution that loaned money to buy the car). Since in some states these cease and desist order: n. an order documents are usually pink, the cer- of a court or government agency to tificate of title is sometimes called a a person, business or organization “pink slip.” (See: pink slip) to stop doing something upon a strong showing that the activity is certified check: n. a check issued by harmful and/or contrary to law. a bank which certifies that the The order may be permanent or maker of the check has enough hold until a final judicial determi- money in his/her account to cover the nation of legality occurs. In many amount to be paid. The bank sets instances the activity is believed to aside the funds so that the check will cause irreparable damage such as remain good even if other checks are receipt of funds illegally, felling of written on the particular account. timber contrary to regulation, sell- Like a cashier’s check, a certified

ing of shares of stock without a check guarantees that it is immedi-

proper permit, or oil drilling which ately good since it is guaranteed by would damage the ecology. the bank and the recipient does not

have to wait until it “clears.” (See: certificate of deposit (CD): n. a cashier’s check)

79 certiorari

certiorari: n. (sersh-oh-rare-ee) a time. Chains of title include notations writ (order) of a higher court to a of deeds, judgments of distribution lower court to send all the docu- from estates, certificates of death of a ments in a case to it so the higher joint tenant, foreclosures, judgments court can review the lower court’s of quiet title (lawsuit to prove one’s decision. Certiorari is most common- right to property title) and other ly used by the U.S. Supreme Court, recorded transfers (conveyances) of which is selective about which cases title to real property. Usually title it will hear on appeal, lb appeal to companies or abstractors are the pro- the Supreme Court one applies to fessionals who search out the chain of the Supreme Court for a writ of cer- title and provide a report so that a

tiorari, which it grants at its discre- purchaser will be sure the title is tion and only when at least three clear of any claims. (See: abstract members believe that the case in- of title, conveyance, foreclosure, volves a sufficiently significant fed- quiet title actions, title) eral question in the public interest. By denying such a writ the Supreme challenge: n. the right of each attorney Court says it will let the lower court in a juiy trial to request that a juror decision stand, particularly if it con- be excused. There may be a “challenge forms to accepted precedents (previ- for cause” on the basis the juror had ously decided cases). admitted prejudice or shows some ob-

vious conflict of interest (e.g. the juror cestui que trust: n. (properly pro- used to work for the defendant or was nounced ses-tee kay, but lawyers once charged with the same type of popularly pronounce it setty kay) crime) which the judge must resolve. from old French. 1) an old-fashioned If the juror is excused (removed) “for expression for the beneficiary of a cause,” then the challenge does not trust. 2) “the one who trusts” or the count against the limited number of person who will benefit from the challenges allowed each side. More trust and will receive payments or a common is the “peremptory chal- future distribution from the trust’s lenge,” which is a request that a juror assets. (See: beneficiary) be excused without stating a reason. An attorney might say: “Juror number cestui que use: (pronounced ses-tee eight may be excused.” Only six or kay use or setty kay use) n. an old- eight peremptory challenges are nor- fashioned term for a person who mally allowed each side. Systematic

benefits from assets held in a trust peremptoiy challenges of all blacks or for the beneficiary’s use. The term all women may be examples and proof “beneficiary” is now used instead. that a defendant has been deprived of (See: beneficiary, cestui que a jury of his/her peers and result in an trust, trust) appeal based on lack of due process. (See: peremptory challenge) chain of title: n. the succession of

title ownership to real property challenge for cause: n. a request that from the present owner back to the a prospective juror be dismissed be- original owner at some distant cause there is a specific and forceful

80 change of circumstances

reason to believe the person cannot lawyer and client. It is not the same as

be fair, unbiased or capable of serv- barratry, which is active encourage- ing as a juror. Causes include ac- ment of lawsuits. (See: barratry, quaintanceship with either of the contingent fee) parties, one of the attorneys or a witness, the potential juror’s expression chancellor: n. from the old English during voir dire (questioning of the legal system, a chancellor is a judge prospective jurors) of inability to be who sits in what is called a chancery unbiased due to prior experience in a (equity) court with the power to order similar case (having been convicted something be done (as distinguished of drunk driving, being a battered from just paying damages). Almost all

wife, etc.), any obvious prejudice, or states now combine chancery (equity) inability to serve (such as being functions and law in the same courts. mentally disturbed). The judge de- (See: equity)

termines if the person shall be dismissed. Challenges and dismissal chancery: n. a court that can order acts for cause differ from peremptory performed. Today chancery courts are challenges, which each side may use merged with law courts in most to dismiss potential jurors without states. (See: equity) stating any reason. (See: juror, jury, panel, peremptory chal- True law is right reason in lenge, venire, voir dire) agreement with nature; it is of universal application, un- chambers: n. the private office of a changing and everlasting; it judge, usually close to the court- summons to duty by its com- room so that the judge can enter mands, and averts from the court from behind the bench wrong doing by its prohibi- and not encounter people on the tions. way. Judges hear some motions, Cicero discuss formal legal problems like — jury instructions, or conduct hearings on sensitive matters such as change of circumstances: n. the prin- adoptions “in chambers.” (See: in cipal reason for a court modifying camera, in chambers) (amending) an existing order for the payment of alimony and/or child sup- champerty: n. an agreement be- port. The change may be an increase tween the party suing in a lawsuit or decrease in the income of either the (plaintiff) and another person, usu- party obligated to pay or the ex-spouse

ally an attorney, who agrees to fi- receiving payment, or the health, the nance and carry the lawsuit in re- employment, or needs of either party. turn for a percentage of the recovery Thus, if an ex-husband’s income is sub- (money won and paid). In common stantially increased or the ex-wife be- law this was illegal on the theory comes ill and cannot work, the judge

that it encouraged lawsuits. Today may order the ex-husband to pay her

it is legal and often part of a “con- more. Remarriage of a spouse who tingent fee” agreement between is receiving alimony automatically

81 character witness

terminates the alimony order, un- Unitrust): n. a form of trust in which less there is a special provision the donor (trustor or settlor) places that it continue, which is rare. substantial funds or assets into an ir- (See: alimony, child support, revocable trust (a trust in which the dissolution of marriage, di- basic terms cannot be changed or the vorce, spousal support) gift withdrawn) with an independent trustee, in which the assets are to go character witness: n. a person who to charity on the death of the donor, testifies in a trial on behalf of a per- but the donor (or specific beneficia- son (usually a criminal defendant) ries) will receive regular profits from as to that person’s good ethical the trust during the donor’s lifetime. qualities and morality both by the The IRS will allow a large deduction personal knowledge of the witness in the year the funds or assets are do- and the person’s reputation in the nated to the trust, and the tax sav- community. Such testimony is pri- ings can be used to buy an insurance marily relevant when the party’s policy on the life of the donor which honesty or morality is an issue, will pay his/her children the proceeds particularly in most criminal cases upon the donor’s death. Thus, the and civil cases such as fraud. donor (trustor) can make the gift to charity, receive a return on his/her charge: n. 1) in a criminal case, the money and still arrange to make a specific statement of what crime large gift at death to his/her heirs. the party is accused (charged with) The disadvantage is that the assets contained in the indictment or are permanently tied up or commit- criminal complaint. 2) in jury tri- ted. (See: trust) als, the oral instructions by the

judge to the jurors just before the charity: n. 1) in general the sentiment jury begins deliberations. This of benevolence, doing good works, as- charge is based on jury instruc- sisting the less fortunate, philan- tions submitted by attorneys on thropy and contributing to the general both sides and agreed upon by the public. 2) an organization which exists trial judge. 3) a fee for services. to help those in need or provide educational, scientific, religious and artistic charitable contribution: n. in tax- assistance to members of the public. ation, a contribution to an organi- Charities are usually corporations es- zation which is officially created tablished under state guidelines and for charitable, religious, education- require IRS approval in order for con- al, scientific, artistic, literary, or tributions to them to be deductible other good works. Such contribu- from gross income by donors. (See: tions are deductible from gross in- charitable contribution) come, and thus lower the taxes

paid. (See: charitable remainder charter: n. the name for articles of in- trust, charity) corporation in some states, as in a corporate charter. (See: corporation) charitable remainder trust (Char- itable Remainder Irrevocable chattel: n. an item of personal property

82 child custody

which is movable, as distin- justices or to himself/herself, and guished from real property (land oversees the management of the court and improvements). (See: person- and its staff. Since U.S. Supreme

al property) Court justices serve for life or until voluntary retirement, they can have chattel mortgage: n. an outmoded long-term influence. There have been written document which made a only 16 U.S. Supreme Court Chief chattel (tangible personal asset) se- Justices in over 200 years. All but two curity for a loan of a certain amount. were appointed from outside the It has been replaced in most states ranks of existing Associate Justices. by a security agreement, the form of

which is designated in a Uniform child: n. 1) a person’s natural offspring. Commercial Code as UCC-1. UCC-1 2) a person 14 years and under. A security agreements must be filed “child” should be distinguished from a with a specific public agency (e.g. a “minor” who is anyone under 18 in al- state Secretary of State) to protect most all states. (See: minor) buyers of the personal property and lenders making loans secured by child custody: n. a court’s determina- the property. (See: UCC-1) tion of which parent, relative or other adult should have physical and/or check: n. a draft upon a particular ac- legal control and responsibility for a count in a bank, in which the draw- minor (child) under 18. Child custody er or maker (the person who has the can be decided by a local court in a di- account and signs the check) directs vorce or if a child, relative, close friend the bank to pay a certain amount to or state agency questions whether one the payee (which may include the or both parents is unfit, absent, dead, drawer, “cash,” or someone else). in prison or dangerous to the child’s Other checks include cashier’s well-being. In such cases custody can checks issued by the bank for a sum be awarded to a grandparent or other paid to the bank, and certified relative, a foster parent or an orphan- checks in which the bank sets aside age or other organization or institu-

an amount from the maker’s bank tion. While a divorce is pending the account and then guarantees the court may grant temporary custody to check can be cashed immediately. one of the parents, require conferences (See: cashier’s check, certified or investigation (in some states, if the check, negotiable instrument) parents cannot agree, custody is automatically referred to a mediator, com- Chief Justice: n. the presiding judge missioner or social worker) before

of any State Supreme Court and the making a final ruling. There is a dif- U.S. Supreme Court. The Chief Jus- ference between physical custody,

tice of the U.S. Supreme Court is which designates where the child will appointed by the President and actually live, and legal custody, which then must be confirmed by the U.S. gives the custodial person(s) the right Senate. The Chief Justice sets the to make decisions for the child’s wel- tone for the court, assigns the writ- fare. If the parents agree, the court can ing of majority opinions to fellow award joint custody, physical and/or

83 child support

legal. Joint legal custody is becom- support. Child support is not ing increasingly common. The deductible from gross income for basic consideration on custody tax purposes (but may allow a depen-

matters is supposed to be the best dent exemption) nor is it taxed as in-

interests of the child or children. come, unlike alimony, which is de- In most cases the non-custodial ductible by the payer and taxed as the parent is given visitation rights, adult recipient’s income. (See: alimo- which may include weekends, ny, child custody, dissolution of parts of vacations and other occa- marriage, divorce, spousal sup- sions. The court can always change port, change of circumstances) custody if circumstances warrant. (See: child support, custody, churning: n. the unethical and usual- dissolution of marriage, di- ly illegal practice of excessive buying vorce, joint custody) and selling of shares of stock for a customer by a stockbroker or sales child support: n. court-ordered agent for the purpose of obtaining funds to be paid by one parent to high sales commissions. the custodial parent of a minor child after divorce (dissolution) or C.I.F.: n. the total of cost, insurance separation. Usually the dollar and freight charges to be paid on amounts are based on the income of goods purchased and shipped. both parents, the number of chil-

dren, the expenses of the custodial circuit courts: n. a movable court in parent, and any special needs of the which the judge holds court sessions child. In many states or locales the at several different locations for pre- amount is determined by a chart specified periods of time. In effect, the which factors in all these figures. It judge “rides the circuit” from town to may also include health plan cover- town and takes the “court” with age, school tuition or other expens- him/her. Formerly, the Federal Dis- es, and may be reduced during peri- trict Courts of Appeal were called the ods of extended visitation such as Circuit Courts of Appeal. summer vacations. Child support

generally continues until the child circumstantial evidence: n. evidence reaches 18 years, graduates from in a trial which is not directly from an high school, is emancipated (no eyewitness or participant and requires

longer lives with either parent), or, some reasoning to prove a fact. There in some cases, for an extended peri- is a public perception that such evi-

od such as college attendance. The dence is weak (“all they have is cir- amount and continuation of sup- cumstantial evidence”), but the proba- port may be changed by the court ble conclusion from the circumstances

upon application of either party de- may be so strong that there can be lit- pending on a proved change of cir- tle doubt as to a vital fact (“beyond a cumstance of the parents or child. reasonable doubt” in a criminal case, Child support should not be con- and “a preponderance of the evidence” fused with alimony (spousal sup- in a civil case). Particularly in criminal

port) which is for the ex-spouse’s cases, “eyewitness” (“I saw Frankie

84 civil

shoot Johnny”) type evidence is often also refers to the case itself, as in

lacking and may be unreliable, so “counsel’s citation of the Wong case is circumstantial evidence becomes es- not in point.” (See: cite) sential. Prior threats to the victim,

fingerprints found at the scene of the cite: v. 1) to make reference to a deci- crime, ownership of the murder sion in another case to make a legal weapon, and the accused being seen point in argument. 2) to give notice in the neighborhood, certainly point of being charged with a minor crime to the suspect as being the killer, but and a date for appearance in court to each bit of evidence is circumstan- answer the charge rather than being

tial. (See: evidence) arrested (usually given by a police officer). (See: citation) citation: n. 1) a notice to appear in

court due to the probable commis- citizen: n. person who by place of birth, sion of a minor crime such as a traf- nationality of one or both parents, or fic violation, drinking liquor in a by going through the naturalization park where prohibited, letting a dog process has sworn loyalty to a nation. loose without a leash, and in some The United States has traditionally states for possession of a small taken the position that an American

amount of marijuana. Failure to ap- citizen is subject to losing his/her citi- pear can result in a warrant for the zenship if he/she commits acts show- citee’s arrest. 2) a notice to appear in ing loyalty to another country, includ- court in a civil matter in which the ing serving in armed forces potentially presence of a party appears neces- unfriendly to the United States, or vot- sary, usually required by statute, ing in a foreign country. However, if as such a person whose relatives the foreign nation recognizes dual citi- wish to place him/her under a con- zenship (Canada, Israel, and Ireland servatorship (take over and manage are common examples) the U.S. will his/her affairs). 3) the act of refer- overlook this duality of nationalities. ring to (citing) a statute, precedent-

setting case or legal textbook, in a civil: adj. 1) that part of the law that brief (written legal court statement) encompasses business, contracts, es- or argument in court, called “cita- tates, domestic (family) relations, action of authority.” 4) the section of cidents, negligence and everything re- the statute or the name of the case lated to legal issues, statutes and law- as well as the volume number, the suits, that is not criminal law. In a report series and the page number few areas civil and criminal law may of a case referred to in a brief, points overlap or coincide. For example, a and authorities, or other legal argu- person may be liable under a civil ment. Example: United States vs. lawsuit for negligently killing a Wong Kim Ark, (1898) 169 U.S. 649, pedestrian with his auto by running which is the name of the case, over the person and be charged with the year when decided, with the de- the crime of vehicular homicide due to cision found at volume 169 of the his/her reckless driving. Assault may United States [Supreme Court] bring about arrest by the police under Reporter at page 649. A citation criminal law and a lawsuit by the

85 civil action

party attacked under civil law. 2) civil code: n. in many states, referring to one’s basic rights guar- the name for the collection of anteed under the Constitution statutes and laws which deal with (and the interpretations and business and negligence lawsuits statutes intended to implement and practices. the enforcement of those rights)

such as voting, equitable taxation, civil law: n. 1) a body of laws and freedom of speech, press, religion legal concepts which come down and assembly. Generally these are from old Roman laws established by referred to as “civil rights,” which Emperor Justinian, and which differ have required constant diligence from Englishcommon law, which is and struggle to ensure and ex- the framework of most state legal pand, as in the Civil Rights move- systems. In the United States only ment between 1950 and 1980. Vio- Louisiana (relying on the French lation of one’s civil rights may be a Napoleonic Code) has a legal struc-

crime under federal and/or state ture based on civil law. 2) generic statutes. Civil rights include civil term for non-criminal law. liberties. Civil liberties emphasize protection from infringement upon civil liability: n. potential responsi- basic freedoms, while statutory bility for payment of damages or rights are based on laws passed by other court-enforcement in a law- Congress or state legislatures. suit, as distinguished from criminal (See: civil liberties, civil rights) liability, which means open to punishment for a crime.

Delay works always for the civil liberties: n. rights or freedoms man with the longest purse. given to the people by the First —William Howard Taft Amendment to the Constitution, by Common Law, or legislation, allowing civil action: n. any lawsuit relating the individual to be free to speak, to civil matters and not criminal think, assemble, organize, worship, or prosecution. (See: lawsuit) petition without government (or even private) interference or restraints. civil calendar: n. the list of lawsuits These liberties are protective in na- (cases) that are approaching trial ture, while civil rights form a broader in any court. Attorneys and/or par- concept and include positive elements ties whose cases are coming to the such as the right to use facilities, the top of the list receive notice of the right to an equal education, or the “calling” of the civil calendar on a right to participate in government. particular day for setting a trial (See: civil, civil rights) date. Unfortunately, some courts are so clogged with pending law- civil penalties: n. fines or surcharges suits that one case may be called on imposed by a governmental agency several civil calendars, possibly to enforce regulations such as late months apart, before being finally payment of taxes, failure to obtain a sent to trial. (See: calendar) permit, etc.

86 claim against a governmental agency

civil procedure: n. the complex and claim in bankruptcy: n. the written often confusing body of rules and claim filed by persons or businesses regulations set out in both state owed money (creditors) by a party (usually Code of Civil Procedure) who files for bankruptcy (debtor) to and federal (Federal Code of Proce- benefit from the distribution if money dure) laws which establish the for- becomes available. The known credi- mat under which civil lawsuits are tors receive written notice of the filed, pursued and tried. Civil proce- bankruptcy and will receive a credi- dure refers only to form and proce- tor’s claim form. They may also re- dure, and not to the substantive law ceive notice that the bankrupt party which gives people the right to sue has no assets to distribute and that or defend a lawsuit. (See: civil, they should not file a claim until fur- civil action, civil code, civil law) ther notice (this is bad news for the creditor). (See: bankruptcy, bank- civil rights: n. those rights guaran- ruptcy proceedings) teed by the Bill of Rights, the 13th

and 14th Amendments to the Con- claim against an estate: n. upon the stitution, including the right to death of a person and beginning of due process, equal treatment probate (filing of will, etc.), a person under the law of all people regard- believing he/she is owed money ing enjoyment of life, liberty, prop- should file a written claim (state- erty, and protection. Positive civil ment) promptly with the executor or rights include the right to vote, the administrator of the estate, who will opportunity to enjoy the benefits of then approve it, in whole or in part, a democratic society, such as equal or deny the claim. If the claim is not access to public schools, recreation, approved the claimant can demand a transportation, public facilities, hearing to have the court determine and housing, and equal and fair his/her rights. The period for filing a treatment by law enforcement and claim begins upon publication of a the courts. (See: Bill of Rights, death notice or a date specified by civil, civil liberties) state law and continues for a few months (four in California, for claim: v. to 1) make a demand for example). If there is no probate the money, for property, or for enforce- claim should be made to the heirs. ment of a right provided by law. 2) n. (See: probate) the making of a demand (asserting a claim) for money due, for property, claim against a governmental from damages or for enforcement of a agency: n. any time one believes right. If such a demand is not hon- he/she has a right to payment for ored, it may result in a lawsuit. In damages from the government or on order to enforce a right against a gov- an unpaid contract with a govern- ernment agency (ranging for dam- ment agency (including city, county, ages from a negligent bus driver to a state, school district) the first step is shortage in payroll) a claim must be to file a written claim according to filed first. If rejected or ignored by state laws which vary considerably. the government, it is lawsuit time. Usually the time to file a claim is

87 class

relatively brief. If the claim is re- although often attorneys do not col- jected or ignored and the claimant lect a fee at the beginning of a class wants to try again, the claimant action suit but might charge a con- must file a lawsuit within a time pe- tingent fee (such as one-third of the riod usually shorter than other final judgment), which, occasionally, types of lawsuits. can be millions of dollars. Such fees usually require court approval. class: n. in legal (not sociological) terms, all those persons in the same clean hands doctrine: n. a rule of law category, level of rights (e.g. heirs of that a person coming to court with a dead person who are related by the lawsuit or petition for a court order same degree), or who have suffered must be free from unfair conduct from the same incident. Whether a (have “clean hands” or not have done person is part of a class is often cru- anything wrong) in regard to the sub- cial in determining who can sue on ject matter of his/her claim. His/her behalf of the people who have been activities not involved in the legal ac- similarly damaged or collect his/her tion can be abominable because they share if a class action judgment is are considered irrelevant. As an affir- given. (See: class action) mative defense (positive response) a defendant might claim the plaintiff class action: n. a lawsuit filed by one (party suing him/her) has a “lack of or more people on behalf of them- clean hands” or “violates the clean selves and a larger group of people hands doctrine” because the plaintiff “who are similarly situated.” Exam- has misled the defendant or has done ples might include: all women who something wrong regarding the mat- have suffered from defective contra- ter under consideration. Example: A ceptive devices or breast implants, former partner sues on a claim that all those overcharged by a public he was owed money on a consulting utility during a particular period, or contract with the partnership when all those who were underpaid by an he left, but the defense states that employer in violation of the Fair the plaintiff (party suing) has tried to Labor Standards Act. If a class ac- get customers from the partnership tion is successful, a period of time is by spreading untrue stories about the given for those who can prove they remaining partner’s business prac- fit the class to file claims to partici- tices. (See: affirmative defense) pate in the judgment amount. Class actions are difficult and expensive clear and convincing evidence: n. to file and follow through, but the evidence that proves a matter by the results can be helpful to people who “preponderance of evidence” re- could not afford to carry a suit quired in civil cases and beyond the alone. They can force businesses “reasonable doubt” needed to convict that have caused broad damage or in a criminal case. (See: beyond a have a “public be damned” attitude reasonable doubt, preponder- to change their practices and/or pay ance of evidence) for damages. They often result in

high fees for the winning attorneys, clear and present danger: n. the doc-

88 closing argument

trine established in an opinion 3) a person who works in an office or written by Oliver Wendell Holmes, a store who performs physical work Jr. in Schenk vs. United States such as filing, stocking shelves, or (1919) which is used to determine if counter sales. a situation creates a threat to the public, individual citizens or to the close corporation: n. a corporation nation. If so, limits can be placed which is permitted by state law to on First Amendment freedoms of operate more informally than most speech, press or assembly. His fa- corporations (allowing decisions mous example was that no one without meetings of the board of di- should shout “fire” in a crowded rectors) and has only a limited num- theater (speech), but other cases ber of shareholders. Usually a close have included the printing of a list corporation’s shareholders are in- of the names and addresses of CIA volved in the actual operation of the agents (press) or the gathering to- business and often are family mem- gether of a lynch mob (assembly). bers. (See: corporation) clear title: n. holding ownership of closed shop: n. a business that will real property without any claims hire only union members by choice or by others on the owner’s title and by agreement with the unions, al- no history of past claims which though the Labor-Management Re- might affect the ownership. (See: lations Act prohibits closed shop cloud on title) practices which require employees to be union members. A “union shop” is clerk: n. 1) an official or employee a business in which a majority of the who handles the business of a workers have voted to name a union court or a system of courts, main- as their certified bargaining agent. tains files of each case, and issues routine documents. Almost every closing: n. the final step in the sale and county has a clerk of the courts or purchase of real estate in which a deed County Clerk who fulfills those of title, financing documents, title in- functions, and most courtrooms surance policies, and remaining funds have a clerk to keep records and due are exchanged. Some of the final assist the judge in the manage- documents, including the deed and ment of the court. 2) a young mortgage or deed of trust, are then de- lawyer who assists a judge or a se- livered to the county recorder to be nior attorney in research and recorded. Depending on local practice, drafting of documents, usually for the closing is handled by a title com- a year or two, and benefits in at pany, escrow holder or attorney. least two ways: learning from the

judge or attorney and enjoying as- closing argument: n. the final argu- sociation with them. Law clerks for ment by an attorney on behalf of judges, particularly on the Courts his/her client after all evidence has of Appeal and the Supreme Court, been produced for both sides. The are chosen from among the top stu- lawyer for the plaintiff or prosecution dents graduating from law school. (in a criminal case) makes the first

89 cloud on title (cloud)

closing argument, followed by health and safety codes, insurance counsel for the defendant, and then code, labor code, motor vehicle code, the plaintiffs attorney can respond penal code, revenue and taxation code, to the defense argument. Unlike and so forth. Federal statutes which the “opening statement,” which is deal with legal matters are grouped limited to what is going to be together in codes. There are also proved, the “closing argument” statutes which are not codified. De- may include opinions on the law, spite their apparent permanence, comment on the opposing party’s codes are constantly being amended evidence, and usually requests a by legislative bodies. Some codes are judgment or verdict (jury’s deci- administrative and have the force of sion) favorable to the client. (See: law even though they were created opening statement, trial) and adopted by regulatory agencies and are not actually statutes or laws. cloud on title (cloud): n. an actual (See: law, statute) or apparent outstanding claim on the title to real property. “Clouds” codefendant: n. when more than one can include an old mortgage or deed person or entity is sued in one of trust with no recording showing lawsuit, each party sued is called the secured debt was paid off, a fail- a codefendant. ure to properly transfer all interests in the real property (such as Code of Professional Responsibili- mineral rights) to a former owner, a ty: n. a set of rules governing the eth- previous deed which was improper- ical conduct of attorneys in the prac- ly written or signed, an unresolved tice of the law. It covers such topics as legal debt or levy by a creditor or a conflicts of interest, honesty with taxing authority, or some other clients, confidentiality and conduct to- doubtful link in the chain of title. ward other attorneys and the courts. Often the “cloud” can be removed by First developed and pushed by the a quiet title action, by finding a per- American Bar Association, the code son to create or execute a document has been adopted by most states. to prove a debt had been paid or corrected. Title companies will codicil: n. a written amendment to a refuse to insure title to be trans- person’s will, which must be dated, ferred with a “cloud,” or they will signed and witnessed just as a will insure ownership except for (“in- would be, and must make some refer- sure around”) the “cloud.” (See: ence to the will it amends. A codicil chain of title, deed of trust, can add to, subtract from or modify mortgage, quiet title action, re- the terms of the original will. When conveyance, title, title report) the person dies, both the original will and the codicil are submitted for ap- code: n. a collection of written laws proval by the court (probate) and form gathered together, usually covering the basis for administration of the es- specific subject matter. Thus, a state tate and distribution of the belongings may have a civil code, corporations of the writer. (See: probate, will) code, education code, evidence code,

90 collusion

codify: v. to arrange and label a sys- where he lives, to establish that he is tem of laws. not the father of Betty’s child, while Betty has filed for divorce in Colorado cohabitation: n. living together in asking that John pay child support the same residence, generally ei- for the child. The New Mexico pater- ther as husband and wife or for an nity suit is collateral to the Colorado extended period of time as if the divorce action. parties were married. Cohabitation

implies that the parties are having collateral attack: n. a legal action to sexual intercourse while living to- challenge a ruling in another case. For gether, but the definition would not example, Joe Parenti has been ordered apply to a casual sexual encounter. to pay child support in a divorce case, Legal disputes have arisen as to but he then files another lawsuit try- whether cohabitation would refer ing to prove a claim that he is not the to same sex partners, which is im- father of the child. A “direct attack” portant to those involved since “co- would have been to raise the issue of habitation” is the basis of certain paternity in the divorce action. rights and privileges under various

laws, regulations and contracts. collateral descendant: n. a relative The findings of the courts vary on descended from a brother or sister of this question, but the trend is to in- an ancestor, and thus a cousin, niece, clude long-standing homosexual re- nephew, aunt or uncle. (See: de- lationships as cohabitation. scent and distribution)

coinsurance: n. an insurance policy collateral estoppel: n. the situation in in which the insurance company which a judgment in one case prevents insures only a partial value of (estops) a party to that suit from try- the property owned by the insured ing to litigate the issue in another owner. Essentially the owner legal action. In effect, once decided, the and the insurance company share parties are permanently bound by that the risk. ruling. (See: estoppel, res judicata) collateral: 1) n. property pledged to collusion: n. where two persons (or

secure a loan or debt, usually funds business entities through their offi- or personal property as distin- cers or other employees) enter into a guished from real property (but deceitful agreement, usually secret, to technically collateral can include defraud and/or gain an unfair advan- real estate). 2) adj. referring to tage over a third party, competitors, something that is going on at the consumers or those with whom they same time parallel to the main are negotiating. Collusion can include issue in a lawsuit or controversy secret price or wage fixing, secret re- which may affect the outcome of the bates, or pretending to be independent case, such as adoption of a new fed- of each other when actually conspiring

eral regulation or a criminal trial of together for their joint ends. It can one of the parties. Example: John range from small-town shopkeepers has filed a lawsuit in New Mexico, or heirs to a grandma’s estate, to

91 collusive action

gigantic electronics companies or sign a check or a promissory note,

big league baseball team owners. each is a comaker, and each is liable (See: fraud) for the entire amount to be paid. (See: maker) collusive action: n. a lawsuit brought by parties pretending to The income tax has made be adversaries in order to obtain more liars out ofthe American by subterfuge an advisory opinion people than golf has. or precedent-setting decision from —Will Rogers the court. If a judge determines the action does not involve a true con-

troversy he/she will dismiss it. comity: n. when one court defers to the (See: advisory opinion, collu- jurisdiction of another in a case in sion, controversy, precedent) which both would have the right to handle the case. Usually this is ap- color of law: n. the appearance of plied to a federal court allowing a state an act being performed based court to try a criminal case (either ex- upon legal right or enforcement of clusively or first) in which both a state statute, when in reality no such and federal crime has apparently been right exists. An outstanding exam- committed. Murder which also vio- ple is found in the civil rights acts lates civil rights, kidnapping across

which penalize law enforcement state borders, murder of a federal offi- officers for violating civil rights by cial, fraud involving violations of both making arrests “under color of federal and state laws are examples of law” of peaceful protesters or to cases to which comity may apply. disrupt voter registration. It could

apply to phony traffic arrests in commencement of action: n. an ac- order to raise revenue from fines or tion (a lawsuit) commences (begins extort payoffs to forget the ticket. officially) when the party suing files a written complaint or petition with color of title: n. the appearance of the clerk of the court. Under a unique having title to personal or real New York statute a plaintiff may pre- property by some evidence, but in pare a summons and get a case num- reality there is either no title or a ber before filing a complaint. (See: vital defect in the title. One might summons complaint, petition) show a title document to real property, but in reality he/she may have comment: n. a statement made by a deeded the property to another; a judge or an attorney during a trial patent to an invention may have which is based on an alleged fact, but passed to the inventor’s widow, who not a proven fact. If a comment is sells the rights to one party and made in the presence of the jury, the

then, using the original patent doc- jurors should be reminded it is not ev- uments, sells the patent to a second idence and should not be considered. party based on this “color of title.” But how can a juror forget? The old adage: “a bell once rung, cannot be un- comaker: n. when two or more people rung,” applies.

92 common area commercial frustration: n. an un- mingle those funds with their own, foreseen uncontrollable event which since commingling is generally pro- occurs after a written or oral con- hibited as a conflict of interest. Use of tract is entered into between par- commingled funds for an investment,

ties, and makes it impossible for even though it might benefit both the

one of the parties to fulfill his/her trustee and the beneficiary, is still duties under the contract. This cir- improper. Inadvertent commingling cumstance allows the frustrated or temporary commingling (say, party to rescind the contract with- upon receipt of a settlement check in out penalty. Such frustration (called which both the client and attorney frustration of purpose) could in- have an interest) requires prompt clude the destruction by fire of the separation of funds and accounting goods to be purchased, the denial of to the client or beneficiary. To avoid a permit to construct a building commingling, trustees, lawyers, by a potential buyer, or denial of an guardians and those responsible for application for a zoning variance another’s funds set up trust accounts to allow expansion by a contractor. for funds of another. (See: contract, frustration of

purpose, impossibility) commission: n. 1) a fee paid based on a percentage of the sale made by an commercial law: n. all the law employee or agent, as distinguished which applies to the rights, rela- from regular payments of wages or tions and conduct of persons and salary. 2) a group appointed pursuant businesses engaged in commerce, to law to conduct certain government merchandising, trade and sales. In business, especially regulation. These recent years this body of law has range from the local planning or zon- been codified in the Uniform Com- ing commission to the Securities and mercial Code, which has been al- Exchange Commission or the Federal most universally adopted by the Trade Commission. states. (See: Uniform Commer- cial Code) commitment: n. a judge’s order sending someone to jail or prison, upon commingling: n. the act of mixing conviction or before trial, or directing the funds belonging to one party that a mentally unstable person be

with those of another party, or, confined to a mental institution. most importantly with funds held Technically the judge orders law en- in trust for another. Spouses or forcement personnel to take the pris- business partners may commingle oner or patient to such places. without a problem, except that a spouse may thus risk turning sepa- common area: n. in condominium and rate property into community prop- some cooperative housing projects, erty (transmutation), and a busi- the areas not owned by an individual ness partner may have to account owner of the condominium or coopera-

to the other. However, trustees, tive residence, but shared by all own- guardians or lawyers holding client ers, either by percentage inter- funds must be careful not to com- est or owned by the management

93 common carrier

organization. Common areas may written law of England, based on cus- include recreation facilities, out- tom and usage, which began to devel- door space, parking, landscaping, op over a thousand years before the fences, laundry rooms and all founding of the United States. The other jointly used space. Manage- best of the pre-Saxon compendiums of ment is by a homeowners’ associa- the common law was reportedly writ- tion or cooperative board, which ten by a woman, Queen Martia, wife collects assessments from the own- of a king of a small English kingdom. ers and pays for upkeep, some in- Together with a book on the “law of surance, maintenance and re- the monarchy” by a Duke of Cornwall, serves for replacement of improve- Queen Martia’s work was translated ments in the common area. This into the emerging English language can also refer to the area in a shop- by King Alfred (849-899 A.D.). When ping center or mall outside of the William the Conqueror invaded Eng- individual stores, for which each land in 1066, he combined the best of business pays a share of mainte- this Anglo-Saxon law with Norman nance based on percentage of total law, which resulted in the English store space occupied. common law, much of which was by custom and precedent rather than common carrier: n. an individual, a by written code. By the 14th century company or a public utility (like mu- legal decisions and commentaries on nicipal buses) which is in the regu- the common law began providing lar business of transporting people precedents for the courts and lawyers and/or freight. This is distinguished to follow. It did not include the so- from a private carrier, which only called law of equity (chancery), which transports occasionally or as a one- came from the royal power to order or time-only event. (See: carrier) prohibit specific acts. The common law became the basic law of most common counts: n. claims for debt states due to the Commentaries on alleged in a lawsuit (included in the Laws of England, completed by the complaint) which are general Sir William Blackstone in 1769, and alleged together so that the which became every American defendant cannot squirm out of li- lawyer’s bible. Today almost all com- ability on some technicality on one mon law has been enacted into of the counts. Common counts may statutes with modem variations by include claims of debt for goods all the states except Louisiana, which sold and delivered, for work per- is still influenced by the Napoleonic formed, for money loaned or ad- Code. In some states the principles of vanced, for money paid requiring Common Law are so basic they are repayment, for money received on applied without reference to statute. behalf of the plaintiff, or for money due on an account stated or on an common-law marriage: n. an open book account. (See: cause of agreement between a man and action, complaint, count) woman to live together as husband and wife without any legal formali- common law: n. the traditional un- ties, followed and/or preceded by

94 community property

cohabitation on a regular basis Usually holders of common stock (usually for seven years). Common- have voting rights. These are distin- law marriage is legal in Alabama, guished from preferred stock in which Colorado, Georgia, Idaho, Iowa, the profits are a predetermined per- Kansas, Montana, Ohio, Oklahoma, centage and are paid before the com- Pennsylvania, Rhode Island, South mon shareholders who gamble on Carolina, Texas and Utah, thereby higher profits, and collectively have recognizing a marriage for purposes voting control of the corporation. of giving the other party the rights (See: corporation, preferred of a spouse, including inheritance stock, share, stock ) or employee benefits. Such informal

partnerships are recognized by community property: n. property some local governments for purpos- and profits received by a husband es of the rights of a spouse under and wife during the marriage, with employment contracts and pension the exception of inheritances, specific rights even where the state does gifts to one of the spouses, and prop- not recognize this as a marriage. erty and profits clearly traceable to

(See: cohabitation) property owned before marriage, all of which is separate property. Communi- common property: n. 1) real prop- ty property is a concept which began erty owned by “tenants in com- in Spain to protect rich women from mon,” who each have an “undivid- losing everything to profligate hus- ed interest” in the entire property. bands, and is only officially recognized 2) property managed by a home- in some states which were once under owners’ association in a condomini- or influenced by Spanish or Mexican um project or a subdivision devel- control, including California, Arizona, opment, which all owners may use New Mexico, Texas, Nevada, Idaho, and each owns a percentage inter- Washington and Louisiana. Commu- est in. 3) lands owned by the gov- nity property recognizes the equal ernment for public (common) use, contribution of both parties to the like parks and national forests. marriage even though one or the (See: tenancys in common) other may earn more income through employment. By agreement or action the married couple can turn (trans- The only thing that saves us from mute) separate property into community property, bureaucracy is inefficiency. An including by commingling efficient bureaucracy is the community and separate funds in greatest threat to liberty. one account. Community property —Senator Eugene J. McCarthy is recognized based on fact or agreement of the parties, rather than holding of title. The state courts have wa- common stock: n. stock in a corpora- vered on what constitutes proof of tion in which dividends (payouts) community property, including the

are calculated upon a percentage of issue of whether joint tenancy is evi- net profits, with distribution deter- dence of community property or not.

mined by the board of directors. Upon divorce community property is

95 commutation

divided equally without regard to entity for profit, which may be a fault. Upon the death of one spouse corporation, a partnership, association all the community property goes to or individual proprietorship. Often the other except in Texas surviving people think the term “company” children get one half and in obvious means the business is incorporated, sexual discrimination Nevada and but that is not true. In fact, a corpora-

New Mexico allow the husband to tion usually must use some term in its will a half to someone other than his name such as “corporation,” “incorpo-

wife. (See: descent, descent and rated,” “corp.” or “inc.” to show it is a distribution, separate property) corporation. (See: business)

commutation: n. the act of reducing comparative negligence: n. a rule of a criminal sentence resulting from a law applied in accident cases to deter- criminal conviction by the executive mine responsibility and damages clemency of the Governor of the based on the negligence of every party state, or President of the United directly involved in the accident. For a States in the case of federal crimes. simple example, Eddie Leadfoot, the This is not the same as a pardon, driver of one automobile, is speeding which wipes out the conviction or and Rudy Airhead, the driver of an on- the actual or potential charge (as coming car, has failed to signal and when President Gerald R. Ford par- starts to turn left, incorrectly judging doned ex-President Richard M. Leadfoot’s speed. A crash ensues in Nixon even without charges having which Airhead is hurt. Airhead’s dam- been officially made—a rare in- age recovery will be reduced by the stance). A pardon implies either percentage his failure to judge Lead- that the conviction was wrong, that foot’s speed contributed to or caused there has been complete rehabilita- the accident. Most cases are not as tion of the party, or that he/she has simple, and the formulas to figure out, lived an exemplary life for many attribute and compare negligence years and deserves to have his/her often make assessment of damages

name cleared in old age. Commuta- problematic, difficult, and possibly to- tion implies the penalty was exces- tally subjective. Not all states use

sive or there has been rehabilita- comparative negligence (California is tion, reform or other circumstances a fairly recent convert), and some such as good conduct or community states still use contributory negli- service. Commutation is sometimes gence which denies recovery to any used when there is evidence that party whose negligence has added to the defendant was not guilty, but it the cause of the accident in any way. would prove embarrassing to admit Contributory negligence is often so

an outright error by the courts. (See: unfair that juries tend to ignore it. executive clemency, pardon) (See: contributory negligence, damages, negligence) commute a sentence: v. (See: com-

mutation) compensation: n. 1) payment for work performed, by salary, wages, commis- company: n. any formal business sion or otherwise. It can include giv-

96 complaint

ing goods rather than money. 2) the incompetency then the defendant may amount received to “make one be sent to a state mental facility until whole” (or at least better) after an such time as he/she regains sanity. At injury or loss, particularly that paid that time a trial may be held, but this by an insurance company either of is rare. 4) in evidence, “competent” the party causing the damage or by means “relevant” and/or “material.” one’s own insurer. Lawyers often make the objection to evidence: “incompetent, irrelevant compensatory damages: n. dam- and immaterial” to cover all bases. ages recovered in payment for ac- (See: evidence, will) tual injury or economic loss, which does not include punitive damages complainant: n. a person or entity (as added damages due to mali- who begins a lawsuit by filing a com- cious or grossly negligent action). plaint and is usually called (See: damages, general dam- the plaintiff, or in some cases the ages, punitive damages, spe- petitioner. (See: complaint, peti- cial damages) tioner, plaintiff) competent: adj. 1) in general, able to complaint: n. the first document filed act in the circumstances, including with the court (actually with the the ability to perform a job or occu- County Clerk or Clerk of the Court) by pation, or to reason or make deci- a person or entity claiming legal

sions. 2) in wills, trusts and con- rights against another. The party fil- tracts, sufficiently mentally able to ing the complaint is usually called the understand and execute a docu- plaintiff and the party against whom ment. To be competent to make a the complaint is filed is called the de- will a person must understand what fendant or defendants. Complaints a will is, what he/she owns (al- are pleadings and must be drafted though forgetting a few items carefully (usually by an attorney) to among many does not show incom- properly state the factual as well as petency), and who are relatives who legal basis for the claim, although would normally inherit (“the natur- some states have approved complaint al objects of his/her bounty”) such as forms which can be filled in by an in- children and spouse (although for- dividual. A complaint also must follow getting a child in a will is not auto- statutory requirements as to form. matic proof of lack of competency, For example, a complaint must be since it may be intentional or the typed on a specific type of paper or on child has been long gone). 3) in crim- forms approved by the courts, name inal law, sufficiently mentally able both the party making the claim and to stand trial, if he/she understands all defendants, and should state what the proceedings and can rationally damages or performance is demanded deal with his/her lawyer. This is (the prayer). When the complaint is often broadly interpreted by psychi- filed, the court clerk will issue a sum-

atrists whose testimony may per- mons, which gives the name and file suade a court that a party is too psy- number of the lawsuit and the address chotic to be tried. If the court finds of the attorney filing the complaint,

97 compos mentis

and instructs the defendant that compound question: n. the combina- he/she/it has a specific time to file tion of more than one question into an answer or other response. A copy what seems to be a single question of the complaint and the summons asked of a witness during a trial or must be served on a defendant be- deposition. A compound question can fore a response is required. Under a be objected to by opposing counsel unique statute, New York allows since it is confusing to the witness, a summons to be served without a who is entitled to answer each ques-

complaint. A complaint filing must tion separately. If the objection is be accompanied by a filing fee sustained the question must be with- payable to the court clerk, unless a drawn and asked in a series of sepa- waiver based on poverty is obtained. rate questions. (See: objection) (See: answer, caption, in forma

pauperis, pleading, prayer, ser- compromise: 1) n. an agreement be- vice of process, summons) tween opposing parties to settle a dispute or reach a settlement in compos mentis: n. (com-pose-men- which each gives some ground, tis) Latin for “having a sound mind.” rather than continue the dispute or (See: non compos mentis) go to trial. Judges encourage com-

promise and settlement, which is

compounding a felony: n. when often economically sensible, since it a person injured by a felony avoids mounting attorneys’ fees and (being shot, having one’s business costs. 2) v. to reach a settlement in trashed, being robbed) reaches an which each party gives up some de- agreement with the one causing mands. (See: settlement) the harm that the injured party

(victim) will not prosecute (com- compromise verdict: n. a decision plain to law authorities or testify) made by a jury in which the jurors the apparent felon in return for split the difference between the high money payment, reparations, re- amount of damages which one group turn of stolen goods or other recom- of jurors feel is justified and the low pense. Since it smacks of a bribe, in amount other jurors favor. Since this most jurisdictions it is a crime. is a “chance” verdict not computed on a careful determination of the dam- compound interest: n. payment of ages, it may do an injustice to one interest upon principal and previ- party or the other, and is thus mis- ously accumulated interest, which conduct, which can result in an ap- increases the amount paid for peals court overturning the verdict. money use above simple interest. (See: verdict) Thus, it can increase more rapidly if compounded daily, monthly or is quarterly. The genius physicist Al- The law a causeway upon so bert Einstein called compound in- which long as he keeps to terest man’s “greatest invention.” it a citizen may walk safely. Most lenders agree. (See: interest, —Robert Bolt, A Man for All promissory note) Seasons

98 condemn

concealed weapon: n. a weapon, conclusion of fact: n. in a trial, the particularly a handgun, which is final result of an analysis of the facts kept hidden on one’s person, or presented in evidence, made by the

under one’s control (in a glove com- trier of fact (a jury or by the judge if

partment or under a car seat). Car- there is no jury). When a judge is the rying a concealed weapon is a crime trier of fact he/she will present orally in most states unless the party with in open court or in a written judg- the weapon is a law enforcement of- ment his/her findings of fact to sup- ficer or has a permit to carry a con- port his/her decision. In most cases cealed weapon. A permit is usually either party is entitled to written issued by local law enforcement conclusion of facts if requested. (See: under guidelines of need—such as finding, judgment) being a carrier of large amounts of

cash in business—and having a conclusion of law: n. a judge’s final record free of convictions, arrests or decision on a question of law which improper activity. has been raised in a trial or a court hearing, particularly those issues concealment: n. fraudulent failure which are vital to reaching a state- to reveal information which some- ment. These may be presented orally one knows and is aware that in good by the judge in open court, but are faith he/she should communicate to often contained in a written judgment another. Examples include failure in support of his/her judgment such to disclose defects in goods sold (the as an award of damages or denial of a

horse has been sick, the car has petition. In most cases either party is been in an accident), leaving out entitled to written conclusions of law significant liabilities in a credit ap- if requested. (See: judgment) plication, or omitting assets from a

bankruptcy schedule to keep them concurrent sentences: n. sentences from being available for distribution for more than one crime which are to to creditors. Such concealment at be served at one time. When a criminal minimum can be a cause for rescis- defendant is convicted of two or more sion (cancellation) of a contract by crimes, a judge sentences him/her to a the misled party or basis for a civil certain period of time for each crime. lawsuit for fraud. (See: fraud) Then out of compassion, leniency, plea bargaining or the fact that the several conclusion: n. 1) in general, the end. crimes are interrelated, the judge will 2) in a trial, when all evidence has rule that the sentences may all be been introduced and final argu- served at the same time, with the ments made, so nothing more can be longest period controlling. presented, even if a lawyer thinks of

something new or forgotten. 3) in a condemn: v. 1) for a public agency to de-

trial or court hearing, a final deter- termine that a building is unsafe or mination of the facts by the trier of unfit for habitation and must be tom fact (juiy or judge) and/or a judge’s down or rebuilt to meet building and decision on the law. (See: conclu- health code requirements. 2) for a gov- sion of fact, conclusion of law) ernmental agency to take private prop-

99 condemnation

erty for public use under the right of condition: n. a term or requirement eminent domain, but constitutional- stated in a contract, which must ly the property owner must receive be met for the other party to have just compensation. If an agreement the duty to fulfill his/her obligations. cannot be reached then the owner is (See: condition precedent, condi- entitled to a court determination of tion subsequent) value in a condemnation action (law-

suit), but the public body can take conditional bequest: n. in a will, a gift the property immediately upon de- which will take place only if a particu- posit of the estimated value. 3) to lar event has occurred by the time the sentence a convicted defendant to maker of the will dies. Example: death. 4) send to prison. (See: capi- Ruth’s will provides that “Griselda will tal punishment, condemnation receive the nursery furniture if she has action, eminent domain) children at the time of my death.” This is slightly different from an executory condemnation: n. the legal process bequest, which could provide for a gift by which a governmental body exer- to a beneficiary upon the happening of cises its right of “eminent domain” a specified event. Example of an ex- to acquire private property for pub- ecutory bequest: a trust provides lic uses (highways, schools, redevel- “Betty shall receive the house held in opment, etc.). Condemnation in- trust when she marries.” (See: be- cludes a resolution of public need, quest, executory) an offer to purchase, and, if a nego-

tiated purchase is not possible, then conditional sale: n. a sale of property

a condemnation suit. The govern- or goods which will be completed if ment may take the property at the certain conditions are met (as agreed) time of suit if it deposits money with by one or both parties to the transac- the court in the amount of the gov- tion. Example: Hotrod agrees to buy ernment’s appraisal. (See: condem- Tappit’s 1939 LaSalle for $1,000 cash nation action, eminent domain, if Tappit can get the car running by inverse condemnation) September 1st. (See: sale)

condemnation action: n. a lawsuit condition precedent: n. 1) in a con- brought by a public agency to ac- tract, an event which must take place quire private property for public before a party to a contract must per- purposes (schools, highways, parks, form or do their part. 2) in a deed to hospitals, redevelopment, civic real property, an event which has to buildings, for example), and a deter- occur before the title (or other right) to mination of the value to be paid. the property will actually be in the

While the government has the right name of the party receiving title. Ex-

to acquire the private property (em- amples: if the ship makes it to port, inent domain), the owner is entitled the buyer agrees to pay for the freight

under the Constitution to receive on the ship and unload it; when just compensation to be determined daughter Gracella marries she shall by a court. (See: condemnation, then have full title to the property. eminent domain) (See: condition)

100 confession

condition subsequent: n. 1) in a with the result that it appears that contract, a happening which termi- such breaches of moral or legal du- nates the duty of a party to perform ties are acceptable. An employer may or do his/her part. 2) in a deed to overlook an employee overcharging real property, an event which termi- customers or a police officer may nates a person’s interest in the prop- look the other way when a party uses erty. Examples: if the Dingbat Com- violent self-help to solve a problem. pany closes its business, a supplier 2) to forgive the marital infidelity of will not be required to fulfill its con- one’s spouse and resume marital sex- tract and deliver gidgets to the com- ual relations on the condition that pany and the contract will termi- the sin is not repeated. nate; if daughter-in-law Beatrice

terminates her marriage to Reggie confess: v. in criminal law, to volun- Fauntleroy, her interest in the real tarily state that one is guilty of a property will terminate and revert criminal offense. This admission to the grantors, Mom and Dad may be made to a law enforcement Fauntleroy. (See: condition) officer or in court either prior to or

upon arrest, or after the person is condominium: n. title to a unit of charged with a specific crime. A con- real property which, in reality, is the fession must be truly voluntary (not airspace which an apartment, office forced by threat, torture, or trickery) or store occupies. An increasingly and cannot be admitted in trial un- common form of property title in a less the defendant has been given multi-unit project, condominiums the so-called Miranda warnings at actually date back to ancient Rome, the time of arrest or when it is clear hence the Latin name. The owner of he/she is the prime suspect, all based the condominium also owns a com- on the Fifth Amendment prohibition mon tenancy with owners of other against self-incrimination. The Mi- units in the common area, which in- randa warnings are: the right to re- cludes all the driveways, parking, main silent, the right to have an at- elevators, outside hallways, recre- torney present and that one can be ation and landscaped areas, which appointed, and that his/her state- are managed by a homeowners’ or ments may be used against the de- tenant’s association. If the condo- fendant in court. (See: Bill of minium unit is destroyed by fire or Rights, confession, Miranda other disaster, the owner has the warning, self-incrimination) right to rebuild in his/her airspace. Most states have adopted statutes confession: n. the statement of one to cover special issues involving de- charged with a crime that he/she velopment, construction, manage- committed the crime. Such an ad- ment and taxation of condominium mission is generally put in writing projects. (See: common area) (by the confessor, law enforcement officers or their stenographer) and condone: v. 1) to forgive, support, then read and signed by the defen- and/or overlook moral or legal fail- dant. If the defendant cannot read ures of another without protest, English, he/she has the right to have

101 confession and avoidance

his/her confession read aloud or vided to the parties to a lawsuit or translated. It can be used against their attorneys. This is based on the the defendant in trial (and his/her inherent private relationship be- codefendants) if it is truly volun- tween the person communicating and tary. (See: Bill of Rights, con- the confidant’s occupation or relation- fess, Miranda warning, self-in- ship to him/her. They include commu- crimination) nications between husband and wife, lawyer and client, physician or other confession and avoidance: n. when medical person (most therapists) and a defendant admits the allegations patient, minister or priest and parish- in a complaint against him/her in a ioner (or anyone seeking spiritual lawsuit or accusations in a criminal help), and journalist and source in case but alleges other facts (affirma- some states. Moral conflicts may arise tive defenses) to show that the orig- when a murderer or child molester

inal allegations do not prove a case confesses to his/her priest, who is against him/her. Often this means pledged to silence and confidentiality the defendant confesses to the accu- by his priestly vows and cannot reveal racy of the stated facts and tries to the confession in legal cases. (See: at- avoid their legal impact. torney-client privilege, privileged communication) confession ofjudgment: n. a written agreement in which the defendant in confidential relation: n. a relation- a lawsuit admits liability and accepts ship in which one person has confi- the amount of agreed-upon damages dence in and relies on another be- he/she must pay to plaintiff (person cause of some combination of a histo- suing him/her), and agrees that the ry of trust, older age, family connec- statement may be filed as a court tion and/or superior training and judgment against him/her if he/she knowledge, to a point where the does not pay or perform as agreed. party relied upon dominates the situ-

This avoids further legal proceedings ation, for good or bad. While it may and may prevent a legal judgment include attorney and client, stockbro- being entered (filed) if the terms are ker and customer, real estate agent fulfilled by the defendant. and buyer, a senior family member and an unsophisticated relative, the confidence game: n. the obtaining relationship is defined on a case-by- of money from others through trick case basis, with reliance and domi- or swindle, generally by gaining nance the key factors. In this situa- the victim’s trust and confidence. tion, the trusting party does not have (See: swindle) to be as vigilant or suspicious as with strangers or people who are not re- confidential communication: n. lied upon. The time clock (statute of certain written communications limitations) to bring a lawsuit which can be kept confidential and against a crook who is in a confiden- need not be disclosed in court as ev- tial relationship may not start to run idence, answered by a witness until the misdeeds become extremely either in depositions or trial, or pro- obvious. (See: fiduciary)

102 conjugal rights

confiscate: v. to take one’s goods or erty in several states, when people property without legal right, al- earn income in several states, are in- though there may appear to be some volved in business in several states, lawful basis. In the case of a govern- or violate both state and federal laws ment seizing property, it may in- in one scheme. Also to be considered clude taking without the just com- is the issue of federal preemption, pensation as guaranteed by the which may dictate that the federal Constitution. There are some acts of statutes have been given a monopoly legal confiscation, such as taking an on the subject (pre-empted the field) automobile used in illegal drug traf- and that a federal court must try the fic. (See: condemnation, theft) case, but that it will apply the laws of the state where the controversy conflict of interest: n. a situation in arose. (See: forum, preemption) which a person has a duty to more

than one person or organization, but confrontation: n. 1) fight or argu- cannot do justice to the actual or po- ment. 2) the right of a criminal de- tentially adverse interests of both fendant “to be confronted with the parties. This includes when an indi- witnesses against him” (Sixth vidual’s personal interests or con- Amendment to the Constitution). cerns are inconsistent with the best Confrontation includes the right to for a customer, or when a public of- object to the witness against him/her ficial’s personal interests are con- (sometimes depending on whether trary to his/her loyalty to public the witness can identify the defen- business. An attorney, an accoun- dant) and to cross-examine that wit- tant, a business adviser or realtor ness. (See: Bill of Rights, witness) cannot represent two parties in a dispute and must avoid even the ap- confusingly similar: adj. in the law pearance of conflict. He/she may not of trademarks, when a trademark, join with a client in business with- logo or business name is so close to out making full disclosure of his/her that of a pre-existing trademark, potential conflicts, he/she must logo or name that the public might avoid commingling funds with the misidentify the new one with the old client, and never, never take a posi- trademark, logo or name. Such con- tion adverse to the customer. fusion may not be found if the products or businesses are clearly not in conflict of law: n. a situation in the actual or potential product mar- which both state and federal laws kets or geographic area of the other. or courts, or laws of more than one (See: trademark) state, are applicable to a potential

lawsuit or interpretation of a docu- conjugal rights: n. a spouse’s so-called ment and seem to be inconsistent “rights” to the comforts and compan- or in conflict. The plaintiffs attor- ionship from his/her mate, meaning ney’s first problem is to decide in sexual relations. Some states allow what state or federal court the law- prisoners to have “conjugal visits” so suit should be filed. This can apply that they may have private visits and to a dead person’s estate with prop- sexual relations with their spouse (or

103 conscientious objector

“significant other”) in a special room anti-trust laws. Example: a) Air or apartment. Chance Airline offers a two-for-one special for all flights over 1,000 conscientious objector: n. a person miles, and, within a week, several who refuses to serve in the military other airlines offer the same bargain, due to religious or strong philosoph- b) Rumble Oil Company stations set ical views against war or killing. gasoline prices at $1.38 for premium Refusing to answer a draft call is a and the next day all gas stations in federal felony, but when a person’s the Rumble market area set their religious beliefs are long-standing pumps at $1.38. Coincidence? No, and consistent (as with the Quak- conscious parallelism. ers) then the objection to service is

excused. Conscientious objectors consent: 1) n. a voluntary agreement to

may be required to perform some another’s proposition. 2) v. to volun- non-violent work like driving an tarily agree to an act or proposal of an- ambulance. During the Vietnam other, which may range from con- War some conscientious objectors tracts to sexual relations. fled to Canada to avoid any service. However, heavyweight boxing consent decree: n. an order of a judge

champion Muhammad Ali refused based upon an agreement, almost al- induction during the Vietnam War ways put in writing, between the par- (1967) on the basis of his Black ties to a lawsuit instead of continuing

Muslim religious beliefs against the case through trial or hearing. It

war and other philosophical rea- cannot be appealed unless it was sons, but was charged with draft based upon fraud by one of the parties evasion anyway. Ali was convicted (he lied about the situation), mutual and sentenced to five years in mistake (both parties misunderstood prison. On June 28, 1971, the the situation) or if the court does not Supreme Court overturned Ali’s have jurisdiction over the case or the

conviction. Those who do not agree parties. Obviously, such a decree is al- with these objectors sometimes call most always final and non-appealable

them “draft dodgers.” since the parties worked it out. A consent decree is a common practice when the government has sued to Woe unto you, lawyers, for ye make a person or corporation comply have taken away the key of with the law knowledge. (improper securities practices, pollution, restraints of —The Bible, Luke XI.S2 trade, conspiracy) or the defendant agrees to the consent decree (often not conscious parallelism: n. an undis- to repeat the offense) in return for the cussed imitation by a business of a government not pursuing criminal competitor’s action, such as chang- penalties. In general a consent decree ing prices up or down without the and a consent judgment are the same. active conspiracy between business (See: consent judgment) rivals, which would make this coincidental activity a violation of consent judgment: n. a judgment

104 consideration

issued by a judge based on an agree- of the proposed conservator. An open ment between the parties to a law- hearing is held before the appointment

suit to settle the matter, aimed at is made. The conservator is required to ending the litigation with a judg- make regular accountings which must ment that is enforceable. (See: con- be approved by the court. The conser- sent decree) vator may be removed by order of the court if no longer needed, upon the pe- consequential damages: n. dam- tition of the conservatee or relatives, or ages claimed and/or awarded in a for failure to perform his/her duties. lawsuit which were caused as a (See: conservatee, guardian) direct foreseeable result of wrong-

doing. (See: damages, foresee- consideration: n. 1) payment or able risk) money. 2) a vital element in the law of contracts, consideration is a bene- conservatee: n. a person whom a fit which must be bargained for be- court has determined because of tween the parties, and is the essen- physical or mental limitations or tial reason for a party entering into a just plain old age requires a con- contract. Consideration must be of

servator to handle his/her finan- value (at least to the parties), and is cial affairs, and/or his/her actual exchanged for the performance or personal activities such as arrang- promise of performance by the other ing a residence, health care and party (such performance itself is con- the like. (See: conservator) sideration). In a contract, one consideration (thing given) is exchanged conservator: n. a guardian and pro- for another consideration. Not doing tector appointed by a judge to pro- an act (forbearance) can be consider- tect and manage the financial af- ation, such as “I will pay you $1,000 fairs and/or the person’s daily life not to build a road next to my fence.” due to physical or mental limita- Sometimes consideration is “nomi-

tions or old age. The conservator nal,” meaning it is stated for form may be only of the “estate” (mean- only, such as “$10 as consideration ing financial affairs), but may be for conveyance of title,” which is also of the “person,” when he/she used to hide the true amount being takes charge of overseeing the daily paid. Contracts may become unen- activities, such as health care or liv- forceable or rescindable (undone by ing arrangements of the conserva- rescission) for “failure of considera- tee. The process is that a relative or tion” when the intended considera- friend petitions the appropriate tion is found to be worth less than local court for appointment of a spe- expected, is damaged or destroyed, cific conservator, with written notice or performance is not made properly served on the potential conservatee. (as when the mechanic does not The object of this concern is inter- make the car run properly). Acts viewed by a court-appointed investi- which are illegal or so immoral that gator to determine need, desire they are against established public and understanding of the potential policy cannot serve as consideration conservatee as well as the suitability for enforceable contracts. Examples:

105 consign

prostitution, gambling where out- Hoover) Dam, with each providing lawed, hiring someone to break a different expertise or components. 2) skater’s knee or inducing someone the marital relationship, particularly to breach an agreement (talk sexual intimacies, between husband someone into backing out of a and wife. Consortium arises in a law- promise). (See: contract) suit as a claim of ‘loss of consortium.” Often it means that due to one consign: v. 1) to deliver goods to a spouse’s injuries or emotional distress merchant to sell on behalf of the he/she cannot have sexual relations party delivering the items, as dis- for a period of time or permanently, tinguished from transferring to a which is a loss to the mate for which retailer at a wholesale price for re- he/she should be awarded damages. sale. Example: leaving one’s auto How loss of consortium is valued in at a dealer to sell and split the money terms is a difficult question. profit. 2) to deliver to a carrier to

be taken to an agent of the sender. conspiracy: n. when people work to-

3) when a debtor has belongings gether by agreement to commit an il- but no money to pay his/her credi- legal act. A conspiracy may exist tors and deposits his/her goods when the parties use legal means to with a trustee who will sell them to accomplish an illegal result, or to use raise money to pay the owner’s illegal means to achieve something debts and creditors. This is done that in itself is lawful. To prove a by agreement between a debtor conspiracy those involved must have and his/her creditors or by order of agreed to the plan before all the ac-

a bankruptcy judge. tions have been taken, or it is just a series of independent illegal acts. A consignee: n. a person or business conspiracy can be criminal for plan- holding another’s goods for sale or ning and carrying out illegal activi- for delivery to a designated agent. ties, or give rise to a civil lawsuit for (See: consign) damages by someone injured by the conspiracy. Thus, a scheme by a consignment: n. the act of consign- group of salesmen to sell used auto- ing goods to one who will sell mobiles as new, could be prosecuted them for the owner or transport as a crime of fraud and conspiracy, them for the owner. (See: consign, and also allow a purchaser of an auto consignee) to sue for damages for the fraud and conspiracy. (See: conspirator) consortium: n. 1) a group of separate businesses or business people join- conspirator: n. a person or entity who ing together and cooperating to enters into a plot with one or more

complete a project, work together other people or entities to commit ille- to perform a contract or conduct gal acts, legal acts with an illegal ob- an on-going business. For example, ject, or using illegal methods, to the six companies, including Bechtel harm of others. Conspirators may and Kaiser, joined together in a range from small-time bootleggers to

consortium to build Boulder (now electronics companies meeting to fix

106 constitutional rights

prices in violation of antitrust laws. constitutions by further amendment

(See conspiracy) than it is to enact statutes (pass new laws). However, state courts are constable: n. a law officer for a par- bound by their state’s constitution on ticular area such as a rural town- fundamental issues. The so-called

ship, much like a sheriff (who serves English constitution is an unwritten a county) and usually elected, who body of legal customs and rights de- is responsible for such duties as veloped by practice and court deci- serving summonses, complaints, sions from the 11th to the 18th Centu- subpenas, and court orders, assist- ry. (See: Bill of Rights, common ing the local court, as well as “keep- law, constitutional rights) ing the peace.” In England this was an exalted position as law enforce- constitutional rights: n. rights given ment chief for an extensive area, or reserved to the people by the U.S. but in the United States the office of Constitution, and in particular, the constable is a dying breed, like Jus- Bill of Rights (first ten amendments). tice of the Peace. (See: sheriff) These rights include: writ of habeas corpus, no bill of attainder, no duties constitution: n. the fundamental, or taxes on transporting goods from

underlying document which estab- one state to another (Article I, Section

lishes the government of a nation 9); jury trials (Article III, Section 1); or state. The U.S. Constitution, orig- freedom of religion, speech, press inally adopted in convention on (which includes all media), assembly September 17, 1787, ratified by the and petition (First Amendment); state states in 1788, and thereafter militia to bear arms (Second Amend- amended 27 times, is the prime ex- ment); no quartering of troops in ample of such a document. It is the homes (Third Amendment); no unrea- basis for all decisions by the U.S. sonable search and seizure (Fourth Supreme Court (and federal and Amendment); major (“capital and state courts) on constitutionality. infamous”) crimes require indictment,

The case of Marbury v. Madison no double jeopardy (more than (1803) firmly established the power one prosecution) for the same crime, of the Supreme Court to strike down no self-incrimination, right to due federal statutes it found unconstitu- process, right to just compensation for tional, making the Supreme Court property taken by eminent domain the final arbiter of constitutional in- (Fifth Amendment); in criminal law, terpretation. The “equal rights” pro- right to a speedy trial, to confront wit- vision of the 14th Amendment nesses against one, and to counsel established that the rights in the (Sixth Amendment); trial by jury (Sev- first ten amendments (“Bill of enth Amendment); right to bail, no ex- Rights”) applied to state govern- cessive fines, and no cruel and unusu- ments. Unfortunately, state consti- al punishments (Eighth Amendment); tutions have gathered tremendous unenumerated rights are reserved to amounts of baggage of detail by the people (Ninth Amendment); equal amendment over the years, and it is protection of the laws (14th Amend- more difficult to “fine tune” state ment); no racial bars to voting (15th

107 construction

Amendment); no sex bar to voting constructive eviction: n. when the (19th Amendment); and no poll tax landlord does not go through a legal (24th Amendment). Constitutional eviction of a tenant but takes steps interpretation has expanded and which keep the tenant from continu- added nuances to these rights. (See: ing to live in the premises. This Bill of Rights, constitution) could include changing the locks, turning off the drinking water, block- construction: n. the act of a lawyer ing the driveway, yelling at the ten- or court in interpreting and giving ant all the time or nailing the door meaning to a statute or the lan- shut. (See: constructive) guage of a document such as a contract or will when there is some constructive fraud: n. when the cir- ambiguity or question about its cumstances show that someone’s ac- meaning. In constitutional law, tions give him/her an unfair advan- there is a distinction between lib- tage over another by unfair means eral construction (broad construc- (lying or not telling a buyer about de- tion) and strict construction (nar- fects in a product, for example), the row construction). Liberal con- court may decide from the methods struction adds modem and soci- used and the result that it should etal meanings to the language, treat the situation as if there was ac- while strict construction adheres tual fraud even if all the technical el- closely to the original language ements of fraud have not been and intent without interpretation. proven. (See: constructive) (See: strict construction)

constructive notice: n. a fiction that a constructive: adj. a legal fiction for person got notice even though actual treating a situation as if it were ac- notice was not personally delivered to tually so. Some examples help to him/her. The law may provide that a clarify this term: a) although Jere- public notice put on the courthouse miah Gotrocks does not have the bulletin board is a substitute for actu- jewelry in his possession, he has al notice. A prime example is allowing the key to the safe deposit box and service by publication when a spouse the right to enter so he has “con- has left the state to avoid service (legal structive possession”; b) although delivery of a legal notice) in a divorce there is no written trust document, action. The legal advertisement of the George Holder has picked up summons in an approved newspaper is $10,000 in bearer bonds from the treated as constructive notice, just as post office box of his niece Hess if the summons and petition had been Truehart, who gave him her post served personally. (See: constructive) office box combination while she was traveling in Europe—this constructive possession: n. when a makes Holder her “constructive person does not have actual posses- trustee.” (See: constructive evic- sion, but has the power to control tion, constructive fraud, con- an asset, he/she has constructive structive notice, constructive possession. Having the key to a possession, constructive trust) safe deposit box, for example, gives

108 contempt of court

one constructive possession. (financial responsibility) for “implied” (See: constructive) warranties (when the circumstances show that a warranty of lack of defects constructive trust: n. when a per- was intended) as well as express (spe- son has title to property and/or cific) warranties. Mail fraud may in- takes possession of it under circum- clude fake contests, “low-ball” price stances in which he/she is holding it traps (bait and switch), supposed cred- for another, even though there is no it for referrals of your friends, phoney formal trust document or agree- home improvement loans with huge ment. The court may determine final payments, and swamp land sales. that the holder of the title holds it Some states’ laws regulate and give as constructive trustee for the ben- some protection against high-pressure efit of the intended owner. This may door-to-door sales, false labeling, unso- occur through fraud, breach of licited merchandise, abusive collection faith, ignorance or inadvertence. practices, misleading advertising and (See: constructive, trust) referral and promotional sales. Almost all states have agencies set up to ac- construe: v. to determine the mean- tively protect the consumer. (See: bait ing of the words of a written docu- and switch, fraud, implied war- ment, statute or legal decision, ranty, product liability, securities) based upon rules of legal interpreta-

tion as well as normal, widely ac- contemplation of death: n. the antic- cepted meanings. ipation of death in a relatively short time due to age, illness, injury or great consumer protection laws: n. al- danger, which causes a person to most all states and the federal gov- make a gift, transfer property or take ernment have enacted laws and set some other dramatic action. (Lawyers up agencies to protect the consumer who like Latin call this causa mortis.)

(the retail purchasers of goods and It can be important since such a gift or services) from inferior, adulterated, transfer can be subject to federal es- hazardous or deceptively advertised tate taxes. (See: unified estate and products, and deceptive or fraudu- gift tax) lent sales practices. Federal statutes

and regulations govern mail fraud, contempt of court: n. there are es- wholesome poultry and meat, mis- sentially two types of contempt: a) branding and adulteration of food being rude, disrespectful to the judge and cosmetics, truth in lending, false or other attorneys or causing a dis- advertising, the soundness of banks, turbance in the courtroom, particu- securities sales, standards of hous- larly after being warned by the judge; ing materials, flammable fabrics, b) willful failure to obey an order of and various business practices. The the court. This latter can include fail- Magnuson-Moss Act (1973) sets ure to pay child support or alimony. minimum standards for product The court’s power to punish for con- warranties, makes a company that tempt (called “citing” one for financed the sale responsible for contempt) includes fines and/or jail product defects, and creates liability time (called “imposing sanctions”).

109 contiguous

Incarceration is generally just a states, such agreements must be in threat and if imposed, usually writing and signed by attorney and brief. Since the judge has discre- client. The fee is generally a percent- tion to control the courtroom, con- age of the recovery (money won), but tempt citations are generally not may be partly a fee for time worked appealable unless the amount of and partly a percentage. Although fine or jail time is excessive. “Crim- fees are negotiable, a standard contin- inal contempt” involves contempt gent fee in accident cases is one-third with the aim of obstruction of jus- of the money won, unless particular tice, such as threatening a judge or difficulties exist with the case, making witness or disobeying an order to the attorney believe he/she has the produce evidence. (See: sanction) right to ask for more. States vary but some put a cap on the amount of fee

contiguous: adj. connected or “next for cases handled for minors even if to”, usually meaning adjoining the parent as guardian ad litem pieces of real estate. agrees to more. Contingent fee agreements in criminal cases which depend contingency: n. an event that might on the outcome are unethical. not occur. contingent interest: n. an interest in contingent: adj. possible, but not real property which, according to the certain. (See: contingent benefi- deed (or a will or trust), a party will re- ciary, contingent fee, contin- ceive only if a certain event occurs or gent interest) certain circumstances happen. Exam-

ples: surviving a person who had a life contingent beneficiary: n. a person estate (the right to use the property for

or entity named to receive a gift his/her life), or having children at the under the terms of a will, trust or in- time such a life estate ends. (See: con- surance policy, who will only receive tingent, contingent remainder, fu- that gift if a certain event occurs or ture interest) a certain set of circumstances hap-

pen. Examples: surviving another contingent remainder: n. an interest, beneficiary, still being married to particularly in real estate property, the same spouse, having completed which will go to a person or entity only college, or being certified as having upon a certain set of circumstances ex- shaken his/her drug habit. (See: isting at the time the title-holder dies. contingent, contingent interest) Examples of those potential circumstances include surviving one’s brother contingent fee: n. a fee to a lawyer or still operating the family farm next which will be due and payable only door. (See: contingent, contingent if there is a successful conclusion of interest, future interest) the legal work, usually winning or settling a lawsuit in favor of the continuance: n. a postponement of client (particularly in negligence a date of a trial, hearing or other cases), or collecting funds due with court appearance to a later fixed date or without filing a lawsuit. In many by order of the court, or upon a

110 contract

stipulation (legal agreement) by the contra: adj. Latin for “against” or “op-

attorneys and approved by the court posite to”. This usage is usually found or (where local rules permit) by the in legal writing in statements like: clerk of the court. In general courts “The decision in the case of Hammer-

frown on too many continuances head v. Nail is contra to the rule stat-

and will not allow them unless there ed in Keeler v. Beach.” is a legitimate reason. Some states

demand payment of fees for contin- contract: 1) n. an agreement with spe- uances to discourage delays. cific terms between two or more persons or entities in which there is a promise to do something in return for It cannot be helped, it is as it a valuable benefit known as consider- should be, that the law is be- ation. Since the law of contracts is at hind the times. the heart of most business dealings, —Justice Oliver Wendell it is one of the three or four most sig- Holmes, Jr. nificant areas of legal concern and can involve variations on circum- continuing objection: n. an objec- stances and complexities. The exis- tion to certain questions or testimo- tence of a contract requires finding ny during a trial which has been the following factual elements: a) an “overruled” by the judge, but the at- offer; b) an acceptance of that offer torney who made the objection an- which results in a meeting of the

nounces he/she is “continuing” the minds; c) a promise to perform; d) a objection to all other questions on valuable consideration (which can be the same topic or with the same a promise or payment in some form); legal impropriety in the opinion of e) a time or event when performance the attorney. Thus a “continuing” must be made (meet commitments);

objection does not require an objec- f) terms and conditions for perfor- tion every time the same question or mance, including fulfilling promises;

same subject is introduced. Exam- g) performance, if the contract is ple: the attorney for the plaintiff “unilateral”. A unilateral contract is (the person suing) begins asking one in which there is a promise to pay questions about emotional distress, or give other consideration in return

which the defendant’s attorney ob- for actual performance. (I will pay jects to as “immaterial,” but the you $500 to fix my car by Thursday; judge allows the first questions. The the performance is fixing the car by defense attorney states he has a that date.) A bilateral contract is one “continuing” objection to all ques- in which a promise is exchanged for a

tions about the emotional distress. promise. (I promise to fix your car by (See: objection) Thursday and you promise to pay $500 on Thursday.) Contracts can be continuing trespass: n. the repeat- either written or oral, but oral con- ed unauthorized use of anoth- tracts are more difficult to prove and er’s real property, as compared in most jurisdictions the time to sue

to an occasional illegal entry. on the contract is shorter (such as (See: trespass) two years for oral compared to four

111 contract of adhesion

years for written). In some cases a mechanic’s lien against the property. contract can consist of several doc- 3) a person who performs services but uments, such as a series of letters, is not an employee, often called an “in- orders, offers and counteroffers. dependent contractor.” (See: contract, There are a variety of types of con- independent contractor, mechan- tracts: “conditional” on an event oc- ic’s lien, subcontractor) curring; “joint and several,” in

which several parties make a joint contribution: n. 1) donation to a char- promise to perform, but each is re- ity or political campaign. 2) the shar- sponsible; “implied,” in which the ing of a loss by each of several persons courts will determine there is a who may have been jointly responsi- contract based on the circum- ble for injury to a third party, who en- stances. Parties can contract to tered into a business which lost supply all of another’s require- money or who owe a debt jointly. Quite ments, buy all the products made, often this arises when one responsible or enter into an option to renew a party pays more than his share and contract. The variations are almost then demands contribution from the limitless. Contracts for illegal pur- others in proportion to their share of poses are not enforceable at law. 2) the obligation. Example: three part- v. to enter into an agreement. (See: ners own equal shares in a building adhesion contract, bilateral from which a cornice falls and injures contract, consideration, oral Bobby Hardhat. One partner pays the contract, unilateral contract) demand of $9,000 for Hardhat’s injury; he is entitled to a contribution of contract of adhesion: n. (See: ad- $3,000 from each of his partners. hesion contract) contributory negligence: n. a doc- contractor: n. 1) a person or entity trine of common law that if a person that enters into a contract. 2) com- was injured in part due to his/her own monly, a person or entity that agrees negligence (his/her negligence “con- to construct a building or to provide tributed” to the accident), the injured or install specialized portions of the party would not be entitled to collect construction. The party responsible any damages (money) from another for the overall job is a “general con- party who supposedly caused the acci- tractor,” and those he/she/it hires to dent. Under this rule, a badly injured construct or install certain parts person who was only slightly negli- (electrical, plumbing, roofing, tile- gent could not win in court against a laying, etc.) are “subcontractors,” very negligent defendant. If Joe who are responsible to the general Tosspot was driving drunk and speed- contractor and not to the property ing and Angela Comfort was going 25 owner. An owner must be sure that m.p.h. but six inches over the center- the subcontractors are paid by the line, most likely Angela would be pre- general contractor by demanding cluded from any recovery (receiving and receiving proof of payment, or any money for injuries or damages) the subcontractor will be entitled to from a car crash. The possible unfair payment from the owner based on a results have led some juries to ignore

112 convict

the rule and, in the past few conversion: n. a civil wrong (tort) in decades, most states have adopted a which one converts another’s proper- comparative negligence test in ty to his/her own use, which is a which the relative percentages of fancy way of saying “steals.” Conver- negligence by each person are used sion includes treating another’s to determine damage recovery (how goods as one’s own, holding onto such much money would be paid to the property which accidentally comes injured person). (See: comparative into the convertor’s (taker’s) hands, negligence, negligence) or purposely giving the impression the assets belong to him/her. This control: 1) n. the power to direct, gives the true owner the right to sue manage, oversee and/or restrict for his/her own property or the value

the affairs, business or assets of a and loss of use of it, as well as going

person or entity. 2) v. to exercise to law enforcement authorities since the power of control. conversion usually includes the crime of theft. (See: theft) controlled substance: n. a drug

which has been declared by federal convey: v. to transfer title (official or state law to be illegal for sale or ownership) to real property (or an in- use, but may be dispensed under a terest in real property) from one physician’s prescription. The basis (grantor) to another (grantee) by a for control and regulation is the written deed (or an equivalent docu- danger of addiction, abuse, physical ment such as a judgment of distribu- and mental harm (including death), tion which conveys real property from the trafficking by illegal means, and an estate). This is completed by record- the dangers from actions of those ing the document with the County who have used the substances. Recorder or Recorder of Deeds. It only applies to real property. (See: alien- controlling law: n. the laws of the ation, conveyance, deed, grantor, state which will be relied upon in grantee, quit claim deed) interpreting or judging disputes involving a contract, trust or other conveyance: n. a generic term for any documents. Quite often an agree- written document which transfers ment will state as one of its provi- (conveys) real property or real prop- sions that the controlling law will erty interests from one party to an- be that of a particular state. other. A conveyance must be acknowledged before a notary (or if a

controversy: n. 1) disagreement, ar- court judgment be certified as the gument or quarrel. 2) a dispute, same as the document on file) and which must be an actual contested recorded with the County Recorder issue between parties in order to be or Recorder of Deeds. (See: deed) heard by a court. The U.S.

Supreme Court particularly re- convict: 1) v. to find guilty of a crime quires an “actual controversy” and after a trial. 2) n. a person who has

avoids giving “what if’ advisory been convicted of a felony and sent opinions. (See: advisory opinion) to prison.

113 conviction

conviction: n. the result of a criminal and a percentage interest in the com- trial in which the defendant has mon area. In a cooperative there are been found guilty of a crime. often restrictions on transfer of shares such as giving priority to cooperative: n. an association of in- other members, limits on income or dividual businesses, farmers, ranch- maximum sales price. (See: common ers or manufacturers with similar area, condominium, cooperative) interests, intending to cooperate in marketing, shipping and related ac- cop a plea: n. slang for a “plea bargain” tivities (sometimes under a single in which an accused defendant in a brand name) to sell their products criminal case agrees to plead guilty or efficiently, and then share the prof- “no contest” to a crime in return for a

its based on the production, capital promise of a recommendation of le- or effort of each. “Sunkist” oranges niency in sentencing to be made by is an example of a large cooperative. the prosecutor to the judge and/or an Cooperatives include dairy milk agreement by the prosecutor to drop producers, cotton gins and thou- some of the charges. Often the judge sands of other enterprises of all agrees to the recommendation before

sizes. There are also cooperatives in the plea is entered (becomes final). which consumers form retail outlets (See: plea bargain) like grocery stores and share the

profits based on the amount of pa- copartner : n. one who is a member of a tronage of each member, but they partnership. The prefix “co” is a re- have found it difficult to compete dundancy, since a partner is a mem- with the giant supermarket chains. ber of a partnership. The same is true Some cooperatives exist to operate of the term “copartnership.” (See: housing complexes. (See: coopera- partner, partnership) tive housing)

copyright: 1) n. the exclusive right of cooperative housing: n. an the author or creator of a literary or arrangement in which an associa- artistic property (such as a book, tion or corporation owns a group of movie or musical composition) to

housing units and the common print, copy, sell, license, distribute, areas for the use of all the resi- transform to another medium, trans- dents. The individual participants late, record or perform or otherwise

own a share in the cooperative use (or not use) and to give it to an- which entitles them to occupy an other by will. As soon as a work is apartment (or town house) as if created and is in a tangible form they were owners, to have equal (such as writing or taping) the work access to the common areas and automatically has federal copyright to vote for members of the board protection. On any distributed and/or of directors which manages the published work a notice should be cooperative. A cooperative differs affixed stating the word copyright, from a condominium project in that copy or ©, with the name of the cre- the owners of the condominium ator and the date of copyright (which units actually own their airspace is the year of first publication). The

114 corporate opportunity notice should be on the title page or the page immediately following Law is a bottomless pit. John and for graphic arts on a clearly — Arbuthnot visible or accessible place. A work should be registered with the U.S. coroner: n. a county official with the Copyright Office by submitting a responsibility to determine the cause registration form and two copies of death of anyone who dies violently of the work with a fee which a) es- (by attack or accident), suddenly, or tablishes proof of earliest creation suspiciously. The coroner or one of and publication, b) is required to his/her staff must examine the body at file a lawsuit for infringement of the scene of such a death and make a copyright, c) if filed within three report. If the cause is not obvious or months of publication, establishes certified by an attending physician, a right to attorneys’ fees in an in- then the coroner may order a “coro- fringement suit. Copyrights cover ner’s inquest” which requires an au- the following: literary, musical and topsy (postmortem ). If that is not con- dramatic works, periodicals, maps, clusive, the coroner may hold a hear- works of art (including models), art ing as part of the inquest, although reproductions, sculptural works, this is rare due to scientific advances technical drawings, photographs, in pathology. (See: forensic medi- prints (including labels), movies cine, postmortem) and other audiovisual works, computer programs, compilations of corporate opportunity: n. a business works and derivative works, and opportunity which becomes known to architectural drawings. Not subject a corporate official, particularly a di- to copyright are short phrases, rector or other upper management, titles, extemporaneous speeches due to his/her position within the cor- or live unrecorded performances, poration. In essence, the opportunity common information, government or knowledge belongs to the corpora- publications, mere ideas, and sedition, and the officials owe a duty (a tious, obscene, libelous and fraudu- fiduciary duty) not to use that oppor- lent work. For any work created tunity or knowledge for their own ben- from 1978 to date, a copyright is efit. The corporation may have the good for the author’s life, plus 50 right to damages (to be paid off) for years, with a few exceptions such such improper appropriation (use) as work “for hire” which is owned of the opportunity on the theory that by the one commissioning the work the official holds it in “constructive for a period of 75 years from publi- trust” for the corporation. The corpo- cation. After that it falls into the ration may obtain an injunction (court public domain. Many, but not all, order) to prevent someone’s use of countries recognize international the knowledge or opportunity. In copyrights under the “Universal such cases angry stockholders may Copyright Convention,” to which bring their own legal action for their the United States is a party. (See: in- benefit in what is called a derivative fringement, plagiarism, public action. Such insider misappropriation domain, trademark) (inappropriate use of information)

115 corporation

may also be criminal theft, or be tees). Issuance of stock of less than violative of federal or state securi- $300,000, with no public solicitation ties laws. (See: conflict of inter- and relatively few shareholders, is est, conversion, derivative ac- either automatically approved by the tion, fiduciary relationship) state commissioner of corporations or requires a petition outlining the corporation: n. an organization financing. Some states are consid-

formed with state governmental ered lax in supervision, have low fil- approval to act as an artificial per- ing fees and corporate taxes and are son to carry on business (or other popular incorporation states, but activities), which can sue or be corporations must register with Sec- sued, and (unless it is non-profit) retaries of State of other states can issue shares of stock to raise where they do substantial business funds with which to start a busi- as a “foreign” corporation. Larger ness or increase its capital. One stock offerings and/or those offered benefit is that a corporation’s lia- to the general public require ap- bility for damages or debts is limit- proval by the Securities and Ex- ed to its assets, so the sharehold- change Commission after close ers and officers are protected from scrutiny and approval of a public personal claims, unless they com- “prospectus” which details the entire mit fraud. For private business operation of the corporation. There corporations the articles of incor- are also non-profit (or not for profit) poration filed with the Secretary of corporations organized for religious, State of the incorporating state educational, charitable or public ser- must include certain information, vice purposes. Public corporations including the name of the respon- are those formed by a municipal, sible party or parties (incorpora- state or federal government for pub- tors and agent for acceptance of lic purposes such as operating a dam service), the amount of stock it will and utility project. A close corpora- be authorized to issue, and its pur- tion is made up of a handful of share- pose. In some states the purpose holders with a working or familial may be a general statement of any connection which is permitted to op- purpose allowed by law, while oth- erate informally without resolutions ers require greater specificity. Cor- and regular board meetings. A de poration shareholders elect a jure corporation is one that is for- board of directors, which in turn mally operated under the law, while adopts bylaws, chooses the officers a de facto corporation is one which and hires top management (which operates as if it were legal, but within smaller corporations are often out the articles of incorporation the directors and/or shareholders). being valid. Corporations can range Annual meetings are required of from the Comer Mini-Mart to Gener- both the shareholders and the al Electric. (See: articles of incor- board, and major policy decisions poration, board of directors, by- must be made by resolution of the laws, close corporation, de facto board (which often delegates much corporation, dejure corporation, authority to officers and commit- non-profit corporation, public

116 co-trustee

corporation, securities, share- included in these costs. (See: court holder, stock) costs, prevailing party)

corpus : n. 1) Latin for body. 2) the cost of completion: n. the amount of principal (usually money, securities money (damages) required to com- and other assets) of a trust or es- plete performance (finish the job) tate as distinguished from interest when a contract has been breached or profits. by the failure to perform. Example: when a general contractor breaches corpus delicti : n. (corpus dee-lick- by not completing a house, the cost of tie) Latin for the substantial fact completion is the actual cost of bring-

that a crime has been committed, ing in a new builder to finish what is and in popular crime jargon, the left to do. The actual costs become body of the murder victim. the measure of damages rather than an estimate of cost based on percent- corpus juris: n. the body of the law, age of work to be done. meaning a compendium of all laws, cases and the varied interpreta- costs: n. shorthand for court costs. (See: tions of them. There are several court costs)

encyclopedias of the law which fit this definition, the most famous of cotenancy: n. the situation when which is Corpus Juris Secundum. more than one person has an inter- Several states have such series of est in real property at the same books covering explanations of the time, which may include tenancy in law of that state. common, joint tenancy or tenancy by the entirety. (See: community corroborate: v. to confirm and some- property, cotenant, joint tenan- times add substantiating (reinforc- cy, tenancy by the entirety, ten- ing) testimony to the testimony of ancy in common) another witness or a party in a trial. (See: corroborating evidence) cotenant: n. one who holds an interest in real property together with one or corroborating evidence: n. evi- more others. (See: cotenancy) dence which strengthens, adds to, or confirms already existing evidence. co-trustee: n. a trustee of a trust when there is more than one trustee cosign: v. to sign a promissory note or serving at the same time, usually

other obligation in order to share li- with the same powers and obliga- ability for the obligation. tions. Occasionally a co-trustee may be a temporary fill-in, as when the cost bill: n. a list of claimed court original trustee is ill but recovers. costs submitted by the prevailing The co-trustee must act in consulta- (winning) party in a lawsuit after tion with the other trustee(s), the judge states his/her judgment unless the language of the trust formally called a “memorandum of allows one co-trustee to act alone. costs.” Statutes limit what can be (See: trust, trustee)

117 counsel

counsel: 1) n. a lawyer, attorney, at- ered to Bill’s but not paid for, and Bill tomey-at-law, counsellor, counsel- counterclaims that Hotdog owes him

lor-at-law, solicitor, barrister, advo- $20,000 for a load of bad chicken liv- cate or proctor (a lawyer in admiral- ers, so Hotdog is only entitled to ty court), licensed to practice law. In $20,000. In many states the counter- the United States they all mean the claim is no longer allowed, in which same thing. 2) v. to give legal advice. case a cross-complaint, which is a sep- 3) v. in some jurisdictions, to urge arate complaint, must be filed by the someone to commit a crime, which defendant, but as part of the same in itself is a crime. (See: attorney) lawsuit. On the other hand, in federal cases, if the defendant believes counsellor: n. a licensed attorney. he/she/it has a legitimate counter- (See: counsel) claim to reduce damages it must be

alleged (stated) in the answer or it is count: n. each separate statement in barred from being considered. (See: a complaint which states a cause of answer, cross-complaint) action which, standing alone, would

give rise to a lawsuit, or each sepa- counterfeit: 1) adj. describing a docu-

rate charge in a criminal action. For ment, particularly money, which is example, the complaint in a civil forged or created to look real and in- (non-criminal) lawsuit might state: tended to pass for reed. 2) v. to crimi- First Count (or cause of action) for nally forge or print a false copy of negligence, and then state the de- money, bonds, or other valuable docu- tailed allegations; Second Count for ments, intending to profit from the fal- breach of contract; Third Count for sity. 3) n. shorthand for phoney money debt and so forth. In a criminal case passed for real. (See: forgery, utter) each count would be a statement of a

different alleged crime. There are counter offer: n. an offer made in re- also so-called common counts which sponse to a previous offer by the cover various types of debt. (See: other party during negotiations for a cause of action, common counts) final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the Legal process is an essential terms of the counter offer or there is part ofthe democratic process. no contract. Example: Susan Seller —Justice Felix Frankfurter offers to sell her house for $150,000, to be paid in 60 days; Bruce Buyer re- counterclaim: n. a retaliatory claim ceives the offer and gives Seller a by a defendant against a plaintiff in counter offer of $140,000, payable in a lawsuit included in the defen- 45 days. The original offer is dead, dant’s answer and intending to off- despite the shorter time for payment set and/or reduce the amount of since the price is lower. Seller then the plaintiff’s original claim against can choose to accept at $140,000, the defendant. For example, Hot- counter again at some compromise

dog Products sues Barbecue Bill’s price, reject the counter offer, or let it Eatery for $40,000 for meat deliv- expire. (See: contract, offer)

118 court counterpart: n. in the law of con- throughout the nation. Appeals on tracts, a written paper which is one constitutional questions and other sig- of several documents which consti- nificant cases are heard by the

tute a contract, such as a written Supreme Court, but only if that court offer and a written acceptance. agrees to hear the case. There are also Often a contract is in several coun- special federal courts such as bank- terparts which are the same but ruptcy and tax courts with appeals di- each paper is signed by a different rected to the District Courts. party, particularly if they are in dif- Each state has local trial courts, ferent localities. (See: contract) which include courts for misdemeanors (non-penitentiary crimes), course: n. in the midst of or actively smaller demand civil actions (called involved in at that time, as “in the municipal, city, justice or some other course of business, course of em- designation), and then courts, usually ployment, course of trade.” set up in each county (variously called Superior, District, County, Common course of employment: adj. active- Pleas courts and called Supreme ly involved in a person’s employ- Court in New York) to hear felonies ment at a particular time, most (crimes punished by state prison likely when an accident occurred, terms), estates, divorces and major

which is required to make a claim lawsuits. The highest state court is for work-related injury under state called the State Supreme Court, ex- Worker’s Compensation Acts. (See: cept in New York and Maryland, scope of employment) which call them Court of Appeals. Some 29 states have intermediate ap- court: n. 1) the judge, as in “The court peals courts which hear appeals from rules in favor of the plaintiff.” 2) any trial courts which will result in final official tribunal (court) presided decisions unless the State Supreme over by a judge or judges in which Court chooses to consider the matter. legal issues and claims are heard Some states have speciality courts and determined. In the United such as family, surrogate and domes- States there are essentially two sys- tic relations. Small claims courts are tems: federal courts and state an adjunct of the lowest courts han- courts. The basic federal court sys- dling lesser disputes (although Cali- tem has jurisdiction over cases in- fornia’s limit is $5,000) with no repre- volving federal statutes, constitu- sentation by attorneys and short and tional questions, actions between somewhat informal trials conducted citizens of different states, and cer- by judges, commissioners or lawyers. tain other types of cases. Its trial The great number of law cases and courts are District Courts in one or lawyers’ procedural maneuvers has more districts per state, over which clogged courts’ calendars and has there are District Courts of Appeal induced many states or local courts (usually three-judge panels) to hear to set up mediation, arbitration, appeals from judgments of the Dis- mandatory settlement conferences trict Courts within the “circuit.” and other formats to encourage settle- There are 10 geographic circuits ment or early judgments without the

119 court calendar

cost and wait of full court trials. as arbiters (judges) of the law apply- (See: appendix on courts) ing to the case. A general court-martial is conducted by a military legal court calendar: n. the list of matters officer (Judge Advocate) and at least to be heard or set for trial or hearing five officers for major offenses, in- by a court. (See: calendar) cluding those requiring the death

penalty. A special court-martial is court costs: n. fees for expenses generally for lesser offenses and that the courts pass on to attor- is conducted by three officers, who neys, who then pass them on to may order dismissal, hard labor or their clients or to the losing party. lengthy confinement. Minor offenses Court costs usually include: filing are conducted by a single officer in

fees, charges for serving summons a summary court-martial. 2) v. to and subpenas, court reporter charge a member of the military charges for depositions (which can with an offense against military law be very expensive), court tran- or to find him/her guilty of such a vi- scripts and copying papers and ex- olation. A court-martial conviction hibits. The prevailing party in a can be appealed to the U.S. Court of lawsuit is usually awarded court Military Appeals. costs. Attorneys’ fees can be included as court costs only if there is a court of appeals: n. any court (state statute providing for attorneys’ fee or federal) which hears appeals from awards in a particular type of case, judgments and rulings of trial courts or if the case involved a contract or lower appeals courts. (See: ap- which had an attorneys’ fee clause peal, court) (commonly found in promissory notes, mortgages and deeds of Court of Customs and Patent trust). If a losing party does not Appeals: n. a federal court estab- agree with the claimed court costs lished (1929) to hear appeals from de- (included in a filed cost bill) cisions by the U.S. Patent Office

he/she/it may move (ask) the judge and from the U.S. Customs Court. It to “tax costs” (meaning reduce or sits in Washington, D. C. and is com- disallow the cost), resulting in a posed of five judges. (See: Customs hearing at which the court deter- Court, patent, trademark) mines which costs to allow and in

what amount (how much). (See: court of equity: n. originally in English cost bill, prevailing party) common law and in several states there were separate courts (often court docket: n. (See: docket) called chancery courts) which handled lawsuits and petitions requesting court-martial: 1) n. a military court remedies other than damages, such for trying offenses in violation of as writs, injunctions and specific army, navy or other armed service performance. Gradually the courts of rules and regulations, made up of equity have merged with courts of law. military officers, who act as both Federal bankruptcy courts are the one finders of fact (in effect, a jury) and example of courts which operate as

120 covenant not to compete

courts of equity. (See: chancery, al promises to be performed at the court of law, equity) same time), dependent (one promise need be performed if the other party court of law: n. any tribunal within performs his/hers), or independent (a a judicial system. Under English promise to be honored without refer- common law and in some states it ence to any other promise). Until 1949 was a court which heard only law- many deeds contained restrictive suits in which damages were covenants which limited transfer of sought, as distinguished from a the property to the Caucasian race. court of equity which could grant These blatantly racist covenants were special remedies. That distinction then declared unconstitutional. 2) v. to has dissolved and every court (with promise. (See: contract, covenant the exception of federal bankruptcy not to compete, covenants that courts) is a court of law. (See: court, runs with the land, covenants, chancery, equity) conditions and restrictions, deed, restrictive covenant) court trial (“non-jury trial”): a trial with a judge but no jury. covenants, conditions and restrictions: n. commonly called “CC and covenant: 1) n. a promise in a written Rs,” these are written rules, limita- contract or a deed of real property. tions and restrictions on use, mutu- The term is used only for certain ally agreed to by all owners of homes types of promises such as a covenant in a subdivision or condominium of warranty, which is a promise to complex. CC and Rs may limit size guarantee the title (clear ownership) and placement of homes, exterior col- to property, a promise agreeing to ors, pets, ages of residents, use of joint use of an easement for access to barbecues and other conduct to pro- real property, or a covenant not to tect the quiet enjoyment of the vari- compete, which is commonly includ- ous residents. CC and Rs are ened in promises made by a seller of a forced by the homeowners associa- business for a certain period of time. tion or by individual owners who can Mutual covenants among members bring lawsuits against violators and of a homeowners association are are permanent or “run with the promises to respect the rules of con- land” so future owners are bound to duct or restrictions on use of proper- the same rules. Most state laws re- ty to insure peaceful use, limitations quire that a copy of the CC and Rs be on intrusive construction, etc., recorded with the County Recorder which are usually part of the record- and be provided to any prospective ed covenants, conditions and restric- purchaser. (See: covenant) tions which govern a development or

condominium project. Covenants covenant not to compete: n. a com- which run with the land, such as mon provision in a contract for sale of permanent easement of access or re- a business in which the seller agrees strictions on use, are binding on fu- not to compete in the same business ture title holders of the property. for a period of years or in the geo- Covenants can be concurrent (mutu- graphic area. This covenant is usually

121 covenant that runs with the land

allocated (given) a value in the sales to be filed in writing, in a proper form price. (See: covenant) by a person or entity owed money by a debtor who has filed a petition in covenant that runs with the land: bankruptcy court (or had a petition n. a promise contained in a deed to filed to declare the debtor bankrupt), land or real estate which is binding or is owed money by a person who has upon the current owner and all fu- died. Notice of the need to file a credi- ture owners. (See: covenant) tor’s claim in the estate of a person who has died must be printed in a credibility: n. whether testimony is legal advertisement giving notice of worthy of belief, based on compe- death. Then a creditor has only a few tence of the witness and likelihood months to file the claim, and it must be that it is true. Unless the testimo- in a form approved by the courts. (See: ny is contrary to other known facts claim in bankruptcy, probate) or is extremely unlikely based on

human experience, the test of cred- creditor’s rights: n. the field of ibility is purely subjective. (See: law dealing with the legal means credible witness) and procedures to collect debts and judgments. (See: creditor, debt, credible witness: n. a witness debtor, judgment) whose testimony is more than like-

ly to be true based on his/her expe- crime: n. a violation of a law in which rience, knowledge, training and there is injury to the public or a mem- appearance of honesty and forth- ber of the public and a term in jail or rightness, as well as common prison, and/or a fine as possible penal- human experience. This is subjec- ties. There is some sentiment for ex- tive in that the trier of fact (judge cluding from the “crime” category or jury) may be influenced by the crimes without victims, such as con- demeanor of the witness or other sensual acts, or violations in which factors. (See: credibility) only the perpetrator is hurt or involved such as personal use of illegal drugs. (See: felony, misdemeanor) I cannot agree that it should be the declared public policy of crime against nature: n. an oldfash- Illinois that a cat visiting a ioned term for sodomy (anal sexual neighbor’s yard or crossing the intercourse), which has been a crime highway is a public nuisance. in most states. Several states have —Adlai E. Stevenson, vetoing removed consensual anal intercourse a bill requiring that cats be re- between consenting adults from the strained from leaving their crime. However, in Indiana an ex- owners’property. wife insisted on a criminal charge of sodomy being filed against her for- creditor: n. a person or entity to mer husband, even though the act whom a debt is owed. was consensual and during their marriage; he was convicted. The creditor’s claim: n. a claim required term is also applied to sexual inter-

122 criminal law

course between a human and an criminal attorney: n, a popular term animal (bestiality), which is a for an attorney who specializes in crime in most states. (See: bestial- defending people charged with crimes. ity, sodomy) Many lawyers handle criminal defense but also have other clientele. crime of passion: n. a defendant’s However, some states will certify excuse for committing a crime due a lawyer as a “criminal law specialist” to sudden anger or heartbreak, in based on experience and extra

order to eliminate the element of training in that field. (See: crime, “premeditation.” This usually aris- felon, misdemeanor) es in murder or attempted murder

cases, when a spouse or sweetheart criminal calendar: n. the list of crimi- finds his/her “beloved” having sex- nal cases to be called in court on a par- ual intercourse with another and ticular time and date. The parties shoots or stabs one or both of the charged and their attorneys are given coupled pair. To make this claim a written notice of the time and place the defendant must have acted im- to appear. The criminal calendar may mediately upon the rise of passion, list arraignments, bail settings, cases

without the time for contemplation continued (put off) awaiting a plea of or allowing for “a cooling of the guilt or innocence, changes of pleas, blood.” It is sometimes called the setting of hearing or trial dates, mo- “Law of Texas” since juries in that tions brought by attorneys, pronounc- state are supposedly lenient to ing sentences, hearing reports of pro- cuckolded lovers who wreak their bation officers, appointment of public own vengeance. The benefit of defenders or other attorneys, and eliminating premeditation is to other business concerning criminal lessen the provable homicide to cases. (See: arraignment, bail, manslaughter with no death penal- crime, plea, plea bargaining, pre- ty and limited prison terms. An liminary hearing, sentence) emotionally charged jury may even acquit the impassioned defendant. criminal justice: n. a generic term (See: manslaughter, murder) for the procedure by which criminal conduct is investigated, evidence criminal: 1) n. a popular term for gathered, arrests made, charges anyone who has committed a crime, brought, defenses raised, trials con- whether convicted of the offense or ducted, sentences rendered and pun- not. More properly it should apply ishment carried out. only to those actually convicted of a crime. Repeat offenders are some- criminal law: n. those statutes deal- times called habitual criminals. 2) ing with crimes against the public adj. describing certain acts or people and members of the public, with involved in or relating to a crime. penalties and all the procedures con- Examples of uses include “criminal nected with charging, trying, taking,” “criminal conspiracy," a sentencing and imprisoning defen- “criminal gang.” (See: convict, dants convicted of crimes. (See: felon, habitual criminal) crime, felony, misdemeanor)

123 cross-complaint

cross-complaint: n. after a com- suggest answers or put words in the plaint has been filed against a de- witness’s mouth. (For example, “Isn’t fendant for damages or other or- it true that you told Mrs. Jones she ders of the court, the defendant had done nothing wrong?” which is may file a written complaint leading, as compared to “Did you say against the party suing him/her or anything to Mrs. Jones?”) A strong against a third party as long as the cross-examination (often called just subject matter is related to the “cross” by lawyers and judges) can original complaint. The defendant’s force contradictions, expressions of filing of a complaint is called a doubts or even complete obliteration cross-complaint, and the defendant of a witness’s prior carefully re- is then called a cross-complainant hearsed testimony. On the other and the party he/she sues is called hand, repetition of a witness’ s story, a cross-defendant. The defendant vehemently defended, can strengthen must still file an answer or other his/her credibility. (See: credibility, response to the original complaint. direct examination, testimony, If the cross-complaint is against trial, witness) the original plaintiff (original suer)

then it can be served on the plain- cruel and unusual punishment: n. tiff’s attorney by mail, but a third governmental penalties against con- party must be served in person victed criminal defendants which are with the cross-complaint and a new barbaric, involve torture and/or shock summons issued by the clerk of the the public morality. They are specifi- court. The cross-defendants must cally prohibited under the Eighth then file answers or other respons- Amendment to the U.S. Constitution. es. These are called pleadings and However, nowhere are they specifical- must be carefully drafted (usually ly defined. Tortures like the rack by an attorney) to properly state (stretching the body inch by inch) or the factual as well as legal basis for the thumbscrew, dismemberment, the claim and contain a prayer for breaking bones, maiming, actions in- damages or other relief. (See: an- volving deep or long-lasting pain are swer, complaint, demurrer, all banned. But solitary confinement, pleading, prayer, service of enforced silence, necessary force to process, summons) prevent injury to fellow prisoners or guards, psychological humiliation cross-examination: n. the opportu- and bad food are generally allowed. In nity for the attorney (or an unrep- short, there is a large gray area, in resented party) to ask questions in which “cruel and unusual” is definite- court of a witness who has testified ly subjective based on individual sen- in a trial on behalf of the opposing sitivities and moral outlook. The U.S. party. The questions on cross-exam- Supreme Court has waffled on the ination are limited to the subjects death penalty, declaring that some covered in the direct examination of forms of the penalty were cruel and the witness, but importantly, the prohibited under the Furman case attorney may ask leading ques- (1972), which halted executions for tions, in which he/she is allowed to several years, but later relaxed the

124 cumulative sentence

prohibition. The question remains to be at fault and liable for the con- if the gas chamber, hanging or duct. Sometimes culpability rests on electrocution are cruel and unusu- whether the person realized the al. For instance, hanging is certain- wrongful nature of his/her actions ly cruel but was not unusual at the and thus should take the blame. time the Bill of Rights was adopted. (See: capital punishment,) Justice delayed is justice denied. cruelty: n. the intentional and mali- — cious infliction of physical or psy- Anonymous, often quoted chological pain on another. In most states various forms of “cruelty,” cumis counsel: n. an attorney em- “extreme cruelty,” and/or “mental ployed by a defendant in a lawsuit cruelty” used to be grounds for di- when there is an insurance policy vorce if proved. This brought about supposedly covering the claim, but a lot of unnecessary (and some- there is a conflict of interest between times exaggerated or false) deroga- the insurance company and the in- tory (nasty) testimony about the sured defendant. Such a conflict other party. There was little stan- might arise if the insurance compa- dardization of what constituted suf- ny is denying full coverage. In some ficient “cruelty” to prove a divorce states (notably California) the defen- should be granted. Starting in the dant can demand that the insurance 1960s “no fault” divorce (sometimes company pay the fees of his/her own now called “dissolution”) began to attorney rather than use an insur- replace contentious divorces in ance company lawyer. Often the in- most states, so that incompatibility surance company will require that became good enough grounds for the attorney for the defendant be ap- granting a divorce. (See: cruel and proved by the company. unusual punishment, dissolution of marriage, divorce) cumulative sentence: n. when a criminal defendant has been found cruelty to animals: n. the crime of guilty of more than one offense, the inflicting physical pain, suffering judge may sentence him/her to or death on an animal, usually a prison for successive terms for each tame one, beyond necessity for nor- crime (e.g. five years for burglary, mal discipline. It can include ne- three years for possession of stolen glect that is so monstrous (with- property, which add up and accumu- holding food and water) that the late to eight years). The other choice animal has suffered, died or been would be to sentence the defendant put in imminent danger of death. to a concurrent sentence, in which (See: cruelty) the lesser term would be merged with the longer, they would run at culpability: (See: culpable) the same time, and thus result in a five-year term in the example. (See: culpable: adj. sufficiently responsi- concurrent sentence, successive ble for criminal acts or negligence terms)

125 cumulative voting

cumulative voting: n. in corpora- duty rates and interpretation of cus- tions, a system of voting by share- toms laws. In turn its decisions can be holders for directors in which the appealed to the Court of Customs and shareholder can multiply his vot- Patent Appeals. (See: Court <5f Cus- ing shares by the number of candi- toms and Patent Appeals) dates and vote them all for one

person for director. This is intend- cut a check: v. to write (prepare) and ed to give minority shareholders a sign a check. chance to elect at least one director whom they favor. For example, cy pres doctrine: n. (see-pray doc- there are five directors to be elect- trine) from French, meaning “as

ed, and 10,000 shares issued, a close as possible.” When a gift is shareholder with 1,000 shares made by will or trust (usually for could vote 5,000 for his candidate charitable or educational purposes), rather than being limited to 1,000 and the named recipient of the gift for each of five candidates, always does not exist, has dissolved or no outvoted by shareholders with longer conducts the activity for 1,001 or more shares. which the gift is made, then the estate or trustee must make the gift to curtesy: n. in old common law, the an organization which comes closest

right of a surviving husband to a to fulfilling the purpose of the gift. life estate in the lands of his de- Sometimes this results in heated ceased wife, if they had a surviv- court disputes in which a judge must ing child or children who would in- determine the appropriate substi- herit the land. A few states still tute to receive the gift. Example: recognize this charming anachro- dozens of local Societies for Protec- nism. (See: community proper- tion of Cruelty to Animals contested ty, dower, life estate) for a gift which was made without designating which chapter would re- custody: n. 1) holding property ceive the benefits. The judge wisely under one’s control. 2) law enforce- divided up the money among several ment officials’ act of holding an ac- S.P.C.A. chapters. cused or convicted person in criminal proceedings, beginning with the arrest of that person. 3) in domestic relations (divorce, dissolution) a court’s determination of which parent (or other appropriate party) should have physical and/or legal control and responsibility for a minor child. (See: child custody)

Customs Court: n. a federal court established (1926) to hear appeals from decisions of customs officials on classification of merchandise,

126 D

DA.: n. slang for District Attorney. they are seldom awarded. Nominal (See: District Attorney) damages are those given when the actual harm is minor and an award is damages: n. the amount of money warranted under the circumstances. which a plaintiff (the person suing) The most famous case was when Win- may be awarded in a lawsuit. There ston Churchill was awarded a shilling are many types of damages. Special (about 25 cents) against author Louis damages are those which actually Adamic, who had written that the were caused by the injury and in- British Prime Minister had been clude medical and hospital bills, drunk at a dinner at the White ambulance charges, loss of wages, House. Liquidated damages are those property repair or replacement pre-set by the parties in a contract to costs or loss of money due on a con- be awarded in case one party defaults tract. The second basic area of dam- as in breach of contract. (See: conse- ages are general damages, which quential damages, exemplary are presumed to be a result of the damages, general damages, judg- other party’s actions, but are sub- ment, liquidated damages, spe- jective both in nature and determi- cial damages) nation of value of damages. These include pain and suffering, future dangerous: adj. unsafe, hazardous, problems and crippling effect of an fraught with risk. It can be negligence

injury, loss of ability to perform var- for which a lawsuit can be brought if ious acts, shortening of life span, damage results from creating or leav- mental anguish, loss of companion- ing unguarded a dangerous condition ship, loss of reputation (in a libel which can cause harm to others, a suit, for example), humiliation from dangerous instrumentality (any de- scars, loss of anticipated business vice which can cause harm, including and other harm. The third major explosives and poisonous substances) form of damage is exemplary (or or dangerous weapon which is inher- punitive) damages, which combines ently hazardous to anyone handling punishment and the setting of pub- it or within the weapon’s range. lic example. Exemplary damages (See: negligence) may be awarded when the defen-

dant acted in a malicious, violent, dangerous weapon: n. any gun, knife, oppressive, fraudulent, wanton or sword, crossbow, slingshot or other grossly reckless way in causing the weapon which can cause bodily harm special and general damages to the to people (even though used for target plaintiff. On occasion punitive dam- shooting). If a person is harmed by ages can be greater than the actual such a weapon that is left unguarded, damages, as, for example, in a sex- improperly used, or causes harm even

ual harassment case or fraudulent to a person who plays with it without schemes. Although often asked for, permission, the victim or his/her

127 date rape

survivors can sue for negligence and do harm like a gun or knife, but also possibly win a judgment. blunt instruments like clubs, baseball bats, monkey wrenches, an automo- date rape: n. forcible sexual inter- bile or any object which actually caus- course by a male acquaintance of a es death. This becomes important woman, during a voluntary social when trying to prove criminal charges engagement in which the woman brought for assault with a deadly did not intend to submit to the sex- weapon. In a few 1990s cases courts ual advances and resisted the acts have found rocks and even penises of by verbal refusals, denials or pleas AIDS sufferers as “deadly weapons.” to stop, and/or physical resistance. (See: assault, dangerous weapon) The fact that the parties knew each other or that the woman willingly accompanied the man are not legal Good men must not obey the laws too well. defenses to a charge of rape, although one Pennsylvania decision —Ralph Waldo Emerson ruled that there had to be some actual physical resistance. (See: rape) dealer: n. anyone who buys goods or property for the purpose of selling as a day in court: n. popular term for business. It is important to distinguish everyone’s opportunity to bring a a dealer from someone who occasional- lawsuit or use the court system if ly buys and occasionally sells, since

he/she thinks he/she has a gripe dealers may need to obtain business li- which can be resolved in court. Ex- censes, register with the sales tax au- ample: “John finally got his day in thorities, and may not defer capital court to protest his speeding ticket.” gains taxes by buying other property.

d.b.a .: n. short for “doing business as,” death penalty: n. the sentence of when a person or entity uses a busi- execution for murder and some ness name instead of his/her/its own. other capital crimes. (See: capi- All states have requirements for fil- tal punishment, appendix on ing a certificate of “doing business capital punishment) under a fictitious name” either with the County Clerk, the state Secre- death row: n. nickname for that por- tary of State or some other official to tion of a prison in which prisoners are inform the public as to the real per- housed who are under death sen- son or entity behind a business tences and are awaiting appeals name. It is not necessary if the busi- and/or potential execution. (See: capi- ness includes the name of the true tal punishment, death penalty, ap- owner and is not to be confused with pendix on capital punishment) the use of a corporation name, since that is registered with the state. debenture: n. a form of bond certificate issued by a corporation to show funds

deadly weapon: n. any weapon invested, repayment of which is guar- which can kill. This includes not anteed by the overall capital value of only weapons which are intended to the company under certain specific

128 declaration

terms. Thus, it is more secure than liar intends to deceive a party receiv- shares of stock or general bonds. ing the statements and expects the party to believe and rely on them. This debt: n. 1) a sum of money due to an- is a civil wrong (tort) giving rise to the

other. 2) obligation to deliver partic- right of a person to sue the deceiver if ular goods or perform certain acts he/she reasonably relied on such dis- according to an agreement, such as honesty to the point of his/her injury. returning a favor. 3) a cause of action (See: fraud, misrepresentation) in a lawsuit for a particular amount owed. (See: common counts) deception: n. the act of misleading another through intentionally false debtor: n. 1) a person or entity that statements or fraudulent actions. owes an amount of money or favor (See: deceit, fraud) to another. 2) in bankruptcy, the

party whose affairs are the subject decide: v. for a judge, arbitrator, court

of the proceedings is called the of appeals or other magistrate or tri- “debtor.” (See: bankruptcy) bunal to reach a determination (decision) by choosing what is right and debtor in possession: n. in bank- wrong according to the law as he/she

ruptcy proceedings when a debtor sees it. has filed for the right to submit a plan for reorganization or refi- decision: n. judgment, decree or nancing under Chapter 11, and the determination of findings of fact debtor is allowed to continue to and/or of law by a judge, arbitrator, manage his/her/its business with- court, governmental agency or other out an appointed trustee, that official tribunal (court). (See: de- debtor is called a “debtor in posses- cree, judgment) sion.” (See: bankruptcy) declarant: n. the person making a deceased: 1) adj. dead. 2) n. the per- statement, usually written and signed son who has died, as used in the by that person, under “penalty of per- handling of his/her estate, probate jury” pursuant to the laws of the state of will and other proceedings after in which the statement, called a dec-

death, or in reference to the victim laration, is made. The declaration is

of a homicide (as: “The deceased more commonly used than the affi-

had been shot three times.”) In davit, which is similar to a declaration probate law the more genteel word but requires taking an oath to swear is the “decedent.” to the truth attested to (certified in writing) by a notary public. In theory, decedent: n. the person who has a declarant who knowingly does not died, sometimes referred to as the tell the truth would be subject to the “deceased." (See: deceased) criminal charge of perjury. Such violations are seldom pursued. (See: affi- deceit: n. dishonesty, fraudulent con- ant, affidavit, declaration) duct, false statements made know-

ing them to be untrue, by which the declaration: n. 1) any statement made,

129 declaration of mailing

particularly in writing. 2) a written court to decide whether a new tax is statement made “under penalty of truly applicable to that business before

perjury” and signed by the declar- it pays it. (See: declaratory relief) ant, which is the modem substitute

for the more cumbersome affidavit, declaratory relief: n. a judge’s deter- which requires swearing to its truth mination (called a “declaratory judg- before a notary public. (See: affi- ment”) of the parties’ rights under a davit, declarant) contract or a statute often requested (prayed for) in a lawsuit over a con- declaration of mailing: n. a form tract. The theory is that an early reso- stating that a particular document lution of legal rights will resolve some has been mailed to a particular per- or all of the other issues in the matter. son or persons (such as opposing at- (See: declaratory judgment) torneys or the clerk of the court) and declaring the truth of that fact The law not “under penalty of perjury,” and was made for a righteous man, but the signed by the person in the law office for lawless and disobedient. responsible for mailing it. This is al- The Bible, St. most always required to be attached — Paul in Timothy 1.9 to filed documents so that the court is assured it has been sent to the other party. (See: declaration) decree: n. in general, synonymous with judgment. However, in some

declaration of trust: n. the docu- areas of the law, the term decree is ment signed by a trustor (settlor) either more common or preferred as creating a tmst into which assets in probates of estates, domestic rela- are placed, a trustee is appointed to tions (divorce), admiralty law and in manage the tmst (who may be the equity (court mlings ordering or pro- party who created the tmst), the hibiting certain acts). Thus, there powers and duties of management of may be references to a final or inter- the principal and profits of the tmst locutory decree of divorce, final de- are stated, and distribution of profits cree of distribution of a dead person’s and principal is spelled out. (See: estate, etc. (See: judgment) settlor, trust, trustee, trustor)

decriminalization: n. the repeal or declaratory judgment: n. a judg- amendment of statutes which made ment of a court which determines certain acts criminal, so that those the rights of parties without order- acts no longer are crimes subject to ing anything be done or awarding prosecution. Many states have de- damages. While this borders on the criminalized certain sexual practices prohibited “advisory opinion,” it is between consenting adults, “loiter- allowed to nip controversies in the ing” (hanging out without any crimi- bud. Examples: a party to a contract nal activity), or outmoded racist laws may seek the legal interpretation of against miscegenation (marriage or a contract to determine the parties’ cohabitation between people of dif-

rights, or a corporation may ask a ferent races). Currently, there is a

130 deed of trust

considerable movement toward de- the real property, name the party criminalization of the use of some transferring the property (grantor), narcotics (particularly marijuana) the party receiving the property by adults, on various grounds, in- (grantee) and be signed by the grantor, cluding individual rights and con- who must then acknowledge before a tention that decriminalization notary public that he/she/it executed would take the profit out of the the deed. To complete the transfer drug trade by making drugs avail- (conveyance) the deed must be recordable through clinics and other ed in the office of the County Recorder legal sources. or Recorder of Deeds. There are two basic types of deeds: a warranty deed, dedication: n. the giving of land by which guarantees that the grantor

a private person or entity to the owns title, and the quitclaim deed, government, typically for a street, which transfers only that interest in park or school site, as part of and a the real property which the grantor ac-

condition of a real estate develop- tually has. The quitclaim is often used ment. The local county or city (or among family members or from one

other public body) must accept the joint owner to the other when there is dedication before it is complete. In little question about existing owner-

many cases there are “dedicated” ship, or just to clear the title. This is streets on old subdivision maps not to be confused with a deed of trust,

which were never officially accept- which is a form of mortgage. 2) v. to ed and, in effect, belong to no one. transfer title by a written deed. (See: The adjoining property owners can conveyance, deed of trust, quit- sue for a judgment to give them claim deed, warranty deed) the title to the unclaimed (un- owned) street or property by a deed of trust: n. a document which quiet title action or request aban- pledges real property to secure a donment by the government which loan, used instead of a mortgage in did not accept the street or other Alaska, Arizona, California, Col- property. (See: quiet title action) orado, Georgia, Idaho, Illinois, Mis- sissippi, Missouri, Montana, North deduction: n. an expenditure which Carolina, Texas, Virginia and West an income tax payer may subtract Virginia. The property is deeded by from gross (total) income to deter- the title holder (trustor) to a trustee mine taxable income. This is not the (often a title or escrow company) same as an exemption, which is for which holds the title in trust for the one’s marital status, age over 65, beneficiary (the lender of the blindness and number of depen- money). When the loan is fully paid, dents (e.g. children), which, added the trustor requests the trustee to together, reduce the tax owed. return the title by reconveyance. If the loan becomes delinquent the ben- deed: 1) n. the written document eficiary can file a notice of default

which transfers title (ownership) or and, if the loan is not brought cur- an interest in read property to anoth- rent, can demand that the trustee er person. The deed must describe begin foreclosure on the property so

131 de facto

that the beneficiary may either be accusation of having committed a paid or obtain title. (See: foreclo- crime, having a feared disease or sure, mortgage, reconveyance) being unable to perform one’s occupation are called libel per se or slander de facto: adj. Latin for “in fact.” per se and can more easily lead to Often used in place of “actual” to large money awards in court and even show that the court will treat as a punitive damage recovery by the per- fact authority being exercised or son harmed. Most states provide for a an entity acting as if it had au- demand for a printed retraction of thority, even though the legal re- defamation and only allow a lawsuit if quirements have not been met. there is no such admission of error. (See: de facto, de jure) (See: fair comment, libel, public figure, slander) de facto corporation: n. a company

which operates as if it were a corpo- default: 1) n. failure to respond to a ration although it has not completed summons and complaint served on a the legal steps to become incorporat- party in the time required by law. If

ed (has not filed its articles, for ex- a legal answer or other response is ample) or has been dissolved or sus- not filed, the suing party (plaintiff) pended but continues to function. can request a default be entered in The court temporarily treats the cor- the record, which terminates the poration as if it were legal in order to rights of the defaulting party to de- avoid unfairness to people who fend the case. Under a unique New thought the corporation was legal. York statute a default can be taken (See: de facto, dejure, ultra vires) by failure to respond to a summons served without a complaint. 2) the defalcation: v. from Latin for “deduc- failure to make a payment when due, tion,” withholding or misappropriat- which can lead to a notice of default ing funds held for another, particu- and the start of foreclosure proceed- larly by a public official, or failing to ings if the debt is secured by a mort-

make a proper accounting. gage or deed of trust. 3) v. to fail to file an answer or other response to a

defamation: n. the act of making un- summons and complaint, or fail to true statements about another make a payment when due. (See: de- which damages his/her reputation. fault judgment, notice of default) If the defamatory statement is

printed or broadcast over the media default judgment: n. if a defendant it is libel and, if only oral, it is slan- in a lawsuit fails to respond to a com- der. Public figures, including office- plaint in the time set by law (com- holders and candidates, have to monly 20 or 30 days), then the plain- show that the defamation was made tiff (suer) can request that the de- with malicious intent and was not fault (failure) be entered into the just fair comment. Damages for court record by the clerk, which gives slander may be limited to actual the plaintiff the right to get a default (special) damages unless there is judgment. If the complaint was for a malice. Some statements such as an specific amount of money owed on a

132 deficiency judgment

note, other money due, or a specif- title did not have title, or there is a ic contract price (or if the amount faulty description of the property or

due is easy to calculate) then the some other “cloud” over it, which clerk of the court can enter a de- may or may not be apparent from fault judgment. If proof of damages reading the deed. (See: chain of or other relief is necessary, a hear- title, defect, defective) ing will be held in which the judge

determines terms of the default defendant: n. 1) the party sued in a judgment. In either case the defen- civil lawsuit or the party charged with dant cannot speak for himself/her- a crime in a criminal prosecution. In self. A defendant who fails to file some types of cases (such as divorce) a an answer or other legal response defendant may be called a respondent. when it is due can request that the (See: codefendant, plaintiff) default be set aside, but must show

a legitimate excuse and a good de- defense: n. 1) a general term for the ef- fense to the lawsuit. (See: comfort of an attorney representing a de- plaint, default, summons) fendant during trial and in pre-trial maneuvers to defeat the party suing defeasance: n. an antiquated word or the prosecution in a criminal case. for a document which terminates 2) a response to a complaint, called an the effect of an existing writing such affirmative defense, to counter, defeat as a deed, bond or contract if some or remove all or a part of the con- event occurs. tentions of the plaintiff. (See: affirmative defense) defect: n. an imperfection, quite

often so great that the machinery defense attorney: n. 1) the attorney or written document cannot be representing the defendant in a law- used. A car that will not run or has suit or criminal prosecution. 2) a faulty brakes has a defect, and so lawyer who regularly represents de- does a deed in which a party who fendants who have insurance and signed the deed to give over prop- who is chosen by the insurance com- erty did not have title to the prop- pany. 3) a lawyer who regularly rep- erty described. There are also resents criminal defendants. Attor- minor defects, like scratches that neys who regularly represent clients only lessen value but do not make in actions for damages are often an object useless. (See: defective, called “plaintiff’s attorneys.” (See: defective title) defendant, plaintiff’s attorney) defective: adj. not being capable of deficiency judgment: n. a judgment fulfilling its function, ranging from for an amount not covered by the a deed of land to a piece of equip- value of security put up for a loan or ment. (See: defect, defective title) installment payments. In most states the party owed money can defective title: n. an apparent title only get a deficiency judgment if to real property which fails be- he/she chooses to file a suit for judi- cause a claimed prior holder of the cial foreclosure instead of just fore-

133 deficit

closing on real property. However, de jure corporation: n. a corporation some states allow a lawsuit for a in good standing under the law, as deficiency after foreclosure on the compared to a de facto corporation mortgage or deed of trust. The which is acting while not fulfilling right to a deficiency judgment is legal requirements. (See: de facto often written into a lease or incorporation, de jure) stallment contract on a vehicle.

There is a danger that the sale of a delayed exchange: n. an exchange of repossessed vehicle will be at a property to put off capital gain taxes, wholesale price or to a friend at a in which the funds are placed in a sheriff’s sale or auction, leaving binding trust for up to 180 days while the debtor holding the bag for the the seller acquires an “exchanged” difference between the sale price (another similar) property, pursuant

and remainder due on the lease or to IRS Code sec. 1031. It is sometimes contract. (See: foreclosure, judi- called a “Starker” after the man who cial foreclosure) first used this method and survived an IRS lawsuit. deficit: n. a shortage, less than is due,

or in the case of a business or gov- delegate: 1) v. to assign authority to ernment budget, more expenditures another. 2) n. a person chosen to at- than income. Unbalanced budgets tend a convention, conference or with a planned year-end deficit are meeting on behalf of an organiza- prohibited at every level of govern- tion, constituency, interest group or ment except the federal. business.

defraud: v. to use deceit, falsehoods deleterious: adj. harmful. or trickery to obtain money, an ob-

ject, rights or anything of value be- deliberate: 1) adj. (dee-lib-er-et) done longing to another. (See: fraud) with care and intention or premedi-

tated. 2) v. (dee-lib-er-ate) to consider degree of kinship: n. the level of re- the facts, the laws and/or other mat- lationship between two persons re- ters, particularly by members of a lated by blood, such as parent to jury, a panel ofjudges or by any group child, one sibling to another, grand- including a legislature. parent to grandchild or uncle to

nephew, first cousins, etc., calculat- deliberation: n. the act of considering, ed as one degree for each step from discussing and, hopefully, reaching a a common ancestor. This may be- conclusion, such as a jury’s discus- come important when determining sions, voting and decision-making.

the heirs of an estate when there is no will. (See: descent) The law is only a memoran-

de jure-, adj. Latin for “lawful,” dum. as distinguished from de facto —Ralph Waldo Emerson (actual). (See: de facto, de

jure corporation) delinquent: 1) adj. not paid in full

134 demurrer

amount or on time. n. short 2) for de minimis : adj. (dee-minnie-miss) an underage violator of the law Latin for “of minimum importance” or as in juvenile delinquent. (See: “trifling.” Essentially it refers to some-

youthful offender) thing or a difference that is so little, small, minuscule oh tiny that the law deliver: v. to actually hand an object, does not refer to it and will not con- money or document to another. sider it. In a million dollar deal, a $10 mistake is de minimis. delivery: n. the actual handing to an-

other of an object, money or docu- demise: 1) v. an old-fashioned expres- ment (such as a deed) to complete a sion meaning to lease or transfer (con- transaction. The delivery of a deed vey) real property for years or life, but transfers title (provided it is then not beyond that. 2) n. the deed that recorded), and the delivery of goods conveys real property only for years or makes a sale complete and final if life. 3) n. death. 4) n. failure. payment has been made. Symbolic

or constructive delivery (depositing demonstrative evidence: n. actual ob- something with an agent or third jects, pictures, models and other de- person) falls short of completion un- vices which are supposedly intended to less agreed to by the parties. (See: clarify the facts for the judge and jury: contract, deed, sale) how an accident occurred, actual damages, medical problems, or methods demand: 1) v. to claim as a need, re- used in committing an alleged crime. quirement or entitlement, as in to Many of these are not supposed to be demand payment or performance actual evidence, but “aids” to under- under a contract. In a lawsuit for standing. A model of a knee or a pho- payment of a debt or performance tograph of an accident scene obviously of an act, the party suing (plaintiff) helps, but color photos of an operation should allege that he/she/it de- in progress or a bullet-riddled body can manded payment or performance. excite the passions of a jury. The bor- 2) n. a claim, such as an unquali- derline balance between legitimate fied request for payment or other aids and evidence intended to inflame action. 3) the amount requested by a juror’s emotions is in the hands of a plaintiff (usually in writing) dur- the trial judge. (See: evidence) ing negotiations to settle a lawsuit. 4) adj. referring to a note payable demurrer: n. (dee-muhr-ur) a written at any time a request to pay is response to a complaint filed in a law- made. (See: demand note) suit which, in effect, pleads for dismissal on the point that even if the demand note: n. a promissory note facts alleged in the complaint were which is payable any time the true, there is no legal basis for a law- holder of the note makes a request. suit. A hearing before a judge (on the This is different from a note due at law and motion calendar) will then be a specific time, upon occurrence of held to determine the validity of the an event, or by installments. (See: demurrer. Some causes of action may promissory note) be defeated by a demurrer while

135 denial

others may survive. Some demur- as a parent), which may qualify the rers contend that the complaint is party supporting the dependent for unclear or omits an essential ele- an exemption to reduce his/her in- ment of fact. If the judge finds these come taxes. 2) adj. requiring an errors, he/she will usually sustain event to occur, as the fulfillment of a the demurrer (state it is valid), but contract is dependent on the expert “with leave to amend” in order to being available. allow changes to make the original

complaint good. An amendment to depletion: n. when a natural resource the complaint cannot always over- (particularly oil) is being used up. The come a demurrer, as in a case filed annual amount of depletion may, iron- after the time allowed by law to ically, provide a tax deduction for the bring a suit. If after amendment the company exploiting the resource be- complaint is still not legally good, a cause if the resource they are exploit- demurrer will be granted sustained. ing runs out, they will no longer be

In rare occasions, a demurrer can be able to make money from it. used to attack an answer to a com-

plaint. Some states have substitut- deponent: n. a person testifying (stated a motion to dismiss for failure to ing answers in response to ques- state a cause of action for the de- tions) at a deposition. (See: depose, murrer. (See: motion, pleading) deposition)

denial: n. a statement in the defen- deportation: n. the act of expelling a dant’s answer to a complaint in a foreigner from a country, usually be- lawsuit that an allegation (claim of cause he/she has a criminal record, fact) is not true. If a defendant de- committed a crime, lied on his/her

nies all allegations it is called a gen- entry documents, is in the country il- eral denial. In answering, the defen- legally or his/her presence is deemed dant is limited to admitting, deny- by the Immigration and Naturaliza- ing or denying on the basis he/she/it tion Service, FBI or State Department has no information to affirm or officials to be against the best inter-

deny. The defendant may also state ests of the nation. Deportation is usu- affirmative defenses. (See: admis- ally to the country of origin. sion, affirmative defense, an-

swer, general denial) depose: v. 1) to ask questions of a witness or a party to a lawsuit at a de novo: adj. Latin for “anew,” deposition (testimony outside of the which means starting over, as in a courtroom before trial). 2) to testify trial de novo. For example, a deci- at a deposition. (See: deponent, sion in a small claims case may be deposition) appealed to a local trial court, which may try the case again, de deposition: n. the taking and record- novo. (See: trial de novo) ing of testimony of a witness under oath before a court reporter in a place

dependent: 1) n. a person receiving away from the courtroom before trial. support from another person (such A deposition is part of permitted pre-

136 descent

trial discovery (investigation), set ed useful life of the asset (straight up by an attorney for one of the par- line) or at a higher rate in the early ties to a lawsuit demanding the years of use (accelerated). sworn testimony of the opposing depreciation reserve: n. a business party (defendant or plaintiff), a wit- fund in which the probable replace- ness to an event, or an expert in- ment cost of equipment is accumulated

tended to be called at trial by the each year over the life of the asset, so

opposition. If the person requested it can be replaced readily when it be- to testify (deponent) is a party to comes obsolete and totally depreciated. the lawsuit or someone who works for an involved party, notice of time derelict: n. something or someone who and place of the deposition can be is abandoned, such as a ship left to

given to the other side’s attorney, drift at sea or a homeless person ig- but if the witness is an independent nored by family and society. (See: third party, a subpena must be abandon, dereliction)

served on him/her if he/she is reluc-

tant to testify. The testimony is dereliction: n. 1) abandoning posses- taken down by the court reporter, sion, which is sometimes used in the

who will prepare a transcript if re- phrase “dereliction of duty.” It in- quested and paid for, which assists cludes abandoning a ship, which then in trial preparation and can be used becomes a “derelict” which salvagers in trial either to contradict (im- can board. 2) an old expression for in- peach) or refresh the memory of the crease of land due to gradual lowering

witness, or be read into the record if of a tide line (which means the land is the witness is not available. (See: building up). (See: derelict) deponent, depose, discovery)

derivative action: n. a lawsuit brought depreciate: v. in accounting, to re- by a corporation shareholder against duce the value of an asset each year the directors, management and/or theoretically on the basis that the other shareholders of the corporation,

assets (such as equipment, vehicles for a failure by management. In effect, or structures) will eventually be- the suing shareholder claims to be act- come obsolete, worn out and of little ing on behalf of the corporation, be- value. (See: depreciation) cause the directors and management are failing to exercise their authority depreciation: n. the actual or theo- for the benefit of the company and all retical gradual loss of value of an of its shareholders. This type of suit asset (particularly business equip- often arises when there is fraud, mis- ment or buildings) through increas- management, self-dealing and/or dis- ing age, natural wear and tear, or honesty which are being ignored by of- deterioration, even though the item ficers and the board of directors of a may retain or even increase its re- corporation. (See: corporation, di- placement value due to inflation. rector, shareholder, stockholder) Depreciation may be used as a business deduction for income tax re- descent: n. the rules of inheritance duction, spread out over the expect- established by law in cases in which

137 descent and distribution

there is no will naming the persons to support the family he/she left. Such to receive the possessions of a per- conduct is less significant legally in son who has died. The rules of de- the present era of no-fault divorce and scent vary somewhat from state to standardized rights to child support state and will usually be governed and alimony (spousal support). Deser- by the law of the state in which the tion can influence a court in determin- deceased party lived. Depending on ing visitation, custody and other post- which relatives survive, the estate marital issues. may go all or in part to the surviving spouse, and down the line from determinable: adj. defining some- a parent to children (or if none sur- thing which may be terminated upon vive, to grandchildren), or up to sur- the occurrence of a particular event, viving parents, or collaterally to used primarily to describe an inter- brothers and sisters. If there are no est in real property, such as a fee survivors among those relatives, simple determinable, in which prop- then aunts, uncles, cousins, nieces erty is deeded to another, but may and nephews may inherit, depend- revert to the giver or go to a third

ing on their degree of kinship person if, as examples, the receiver (closeness of family relationship), (grantee) marries, divorces or no state laws of descent and distribu- longer lives in the house. tion, or whether the deceased per-

son lived in a community property “deuce”: n. slang term for a drunk dri- state, in which the wife has a sur- ving conviction. The term originated vivorship right to community prop- in California, where the offense was erty. (See: community property, once governed by Section 502 of the degree of kinship, descent and California Vehicle Code. distribution, inheritance, intes-

tate succession) devise: 1) v. an old-fashioned word for giving real property by a will, as dis- descent and distribution: n. the tinguished from words for giving per- system of laws which determine sonal property. 2) n. the gift of real who will inherit and divide the pos- property by will. (See: bequest, gift, sessions of a person who has died legacy, remise, will) without a will (intestate). (See: de-

gree of kinship, descent, inheri- devisee: n. a person who receives a gift tance, intestate succession) of real property by a will. The distinction between gifts of real property and desert: v. to intentionally abandon a personal property is actually blurred, person or thing. so terms like beneficiary or legatee cover those receiving any gift by a will. desertion: n. the act of abandoning, (See: beneficiary, legatee) particularly leaving one’s spouse and/or children without an intent to devolution: n. the transfer of rights, return. In desertion cases it is often powers or an office (public or private) expected that a deserter who is the from one person or government to family breadwinner may not intend another. (See: devolve)

138 direct and proximate cause devolve: v. when property is auto- diminished capacity: n. essentially a matically transferred from one psychological term which has found party to another by operation of law, its way into criminal trials. A con- without any act required of either tention of diminished capacity means past or present owner. The most that although the accused was not in- common example is passing of title sane, due to emotional distress, phys- to the natural heir of a person upon ical condition or other factors he/she his/her death. 2) passing of authori- could not fully comprehend the nature

ty to a vice president on the death of of the criminal act he/she is accused of a president. 3) to give a territory committing, particularly murder or sovereign rights to run itself. attempted murder. It is raised by the defense in attempts to remove the ele- devolution: n. 1) the transfer of title ment of premeditation or criminal in- to real property by the automatic tent and thus obtain a conviction for a operation of law. 2) the giving away lesser crime, such as manslaughter in- of power. (See: devolve) stead of murder. While the theory has some legitimacy, at times juries have been overly impressed by psychiatric “No, no,” said the Queen. “Sen- testimony. The most notorious case tence first, verdict afterwards.” was in People v. Dan White, the ad- —Lewis Carroll, Alice in Won- mitted killer of San Francisco Mayor derland George Moscone and Supervisor Har- vey Milk, who got only a manslaugh- dicta-, n. the plural of dictum. ter conviction on the basis that his capacity was diminished by the sugar dictum: n. Latin for “remark,” a com- content of his blood due to eating ment by a judge in a decision or rul- “Twinkies.” (See: insanity, IVTNaugh- ing which is not required to reach ten Rule, Twinky defense) the decision, but may state a related

legal principle as the judge under- diminution in value: n. in the event of

stands it. While it may be cited in a breach of contract, the decrease in legal argument, it does not have the value of property due to the failure to full force of a precedent (previous construct something exactly as speci- court decisions or interpretations) fied in the contract. since the comment was not part of the legal basis for judgment. The direct and proximate cause: n. the standard counter argument is: “it is immediate reason damage was only dictum (or dicta).” (See: dicta, caused by an act or omission (negli- obiter dicta) gence); the negligence must have caused the damages, without inter- diligence: n. reasonable care or at- vention of another party, and can- tention to a matter, which is good not be remote in time or place. Ex- enough to avoid a claim of negli- ample (in a complaint): “Defendant’s gence, or is a fair attempt (as in due negligent acts (speeding and losing diligence in a process server’s at- control of his vehicle) directly and tempt to locate someone). proximately caused plaintiff’s in-

139 directed verdict

juries.” (See: cause, complaint, ing, but not day-to-day operation, proximate cause) which is handled by officers and other managers. In some cases, a director directed verdict: n. a verdict by a may also be an officer, but need not be jury based on the specific direction a shareholder. Most states require a by a trial judge that they must bring minimum of three directors on corpo- in that verdict because one of the rate boards. Often lay people dealing parties has not proved his/her/its with corporations confuse directors case as a matter of law (failed to pre- with officers. Officers are employees sent credible testimony on some key hired by the board of directors to element of the claim or of the de- manage the business. (See: board of fense). A judge in a criminal case directors, corporation) may direct a verdict of acquittal on

the basis that the prosecution has disability: n. 1) a condition which pre- not proved its case, but the judge vents one from performing all usual may not direct a verdict of guilty, physical or mental functions. This since that would deprive the accused usually means a permanent state,

of the constitutional right to a jury like blindness, but in some cases is trial. (See: acquittal, element, temporary. In recent times society judgment, jury trial, verdict) and the law have dictated that people with disabilities should be ac- direct evidence: n. real, tangible or commodated and encouraged to op- clear evidence of a fact, happening erate to their maximum potential or thing that requires no thinking or and have the right to participate in consideration to prove its existence, societal and governmental activity as compared to circumstantial evi- without impediments. Hence, access dence. (See: circumstantial evi- by ramps, elevators, special parking dence, evidence) places and other special arrangements have become required in direct examination: n. the first many states. 2) a legal impediment, questioning of a witness during a including being a minor who can- trial or deposition (testimony out of not make a contract, or being insane court), as distinguished from cross- or incompetent. examination by opposing attorneys

and redirect examination when the disbar: v. to remove an attorney from witness is again questioned by the the list of practicing attorneys for im-

original attorney. (See: cross-ex- proper conduct. This penalty is usual- amination, deposition, testimo- ly invoked by the State Bar Associa- ny, witness) tion (if so empowered) or the highest state court, and will automatically director: n. a member of the govern- prohibit the attorney from practicing ing board of a corporation or associ- law before the courts in that state or ation elected or re-elected at annual from giving advice for a fee to clients. meetings of the shareholders or The causes of permanent disbarment members. As a group the directors include conviction of a felony involv- are responsible for the policy making “moral turpitude,” forgery, fraud, a

140 discovery

history of dishonesty, consistent often not collectible if the bankrupt lack of attention to clients, aban- person has nothing). A discharge in doning several clients, alcoholism bankruptcy is bad news for unse- or drug abuse which affect the at- cured creditors. (See: bankruptcy) torney’s ability to practice, theft of

funds, or any pattern of violation of disclaimer: n. 1) denial or renuncia- the professional code of ethics. Sin- tion by someone of his/her title to gular incidents (other than felony property. 2) denial of responsibility conviction) will generally result in for another’s claim, such as an insur- reprimand, suspension and/or a re- ance company’s refusal to admit cov- quirement that the lawyer correct erage under an insurance policy. 3)

his/her conduct, show remorse statement of non-responsibility, as is and/or pass a test on legal ethics. made when dissolving a partnership (See moral turpitude) or business. disbarment: n. the ultimate disci- discount: n. the payment of less than pline of an attorney, which is taking the full amount due on a promissory away his/her license to practice law, note or price for goods or services. often for life. Disbarment only Usually a discount is by agreement comes after investigation and op- and includes the common situation portunities for the attorney to ex- in which a holder of a long-term plain his/her improper conduct. promissory note or material goods Sometimes an attorney may be re- will sell it/them for less than face instated upon a showing of rehabil- value in order to get cash now—the itation and/or cure. (See: disbar) difference is the discount. discharge: v. 1) to perform one’s du- discovery: n. the entire efforts of a ties. 2) to dismiss someone from a party to a lawsuit and his/her/its at- job. 3) to pay one’s debts or obliga- torneys to obtain information before tions. 4) in bankruptcy, to issue an trial through demands for produc- order of the court that all debts tion of documents, depositions of (with certain statutory exceptions) parties and potential witnesses, are forgiven and need not be paid. written interrogatories (questions (See: bankruptcy) and answers written under oath), written requests for admissions of discharge in bankruptcy: n. an fact, examination of the scene and order given by the bankruptcy the petitions and motions employed judge, at the conclusion of all legal to enforce discovery rights. The theo-

steps in processing a bankrupt perry of broad rights of discovery is that son’s assets and debts, which for- all parties will go to trial with as gives those remaining debts which much knowledge as possible and cannot be paid, with certain excep- that neither party should be able to tions. Debts for fraudulent or keep secrets from the other (except illegal actions, alimony and child for constitutional protection against support and taxes are not dis- self-incrimination). Often much of chargeable and remain owed (but the fight between the two sides in a

141 discretion

suit takes place during the discov- disfigure: v. to cause permanent change ery period. (See: deposition, in- in a person’s body, particularly by terrogatories) leaving visible scars which affect a person’s appearance. In lawsuits or discretion: n. the power of a judge, claims due to injuries caused by an- public official or a private party other’s negligence or intentional ac- (under authority given by contract, tions, such scarring can add consid- trust or will) to make decisions on erably to general damages. (See: various matters based on his/her damages, general damages) opinion within general legal guidelines. Examples: a) a judge may dishonor: v. to refuse to pay the face have discretion as to the amount of amount of a check or the amount due a fine or whether to grant a contin- on a promissory note. uance of a trial; b) a trustee or ex-

ecutor of an estate may have discre- disinherit: v. to intentionally take action to divide assets among the ben- tions to guarantee that a person who eficiaries so long as the value to would normally inherit upon a each is approximately equal; c) a party’s death (wife, child or closest District Attorney may have discre- relative) would get nothing. Usually tion to charge a crime as a misde- this is done by a provision in a will or meanor (maximum term of one codicil (amendment) to a will which year) or felony; d) a Governor may states that a specific person is not to have discretion to grant a pardon; or take anything (“my son, Robert e) a planning commission may use Hands, shall receive nothing,” “no de- its discretion to grant or not to grant scendant of my hated brother shall a variance to a zoning ordinance. take anything on account of my death.”). It is not enough to merely discrimination: n. unequal treat- ignore or not mention a child in a will ment of persons, for a reason which since he/she may become a “preter-

has nothing to do with legal rights or mitted heir” (a child apparently for- ability. Federal and state laws pro- gotten). A spouse can be disinherited hibit discrimination in employment, only to the extent that the state law availability of housing, rates of pay, allows. A writer of a will can also dis- right to promotion, educational op- inherit anyone who challenges the portunity, civil rights, and use of fa- validity of the will in what is called cilities based on race, nationality, an “in terrorem” clause, which might creed, color, age, sex or sexual orien- say “I leave anyone who challenges tation. The rights to protest discrim- this will or any part of it one dollar.” ination or enforce one’s rights to (See: codicil, descent, descent and equal treatment are provided in var- distribution, heir, in terrorem ious federal and state laws, which clause, pretermitted heir, will) allow for private lawsuits with the

right to damages. There are also disinheritance: n. the act of disinherit- federal and state commissions to ing. (See: disinherit) investigate and enforce equal rights.

(See: civil rights) disjunctive allegations: n. the

142 dissent

attempt to claim in a civil lawsuit an appeal, letting the lower court de- that one thing “or” another oc- cision stand. 4) the act of a plaintiff curred, and in criminal charges dismissing a lawsuit upon settling that the accused committed one the case. Such a dismissal may be

crime “or” another. Such com- dismissal with prejudice, meaning it plaints are disallowed because the can never be filed again, or dismissal defendant is entitled to know what without prejudice, leaving open the he/she must defend. (See: cause of possibility of bringing the suit again action, charge, complaint) if the defendant does not follow through on the terms of the settle- dismiss: v. the ruling by a judge that ment. (See: dismiss) all or a portion (one or more of the causes of action) of the plaintiff’s dismissal with prejudice: n. (See: lawsuit is terminated (thrown out) dismissal) at that point without further evidence or testimony. This judgment dismissal without prejudice: n. may be made before, during or at (See: dismissal) the end of a trial, when the judge be-

comes convinced that the plaintiff disorderly conduct: n. 1) actions that has not and cannot prove his/her/its disturb others. 2) minor criminal of- case. This can be based on the com- fenses, such as public drunkenness, plaint failing to allege a cause of ac- loitering, disturbing the peace, and tion, on a motion for summary judg- loud threats or parties. ment, plaintiff’s opening statement

of what will be proved, or on some disorderly house: n. 1) polite term development in the evidence by ei- for house of prostitution. 2) place of ther side which bars judgment for illegal gambling. the plaintiff. The judge may dismiss on his own or upon motion by the disposing mind and memory: n. the defendant. The plaintiff may volun- mental ability to understand in gener- tarily dismiss a cause of action be- al what one possesses and the persons fore or during trial if the case is set- who are the “natural objects of bounty” tled, if it is not provable or trial (wife and/or children), at the time of strategy dictates getting rid of a making a will. (See: competent, will) weak claim. A defendant may be “dismissed” from a lawsuit, mean- disposition: n. the court’s final determi- ing the suit is dropped against that nation of a lawsuit or criminal charge. party. (See: dismissal)

dispossess: v. to eject someone from real dismissal: n. 1) the act of voluntari- property, either legally or by self-help. ly terminating a criminal prosecu-

tion or a lawsuit or one of its caus- dissent: n. 1) the opinion of a judge of a es of action by one of the parties. 2) court of appeals, including the U.S. a judge’s ruling that a lawsuit or Supreme Court, which disagrees with criminal charge is terminated. 3) the majority opinion. Sometimes a dis- an appeals court’s act of dismissing sent may eventually prevail as the

143 dissenting opinion

law or society evolves. Prime exam- trust, or in absence of a will, according ples include the many dissenting to the laws of descent and distribution. opinions of Oliver Wendell Holmes, 2) division of profits or assets of a cor- Associate Justice of the U.S. poration or business. (See: corpora- Supreme Court (1902-1932), which tion, descent and distribution, were widely quoted and often probate, trust, will) formed the basis for later majority decisions. 2) stated disagreement distribution: n. the act of dividing up with prevailing thought. the assets of an estate or tmst, or paying out profits or assets of a corpora- dissenting opinion: n. (See: dissent) tion or business according to the ownership percentages. (See: distribute) dissolution of corporation: n. termination of a corporation, either a) District Attorney (DA): n. an elect- voluntarily by resolution, paying ed official of a county or a designated debts, distributing assets alid filing district with the responsibility for dissolution documents with the Sec- prosecuting crimes. The duties in-

retary of State; or b) by state sus- clude managing the prosecutor’s of- pension for not paying corporate fice, investigating alleged crimes in taxes or some other action of the cooperation with law enforcement, government. (See: corporation) and filing criminal charges or bringing evidence before the Grand Jury dissolution: n. modem, gentler sound- that may lead to an indictment for a ing, term for divorce, officially used crime. In some states a District At- in California since 1970 and sym- torney is officially entitled County bolic of the no-fault, non-confronta- Attorney or State’s Attorney. U.S. At- tional approach to dissolving a mar- torneys are also called Federal Dis- riage. (See: divorce) trict Attorneys and are prosecutors for districts (there are several in distinguish: v. to argue that the rule larger states) within the Department in one appeals court decision does of Justice, are appointed by the Pres- not apply to a particular case al- ident and serve at his/her pleasure. though there is an apparent simi-

larity (i.e. it is “distinguished”). district court: n. 1) in the federal court system, a trial court for federal cases distress: 1) n. the self-help taking of in a court district, which is all or a por- another’s possessions in order to tion of a state. 2) a local court in some force payment of a claim, which is states. (See: court) generally illegal without a court

order. 2) adj. at lowest price due to disturbing the peace: n. upsetting the negative circumstances. quiet and good order particularly through loud noise, by fighting distribute: v. 1) the dividing up of or other unsocial behavior which those assets of an estate or trust frightens or upsets people. It is a mis- when someone has died according to demeanor, punishable by fine or brief

the terms of the deceased’s will or term in jail.

144 DNA diversion: n. in criminal procedure, a known as a stock dividend. (See: cor- system for giving a chance for a first- poration, shareholder) time criminal defendant in lesser

crimes to perform community ser- divorce: 1) n. the termination of a mar- vice, make restitution for damage riage by legal action, requiring a peti- due to the crime, obtain treatment tion or complaint for divorce (or disso- for alcohol or drug problems and/or lution in some states, including Cali-

counselling for antisocial or mental- fornia) by one party. Some states still ly unstable conduct. If the defendant require at least a minimal showing of cooperates and the diversion results fault, but no-fault divorce is now the

in progress, the charges eventually rule in which “incompatibility” is suf- may be dismissed. Usually diversion ficient to grant a divorce. The sub- may not be granted for a second of- stantive issues in divorces are division fense. (See: probation) of property, child custody and support, alimony (spousal support), child visi- diversity of citizenship: n. when tation and attorney’s fees. Only state opposing parties in a lawsuit are courts have jurisdiction over divorces, citizens of different states (includ- so the petitioning or complaining

ing corporations incorporated or party can only file in the state in

doing business in different states) which he/she is and has been a resi-

or a citizen of a foreign country, dent for a period of time (as little as which places the case under feder- six weeks in Nevada). In most states al court jurisdiction, pursuant to the period from original filing for di- Article III, section 2 of the U.S. vorce, serving the petition on the Constitution, and the federal Judi- other party and final judgment (or de- cial Code, if the amount in contro- cree) takes several months to allow for versy exceeds $10,000. a chance to reconcile. (See: alimony, child custody, child support, com- divestiture: n. the court-ordered or munity property, dissolution of voluntary giving up of a possession marriage, incompatibility, sepa- or right, which is a common result rate property, spousal support) in an antitrust action to prevent monopoly or other restraint of trade. DNA: n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the divestment: n. the act of stripping famous “double helix”) in the nucleus

one’s investment from an entity. of each living cell, the combination of which determines each individual’s dividend: n. a portion of profit, usu- hereditary characteristics. In law, the ally based on the number of shares importance is the discovery that each of stock in a corporation and the person’s DNA is different and is found rate of distribution approved by in each living cell, so blood, hair, skin the board of directors or manage- or any part of the body can be used to ment, that is paid to shareholders identify and distinguish an individual for each share they own. Dividends from all other people. DNA testing can are not always paid in money, but result in proof of one’s involvement or can be paid in shares of stock, lack of involvement in a crime scene.

145 docket

DNA tests can verify or exclude one so that it can be served with a com- as a parent of a child. Recent DNA plaint, is subject to certain state comparisons have demonstrated taxes and/or must register as a for- that several convicted alleged mur- eign (out-of-state) corporation oper- derers and rapists were actually ating within the state. innocent and gained release. Resis-

tance to DNA evidence as unreliable domestic partners: n. unmarried cou-

has virtually evaporated. ples, including homosexuals, living together in long-standing relationships,

docket: 1) n. the cases on a court cal- who may be entitled to some of the endar. 2) n. brief notes, usually writ- same benefits as married people, such ten by the court clerk, stating what as job-related health plans. action was taken that day in court.

3) v. to write down the name of a domestic relations: n. a polite term case to be put on calendar or make for the legal field of divorce, dissolu- notes on action in court. tion, annulment, child custody, child support and alimony. (See: divorce) document: n. a popular generic word among lawyers for any paper with The Constitution of the United writing on it. Technically it could in- States forms a government, not clude a piece of wood with a will or a league. message scratched on it. (See: doc- —Andrew Jackson umentary evidence) domestic violence: n. the continuing documentary evidence: n. any crime and problem of the physical document (paper) which is present- beating of a wife, girlfriend or chil- ed and allowed as evidence in a dren, usually by the woman s male

trial or hearing, as distinguished partner (although it can also be fe- from oral testimony. However, the male violence against a male). It is opposing attorney may object to its now recognized as an antisocial men- being admitted. In the first place, it tal illness. Sometimes a woman s de- must be proved by other evidence pendence, low self-esteem and fear of from a witness that the paper is leaving cause her to endure this con- genuine (called laying a founda- duct or fail to protect a child. Prose-

tion ), as well as pass muster over cutors and police often face the prob- the usual objections such as rele- lem that a battered woman will not vancy. (See: document, evidence, press charges or testily due to fear, a foundation) intimidation and misplaced love.

Increasingly domestic violence is at-

doing business: v. carrying on the tracting the sympathetic attention of normal activities of a corporation law enforcement, the courts and com- on a regular basis or with substan- munity services, including shelters tial contacts not just an occasion- and protection for those in danger. al shipment. This is important to (See: aggravated assault, assault determine if an out-of-state corpo- and battery) ration is doing business in a state

146 double taxation domicile: n. the place where a person nothing by mistake or under pressure. has his/her permanent principal home to which he/she returns or in- donee: n. a person or entity receiving tends to return. This becomes sig- an outright gift or donation. nificant in determining in what state a probate of a dead person’s es- donor: n. a person or entity making a tate is filed, what state can assess gift or donation. income or inheritance taxes, where a party can begin divorce proceed- double jeopardy: n. placing someone ings, or whether there is “diversity on trial a second time for an offense of citizenship” between two parties for which he/she has been previously which may give federal courts juris- acquitted, even when new incrimi- diction over a lawsuit. Where a per- nating evidence has been unearthed. son has several “residences” it may This is specifically prohibited by the be a matter of proof as to which is Fifth Amendment to the U.S. Consti- the state of domicile. A business has tution, which states: “...nor shall any its domicile in the state where its person be subject for the same of- headquarters is located. fence [sic] to be twice put in jeopardy .” of life or limb. . However, in rare in- dominant estate: n. in real estate stances a person may be tried for a law, the property retained when the different crime based on some of the owner splits off and conveys part of same facts which were used to try the property to another party but him/her when he/she was acquitted. retains some rights such as an ease- A prime example is the use of the ment for access (a driveway) or util- Federal Civil Rights Act to charge a ities. The property sold off upon person with violation of another’s which there is the easement is civil rights by killing him, after a called the servient estate. These are state murder case had resulted in an also called dominant tenement and acquittal, as happened in the 1994 servient tenement, respectively. trials for the deaths of civil rights ac- (See: easement, servient estate, tivists and freedom riders Andrew servient tenement) Goldman, Michael Schwemer, James Chaney and Viola Liuzzo, that oc- dominant tenement: n. (See: domi- curred thirty years earlier. nant estate) double taxation: n. taxation of the donation: n. gift. If made to a quali- same property for the same purpose fied non-profit charitable, reli- twice in one year. This is generally

gious, educational or public service prohibited if it occurs through such organization, it may be deductible circumstances as transfer of proper- as a contribution in calculating in- ty which has been taxed once and come tax. then the tax is imposed on a new owner. However, if all property in a donative intent: n. conscious de- jurisdiction is taxed twice in the

sire to make a gift, as distin- same year, it is legal since it is not guished from giving something for discriminatory or unfair.

147 dower

dower: n. an old English common but there is no draft or call-ups. (See: law right of a widow to one-third of bill of exchange, check) her late husband’s estate, which is still the law in a few states. In dram shop rule: n. a statute (Dram those states the surviving wife can Shop Act) or case law in 38 states choose either the dower rights or, if which makes a business which sells more generous, accept the terms of alcoholic drinks or a host who serves her husband’s will in what is called liquor to a drinker who is obviously in-

a widow’s election. In an obvious toxicated or close to it, strictly liable to sexist imbalance, a surviving hus- anyone injured by the drunken patron band’s equivalent right (called cur- or guest. To the contrary, California tesy) is to the wife’s entire estate, recently passed legislation specifically

or if there are living children, to a banning such strict liability. It is often life estate in everything. (See: cur- hard to prove that the liquor bought or tesy, descent and distribution, served was the specific cause of an ac- widow’s election) cident (such as an automobile crash

while driving home), since there is al- dowry: n. from the days when a ways an intervening cause, namely, groom expected to profit from a the drunk. marriage, the money and personal

property which a bride brings to her draw: v. 1) to prepare any document. 2) new husband which becomes his specifically to have prepared and alone. Dowry still exists in the Civil signed a bill of exchange or check. Code of Louisiana.

drawee: n. the party who is to be paid draft: 1) n. a bill of exchange or check on a bill of exchange or check. (See: in which one party (including a bill of exchange) bank) is directed by the party draft-

ing (writing) the bill or check to take drawer: n. the person who signs a bill money from the drafter’s (writer’s) of exchange. (See: bill of exchange)

bank account and pay it to another

person or entity. 2) v. to prepare and driving under the influence (DUI):

sign a bill of exchange or check. 3) n. n. commonly called “drunk driving,” it a less than final document, which is refers to operating a motor vehicle

ready for discussion, rewriting while one’s blood alcohol content is and/or editing, such as a book, a pro- above the legal limit set by statute, posal, or a legislative bill. 4) n. com- which supposedly is the level at which pulsory enrollment of non-volun- a person cannot drive safely. State

teers for military service by lottery, statutes vary as to what that level is,

as existed under the Selective Ser- but it ranges from .08 to .10 for adults,

vice System during World War I, which means a 8/100ths to one-tenth from 1940 as World War II threat- of one percent by weight of alcohol to

ened to involve the United States, the weight of blood. This is translated through the Korean and Vietnam into grams of alcohol per 100 conflicts until 1973. Since 1980 all milliliters of blood in tests of blood or men are required to register at 18, urine sample, or grams of alcohol per

148 duress

210 liters of air in a “breathalizer” due, owing and unpaid: adj. (See: test. A combination of the use of al- due) chol and narcotics can also be “under the influence” based on er- due process of law: n. a fundamental ratic driving. Driving on private principle of fairness in all legal mat- property such as a parking lot is no ters, both civil and criminal, espe- defense, but sitting in a non-moving cially in the courts. All legal proce- vehicle without the ignition on prob- dures set by statute and court prac- ably is (sometimes resulting in a tice, including notice of rights, must charge of “drunk in and about a ve- be followed for each individual so hicle”). This is a misdemeanor and that no prejudicial or unequal treat- is variously referred to as DUI, dri- ment will result. While somewhat ving while intoxicated (DWI), drunk indefinite, the term can be gauged driving, or a “deuce”. by its aim to safeguard both private and public rights against unfairness. driving while intoxicated: n. (See: The universal guarantee of due driving under the influence) process is in the Fifth Amendment to the U.S. Constitution, which pro- drop dead date: n. a provision in a vides “No person shall... be deprived

contract or a court order which sets of life, liberty, or property, without the last date an event must take due process of law,” and is applied to place (such as payment) or other- all states by the 14th Amendment. wise certain consequences will auto- From this basic principle flows many matically follow, such as cancelling legal decisions determining both pro- the contract, taking property or en- cedural and substantive rights. tering a judgment.

Injustice anywhere is a threat due: n. and adj. owed as of a specific to justice everywhere. date. A popular legal redundancy is —Martin Luther King, Jr. that a debt is “due, owing and unpaid.” Unpaid does not necessarily

mean that a debt is due. D.U.I.: n. short for driving under the influence of alcohol. (See: driving due care: n. the conduct that a rea- under the influence) sonable man or woman will exercise in a particular situation, in duress: n. the use of force, false impris- looking out for the safety of others. onment or threats (and possibly psy- If one uses due care then an in- chological torture or “brainwashing”) jured party cannot prove negli- to compel someone to act contrary to

gence. This is one of those nebu- his/her wishes or interests. If duress is lous standards by which negli- used to get someone to sign an agree- gence is tested. Each juror has to ment or execute a will, a court may determine what a “reasonable” find the document null and void. A de- man or woman would do. fendant in a criminal prosecution may raise the defense that others used due and owing: adj. (See: due) duress to force him/her to take part in

149 duty

an alleged crime. The most famous not testify in person, it is admissible case is that of publishing heiress on the theory that a dying person Patty Hearst, who was kidnapped, has no reason not to tell the truth. raped, imprisoned and psychologi- cally tortured until she joined her captors in a bank holdup and issued statements justifying her actions. She was later convicted of the bank robbery, but was eventually par- doned by President Jimmy Carter.

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. (See: duty of care)

duty of care: n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence. (See: negligence, standard of care)

D.W.I.: n. 1) short for driving while intoxicated. 2) abbreviation for dying without issue (children). (See: driving under the influence)

dying declaration: n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances (“Frankie shot me”). Although hearsay since the dead person can-

150 earnest payment: n. a deposit paid to the Jones property” or “access to the to demonstrate commitment and to spring”) sometimes called a “floating bind a contract, with the remainder easement.” There is also a “negative due at a particular time. If the con- easement” such as a prohibition tract is breached by failure to pay, against building a structure which then the earnest payment is kept by blocks a view. Title reports and title the recipient as pre-determined (liq- abstracts will usually describe all ex- uidated) or committed damages. isting easements upon a parcel of real property. Issues of maintenance, joint easement: n. the right to use the real use, locking gates, damage to ease- property of another for a specific ment and other conflicts clog the judi- purpose. The easement is itself a cial system, mostly due to misunder- real property interest, but legal title standings at the time of creation. to the underlying land is retained by the original owner for all other pur- The Constitution is either a su- poses. Typical easements are for ac- perior paramount law, un- cess to another property (often re- changeable by ordinary means, dundantly stated “access and or it is on a level with ordinary egress,” since entry and exit are legislative acts. over the same path), for utility or —ChiefJustice John Marshall, sewer lines both under and above in Marbury v. Madison ground, use of spring water, entry to make repairs on a fence or slide area, drive cattle across and other egress: n. way of departure. A word uses. Easements can be created by a usually used in conjunction with “ac- deed to be recorded just like any cess” or “ingress.” real property interest, by continuous and open use by the non-owner EIR: n. popular acronym for environ- against the rights of the property mental impact report, required by owner for a statutory number of many states as part of the application years, typically five (“prescriptive to a county or city for approval of a easement”), or to do equity (fair- land development or project. (See: en- ness), including giving access to a vironmental impact report) “land-locked” piece of property

(sometimes called an “easement of ejectment: n. a lawsuit brought to re- necessity”). Easements may be move a party who is occupying real specifically described by boundaries property. This is not the same as an (“24 feet wide along the northern unlawful detainer (eviction) suit line for a distance of 180 feet”), against a non-paying or unsatisfacto- somewhat indefinite (“along the ry tenant. It is against someone who trail to the northern boundary”) or has tried to claim title to the property. just for a purpose (“to provide access Example: George Grabby lives on a

151 ejusdem generis

ranch which he claims he has inher- with the election of remedies as ited from his great uncle, but Betty unfair to the plaintiff since the evi- Benefield sues for ejectment on the dence has not been fully presented. basis that, in fact, she was entitled to the property through her parents. election under the will: n. in those states which have statutes which give

ejusdem generis : (eh-youse-dem a widow a particular percentage of the generous) adj. Latin for “of the late husband’s estate (such as dower), same kind,” used to interpret the surviving wife may elect to take loosely written statutes. Where a that percentage instead of any lesser law lists specific classes of persons amount (or assets with unacceptable or things and then refers to them conditions such as an estate which

in general, the general statements will be cancelled if she remarries) left only apply to the same kind of per- to her under his will. sons or things specifically listed. Example: if a law refers to automo- eleemosynary: (eh-luh-moss-uh-nary) biles, trucks, tractors, motorcycles adj. charitable, as applied to a purpose and other motor-powered vehicles, or institution. “vehicles” would not include air-

planes, since the list was of land- element: n. 1) an essential require- based transportation. ment to a cause of action (the right to bring a lawsuit to enforce a particu- elder law: n. a newly coined vague lar right). Each cause of action (neg- term covering estate planning, ligence, breach of contract, trespass, wills, trusts and the problems of assault, etc.) is made up of a basic older people. Essentially it is a sales set of elements which must be al- gimmick to attract older clientele. leged and proved. Each charge of a criminal offense requires allegation election of remedies: n. an outmod- and proof of its elements. 2) essential ed requirement that if a plaintiff requirement of a zoning general (party filing suit) asks for two plan. (See: cause of action, crime, remedies based on legal theories general plan, zoning) which are inconsistent (a judge can grant only one or the other), the emancipation: n. freeing a minor child plaintiff must decide which one is from the control of parents and allow- the most provable and which one ing the minor to live on his/her own or he/she really wants to pursue, usu- under the control of others. It usually ally just before the trial begins. Ex- applies to adolescents who leave the ample: suing someone for both parents’ household by agreement or breach of contract and for fraud (a demand. Emancipation may also end secret plan not to fulfill the contract the responsibility of a parent for the when it was made). Fraud might acts of a child, including debts, negli-

bring punitive damages, but proof gence or criminal acts. Sometimes it is of fraud might be more difficult one of the events which cuts off the than of breach of contract. Increas- obligation of a divorced parent to pay ingly, the courts have dispensed child support.

152 employee embezzlement: n. the crime of mental agency for a court’s determi- stealing the funds or property of nation ofjust compensation. The gov- an employer, company or govern- ernment, however, becomes owner ment or misappropriating money while a trial is pending if the amount or assets held in trust. (See: em- of the offer is deposited in a trust ac- bezzler, theft) count. Public uses include schools, streets and highways, parks, air- embezzler: n. a person who com- ports, dams, reservoirs, redevelop- mits the crime of embezzlement by ment, public housing, hospitals and fraudulently taking funds or prop- public buildings. (See: condemn, erty of an employer or trust. condemnation) emblements: n. crops to which a emolument: n. salary, wages and tenant who cultivated the land is benefits paid for employment or an entitled by agreement with the office held. owner. If the tenant dies before

harvest the crop will become the emotional distress: n. an increasingly property of his/her estate. popular basis for a claim of damages in lawsuits for injury due to the negli- emergency: n. a sudden, unfore- gence or intentional acts of another. seen happening which requires ac- Originally damages for emotional dis- tion to correct or to protect lives tress were only awardable in conjunc- and/or property. tion with damages for actual physical harm. Recently courts in many states, eminent domain: n. the power of a including New York and California, governmental entity (federal, state, have recognized a right to an award of county or city government, school money damages for emotional distress district, hospital district or other without physical injury or contact. In agencies) to take private real es- sexual harassment claims, emotional tate for public use, with or without distress can be the major, or even only, the permission of the owner. The harmful result. In most jurisdictions, Fifth Amendment to the Constitu- emotional distress cannot be claimed tion provides that “private property for breach of contract or other busi- [may not] be taken for public use ness activity, but can be alleged in without just compensation.” The cases of libel and slander. Evidentiary Fourteenth Amendment added the problems include the fact that such requirement of just compensation distress is easily feigned or exaggerat- to state and local government tak- ed, and professional testimony by a ings. The usual process includes therapist or psychiatrist may be re- passage of a resolution by the acquired to validate the existence and quiring agency to take the property depth of the distress and place a dollar

(condemnation), including a decla- value upon it. (See: damages) ration of public need, followed by

an appraisal, an offer, and then ne- employee: n. a person who is hired for gotiation. If the owner is not satis- a wage, salary, fee or payment to per- fied, he/she may sue the govern- form work for an employer. In agency

153 employer

law the employee is called an agent enclosure (inclosure): n. land bound- and the employer is called the prin- ed by a fence, wall, hedge, ditch or cipal. This is important to deter- other physical evidence of boundary. mine if one is acting as employee Unfortunately, too often these cre- when injured (for worker’s compen- ations are not included among the ac- sation) or when he/she causes dam- tual legally described boundaries and age to another, thereby making the cause legal problems. employer liable for damages to the

injured party. (See: agency, em- encroach: v. to build a structure ployer, principal, respondeat which is in whole or in part across superior, scope of employment) the property line of another’s real property. This may occur due to in- employer: n. a person or entity which correct surveys, guesses or miscalcu- hires the services of another called a lations by builders and/or owners principal in the law of agency. (See: when erecting a building. The solu- employee, principal) tions vary from giving the encroach- ing party an easement or lease (for a employment: n. the hiring of a per- price, usually) for the lifetime of the

son for compensation. It is impor- building, or if the structure is small, tant to determine if acts occurred actually moving it onto the owner’s in the “scope of employment” to es- own property. (See: encroachment) tablish the possible responsibility of the employer to the employee for encroachment: n. the act of building injuries on the job or to the public a structure which is in whole or for acts of the employee. (See: in part on a neighbor’s property. agency, employee, respondeat (See: encroach) superior, scope of employment, Workers’ Compensation Acts) encumbrance (incumbrance): n. a general term for any claim or lien on enabling clause: n. a provision in a a parcel of real property. These in- new statute which empowers a par- clude: mortgages, deeds of trust, ticular public official (Governor, recorded abstracts of judgment, un-

State Treasurer) to put it into effect, paid real property taxes, tax liens, including making expenditures. mechanic’s liens, easements and water or timber rights. While the

en banc: (on bonk) French for “in owner has title, any encumbrance is the bench,” it signifies a decision usually on record (with the County by the full court of all the appeals Recorder or Recorder of Deeds) and judges in jurisdictions where there must be paid for at some point. is more than one three- or four-

judge panel. The larger number sit endorse (indorse): v. 1) to sign one’s in judgment when the court feels name to the back of a check, bill of there is a particularly significant exchange or other negotiable instru-

issue at stake or when requested ment with the intention of making it by one or both parties to the case cashable or transferable. 2) to pledge and agreed to by the court. support to a program, proposal or

154 entrapment

candidate. (See: endorsement) porary injunction is an order made by

the court while the matter is being endorsement (indorsement): n. 1) processed and considered, based on the act of the owner or payee signing the petition and any accompanying

his/her name to the back of a check, declarations, either of which is intend- bill of exchange or other negotiable ed to keep matters in status quo (as instrument so as to make it payable they are) or prevent possible irrepara- to another or cashable by any per- ble harm (like cutting trees, poisoning son. An endorsement may be made a stream or moving out of the country after a specific direction (“pay to with a child or money) until a final Dolly Madison” or “for deposit only”), decision is made. (See: injunction, called a qualified endorsement, or temporary injunction) with no qualifying language, there-

by making it payable to the holder, enjoyment: n. 1) to exercise a right. 2) called a blank endorsement. There pleasure. 3) the use of funds or occu-

are also other forms of endorsement pancy of property. Sometimes this is which may give credit or restrict the used in the phrase “quiet enjoyment” use of the check. 2) the act of pledg- which means one is entitled to be free ing or committing support to a proof noise or interference. gram, proposal or candidate. (See:

negotiable instrument) enter a judgment: v. to officially record

a judgment on the “judgment roll,” endowment: n. the creation of a fund, which entry is normally performed by often by gift or bequest from a dead the court clerk once the exact wording person’s estate, for the maintenance of the judgment has been prepared or of a public institution, particularly a approved and signed by the trial college, university or scholarship. judge. All times for appeal and other post-judgment actions are based on enjoin: v. for a court to order that the date of the entry ofjudgment and

someone either do a specific act, not the date when the judgment is an- cease a course of conduct or be pronounced. (See: entry of judgment) hibited from committing a certain

act. To obtain such an order, called entity: n. a general term for any insti- an injunction, a private party or tution, company, corporation, partner- public agency has to file a petition ship, government agency, university

for a writ of injunction, serve it on or any other organization which is dis- the party he/she/it hopes to be en- tinguished from individuals. joined, allowing time for a written

response. Then a court hearing is entrapment: n. in criminal law, the act held in which the judge will con- of law enforcement officers or govern- sider evidence, both written and ment agents inducing or encouraging a oral, listen to the arguments and person to commit a crime when the po- then either grant the writ or deny tential criminal expresses a desire not

it. If granted the court will issue to go ahead. The key to entrapment is a final or permanent injunction. whether the idea for the commission or A preliminary injunction or tem- encouragement of the criminal act

155 entry of judgment

originated with the police or govern- orders to enforce the protections or ment agents instead of with the demand revisions of private and pub- “criminal.” Entrapment, if proved, is lic activity which may have detri- a defense to a criminal prosecution. mental effects on the environment. The accused often claims entrap-

ment in so-called “stings” in which equal opportunity: 1) n. a right sup- undercover agents buy or sell nar- posedly guaranteed by both federal cotics, prostitutes’ services or and many state laws against any dis- arrange to purchase goods believed crimination in employment, educa- to be stolen. The factual question is: tion, housing or credit rights due to a Would Johnny Begood have pur- person’s race, color, sex (or sometimes chased the drugs if not pressed by sexual orientation), religion, national the narc? origin, age or handicap. A person who believes he/she has not been granted entry of judgment: n. the place- equal opportunity or has been out- ment of a judgment on the official right sexually harassed or discrimi- roll of judgments. nated against may bring a lawsuit under federal and most state laws, or environmental impact report: n. a file a complaint with the federal Equal study of all the factors which a land Opportunity Employment Commis- development or construction project sion or a state equal opportunity would have on the environment in agency. 2) adj. a term applied to em- the area, including population, traf- ployers, lenders and landlords, who fic, schools, fire protection, endan- advertise that they are “equal oppor- gered species, archeological arti- tunity employers,” subtly suggesting facts and community beauty. Many all others are not, even though they states require such reports be sub- are required by law to be so. (See: af- mitted to local governments before firmative action) the development or project can be

approved, unless the governmental equal protection of the law: n. the body finds there is no possible im- right of all persons to have the same ac- pact, which finding is called a “neg- cess to the law and courts and to be ative declaration.” (See: EIR, nega- treated equally by the law and courts, tive declaration) both in procedures and in the sub-

stance of the law. It is akin to the right environmental law: n. a body of to due process of law, but in particular state and federal statutes intended applies to equal treatment as an ele- to protect the environment, ment of fundamental fairness. The

wildlife, land and beauty, prevent most famous case on the subject is

pollution or over-cutting of forests, Brown v. Board ofEducation oflhpeka save endangered species, conserve (1954) in which ChiefJustice Earl War- water, develop and follow general ren, for a unanimous Supreme Court, plans and prevent damaging prac- ruled that “separate but equal” educa- tices. These laws often give indi- tional facilities for blacks were inher- viduals and groups the right to ently unequal and unconstitutional bring legal actions or seek court since the segregated school system did

156 ergo

not give all students equal rights equity: n. 1) a venerable group of rights under the law. It will also apply to and procedures to provide fairness, other inequalities such as differen- unhampered by the narrow strictures tials in pay for the same work or un- of the old common law or other techni- equal taxation. The principle is stat- cal requirements of the law. In essence ed in the 14th Amendment to the courts do the fair thing by court orders Constitution: “No State shall... deny such as correction of property lines, to any person within its jurisdiction taking possession of assets, imposing the equal protection of the laws.” a lien, dividing assets, or injunctive (See: due process of law) relief (ordering a person to do something) to prevent irreparable damage. equitable: adj. 1) just, based on fair- The rules of equity arose in England ness and not legal technicalities. 2) where the strict limitations of com- refers to positive remedies (orders to mon law would not solve all problems, do something, not money damages) so the King set up courts of chancery employed by the courts to solve dis- (equity) to provide remedies through putes or give relief. (See: equity) the royal power. Most eastern states had courts of equity or chancery sepa- equitable estoppel: n. where a court rate from courts of law, and others had will not grant a judgment or other parallel systems of law and equity legal relief to a party who has not with different procedural rules. Now acted fairly; for example, by having most states combine law and equity made false representations or con- and treat both under “one cause of ac- cealing material facts from the tion.” 2) the net value of real property, other party. This illustrates the determined by subtracting the legal maxim: “he who seeks equity, amount of unpaid debts secured by must do equity.” Example: Larry (against) the property from the ap- Landlord rents space to Dora Dress- praised value of the property. (See: maker in his shopping center but chancery, enjoin, equitable, in- falsely tells her a Sears store will be junction, writ) a tenant and will draw customers to

the project. He does not tell her a equity of redemption: n. the right of a new freeway is going to divert traf- mortgagor (person owing on a loan or fic from the center. When she fails to debt against their real property), after pay her rent due to lack of business, commencement of foreclosure pro- Landlord sues her for breach of ceedings, to “cure” his/her default by lease. Dressmaker may claim he is making delinquent payments. The equitably estopped. (See: clean mortgagor also must pay all accumu- hands doctrine, estoppel) lated costs as well as the delinquency to keep the property. (See: foreclo- equitable lien: n. a lien on property sure, mortgage, redemption) imposed by a court in order to

achieve fairness, particularly when equivalent: n., adj. equal in value, someone has possession of property force or meaning. which he/she holds for another. (See:

constructive trust, equity, lien) ergo, (air-go) conj. Latin for “therefore,”

157 erroneous

often used in legal writings. Its most rent, installment payments or alimo- famous use was in Cogito, ergo sum: ny, for example, will increase from “I think, therefore I am” principle by time to time when the cost of living French philosopher Rene Descartes index (or a similar gauge) goes up. (1596-1650). Often there is a maximum amount of increase (“cap”) and seldom is there a erroneous: adj. 1) in error, wrong. 2) provision for reduction if the cost of not according to established law, living goes down or for deflation in- particularly in a legal decision or stead of inflation. (See: cap) court ruling.

escape clause: n. a provision in a con- error: n. a mistake by a judge in pro- tract which allows one of the parties to cedure or in substantive law, during be relieved from (get out of) any oblig- a hearing, upon petitions or mo- ation if a certain event occurs. tions, denial of rights, during the

conduct of a trial (either granting or escheat: n. from old French eschete, denying objections), on approving or which meant “that which falls to one,” denying jury instructions, on a judg- the forfeit of all property (including

ment not supported by facts or ap- bank accounts) to the state treasury if plicable law or any other step in the it appears certain that there are no judicial process. If a majority of an heirs, descendants or named benefi- appeals court finds an error or er- ciaries to take the property upon the rors which affect the result, or a de- death of the last known owner. nial of fundamental rights such as

due process, the higher court will re- escrow: 1) n. a form of account held by verse the lower court’s error in an “escrow agent” (an individual, es- whole or in part (the entire judg- crow company or title company) into ment or a part of it), and remand which is deposited the documents and (send it back) with instructions to funds in a transfer of real property, in- the lower court. Appeals courts cluding the money, a mortgage or deed often find errors which have no prej- of trust, an existing promissory note udicial effect on the rights of a party secured by the real property, escrow and are thus harmless error. (See: “instructions” from both parties, an harmless error, remand) accounting of the funds and other documents necessary to complete the errors and omissions: n. short hand transaction by a date (“closing”) for malpractice insurance which agreed to by the buyer and seller. gives physicians, attorneys, archi- When the funding is complete and the tects, accountants and other profes- deed is clear, the escrow agent will sionals coverage for claims by pa- then record the deed to the buyer and tients and clients for alleged profes- deliver funds to the seller. The escrow sional errors and omissions which agent or officer is an independent amount to negligence. holder and agent for both parties who receives a fee for his/her/its services. escalator clause: n. a provision in a 2) n. originally escrow meant the deed lease or other agreement in which held by the escrow agent. 3) n.

158 estoppel

colloquially, the escrow agent is estate: n. 1) all that one owns in real es-

called an “escrow,” while actually tate and other assets. 2) commonly, all the escrow is the account and not a the possessions of one who has died person. 4) v. to place the documents and are subject to probate (adminis- and funds in an escrow account, as tration supervised by the court) and in: “we will escrow the deal.” (See: distribution to heirs and beneficiaries, escrow agent) all the possessions which a guardian manages for a ward (young person re- escrow agent: n. a person or entity quiring protection and administration holding documents and funds in a of affairs), or assets a conservator transfer of real property, acting for manages for a conservatee (a person both parties pursuant to instruc- whose physical or mental lack of com- tions. Typically the agent is a person petence requires administration of (commonly an attorney), escrow his/her affairs). 3) an alternative term

company or title company, depend- for real property interest which is ing on local practice. (See: escrow) used in conjunction with another defining word, like “life estate,” “es- escrow instructions: n. the writ- tate for years,” or “real estate.” (See: ten instructions by buyer and sell- conservator, guardian, life estate, er of real estate given to a title real estate, probate, will) company, escrow company or indi-

vidual escrow in “closing” a real es- estate by entirety: n. (See: tenancy tate transaction. These instruc- by the entirety) tions are generally prepared by the escrow holder and then approved estate tax: n. generally a federal tax on by the parties and their agents. the transfer of a dead person’s assets (See: closing, escrow, escrow com- to his heirs and beneficiaries. Al- title pany, company) though a transfer tax, it is based on the amount in the decedent’s estate espionage: n. the crime of spying on (including distribution from a trust at the federal government and/or the death) and can include insurance transferring state secrets on behalf proceeds. Currently such federal taxa- of a foreign country. The other coun- tion applies to the amount of an estate try need not be an “enemy,” so espi- above $600,000, or as much as double

onage may not be treason, which in- that amount if the estate is distributed volves aiding an enemy. (See: sedi- to a spouse. Some states have an es- tion, treason) tate tax, more commonly called an inheritance tax. esquire: n. a form of address showing

that someone is an attorney, usually estop: v. to halt, bar or prevent. written Albert Pettifog, Esquire, or (See: estoppel) simply Esq. Originally in England

an Esquire was a rank just above estoppel: n. a bar or impediment (ob- “gentleman” and below “knight.” It struction) which precludes a person became a title for barristers, sheriffs from asserting a fact or a right or pre- and judges. vents one from denying a fact. Such a

159 et al.

hindrance is due to a person’s ac- merely an adjunct to her husband, as tions, conduct, statements, admis- well as the modem concepts of joint sions, failure to act or judgment tenancy, tenancy in common, commu- against the person in an identical nity property where applicable and legal case. Estoppel includes being equal rights of the sexes have com- barred by false representation or bined to make the expression a chau- concealment (equitable estoppel), vinistic anachronism. failure to take legal action until the

other party is prejudiced by the evasion of tax: n. the intentional at- delay (estoppel by laches), and a tempt to avoid paying taxes through court ruling against the party on the fraudulent means, as distinguished same matter in a different case (col- from late payment, using legal “loop- lateral estoppel). (See: collateral holes” or errors. (See: estate tax, in- estoppel, equitable estoppel, come tax) estop, laches)

eviction: n. a generic word for the act of et al.: n. abbreviation for the Latin expelling (kicking out) someone from phrase et alii meaning “and others.” real property either by legal action (suit This is commonly used in shortening for unlawful detainer), a claim of supe- “ the name of a case, as in Pat Mur- rior (actual) title to the property, or ac-

gatroyd u. Sally Sherman, et al.” tions which prevent the tenant from continuing in possession (constructive et seq.: (et seek) n. abbreviation for eviction). Most frequently eviction con- the Latin phrase et sequentes mean- sists of ousting a tenant who has ing “and the following.” It is com- breached the terms of a lease or rental monly used by lawyers to include agreement by not paying rent or a ten- numbered lists, pages or sections ant who has stayed (held over) after the after the first number is stated, as term of the lease has expired or only in “the rules of the road are found in had a month-to-month tenancy. (See: Vehicle Code Section 1204, et seq.” adverse possession, constructive eviction, lease, unlawful detainer)

Lawyer: one who is willing to evidence: n. every type of proof legally go to court and spend your presented at trial (allowed by the last cent to prove he’s tight. judge) which is intended to convince Evan Esar, Esar’s Comic — the judge and/or jury of alleged facts Dictionary material to the case. It can include oral testimony of witnesses, including ex-

et ux. : (et uhks) n. abbreviation for the perts on technical matters, documents, Latin words et uxor meaning “and public records, objects, photographs wife.” It is usually found in deeds, and depositions (testimony under oath tax assessment rolls and other doc- taken before trial). It also includes so- uments in the form “John Alden et called “circumstantial evidence” which ux. ,” to show that the wife as well as is intended to create belief by showing the husband own property. The con- surrounding circumstances which notation that somehow the wife is logically lead to a conclusion of fact.

160 excessive bail

Comments and arguments by the at- ally this is held by a lower court and if torneys, statements by the judge there is any substantial evidence to and answers to questions which the show a felony has been committed by judge has ruled objectionable are not the defendant he/she is bound over to evidence. Charts, maps and models the appropriate court for trial, but which are used to demonstrate or otherwise the charge will be dismissed explain matters are not evidence by the judge. (See: bankruptcy, themselves, but testimony based cross-examination, direct exami- upon such items and marks on nation, testimony, witness) such material may be evidence.

Evidence must survive objections of exception: n. 1) a formal objection dur- opposing attorneys that it is irrele- ing trial (“We take exception, or sim- vant, immaterial or violates rules ply, “exception”)” to the ruling of a against “hearsay” (statements by a judge on any matter, including rulings party not in court), and/or other on objections to evidence, to show to a technicalities. (See: circumstantial higher court that the lawyer did not evidence, competency, demon- agree with the ruling. In modem prac- strative evidence, deposition, tice, it is not necessary “to take excep- hearsay, material, object, objection” to a judge’s adverse ruling, since tion, relevant) it is now assumed that the attorney against whom the ruling is made ob- examination: n. 1) the questioning of jects. This also keeps the transcribed a witness by an attorney. Direct ex- record from being cluttered with amination is interrogation by the at- shouts of “exception.” 2) in contracts, torney who called the witness, and statutes or deeds, a statement that cross-examination is questioning by some matter is not included. (See: ex- the opposing attorney. A principal ception in deed) difference is that an attorney putting questions to his own wit- exception in deed: n. a notation in a ness cannot ask “leading” questions, deed of title to real property which which put words in the mouth of the states that certain interests, such as

witness or suggest the answer, easements, mineral rights or a life es- while on cross-examination he/she tate, are not included in the transfer

can pose a question that seems to (conveyance) of title. contain an answer or suggest lan-

guage for the witness to use or agree excessive bail: n. an amount of bail or- to. 2) in bankruptcy, the questions dered posted by an accused defendant asked of a debtor by the judge, which is much more than necessary or trustee in bankruptcy, attorneys or usual to assure he/she will make court even creditors, to determine the appearances, particularly in relation

state of the debtor’s affairs. 3) in to minor crimes. If excessive bail is criminal law, a preliminary exami- claimed, the defendant can make a nation is a hearing before a judge or motion for reduction of bail, and if other magistrate to determine it is not granted, he/she can then whether a defendant charged with a apply directly to a court of appeal for felony should be held for trial. Usu- reduction. (See: bail)

161 )

exchange

exchange: 1) v. to trade or barter obtaining other evidence illegally will property, goods and/or services for be excluded, under the “fruit of the other property, goods and/or ser- poisonous tree doctrine.” Thus, if an vices, unlike a sale or employment illegal wire tap reveals the location of in which money is paid for the prop- other evidence, both the transcript of erty, goods or services. 2) n. the act the wire tap conversation and the ev- of making a trade or barter. An ex- idence to which the listeners were di- change of “equivalent” property, in- rected will be excluded. (See: due cluding real estate, can defer capital process of law, fruit of the poiso- gains taxation until the acquired nous tree, motion to suppress property is sold. 3) n. short for

“Starker” exchange of investment exculpatory: adj. applied to evidence real property to defer capital gains which may justify or excuse an ac- tax. (See: delayed exchange) cused defendant’s actions and which

will tend to show the defendant is not excise: n. a tax upon manufacture, guilty or has no criminal intent. sale or for a business license or

charter, as distinguished from a excusable neglect: n. a legitimate ex- tax on real property, income or es- cuse for the failure of a party or tates. Sometimes it is redundantly his/her lawyer to take required action called an excise tax. (like filing an answer to a complaint) on time. This is usually claimed to set exclusionary rule: n. the rule that aside a default judgment for failure to evidence secured by illegal means answer (or otherwise respond) in the and in bad faith cannot be intro- period set by law. Illness, press of duced in a criminal trial. The tech- business by the lawyer (but not nec- nical term is that it is “excluded” essarily the defendant), or an under- upon a motion to suppress made by standable oversight by the lawyer’s the lawyer for the accused. It is staff (“just blame the secretary”) are based on the constitutional re- common excuses which the courts will quirement that “...no [person] can often accept. However, if the defen- be deprived of life, liberty, or prop- dant loses the complaint or fails to erty, without due process of law” call his/her attorney the courts will be (Fifth Amendment to the Constitu- less lenient. In any event, the defen- tion, applied to the states by 14th dant must also show he/she had some Amendment). A technical error in a worthwhile defense. (See: default, search warrant made in good faith default judgment) will not cause exclusion of the evi-

dence obtained under that war- ex delicto-, (ex dee-lick-toe) adj. Latin rant. In 1995 the U. S. Supreme for a reference to something that Court ruled that evidence obtained arises out of a fault or wrong, but not with a warrant that had been can- out of contracts. Of only academic in- celled could be admitted if the law terest today, it identified actions enforcement officer believed it was which were civil wrongs (torts). still in force. However, evidence

which was uncovered as a result of execute: v. 1) to finish, complete or

162 executive privilege

perform as required, as in fulfilling executive clemency: n. the power of a one’s obligations under a contract President in federal criminal cases, or a court order. 2) to sign and oth- and the Governor in state convictions, erwise complete a document, such to pardon a person convicted of a as acknowledging the signature if crime, commute the sentence (shorten

required to make the document it, often to time already served) or re-

valid. 3) to seize property under duce it from death to another lesser court order. 4) to put to death pur- sentence. There are many reasons for suant to a sentence rendered by a exercising this power, including real court. (See: capital punishment, doubts about the guilt of the party, ap- contract, executed, execution) parent excessive sentence, humanitarian reasons such as illness of an executed: 1) adj. to have been com- aged inmate, to clear the record of pleted. (Example: “it is an execut- someone who has demonstrated reha- ed contract”) 2) v. to have complet- bilitation or public service, or because ed or fully performed. (Example: the party is a political or personal “he executed all the promises friend of the Governor. (See: commu- made in the contract”) 3) v. com- tation, pardon) pleted and formally signed a document, such as a deed, contract or executive order: n. a President’s or lease. 4) v. to have been put to Governor’s declaration which has death for a crime pursuant to a the force of law, usually based on ex- death sentence. (See: execute) isting statutory powers, and requiring no action by the Congress or execution: n. 1) the act of getting an state legislature. officer of the court to take possession of the property of a losing party in a executive privilege: n. a claim by lawsuit (judgment debtor) on behalf the President or another high official of the winner (judgment creditor), of the executive branch that he/she sell it and use the proceeds to pay need not answer a request (including the judgment. The procedure is to a subpena issued by a court or Con- take the judgment to the clerk of the gress) for confidential government or court and have a writ of execution is- personal communications, on the sued which is taken to the sheriff (or ground that such revelations would marshal, constable or other autho- hamper effective governmental oper- rized official) with instructions on ations and decision-making. The ra- what property to execute upon. In tionale is that such a demand would the case of real property the official violate the principle of separation of must first levy (place a lien on the powers among the executive, legisla-

title), and then execute upon it (seize tive and judicial branches. If there is it). However, the judgment debtor a potential criminal charge, execu- (loser in the lawsuit) may pay the tive privilege will be denied, as judgment and costs before sale to re- Richard Nixon discovered when he deem real estate. 2) carrying out a attempted to use executive privilege death sentence. (See: death penal- to deny Congress, the courts and the ty, writ of execution) Department of Justice access to tapes

163 executor

and documents in the Watergate term executor is now unisex. scandal (1973-1974). (See: executor)

executor: n. the person appointed exemplary damages: n. often called to administer the estate of a per- punitive damages, these are damages son who has died leaving a will requested and/or awarded in a lawsuit which nominates that person. Un- when the defendant’s willful acts were less there is a valid objection, the malicious, violent, oppressive, fraudu- judge will appoint the person lent, wanton or grossly reckless. Ex- named in the will to be executor. amples of acts warranting exemplary The executor must insure that the damages: publishing that someone person’s desires expressed in the had committed murders when the will are carried out. Practical re- publisher knew it was not true but sponsibilities include gathering up hated the person; an ex-husband and protecting the assets of the es- trashes his former wife’s auto and tate, obtaining information in re- threatens further property damage; a gard to all beneficiaries named in stockbroker buys and sells a widow’s the will and any other potential stocks to generate commissions result- heirs, collecting and arranging for ing in her losing all her capital payment of debts of the estate, ap- (money). These damages are awarded proving or disapproving creditor’s both as a punishment and to set a claims, making sure estate taxes public example. They reward the are calculated, forms filed and tax plaintiff for the horrible nature of payments made, and in all ways what she/he went through or suffered. assisting the attorney for the es- Although often requested, exemplary tate (which the executor can se- damages are seldom awarded. There lect). (See: deceased, decedent, have been major awards in egregious executrix, probate, will) (remarkable or outstanding) cases, such as fraud schemes, sexual harass- executory: adj. something not yet ment or other intentional and vicious performed or done. Examples: an actions even when the provable actual executory contract is one in which damages were not extensive. (See: all or part of the required perfor- damages, punitive damages) mance has not been done; an executory bequest is a gift under a exemption: n. 1) in income taxation, a will which has not been distrib- credit given for each dependent, blind- uted to the beneficiary. ness or other disability, and age over 65, which result in a downward calcu- executory interest: n. an interest lation in tax levels. These are not to be in property (particularly real es- confused with deductions, which re- tate) which will only pass to anoth- duce gross income upon which taxes er in the future, or never, if certain are paid. 2) a right to be excluded from, events occur. such as not being subject to attachment of one’s wages if one is in a low- executrix: (pi. executrices) n. Latin income bracket, or not being subject to for female executor. However, the the military draft if one is employed in

164 expert witness

essential industry, has several chil- counts on receiving, usually refer- dren or is a college student. ring to real property or the estate of a deceased person, such as a exhibit: n. 1) a document or object remainder, reversion, or distribution (including a photograph) intro- after the death of someone who has duced as evidence during a trial. use for life. (See: distribution, re- These are subject to objections by mainder, reversion) opposing attorneys just like any evidence. 2) a copy of a paper at- expense: n. in business accounting tached to a pleading (any legal and business taxation, any current paper filed in a lawsuit), declara- cost of operation, such as rent, utili- tion, affidavit or other document, ties and payroll, as distinguished which is referred to and incorpo- from capital expenditure for long- rated into the main document. term property and equipment. (See: capital expenditure) ex officio : (ex oh-fish-ee-oh) adj. Latin

for “from the office,” to describe expert testimony: n. opinions stated someone who has a right because of during trial or deposition (testimony an office held, such as being allowed under oath before trial) by a specialist to sit on a committee simply because qualified as an expert on a subject rel- one is president of the corporation. evant to a lawsuit or a criminal case. (See: expert witness) ex parte, (ex par-tay, but popularly,

ex party) adj. Latin meaning “for expert witness: n. a person who is a one party,” referring to motions, specialist in a subject, often techni- hearings or orders granted on the cal, who may present his/her expert request of and for the benefit of one opinion without having been a wit- party only. This is an exception to ness to any occurrence relating to the the basic rule of court procedure lawsuit or criminal case. It is an ex- that both parties must be present ception to the rule against giving an at any argument before a judge, opinion in trial, provided that the ex- and to the otherwise strict rule that pert is qualified by evidence of an attorney may not notify a judge his/her expertise, training and spe-

without previously notifying the op- cial knowledge. If the expertise is position. Ex parte matters are usu- challenged, the attorney for the party ally temporary orders (like a re- calling the “expert” must make a straining order or temporary cus- showing of the necessary background tody) pending a formal hearing or through questions in court, and the an emergency request for a contin- trial judge has discretion to qualify uance. Most jurisdictions require at the witness or rule he/she is not an least a diligent attempt to contact expert, or is an expert on limited sub- the other party’s lawyer of the time jects. Experts are usually paid hand- and place of any ex parte hearing. somely for their services and may be asked by the opposition the amount expectancy: n. a possibility of fu- they are receiving for their work on ture enjoyment of something one the case. In most jurisdictions, both

165 ex post facto

sides must exchange the names ex rel conj. abbreviation for Latin ex and addresses of proposed experts relatione meaning “upon , being to allow pre-trial depositions. (See: related” or “upon information,” used expert testimony) in the title of a legal proceeding filed by a state Attorney General (or the ex post facto-, adj. Latin for “after the federal Department of Justice) on be- fact,” which refers to laws adopted half of the government, on the insti- after an act is committed making it gation of a private person, who needs illegal although it was legal when the state to enforce the rights of him- done, or increasing the penalty for a self/herself and the public. For exam- crime after it is committed. Such ple, the caption would read: The State

laws are specifically prohibited by of Tennessee ex rel. Archie Johnson v.

the U.S. Constitution, Article I, Sec- Hardy Products. tion 9. Therefore, if a state legisla-

ture or Congress enacts new rules of extension: n. granting of a specific proof or longer sentences, those new amount of extra time to make a pay- rules or sentences do not apply to ment, file a legal document after the crimes committed before the new date due or continue a lease after the law was adopted. original expiration of the term.

express: adj. direct, unambiguous, extenuating circumstances: n. sur- distinct language, particularly in a rounding factors (sometimes called contract, which does not require mitigation) which make a crime ap- thought, guessing, inference or im- pear less serious, less aggravated or plication to determine the meaning. without criminal intent, and thus warranting a more lenient punish- express contract: n. a contract in ment or lesser charge (manslaughter which all elements are specifically rather than murder, for example). stated (offer, acceptance, considera- (See: mitigating circumstances) tion), and the terms are stated, as

compared to an “implied” contract in extinguishment: n. the cancellation or which the existence of the contract is destruction of a right, quite often be- assumed by the circumstances. cause the time for enforcement has (See: contract) passed. Example: waiting more than four years after the due date to make expropriation: n. a taking of proper- a demand for payment on a promisso- ty or rights by governmental au- ry note wipes out the person’s right to thority such as eminent domain, collect the money owed to him/her. It possibly including an emergency sit- can also occur by fulfilling the obliga- uation, such as taking a person’s tion so no further money or perfor- truck or bulldozer to build a levee mance is due. during a flood. In such a case just compensation eventually must be extortion: n. obtaining money or prop- paid to the owner, who can make a erty by threat to a victim’s property claim against the taker. (See: emi- or loved ones, intimidation, or false nent domain) claim of a right (such as pretending

166 extrinsic fraud

to be an IRS agent). It is a felony in tions outside the judicial (court) all states, except that a direct system, such as an extralegal

threat to harm the victim is usual- confession, which, if brought in as ev- ly treated as the crime of robbery. idence, may be recognized by the Blackmail is a form of extortion in judge during a trial. which the threat is to expose embarrassing, damaging information extraordinary fees: n. attorneys’ fees to family, friends or the public. claimed, usually in the administra- (See: blackmail, robbery, theft) tion of a dead person’s estate, for work beyond the normal, including extradition: n. the surrender by filing collection suits, preparing tax one state or country of a person returns or requiring unusual effort

charged with a crime in another beneficial to the estate. This claim is state or country. Formally, the re- in addition to the usual statutory or quest of the state (usually through court-approved legal fees. The attor- the Governor’s office) claiming the ney must submit proof of time, effort right to prosecute is made to the and benefit to justify the claim, and Governor of the state in which the the final determination is at the accused is present. Occasionally a judge’s discretion. (See: attorney’s Governor will refuse to extradite fee, probate) (send the person back) if he/she is satisfied that the prosecution is extreme cruelty: n. an archaic re- not warranted, despite a constitu- quirement to show infliction of phys- tional mandate that “on demand of ical or mental harm by one of the par- the Executive authority of the ties to his/her spouse to support a State from which [a fugitive from judgment of divorce or an unequal di- justice] fled, be delivered up, to be vision of the couple’s property. All removed to the State having juris- states except Illinois and South diction of the crime.” The defen- Dakota recognize “no fault” divorces, dant may “waive extradition” and but in some states evidence of cruelty allow himself/herself to be taken may result in division of property fa- into custody and returned to the voring the suffering spouse (victim). state where charges are pending. International extradition is more difficult and is governed in A man’s home is his castle. —Sir Edward Coke, Com- many cases by treaty. While most ments on Littleton countries will extradite persons charged with serious crimes, some will not, others refuse to extradite extrinsic fraud: n. fraudulent acts for certain crimes, set up legal which keep a person from obtaining roadblocks, or, as in Canada’s case, information about his/her rights to will not extradite if the accused enforce a contract or getting evi- may get the death penalty. (See: dence to defend against a lawsuit. fugitive from justice) This could include destroying evidence or misleading an ignorant per- extrajudicial: adj. referring to ac- son about the right to sue. Extrinsic

167 eyewitness

fraud is distinguished from “intrinsic fraud,” which is the fraud that is the subject of a lawsuit. (See: fraud, intrinsic fraud)

eyewitness: n. a person who has actually seen an event and can so testify in court.

168 face amount: n. the original failure of issue: n. when someone amount due on a promissory note dies leaving no children or other di- or insurance policy as stated there- rect descendants. in, without calculating interest. fair comment: n. a statement of opin- face value: n. in shares of stock, the ion (no matter how ludicrous) based original cost of the stock shown on on facts which are correctly stated the certificate, or “par value.” and which does not allege dishonor- able motives on the part of the target fact: n. an actual thing or happen- of the comment. The U.S. Supreme ing, which must be proved at trial Court has ruled that to protect free by presentation of evidence and speech, statements made about a which is evaluated by the finder of public person (politician, officehold-

fact (a jury in a jury trial, or by the er, movie star, author, etc.), even judge if he/she sits without a jury). though untrue and harmful, are fair comment unless the victim can prove fact finder (finder of fact): n. in a the opinions were stated malicious- trial of a lawsuit or criminal prosecu- ly—with hate, dislike, intent and/or tion, the jury or judge (if there is no desire to harm. Thus, a public figure jury) who decides if facts have been may not sue for defamation based on proven. Occasionally a judge may ap- published opinions or alleged infor- point a “special master” to investi- mation which would be the basis of a gate and report on the existence of lawsuit if said or published about a certain facts. (See: question of fact) private person not worthy of opinion or comment. This is a crucial defense factor: n. 1) a salesman who sells in against libel suits put up by mem- his/her own name on behalf of oth- bers of the media. (See: defama- ers, taking a commission for ser- tion, libel, public figure, slander) vices. 2) something that con- tributes to the result. fair market value: n. the amount for which property would sell on the failure of consideration: n. not open market if put up for sale. This delivering goods or services when is distinguished from “replacement promised in a contract. When value,” which is the cost of duplicat- goods a party had bargained for ing the property. Real estate apprais- have become damaged or worth- ers will use “comparable” sales of less, failure of consideration (to de- similar property in the area to deter- liver promised goods) makes the mine market value, adding or de- expectant recipient justified to ducting amounts based on differ- withhold payment, demand perfor- ences in quality and size of the prop- mance or take legal action. (See: erty. (See: appraise, appraiser, consideration, contract) market value)

169 fair trade laws

fair trade laws: n. state laws which false arrest situations include an permit manufacturers or produc- arrest by a police officer of the wrong to ers set minimum rates for resale person or without probable cause to of the product. They have been re- believe a crime has been committed pealed or found violative of state and/or without a warrant. Only when constitutions in many states. the arresting party knowingly holds someone who has not committed a fair use: n. the non-competitive crime, is the false arrest itself a crime. right to use of copyrighted materi- However, probable false arrest can be al without giving the author the the basis of a lawsuit for damages, in- right to compensation or to sue for cluding mental distress and embar- infringement of copyright. With rassment. (See: false imprisonment) the growing use of copy machines,

teachers and businesses copy arti- false imprisonment: n. depriving cles, pages of texts, charts and ex- someone of freedom of movement by cerpts for classroom use, advice to holding a person in a confined space or employees or to assist in research by physical restraint including being without violating the copyright. locked in a car, driven about without For example, Professor Elmer opportunity to get out, being tied to a Smedley makes 100 copies of a chair or locked in a closet. It may be photograph from Time magazine of the follow-up to a false arrest (holding starving Somalians to illustrate to someone in the office of a department his students the deprivations in store, for example), but more often it Africa (which is fair use), but then resembles a kidnapping with no belief Smedley publishes a book Africa or claim of a legal right to hold the on the Brink and uses , the photo- person. Therefore, false imprisonment graph in a chapter on starvation is often a crime and if proved is almost (not fair use), and is responsible to always the basis of a lawsuit for dam- the photographer for a royalty. ages. (See: false arrest) (See: copyright)

false pretenses: n. the crime of know- false arrest: n. physically detaining ingly making untrue statements for someone without the legal right to the purpose of obtaining money or do so. Quite often this involves pri- property fraudulently. This can range vate security people or other owners from claiming zircons are diamonds or employees of retail establish- and turning back the odometer on a ments who hold someone without car, to falsely stating that a mine has having seen a crime committed in been producing gold when it has not. It their presence or pretend that they is one form of theft. (See: fraud, theft) are police officers. While they may

be entitled to make a “citizen’s ar- family: n. 1) husband, wife and chil- rest” they had better be sure that dren. 2) all blood relations. 3) all who they have a person who has commit- live in the same household including ted a crime, and they must call law servants and relatives, with some enforcement officers to take over at person or persons directing this eco- the first opportunity. Other common nomic and social unit.

170 fee tail

Federal Tort Claims Act: n. a statute We come now to analyze a law. (1948) which removed the power of In the first place, it is de- the federal government to claim im- claratory; in the second it is munity from a lawsuit for damages directory; in the third, it is re- due to negligent or intentional injury medial; and in the fourth, it is by a federal employee in the scope of vindicatory. his/her work for the government. It —Gilbert Abbott A Beckett, also established a set of regulations The Comic Blackstone and format for making claims, giving jurisdiction to federal district courts. family purpose doctrine: n. a rule

of law that the registered owner of fee: n. 1) absolute title in land, from old an automobile is responsible for French, for “payment,” since fief, damages to anyone injured when lands were originally given by lords to the auto is driven by a member of those who served them. It often ap- the family with or without the pears in deeds which transfer title as owner’s permission. The theory of “Mary Jo Rock grants to Howard Tak- this liability is that the vehicle is itall in fee...” or similar phrasing. The owned for family purposes. This word “fee” can be modified to show doctrine is the law in some states in- that the title was “conditional” on stead of making a registered owner some occurrence or could be terminat- liable for damages caused by anyone ed (“determinable”) upon a future driving his/her car with permission. event. 2) a charge for services. (See: attorney’s fee, fee simple) federal courts: n. the court system which handles civil and criminal fee simple: n. absolute title to land, cases based on jurisdictions enu- free of any other claims against the merated in the Constitution and title, which one can sell or pass to federal statutes. They include another by will or inheritance. This

federal district courts which are is a redundant form of “fee,” but is trial courts, district courts of ap- used to show the fee (absolute title) peals and the U.S. Supreme Court, is not a “conditional fee,” or “deter- as well as specialized courts such minable fee,” or “fee tail.” Like “fee” as bankruptcy, tax, claims (against it is often used in deeds transferring the government) and veterans’ ap- title, as in “Harry Hadit grants to peals. (See: bankruptcy, appen- Robert Gotit title in fee simple...” or dix on courts) similar words. (See: fee) federal question: n. one basis for fee tail: n. an old feudal expression for a filing a lawsuit in federal district title to real property which can only be court is that it is based on subjects passed to one’s heirs “of his body” or enumerated in the U.S. Constitu- certain heirs who are blood relatives. tion or when a federal statute is in- If the blood line ran out (no children) volved. Thus, existence of such a then the title would revert to the federal question gives the federal descendants of the lord who originally court jurisdiction. gave the land to the title-holding

171 felon

family. Thus, it could not be trans- which occurs during the commission ferred to anyone outside the family. of a felony is first degree murder, The intention was to keep lands and all participants in that felony or within a family line and not subdi- attempted felony can be charged vided. In 16th century England, with and found guilty of murder. A trusts were established to get typical example is a robbery involv- around this “restraint on alienation” ing more than one criminal, in which so the land could be held in trust for one of them shoots, beats to death or another person to use. Fee tail is of runs over a store clerk, killing the historic and academic interest only. clerk. Even if the death were acci- (See: fee, fee simple, uses) dental, all of the participants can be found guilty of felony murder, in- felon: n. a person who has been con- cluding those who did no harm, had victed of a felony, which is a crime no gun, and/or did not intend to hurt punishable by death or a term in anyone. In a bizarre situation, if one state or federal prison. (See: felony) of the holdup men or women is killed, his/her fellow robbers can be felonious: adj. referring to an act charged with murder. (See: murder) done with criminal intent. The term

is used to distinguish between a fertile octogenarian: n. an unrealistic

wrong which was not malicious, and notion that any person (male or fe- an intentional crime, as in “felo- male) is capable of having a child no nious assault,” which is an attack matter at what age, infirmity or phys-

meant to do real harm. ical deficiency. Thus, if property title could not pass to one’s child as long as felony: n. 1) a crime sufficiently seri- he or she might have or acquire a sib- ous to be punishable by death or a ling, then he/she must wait until term in state or federal prison, as mother and dad have actually died, distinguished from a misdemeanor unnecessarily tying up the property. which is only punishable by confine- Most states have passed laws to cure ment to county or local jail and/or a this anomaly. fine. 2) a crime carrying a minimum term of one year or more in state fictitious defendants: n. when a party

prison, since a year or less can be suing (plaintiff) is not sure if he/she served in county jail. However, a knows if there are unknown persons sentence upon conviction for a involved in the incident or the busi-

felony may sometimes be less than ness being sued, there are named ficti- one year at the discretion of the tious persons, usually designated Doe judge and within limits set by I, Doe II, and so forth, or “Green and statute. Felonies are sometimes re- Red Company,” with an allegation in ferred to as “high crimes” as de- the complaint that if and when the scribed in the U.S. Constitution. true names are discovered they will be (See: misdemeanor, sentence) inserted in the complaint by amendment. Naming fictitious defendants felony murder doctrine: n. a rule stops the statute of limitations (the

of criminal statutes that any death time in which a party has to file a

172 fighting words

lawsuit) from running out even is held to a standard of conduct and though the true name is not yet trust above that of a stranger or of a known. Sometimes during the inves- casual business person. He/she/it tigation or discovery (taking deposi- must avoid “self-dealing” or “conflicts tions or asking written questions of interests” in which the potential

under oath) new information about a benefit to the fiduciary is in conflict potential defendant is found and the with what is best for the person who real name substituted. Then that trusts him/her/it. For example, a person is served with a summons stockbroker must consider the best in- and complaint. If no substitution of a vestment for the client and not buy or real name for a Doe has been made sell on the basis of what brings by the time of trial, usually the ficti- him/her the highest commission. tious defendants are then dismissed While a fiduciary and the beneficiary from the case since they never exist- may join together in a business ven- ed in the first place, and the case ture or a purchase of property, the continues against the named defen- best interest of the beneficiary must dants. Fictitious defendants are not be primary, and absolute candor is re- permitted in federal cases. quired of the fiduciaiy. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for an- Death and taxes are in- other. (See: confidential relation, evitable, but death does not fiduciary relationship, trust) get worse every time Con- gress meets. fiduciary relationship: n. where one —Anonymous person places complete confidence in another in regard to a particular fiduciary: 1) n. from the Latin fidu- transaction or one’s general affairs or cia, meaning “trust,” a person (or a business. The relationship is not nec- business like a bank or stock bro- essarily formally or legally estab- kerage) who has the power and lished as in a declaration of trust, but obligation to act for another (often can be one of moral or personal re- called the beneficiary) under cir- sponsibility, due to the superior cumstances which require total knowledge and training of the fiducia- trust, good faith and honesty. The ry as compared to the one whose af- most common is a trustee of a trust, fairs the fiduciary is handling. (See: but fiduciaries can include business fiduciary, trust) advisers, attorneys, guardians, administrators of estates, real estate fighting words: n. words intentionally agents, bankers, stockbrokers, title directed toward another person which companies or anyone who under- are so nasty and full of malice as to takes to assist someone who places cause the hearer to suffer emotional complete confidence and trust in distress or incite him/her to immedi-

that person or company. Character- ately retaliate physically (hit, stab, istically, the fiduciary has greater shoot, etc.). While such words are not knowledge and expertise about the an excuse or defense for a retaliatory

matters being handled. A fiduciaiy assault and battery, if they are

173 file

threatening they can form the basis final judgment: n. the written deter- for a lawsuit for assault. mination of a lawsuit by the judge who presided at trial (or heard a suc-

file: 1) v. to deposit with the clerk of cessful motion to dismiss or a stipula- the court a written complaint or pe- tion for judgment), which renders tition which is the opening step in a (makes) rulings on all issues and com-

lawsuit and subsequent documents, pletes the case unless it is appealed to

including an answer, demurrer, mo- a higher court. It is also called a final tions, petitions and orders. All of decree or final decision. (See: final these are placed in a case file which decree, interlocutory decree)

has a specific number assigned to it which must be stated on every doc- final settlement: n. an agreement ument. The term is used: “When are reached by the parties to a lawsuit, you going to file the complaint,” or usually in writing and/or read into the

“The answer will be filed tomorrow.” record in court, settling all issues. 2) n. the master folder of a lawsuit Usually there are elements of compro- kept by the clerk of the court, in- mise, waiver of any right to reopen or

cluding all legal pleadings (docu- appeal the matter even if there is in- ments) filed by both sides. Each formation found later which would document in the file must have a change matters (such as recurrence of stamp showing the date it was re- a problem with an injury), mutual received and the name of the clerk lease of any further claim by each

who received it. Any document party, a statement that neither side is which is filed must be served on the admitting fault, and some action or opposing attorney, usually by mail, payment by one or both sides. In except that the first paper filed short, the case is over, provided the (summons complaint, petition, mo- parties do what they are supposed to tion) must be served on all defen- do according to the final settlement’s dants personally (hand delivered by terms. With the glut of cases crowding a process server). 3) n. the record an court calendars and overwhelming the attorney keeps on a case, containing system and delays in getting to trial all papers deposited with the clerk, (due to three factors: increased crimi- as well as all correspondence and nal case load, increased litigious na- notes on the case. ture of society and an insufficient number of judges), judges encourage final decree: n. another name for a attempts to settle, including mandato- final judgment. In states where ry settlement conferences with judges there are interlocutory decrees of di- or experienced settlement attorneys vorce (in the hope that a further present. (See: settlement) wait may lead to reconciliation), followed several months later by the finding: n. the determination of a fac- actual divorce, the second order is tual question vital (contributing) to a called a final decree, issued after the decision in a case by the trier of fact filing of a declaration that the cou- (jury or judge sitting without a jury) ple is still asunder (can not get back after a triad of a lawsuit, often referred together). (See: final judgment) to as findings of fact. A finding of fact

174 floating easement

is distinguished from a conclusion of first impression: adj. referring to a law which is determined by the legal issue which has never been de- judge as the sole legal expert. Find- cided by an appeals court and, there- ings of fact and conclusions of law, fore, there is no precedent for the need not be made if waived or not court to follow. To reach a decision requested by the trial attorneys, the court must use its own logic, leaving just the bare judgment in analogies from prior rulings by ap- the case. (See: conclusion of law) peals courts and refer to commentaries and articles by legal scholars. findings of fact: n. (See: finding) In such cases the trial judge usually asks for legal briefs by attorneys for firm offer: n. in contract law, an both sides to assist him/her. offer (usually in writing) which states it may not be withdrawn, re- fixture: n. a piece of equipment which voked or amended for a specific pe- has been attached to real estate in riod of time. If the offer is accepted such a way as to be part of the without a change during that peri- premises and its removal would do od, there is a firm, enforceable con- harm to the building or land. Thus, a tract. (See: acceptance, con- fixture is transformed from a mov- tract, counter offer, offer) able asset to an integral part of the real property. Essentially a question first degree murder: n. although it of fact, it often arises when a tenant varies from state to state, it is gen- has installed a lighting fixture, a erally a killing which is deliberate heater, window box or other item and premeditated (planned, after which is bolted, nailed, screwed or lying in wait, by poison or as part of wired into the wall, ceiling or floor. a scheme), in conjunction with Trade fixtures are those which a felonies such as rape, burglary, merchant would normally use to op- arson, or involving multiple deaths, erate the business and display goods the killing of certain types of people and may be removed at the mer- (such as a child, a police officer, a chant’s expense for any necessary re- prison guard, a fellow prisoner), or pair. (See: trade fixture) certain weapons, particularly a gun. The specific criteria for first flight: n. running away or hiding by a degree murder, are established by person officially accused of a crime statute in each state and by the with the apparent intent of avoiding U.S. Code in federal prosecutions. arrest or prosecution. It is distinguished from second degree murder in which premedita- floating easement: n. an easement (a tion is usually absent, and from right to use another’s property for a manslaughter, which lacks premed- particular purpose) which allows itation and suggests that at most access and/or egress but does not there was intent to harm rather spell out the exact dimensions than to kill. (See: felony murder and location of the easement. doctrine, manslaughter, mur- (See: easement) der, second degree murder)

175 FOB

FOB: 1) adj. short for free on board, within a specified period, then the meaning shipped to a specific place lender (or the trustee in states using without cost. 2) Friend of Bill deeds of trust) will set a foreclosure (Clinton). (See: free on board) date, after which the property may be sold at public sale. Up to the time of forbearance: n. an intentional foreclosure (or even afterwards in delay in collecting a debt or de- some states) the defaulting borrower manding performance on a con- can pay all delinquencies and costs tract, usually for a specific period (which are then greater due to fore- of time. Forbearance is often con- closure costs) and “redeem” the prop- sideration for a promise by the erty. Upon sale of the property the debtor to pay an added amount. amount due is paid to the creditor (lender or owner of the judgment) forced sale: n. a sale of goods seized and the remainder of the money re- by the sheriff to satisfy (pay) a ceived from the sale, if any, is paid to judgment. (See: execution) the lender. There is also judicial foreclosure in which the lender can bring forcible entry: n. the crime of taking suit for foreclosure against the de- possession of a house or other struc- faulting borrower for the delinquency ture or land by the use of physical and force a sale. This is used in sev- force or serioils threats against the eral states with the mortgage system

occupants. This can include break- or in deed of trust states when it ap- ing windows or doors or using terror pears that the amount due is greater to gain entry, as well as forcing the than the equity value of the real occupants out by threat or violence property, and the lender wishes to get after having come in peacefully. a deficiency judgment for the amount still due after sale. This is not neces- foreclosure: n. the system by which sary in those states which give defi- a party who has loaned money se- ciency judgments without filing a cured by a mortgage or deed of lawsuit when the foreclosure is upon trust on real property (or has an the mortgage or deed of trust. (See: unpaid judgment), requires sale of deed of trust, execution, forced the real property to recover the sale, mortgage, notice of default) money due, unpaid interest, plus

the costs of foreclosure, when the foreclosure sale: n. the actual forced debtor fails to make payment. After sale of real property at a public auc- the payments on the promissory tion (often on the courthouse steps note (which is evidence of the loan) following public notice posted at the have become delinquent for several courthouse and published in a local months (time varies from state to newspaper) after foreclosure on that state), the lender can have a notice property as security under a mort-

of default served on the debtor (bor- gage or deed of trust for a loan that is rower) stating the amount due and substantially delinquent. The lender the amount necessary to “cure” the who has not been paid may bid for the default. If the delinquency and property, using his/her/its own unpaid costs of foreclosure are not paid note toward payment, which can re-

176 forfeit

suit in a bargain purchase. (See: forensic medicine: n. research, re- deed of trust, execution, forced ports and testimony in court by ex- sale, foreclosure, judicial sale, perts in medical science to assist in de- mortgage, sheriff’s sale) termining a legal question. Cause of death is a common issue determined by pathologists who may be coroners A government of laws and not or medical examiners. (See: forensic) of men. —Constitution of the Com- forensic testimony: n. any testimony monwealth of Massachusetts, of expert scientific, engineering, eco- written by John Adams nomic or other specialized nature used to assist the court and the foreign corporation: n. a corpora- lawyers in a lawsuit or prosecution. tion which is incorporated under (See: forensic, forensic medicine) the laws of a different state or nation. A “foreign” corporation must foreseeable risk: n. a danger which a file a notice of doing business in reasonable person should anticipate any state in which it does substan- as the result from his/her actions. tial regular business. It must name Foreseeable risk is a common affirma- an “agent for acceptance of service” tive defense put up as a response by in that state, or the Secretary of defendants in lawsuits for negligence. State in some jurisdictions will au- A skier hits a bump on a ski run, falls tomatically be that agent so people and breaks his leg. This is a foresee-

doing business with a foreign cor- able risk of skiing. A mother is severe- poration will be able to bring legal ly injured while accompanying her actions locally if necessary. Exam- child on a roller coaster when the car ple: the Whoopee Widget Corpora- jumps the track and comes loose. tion is incorporated in Delaware. It While there is potential risk, she had has a sales office in Arizona, which the right to anticipate that the roller does not make a guaranteed refund coaster was properly maintained and

to Jack Jones of Arizona. Jones can did not assume the risk that it would sue Whoopee in Arizona and serve come apart. Signs that warn “use at the Arizona Secretary of State or your own risk” do not bar lawsuits for Whoopee’s designated agent. risks that are not foreseeable. (See: affirmative defenses, foreseeability) forensic: 1) adj. from Latin forensis for “belonging to the forum,” an- foreseeability: n. reasonable antici- cient Rome’s site for public debate pation of the possible results of an and currently meaning pertaining action, such as what may happen if to the courts. Thus, forensic testi- one is negligent or consequential mony or forensic medicine are used damages resulting from breach to assist the court or the attorneys of a contract. (See: foreseeable in legal matters, including trials. risk, negligence)

forensics: n. public speaking or ar- forfeit: v. to lose property or rights in- gumentation. voluntarily as a penalty for violation

177 forfeiture

of law. Example: the government fornication: n. sexual intercourse be- can take automobiles or houses tween a man and woman who are not which are used for illegal drug married to each other. This usage trafficking or manufacture. A drug comes from Latin fornicari, meaning pusher may forfeit his/her car vaulted, which became the nickname (property) if caught carrying drugs for brothel, because prostitutes oper- in it and found guilty. A parent ated in a vaulted underground cav-

may have to forfeit his/her house if ern in Rome. Fornication is still a

his/her daughter is selling drugs misdemeanor in some states, as is from the house, even though the adultery (sexual intercourse by a parent had nothing to do with and married person with someone not no knowledge of the drugs. One his/her spouse), but is virtually may have to forfeit one’s driver’s li- never prosecuted. If such anachro- cense or lose driving privileges due nistic laws were enforced, the jails of to multiple traffic violations or America would have no room for rob- drunk driving. (See: forfeiture) bers, murderers and drug dealers.

forfeiture: n. loss of property due to forthwith: adv. a term found in con- a violation of law. (See: forfeit) tracts, court orders and statutes, meaning as soon as it can be reason- forger: n. a person who commits ably done. It implies immediacy, the crime of forgery, by making with no excuses for delay. false documents or signatures. (See: forgery) forum: n. a court which has jurisdiction to hold a trial of a particular forgery: n. 1) the crime of creating a lawsuit or petition. false document, altering a document, or writing a false signature forum non conveniens: (for-uhm nahn for the illegal benefit of the person cahn-vee-nee-ehns) n. Latin for a making the forgery. This includes forum which is not convenient. This improperly filling in a blank docu- doctrine is employed when the court ment, like an automobile purchase chosen by the plaintiff (the party contract, over a buyer’s signature, suing) is inconvenient for witnesses or with the terms different from those poses an undue hardship on the de- agreed. It does not include such in- fendants, who must petition the court nocent representation as a staff for an order transferring the case to a member autographing photos of more convenient court. A typical ex- politicians or movie stars. While ample is a lawsuit arising from an ac- similar to forgery, counterfeiting cident involving an out-of-state resi- refers to the creation of phoney dent who files the complaint in his/her money, stock certificates or bonds home state (or in the defendant dri- which are negotiable for cash. 2) a ver’s home state), when the witnesses document or signature falsely cre- and doctors who treated the plaintiff ated or altered. (See: counterfeit, are in the state where the accident oc- forger, fraud) curred, which makes the latter state

the most convenient location for trial.

178 fraud

for value received: prep, a phrase known franchise operations include used in a promissory note, a bill of McDonald’s, Holiday Inns, Ace Hard- exchange or a deed to show that ware, Rexall Drug Stores, and some consideration (value) has Amway Distributors. 4) n. the right been given without stating what one has to operate a store or sell that payment was. goods or services under a franchise agreement, as in “we have the Taco foster child: n. a child without Bell franchise in our town.” 5) adj. parental support and protection, referring to a “franchise tax” which placed with a person or family to is placed on businesses (especially be cared for, usually by local wel- corporations) for the right to conduct fare services or by court order. The business, as distinguished from a tax foster parent(s) do not have cus- on property, income or profits tax. tody, nor is there an adoption, but they are expected to treat the foster child as they would their own Laws too gentle are seldom in regard to food, housing, clothing obeyed; too severe, seldom executed. and education. Most foster parents Franklin are paid by the local government —Benjamin or a state agency.

franchise tax: n. a state tax on corpo- four comers of an instrument: n. rations or businesses. (See: corpo- the term for studying an entire ration, tax) document to understand its meaning, without reference to anything fraud: n. the intentional use of deceit, a outside of the document (“extrinsic trick or some dishonest means to de- evidence”), such as the circum- prive another of his/her/its money, stances surrounding its writing or property or a legal right. A party who the history of the party signing it. has lost something due to fraud is en-

If possible a document should be titled to file a lawsuit for damages construed based on what lies with- against the party acting fraudulently, in its four comers, unless such ex- and the damages may include punitive amination cannot solve an ambigu- damages as a punishment or public ex- ity in its language. ample due to the malicious nature of the fraud. Quite often there are sever- franchise: 1) n. a right granted by al persons involved in a scheme to the government to a person or cor- commit fraud and each and all may be poration, such as a taxi permit, liable for the total damages. Inherent bus route, an airline’s use of a pub- in fraud is an unjust advantage over lic airport, business license or cor- another which injures that person or porate existence. 2) n. the right to entity. It includes failing to point out a vote in a public election. 3) v. to known mistake in a contract or other grant (for a periodic fee or share of writing (such as a deed), or not reveal- profits) the right to operate a busi- ing a fact which he/she has a duty to ness or sell goods or services under communicate, such as a survey which a brand or chain name. Well- shows there are only 10 acres of land

179 fraud in the inducement

being purchased and not 20 as advantages to you if you let me originally understood. Constructive take title to your property,” or “you fraud can be proved by a showing don’t have to read the rest of the

of breach of legal duty (like using contract— it is just routine legal the trust funds held for another in language” but actually includes a an investment in one’s own busi- balloon payment. (See: extrinsic ness) without direct proof of fraud fraud, fraud) or fraudulent intent. Extrinsic fraud occurs when deceit is em- fraudulent conveyance: n. the ployed to keep someone from exer- transfer (conveyance) of title to real cising a right, such as a fair trial, property for the express purpose of by hiding evidence or misleading putting it beyond the reach of a the opposing party in a lawsuit. known creditor. In such a case the Since fraud is intended to employ creditor may bring a lawsuit to void dishonesty to deprive another of the transfer. However, if the trans- money, property or a right, it can fer was made without knowledge of also be a crime for which the fraud- the claim (or before a debt has ulent person(s) can be charged, matured), for other legitimate rea- tried and convicted. Borderline sons, and/or in the normal course of overreaching or taking advantage business, then the creditor’s attempt of another’s naivetd involving to obtain a judgment setting aside

smaller amounts is often over- the conveyance will probably fail. looked by law enforcement, which suggests the victim seek a “civil free and clear: adj. referring to the remedy” (i.e., sue). However, in- ownership of real property upon which creasingly fraud, which has vic- there is no lien, encumbrance, record- timized a large segment of the ed judgment or the right of anyone to public (even in individually small make a claim against the property. amounts), has become the target The term is used in contracts for sale of consumer fraud divisions in the of real property and deeds, to state

offices of district attorneys and that the title has no claim against it. attorneys general. (See: constructive fraud, exemplary damages, freehold: n. any interest in real proper-

extrinsic fraud, fraud in the ty which is a life estate or of uncertain inducement, fraudulent con- or undetermined duration (having no veyance, intrinsic fraud) stated end), as distinguished from a leasehold which may have declining fraud in the inducement: n. the use value toward the end of a long-term of deceit or trick to cause someone to lease (such as the 99-year variety). act to his/her disadvantage, such as (See: leasehold) signing an agreement or deeding away real property. The heart of this free on board (FOB): adj. referring to type of fraud is misleading the other purchased goods shipped without party as to the facts upon which transportation charge to a specific he/she will base his/her decision place. Free on board at the place of to act. Example: “there will be tax manufacture shows there is a charge

180 fruit of the poisonous tree

for delivery. Example: if an auto- ing (correcting) a trust or agreement maker in Detroit sells a car “FOB in which there was an error. Detroit,” then there will be a ship-

ping charge if delivery is taken any- frisk: v. quickly patting down the where else. If the contract reads clothes of a possible criminal suspect “FOB New Orleans,” then the auto to determine if there is a concealed

will be shipped to that city without weapon. This police action is gen- charge, but with charge for delivery erally considered legal (constitution- from New Orleans to somewhere al) without a search warrant. Gener-

else. (See: FOB) ally it is preferred that women officers frisk women and men officers fresh pursuit: n. immediate chase frisk men. of a suspected criminal by a law enforcement officer, in which situ- frivolous: adj. referring to a legal ation the officer may arrest the move in a lawsuit clearly intended suspect without a warrant. It can merely to harass, delay or embarrass also refer to chasing a suspect or the opposition. Frivolous acts can in- escaped felon into a neighboring clude filing the lawsuit itself, a base- jurisdiction in an emergency, as less motion for a legal ruling, an an- distinguished from entering anoth- swer of a defendant to a complaint er jurisdiction with time to alert which does not deny, contest, prove law enforcement people in that or controvert anything, or an appeal area. Example: when a deputy which contains not a single arguable sheriff from Montgomery County basis (by any stretch of the imagina- pursues a car driven by a suspect- tion) for the appeal. A frivolous lawed bank robber into Baltimore suit, motion or appeal can result in a County (in which he normally has successful claim by the other party no power to enforce the law), the for payment by the frivolous suer of doctrine of fresh pursuit allows their attorneys’ fees for defending him/her to make the arrest. It is the case. Judges are reluctant to find also called hot pursuit. (See: hot an action frivolous, based on the de- pursuit) sire not to discourage people from using the courts to resolve disputes. friendly suit: n. a lawsuit filed in

order to obtain a court order when fruit of the poisonous tree: n. in the parties to the suit agree on the criminal law, the doctrine that evi- expected outcome. Such a legal ac- dence discovered due to information tion will be dismissed if it is an at- found through illegal search or other tempt to get an advisory opinion, is unconstitutional means (such as a collusive (deceitfully planned) to get forced confession) may not be intro-

a judgment to set a legal precedent duced by a prosecutor. The theory is or where there is no real controver- that the tree (original illegal evidence) sy. However, such suits are allowed is poisoned and thus taints what

in situations in which the statutes grows from it. For example, as part of require a court ruling to achieve a a coerced admission made without “reasonable result,” such as reform- giving a prime suspect the so-called

181 frustration of purpose

“Miranda warnings” (statement of full faith and credit: n. the provision

rights, including the right to remain in Article IV, Section 1 of the U.S. silent and what he/she says will be Constitution which states: “Full used against them), the suspect tells faith and credit shall be given in the police the location of stolen each State to the public acts, records property. Since the admission can- and judicial proceedings of every not be introduced as evidence in other state.” Thus, a judgment in a trial, neither can the stolen proper- lawsuit or a criminal conviction ren- ty. (See: Miranda warning) dered in one state shall be recognized and enforced in any other frustration of purpose: n. some- state, so long as the original judg- times called commercial frustration, ment was reached by due process of when unexpected events arise law. Each state has a process for ob- which make a contract impossible to taining an enforceable judgment be performed, entitling the frustrat- based on a “foreign” (out-of-state) ed party to rescind the contract judgment. without paying damages. Example: Jack Appleseller contracts to buy a full disclosure: n. the need in busi- commercial building to rent out, ness transactions to tell the “whole and, while the sale is pending, the truth” about any matter which the building is condemned by the city as other party should know in deciding unsafe for any use. Mr. Appleseller to buy or contract. In real estate can back out of the purchase with- sales in many states there is a full out obligation. (See: commercial disclosure form which must be filled frustration) out and signed under penalty of perjury for knowingly falsifying or con- fugitive from justice: n. a person cealing any significant fact. (See: convicted or accused of a crime caveat emptor) who hides from law enforcement in

the state or flees across state lines future interest: n. a right to receive to avoid arrest or punishment. either real property or personal

Under Article IV, Section 2 of the property some time in the future, ei- U.S. Constitution, Governors are ther upon a particular date or upon required to “deliver up” and return the occurrence of an event. Typical any fugitives from justice to the examples are getting title upon the state where they allegedly commit- death of the person having present ted the crime, a process called ex- use, outliving another beneficiary, tradition. (See: extradition) reaching maturity (age 18) or upon marriage. fungible things: n. sometimes merely called “fungibles,” goods which are interchangeable, often sold or delivered in bulk, since any one of them is as good as another. Grain or gravel are fungibles, as are securities which are identical.

182 gag order: n. a judge’s order pro- debtor to set that money aside until hibiting the attorneys and the par- the court determines (decides) how ties to a pending lawsuit or criminal much the debtor owes to the creditor.

prosecution from talking to the Garnishing funds is also a warning to media or the public about the case. the party holding the funds (gar- The supposed intent is to prevent nishee) not to pay them, and to in- prejudice due to pre-trial publicity form the court as to how much money which would influence potential ju- is being held. If the garnishee (such rors. A gag order has the secondary as a bank or employer) should mis- purpose of preventing the lawyers takenly give the money to the account from trying the case in the press owner or employee, the garnishee will and on television, and thus creating be liable to pay the creditor what a public mood (which could get ugly) he/she/it has coming. Garnishing in favor of one party or the other. wages is a typical means used to col- Based on the “freedom of the press” lect late child support and alimony provision of the First Amendment, payments or money judgments. Often the court cannot constitutionally re- the order will be to pay installment strict the media from printing or payments to the sheriff until the debt broadcasting information about the is collected. Then the sheriff pays the case, so the only way is to put a gag whole amount or payments to the per- on the participants under the court’s son to whom the money is owed. (See: control. In Canada, however, the garnishee, garnishment) media can be restricted, as in a fa-

mous case in which American news- garnishee: n. a person or entity, quite papers were smuggled across the often a bank or employer, which re- border to report on a particularly ceives a court order not to release lurid sex-murder case in which a funds held for or owed to a customer or second accused person was yet to be employee, pending further order of the tried. A gag order can also be made court. (See: garnish, garnishment) by an executive agency such as when President George Bush issued Desertion: The poor man’s a gag order which forbade federally method of divorce. funded health clinics from giving Evan Esar, Esar’s Comic out information about abortions, a — Dictionary gag order which President Bill Clin-

ton rescinded on his first day in office, January 22, 1993. garnishment: n. the entire process of petitioning for and getting a court garnish: v. to obtain a court order di- order directing a person or entity (gar- recting a party holding funds (such nishee) to hold funds they owe to some- as a bank) or about to pay wages one who allegedly is in debt to another (such as an employer) to an alleged person, often after a judgment has

183 gender bias

been rendered. Usually the actual injuries suffered (such as pain, suffer- amounts owed have not been figured ing, inability to perform certain func- out or are to be paid by installments tions) or breach of contract for which

directly or through the sheriff. (See: there is no exact dollar value which garnish, garnishee) can be calculated. They are distinguished from special damages, which gender bias: n. unequal treatment in are for specific costs, and from puni- employment opportunity (such as tive (exemplary) damages for punish- promotion, pay, benefits and privi- ment and to set an example when leges), and expectations due to atti- malice, intent or gross negligence was tudes based on the sex of an employ- a factor. (See: damages, exemplary ee or group of employees. Gender damages, special damages) bias can be a legitimate basis for a lawsuit under anti-discrimination Wrong must not win by techni- statutes. (See: discrimination) calities. —Aeschylus, The Uemenides general appearance: n. an attorney’s representation of a client in court for all purposes connected general denial: n. a statement in an with a pending lawsuit or prosecu- answer to a lawsuit or claim by a de- tion. After “appearing” in court, the fendant in a lawsuit, in which the de- attorney is then responsible for all fendant denies everything alleged in future appearances in court unless the complaint without specifically officially relieved by court order or denying any allegation. It reads: “De- substitution of another attorney. A fendant denies each and every allega-

lawyer may be leery of making a tion contained in the complaint on file general appearance unless all de- herein,” or similar inclusive language. tails of representation (such as the (See: answer, complaint) amount and payment of his/her

fees) have been worked out with the general partner: n. 1) usually one of client. This is distinguished from a the owners and operators of a partner- special appearance, which is only ship, which is a joint business entered for a particular purpose or court ses- into for profit, in which responsibility sion and does not make the attorney for management, profits and, most im- responsible for future conduct of the portantly, the liability for debts is case. (See: special appearance) shared by the general partners. Any- one entering into a general partner- general counsel: n. the chief attor- ship (the most common business orga- ney for a corporation, who is paid nization involving more than one usually full time for legal services. owner) must remember that each gen-

Attorneys who work only for one eral partner is liable for all the debts of business are “house counsel.” (See: the partnership. Furthermore, any house counsel) partner alone can bind the partnership on contracts. Example: Joe Doright general damages: n. monetary re- and Sam Sleazeball are partners in a covery (money won) in a lawsuit for retail store. Sleazeball runs up a large

184 gift tax

American Express card bill in the no longer works to avoid taxes, a

name of the company while on a toot grandparent can still give or leave gifts in Las Vegas, contracts for purchase under $10,000 a year to a grandchild of $30,000 worth of dresses which without a gift tax. are out of fashion, and then takes off with a girlfriend for Tahiti. Doright gift: n. the voluntary transfer of proper- is responsible for the entire debt. 2) ty (including money) to another person in the 40 states which recognize lim- completely free of payment or strings ited partnerships, the managing while both the giver and the recipient partner or partners operate the part- are still alive. Large gifts are subject to nership and are liable for its debts the federal gift tax, and in some states, beyond the value of the investments to a state gift tax. (See: gift tax, uni- by limited partners. The general fied estate and gift tax) partners usually receive a management fee and share in profits. Limit- In respect of civil rights, com- ed partners are prohibited by law mon to all citizens, the Consti- from participating in management, tution of the United States does can lose more than their invest- not, I think, permit any public ments, and get less than the general authority to know the race of partners from unusually high prof- those entitled to be protected in its. (See: limited partnership, the enjoyment such rights. partner, partnership) of —Justice John M. Harlan, dissent in Plessy v. Ferguson Mercy bears richer fruits than strict justice. gift in contemplation —Abraham Lincoln of death: n. (called a gift causa mortis by lawyers showing off their Latin), a gift of per- general plan: n. a plan of a city, coun- sonal property (not real estate) by a ty or area which establishes zones person expecting to die soon due to ill for different types of development, health or age. Federal tax law will rec-

uses, traffic patterns and future de- ognize this reason for a gift if the giver

velopment. (See: zoning) dies within three years of the gift. Treating the gift as made in contem- generation skipping: adj., adv. re- plation of death has the benefit of in- ferring to gifts made through trusts cluding the gift in the value of the es- by a grandparent to a grandchild, tate, rather than making the gift sub- skipping one’s child (the grandchild’s ject to a separate federal gift tax parent). Originally intended to avoid charged the giver. If the giver gets over

or defer federal gift or estate taxes if an apparently mortal illness, the gift is paid through a “generation skipping treated like any other gift for tax pur- trust,” it is now subject to a genera- poses. (See: gift tax, unified estate tion skipping tax, and if made di- and gift tax) rectly without a trust, the gift is as

taxable as any large gift. In other gift tax: n. federal tax on large gifts. words, although generation skipping Gifts to members of a family may be

185 go bail

up to $10,000 a year to each plus an himself on the wrong end of a lawsuit additional $30,000 accumulation of for millions of dollars. gifts is allowed tax-free. Several states also impose gift taxes. As with good title: n. ownership of real prop- all tax questions, professional assis- erty which is totally free of claims

tance in gift tax planning is vital. against it and therefore can be sold, transferred or put up as security go bail: v. slang for putting up the (placing a mortgage or deed of trust bail money to get an accused defen- on the property). dant out of jail after an arrest or pending trial or appeal. goodwill: n. the benefit of a business having a good reputation under its good cause: n. a legally sufficient name and regular patronage. Good- reason for a ruling or other action by will is not tangible like equipment, a judge. The language is commonly: right to lease the premises or invento- “There being good cause shown, the ry of goods. It becomes important court orders...” when a business is sold, since there can be an allocation in the sales price

good faith: n. honest intent to act for the value of the goodwill, which is without taking an unfair advan- always a subjective estimate. Includ- tage over another person or to ful- ed in goodwill upon sale may be the fill a promise to act, even when right to do business without competi- some legal technicality is not ful- tion by the seller in the area and/or for filled. The term is applied to all a specified period of time. Sellers like kinds of transactions. the allocation to goodwill to be high

since it is not subject to capital gains

goods: n. items held for sale in the tax, while buyers prefer it to be low,

regular course of business, as in a because it cannot be depreciated for retail store. tax purposes like tangible assets. Goodwill also may be overestimated Good Samaritan rule: n. from a Bib- by a proud seller and believed by an lical story, if a volunteer comes to the unknowing buyer. (See: sale)

aid of an injured or ill person who is a stranger, the person giving the aid governmental immunity: n. the doc- owes the stranger a duty of being trine from English common law that reasonably careful. In some circum- no governmental body can be sued stances negligence could result in a unless it gives permission. This pro- claim of negligent care if the injuries tection resulted in terrible injustices, or illness were made worse by the since public hospitals, government volunteer’s negligence. Thus, if Jack drivers and other employees could be Goodguy sees a man lying by the negligent with impunity (free) from road, a victim of a hit and run acci- judgment. The Federal Tort Claims dent, and moves the injured man, re- Act and state waivers of immunity sulting in a worsening of the injury (with specific claims systems) have or a new injury, instead of calling for negated this rule, which stemmed an ambulance, Goodguy may find from the days when kings set

186 Grand Jury

prerogatives. (See: Federal Tort did not own property or could not Claims Act, immunity) pass a test on citizenship obligations, unless their grandfathers had served grace period: n. a time stated in a in the Confederate Army. Such laws contract in which a late payment are now unconstitutional. or performance may be made without penalty. Often after the grace grandfathered in: adj. refers to con-

period ends without payment or tinued allowed use of property as it performance by the person who is was when restrictions or zoning ordi- supposed to pay, the contract is nances were adopted. suspended. Example: if a person does not pay his/her insurance Grand Jury: n. a jury in each county payment (premium) by the stated or federal court district which serves deadline, he/she usually has a few for a term of a year and is usually se- days extra to pay before the ab- lected from a list of nominees offered solute deadline. If the person does by the judges in the county or dis- not pay by then, the insurance trict. The traditional 23 members

company cancels the contract, i.e. may be appointed or have their your insurance. names drawn from those nominated. A Grand Jury has two responsibili- grandfather clause: n. 1) a clause ties: 1) to hear evidence of criminal in a statute or zoning ordinance accusations in possible felonies (particularly a city ordinance) (major crimes) presented by the Dis- which permits the operator of a trict Attorney and decide whether business or a land owner to be ex- the accused should be indicted and empt from restrictions on use if the tried for a crime. Since many felony business or property continues to charges are filed by the District At- be used as it was when the law was torney in a municipal or other lower adopted. Upon passage of the court which holds a preliminary statute or regulation, the specific hearing to determine if there is just property may be referred to as cause for trial instead of having the “grandfathered in.” Example: the Grand Jury hear the matter, this city passes an ordinance which function is of minor importance in does not permit retail businesses many jurisdictions. 2) to hear evi- in a particular zone, but any exist- dence of potential public wrong- ing store can continue to function doing by city and county officials, in- in the area, even with new owners. cluding acts which may not be However, if the premises stop crimes but are imprudent, ineffec- being a retail outlet then the tive or inefficient, and make recom- grandfather clause will lapse. 2) mendations to the county and cities among the state constitutional involved. Example: a Grand Jury amendments passed by southern may recommend that a new jail is states in the late 1800s to keep needed, find that there is evidence of blacks from voting, “grandfather favoritism in the sheriff’s office, that clauses” denied voter registration some city council members are prof- to people who were illiterate, who iting by overlooking drug dealing by

187 grand larceny

city staffers, or that judges are not transfer is finalized by recording carrying a full load of cases to be with the County Recorder or tried. (See: charge, indictment, Recorder of Deeds. Importantly, a preliminary hearing) grant deed warrants that the grantor actually owned the title to grand larceny: n. the crime of theft transfer, which a quitclaim deed of another’s property (including would not, since it only transfers money) over a certain value (for ex- what the grantor owned, if anything. ample, $500), as distinguished from (See: grant, grantee, grantor, petty (or petit) larceny in which the quitclaim deed) value is below the grand larceny limit. Some states only recognize grantee: n. the party who receives title the crime of larceny, but draw the to real property (buyer, recipient, line between a felony (punishable by donee) from the seller (grantor) by a state prison time) and a misde- document called a grant deed or quit- meanor (local jail and/or fine) based claim deed. (See: grant) on the value of the loot. (See: larce-

ny, theft) grantor: n. the party who transfers title in real property (seller, giver) to anoth- grand theft: n. (See: grand larceny) er (buyer, recipient, donee) by grant deed or quitclaim deed. (See: grant) grant: v. to transfer real property

from a title holder (grantor) or hold- grantor-grantee index: n. a set of ers to another (grantee) with or books and/or computerized lists found without payment. However, there is in the office of every County Recorder an important difference between the or Recorder of Deeds which lists all types of deeds used. A grant deed recorded transfers of title by deed (as warrants (guarantees) that the well as liens, mortgages, deeds of trust

grantor (seller) has full right and and other documents affecting title). title to the property, while a quit- Each yearly index is usually alphabet- claim deed only grants whatever the ized by the last names of grantors (the grantor owns (which may be noth- party transferring title) and grantee ing) and guarantees nothing. (See: (the recipients of title). The listing in- grant deed, grantee, grantor, cludes the date of transfer, and cross- quitclaim deed) references to the book and page or document number where a copy of the grant deed: n. the document which document (often on microfilm) was transfers title to real property or a recorded and can be examined. This is real property interest from one a key instrument in tracking a chain party (grantor) to another of title. (grantee). It must describe the property by legal description of gratuitous: adj. or adv. voluntary boundaries and/or parcel numbers, or free. be signed by all people transferring the property, and be acknowl- gravamen: n. Latin for “to weigh edged before a notary public. The down,” the basic gist of every claim

188 guardian

(cause of action) or charge in a com- mother’s debt or fulfill contract oblig- plaint filed to begin a lawsuit. Ex- ations if that party fails to pay or per- ample: in an accident case, the form. 3) n. occasionally, the person to gravamen may be the negligence of whom the guarantee is made. 4) a

the defendant, and in a contract promise to make a product good if it case, it may be the breach of the de- has some defect. (See: guarantor) fendant. (See: cause of action, charge, complaint) guarantor: n. a person or entity that agrees to be responsible for another’s gross negligence: n. carelessness debt or performance under a contract which is in reckless disregard for if the other fails to pay or perform.

the safety or lives of others, and is (See: guarantee) so great it appears to be a conscious

violation of other people’s rights to guaranty: v. and n. an older spelling safety. It is more than simple inad- of guarantee, which the renowned vertence, but it is just shy of being Oxford etymologist Dr. Walter Skeat intentionally evil. If one has bor- called a “better spelling” (1882). rowed or contracted to take care of (See: guarantee) another’s property, then gross negligence is the failure to actively take guardian: n. a person who has been ap- the care one would of his/her own pointed by a judge to take care of a property. If gross negligence is minor child or incompetent adult (both found by the trier of fact (judge or called “ward”) personally and/or man- jury), it can result in the award of age that person’s affairs. Tb become a punitive damages on top of general guardian of a child either the party in- and special damages. (See: dam- tending to be the guardian or another ages, exemplary damages, negli- family member, a close friend or a local gence, punitive damages) official responsible for a minor’s welfare will petition the court to appoint gross income: n. in calculating in- the guardian. In the case of a minor, come tax, the income of an individ- the guardianship remains under court ual or business from all sources be- supervision until the child reaches ma- fore deducting allowable expenses, jority at 18. Naming someone in a will which will result in net income. as guardian of one’s child in case of the (See: income tax) death of the parent is merely a nomination. The judge does not have to guarantee: 1) v. to pledge or agree to honor that request, although he/she be responsible for another’s debt or usually does. Sadly, often a parent contractual performance if that must petition to become the guardian other person does not pay or per- of his/her child’s “estate” if the child inform. Usually, the party receiving herits or receives a gift of substantial the guarantee will first try to collect assets, including the situation in or obtain performance from the which a parent gives his/her own child debtor before trying to collect from an interest in real property or stocks. the one making the guarantee (guar- Therefore, that type of gift should be antor). 2) the promise to pay avoided and a trust created instead.

189 guardian ad litem

While the term “guardian” may “social guest” in a residence. (See: refer to someone who is appointed guest statute, invitee) to care for and/or handle the affairs of a person who is incompe- guest statute: n. a state law which tent or incapable of administering sets standards of care by the driver his/her affairs, this is more often of a car to a non-paying passenger. called a “conservator” under a con- Although state laws vary, the basic servatorship. (See: conservator, concept is that the social passenger ward) can bring suit for negligence against

the driver for gross negligence only if guardian ad litem: n. a person ap- the driver could have foreseen that pointed by the court only to take his/her actions or car could put the legal action on behalf of a minor or rider in great peril. Examples: dri- an adult not able to handle his/her ving while drunk, going far over the own affairs. Duties may include fil- speed limit, playing “chicken,” taking a lawsuit for an injured child, ing chances, driving a car knowing defending a lawsuit or filing a the brakes are faulty, or particularly claim against an estate. Usually a continuing the reckless driving after parent will file a petition to be ap- the passenger has asked the driver pointed the guardian ad litem of a to stop or asked to be let out. (See: child hurt in an accident at the guest) same time the lawsuit is filed. (See: ad litem) guilty: adj. having been convicted of a crime or having admitted the com- guest: n. 1) in general, a person pay- mission of a crime by pleading ing to stay in hotel, a motel or inn “guilty” (saying you did it). A defen- for a short time. 2) a person stay- dant may also be found guilty by a ing at another’s residence without judge after a plea of “no contest,” or charge, called a “social guest.” An in Latin nolo contendere. The term important distinction is that a “guilty” is also sometimes applied to non-paying guest is not owed the persons against whom a judgment of duty being provided a safe has been found in a lawsuit for a civil boarding space, as is a paying cus- wrong, such as negligence or some tomer. Thus if a social guest trips intentional act like assault or fraud, on a slippery rug, he/she has no but that is a confusing misuse of the right to sue for negligence, but a word since it should only apply to a paying guest might. 3) an “automo- criminal charge. (See: admission of bile” guest is one who is a passen- guilt, cop a plea, plea bargain) ger without paying, as distinguished from a taxi fare, bus rider or one who has paid a friend to drive. However, the so-called “guest statute” may give a non- paying passenger the right to sue. An automobile guest is somewhat (but not entirely) analogous to the

190 habeas corpus : (hay-bee-us core- in against the weather, provide run- puss) n. Latin for “you have the ning water, access to decent toilets body,” it is a writ (court order) which and bathing facilities, heating, and directs the law enforcement officials electricity. Particularly in multi- (prison administrators, police or dwelling buildings freedom from nox- sheriff) who have custody of a pris- ious smells, noise and garbage are in- oner to appear in court with the cluded in the standard. This can be- prisoner to help the judge determine come important in landlord-tenant whether the prisoner is lawfully in disputes or government actions to prison or jail. The writ is obtained force a landlord to make the premis- by petition to a judge in the county es livable (abatement of deficiencies). or district where the prisoner is in- Example: if the roof begins to leak,

carcerated, and the judge sets a the water goes off, the electricity hearing on whether there is a legal shorts out or the toilet breaks, in basis for holding the prisoner. most states the landlord has a duty Habeas corpus is a protection to make repairs when requested or against illegal confinement, such as the tenant may order the repairs and holding a person without charges, deduct the cost from the rent. (See: when due process obviously has landlord and tenant) been denied, bail is excessive, parole has been granted, an accused has The first thing u>e do, let’s kill been improperly surrendered by the all the lawyers. bail bondsman or probation has been summarily terminated with- —William Shakespeare, Henry VI, Part II out cause. Historically called “the great writ,” the renowned scholar of the Common Law, William Black- habitual criminal: n. under the stone, called it the “most celebrated statutes of many states, a person writ in English law.” It may also be who has been convicted of either two used as a means to contest child or three felonies (or of numerous custody and deportation proceed- misdemeanors), a fact which may in- ings in court. The writ of habeas cor- crease punishment for any further pus can be employed procedurally in criminal convictions. (See: three federal district courts to challenge strikes, you’re out) the constitutionality of a state court

conviction. half blood: 1) adj. sharing one parent

only. 2) n. a half brother or half sis- habitable: adj. referring to a resi- ter. “Half blood” should not be con- dence that is safe and can be occu- fused with “half breed,” which was a pied in reasonable comfort. pejorative expression for a person Although standards vary by region, born of parents of two races, particu- the premises should be closed larly Native American and white.

191 harass

harass: (either harris or huh-rass) v. to protect the worker. (See: harass, systematic and/or continual un- sexual harassment) wanted and annoying pestering, which often includes threats and de- harmless error: n. an error by a judge mands. This can include lewd or of- in the conduct of a trial which an ap- fensive remarks, sexual advances, pellate court finds is not sufficient for

threatening telephone calls from it to reverse or modify the lower collection agencies, hassling by po- court’s judgment at trial. Harmless

lice officers or bringing criminal error would include: a technical error charges without cause. (See: ha- which has no bearing on the outcome rassment, sexual harassment) of the trial, an error that was corrected (such as allowing testimony and

then ordering it stricken and admon- I like In hearing cases am ishing the jury to ignore it), the issue everyone else. The important affected by the error was found in the thing, however, is to see to it appellant’s favor (such as hearsay ev- that there are no cases. idence on premeditation, but the jury —Confucius found no premeditation), and the appeals court’s view that even though harassment: (either harris-meant or there were errors the appealing party huh-rass-meant) n. the act of sys- could not have won in trial in any tematic and/or continued unwanted event. This last gives the appeals and annoying actions of one party or court broad latitude to rule that er- a group, including threats and de- rors were not significant. It is frus- mands. The purposes may vary, in- trating to appealing parties and their cluding racial prejudice, personal attorneys for the appeals court to malice, an attempt to force someone rule that there were indeed several to quit a job or grant sexual favors, errors, and then say: “However, they apply illegal pressure to collect a bill appear to be harmless.” (See: error) or merely gain sadistic pleasure from making someone anxious or headnote: n. the summary of the key fearful. Such activities may be the legal points determined by an ap- basis for a lawsuit if due to discrim- peals court, which appears just ination based on race or sex, a viola- above each decision in published re- tion on the statutory limitations on ports of cases. Headnotes are useful collection agencies, involve revenge for a quick scan of the judgment, but by an ex-spouse, or be shown to be a they are the editor’s remarks and not

form of blackmail (“I’ll stop bother- the court’s. (See: reports) ing you if you’ll go to bed with me”).

The victim may file a petition for a head of household: n. 1) in federal in- “stay away” (restraining) order, income tax law, the person filing a tax tended to prevent contact by the of- return who manages the household fensive party. A systematic pattern which has dependents such as chil- of harassment by an employee dren and/or other dependent relatives against another worker may subject living in the home, but does not file the employer to a lawsuit for failure on a joint return with a spouse. The

192 hearsay rule

calculation of taxes is somewhat admissible. Because the person who more favorable to a head of house- supposedly knew the facts is not in hold than to a person filing singly. 2) court to state his/her exact words, the anyone who manages the affairs of trier of fact cannot judge the demeanor the family living in a household, and credibility of the alleged first-hand who need not be the husband/father witness, and the other party’s lawyer or wife/mother, but could be a cannot cross-examine (ask questions grandparent, uncle, aunt, son or of) him or her. However, as significant daughter. 3) “head of family.” as the hearsay rule itself are the exceptions to the rule which allow hearing: n. any proceeding before a hearsay testimony such as: a) a state- judge or other magistrate (such as ment by the opposing party in the law- a hearing officer or court commis- suit which is inconsistent with what sioner) without a jury in which ev- he/she has said in court (called an “ad- idence and/or argument is present- mission against interest”); b) business ed to determine some issue of fact entries made in the regular course of or both issues of fact and law. business, when a qualified witness can

While technically a trial with a identify the records and tell how they judge sitting without a jury fits the were kept; c) official government definition, a hearing usually refers records which can be shown to be prop- to brief sessions involving a specif- erly kept; d) a writing about an event

ic question at some time prior to made close to the time it occurred, the trial itself, or such specialized which may be used during trial to re- proceedings as administrative fresh a witness’s memory about the hearings. In criminal law, a “pre- event; e) a “learned treatise” which liminary hearing” is held before a means historical works, scientific judge to determine whether the books, published art works, maps and

prosecutor has presented sufficient charts; f) judgments in other cases; g) evidence that the accused has com- a spontaneous excited or startled ut-

mitted a crime to hold him/her for terance (“oh, God, the bus hit the little trial. (See: administrative hear- girl”); h) contemporaneous statement ing, preliminary hearing, trial) which explains the meaning of conduct

if the conduct was ambiguous; i) a hearsay: n. 1) second-hand evidence statement which explains a person’s in which the witness is not telling state of mind at the time of an event; j) what he/she knows personally, but a statement which explains a person’s

what others have said ..”) to him/her. 2) future intentions (“I plan to. . if that

a common objection made by the op- person’s state of mind is in question; k) posing lawyer to testimony when it prior testimony, such as in deposition appears the witness has violated the (taken under oath outside of court), or

hearsay rule. 3) scuttlebutt or gos- at a hearing, if the witness is not avail-

sip. (See: hearsay rule) able (including being dead); 1) a declaration by the opposing party in the hearsay rule: n. the basic rule that lawsuit which was contrary to his/her

testimony or documents which best interest if the party is not avail- quote persons not in court are not able at trial (this differs from an

193 heat of passion

admission against interest, which is owner of the property the presumptive admissible in trial if it differs from heir hopes to get someday. A legally testimony at trial); m) a dying decla- adopted child gains the chance to be an ration by a person believing he/she is heir upon adoption as if he/she were dying; n) a statement made about the natural child of the adoptive par- one’s mental set, feeling, pain or ent or parents and is called an adop- health, if the person is not avail- tive heir. A collateral heir is a relative able—most often applied if the de- who is not a direct descendant, but a clarant is dead (“my back hurts hor- brother, sister, uncle, aunt, cousin,

ribly,” and then dies); o) a statement nephew, niece or a parent. It is note- about one’s own will when the per- worthy that a spouse is not an heir un-

son is not available; p) other excep- less specifically mentioned in the will. tions based on a judge’s discretion He/She may, however, receive an in- that the hearsay testimony in the heritance through marital property or circumstances must be reliable. community property laws. A child not (See: admission against interest, mentioned in a will can claim to be a

dying declaration, hearsay) pretermitted heir, i.e. inadvertently or accidentally omitted from the will, and heat of passion: n. in a criminal can claim he/she would (should) have case, when the accused was in an received as an heir. (See: descent and uncontrollable rage at the time of distribution, heir apparent, heirs commission of the alleged crime. If of the body, pretermitted heir, suc- so, it may reduce the charge, in- cession, will) dictment or judgment down from

murder to manslaughter, since the heir apparent: n. the person who is ex- passion precluded the defendant pected to receive a share of the estate having premeditation or being of a family member if he/she lives fully mentally capable of knowing longer, or is not specifically disinherit- what he/she was doing. (See: ed by will. (See: heir) manslaughter, murder)

heiress: n. feminine heir, often used to heir: n. one who acquires property denote a woman who has received a upon the death of another, based on large amount upon the death of a the rules of descent and distribution, rich relative, as in the “department namely, being the child, descendant store heiress.” or other closest relative of the dear departed. It also has come to mean heirs of the body: n. descendants of anyone who “takes” (receives someone’s bloodline, such as children or thing) by the terms of the will. An grandchildren until such time as heir cannot be determined until the there are no direct descendants. If moment of death of the person leav- the bloodline runs out, the property ing the property, since a supposed will “revert” to the nearest relative beneficiary (heir apparent) might die traced back to the original owner. first. A presumptive heir is someone (See: heir, reversion) who would receive benefits unless a

child was later bom to the current held: v. decided or ruled, as “the court

194 holding company

held that the contract was valid.” information since it is a report and not (See: decision, judgment, ruling) an admission of guilt. Some hit and run cases are difficult to determine, hereditament: n. any kind of proper- such as the driver leaves the accident ty which can be inherited. This is scene to go a block to his/her house or old-fashioned language still found the neighborhood repair garage, and in some wills and deeds. then walks back to the scene. hidden asset: n. an item of value hobby loss: n. in income tax, a loss which does not show on the books of from a business activity engaged in a business, often excluded for some more for enjoyment than for profit, improper purpose such as escaping which can be deducted against annual taxation or hiding it from a bank- income only. ruptcy trustee. However, there may be a legitimate business reason for holder: n. a general term for anyone in not including all assets on a profit possession of property, but usually re- and loss statement. ferring to anyone holding a promissory note, check, bond or other paper, either highway: n. any public street, road, handed to the holder (delivery) or turnpike or canal which any mem- signed over by endorsement, for which

ber of the public has the right to use, he/she/it is entitled to receive payment provided he/she/it follows the laws as stated in the document. (See: bill of governing its use, such as having a exchange, bona fide purchaser, driver’s license if operating a vehi- check, endorsement, holder in due cle. Thus, the use is really a privilege course, promissory note) and not an absolute right. holder in due course: n. one holding a hit and run: n. the crime of a driver check or promissory note, received for

of a vehicle who is involved in a col- value (he/she paid for it) in good faith

lision with another vehicle, property and with no suspicion that it might be or human being, who knowingly no good, claimed by another, overdue

fails to stop to give his/her name, li- or previously dishonored (a bank had cense number and other information refused to pay since the account was as required by statute to the injured overdrawn). Such a holder is entitled party, a witness or law enforcement to payment by the maker of the check officers. If there is only property or note. (See: bona fide purchaser) damage and no other person is pre-

sent, leaving the information at- holding: 1) n. any ruling or decision of tached to the damaged property may a court. 2) n. any real property be sufficient, provided the person to which one has title. 3) n. invest-

causing the accident makes a report ment in a business. 4) v. keeping in to the police. Hit and run statutes one’s possession.

vary from state to state. It is not a violation of the constitutional protec- holding company: n. a company, usu-

tion against self-incrimination to ally a corporation, which is created to be required to stop and give this own the stock of other corporations.

195 holdover tenancy

thereby often controlling the man- state which comes with certain re- agement and policies of all of them. quirements and limitations. The concept has become popular with so- holdover tenancy: n. the situation called libertarians, survivalists and when a tenant of real estate contin- others who would like to divorce local ues to occupy the premises without government from as much state regu- the owner’s agreement after the lation as possible. However, few cities original lease or rental agreement and counties have chosen this route.

between the owner (landlord) and For example, in California, there is the tenant has expired. The tenant one small county (Colusa) out of the is responsible for payment of the 58 which has chosen “home rule.” This monthly rental at the existing rate does not mean they will not take state and terms, which the landlord may funds for local improvements. accept without admitting the legali-

ty of the occupancy. A holdover ten- homestead: 1) n. the house and lot of a ant is subject to a notice to quit (get homeowner which the head of the out) and, if he/she does not leave, to household (usually either spouse) can a lawsuit for unlawful detainer. declare in writing to be the principal dwelling of the family, record that dec- hold harmless: n. a promise to pay laration of homestead with the County any costs or claims which may re- Recorder or Recorder of Deeds and sult from an agreement. Quite often thereby exempt part of its value (based this is part of a settlement agree- on state statutes) from judgment cred-

ment, in which one party is con- itors. A similar exemption is available cerned that there might be un- in bankruptcy without filing a declara-

known lawsuits or claims stemming tion of homestead. 2) v. jargon for filing from the situation, so the other a declaration of homestead, as in “he party agrees to cover them. homesteaded the property.”

holographic will: n. a will entirely hometowned: adv. legalese for a handwritten, dated and signed by lawyer or client suffering discrimina- the testator (the person making the tion by a local judge who seems to will), but not signed by required wit- favor local parties and/or attorneys nesses. Under those conditions it is over those from out of town. valid in about half the states despite the lack of witnesses. A letter which homicide: n. the killing of a human has all the elements of a will can be being due to the act or omission of an- a holographic will, as can a will other. Included among homicides are

scratched in the dust of an automo- murder and manslaughter, but not all bile hood of a person dying while lost homicides are a crime, particularly in the desert. (See: will) when there is a lack of criminal intent. Non-criminal homicides include home rule: n. the power of a local city killing in self-defense, a misadventure or county to set up its own system of like a hunting accident or automobile governing and local ordinances wreck without a violation of law like without receiving a charter from the reckless driving, or legal (government)

196 hung jury

execution. Suicide is a homicide, but a witness who has testified for the opin most cases there is no one to pros- position. (See: witness, cross exami- ecute if the suicide is successful. As- nation, leading, adverse witness) sisting or attempting suicide can be a crime. (See: justifiable homi- hotchpot: n. the putting together, cide, manslaughter, murder, blending or mixing of various proper- self-defense, suicide) ties in order to achieve equal division among beneficiaries or heirs. There hornbook law: n. lawyer lingo for a may be cash, securities, personal be- fundamental and well-accepted longings, and even real estate which legal principle that does not require are part of the residue of an estate to any further explanation, since a be given to “my children, share and hornbook is a primer of basics. share alike.” Tb make such distribution possible, all of the items are put hostile possession: n. occupancy of a in the hotchpot and then divided. piece of real property coupled with a claim of ownership (which may be hot pursuit: n. when a law enforce- implied by actions, such as putting ment officer is so close behind the al- in a fence) over anyone, including leged criminal that he/she may con- the holder of recorded title. It may be tinue the chase into another jurisdic- an element of gaining title through tion without stopping or seeking a long-term adverse possession or warrant for an arrest in the other claiming real estate which has no county or state. It is equivalent to known owner. (See: adverse pos- fresh pursuit. (See: fresh pursuit) session, quiet title action) house counsel: n. any attorney who hostile witness: n. technically an works only for a particular business. “adverse witness” in a trial who is (See: general counsel) found by the judge to be hostile (adverse) to the position of the party is above whose attorney is questioning the No man the law, and witness, even though the attorney none is below it. Theodore called the witness to testify on be- — Roosevelt half of his/her client. When the attorney calling the witness finds that household: n. a family living togeth- the answers are contrary to the legal er, all of whom need not be related. position of his/her client or the witness becomes openly antagonistic, hung jury: n. slang for a hopelessly the attorney may request the judge deadlocked jury in a criminal case, in to declare the witness to be “hostile” which neither side is able to prevail. or “adverse.” If the judge declares Usually it means there is no unani- the witness to be hostile (i.e. ad- mous verdict (although in Oregon verse), the attorney may ask “lead- and Louisiana 10 of 12 jurors can ing” questions which suggest an- convict or acquit). If the jury is hung swers or are challenging to the testi- the trial judge will declare a mistri- mony just as on cross examination of al. A new trial from scratch, with a

197 hypothecate

new jury panel, is required. The prosecutor can decide not to re-try the case, particularly if a majority of the jury favored acquittal. (See: dismissal, jury, mistrial, trial)

hypothecate: v. from Greek for “pledge,” a generic term for using property to secure payment of a loan, which includes mortgages, pledges and putting up collateral, while the borrower retains possession. (See: secured transaction) i.e.\ prep, abbreviation for id est, nothing substantial to do with the

which is Latin for “that is” or “that case or any issue in the case. It can is to say.” It is used to expand also apply to any matter (such as an or explain a general term as in “his argument or complaint) in a lawsuit children (i.e. Matthew, Mark, Luke which has no bearing on the issues to and Joan).” It should not be be decided in a trial. The public is confused with “e.g.,” which means often surprised at what is immaterial, “for example.” such as references to a person’s character or bad deeds in other situations. illegal: 1) adj. in violation of statute, (See: irrelevant, objection) regulation or ordinance, which

may be criminal or merely not in immediately: adv. 1) at once. 2) in or-

conformity. Thus, an armed rob- ders of the court or in contracts it bery is illegal, and so is an access means “as soon as can be done” with- road which is narrower than the out excuse. county allows, but the violation is not criminal. 2) status of a person immunity: n. exemption from penal- residing in a country of which ties, payments or legal requirements, he/she is not a citizen and who has granted by authorities or statutes. no official permission to be there. Generally there are three types of im- (See: alien, illegal immigrant) munity at law: a) a promise not to prosecute for a crime in exchange for illegal immigrant: n. an alien (non- information or testimony in a criminal citizen) who has entered the United matter, granted by the prosecutors, a States without government permis- judge, a grand jury or an investigating

sion or stayed beyond the termina- legislative committee; b) public offi- tion date of a visa. (See: alien) cials’ protection from liability for their decisions (like a city manager or mem- illusory promise: n. an agreement ber of a public hospital board); c) gov- to do something that is so indefi- ernmental (or sovereign) immunity, nite one cannot tell what is to be which protects government agencies done or the performance is option- from lawsuits unless the government al (usually because it is just a ges- agreed to be sued; d) diplomatic im- ture and not a true agreement). munity which excuses foreign ambas- Therefore, the other party need not sadors from most U.S. criminal laws. perform or pay since he/she got (See: governmental immunity) nothing in what he/she may have

thought was a contract. impanel: v. to select and install a jury. (See: impaneling, jury) immaterial: adj. a commonly heard

objection to introducing evidence in impaneling: n. the act of selecting a a trial on the ground that it had jury from the list of potential jurors,

199 impeach

called the “panel” or “venire.” The witness by showing that he/she is not steps are: 1) drawing names at ran- telling the truth or does not have the dom from a large number of jurors knowledge to testify as he/she did. called; 2) seating 12 tentative jurors 2) the trying of a public official for (or fewer where agreed to); 3) hear- charges of illegal acts committed in

ing individual juror requests for the performance of public duty. It is being excused, to be determined by not the conviction for the alleged

the judge; 4) questions from judge crime nor the removal from office. It is and lawyers for both sides, called only the trial itself. (See: impeach) “voir dire”; 5) challenges of tentative jurors either for cause (decided by impleader: n. a procedural device be- the judge) or peremptory (no reason fore trial in which a party brings a given) by the lawyers; 6) swearing third party into the lawsuit because in the jurors who survive this that third party is the one who owes process. (See: challenge, juror, money to an original defendant, which

jury, panel, venire, voir dire ) money will be available to pay the original plaintiff. The theory is that impeach: v. 1) to discredit the testi- two cases may be decided together and mony of a witness by proving that justice may be done more efficiently he/she has not told the truth or has than having two suits in a series. been inconsistent, by introducing

contrary evidence, including state- implied: adj., adv. referring to circum- ments made outside of the court- stances, conduct or statements of one room in depositions or in statements or both parties which substitute for of the witness heard by another. explicit language to prove authority to 2) to charge a public official with a act, warranty, promise, trust, agree- public crime for which the punishment, consent or easement, among ment is removal from office. One other things. Thus circumstances

President, Andrew Johnson in 1868, “imply” something rather than spell it was charged with violation of fed- out. (See: consideration, contract, eral laws in a politically motivated covenant, easement, implied con- impeachment, but was acquitted sent, implied warranty) by the margin of one vote in a trial held by the Senate. President implied consent: n. consent when sur- Richard Nixon resigned in 1974 rounding circumstances exist which rather than face impending im- would lead a reasonable person to be- peachment charges brought by the lieve that this consent had been given, House of Representatives in the Wa- although no direct, express or explicit tergate affair, in which he was ac- words of agreement had been uttered. cused of obstructing the investiga- Examples: a) a “contract” based on the tion and lying to Congress about his fact that one person has been doing a participation. Several federal judges particular thing and the other person have been impeached and nine have expects him/her to continue; b) the de- been found guilty by the Senate. fense in a “date rape” case in which there is a claim of assumed consent impeachment: n. 1) discrediting a due to absence of protest or a belief

200 impound

that “no” really meant “yes,” implied warranty: n. an assumption “maybe” or “later.” (See: implied) at law that products are “merchantable,” meaning they work and implied contract: n. an agreement are useable as normally expected by which is found to exist based on consumers, unless there is a warning the circumstances when to deny a that they are sold “as is” or second- contract would be unfair and/or re- hand without any warranty. A grant sult in unjust enrichment to one of deed of real property carries the im- the parties. An implied contract is plied warranty of good title, meaning distinguished from an “express the grantor (seller) had a title (own- contract.” (See: contract, express ership) to transfer. (See: caveat contract, implied) emptor, implied) implied covenant of good faith impossibility: n. when an act cannot and fair dealing: n. a general as- be performed due to nature, physical sumption of the law of contracts, that impediments or unforeseen events. people will act in good faith and deal It can be a legitimate basis to rescind fairly without breaking their word, (mutually cancel) a contract. (See: using shifty means to avoid obliga- contract) tions or denying what the other party obviously understood. A law- impotence: n. the male’s inability to suit (or one of the causes of action in copulate. Impotence can be grounds

a lawsuit) based on the breach of this for annulment of a marriage if the covenant is often brought when the condition existed at the time of the other party has been claiming tech- marriage and grounds for divorce nical excuses for breaching the con- whenever it occurs under the laws of tract or using the specific words of 26 states. It should not be confused the contract to refuse to perform with sterility, which means inability when the surrounding circum- to produce children. stances or apparent understanding

of the parties were to the contrary. impound: v. 1) to collect funds, in ad- Example: an employer fires a long- dition to installment payments, from time employee without cause and a person who owes a debt secured by says it can fire at whim because the property, and place them in a special employment contract states the em- account to pay property taxes and in- ployment is “at will.” However, the surance when due. This protects the employee was encouraged to join the lender or seller from the borrower’s company on the basis of retirement possible failure to keep up the insur- plans and other conduct which led ance or a mounting tax bill which is him/her to believe the job was per- a lien on the property. 2) to take manent barring misconduct or finan- away records, money or property, cial downturn. Thus, there could be a such as an automobile or building, by breach of the implied covenant, since government action pending the out- the surrounding circumstances im- come of a criminal prosecution. The plied that there would be career-long records may be essential evidence, or employment. (See: implied) the money or property may be forfeit

201 improvement

to the state as in illegal drug cases. out or escapes after the trial has (See: forfeit, forfeiture) begun, since the accused has thus waived the constitutional right to face improvement: n. any permanent one’s accusers. During the war crimes

structure on real property, or any trials following World War II, it was work on the property (such as plant- employed against Nazis who had coming trees) which increases its value. mitted atrocities and then disappeared, the most famous being Martin impute: v. 1) to attach to a person Bormann, Hitler’s closest aide. responsibility (and therefore financial liability) for acts or injuries to in camera : adj. or adv. phrase. Latin another, because of a particular re- for “in chambers.” This refers to a lationship, such as mother to child, hearing or discussions with the judge guardian to ward, employer to em- in the privacy of his chambers (office ployee or business associates. Ex- rooms) or when spectators and jurors ample: a 16-year-old boy drives his have been excluded from the court- father’s car without a license and room. (See: in chambers) runs someone down. The child’s

negligence may be imputed to the incapacity: adj. 1) not being able to parent, or, in the reverse, a mother perform any gainful employment due drives her car and collides with a to congenital disability, illness (in- truck driven over the speed limit, cluding mental), physical injury, ad- and her baby in the front seat of vanced age or intellectual deficiency. the car is badly injured, in part This is significant in claims for work- due to not being put in a safety er’s compensation, disability insur- seat with a seat belt. The mother’s ance, or Social Security claims under negligence can be imputed to the “SSL” 2) lacking the ability to under- child in any claim on behalf of the stand one’s actions in making a will, child against the truck driver. 2) to executing some other document or attribute knowledge and/or notice entering into an agreement. A chal- to a person only because of his/her lenge to the validity of a will often relationship to the one actually turns on a claim that the person (now possessing the information. Exam- dead and unable to testify) lacked the ple: if a partner in a business is incapacity to understand what he/she formed of something, that knowl- owned, who were the “natural objects edge is imputed to his/her partner, of his/her bounty” (close relatives pri- and the partner is expected to have marily), that no one was able to dom- the information also. (See: vicari- inate the testator’s (will writer’s) ous liability) judgment so as to exert “undue influence.” Mental weakness may show in absentia-, (in ab-sensh-ee-ah) adj. lack of capacity to make a will, as can or adv. phrase. Latin for “in ab- fear, intimidation or persistent

sence,” or more fully, in one’s ab- drunkenness. Example: an old lady is sence. Occasionally a criminal trial kept well supplied with whiskey for is conducted without the defendant several months by her greedy sisters, being present when he/she walks who finally convince her to change

202 income tax

the will from benefiting her chil- something which has begun but has dren to benefiting them when she not been completed, either an activity is drunk and fearful they will cut or some object which is incomplete. It off her supply. A court would proba- may define a potential crime like a bly find she had lacked capacity to conspiracy which has been started but decide to make the latest version of not perfected or finished (buying the the will. (See: incompetent) explosives, but not yet blowing up the bank safe), a right contingent on an incest: n. sexual intercourse between event (receiving property if one out- close blood relatives, including lives the grantor of the property) or a brothers and sisters, parents and decision or idea which has been only children, grandparents and grand- partially considered, such as a con- children, or aunts or uncles with tract which has not been formalized.

nephews or nieces. It is a crime in all states, even if consensual by both incidental beneficiary: n. someone

parties. However, it is often co-exis- who obtains a benefit as the result of tent with sexual abuse since usually the main purpose of the trust. Exam- the younger person is a victim of the ple: the co-owner of property with a predatory sexual activities of an named beneficiary may benefit from

older relative. Recently, it has drawn moneys provided to improve the build- more attention as people began talking they jointly own, or a grandchild ing about the “silent crime,” which is might benefit from his/her parent re- often covered up by a wife fearful of ceiving a gift which could be used by losing a husband, or the memory has the entire family, or which he/she may been suppressed by the youthful vic- inherit from the parent. (See: benefi-

tims. One problem is that on the sur- ciary, trust) face the family may appear to be “All-American” while abusive incest income: n. money, goods or other eco- continues. In 18 states incest also nomic benefit received. Under income includes copulation or cohabitation tax laws, income can be “active” between first cousins, but the major- through one’s efforts or work (includ- ity of jurisdictions permit marriage ing management) or “passive” from between such cousins. The rationale rentals, stock dividends, investments for prohibition of first cousin mar- and interest on deposits in which riages is not so much moral as the there is neither physical effort nor fear of proliferation of mental or management. For tax purposes, in- physical weakness due to the joining come does not include gifts and inher- of recessive family genes carrying itances received. Taxes are collected such weaknesses. based on income by the federal government and most state governments. in chambers: adj. referring to discussions or hearings held in the judge’s income tax: n. a tax on an individual’s

office, called his chambers. It is also net income, after deductions for vari- called “in camera.” (See: in camera) ous expenses and payments such as charitable gifts, calculated on a for- inchoate: adj. or adv. referring to mula which takes into consideration

203 incompatible

whether it is paid jointly by a mar- and/or represented by an attorney. ried couple, the number of depen- (See: incompetent). dents of the taxpayers, special

breaks for ages over 65, disabilities incompetent: adj. 1) referring to a per- and other factors. Federal income son who is not able to manage his/her taxes have been collected since 1913 affairs due to mental deficiency (low when they were authorized by the I.Q., deterioration, illness or psychosis) 16th Amendment to the Constitu- or sometimes physical disability. Being tion. Most states also assess income incompetent can be the basis for ap- taxes, but at a substantially lower pointment of a guardian or conserva- rate than that of the federal govern- tor (after a hearing in which the party ment. (See: income, tax) who may be found to be incompetent has been interviewed by a court inves- incompatible: adj. 1) inconsistent. 2) tigator and is present and/or repre- unmatching. 3) unable to live to- sented by an attorney) to handle gether as husband and wife due to his/her person and/or affairs (often irreconcilable differences. In no- called “estate”). 2) in criminal law, the fault divorce states, if one of the inability to understand the nature of a

spouses desires to end the marriage, trial. In these cases the defendant is that fact proves incompatibility, and usually institutionalized until such a divorce (dissolution) will be grant- time as he/she regains sanity and can ed even though the other spouse be tried. 3) a generalized reference to does not want a divorce. The term evidence which cannot be introduced also has the general meaning that because it violates various rules two people do not get along with against being allowed, particularly be-

each other. (See: incompatibility) cause it has no bearing on the case. It

may be irrelevant (not sufficiently sig- incompatibility: n. the state of a nificant) or immaterial (does not mat- marriage in which the spouses no ter to the issues). (See: conservatee, longer have the mutual desire to conservator, guardian, incompe- live together and/or stay married, tency, incompetent evidence) and is thus a ground for divorce

(dissolution) in most states even incompetent evidence: n. testimony, though one spouse may disagree. documents or things which one side (See: incompatible, irreconcil- attempts to present as evidence durable differences) ing trial, which the court finds (usually after objection by the opposition) incompetency: n. the condition of are not admissible because they are lacking the ability to handle one’s irrelevant or immaterial to the issues affairs due to mental or physical in the lawsuit. Thus, trial lawyers incapacity. Before a condition of in- often object with: “incompetent, irrele- competency is officially declared by vant and immaterial,” figuring that a court, a hearing must be held covers the waterfront of most objec- with the person who is involved tions. (See: incompetent, objection) interviewed by a court investiga-

tor; the person must be present incontrovertible evidence: n. evi-

204 incumbrance

dence introduced to prove a fact in a federal non-profit recognition, both of trial which is so conclusive, that by which require detailed explanations no stretch of the imagination can of the intended operation of the orga- there be any other truth as to that nization. 2) to include into a unit. matter. Examples: a fingerprint (See: corporation, incorporate by which shows someone had been pre- reference, incorporation, stock) sent in a room, or a blood test which

scientifically proves that a person is incorporate by reference: v. to in- not the parent of a child. clude language from another document or elsewhere in a document by incorporate: v. 1) to obtain an offi- reference rather than repeat it. Typi- cial charter or articles of incorpora- cal language: “Plaintiff incorporates tion from the state for an organiza- by reference all of the allegations tion, which may be a profit-making contained in the First and Second business, a professional business Causes ofAction hereinabove stated.” such as a law office or medical office or a non-profit entity which oper- incorporation: n. the act of incorpo- ates for charitable, social, religious, rating an organization. (See: corpo- civic or other public service purpos- ration, incorporate) es. The process includes having one or more incorporators (most states incorporeal: adj. referring to a thing require a minimum of three for which is not physical, such as a right. profit-making companies) choose a This is distinguished from tangible. name not currently used by (nor confusingly similar to) any corpora- The law is the last remit of tion, prepare articles, determine human wisdom acting upon who will be responsible for accept- human experience for the ben- ing service of process, decide on the efit of the public. stock structure, adopt a set of by- —Samuel Johnson laws, file the articles with the Sec- retary of State of the state of incor-

poration, and hold a first meeting of incriminate: v. to make a statement incorporators to launch the enter- in which one admits that he/she has prise. Other steps follow such as committed a crime or gives informa- electing a board of directors, select- tion that another named person has ing officers, issuing stock according committed a crime. Under the Fifth to state laws and, if there is going to Amendment to the Constitution, a be a stock offering to the public, fol- person cannot be forced to give any lowing the regulations of the Secu- information which would tend to in- rities and Exchange Commission criminate himself/herself. Thus, and/or the State Corporations Com- he/she can refuse to answer any missioner. If the corporation is non- question which he/she feels might be profit, it will have to apply for non- a self-accusation or lead to informa- profit status with the home state, tion which would be so. and may, if desired, also apply to the Internal Revenue Service for incumbrance: n. (See: encumbrance)

205 indecent exposure

indecent exposure: n. the crime of works regularly for an employer. The displaying one’s genitalia to one or exact nature of the independent con- more other people in a public place, tractor’s relationship with the party usually with the apparent intent to hiring him/her/it has become vital shock the unsuspecting viewer and since an independent contractor give the exposer a sexual charge. pays his/her/its own Social Security, income taxes without payroll deduc- indefeasible: adj. cannot be altered tion, has no retirement or health or voided, usually in reference to an plan rights, and often is not entitled interest in real property. to worker’s compensation coverage. Public agencies, particularly the In- indemnify: v. to guarantee against ternal Revenue Service, look hard at any loss which another might suffer. independent contractor agreements Example: two parties settle a dis- when it appears the contractor is pute over a contract, and one of much like an employee. An indepen- them may agree to pay any claims dent contractor must be able to de-

which may arise from the contract, termine when and where work is holding the other harmless. (See: performed, be able to work for oth- hold harmless) ers, provide own equipment and other factors which are indicative of indemnity: n. the act of making true independence. (See: employee) someone “whole” (give equal to what they have lost) or protected indeterminate sentence: n. the from (insured against) any losses prison term imposed after conviction which have occurred or will occur. for a crime which does not state a (See: indemnify) specific period of time or release date, but just a range of time, such indenture: n. a type of real property as “five-to-ten years.” It is one side of

deed in which two parties agree to a continuing debate as to whether it continuing mutual obligations. One is better to make sentences absolute party may agree to maintain the (subject to reduction for good behav- property, while the other agrees to ior) without reference to potential re- make periodic payments. 2) a con- habilitation, modification or review tract binding one person to work for in the future. (See: sentence) another. 3) v. to bind a person to work for another. indicia: n. (in-dish-yah) from Latin for “signs,” circumstances which independent contractor: n. a per- tend to show or indicate that some- son or business which performs thing is probable. It is used in the services for another person or enti- form of “indicia of title,” or “indicia ty under a contract between them, of partnership,” particularly when with the terms spelled out such as the “signs” are items like letters, cer- duties, pay, the amount and type of tificates or other things that one work and other matters. An inde- would not have unless the facts were pendent contractor is distin- as the possessor claimed. (See: cir- guished from an employee, who cumstantial evidence)

206 indorsement indictable offense: n. a crime (of- the appropriate court for trial. (See: fense) for which a Grand Jury rules felony, Grand Jury, indictable of- that there is enough evidence to fense, preliminary hearing) charge a defendant with a felony (a

crime punishable by death or a indigent: 1) n. a person so poor and term in the state penitentiary). needy that he/she cannot provide the These crimes include murder, necessities of life (food, clothing, de- manslaughter, rape, kidnapping, cent shelter) for himself/herself. 2) n. grand theft, robbery, burglary, one without sufficient income to af- arson, conspiracy, fraud and other ford a lawyer for defense in a crimi-

major crimes, as well as attempts to nal case. If the court finds a person is commit them. (See: indictment) an indigent, the court must appoint a public defender or other attorney indictment: n. a charge of a felony to represent him/her. This constitu- (serious crime) voted by a Grand tional right of counsel for the indi-

Jury based upon a proposed charge, gent was determined by Gideon v. witnesses’ testimony and other evi- Wainright in 1963, when a penciled dence presented by the public pros- letter from a prisoner came to the at- ecutor (District Attorney). To bring tention of prominent Washington at- an indictment the Grand Jury will torney Abe Fortas, who carried the not find guilt, but only the probabil- case to the Supreme Court for free. ity that a crime was committed, Fortas later became an Associate that the accused person did it and Justice of the Supreme Court. 3) adj. that he/she should be tried. District referring to a person who is very Attorneys often only introduce key poor and needy. facts sufficient to show the probability, both to save time and to avoid indispensable party: n. a person or revealing all the evidence. The entity which must be included in a Fifth Amendment to the U.S. Con- lawsuit so that the court can make a stitution provides that “No person final judgment or order that will con- shall be held to answer for a capital, clude the controversy. Example: Ned or otherwise infamous crime, un- Neighbor brings an action to enforce less on presentment of a Grand his claimed right to cross the proper- Jury....” However, while grand ju- ty of Oliver and Olivia Owner, but ries are common in charging feder- only names Oliver as a defendant. To al crimes, many states use grand make it possible for the court to juries sparingly and use the crimi- order the property owners to honor nal complaint, followed by a “pre- Ned’s easement, Olivia as a co-owner liminary hearing” held by a lower is an indispensable party. The proce- court judge or other magistrate, dural solution is for Neighbor to who will determine whether or not amend his complaint or petition to the prosecutor has presented suffi- join Olivia as a defendant. cient evidence that the accused has

committed a felony. If the judge indorse: v. (See: endorse) finds there is enough evidence,

he/she will order the case sent to indorsement: n. (See: endorsement)

207 in extremis

in extremis: (in ex-tree-miss) adj. criminal charge brought by the public from Latin, facing imminent death. prosecutor (District Attorney) without a Grand Jury indictment. This “infor- infancy: n. although the popular use mation” must state the alleged crimes of the word means the early years of in writing and must be delivered to age up to seven, in law, it is under- the defendant at the first court ap- age or minority. Historically this pearance (arraignment). If the accusa- meant under 21 years, but statutes tion is for a felony, there must be a adopted in almost all states end mi- preliminary hearing within a short nority and infancy at 18. An “infant” period (such as five days) in which the cannot file a lawsuit without a prosecution is required to present “guardian ad litem.” (one-purpose enough evidence to convince the judge guardian) acting for him/her, in holding the hearing that the crime or most states cannot marry without crimes charged were committed and parental permission, and cannot the defendant is likely to have com- enter into a contract that is enforce- mitted them. If the judge becomes able during his/her minority. (See: convinced, the defendant must face litem ad , minority) trial, and if the judge does not, the

case against the defendant is dis-

in fee simple: adj. referring to hold- missed. Sometimes it is a mixed bag, ing clear title to real property. (See: in that some of the charges in the in- fee, fee simple) formation are sufficient for trial and the case is sent (remanded) to the ap- inference: n. a rule of logic applied to propriate court, and some are dis- evidence in a trial, in which a fact is missed. (See: accusation, charge, “proved” by presenting other “facts” felony, Grand Jury, indictment, which lead to only one reasonable preliminary hearing) conclusion—that ifA and B are true,

then C is. The process is called “de- information and belief: n. a phrase duction” or “deductive reasoning” often used in legal pleadings (com- and is a persuasive form of circum- plaints and answers in a lawsuit), de- stantial evidence. (See: circum- clarations under penalty of perjury, stantial evidence) and affidavits under oath, in which the person making the statement or

in forma pauperis: (in form-ah allegation qualifies it. In effect, he/she

paw-purr-iss) adj. or adv. Latin for says: “I am only stating what I have

“in the form of a pauper,” referring been told, and I believe it.” This to a party to a lawsuit who gets fil- makes clear about which statements ing fees waived by filing a declara- he/she does not have sure-fire, person- tion of lack of funds (has no money al knowledge (perhaps it is just to pay). These declarations are hearsay or surmise) and protects the most often found in divorces by maker of the statement from claims of young marrieds or poor defendants outright falsehood or perjury. The typ-

who have been sued. ical phraseology is: “Plaintiff is informed and believes, and upon such information: n. an accusation or information and belief, alleges that

208 inherit

defendant diverted the funds to his copyrights (protected writings or own use.” (See: affidavit, answer, graphics), the improper use of a complaint, declaration, perjury) patent, writing, graphic or trademark without permission, without notice, informed consent: n. agreement to and especially without contracting for do something or to allow something payment of a royalty. Even though to happen only after all the relevant the infringement may be accidental facts are known. In contracts, an (an inventor thinks he is the first to agreement may be reached only if develop the widget although someone there has been full disclosure by else has a patent), the party infring- both parties of everything each ing is responsible to pay the original party knows which is significant to patent or copyright owner substantial the agreement. A patient’s consent damages, which can be the normal to a medical procedure must be royalty or as much as the infringers’ based on his/her having been told accumulated gross profits. (See: all the possible consequences, ex- copyright, patent, plagiarism, cept in emergency cases when such royalty, trademark) consent cannot be obtained. A physician or dentist who does not tell all ingress: 1) n. entrance. 2) n. the right

the possible bad news as well as the to enter. 3) v. the act of entering. good, operates at his/her peril of a Often used in the combination lawsuit if anything goes wrong. In “ingress and egress,” which means criminal law, a person accused or entering and leaving, to describe one’s even suspected of a crime cannot rights to come and go under an ease- give up his/her legal rights such as ment over another’s property. (See: remaining silent or having an attor- easement, egress) ney, unless he/she has been fully informed of his/her rights. (See: con- in haec verba: (in hike verb-ah) prep. sent, Miranda warning) Latin for “in these words,” which refers to stating the exact language of

infra : prep. Latin for “below,” this is an agreement in a complaint or other legal shorthand to indicate that the pleading rather than attaching a copy details or citation of a case will come of the agreement as an exhibit incor- later on in the brief. Infra is distin- porated into the pleading. (See: com- guished from supra, which shows plaint, pleading) that a case has already been cited

“above.” The typical language is inherit: v. to receive all or a portion of

Jones v. McLaughlin, infra, mean- the estate of an ancestor upon ing the exact citation of the case, in- his/her death, usually from a parent cluding volume and page number, or other close relative pursuant to will follow later in the document. the laws of descent. Technically, one (See: citation, cite) would “inherit” only if there is no

will, but popularly it means any tak- infringement: n. 1) a trespassing or ing from the estate of a relative, in- illegal entering. 2) in the law of cluding a wife or husband, by will or patents (protected inventions) and not. (See: descent and distribution,

209 inheritance

heir, heiress, intestacy, intes- which an injunction is one of the tate succession, will) parts of the plaintiff’s demands (in the “prayer”). A final and continuing inheritance: n. whatever one re- injunction is called a permanent in- ceives upon the death of a relative junction. Examples of injunctions in- due to the laws of descent and dis- clude prohibitions against cutting tribution, when there is no will. trees, creating nuisances, polluting a However, inheritance has come to stream, picketing which goes beyond mean anything received from the the bounds of free speech and assem- estate of a person who has died, bly, or removing funds from a bank whether by the laws of descent or as account pending determination of a beneficiary of a will or trust. (See: ownership. So-called “mandatory” in- descent and distribution, heir, junctions which require acts to be heiress, inherit, intestacy, intes- performed, may include return of tate succession, will) property, keeping a gate to a road un- locked, clearing off tree limbs from a injunction: n. a writ (order) issued right-of-way, turning on electricity or by a court ordering someone to do heat in an apartment building, or de- something or prohibiting some act positing disputed funds with the after a court hearing. The proce- court. (See: injunctive relief, writ) dure is for someone who has been or is in danger of being harmed, or injunctive relief: n. a court-ordered needs some help (relief) or his/her act or prohibition against an act or attorney, to a) petition for the in- condition which has been requested, junction to protect his/her rights; to and sometimes granted, in a petition b) get an “order to show cause” to the court for an injunction. Such an from the judge telling the other act is the use of judicial (court) au- party to show why the injunction thority to handle a problem and is not should not be issued; c) serve (per- a judgment for money. Whether the sonally delivered) the order to show relief will be granted is usually argued cause on the party whom he/she by both sides in a hearing rather than wishes to have ordered to act or be in a full-scale trial, although some- restrained (“enjoined”); partake in times it is part of a lawsuit for dam- a hearing in which both sides at- ages and/or contract performance. tempt to convince the judge why Historically, the power to grant in- the injunction should or should not junctive relief stems from English eq- be granted. If there is danger of im- uity courts rather than damages from mediate irreparable harm at the law courts. (See: equity, injunction, time the petition is filed, a judge permanent injunction, restrain- may issue a temporary injunction ing order, writ)

which goes into effect upon it being served (deliver or have delivered) injury: n. any harm done to a person by to the other party. This temporary the acts or omissions of another. In- injunction will stay in force until jury may include physical hurt as well the hearing or sometimes until the as damage to reputation or dignity, outcome of a lawsuit is decided in loss of a legal right or breach of

210 innocent

contract. If the party causing the in- recipients. The “in kind” provision jury was either willful (intentionally may avoid the potential low value re- causing harm) or negligent then turns from estate sales and the cost of he/she is responsible (liable) for pay- real estate commissions. (See: distri- ment of damages for the harm bution, trust, will) caused. Theoretically, potential or continuing injury may be prevented in lieu: prep, instead. “In lieu taxes” by an order of the court upon a peti- are use taxes paid instead of sales tion for an injunction. (See: dam- tax. A “deed in lieu of foreclosure” oc- ages, injunction, injunctive re- curs when a debtor just deeds the lief, negligence) property securing the loan to the lender rather than go through the in kind: adj. referring to payment, foreclosure process. distribution or substitution of

things in lieu of money, a combina- in limine : (in lim-in-ay) from Latin for tion of goods and money, or money “at the threshold,” referring to a mo- instead of an article. It is an ex- tion before a trial begins. A motion pression often found in wills and to suppress illegally obtained evi- trusts, which empowers the execu- dence is such a motion. (See: motion tor or trustee to make distribution to suppress) to beneficiaries “in kind” according

to his/her discretion as long as the in loco parentis: prep, (in loh-coh pah- value is equivalent to the value in- rent-iss) Latin for “instead of a par- tended to be given to each benefi- ent” or “in place of a parent,” this ciary. This is important since it al- phrase identifies a foster parent, a lows distribution of furniture, heir- county custodial agency or a boarding looms, stocks and bonds, automo- school which is taking care of a minor, biles or even real property (as well including protecting his/her rights.

as money) among the beneficiaries Thus, Boys’ Town is legally in loco par- without selling assets to get cash. entis to Johnny Boarder, aged 15, if Example: Edward Doright dies and when he needs legal help. with a will that leaves his estate equally to his two daughters and innocent: adj. without guilt (not a son. He has a house worth guilty). Usually the plea which an ac- $150,000, cash of $100,000, art cused criminal defendant gives to the works valued at $50,000, two cars court at the time of his/her first ap- at $10,000 each, $150,000 in stocks, pearance (or after a continued appear- and jewelry appraised at $25,000. ance). Such pleas often disturb the Since the total value is $495,000, public in cases in which guilt seems the executor can thus divide this up obvious from the start. However, by giving each child things and everyone is entitled to a fair trial, and money valued at $165,000. The one the innocent plea gives defense taking the house would then get a lawyers an opportunity to investigate, car and $5,000 cash, etc. In this find extenuating circumstances, de- way gifts can be distributed most velop reasons punishment should be appropriately to the needs of the lenient, bargain with the District

211 innuendo

Attorney, and let the memories of in personam: adj. (in purr-soh-nam) witnesses fade. (See: arraignment, from Latin for “directed toward a par- guilt, plea, plea bargain) ticular person.” In a lawsuit in which the case is against a specific individ- innuendo: n. from Latin innuere, ual, that person must be served with a

“to nod toward.” In law it means summons and complaint to give the “an indirect hint.” “Innuendo” is court jurisdiction to try the case, and used in lawsuits for defamation the judgment applies to that person (libel or slander), usually to show and is called an “in personam judg- that the party suing was the per- ment.” In personam is distinguished son about whom the nasty state- from in rem, which applies to property ments were made or why the com- or “all the world” instead of a specific

ments were defamatory. Example: person. This technical distinction is

“the former Mayor is a crook,” and important to determine where to file a Joe Alabaster is the only living ex- lawsuit and how to serve a defendant. Mayor, thus by innuendo Alabaster In personam means that a judgment is the target of the statement; or can be enforceable against the person

“Joe Alabaster was paid $100,000 wherever he/she is. On the other by the Hot Springs Water Compa- hand, if the lawsuit is to determine

ny,” when it was known that Hot title to property (in rem) then the ac- Springs was bucking for a contract tion must be filed where the property with the city. The innuendo is that exists and is only enforceable there. Alabaster took a bribe. (See: (See: in rem, jurisdiction) defamation, libel, slander)

in pro per : adj. short for in propria per-

in pari delicto : adv. (in pah-ree dee- sona. (See: in propria persona ) lick-toe) Latin for “in equal fault,” which means that two (or more) in propria persona: adj. from Latin people are all at fault or are all “for one’s self,” acting on one’s own

guilty of a crime. In contract law, if behalf, generally used to identify a the fault is more or less equal then person who is acting as his/her own neither party can claim breach of attorney in a lawsuit. The popular the contract by the other; in an acci- abbreviation is “in pro per.” In the dent, neither can collect damages, filed legal documents (pleadings), the unless the fault is more on one than party’s name, address and telephone the other under the rule of “compar- number are written where the name, ative negligence”; in defense of a address and telephone number of the criminal charge, one defendant will attorney would normally be stated. have a difficult time blaming the The words “in propria persona” or “in other for inducing him or her into pro per” are typed where normally

the criminal acts if the proof is that it would say “attorney for plaintiff.” both were involved. Judges sometimes warn a party “in propria persona ” of the old adage that in perpetuity: adj. forever, as in “anyone who represents himself in one’s right to keep the profits from court has a fool for a client and an ass the land in perpetuity. for an attorney.”

212 )

insanity

determines which court has jurisdic- Two skillful lawyers are like two tion and enforcement of a judgment experts at any game of skill or must be upon the property and does endurance, and the result is, not follow a person. “In rem” is differ- that the clearest case becomes at ent from “in personam,” which is di- least somewhat doubtful, and rected toward a particular person. the event quite problematical (See: in personam —Irving Brown, Legal Recre- ations insanity: n. mental illness of such a severe nature that a person cannot dis- inquest: n. 1) an investigation and/or tinguish fantasy from reality, cannot a hearing held by the coroner (a conduct her/his affairs due to psy-

county official) when there is a vio- chosis, or is subject to uncontrollable

lent death either by accident or impulsive behavior. Insanity is distin- homicide, the cause of death is not guished from low intelligence or men- immediately clear, there are myste- tal deficiency due to age or injury. If a rious circumstances surrounding the complaint is made to law enforcement, death, or the deceased was a prison- to the District Attorney or to medical

er. Usually an autopsy by a qualified personnel that a person is evidencing medical examiner from the coroner’s psychotic behavior, he/she may be con- office is a key part of the inquest. In fined to a medical facility long enough rare cases a jury may be used to de- (typically 72 hours) to be examined by termine the cause of death. 2) a term psychiatrists who submit written re- used in New York for a hearing on ports to the local superior/county/dis- the validity of a will by a surrogate trict court. A hearing is then held be- judge. (See: coroner) fore a judge, with the person in question entitled to legal representation, to in re: prep, short for “in regard to” or determine if she/he should be placed

concerning. Often “in re” is found in an institution or special facility. The near the top of lawyers’ letters to person ordered institutionalized at identify the subject matter, as “In the hearing may request a trial to de-

re Matheson v. Roth,” or “In re Es- termine sanity. Particularly since the tate ofRuth Bentley.” It is also used original hearings are often routine in naming legal actions in which with the psychiatric findings accepted there is only one party, the peti- by the judge. In criminal cases, a plea tioning party, as in “In re Adoption of “not guilty by reason of insanity” of Marcus McGillicuddy.” will require a trial on the issue of the defendant’s insanity (or sanity) at the in rem: adj. from Latin “against or time the crime was committed. In about a thing,” referring to a lawsuit these cases the defendant usually or other legal action directed toward claims “temporary insanity” (crazy property, rather than toward a par- then, but okay now). The traditional

ticular person. Thus, if title to prop- test of insanity in criminal cases is erty is the issue, the action is whether the accused knew “the differ- “in rem.” The term is important ence between right and wrong,” fol- since the location of the property lowing the “M’Naughten rule” from

213 insanity defense

19th century England. Most states privy to confidential information (such require more sophisticated tests as future changes in management, up- based on psychiatric and/or psycho- coming profit and loss reports, secret logical testimony evaluated by a sales figures and merger negotiations) jury of laypersons or a judge with- which will affect the value of stocks or

out psychiatric training. A claim by bonds. While there is nothing wrong a criminal defendant of his/her in- with being an insider, use of the confi- sanity at the time of trial requires a dential information unavailable to separate hearing to determine if a the investing public in order to profit defendant is sufficiently sane to un- through sale or purchase of stocks or derstand the nature of a trial and bonds is unethical and a crime under participate in his/her own defense. the Securities and Exchange Act. (See: If found to be insane, the defendant insider trading) will be ordered to a mental facility,

and the trial will be held only if Decency, security and liberty sanity returns. Sex offenders may alike demand that government be found to be sane for all purposes officials shall be subjected to except the compulsive dangerous the same rules of conduct that and/or antisocial behavior. They are are commands to the citizen. usually sentenced to special facili- —Justice Louis D. Brandeis ties for sex offenders, supposedly with counseling available. However, there are often maximum terms re- insider trading: n. the use of confi- lated to the type of crime, so that p- dential information about a business arole and release may occur with gained through employment in a no proof of cure of the compulsive company or a stock brokerage, to buy desire to commit sex crimes. (See: and/or sell stocks and bonds based insanity defense, IVrNaughten on the private knowledge that the rule, temporary insanity) value will go up or down. The victims are the unsuspecting investing insanity defense: n. the claim of a public. It is a crime under the Secu- defendant in a criminal prosecution rities and Exchange Act, for which that he/she was insane when the Ivan Boesky and others have been crime was committed, usually only sentenced to prison for relatively temporarily. (See: insanity, tempo- short terms and only small fines, rary insanity) considering the percentage impact on their accumulated wealth. Joseph insertion: n. the addition of lan- P. Kennedy, father of President John guage at a place within an existing F. Kennedy, made much of his for- typed or written document, which tune in the 1920s by insider trading is always suspect unless initialled before it was a crime. When the Se- by all parties. curities and Exchange Commission was created in the early days of the insider: n. someone who has a posi- New Deal (1933), President Franklin tion in a business or stock broker- D. Roosevelt appointed Kennedy to

age, which allows him/her to be the Commission on the theory that it

214 instrument

took an insider to catch insiders. extensive pre-trial information. Such (See: insider) exchanges of documents can lead to settlement, minimize surprises at insolvency: n. 1) the condition of hav- trial and keep one side from hiding ing more debts (liabilities) than total material, thus preventing the other assets which might be available to from being able to introduce relevant

pay them, even if the assets were material at trial. However, it is well mortgaged or sold. 2) a determina- known that many law firms obfuscate, tion by a bankruptcy court that a delay, pretend to misunderstand re- person or business cannot raise the quests and fail to be forthcoming. funds to pay all of his/her debts. The (See: discovery, evidence, subpena court will then “discharge” (forgive) duces tecum, trial) some or all of the debts, leaving

those creditors holding the bag and installment contract: n. an agreement not getting what is owed them. The in which payments of money, delivery supposedly insolvent individual of goods or performance of services are debtor, even though found to be to be made in a series of payments, de- bankrupt, is allowed certain exemp- liveries or performances, usually on tions, which permit him/her to re- specific dates or upon certain happen- tain a car, business equipment, per- ings. One significance is that failure to sonal property and often a home as pay an installment when due is a long as he/she continues to make breach in which damages can be as- payments on a loan secured by the sessed based on the portion which has property. (See: bankruptcy) not been paid, and is an excuse for the other party not to perform further. In inspection of documents: n. the many installment contracts, failure to right to examine and copy the op- make a payment gives the seller of an

posing party’s papers in a lawsuit article the right to repossess (take it which are relevant to the case. A de- back). (See: anticipatory breach, mand (legal request) may be made, breach, consideration, contract, but the categories of documents failure of consideration) must be stated so that the other party can know what he/she must instruction: n. an explanation of the produce. If the opposition either re- law governing a case which the judge fuses to produce some documents or gives orally to the jury after the attor-

appears to hold back, the party neys have presented all the evidence wanting to see the documents can and have made final arguments, but bring a “motion to produce” request- before the jury begins deliberations. ing a court order to produce and a

penalty (sanctions) to be paid for instrument: n. 1) a written legal doc- failure to honor the demand. A party ument such as a contract, lease, may also use a subpena duces tecum deed, will or bond. 2) an object used to obtain specific documents if they to perform some task or action, rang- are known to exist. All of these pro- ing from a surgeon’s scalpel to any cedures are part of the discovery hard thing used in an assault (a process, intended to give both sides blunt instrument).

215 insufficient evidence

insufficient evidence: n. a finding not included in the probate of a dead (decision) by a trial judge or an ap- person’s estate, but the funds may be peals court that the prosecution in a counted by the Internal Revenue Ser- criminal case or a plaintiff in a law- vice in calculating estate tax. Insur- suit has not proved the case because ance companies may refuse to pay a the attorney did not present enough claim by a third party against an in- convincing evidence. Insufficient ev- sured, but at the same time may be idence usually results in dismissal of required to assume the legal defense the case after the prosecution or the (pay attorney’s fees or provide an at- plaintiff has completed his/her intro- torney) under the doctrine of “reser- duction of evidence or, if on appeal, vation of rights.” (See: insured, in- reversal of the judgment by the trial surer, reservation, uninsured court. (See: evidence, finding) motorist clause, Workers’ Com- pensation Acts) insurance: n. a contract (insurance

policy) in which the insurer (insur- insured: n. 1) the person or entity who ance company) agrees for a fee (in- will be compensated for loss by an insurance premiums) to pay the insurer under the terms of a contract sured party all or a portion of any called an insurance policy. 2) the per-

loss suffered by accident or death. son whose life is insured by life insur- The losses covered by the policy ance, after whose death the benefits may include property damage or go to others. (See: insurance) loss from accident, fire, theft or intentional harm; medical costs insurer: n. an insurance company and/or lost earnings due to physical which agrees to pay someone who injury; long-term or permanent pays them for insurance for losses suf- loss of physical capacity; claims by fered pursuant to the terms of an in- others due to the insured’s alleged surance policy. For this benefit the negligence (e.g. public liability auto customer pays the company a fee, insurance); loss of a ship and/or called a premium. (See: insurance) cargo; finding a defect in title to real property; dishonest employees; intangible property: n. items such or the loss of someone’s life. Life in- as stock in a company which repre- surance may be on the life of a sent value but are not actual, tangi- spouse, a child, one of several busi- ble objects. ness partners or an especially im-

portant manager (“key man” insur- integration: n. 1) adopting a writing ance), all of which is intended to as part of an agreement, e.g. “the provide for survivors or to ease the parties agree that Robert’s Rules of

burden created by the loss of a fi- Order shall be the procedural rules nancial contributor. So-called employed during negotiations.” 2) re- “mortgage” insurance is life insur- moving barriers to schooling, housing ance which will pay off the remain- and employment which formerly seg- ing amount due on a home loan on regated races, particularly blacks the death of the husband or wife. and sometimes Hispanics, from the Life insurance proceeds are usually general society, dominated by whites

216 —

interlineation

in the United States. Integration est is usually stated in writing at the includes encouragement of free and time the money is loaned. There are equal association, equal access to variable rates of interest, particularly public facilities and housing in any on savings accounts which depend on neighborhood, equitable employ- funding from the Federal Reserve or ment, promotions and pay levels, other banks and are controlled by the as well as racial mix in schools. prevailing interest rates on those funds. Maximum interest rates on intent: n. mental desire and will to loans made by individuals are con- act in a particular way, including trolled by statute. To charge more wishing not to participate. Intent is than that rate is usury, the penalty a crucial element in determining if for which may be the inability of a certain acts were criminal. Occa- creditor to collect through the courts. sionally a judge or jury may find The interest rates demanded by lend- that “there was no criminal intent.” ing institutions are not so restricted. Example: lack of intent may reduce The maximum legal interest often

a charge of manslaughter to a find- granted by the courts on judgments is ing of reckless homicide or other set by the law of the state. Simple in- lesser crime. terest is the annual rate charged for a loan, and compound interest includes inter alia', (in-tur eh-lee-ah) prep. interest upon interest during the Latin for “among other things.” year. 3) one’s involvement in busi- This phrase is often found in legal ness, activities or with an individual pleadings and writings to specify which is sufficient to create doubt one example out of many possibili- about a witness being objective ties. Example: “The judge said, damaging his/her credibility. 4) one’s inter alia, that the time to file the involvement in business, activities or action had passed.” with an individual which is sufficient connection to give a person “standing” interest: n. 1) any and all, partial or (the right based on interest in the out- total right to property or for the use come of the lawsuit or petition) to of property, including Em easement bring a lawsuit on a particular matter to pass over a neighboring parcel of or act on behalf of other people. (See: land, the right to drill for oil, a pos- compound interest, easement, fu- sibility of acquiring title upon the ture interest, personal property, happening of some event, or out- real property, standing) right title. While most often referring to real property, one may have interim order: n. a temporary order of an interest in a business, a bank ac- the court pending a hearing, trial, a count or any article. 2) the financial final order or while awaiting an act by amount (money) paid by someone one of the parties. (See: interlocuto- else for the use of a person’s money, ry decree, restraining order) as on a loan or debt, on a savings

account in a bank, on a certificate of interlineation: n. the act of writing be- deposit, promissory note or the tween the lines of a document, usual- amount due on a judgment. Inter- ly to add something that was omitted

217 interlocutory

or thought of later. The issue (de- international law: n. treaties between bated question) is whether both par- countries; multi-lateral agreements; ties to a document (a contract, for some commissions covering particular example) had agreed upon the addi- subjects, such as whaling or copy- tion or whether the new words were rights; procedures and precedents of part of the document (like a will) the International Court of Justice

when it was signed. Good practice is (“World Court”) which only has juris- either to have all parties initial the diction when countries agree to ap- change at the point of the writing or pear; the United Nations Charter; and have the document re-typed and custom. However, there is no specific then signed. body of law which governs the interac- tion of all nations. (See: World Court)

interlocutory: adj. provisional and not intended to be final. This usu- interpleader: n. the procedure when ally refers to court orders which two parties are involved in a lawsuit are temporary. (See: interlocuto- over the right to collect a debt from a ry decree) third party, who admits the money is owed but does not know which person interlocutory decree: n. a court to pay. The debtor deposits the funds judgment which is temporary and with the court (“interpleads”), asks not intended to be final until either the court to dismiss him/her/it from a) other matters come before the the lawsuit and lets the claimants judge, or b) there is a specified pas- fight over it in court. sage of time to determine if the interlocutory decree (judgment) is interrogation: n. questioning of a “working” (becomes accepted by both suspect or witness by law enforce- parties) and should become final. In- ment authorities. Once a person terlocutory decrees were most com- being questioned is arrested (is a monly used in divorce actions, in “prime” suspect), he/she is entitled to which the terms of the divorce were be informed of his/her legal rights, stated in an interlocutory decree, and in no case may the interrogation which would be in force until a final violate rules of due process. (See: decree could be granted after a peri- due process, fruit of the poiso- od of time (such as one year after nous tree, Miranda warning) serving the divorce petition). The theory was that this would provide interrogatories: n. a set of written for a period in which reconciliation questions to a party to a lawsuit might be possible and would also asked by the opposing party as part test the efficacy of the original order of the pre-trial discovery process. which might be changed upon a mo- These questions must be answered in tion of either party. Interlocutory de- writing under oath or under penalty crees of divorce have been aban- of perjury within a specified time doned as a procedure in most states, (such as 30 days). Several states ask because they seldom had the desired basic “form” interrogatories on a effect and appeared to waste the printed form, with an allowance parties’ time. for “supplemental” interrogatories

218 intervene

specifically relevant to the lawsuit. clause also fails. So a prospective chal- Normal practice is for the lawyers lenger takes his/her chances. The to prepare the questions and for courts have ruled that merely putting the answering party to have help in a claim for moneys due from the es- from his/her/its attorney in under- tate is not a legal challenge to the will

standing the meaning (sometimes itself and is permissible without losing

hidden) of the questions and to the gift. (See: will, will contest) avoid wording in his/her answers which could be interpreted against inter se: (in-tur say) prep. Latin for the party answering. Objections as “among themselves,” meaning that, to relevancy or clarity may be for instance, certain corporate rights raised either at the time the inter- are limited only to the shareholders or rogatories are answered or when only to the trustees as a group. they are used in trial. Most states limit the number of interrogatories interstate commerce: n. commercial that may be asked without the trade, business, movement of goods or court’s permission to keep the money, or transportation from one questions from being a means of state to another, regulated by the fed- oppression rather than a source of eral government according to powers

information. While useful in get- spelled out in Article I of the Constitu- ting basic information, they are tion. The federal government can also much easier to ask than answer regulate commerce within a state and are often intentionally burden- when it may impact interstate move- some. In addition the parties may ment of goods and services and may request depositions (pre-trial ques- strike down state actions which are tioning in front of a court reporter) barriers to such movement under or send “requests for admissions” Chief Justice John Marshall’s decision

which must be answered in writ- in Gibbons v. Ogden (1824). Theoreti- ing. (See: admissions, deposi- cally commerce is regulated by the tion, discovery) Interstate Commerce Commission (I.C.C.) under authority granted by in terrorem clause: (in tehr-roar-em) the Interstate Commerce Act, first en- n. from Latin for “in fear,” a provi- acted by Congress in 1887. This au- sion in a will which threatens that if thority has been diffused among vari- anyone challenges the legality of the ous federal agencies, and the I.C.C.

will or any part of it, then that per- may soon be history. son will be cut off or given only a dol-

lar, instead of getting the full gift intervene: v. to obtain the court’s per- provided in the will. The clause is in- mission to enter into a lawsuit which tended to discourage beneficiaries has already started between other from causing a legal ruckus after the parties and to file a complaint stat- will writer is gone. However, if the ing the basis for a claim in the exist- will is challenged and found to be in- ing lawsuit. Such intervention will valid (due to lack of mental capacity, be allowed only if the party wanting undue influence or failure to have it to enter into the case has some right properly executed), then such a or interest in the suit and will not

219 intervening cause

unduly prejudice the ability of the the fire cause Petrol’s truck to explode, original parties to the lawsuit to sending the fire on the way to Ranch- conduct their case. Example: Little er’s barns and home, which bum Buttercup Butter Co. has been down. Petrol’s negligence is an inter- sued by Market Bag Grocers for vening cause which gets Flameout off

selling below standard butter. Bet- the liability hook. Sometimes this is ter Buy Market has also been buy- called supervening cause or superseding Buttercup’s butter and wishes ing. (See: cause, negligence, super- to intervene (join in the lawsuit) to seding cause) avoid either a loss by Market Bag which would affect Better Buy’s intervention: n. the procedure under possible claim, and also to avoid which a third party may join an on- two separate suits. Or another but- going lawsuit, providing the facts ter company might want to join the and the law issues apply to the in- suit on Buttercup’s side in order to tervenor as much as to one of the ex- put up a united front with Butter- isting contestants. The determina- cup against the markets. (See: in- tion to allow intervention is made by tervention, joinder, multiplici- a judge after a petition to intervene ty of suits) and a hearing on the issue. Interven- tion must take place fairly early in intervening cause: n. an event the lawsuit, shortly after a com- which occurs between the original plaint and answer have been filed improper or dangerous action and and not just before trial since that the damage itself. Thus, the “causal could prejudice one or both parties connection” between the wrong and who have prepared for trial on the damages is broken by the interven- basis of the original litigants. Inter- ing cause. This is a “but for” situa- vention is not to be confused with tion, in which the intervention be- joinder, which involves requiring all comes the real reason harm result- parties who have similar claims to ed. The result is that the person join in the same lawsuit to prevent who started the chain of events is no needless repetitious trials based on longer responsible and will not be the same facts and legal questions, found liable for damages to the in- called multiplicity of actions. (See: jured person. Example: Fred Flame- intervene, joinder, multiplicity out negligently starts a wildfire by of suits) welding on his hay bailer next to a row of haystacks, some hay catches inter vivos: (in-tur veye-vohs) adj. fire, and the fire spreads, heading Latin for “among the living,” usually toward the next-door ranch. Howev- referring to the transfer of property by er, just as the county fire depart- agreement between living persons ment has the fire nearly contained, and not by a gift through a will. It can

Peter Petrol drives his oil truck also refer to a trust ( inter vivos trust) through the fireline against a fire which commences during the lifetime fighter’s orders and stops on the of the person (trustor or settlor) creat- road between Flameout’s property ing the trust as distinguished from a and Richard Rancher’s. Sparks from trust created by a will (testamentary

220 —

intoxication

trust), which comes into existence (See: distribution and descent, in- upon the death of the writer of the testate, probate, will) will. (See: inter vivos trust)

intestate: adj. referring to a situation inter vivos trust: n. a trust created where a person dies without leaving a by a writing (declaration of trust) valid will. This usually is voiced as “he which commences at that time, died intestate,” “intestate estate,” or while the creator (called a trustor or “intestate succession.” (See: intesta- settlor) is alive, sometimes called a cy, intestate succession) “living trust.” The property is then

placed in trust with a trustee (often intestate succession: n. the distribu- the trustor during his/her lifetime) tion when a person dies without leav- and distribution will take place ac- ing a valid will and the spouse and cording to the terms of the trust heirs will take (receive the posses- possibly both during the trustor’s sions) by the laws of descent and dis- lifetime and then upon the trustor’s tribution and marital rights in the es- death. This is different from a testa- tate which may apply to a surviving mentary trust, which is created by spouse. Collectively these are called the terms of a will and places some the laws of intestate succession. (See: assets from the dead person’s estate intestacy, intestate) in a trust to exist from the date of death and until fully distributed. in toto: (in toe-toe) adj. Latin for “com- (See: declaration of trust, inter pletely” or “in total,” referring to the vivos, testamentary trust, trust) entire thing, as in “the goods were destroyed in toto,” or “the case was dis- intestacy: n. the condition of having missed in toto.” died without a valid will. In such a

case if the dead party has property intoxication: n. 1) the condition of it will be distributed according to being drunk as the result of drinking statutes, primarily by the law of de- alcoholic beverages and/or use of nar- scent and distribution and others cotics. In the eyes of the law this def- dealing with marital property and inition may differ depending on the community property. In probate the situation to which it is applied. 2) as administration of the estate of a it applies to drunk driving (DUI, person without a will is handled by DWI) the standard of intoxication an administrator (usually a close varies by state between .08 and .10 relative, the spouse, a close associ- alcohol in the bloodstream, or a com- ate) or a public administrator if bination of alcohol and narcotics there is no one willing to act, since which would produce the same effect

there is no executor named in a will. even though the amount of alcohol is In most states an administrator below the minimum. 3) as it applies must petition the court to be ap- to public drunkenness the standard pointed and must post a bond from is subjective, meaning the person an insurance company guarantee- must be unable to care for himself, be ing that it will pay the value of the dangerous to himself or others, be assets he/she/it may steal or misuse. causing a disturbance or refuse to

221 intrinsic fraud

leave or move along when request- without just cause, which can give the ed. 4) a defense in a criminal case person whose privacy has been invad- in which the claim is made by the ed a right to bring a lawsuit for dam- defendant that he/she was too in- ages against the person or entity that toxicated to form an intent to com- intruded. However, public personages mit the crime or to know what are not protected in most situations, he/she was doing, where the since they have placed themselves al- amount of intoxication is subjective ready within the public eye, and their but higher than for drunk driving. activities (even personal and some- There is also the question if the in- times intimate) are considered news-

toxication was an intentional afore- worthy, i.e. of legitimate public inter- thought to the crime (“I wanted to est. However, an otherwise non-public

get drunk so I had the nerve to kill individual has a right to privacy from: her”). Unintentional intoxication a) intrusion on one’s solitude or into can show lack of capacity to form one’s private affairs; b) public disclo- an intent and thus reduce the pos- sure of embarrassing private informa-

sible level of conviction and punish- tion; c) publicity which puts him/her ment, as from voluntary (intention- in a false light to the public; d) appro- al) manslaughter down to involun- priation of one’s name or picture for tary (unintentional but through a personal or commercial advantage. wrongful act) manslaughter. How- Lawsuits have arisen from magazine ever, in vehicular manslaughter, articles on obscure geniuses, use of a the intoxication is an element in wife’s name on a hospital insurance the crime, whether getting drunk form to obtain insurance payment for was intentional or not, since crimi- delivery of a mistress’s baby, unautho- nal intent was not a factor. (See: rized use of a girl’s photo to advertise driving under the influence, a photographer, and “tabloid” journal- vehicular manslaughter) ism treatment of people as freaks. There are also numerous instances of intrinsic fraud: n. an intentionally governmental invasion of privacy such

false representation (lie) which is as the Federal Bureau of Investiga- part of the fraud and can be consid- tion compiling files on people considered in determining general and ered as political opponents, partially punitive damages. This is distin- corrected by the passage of the Free- guished from extrinsic fraud (collat- dom of Information Act in 1966. The eral fraud) which was a deceptive right to privacy originated with an ar- means to keeping one from enforc- ticle in the Harvard Law Review in ing his/her legal rights. (See: the 1890s written by lawyers “Bull” extrinsic fraud, fraud) Warren and future Supreme Court Justice Louis D. Brandeis. (See: right

inure: v. result in. Commonly used in to privacy) legal terminology in the phrase: “to inure to the benefit of Janet Jones.” inverse condemnation: n. the taking of property by a government agency invasion of privacy: n. the intrusion which so greatly damages the use of a

into the personal life of another, parcel of real property that it is the

222 irreconcilable differences

equivalent of condemnation of the suffered by the invitee while on the entire property. Thus the owner property due to an unsafe condition claims he/she is entitled to payment which is not obvious to the invitee (a for the loss of the property (in whole latent defect) and not due to the invi-

or in part) under the constitutional tee’s own negligence. An invitee is dis- right to compensation for condem- tinguished from a trespasser who cuts

nation of property under the gov- across the owner’s vacant lot, a person ernment’s eminent domain right. who comes into the store to use the Example: the city of Los Angeles bathroom (although a clever lawyer

widens a boulevard and thereby will claim this is a goodwill aspect to

takes the entire parking lot of Ben- the business in which the public is im- nison’s Busy Bee Market. The city plicitly invited), or a burglar who falls offers to pay for the lot, but Benni- through a faulty skylight. Examples of son claims the market has lost all failures unexpected by an invitee: a its business since no one can park person falls through a covered-over and wants the value of the entire well, faulty stairs, weak floors, slip- parcel, including the market build- pery floors on rainy days (a favorite), ing. (See: condemnation, emi- spills of jam which are not promptly nent domain) cleaned up although known to the management, lack of adequate securi- invest: v. to put money into a business ty guards to protect against muggers, or buy property or securities for the and various careless acts of retail em- purpose of eventually obtaining a ployees. (See: negligence)

profit. This is distinguished from a gift or a loan made merely to accom- involuntary: adj. or adv. without in- modate a friend or taking a complete tent, will or choice. Participation in a

gamble. (See: investment) crime is involuntary if forced by im-

mediate threat to life or health of one- investment: n. the money put into self or one’s loved ones and will result use for profit, or the property or in dismissal or acquittal. business interest purchased for

profit. (See: invest) ipse dixit, (ip-sah dicks-it) v. Latin for

“he himself said it,” meaning the only invitee: n. a person who comes onto proof we have of the fact is that this

another’s property, premises or busi- person said it. ness establishment upon invitation. The invitation may be direct and ex- ipso facto-, (ip-soh fact-toe) prep. Latin press or “implied,” as when a shop is for “by the fact itself.” An expression open and the public is expected to more popular with comedians imitat- enter to inspect, purchase or other- ing lawyers than with lawyers them- wise do business on the premises. It selves. A simple example: “a blind per- may be legally important, because son, ipso facto, is not entitled to a dri- an invitee is entitled to assume safe ver’s license.” conditions on the property or premises, so the owner or proprietor irreconcilable differences: n. the might be liable for any injury usual basis for granting a divorce

223 irrelevant

(dissolution) in no-fault divorce a judge should order an injunction, states. If one party says the mar- writ, temporary restraining order or riage is irretrievable and refuses other judicial assistance, generally to reconcile then such differences known as equitable relief. Such relief

are proved to exist. (See: dissolu- is a court order of positive action, tion of marriage, divorce, no such as prohibiting pollution or re- fault divorce) quiring the shoring up of a defective wall. (See: equity, injunction, irrelevant: adj. not important, per- remedy, writ) tinent, or germane to the matter at

hand or to any issue before the issue: 1) n. a person’s children or other court. This is the most common ob- lineal descendants such as grandchil- jection raised by attorneys to ques- dren and great-grandchildren. It tions asked or to answers given does not mean all heirs, but only the during testimony in a trial. The direct bloodline. Occasionally, there objection is made as soon as an is a problem in determining whether alert attorney believes the opposi- a writer of a will or deed meant issue tion is going into matters which to include descendants beyond his or are not concerned with the facts or her immediate children. While a outside the issues of the lawsuit. It child or children are alive, issue is often stated in the trio: “Irrele- refers only to them, but if they are

vant, immaterial and incompe- deceased then it will apply to the tent” to cover the bases. The judge next living generation unless there is must then rule on the relevancy of language in the document which

the question. If the question has shows it specifically does not apply to been answered before the lawyer them. 2) n. any matter of dispute in a could say “objection,” the judge legal controversy or lawsuit, very may order that answer stricken commonly used in such phrases as

from the record. Blotting it from a “the legal issues are,” “the factual is- jury’s memory or conscience, sues are,” “this is an issue which the though, is impossible. (See: evi- judge must decide,” or “please, coun- dence, immaterial, incompe- sel, let us know what issues you have

tent, objection) agreed upon.” 3) v. to send out, pro- mulgate, publish or make the origi- irreparable damage or injury: n. nal distribution, such as a corpora- the type of harm which no mone- tion selling and distributing shares of tary compensation can cure or put stock to its initial investors. 4) n. the conditions back the way they were, shares of stock or bonds of a corpora- such as cutting down shade trees, tion which have been sold and dis- polluting a stream, not giving a tributed. (See: bond, corporation, child needed medication, not sup- heirs of the body, incorporation, porting an excavation which may share, stock) cause collapse of a building, tear- ing down a structure, or a host of other actions or omissions. The phrase must be used to claim that

224 J: n. abbreviation for Judge, as in the with the crime again and tried again.

Hon. William B. Boone, J. In a few situations, a defendant is not in double jeopardy when being tried jaywalking: n. walking across a for a violation of a similar (but differ- street outside of marked cross- ent) federal criminal (penal) statute walks, and not at a corner, and/or based on some of the same circum- against a signal light. If there is stances as a state prosecution, such as vehicle traffic or clear markings of violation of a murder victim’s civil a place to cross, this is a traffic mis- rights, as was done in the case against demeanor subject to fine, and may the killer of civil rights leader Medgar be (but not conclusively) contribu- Evers. (See: double jeopardy) tory negligence in the event of injury to the jaywalker by a vehicle. jobber: n. a merchant who buys products (usually in bulk or lots) and then Jane Doe: n. 1) a fictitious name sells them to various retailers. This used for a possible female defendant middleman generally specializes in who is unknown at the time a com- specific types of products, such as plaint is filed to start a lawsuit. 2) auto parts, electrical and plumbing the temporary fictitious name given materials, or petroleum. A jobber dif- to an unidentified hospitalized or fers from a broker or agent, who buys dead woman. (See: fictitious de- and acts for specific clients. fendants, John Doe)

John Doe: n. 1) a fictitious name used JD: n. short for Juris Doctor, identi- for a possible male defendant who fying the holder as having re- is unknown at the time a complaint ceived that law degree. (See: is filed to start a lawsuit. 2) the tem- Juris Doctor) porary fictitious name given to an unidentified hospitalized or dead jeopardy: n. peril, particularly dan- man. (See: fictitious defendants, ger of being charged with or convict- Jane Doe) ed of a particular crime. The U.S. Constitution guarantees in the Fifth joinder: n. the joining together of sev- Amendment that no one can “be eral lawsuits or several parties all in twice put in jeopardy of life or limb” one lawsuit, provided that the legal for the same offense. Thus, once a issues and the factual situation are person has been acquitted, he/she the same for all plaintiffs and defen- may not be charged again for that dants. Joinder requires a) that one of crime. However, if there was a mis- the parties to one of the lawsuits trial, hung jury or reversal of convic- make a motion to join the suits and tion on appeal (but the defendant the parties in a single case; b) notice

was not declared innocent in the rul- must be made to all parties; c) there ing), the defendant may be charged must be a hearing before a judge to

225 joinder of issue

show why joinder will not cause several,” meaning any one of the prejudice (hurt) to any of the debtors may be individually liable. parties to the existing lawsuits; Therefore, care must be taken in and d) an order of the judge drafting deeds, sales agreements, permitting joinder. Joinder may be promissory notes, joint venture mandatory if a person necessary to agreements and other documents. A a fair result was not included joint tenancy is treated specially, in the original lawsuit, or it may since it includes the right of the sur- be permissive if joining the cases vivor to get the entire property when together is only a matter of conve- the other dies (right of survivorship). nience or economy. (See: manda- (See: joint and several,, joint tory joinder, misjoinder, multi- tenancy, joint venture, tenancy plicity of suits) in common)

joinder of issue: n. that point in a joint adventure: n. when two or more lawsuit when the defendant has people go together on a trip or some challenged (denied) some or all of other action, not necessarily for profit, plaintiff’s allegations of facts, which may make them all liable for an and/or when it is known which accident or debt arising out of the ac- legal questions are in dispute. This tivity. (See: joint venture) is stated in the expression: “the

issue is joined,” in the same man- joint and several: adj. referring to a ner as a military man would say: debt or a judgment for negligence, in “the battle has been joined,” mean- which each debtor (one who owes) or ing the fight is underway. Thus, each judgment defendant (one who

the pre-trial legal underbrush has has a judgment against him/her) is been cleared away, the motions responsible (liable) for the entire made, and the pre-trial discovery amount of the debt or judgment. (depositions, requests for docu- Thus, in drafting a promissory note ments, written questions and an- for a debt, it is important to state swers, and other demands for in- that if there is more than one person formation) sufficiently completed, owing the funds to be paid, the debt all of which makes clear what mat- is joint and several, since then the ters are to be decided by trial. person owed money (creditor, promisee) can collect the entire joint: adj., adv. referring to property, amount from any of the joint signers rights or obligations which are of the note, and not be limited to a united, undivided and shared by share from each debtor. If a party in- two or more persons or entities. jured in an accident sues several Thus, a joint property held by both parties for causing his/her damages, cannot be effectively transferred the court may find that several peo- unless all owners join in the trans- ple were “jointly” negligent and con- action. If a creditor sues to collect a tributed to the damages. The entire joint debt, he/she must include all judgment may be collected from any the debtors in the lawsuit, unless of the defendants found responsible, the debt is specifically “joint and unless the court finds different

226 joint liability

amounts of negligence of each de- ther order of the court. The primary fendant contributed to the injury. affect of this is a psychological bene- Defense attorneys should require fit for the parent and the child, so the trier of fact (jury or judge sit- that a child can be told that both ting without a jury) to break down parents cared for the child, even the amount of negligence of each though the child had to live most of defendant and the plaintiff if there the time with one of them. (See: is contributory negligence. Often child custody, dissolution of the court will refuse to do so, al- marriage, divorce) lowing the plaintiff to collect from whichever defendant has the “deep joint enterprise: n. a generic term for pocket” (lots of money), and letting an activity of two or more people, the defendant who pays demand usually (but not necessarily) for prof- contributions from the other defen- it, which may include partnership, dants. (See: comparative negli- joint venture or any business in gence, contribution, contribu- which more than one person invests, tory negligence, joint, joint works, has equal management con- and several) trol and/or is otherwise involved for an agreed upon goal or purpose. One joint custody: n. in divorce actions, significant factor is that if a court a decision by the court (often upon finds that two or more people are in- agreement of the parents) that the volved in a joint enterprise and there parents will share custody of a is negligent damage to an outside child. There are two types of cus- party by any one of the enterprisers, tody, physical and legal. Joint or breach of a contract made by the physical custody (instead of one joint enterprise, each of those who

parent having custody with the are part of the enterprise will be li- other having visitation), does not able for all the damages to the party. mean exact division of time with However, not all joint enterprises are

each parent, but can be based on partnerships or joint ventures, al- reasonable time with each parent though the terms are often used im- either specifically spelled out (cer- properly as if they were synonymous. tain days, weeks, holidays, alter- (See: joint, joint adventure, joint native periods) or based on stated and several, joint liability, joint guidelines and shared payment of venture, partnership) costs of raising the child. Joint legal custody means that both par- joint liability: n. when two or more ents can make decisions for the persons are both responsible for a child, including medical treat- debt, claim or judgment. It can be ment, but where possible they important to the person making the should consult the other. Upon the claim, as well as to a person who is death or disability of either parent, sued, who can demand that anyone legal custody will go to the remain- with joint liability for the alleged ing parent and will give the active debt or claim for damages be joined parent the sole ability to act as in (brought into) the lawsuit. (See: parent for the child without fur- joinder, joint and several)

227 joint powers agreement

joint powers agreement: n. a con- and the property and the proceeds tract between a city, a county and/or therefrom will be under court control a special district in which the city or until the child is 18. In community county agrees to perform services, property states, some courts have cooperate with, or lend its powers to found that joint tenancy presumes the special district or other govern- that the property is not community ment entity. property (which could result in loss of estate tax limitation on the death it The law must be stable, but of the first spouse to die), but proof of cannot stand still. community interests can be estab- —Roscoe Pound, The Philos- lished. A bank account held in joint ophy Law of s tenancy also presumes a right of survivorship, but this presumption joint tenancy: n. a crucial relation- can be overcome by evidence that the ship in the ownership of real prop- account was really the property erty, which provides that each of only one, and the joint tenancy party owns an undivided interest was for convenience. (See: commu- in the entire parcel, with both hav- nity property, tenancy in coming the right to use all of it and the mon, title) right of survivorship, which means that upon the death of one joint joint tortfeasors: n. two or more per- tenant, the other has title to it all. sons whose negligence in a single ac- Procedurally, on the death of one cident or event causes damages to joint tenant, title in the survivor is another person. In many cases the completed by recording an “affi- joint tortfeasors are jointly and sev- davit of death of joint tenant,” de- erally liable for the damages, mean- scribing the property and the de- ing that any of them can be responsi- ceased tenant, with a death certifi- ble to pay the entire amount, no mat- cate attached, all of which is sworn ter how unequal the negligence of to by the surviving joint tenant. each party was. Example: Harry This process avoids probate of the Hotrod is doing 90 miles an hour property, but may have some tax along a two-lane road in the early consequences which should be ex- evening, Adele Aimster has stopped plored with an accountant at the her car to study a map with her car time of recording the original deed. sticking out into the lane by six inch- If the owners do not want full title es. Hotrod swings out a couple of feet to the property to pass to the sur- to miss Aimster’s vehicle, never vivor, then joint tenancy should touches the brake, and hits Victor not be used. Joint tenancy (as well Victim, driving from the other direc-

as any other common ownership) tion, killing him. While Hotrod is between a parent and a minor grossly negligent for the high speed child should be avoided since the and failure to slow down, Aimster is property cannot be transferred in also negligent for her car’s slight in- the future without the parent be- trusion into the lane. As a joint tort- coming appointed a guardian of feasor she may have to pay all the the child’s estate by court order, damages, particularly if Hotrod has

228 judge advocate

no money or insurance. However, need only to pass a test, and federal comparative negligence rules and state “administrative law by statute or case law in most judges” are often lawyer or non- jurisdictions will apportion the lawyer hearing officers specializing liability by percentages of negli- in the subject matter upon which gence among the tortfeasors they are asked to rule. The word (wrongdoers) and the injured par- “court” often refers to the judge, as in ties. (See: comparative negli- the phrase “the court found the de-

gence, negligence) fendant at fault,” or “may it please the court,” when addressing the joint venture: n. an enterprise en- judge. The word “bench” also refers tered into by two or more people to the judge or judges in general. for profit, for a limited purpose, Judges on appeals courts are usually such as purchase, improvement called “justices.” Judges of courts es- and sale or leasing of real estate. A tablished by a state at the county, joint venture has most of the ele- district, city or township level, gain ments of a partnership, such as office by election, by appointment by shared management, the power of the Governor or by some judicial se- each venturer to bind the others in lection process in case of a vacancy.

the business, division of profits Federal judges are appointed for life and joint responsibility for losses. by the President of the United States However, unlike a partnership, with confirmation by the U.S. a joint venture anticipates a specif- Senate. A senator of the same party ic area of activity and/or period of as the President has considerable operation, so after the purpose clout in recommending Federal

is completed, bills are paid, profits judges from his/her home state. 2) v. (or losses) are divided, and to rule on a legal matter, including

the joint venture is terminated. determining the result in a trial if (See: partnership) there is no jury. (See: administrative law judge, bench, court, Jones Act: n., adj. a federal law jurist, justice, justice of the which covers injuries to crewmen at peace, magistrate) sea, gives jurisdiction to the federal

courts and sets up various rules for judge advocate: n. a military officer conduct of these cases under mar- with legal training who has the itime law. A claim for recompense mixed duties of giving advice on (payment) for damages at sea is legal matters to the group of officers called a “Jones Act case.” (See: ad- sitting as a court-martial (both judge miralty, maritime law) and jury) and acting as the prosecutor of the accused serviceman or judge: 1) n. an official with the au- woman. A judge advocate holds re- thority and responsibility to pre- sponsibility to protect the accused side in a court, try lawsuits and from procedural improprieties such make legal rulings. Judges are al- as questions from the members of most always attorneys. In some the court which might incriminate states, “justices of the peace” may the accused in violation of the

229 judge advocate general (JA.G.)

Constitution. The accused person the bankrupt person has no assets, also has a military officer as coun- this becomes an empty advantage. sel, who may not be an attorney. (See: creditor’s rights, judgment, (See: court-martial, judge advo- prevailing party) cate general) judgment debt: n. the amount of judge advocate general (J.A.G.): money in a judgment award to the n. a military officer who advises the winning party, which is owed to the government on courts-martial and winner by the losing party. (See: administers the conduct of courts- judgment, judgment creditor) martial. The officers who are judge advocates and counsel assigned to judgment debtor: n. the losing de- the accused come from the office of fendant in a lawsuit who owes the the judge advocate general or are amount of the judgment to the win- appointed by it to work on certain ner. (See: judgment creditor) courts-martial. (See: court-martial, judge advocate) judgment notwithstanding the verdict (N.O.V.): n. reversal of a judgment: n. the final decision by a jury’s verdict by the trial judge when court in a lawsuit, criminal prose- the judge believes there was no fac-

cution or appeal from a lower tual basis for the verdict or it was court’s judgment, except for an “in- contrary to law. The judge will then terlocutory judgment,” which is enter a different verdict as “a matter tentative until a final judgment is of law.” Essentially the judge should made. The word “decree” is some- have required a “directed verdict” times used as synonymous with (instruction to the jury to return judgment. (See: decree) with a particular verdict since the facts allowed no other conclu- judgment by default: n. (See: de- sion), and when the jury “went fault judgment) wrong,” the judge uses the power to reverse the verdict instead of ap-

judgment creditor: n. the winning proving it, to prevent injustice. This plaintiff in a lawsuit to whom the process is commonly called “judg- court decides the defendant owes ment N.O.V.” or simply “N.O.V.,” for money. A judgment creditor can Latin non obstante veredicto. (See: use various means to collect the N.O.V., verdict) judgment. The judgment is good

for a specified number of years and judicial: adj., adv. 1) referring to a then may be renewed by a filed re- judge, court or the court system. quest. If the defendant debtor files 2) fair. for bankruptcy, the judgment creditor will have priority (the right to judicial discretion: n. the power of share in assets) ahead of general the judge to make decisions on some creditors who are not secured by matters without being bound by mortgages or deeds of trust and do precedent or strict rules established not have judgments. However, if by statutes. On appeal a higher court

230 jurat

will usually accept and confirm de- judicial proceedings: n. any action by cisions of trial judges when exer- a judge re: trials, hearings, petitions cising permitted discretion, unless or other matters formally before the capricious, showing a pattern of court. (See: judicial) bias, or exercising discretion beyond his/her authority. judicial sale: n. a sale of goods by an official (keeper, trustee or sheriff) ap- judicial foreclosure: n. a judgment pointed by the court and ordered by by a court in favor of foreclosure of a court, usually to satisfy a judgment a mortgage or deed of trust, which or implement another order of the orders that the real property which court. Such sales require public no- secured the debt be sold under tice of time, place and a description foreclosure proceedings to pay the of the goods to be sold. (See: sher- debt. The party suing probably has iff’s sale) chosen to seek a judicial foreclo-

sure rather than use the foreclo- jump bail: v. to fail to appear for a sure provisions of the mortgage or court appearance after depositing deed of trust. Usually this move is (posting) bail with the intention of made to get a “deficiency judg- avoiding prosecution, sentencing or ment” for any amount still owed going to jail. Posting bail guarantees after the foreclosure sale. In many that the accused person will give up states (such as California) a fore- the money if he/she does not show closure on the deed of trust limits up in court. It allows the accused the recovery to the amount of sale person to remain free pending the proceeds (sales price minus other final decision on his/her criminal debts), so a lawsuit for judicial case. In some circumstances a crimi- foreclosure may help the party nal defendant can be declared to recover the total money owed to have jumped bail even before miss-

him/her if it was secured by the ing an appearance in court, if it is debtor’s real property. (See: deed discovered he/she has left the state, of trust, foreclosure, mortgage, the country, disappeared or made

deficiency judgement ) plans to flee. At that point the court can revoke the bail and issue a war- judicial notice: n. the authority of a rant for the defendant’s arrest. It is judge to accept as facts certain mat- also called “skipping” bail. (See: bail, ters which are of common knowledge bail bond, bail bondsman) from sources which guarantee accuracy or are a matter of official record, without the need for evidence estab- No person ought to be punished simply being drunk sol- lishing the fact. Examples of matters for ; but a given judicial notice are public and dier or a policeman should be pun- court records, tides, times of sunset ished for being drunk on duty. and sunrise, government rainfall —John Stuart Mill, On Liberty and temperature records, known historic events or the fact that ice jurat', (jur-at) n. Latin for “been melts in the sun. (See: evidence) sworn,” the portion of an affidavit in

231 jurisdiction

which a person has sworn that the of so-called Surrogate Courts. Mu- contents of his/her written state- nicipal courts (or other local courts) ment are true, filled in by the no- have jurisdiction over cases involv- tary public with the date, name of ing lesser amounts of money, misde- the person swearing, sometimes meanors (crimes not punishable by the place where sworn, and the state prison), traffic matters and name of the person before whom preliminary hearings on felony the oath was made. It reads gener- charges to determine if there is suffi- ally: “Sworn to this 12th day of Oc- cient evidence to warrant a trial by tober, 1994, by Martha J. Milner, the Superior Court. Some states before me, a notary public for said have police courts to handle misde- state and county. Barbara A. Sten- meanors. Jurisdiction in the courts erson, Notary Public.” Ajurat is not of a particular state may be deter- to be confused with an “acknowl- mined by the location of real proper- edgment” in which the signer of a ty in a state (in rem jurisdiction), or document such as a deed to real whether the parties are located with- property has sworn to the notary in the state (in personam jurisdic- public that he/she executed the tion). Thus, a probate of Marsha document, and the notary signs Blackwood’s estate would be in Idaho and seals the document to that ef- where she lived and died, but juris- fect. (See: acknowledgment, dec- diction over her title to real estate in laration, notary public) Utah will be under the jurisdiction of the Utah courts. Federal courts have jurisdiction: n. the authority given jurisdiction over lawsuits between by law to a court to try cases and citizens of different states, cases rule on legal matters within a par- based on federal statutes such as fair ticular geographic area and/or over labor standards and antitrust viola- certain types of legal cases. It is tions, charges of federal crimes, ap- vital to determine before a lawsuit peals from bankruptcy proceedings, is filed which court has jurisdic- maritime cases or legal actions in- tion. State courts have jurisdiction volving federal constitutional ques- over matters within that state, and tions. Sometimes regulatory agen- different levels of courts have ju- cies have the initial jurisdiction be- risdiction over lawsuits involving fore any legal action may be filed in different amounts of money. For court. More than one court may have example, Superior Courts (called concurrent jurisdiction, such as both District or County Courts in sever- state and federal courts, and the al states) generally have sole con- lawyer filing the lawsuit may have to trol of lawsuits for larger sums of make a tactical decision as to which

money, domestic relations (di- jurisdiction is more favorable or use- vorces), probate of estates of de- ful to his/her cause, including time to ceased persons, guardianships, get to trial, the potential pool of ju- conservatorships and trials of rors or other considerations. Appel-

felonies. In some states (like New late jurisdiction is given by statute to York) probate and certain other appeals courts to hear appeals about matters are within the jurisdiction the judgment of the lower court that

232 jury

tried a case, and to order reversal sedes the Bachelor of Laws in recog- or other correction if error is found. nition that the law curriculum enti- State appeals are under the juris- tles a person to a graduate degree. diction of the state appellate

courts, while appeals from federal jurist: n. although it means any attor- district courts are within the juris- ney or legal scholar, jurist popularly diction of the courts of appeal and refers to a judge. eventually the Supreme Court. Jurisdiction is not to be confused juror: n. any person who actually with “venue,” which means serves on a jury. Lists of potential ju- the best place to try a case. Thus, rors are chosen from various sources any state court may have jurisdic- such as registered voters, automobile tion over a matter, but the “venue” registration or telephone directories. is in a particular county. (See: dis- The names are drawn by lot (more trict court, municipal court, often by computer random selection) police court, Superior Court, and requested to appear for possible Supreme Court, venue) service. Before a trial begins the names ofjurors are assigned to a trial jurisdictional amount: n. the range court, and a further selection process between the minimum and maxi- is made. Acceptable excuses from ser- mum amount of money or value in vice are determined by state law or by dispute in a lawsuit (generally based the judge before or during the final on the amount demanded in the law- selection process. If chosen, a juror re- suit), which determines which court ceives a small amount of pay per day has jurisdiction to try the case. Ex- of service and payment for automo- ample: in California, municipal bile mileage from home to court. A courts have jurisdiction up to member of a Grand Jury is called a $25,000, superior courts have juris- grand juror. (See: Grand Jury, jury,

diction over that sum, and small jury panel, venire ) claims courts (an alternative to formal municipal court filing) have a jury: n. one of the remarkable innova- maximum jurisdictional amount of tions of the English common law $5,000. Federal jurisdiction com- (from the Angles and Saxons, but mences at the $10,000 level, if the also employed in Normandy prior to

lawsuit fits other federal require- the Norman Conquest in 1066), it is ments. (See: jurisdiction) a group of citizens called to hear a trial of a criminal prosecution or a jurisprudence: n. the entire sub- lawsuit, decide the factual questions ject of law, the study of law and of guilt or innocence or determine legal questions. the prevailing party (winner) in a lawsuit and the amount to be paid, if Juris Doctor (J.D.): n. the law de- any, by the loser. Once selected, the gree granted upon graduation by jury is sworn to give an honest and many university law schools with fair decision. The legal questions are accepted high standards of admis- determined by the judge presiding at sion and grading. This often super- the trial, who explains those issues

233 jury box

to the members of the jury (jurors) bias. In well-financed cases this has in “jury instructions.” The common led to the hiring of jury “specialists” number ofjurors is 12 (dating back and psychologists by attorneys to aid a thousand years), but some states in jury selection. In a high-profile allow a smaller number (six or criminal case in which the jury might eight) if the parties agree. For a be influenced by public comment or plaintiff (the party suing) to win a media coverage during trial, the lawsuit with a jury, three-quarters court may order the jury be se- of the jurors must favor the claim. questered (kept in a hotel away from Guilt or innocence in a criminal family, friends, radio, television and trial requires a unanimous decision newspapers.) (See: challenge for of the jury, except two states (Ore- cause, juror, jury panel, jury gon and Louisiana) allow a convic- trial, peremptory challenge, tion with 10 of 12 jurors. Juries sequester, venire, voir dire) have greatly changed in recent decades, as the term “impartial jury box: n. the enclosed area in jury” in the Fifth Amendment to which the jury sits in assigned seats the Constitution requires that the during a jury trial. (See: juror, jury) pool of jurors must include all races, ethnic groups and women as jury fees: n. the rather minimal well as men in percentages relative amount paid each day to jurors, plus to the general population. Any fail- payment for mileage from home to ure to achieve that balance or sys- court. In criminal trials this amount is tematic challenges to those of the paid by the government (usually coun- same ethnicity of the accused, may ty government in state cases), but in result in a claim on appeal that the civil lawsuits the jury fees are paid by jury was not fair—in popular jar- the parties to the lawsuit in equal gon, not “a jury of one’s peers.” This amounts. It is important for a party does not mean that a Samoan male requesting a jury trial to deposit must be tried by other Samoan (“post”) the first day’s jury fees with males, but it does mean that the the clerk of the court a set time in ad- potential jurors must come from a vance of the trial date, or the right to balanced group. Members of the a jury trial may be lost on the basis jury are supposed to be free of bias, that he/she/it has “waived” the right to have no specific knowledge of the a jury. The winner of the lawsuit (pre- case and have no connection with vailing party) is usually entitled to re- any of the parties or witnesses. imbursement (payment by the loser) Questions are asked by the judge ofjury fees as a court cost. (See: jury) and attorneys (called “voir dire”) during jury selection to weed out jury of one’s peers: n. a guaranteed those whom they may challenge on right of criminal defendants, in which those grounds (challenge for “peer” means an “equal.” This has cause). Some potential jurors are been interpreted by courts to mean challenged (peremptory challenge) that the available jurors include a because the attorney for one side or broad spectrum of the population, the other feels there is some hidden particularly of race, national origin

234 justice

and gender. Jury selection may in- case is presented to a jury and the clude no process which excludes factual questions and the final judg- those of a particular race or inten- ment are determined by a jury. This tionally narrows the spectrum of is distinguished from a “court trial” possible jurors. It does not mean in which the judge decides factual as that women are to be tried by well as legal questions, and makes women, Asians by Asians, or African the final judgment. (See: jury) Americans by African Americans.

(See: jury) just compensation: n. 1) in general a fair and reasonable amount of money jury panel: n. the list from which ju- to be paid for work performed or to rors for a particular trial may be make one “whole” after loss due to chosen. (See: juror, jury) damages. 2) the full value to be paid for property taken by the government jury selection: n. the means by for public purposes guaranteed by the which a jury is chosen, with a panel Fifth Amendment to the U.S. Consti- of potential jurors called, question- tution, which states: “...nor shall pri- ing of the jury by the judge and at- vate property be taken for public use

torneys ( voir dire), dismissal for without just compensation.” If the cause, peremptory challenges by the amount offered by the governmental

attorneys without stating a cause agency taking the property is not con- and finally impaneling of the jury. sidered sufficient, the property owner (See: impaneling, jury, panel, may demand a trial to determine just peremptory challenge, venire) compensation. (See: condemnation, eminent domain, inverse con- jury stress: n. a form of mental, demnation, make one whole, emotional, psychological, physical quantum meruit) and sexual tension found to affect

juries in long trials due to exhaus- justice: n. 1) fairness. 2) moral right- tion, sequestration, the mountain ness. 3) a scheme or system of law of evidence and the desire to do the in which every person receives his/ right thing. (See: jury) her/its due from the system, including all rights, both natural and legal. One jury tampering: n. the crime of problem is that attorneys, judges and attempting to influence a jury legislatures often get caught up more through any means other than in procedure than in achieving justice

presenting evidence and argument for all. Example: the adage “justice in court, including conversations delayed is justice denied,” applies to about the case outside the court, the burdensome procedures, lack of offering bribes, making threats or sufficient courts, the clogging of the asking acquaintances to intercede system with meritless cases and the with a juror. (See: jury, suborna- use of the courts to settle matters tion of perjury) which could be resolved by negotiation. The imbalance between court jury trial: n. a trial of a lawsuit or privileges obtained by attorneys for criminal prosecution in which the the wealthy and for the person of

235 justice of the peace ( JP)

modest means, the use of delay and justifiable homicide: n. a killing “blizzards” of unnecessary paper by without evil or criminal intent, for large law firms, and judges who fail which there can be no blame, such as to cut through the underbrush of self-defense to protect oneself or to procedure all erode justice. 4) an ap- protect another or the shooting by a pellate judge, the Chief Justice and law enforcement officer in fulfilling Associate Justices of the U.S. his/her duties. This is not to be con- Supreme Court, a member of a Fed- fused with a crime of passion or eral Court of Appeal and judges of claim of diminished capacity, which any of the various state appellate refer to defenses aimed at reducing courts. (See: court) the penalty or degree of crime. (See: homicide, self-defense) justice of the peace (JP): n. a judge who handles minor legal juvenile court: n. a special court or matters such as misdemeanors, department of a trial court which small claims actions and traffic deals with under-age defendants matters in “justice courts.” Dating charged with crimes or who are ne- back to early English common law, glected or out of the control of their “JPs” were very common up to the parents. The normal age of these de- 1950s, but they now exist primari- fendants is under 18, but juvenile ly in rural “justice districts” from court does not have jurisdiction in which it is unreasonable for the cases in which minors are charged as public to travel to the county seat adults. The procedure in juvenile for trials of minor matters. In court is not always adversarial (al- Nevada justices of the peace are though the minor is entitled to legal lucrative jobs since they perform representation by a lawyer). It can many of the marriages of elopers be an attempt to involve parents or from other states, as Nevada has social workers and probation officers no waiting period from license to in the process to achieve positive re- wedding. A justice of the peace is sults and save the minor from in- usually an attorney, but some volvement in future crimes. Howev- states still allow laypersons to er, serious crimes and repeated of- qualify by taking a test. fenses can result in sentencing juvenile offenders to prison, with trans- justiciable: n. referring to a matter fer to state prison upon reaching which is capable of being decided by adulthood with limited maximum a court. Usually it is combined in sentences. Where parental neglect or such terms as: “justiciable issue,” loss of control is a problem, the juve- “justiciable cause of action” or “justi- nile court may seek out foster homes ciable case.” for the juvenile, treating the child as a ward of the court. (See: court, juvenile delinquent) The execution of lawa ia more important than the making of juvenile delinquent: n. a person who them. is under age (usually below 18), who Thomas Jefferson — is found to have committed a crime

236 juvenile delinquent in states which have declared by law that a minor lacks responsibility and thus may not be sentenced as an adult. However, the legislatures of several states have reduced the age of criminal responsibility for serious crimes or for repeat offenders to as low as 14. (See: juvenile court)

237 K: n. the shorthand symbol for “con- ed crime is false imprisonment. Any tract” used almost universally by harm to the victim coupled with kid- lawyers and law students. napping can raise the degree of felony for the injury and can result kangaroo court: n. 1) a mock court in a capital (death penalty) offense in set up without legal basis, such as some states, even though the victim a fraternity, sports team or army survives. Originally it meant the

squad might set up to punish stealing of children, since “kid” is minor violations of organizational child in Scandinavian languages, but decorum. 2) slang for a court of law now applies to adults as well. in which the violations of procedure, precedents, and due process kin: n. blood relative. (See: next of kin) are so gross that fundamental justice is denied. It usually means that the judge is incompetent or obviously biased. (See: star chamber proceedings)

The law is a jealous mistress. —Justice Joseph Story kidnapping (also spelled kidnap- ing): n. the taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or

intimidation. Although it is not necessary that the purpose be

criminal (since all kidnapping is a criminal felony) the capture usually involves some related criminal act such as holding the person for ransom, sexual and/or sadistic abuse, or rape. It includes taking due to irresistible impulse and a parent taking and hiding a child in violation of court order. An includ-

238 1

labor and materials (time and the company and scattered around materials): n. what some builders the country. The defense of laches is

or repair people contract to provide often raised in the list of “affirmative and be paid for, rather than a fixed defenses” in answers filed by defen- price or a percentage of the costs. dants, but is seldom applied by the

In many states, if the person per- courts. Laches is not to be confused forming the work is not a licensed with the “statute of limitations,” contractor, he/she is limited to which sets specific periods to file a labor and materials in any lawsuit lawsuit for types of claims (negli- for contract payment, and may not gence, breach of contract, fraud, etc.). receive a profit above that amount. Consumers who believe they will land: n. real property, real estate (and get a better deal from someone all that grows thereon), and the right working for labor or time and ma- to minerals underneath and the air-

terials should beware and watch space over it. It may include improve- receipts and keep track of actual ments like buildings, but not necessar-

labor hours worked. ily. The owner of the land may give a long-term (like 99 years) lease to an- laches: n. the legal doctrine that a other with the right to build on it. The

legal right or claim will not be en- improvement is a “leasehold” for own- forced or allowed if a long delay in ership of the right to use—without asserting the right or claim has ownership of—-the underlying land. prejudiced the adverse party (hurt The right to use the air above a parcel the opponent) as a sort of “legal am- of land is subject to height limitations bush.” Examples: a) knowing the by local ordinance, state or federal correct property line, Oliver Owner law. (See: real estate, real property) fails to bring a lawsuit to establish title to a portion of real estate until landlady: n. female of landlord or Nat Neighbor has built a house owner of real property from whom which encroaches on the property one rents or leases. (See: landlord) in which Owner has title; b) Tommy Traveler learns that his father has landlocked: adj. referring to a parcel died, but waits four years to come of real property which has no access forward until the entire estate has or egress (entry or exit) to a public been distributed on the belief that street and cannot be reached except Tommy was dead; c) Susan Smart by crossing another’s property. In has a legitimate claim against her such a case there is an “implied ease- old firm for sexual harassment, but ment” over the adjoining lot from

waits three years to come forward which it was created (carved out).

and file a lawsuit, after the employee who caused the problem has landlord: n. a person who owns real

died, and the witnesses have all left property and rents or leases it to

239 landlord’s lien

another, called a “tenant.” (See: larceny: n. the crime of taking the lease, lessee, lessor, rent, tenant) goods of another person without permission (usually secretly), with the landlord’s lien: n. the right of a intent of keeping them. It is one form landlord to sell abandoned person- of theft. Some states differentiate be- al property left on rented or leased tween grand larceny and petty larce- premises by a former tenant to ny based on the value of the stolen cover unpaid rent or damages to goods. Grand larceny is a felony with the property. However, to exercise a state prison sentence as a punish- this lien the landlord must careful- ment and petty larceny is usually lim- ly follow procedures which differ in ited to county jail time. (See: grand each state, but generally require larceny, petty larceny, theft) written notice to the ex-tenant and

a public sale. last antecedent rule: n. a doctrine of interpretation (construction) of statutes that any qualifying words or In any country, regardless of phrases refer to the language immedi- what its laws may say, wher- ately preceding the qualifier, unless ever people act upon the prin- common sense shows that it was ciple that the disadvantage of meant to apply to something more dis- one man is the good ofanoth- tant or less obvious. Example: “The er, slavery exists. commercial vehicular license shall not —Booker T. Washington apply to boats, tractors, and trucks, with only four wheels and under three landlord and tenant: n. the name tons...,” the qualifier “only four wheels for the area of law concerning rent- and under three tons” applies only to ing and leasing property and the trucks and not boats or tractors. rights of both the owner and the renter or lessee. (See: landlady, last clear chance: n. a rule of law in landlord, lease, lessee, lessor, determining responsibility for dam- rent, tenant) ages caused by negligence, which provides that if the plaintiff (the lapse: 1) v. to fail to occur, particu- party suing for damages) is negli- larly gift a made in a will. 2) v. to gent, that will not matter if the de- become non-operative. 3) n. the fendant (the party being sued for termination of a gift made by will damages caused by his/her negli- or for future distribution from a gence) could have still avoided the trust, caused by the death of the accident by reasonable care in the person to whom the gift was in- final moments (no matter how tended (the beneficiary, legatee, slight) before the accident. The theo- devisee) prior to the death of the ry is that although the plaintiff may person making the will or creating have been negligent, his/her negli- the trust (the testator, trustor or gence no longer was the cause of the settlor). (See: beneficiary, de- accident because the defendant could visee, legatee, trust, will) have prevented the accident. Most commonly applied to auto accidents.

240 law

a typical case of last clear chance lateral support: n. the right of a land- would be when one driver drifts owner to assurance that his/her over the center line, and this ac- neighbor’s land will provide support tion was noted by an oncoming dri- against any slippage, cave-in or ver who proceeds without taking landslide. Should the adjoining simple evasive action, crashes into owner excavate into the soil for any the first driver and is thus liable reason (foundation, basement, level- for the injuries to the first driver ing) then there must be a retaining who was over the line. In the few wall constructed (or other protective states which apply the strict “con- engineering) to prevent a collapse. A tributory negligence” rule which classic example: a developer excavat- keeps a negligent plaintiff from ed into a hill along both the western recovering damages from a negli- and southern lines to create a pad for gent defendant, “last clear chance” an apartment building and delayed can save the careless plaintiff’s putting in the retaining wall. Cracks lawsuit. (See: comparative negli- appeared in the buildings next to the gence, contributory negligence, digging site, and the owners filed a negligence) lawsuit asking for an injunction to require the developer to build a wall. last will and testament: n. a fancy The judge so ordered, but the cave-in and redundant way of saying “will.” occurred anyway, the neighboring Lawyers and clients like the formal buildings toppled into the hole, and, resonance of the language. Will and in the subsequent lawsuit by the testament mean the same thing. A owners of the neighboring fallen document will be the “last” will if buildings, the developer had to pay the maker of it dies before writing the entire value of the buildings another one. (See: will) which were destroyed. Most lateral support problems are less dramatic. latent defect: n. a hidden flaw, weak-

ness or imperfection in an article law: n. 1) any system of regulations to which a seller knows about, but the govern the conduct of the people of a buyer cannot discover by reasonable community, society or nation, in re- inspection. It includes a hidden sponse to the need for regularity, con- defect in the title to land, such as an sistency and justice based upon collec- incorrect property description. Gen- tive human experience. Custom or con- erally, this entitles the purchaser to duct governed by the force of the local get his/her money back (rescind the king were replaced by laws almost as deal) or get a replacement without a soon as man learned to write. The ear- defect on the basis of “implied” liest lawbook was written about 2100 warranty of quality that a buyer B.C. for Ur-Nammu, king of Ur, a Mid- could expect (“merchantability”). dle Eastern city-state. Within three Even an “as is” purchase could be centuries Hammurabi, king of Babylo- rescinded if it could be shown the nia, had enumerated laws of private seller knew of the flaw. (See: im- conduct, business and legal prece- plied warranty, product liabili- dents, of which 282 articles have sur- ty, rescision, warranty) vived. The term “eye for an eye” (or the

241 law and motion calendar

equivalent value) is found there, as to the greater complexity of modem is drowning as punishment for adul- life. 2) n. a statute, ordinance or tery by a wife (while a husband regulation enacted by the legislative could have slave concubines), and branch of a government and signed unequal treatment of the rich and into law, or in some nations created the poor was codified here first. It by decree without any democratic took another thousand years before process. This is distinguished from written law codes developed among “natural law,” which is not based on the Greek city-states (particularly statute, but on alleged common under- Athens) and Israel. China developed standing of what is right and proper similar rules of conduct, as did (often based on moral and religious Egypt. The first law system which precepts as well as common under- has a direct influence on the Ameri- standing of fairness and justice). 3) n. can legal system was the codification a generic term for any body of regula- of all classic law ordered by the tions for conduct, including specialized Roman Emperor Justinian in 528 rules (military law), moral conduct and completed by 534, becoming the under various religions and for organi- law of the Roman empire. This is zations, usually called “bylaws.” (See: known as the Justinian Code, upon bylaws, code, common law, courts, which most of the legal systems of malum in se, malum prohibitum, most European nations are based to maritime law, natural law, statute) this day. The principal source of

American law is the common law, law and motion calendar: n. a court which had its roots about the same calendar in which only motions and time as Justinian, among Angles, special legal arguments are heard. Britons and later Saxons in Britain.

William the Conqueror arrived in law book: n. any of numerous volumes 1066 and combined the best of this dealing with law, including statutes, Anglo-Saxon law with Norman law, reports of cases, digests of cases, com- which resulted in the English commentaries on particular topics, ency- mon law, much of which was by cus- clopedias, textbooks, summaries of the tom and precedent rather than by law, dictionaries, legal forms and vari- written code. The American colonies ous combinations of these such as case followed the English Common Law reports with commentaries. Statutes with minor variations, and the four- of every state and the Federal Code volume Commentaries on the Laws are published, usually with comments, of England by Sir William Black- “annotations” and brief statements stone (completed in 1769) was the of decisions which contribute to the legal “bible” for all American frontier interpretations of each particular lawyers and influenced the develop- statute. The written reports of appel- ment of state codes of law. lb a great late cases are collected for every state, extent common law has been re- the federal government, England and placed by written statutes, and a gi- many other countries. Collections of gantic body of such statutes have digests (brief summaries) of case deci- been enacted by federal and state sions divided by topics are available legislatures supposedly in response for each state as well as federal

242 )

leading question

rulings. There are books on almost expert witness) or a document or every legal subject. Almost all collec- other piece of evidence which as- tions of statutes, digests, form books sures the court of the talent and ex- and commentaries are regularly perience of a witness or the authen- updated with the latest decisions, ticity of the document or article. Ex- legislative enactments and recent ample: a medical report cannot be in- comments, often with loose-leaf troduced unless the physician who

“pocket parts” added each year, and wrote it testifies that he wrote it, or completely new volumes when nu- a photograph must be authenticated merous changes have accumulated. by the photographer or by testimony Many of the books are now being re- that it truly reflects a particular placed or supplemented by computer place or event. An expert witness is disks or computer modem services. qualified by testimony as to experi- The earliest known law book was ence and training. (See: evidence) written in 2100 B.C. for the king of

Ur. (See: common law, law, Shep- leading: 1) v. short for “leading the wit- ardize, statute) ness,” in which the attorney during a trial or deposition asks questions in a law of admiralty: n. statutes, cus- form in which he/she puts words in the toms and treaties dealing with ac- mouth of the witness or suggests the

tions on navigable waters. It is answer. Leading is improper if the at-

synonymous with maritime law. torney is questioning a witness called (See: Jones Act, maritime law) by that attorney and presumably friendly to the attorney’s side of the law of the case: n. once a judge has case. Thus, the opposing attorney will

decided a legal question during the object that a question is “leading,” and conduct of a lawsuit, he/she is un- if so the judge will sustain (uphold) the likely to change his/her views and objection and prohibit the question in will respond that the ruling is the that form. However, leading questions “law of the case.” are permissible in cross-examination of a witness called by the other party law of the land: n. a slang term for or if the witness is found to be hostile existing laws. or adverse to the position of the attorney conducting the questioning. 2) adj. lawsuit: n. a common term for a referring to a question asked of a wit- legal action by one person or entity ness which suggests the answer. (See: against another person or entity, to leading the witness, objection, ad- be decided in a court of law, some- verse witness, hostile witness, times just called a “suit.” The legal cross-examination claims within a lawsuit are called “causes of action.” (See: case, leading question: n. a question asked cause of action, suit) of a witness by an attorney during a trial or a deposition (questioning lay a foundation: v. in evidence, to under oath outside of court), suggest- provide to the judge the qualifica- ing an answer or putting words in the tion of a witness (particularly an mouth of the witness. Such a question

243 )

leading the witness

is often objected to, usually with the standard; inclusion or exclusion of simple objection: “leading.” A leading property taxes and insurance in rent; question is allowable only when di- limitations on use (for a butcher shop, rected to the opposing party to the a residence for the family only, no lawsuit or to an “adverse witness” pets); charges for staying on beyond during cross-examination (the the term (holding over); any right to chance to question after direct testi- renew the lease for another period; mony) on the basis that such a wit- and/or a requirement for payment of ness can readily deny the proposed attorneys’ fees and costs in case of the wording. Typical improper leading need to enforce the lease (including question: “Didn’t the defendant ap- eviction). A lease is distinguished pear to you to be going too fast in the from a mere renting of the premises limited visibility?” The proper ques- on a month-to-month basis and can- tion would be: “How fast do you esti- not exceed a year unless agreed to in mate the defendant was going?” fol- writing. A “triple net” lease includes lowed by “What was the visibility?” both taxes and insurance in the rent. and “How far could you see?” (See: 2) v. to rent out real property or an ob- cross-examination, objection) ject pursuant to a written agreement. (See: holding over tenancy, lease, leading the witness: n. asking a leasehold, real property, rent, question during a trial or deposition statute of frauds, triple net lease, which puts words in the mouth of unlawful detainer) the witness or suggests the answer,

which is improper questioning of a leasehold: n. the real estate which is witness called by that attorney, but the subject of a lease (a written rental is proper in cross-examination or al- agreement for an extended period of lowed if a witness is declared by the time). The term is commonly used to judge to be a hostile or adverse wit- describe improvements on real prop- ness. (See: leading, objection, ad- erty when the improvements are built

verse witness, hostile witness, on land owned by one party which is cross-examination leased for a long term (such as 99 years) to the owner of the building. lease: 1) n. a written agreement in For example, the Pacific Land Com-

which the owner of property (either pany owns a lot and leases it for 99 real estate or some object like an years to the Highrise Development automobile) allows use of the prop- Corporation, which builds a 20-story erty for a specified period of time apartment building and sells each (term) for specific periodic pay- apartment to individual owners as ments (rent), and other terms and condominiums. At the end of the 99 conditions. Leases of real property years the building has to be moved describe the premises (often by ad- (impossible), tom down, sold to Pacif- dress); penalties for late payments, ic (which need not pay much since the termination upon default of pay- building is old and Highrise has no ment or breach of any significant choice), or a new lease negotiated. Ob- conditions; increases in rent based viously, toward the end of the 99 on cost of living or some other years the individual condominiums

244 legal aid society

will go down in value, partly from advertising professional services were fear of lessened resale potential. unconstitutional abridgments of free This is generally theoretical (except speech. While legal advertising may to lending companies because the have the benefit of announcing spe- security does not include the land) cialties like worker’s compensation or since there are few buildings with bankruptcy, the size, frequency and less than 50 or 60 years to go on the message bear little relationship to the leases or their expected lifetimes, quality of the lawyers advertising. although there are some commer- (See: attorney advertising) cial buildings which are within 20 years of termination of such leases. legal age: n. the age at which a person In most cases the buildings are ob- is responsible for his/her own actions solete by the end of the leasehold. (including the capacity to enter into a (See: condominium, lease) contract which is enforceable by the other party), for damages for negli- legacy: n. a gift of personal property gence or intentional wrongs without a or money to a beneficiary (legatee) parent being liable and for punish- of a will. While technically legacy ment as an adult for a crime. In almost

does not include real property all states the basic legal age is 18, (which is a “devise”), legacy usually which is the universal American vot- refers to any gift from the estate of ing age under the 26th Amendment to one who has died. It is synonymous the Constitution, ratified in 1971. The with the word “bequest.” (See: ben- national legal age for drinking or buy- eficiary, bequest, legatee, will) ing alcoholic beverages is 21. Marriage with or without parental consent, dri- legal: adj., adv. according to law, not ving, prosecution for crimes, the right in violation of law or anything relat- to choose an abortion and liability for ed to the law. damages vary from state to state. (See: infancy, juvenile court, minority) legal action: n. any lawsuit, peti-

tion or prosecution. legal aid society: n. an organization formed to assist persons who have lim- legal advertising: n. 1) notices of ited or no financial means but need probate sales and other documents legal help, usually sponsored by the required by law to be published in local bar association’s donations, some- court-approved local newspapers of times with some local governmental general circulation. 2) commercials financial support. Such societies exam- for the legal services of lawyers and ine the assets and income of the appli-

law firms, which may range from cant, decide if the person has a legiti- television spots with actors to gar- mate need for legal services, give ish ads in telephone books’ yellow counselling, provide mediation, pre- pages. Such advertising would have pare simple documents, and if ab- been cause for disbarment for ille- solutely necessary give free legal assis- gal solicitation of legal services tance from a panel of volunteer attor- until the U.S. Supreme Court ruled neys. Originally most prevalent in in 1977 that restrictions on larger cities, legal aid societies exist

245 legal duty

throughout the country. They do not divorce, who hold strong religious ob- usually provide assistance in crimi- jections to divorce or who hope to

nal cases because indigent defen- save a marriage, legal separation is dants are constitutionally entitled to an apparent solution. With more representation by a public defender states allowing no-fault divorce, the or appointed private counsel paid by use of separation agreements and in- the government. Some societies pro- formal separation, legal separation is vide referral services to help a per- rarely used. (See: divorce) son find a suitable attorney, but nor-

mally referral is made by the local legal services: n. the work performed

bar association. (See: pro bono ) by a lawyer for a client.

legal duty: n. the responsibility to legal tender: n. all money issued by the others to act according to the law. government. Proving the duty (such as not to be

negligent, to keep premises safe, or legatee: n. a person or organization re- to drive within the speed limit) and ceiving a gift of an object or money then showing that the duty was under the terms of the will of a person breached are required elements of who has died. Although technically a any lawsuit for damages due to neg- legatee does not receive real property ligence or intentional injuries. (See: (a devisee), “legatee” is often used to duty of care) designate a person who takes anything pursuant (according) to the legalese: n. slang for the sometimes terms of a will. The best generic term arcane, convoluted and specialized is beneficiary, which avoids the old- jargon of lawyers and legal scholars. fashioned distinctions between legatees taking legacies (personal proper- legal fiction: n. a presumption of ty) and devisees taking devises (real fact assumed by a court for conve- property), terms which date from the nience, consistency or to achieve Middle Ages. (See: beneficiary, de- justice. There is an old adage: “Fic- vise, devisee, legacy, will) tions arise from the law, and not

law from fictions.” legitimate: adj., adv.: 1) legal, proper, real. 2) referring to a child bom to par- legal separation: n. a court-decreed ents who are married. A baby bom to

right to live apart, with the rights parents who are not married is illegit-

and obligations of divorced per- imate, but can be made legitimate (le- sons, but without divorce. The par- gitimatized) by the subsequent mar-

ties are still married and cannot re- riage of the parents. 3) v. to make prop- marry. A spouse may petition for a er and/or legal. legal separation usually on the same basis as for a divorce, and in- lemon law: n. statutes adopted in some

clude requests for child custody, states to make it easier for a buyer of alimony, child support and division a new vehicle to sue for damages or re- of property. For people who want placement if the dealer or manufac-

to avoid the supposed stigma of turer cannot make it run properly

246 letters of administration

after a reasonable number of at- tenant. (See: landlord, landlord tempts to fix the car. Without a and tenant, lease, lessee, tenant) “lemon law” auto makers have often demanded the buyer come back a There is no country (like the dozen times and give up use of the United States) in the world in car for lengthy periods while they which the doing of justice is test it, claiming they are “still try- burdened by such heavy over- ing” to make it run right. head charges or in which so great a force is maintained for lessee: n. the person renting proper- a given amount of litigation. ty under a written lease from the —Elihu root owner (lessor). He/she/it is the tenant and the lessor is the landlord.

(See: landlord, landlord and let: v. 1) to allow or permit. This is dis- tenant, lease, lessor, tenant) tinguished from “against one’s will.” The word can be very important legal- lesser crime: n. (See: lesser-in- ly, as in the statement “Lucy let John- cluded offense) ny have sexual relations with her,” which can make a huge difference in a lesser-included offense: n. in crimi- claim of rape. 2) to lease or rent real nal law, a crime which is proved by property, particularly a room or apart- the same facts as a more serious ment, to another person. (See: lease, crime. Example: Ignatz “Itchy” Fin- rent, sublease)

gers is charged with armed robbery, but the prosecution fails to prove letter of credit: n. a document issued Itchy used his pistol since the vic- by a bank guaranteeing to provide a tims do not recall the gun, but does customer a line of credit (automatic

prove he took the jewels. Thus, he is loan up to a certain amount) for convicted of larceny, which is a less- money or security for a loan. Such a er form of theft and he will receive a letter is used primarily to facilitate lighter sentence. A common example long-distance business transactions.

is the so-called “wet reckless,” which

is the crime of driving recklessly letters: n. shorthand for letters testa- after some drinking, but not neces- mentary or letters of administration. sarily while drunk. In plea bargains (See: letters of administration,

for first offenders in close cases the letters testamentary) driver may plead guilty or “no contest” to this lesser-included offense letters of administration: n. a docu- instead of drunk driving, which car- ment issued by the court clerk which ries a more severe penalty, including states the authority of the administra- jail time. (See: plea bargain) tor of an estate of a person who has

died, when there is no will or no avail- lessor: n. the owner of real property able executor named by a will and

who rents it to a lessee pursuant to an administrator has been appointed a written lease. Thus, he/she/it is by the court. It is issued during pro- the landlord and the lessee is the bate of the estate as soon as the court

247 letters testamentary

approves the appointment of the ad- vacancies and/or inability to finance ministrator, who files a security improvements to increase profits. Too bond if one is required. Certified often the result is the collapse of copies of the letters are often re- “paper” real estate empires which quired by banks and other financial have been created by risky leveraging. institutions, the federal government,

stock transfer agents or other courts levy: 1) v. to seize (take) property upon a before transfer of money or assets to writ of execution (an order to seize the administrator of the estate. (See: property) issued by the court to pay a executor, probate) money judgment granted in a lawsuit. The levy is actually made by a sheriff letters testamentary: n. a document or other official at the request of the issued by the court clerk which holder of the judgment (the winner in states the authority of the executor the lawsuit), and the property will be of an estate of a person who has sold at a sheriffs sale to provide died. It is issued during probate of money to satisfy the unpaid judgment.

the estate as soon as the court ap- 2) v. the act of a governmental legisla- proves the appointment of the ex- tive body, such as a board of supervi- ecutor named in the will and the ex- sors or commissioners assessing a tax

ecutor files a security bond if one is on all property, all sales, business li- necessary (most well-drafted wills censes or any thing or transaction waive the need for a bond). Certified which may be taxed. Thus, the county copies of the letters are often re- ‘levies” a tax on businesses. 3) n. the quired by banks and other financial seizure of property to satisfy a judg- institutions, the federal government. (See: creditor’s rights, sher- ment, stock transfer agents or other iffs sale, tax, writ of execution) courts before transfer of money or

assets to the executor of the estate. lewd and lascivious: adj., adv. refer- (See: administrator, probate) ences to conduct which includes people living together who are known not leverage: 1) n. the use of borrowed to be married, entertainment which money to purchase real estate or aims at arousing the libido or primar- business assets, usually involving ily sexual sensation, open solicitation money equaling a high percentage of for prostitution or indecent exposure the value of the purchased property. of genitalia (which is itself a crime). 2) v. to borrow most of the funds nec- Due to the tendency of judges to be essary as a loan against real estate overly careful in writing about moral to buy other real estate or business and/or sexual matters the definitions assets. The dangers of high leverage have been cloaked in old-fashioned are over-appraisal of the property to modesty. Today the term usually ap- satisfy a lender, a decline in the plies to pornography, prostitution and value of the property (which may indecent acts. (See: indecent expo- have been purchased during a peri- sure, pornography, prostitution) od of high inflation), high carrying costs (interest, insurance, taxes, liability: n. one of the most significant maintenance) which exceed income, words in the field of law, liability

248 libel means legal responsibility for one’s time. (See: contract, joint liability, acts or omissions. Failure of a per- joint tortfeasors, negligence) son or entity to meet that responsibility leaves him/her/it open to a liable: adj. responsible or obligated. lawsuit for any resulting damages Thus, a person or entity may be li- or a court order to perform (as in a able for damages due to negligence, breach of contract or violation of liable to pay a debt, liable to perform statute). In order to win a lawsuit an act which he/she/it contracted to the suing party (plaintiff) must do, or liable to punishment for com- prove the legal liability of the de- mission of a crime. Failure to meet fendant if the plaintiff’s allegations the responsibility or obligation opens are shown to be true. This requires one up to a lawsuit, and committing evidence of the duty to act, the fail- a crime can lead to a criminal prose- ure to fulfill that duty and the con- cution. (See: liability) nection (proximate cause) of that failure to some injury or harm to libel: 1) n. to publish in print (includ- the plaintiff. Liability also applies ing pictures), writing or broadcast to alleged criminal acts in which through radio, television or film, an the defendant may be responsible untruth about another which will do for his/her acts which constitute a harm to that person or his/her repu- crime, thus making him/her subject tation, by tending to bring the target to conviction and punishment. Ex- into ridicule, hatred, scorn or con- ample: Jack Jumpstart runs a stop tempt of others. Libel is the written sign in his car and hits Sarah Step- or broadcast form of defamation, dis- forth as she is crossing in the cross- tinguished from slander, which is walk. Jack has a duty of care to oral defamation. It is a tort (civil Sarah (and the public) which he wrong) making the person or entity breaches by his negligence, and (like a newspaper, magazine or polit- therefore has liability for Sarah’s ical organization) open to a lawsuit injuries, giving her the right to for damages by the person who can bring a lawsuit against him. How- prove the statement about him/her ever, Jack’s father owns the auto- was a lie. Publication need only be to mobile and he, too, may have liabil- one person, but it must be a state- ity to Sarah based on a statute ment which claims to be fact and is which makes a car owner liable for not clearly identified as an opinion. any damages caused by the vehicle While it is sometimes said that the he owns. The father’s responsibility person making the libelous state- is based on “statutory liability” ment must have been intentional even though he personally and malicious, actually it need only breached no duty. A signer of a be obvious that the statement would promissory note has liability for do harm and is untrue. Proof of mal- money due if it is not paid and so ice, however, does allow a party would a co-signer who guarantees defamed to sue for general damages it. A contractor who has agreed to for damage to reputation, while complete a building has liability to an inadvertent libel limits the dam- the owner if he fails to complete on ages to actual harm (such as loss of

249 libel per se

business) called special damages. about another which accuses him/her Libel per se involves statements so of a crime, immoral acts, inability to vicious that malice is assumed and perform his/her profession, having a does not require a proof of intent to loathsome disease (like syphilis) or get an award of general damages. dishonesty in business. Such claims Libel against the reputation of a are considered so obviously harmful person who has died will allow sur- that malice need not be proved to ob- viving members of the family to tain a judgment for “general dam- bring an action for damages. Most ages,” and not just specific losses. states provide for a party defamed (See: defamation, libel, slander) by a periodical to demand a published retraction. If the correction liberty: n. freedom from restraint and is made, then there is no right to the power to follow one’s own will to file a lawsuit. Governmental bod- choose a course of conduct. Liberty, ies are supposedly immune to ac- like freedom, has its inherent tions for libel on the basis that restraint to act without harm to there could be no intent by a non- others and within the accepted rules of personal entity, and further, public conduct for the benefit of the records are exempt from claims of general public. libel. However, there is at least one

known case in which there was a license: 1) n. governmental permission financial settlement as well as a to perform a particular act (like get- published correction when a state ting married), conduct a particular government newsletter incorrectly business or occupation, operate ma- stated that a dentist had been dis- chinery or vehicles after proving abili- ciplined for illegal conduct. The ty to do so safely or use property for a rules covering libel against a “pub- certain purpose. 2) n. the certificate lic figure” (particularly a political that proves one has been granted au- or governmental person) are spe- thority to do something under govern- cial, based on U.S. Supreme Court mental license. 3) n. a private grant of decisions. The key is that to uphold right to use real property for a partic- the right to express opinions or fair ular purpose, such as putting on a comment on public figures, the concert. 4) n. a private grant of the libel must be malicious to consti- right to use some intellectual property tute grounds for a lawsuit for dam- such as a patent or musical composi-

ages. Minor errors in reporting are tion. 5) v. to grant permission by gov- not libel, such as saying Mrs. ernmental authority or private agree- Jones was 55 when she was only ment. (See: licensee, licensor) 48, or getting an address or title incorrect. 2) v. to broadcast or pub- licensee: n. a person given a license by lish a written defamatory state- the government or under private ment. (See: defamation, libel agreement. (See: license, licensor) per se, public figure, slander) licensor: n. a person who gives another libel per se: n. broadcast or written a license, particularly a private party publication of a false statement doing so, such as a business giving

250 —

life estate

someone a license to sell its product. funds recovered by his/her efforts, a (See: license, licensee) medical lien for medical bills to be paid from funds recovered for an in- lie detector test: n. a popular name jury, a landlord’s lien against a ten- for a polygraph which tests the ant’s property for unpaid rent or dam- physiological reaction of a person to ages, a tax lien to enforce the govern- questions asked by a testing expert. ment’s claim of unpaid taxes, or the A potential or actual criminal de- security agreement (UCC-1) autho- fendant or possible witness cannot rized by the Uniform Commercial be forced or ordered to take a lie de- Code. Most liens are enforceable in tector test. Some habitual liars pass the order in which they were recorded lie detector tests, and innocent, or filed (in the case of security agree- honest people fail them due to ner- ments), except tax liens, which have vousness and other factors. Howev- priority over the private citizen’s er, law enforcement authorities claim. (See: abstract of judgment, usually believe the results, which deed of trust, equitable lien, judg- occasionally exonerate (clear) a sus- ment debtor, landlord’s lien, me- pect. Since the results are some- chanic’s lien, mortgage) times unreliable, they are not admissible in a trial and may not be lienor: n. a person who holds a lien on referred to. (See: polygraph) another’s property or funds. (See: lien) lien: n. any official claim or charge life estate: n. the right to use or occu- against property or funds for pay- py real property for one’s life. Often ment of a debt or an amount owed this is given to a person (such as a for services rendered. A lien is usu- family member) by deed or as a gift ally a formal document signed by under a will with the idea that a the party to whom money is owed younger person would then take the and sometimes by the debtor who property upon the death of the one

agrees to the amount due. A lien who receives the life estate. Title carries with it the right to sell prop- may also return to the person giving erty, if necessary, to obtain the or deeding the property or to his/her money. A mortgage or a deed of trust surviving children or descendants

is a form of lien, and any lien upon the death of the life tenant against real property must be this is called “reversion.” Example of recorded with the County Recorder creation of a life estate: “I grant to my to be enforceable, including an ab- mother, Molly McCree, the right to stract of judgment which turns live in and/or receive rents from said

a judgment into a lien against the real property, until her death,” or “I judgment debtor’s property. There give my daughter, Sadie Hawkins, are numerous types of liens includ- said real property, subject to a life ing: a mechanic’s lien against the estate to my mother, Molly McCree.” real property upon which a work- This means a woman’s mother, man, contractor or supplier has pro- Molly, gets to live in the house until vided work or materials, an attor- she dies, then the woman’s daughter, ney’s hen for fees to be paid from Sadie, will own the property.

251 life without possibility of parole

life without possibility of parole: such as bankruptcy, claims against n. a sentence sometimes given for the government, probate, family particularly vicious criminals in matters, immigration and customs murder cases or to repeat felons, or limitations on courts’ authority particularly if the crime is commit- to try cases involving maximum ted in a state which has no death amounts of money or value. (See: penalty, the jury chooses not to im- court, jurisdiction) pose the death penalty, or the judge

feels it is simpler to lock the prison- The ardor and stress conflict er up and “throw away the key” of are not favorable to abstract con- rather than invite years of appeals siderations justice. while the prisoner languishes on of — ChiefJustice Harlan F. Stone death row. Opponents of capital punishment often advocate this penalty as a substitute for execu- limited liability: n. the maximum tion. It guarantees the criminal will amount a person participating in a not endanger the public, and the business can lose or be charged in case prospect of never being outside of claims against the company or its prison is severe punishment. Con- bankruptcy. A stockholder in a corpo- trary arguments are that this penal- ration can only lose his/her invest- ty does not deter murderers, there is ment, and a limited partner cam only always the possibility of escape or lose his/her investment, but a general

killing a guard or fellow prisoner, or partner cam be responsible for all the some soft-hearted Governor may debts of the partnership. Parties to a someday reduce the sentence. (See: contract can limit the amount each three strikes, you’re out) might owe the other, but cannot contract away the rights of a third party limitation of actions: n. the period to make a claim. (See: corporation, of time in which a person has to file general partnership, limited part- with the clerk of the court or appro- nership, liquidated damages, part- priate agency what he/she believes nership, shareholder) is a valid lawsuit or claim. The period varies greatly depending on limited partnership: n. a special

what type of case is involved, type of partnership which is very whether the suit is against the gov- common when people need funding ernment, whether it is by a minor, for a business, or when they are and most importantly, in what state putting together an investment in a or federal jurisdiction the right to real estate development. A limited sue arose. This is more commonly partnership requires a written called the statute of limitations, agreement between the business which are specific periods for vari- management, who is (are) general ous claims in each state. (See: partner or partners, and all of the statute of limitations) limited partners. Each limited partner makes an investment of funds limited jurisdiction: n. courts’ au- into the partnership and is supposed thority over certain types of cases to receive a pre-stated share of the

252 lineup profit, which is ordinarily greater in a corporation. In addition to prior- than that of each of the general ity in profit, tax deductions, and po- partners up to a point (such as re- tential share in the success of the en- turn of the investment), and, terprise, the limited partner is “lim- thereafter, the limited partners ited” in potential loss, since all will receive a lesser share than the he/she can lose is his/her invest- general partner(s). The limited ment, and the general partners partners also will receive the tax alone are subject to claims, debts in benefit of a “passed through” loss bankruptcy and lawsuits against the (a personal income tax deduction partnership. Limited partnerships for part of the loss) during the de- must file their name and names and velopment stages of the partner- addresses of general partners with ship when the expenses exceed any the Secretary of State or other receipts. Quite often there is also a designated officer in the state in provision for eventual buy-out of which the partnership is created so the limited partners by the gener- the public can find out who the real partner(s). The limited partners sponsible parties are. Like a corpora- may not participate in the man- tion, a limited partnership may not agement decisions of the partner- have a name which is too similar to ship or they will lose their limited another limited partnership or cor- partnership status. They do have poration. (See: corporation, gener- the power to vote to remove the al partner, limited liability, part- general partner(s), although usu- ner, partnership) ally the partnership agreement is structured so that such removal is lineal descendant: n. a person who is virtually impossible unless the in direct line to an ancestor, such as general partner in question has child, grandchild, great-grandchild committed fraud. Since the limited and on forever. A lineal descendant is investors have no control of the distinguished from a “collateral” de- conduct over the partnership, they scendant, which would be from the should make sure they have con- line of a brother, sister, aunt or uncle. siderable knowledge about the rep- (See: descent and distribution) utation and record of the general partner(s) and the type of busi- lineup: n. a law enforcement method ness. In fact, state laws require used in an attempt to have a witness that there be some pre-existing ac- or victim identify a person suspected quaintanceship between the gener- of committing a crime. The suspect al and the limited partners or a de- is included in a line of people, includ- tailed prospectus provided by the ing non-criminals and others (such as general partner(s) meeting very plainclothesmen, office clerks, etc.). stringent and specific federal re- Law enforcement officials ask each quirements of disclosure. The max- person in the lineup to speak and imum number of limited partners turn to profile, while the witness or is set by state law to prevent using victim studies each of them and then interests in the limited partner- is asked which person in the lineup, ship as if they were shares of stock if any, committed the crime in his/her

253 liquidate

presence. One danger with this sys- notice of pending action) is filed with

tem is that the officers will suggest the clerk of the court, certified that it by manner or tone which is the sus- has been filed, and then recorded with pect, or that one person in the line- the County Recorder. This gives notice up appears, by dress or conduct, to to the defendant who owns real estate seem more suspicious. This type of that there is a claim on the property, identification is precarious at best. and the recording informs the general public (and particularly anyone inter-

liquidate: v. to sell the assets of a ested in buying or financing the prop-

business, paying bills and dividing erty) that there is this potential claim

the remainder among sharehold- against it. The lis pendens must in- ers, partners or other investors. clude a legal description of the real (See: wind up) property, and the lawsuit must in-

volve the property. Otherwise, if there

liquidated damages: n. an amount is a petition to remove the lis pendens of money agreed upon by both par- from real property not involved in the ties to a contract which one will lawsuit, the plaintiff who originally

pay to the other upon breaching recorded a false lis pendens will be (breaking or backing out of) the subject to payment of attorney’s fees agreement or if a lawsuit arises as a penalty. Example: Joe Plumbob due to the breach. Sometimes the provides work and materials to liquidated damages are the Smith’s home, sues to enforce a me-

amount of a deposit or a down pay- chanic’s hen, but records a lis pendens ment, or are based on a formula describing three other properties (such as 10% of the contract owned by Smith; Plumbob can be pe- amount). The non-defaulting party nalized by court order. may obtain a judgment for the amount of liquidated damages, literary property: n. the writings of an often based on a stipulation (clear author which entitles him/her to the statement) contained in the con- use of the work, including publication, tract, unless the party who has and sale or license for a profit to oth- breached the contract can make a ers who will then have the right to

strong showing that the amount of publish it. Literary property includes liquidated damages was so “uncon- books, articles, poetry, movie scripts, scionable” (far too high under the computer programs and any writing circumstances) that it appears which lends itself to publication or there was fraud, misunderstand- use. A close question can arise when a ing or basic unfairness. (See: con- professional writer sends letters to tract, damages) others: are they literary property? Probably not if they were intended to

lis pendens : (lease pen-dense) n. be just personal communications. J. Latin for “a suit pending,” a written D. Salinger, author of The Catcher in notice that a lawsuit has been filed the Rye, thought otherwise and sued which concerns the title to real to prevent use of his letters sent to an- property or some interest in that other writer. The case was compro- real property. The lis pendens (or mised and settled. To protect any

254 loiter

literary work and profits from it, the the trustor(s) or settlors) receive ben- writer should mark it as copyright- efits) from the profits of the trust dur- ed. (See: copyright) ing their lifetimes, followed by a distribution upon the death of the last litigant: n. any party to a lawsuit. trustor (settlor) to die, or the trust con- This means plaintiff, defendant, tinues on for the benefit of others (such petitioner, respondent, cross-com- as the next generation) with profits plainant and cross-defendant, but distributed to them. There are other not a witness or attorney. types of living trusts including irrevocable trust, insurance trust, charitable litigation: n. any lawsuit or other re- remainder trust and some special- sort to the courts to determine a ized trusts to manage some parts legal question or matter. of the assets of a person or persons. (See: beach bum trust provision, litigious: adj. referring to a person beneficiary, charitable remainder who constantly brings or prolongs trust, inter vivos, living will, revo- legal actions, particularly when the cable trust, settlor, spendthrift legal maneuvers are unnecessary clause, trust, trustee, trustor) or unfounded. Such persons often enjoy legal battles, controversy, the living will: n. also called “a durable

courtroom, the spotlight, use the power of attorney,” it is a document au- courts to punish enemies, seek prof- thorized by statutes in all states in

it, and pursue minor matters which which a person appoints someone as do not deserve judicial attention. his/her proxy or representative to Some of these people are called “pro- make decisions on maintaining extra-

fessional plaintiffs.” ordinary life-support if the person be-

comes too ill, is in a coma or is certain living trust: n. sometimes called an to die. In most states the basic lan- inter vivos (Latin for “within one’s guage has been developed by medical life”) trust, a trust created by a dec- associations or other experts and may laration of trust executed by the provide various choices as to when

trustor or trustors (also called settlor such maintenance of life can be termi- or settlors) during his/her/their life- nated. The decision must be made in time, as distinguished from a “testa- consultation with the patient’s doctor. mentary trust,” which is created by The living will permits a terminal pa- a will and only comes into force upon tient to die in dignity and protects the the death of the person who wrote physician or hospital from liability for

the will. A living trust should not be withdrawing or limiting life support. confused with a “living will,” which (See: power of attorney) provides for medical care decisions

when a person is terminally ill. locus: (low-cuss) n. Latin for “place,” While a living trust is a generic it means “place which” this or name for any trust which comes into that occurred. existence during the lifetime of the

person or persons creating the trust, loiter: v. to linger or hang around in a most commonly it is a trust in which public place or business where one

255 long-arm statute

has no particular or legal purpose. busy court calendars. If a trial esti- In many states, cities and towns mated as a “short cause” turns out to there are statutes or ordinances take longer than one day, the judge against loitering by which the po- may declare a mistrial and force the lice can arrest someone who refus- parties to try the case over again es to “move along.” There is a ques- from scratch at a later date as a tion as to whether such laws are “long cause.” (See: calendar call, constitutional. However, there is court calendar, short cause) often another criminal statute or

ordinance which can be applied loss: n. 1) the value placed on injury or specifically to control aggressive damages due to an accident caused begging, soliciting prostitution, by another’s negligence, a breach of drug dealing, blocking entries to contract or other wrongdoing. The stores, public drunkenness or amount of monetary damages can be being a public nuisance. determined in a lawsuit. 2) when expenses are greater than profits, the long-arm statute: n. law which difference between the amount of gives a local state court jurisdiction money spent and the income. (See: over an out-of-state company or in- damages) dividual whose actions caused damage locally or to a local resident. loss of bargain: n. the inability to The legal test is whether the out-of- complete a sale or other business state defendant has contacts within deal, caused by another’s breach of the state which are “sufficiently contract, intentional interference substantial.” An accident or injury with one’s business, negligence or within the state usually shows such some other wrongdoing. The amount a substantial contact. This is partic- of monetary damages resulting from ularly important when a driver this loss can be determined in a law- from one state is sued in another suit. (See: damages) state for damages caused by his/her negligence there. It also can be em- loss of consortium: n. the inability of ployed if a product shipped from one’s spouse to have normal marital out-of-state fails, explodes or causes relations, which is a euphemism for damage to a local person who sues sexual intercourse. Such loss arises in the state where he/she resides. as a claim for damages when a The long-arm statute allows spouse has been injured and cannot him/her to get local court jurisdic- participate in sexual relations for a tion over the defendant. period of time or permanently due to the injury, or suffers from mental long cause: n. a lawsuit in which it distress, due to a defendant’s wrong- is estimated that a trial will take doing, which interferes with usual more than one day. In many courts sexual activity. Thus, the uninjured the so-called “short cause” cases spouse can join in the injured mate’s will be scheduled more quickly lawsuit on a claim of loss of consor- than long cause cases, since “short tium, the value of which is specula- cause” cases are easier to fit into tive, but can be awarded if the jury

256 )

lower court

(or judge sitting as trier of fact) is sufficiently impressed by the deprivation. (See: consortium, damages loss of use: n. the inability to use an automobile, premises or some equipment due to damage to the vehicle, premises or articles caused by the negligence or other wrongdoing of another. Examples:

compensation for each day a car is out of commission during repairs or for the period of non-occupancy

while a burned building is restored. A common standard of compensation (payment) is rental value of the automobile or premises, but the period of loss must be “reasonable,” meaning the damages will be limited to a period in which a person would normally and promptly proceed to have the vehicle repaired or arrange reconstruction of the building or premises. (See: damages)

lower court: n. 1) any court of lesser rank, such as municipal or justice court below a superior or county court, a superior or county court below an appeals court, or a federal District Court of Appeals below the U.S. Supreme Court. 2) a reference in an appeal to the trial court which originally heard the case. Typical language in an appeals decision: “In the lower court, the judge ruled Defendant had no basis for....” (See: courts)

257 magistrate: n. 1) a generic term for it became the basis of individual any judge of a court, or anyone offi- rights as a part of the English Con- cially performing a judge’s func- stitution, which is generally more

tions. 2) in a few states, an officer custom than written documents. It is of the court at the lowest level who also spelled Magna Charta. hears small claims lawsuits, serves as a judge for charges of minor mail box rule: n. in contract law, crimes and/or conducts preliminary making a written offer or acceptance hearings in criminal cases to deter- of offer valid if sent in the mail, with mine if there is enough evidence postage, within the time in which presented by the prosecution to the offer must be accepted, unless hold the accused for trial. 3) in fed- the offer requires acceptance by per- eral courts, an official who con- sonal delivery on or before the speci- ducts routine hearings assigned by fied date. The rule may also apply to the federal judges, including pre- mailing payments of insurance preliminary hearings in criminal miums when due. However, relying cases. (See: judge, justice of the on this so-called “rule” can be dan- peace, preliminary hearing) gerous, since the party awaiting the acceptance or payment may cancel Magna Carta: n. Latin for “Great the offer if there is no response in Charter,” it was a document delin- hand when the time runs out. eating a series of laws establishing

the rights of English barons and maim: v. to inflict a serious bodily in- major landowners and limiting jury, including mutilation or any the absolute authority of the King harm which limits the victim’s abili- of England. It became the basis ty to function physically. Originally,

for the rights of English citizens. in English common law it meant It was signed reluctantly by King to cut off or permanently cripple a John on June 15, 1215, at Run- body part like an arm, leg, hand or nymede, at a table set up in a field foot. In criminal law, such serious under a canopy surrounded by the harm becomes an “aggravated” as- armed gentry. The Magna Carta sault, which is a felony subject to a was confirmed by John’s son, prison term. (See: mayhem) Henry III, and in turn by Henry’s

son, Edward I. As John Cowell majority: n. 1) the age when a person would write four centuries later: can exercise all normal legal rights, “although this charter consists of including contracting and voting. It not above thirty seven Charters or is 18 for most purposes, but there are Lawes yet it is of such extent, as rights such as drinking alcoholic all the Law wee have, is thought in beverages which is set at 21. 2) 50 some form to depend on it.” Essen- percent, plus one of votes cast. (See: tially a document for the nobility, child, infancy, minority)

258 malicious prosecution make: v. 1) to create something. 2) to trustees and others cloaked with re- sign a check, promissory note, bill sponsibility. (See: misfeasance) of exchange or some other note which guarantees, promises or or- malice: n. a conscious, intentional ders payment of money. (See: bill wrongdoing either of a civil wrong like of exchange, check, maker, libel (false written statement about promissory note) another) or a criminal act like assault or murder, with the intention of doing make one whole: v. to pay or award harm to the victim. This intention in- damages sufficient to put the party cludes ill-will, hatred or total disre- who was damaged back into the gard for the other’s well-being. Often position he/she would have been in the mean nature of the act itself im- without the fault of another. plies malice, without the party saying

(See: damages) “I did it because I was mad at him, and I hated him,” which would be express maker: n. 1) the person who signs a malice. Malice is an element in first check or promissory note, which degree murder. In a lawsuit for makes him/her responsible for pay- defamation (libel and slander) the ex- ment. 2) a person who endorses a istence of malice may increase the check or note over to another person judgment to include general damages. before it is delivered, making the Proof of malice is absolutely necessary endorser obligated to pay until it is for a “public figure” to win a lawsuit for delivered. (See: check, payee, defamation. (See: defamation, libel, payor, promissory note) malice aforethought, malicious prosecution, murder, public fig- malfeasance: n. intentionally doing ure, slander) something either legally or morally

wrong which one had no right to do. malice aforethought: n. 1) the con- It always involves dishonesty, ille- scious intent to cause death or great gality or knowingly exceeding au- bodily harm to another person before thority for improper reasons. a person commits the crime. Such Malfeasance is distinguished from malice is a required element to prove “misfeasance,” which is committing first degree murder. 2) a general evil a wrong or error by mistake, negli- and depraved state of mind in which gence or inadvertence, but not by in- the person is unconcerned for the tentional wrongdoing. Example: a lives of others. Thus, if a person uses city manager putting his indigent a gun to hold up a bank and an inno- cousin on the city payroll at a wage cent bystander is killed in a shoot- the manager knows is above that al- out with police, there is malice afore- lowed and/or letting him file false thought. (See: first degree murder, time cards is malfeasance; putting malice, murder) his able cousin on the payroll which,

unknown to him, is a violation of an malicious prosecution: n. filing a law- anti-nepotism statute is misfea- suit with the intention of creating sance. This distinction can apply to problems for the defendant such corporate officers, public officials, as costs, attorneys’ fees, anguish, or

259 malpractice

distraction when there is no sub- produce his/her own expert to counter stantial basis for the suit. If the de- that testimony. Professions which are fendant in the lawsuit wins and has subject to lawsuits based on claims of evidence that the suit was filed out malpractice include lawyers, physi- of spite and without any legal or fac- cians, dentists, hospitals, accoun- tual foundation, he/she may, in turn, tants, architects, engineers and real sue for damages against the person estate brokers. In some states in order who filed the original action. If mal- to file an action for malpractice

ice is clearly proved against the against a medical caregiver, there party who brought the original suit, must be a written demand or notice punitive damages may be awarded which gives the physician or hospital along with special and general dam- a chance to settle the matter before a ages. In recent cases, courts have suit is filed. In actions against attor-

ruled that an attorney who know- neys it is mandatory that the plaintiff

ingly assists a client in filing a prove that the error, if any, caused worthless lawsuit out of malice or damages. This means that a lawsuit, spite may be liable for damages claim or negotiation the attorney was along with the client. The suit by the handling would have resulted in a win victim to recover damages for a ma- or better recovery except for the mal-

licious prosecution cannot be filed practice. Thus, there is a requirement

until the original lawsuit is decided of proving the original “case within in favor of the victim. (See: malice) the case” during the trial of the malpractice claim. Contrary to public per- malpractice: n. An act or continuing ception, substantial judgments in mal- conduct of a professional which does practice actions are rare, with studies not meet the standard of profession- showing that only a small percentage al competence and results in prov- of the claims result in recovery for the able damages to his/her client or pa- allegedly aggrieved client or patient.

tient. Such an error or omission The principal reason is that most cries may be through negligence, igno- of malpractice are unfounded and are rance (when the professional should based on unhappiness with the result have known), or intentional wrong- of the original services no matter how doing. However, malpractice does well handled, a breakdown in commu- not include the exercise of profes- nication between attorney or doctor sional judgment even when the re- and client or patient, anger with the sults are detrimental to the client or professional, retaliation for attempts patient. Except in cases of extreme- to collect unpaid fees or greed. (See: ly obvious or intentional wrongs, in errors and omissions) order to prove malpractice there must be testimony of an expert as to malum in se: (mal-uhm in say) adv. the acceptable standard of care ap- Latin referring to an act that is plied to the specific act or conduct “wrong in itself,” in its very nature

which is claimed to be malpractice being illegal because it violates the and testimony of the expert that natural, moral or public principles of a

the professional did not meet that civilized society. In criminal law it is standard. The defendant then can one of the collection of crimes which

260 Mann Act

are traditional and not just created fy a proposition for the ballot, the “ by statute, which are malum pro- city refuses to call the election,

hibitum.” Example: murder, rape, claiming it has a legal opinion that burglary and robbery are malum in the proposal is unconstitutional.

se, while violations of the Securities The backers of the proposition file a and Exchange Act or most “white petition for a writ ordering the city collar crimes” are malum prohibi- to hold the election. The court will tum. (See: malum prohibitum) order a hearing on the writ and afterwards either issue the writ or deny the petition. Or a state agency Restraints upon those rights refuses to release which in primitive and sparse- public information, a school district charges fees to a stu- ly settled communities might dent in violation well be regarded as arbitrary of state law, or a judge will not permit reporters entry and unreasonable, may be in- at a public trial. All of these can be dispensable to the safety and subject of petitions for a writ of man- orderly life ofthe modern city. damus. (See: writ of mandate) —ChiefJustice Harlan F. Stone

mandate: n. 1) any mandatory order or malum prohibitum: (mal-uhm pro- requirement under statute, regula- hibit-uhm) adj. Latin meaning tion, or by a public agency. 2) order of “wrong due to being prohibited,” an appeals court to a lower court (usu- which refers to crimes made so by ally the original trial court in the case) statute, compared to crimes based to comply with an appeals court’s rul-

on English common law and obvi- ing, such as holding a new trial, dis- ous violations of society’s stan- missing the case or releasing a prison- dards which are defined as malum er whose conviction has been over- in se. Statutory crimes include turned. 3) same as the writ of man-

criminal violations of regulatory damus which orders public official , a acts, “white collar crimes” such as or public body to comply with the law. improper use of insider informa- (See: mandamus, writ of mandate) tion, issuance of stocks without a permit which are intentionally not mandatory: adj., adv. absolutely de- supported by real assets and tax manded or required. avoidance. (See: malum in se, white collar crime) mandatory joinder: n. the required inclusion of a party in a lawsuit mandamus: (man-dame-us) n. Latin whom the court finds is absolutely for “we order,” a writ (more mod- necessary to a resolution of all issues emly called a “writ of mandate”) in the case. (See: joinder) which orders a public agency or

governmental body to perform an manifest: 1) adj., adv. completely ob-

act required by law when it has ne- vious or evident. 2) n. a written list glected or refused to do so. Exam- of goods in a shipment. ples: After petitions were filed with sufficient valid signatures to quali- Mann Act: n. a federal statute making

261 manslaughter

it a crime to transport a woman brought a deadly weapon to use in the across state lines for “immoral” pur- crime. The immediate rage in finding poses. The Mann Act was intended a loved one in bed with another fol- to prevent the movement of prosti- lowed by a killing before the passion tutes from one state to another or in cools usually limits the charge to vol- and out of the country in the so- untary manslaughter and not murder, called “white slave” trade. However, but prior attacks could convince a

it also applies to a male taking his District Attorney and a jury that the under-age girlfriend to a love-nest killing was not totally spontaneous. in a neighboring state, or a female Lenny Leadfoot drives 70 miles per transporting an under-age boy hour on a twisting mountain road,

across the state line for such pur- goes off a cliff and his passenger is poses. Maximum term is five years killed in the crash. Leadfoot can be in a federal prison. charged with involuntary manslaughter. (See: homicide, murder) manslaughter: n. the unlawful killing of another person without marital deduction: n. an estate tax premeditation or so-called “malice deduction allowed a surviving spouse aforethought” (an evil intent prior of half of the value of the estate of the to the killing). It is distinguished deceased spouse. Thus, the minimum from murder (which brings greater value of the estate before there is a penalties) by lack of any prior inten- possible federal estate tax rises from tion to kill anyone or create a dead- $600,000 (the level where estate tax ly situation. There are two levels of begins to be calculated and charged) manslaughter: voluntary and invol- to $1,200,000 at the death of the first untary. Voluntary manslaughter in- spouse to die. In trusts which a mar- cludes killing in heat of passion or ried couple creates, they can agree while committing a felony. Involun- that on the death of the first to go, tary manslaughter occurs when a the amount of the property which is death is caused by a violation of a given to the survivor is limited to the non-felony, such as reckless driving amount which will not be subject to (called ‘Vehicular manslaughter”). federal estate tax, thus delaying Examples: Eddy Hothead gets into some or all estate tax until the death a drunken argument in a saloon of the surviving spouse. Such trust with his acquaintance Bob Bone- provisions should be written only by head, and Hothead hits Bonehead an attorney and with consultation over the head with a beer bottle, with an accountant or financial ad- causing internal bleeding and viser. (See: community property, death. Brent Burgle sneaks into a estate tax, trust) warehouse intent on theft and is surprised by a security man, whom marital rights: n. an old-fashioned ex- Burgle knocks down a flight of pression for the rights of a husband stairs, killing him. Both are volun- (not rights of a wife) to sexual rela- tary manslaughter. However, if tions with his wife and to control her either man had used a gun, a mur- operation of the household. (See: con- der charge is most likely since he sortium, loss of consortium)

262 marriage maritime law: n. Also called “admi- marketable title: n. the title to real ralty law” or “the law of admiralty,” property which has no encumbrances the laws and regulations, includ- (mortgage, deed of trust, lien or

ing international agreements and claim) and which is free of any rea- treaties, which exclusively govern sonable objection (excluding minor activities at sea or in any navigable mistakes in the description or typo- waters. In the United States, feder- graphical errors). A court will enforce al courts have jurisdiction over a contract to buy and sell real estate

maritime law. (See: admiralty) if there is marketable title. (See: contract, real property) mark: n. an “X” made by a person who is illiterate or too weak to market value: n. the price which a sign his/her full name, used in seller of property would receive in an the expression “His Mark,” or “Her open market by negotiation, as dis- Mark.” On the rare occasion that tinguished from a “distress” price on this occurs, the “X” should be with- a forced or foreclosure sale, or from in or next to a notation such as an auction. Market value of real “Theresa Testator, her mark.” If property is normally determined by the mark is intended as a signa- a professional appraiser who makes ture to a will it should be formally comparisons to similar property witnessed (as signatures are) to sales in the area, which are often make the will valid. (See: will) called “comparables.” marked for identification: adj. marriage: n. the joining of a male and documents or objects presented female in matrimony by a person during a trial before there has been qualified by law to perform the cere- testimony which confirms their au- mony (a minister, priest, judge, justice thenticity and/or relevancy. Each of the peace or some similar official), item is given an exhibit identifica- after having obtained a valid mar- tion letter or number and thus is riage license (which requires a blood marked for identification. The test for venereal disease in about a marked exhibits are actually intro- third of the states and a waiting peri- duced into evidence (made part of od from one to five days in several). the official record) upon request of The standard age for marriage with- the lawyer offering the evidence out parental consent is 18 except

and approval by the judge or by for Georgia and Wyoming where it is stipulation of both attorneys. Occa- 16, Rhode Island where women can sionally an exhibit marked for iden- marry at 16, and Mississippi in which tification is rejected as evidence due it is 17 for boys and 15 for girls. More to the judge agreeing (sustaining) than half the states allow marriages with an opposing lawyer’s objection at lesser ages with parental consent, such as for lack of relevancy or fail- going as low as 14 for both sexes in

ure to show it is genuine or best ev- Alabama, Texas and Utah. Marriages idence. (See: best evidence rule, in which the age requirements are evidence, exhibit, lay a founda- not met can be annulled. Fourteen tion, objection) states recognize so-called “common

263 marshal

law marriages” which establish a constitutional rights, such as habeas legal marriage for people who have corpus, the right to a trial, and to free lived together by agreement as hus- press. Martial law was ordered in con- band and wife for a lengthy period tested areas during the Civil War (but of time without legal formalities. the Supreme Court ruled President (See: common law-marriage) Abraham Lincoln’s suspension of the writ of habeas corpus was unconstitu- marshal: 1) n. a federal court official tional), and during the San Francisco who may serve papers and act as a earthquake and fire in 1906 when the law enforcement officer in keeping city was in ruins, tens of thousands order in court, protecting federal of- were homeless, and looting and dis- ficials, making arrests or participat- ease posed great dangers to the public. ing in court-ordered police activi- Misuse of martial law, such as de- ties. Each district court has a feder- struction of the veterans’ encampment al marshal and a corps of deputies. in Washington, D.C. under President 2) n. in several states, a law en- Herbert Hoover, has proved unpopu- forcement officer, similar to a sheriff lar in the United States. In many for- or constable, who serves official doc- eign countries martial law has become uments and occasionally assists in a method to establish and maintain police matters. 3) v. to collect the as- dictatorships either by military lead- sets of the estate of a person who ers or politicians backed by the mili- has died. This is a function of an ex- tary. Martial law is not to be confused ecutor or administrator of an estate. with “military law,” which governs the Sometimes the executor or adminis- conduct of the military services and trator may ask the court to allow applies only to service men and the sale or division of gifts in order women. (See: military law) to achieve the distribution the testa-

tor (writer of a will) desired. This is Massachusetts Trust: n. a business part of the marshaling process. 4) v. in which the investors give manage- in bankruptcy, to establish priorities ment authority to a trustee and re- among creditors. ceive “trust certificates” representing their investments. Since they own martial law: n. a system of complete only the certificates and do not par- control by a country’s military over ticipate in management, the in- all activities, including civilian, in vestors can only lose their invest- a theoretical or actual war zone, ment and are not personally liable for or during a period of emergency any debts of the trust. This is similar caused by a disaster such as an to a “limited partnership.” A Massa- earthquake or flood, with the mili- chusetts Trust is strictly a business tary commander having dictatorial entity and bears no relationship to a powers. In the United States mar- personal trust like living and testa- tial law must be ordered by the mentary trusts set up to manage and President as commander-in-chief protect the assets of individuals and and must be limited to the duration provide for eventual distribution. of the warfare or emergency. It can-

not result in a long-term denial of master: n. 1) employer, in the area of

264 maxims

law known as “master and ser- material witness: n. a person who ap- vant,” which more properly should parently has information about the be called employer and employee. subject matter of a lawsuit or criminal 2) a person, supposedly with spe- prosecution which is significant cial expertise, appointed by a judge enough to affect the outcome of the to investigate a problem (such as case or trial. Thus, the court must whether a parent’s home is appro- make every reasonable effort to allow priate for child visitation) and re- such a witness to testify, including a port back to the judge his/her find- continuance (delay in a trial) to ac- ings and recommendations. (See: commodate him/her if late or tem- employment, master and ser- porarily unavailable. (See: material,

vant, respondeat superior ) trial, witness) master and servant: n. the body of matter of record: n. anything, includ- law, including statutes and legal ing testimony, evidence, rulings and decisions which are precedents, sometimes arguments, which has which relates to the relationship been recorded by the court reporter or of an employer and employee. (See: court clerk. It is an expression often employment, respondeat supe- heard in trials and legal arguments rior, servant agency) that “such and such is a matter of record” as distinguished from actions material: adj. relevant and signifi- outside the court or discussions not cant. In a lawsuit, “material evi- written down or taped. dence” is distinguished from total-

ly irrelevant or of such minor im- maturity: n. 1) the date when the pay- portance that the court will either ment of the principal amount owed ignore it, rule it immaterial if ob- under the terms of a promissory note jected to, or not allow lengthy tes- or bill of exchange becomes due. timony upon such a matter. A “ma- Quite often a note states that failure terial breach” of a contract is a to pay interest or installment pay- valid excuse by the other party not ments when due “accelerates” the to perform. However, an insignifi- note, making the “maturity date” im- cant divergence from the terms of mediate if such payments are de- the contract is not a material manded and not paid. 2) the age breach. when one becomes an adult, which is 18 for most purposes. (See: acceler- material representation: n. a con- ation, bill of exchange, legal age, vincing statement made to induce promissory note) someone to enter into a contract to which the person would not have maxims: n. a collection of legal truisms agreed without that assertion. which are used as “rules of thumb” by Thus, if the material representa- both judges and lawyers. They are tion proves not to be true or to be listed in the codified statutes of most misleading, the contract can be re- states, and include: scinded or cancelled without liabil- “When the reason of a rule ceases, so ity. (See: contract, material) should the rule itself.”

265 may

“He who consents to an act is not Non-lawyers tend to see the word

wronged by it.” “may” and think they have a choice or “No one can take advantage of his are excused from complying with own wrong.” some statutory provision or regula- “No one should suffer by the act of tion. (See: shall) another.”

“He who takes the benefit must bear mayhem: 1) n. the criminal act of dis- the burden.” abling, disfiguring or cutting off or “For every wrong there is a remedy.” making useless one of the members “Between rights otherwise equal, (leg, arm, hand, foot, eye) of another the earliest is preferred.” either intentionally or in a fight, “No man is responsible for that called maiming. The serious nature of which no man can control.” the injury makes mayhem a felony, “The law helps the vigilant, before which is called “aggravated assault”

those who sleep on their rights.” in most states. 2) v. to commit may- “The law respects form less than hem is to cause gross harm in an un- substance.” controlled fashion. (See: aggravated “The law never requires impossibili- assault, assault, maim) ties.” ‘The law neither does nor requires McNabb-Mallory rule: n. a federal idle acts.” rule of evidence in criminal trials that “The law disregards trifles.” prohibits the use of incriminating “Particular expressions qualify statements made by a defendant while those which are general.” he/she is detained beyond the legal pe- “That is certain which can be made riod of time before being brought be- certain.” fore a judge or magistrate (arraign-

“Time does not confirm a void act.” ment). This rule is seldom applied “An interpretation which gives ef- since the courts have become zealous fect is preferred to one which makes about speedy arraignments and warn- void.” ings to the accused about the right to “Interpretation must be reason- remain silent and have a lawyer pre- able.” sent. (See: Miranda warning) “Things happen according to the ordinary course of nature and the or- mechanic’s lien: n. the right of a

dinary habits of life.” craftsman, laborer, supplier, architect or other person who has worked upon

may: v. a choice to act or not, or a improvements or delivered materials

promise of a possibility, as distin- to a particular parcel of real estate (ei- guished from “shall,” which makes ther as an employee of the owner or as

it imperative. 2) in statutes, and a sub-contractor to a general contrac- sometimes in contracts, the word tor) to place a lien on that real proper- “may” must be read in context to de- ty for the value of the services and/or

termine if it means an act is option- materials if not paid. Numerous other

al or mandatory, for it may be an im- technical laws surround mechanic’s perative. The same careful analysis liens, including requirements of must be made of the word “shall.” prompt written notice to the owner of

266 meeting of the minds

the property (even before the gener- end to anxiety. However, mediation al contractor has been tardy in mak- does not always result in a settle- ing payment), limits on the amount ment. (See: arbitration) collectable in some states, and various time limitations to enforce the mediator: n. a person who conducts me- lien. Ultimate, last-resort enforce- diation. A mediator is usually a lawyer ment of the mechanic’s lien is ac- or retired judge but can be a non-at- complished by filing a lawsuit to torney specialist in the subject matter foreclose the lien and have the prop- (like child custody) who tries to bring erty sold in order to be paid. Proper- people and their disputes to early res- ty owners should make sure that olution through a conference. The me- their general contractors pay their diator is an active participant in the employees or subcontractors to discussions and attempts to work out a avoid a mechanic’s lien, since the solution, unlike an arbitrator, who sits owner could be forced to pay the as a judge. (See: arbitration, arbi- debts of a general contractor even trator, mediation) though the owner has already paid the contractor. If the worker or sup- meet and confer: n. a requirement of plier does not sue to enforce the me- courts that before certain types of mo- chanic’s lien, he/she may still sue for tions and/or petitions will be heard by the debt. (See: lien) the judge, the lawyers (and sometimes their clients) must “meet and confer” mediation: n. the attempt to settle a to try to resolve the matter or at least legal dispute through active partic- determine the points of conflict. This ipation of a third party (mediator) has the beneficial effect of resolving who works to find points of agree- many matters, reducing the time for ment and make those in conflict arguments and making the lawyers agree on a fair result. Mediation and clients face up to the realities of

differs from arbitration, in which their positions. On the other hand, it the third party (arbitrator) acts also can be a total waste of time for the much like a judge in an out-of- parties and their attorneys. The meet

court, less formal setting but does and confer rule is particularly common not actively participate in the dis- (and useful) in domestic relations discussion. Mediation has become very putes over temporary support, custody, common in trying to resolve domes- visitation and such issues which are tic relations disputes (divorce, child freighted with emotion. custody, visitation) and is often ordered by the judge in such cases. meeting of the minds: n. when two Mediation also has become more parties to an agreement (contract) frequent in contract and civil dam- both have the same understanding of age cases. There are professional the terms of the agreement. Such

mediators or lawyers who do some mutual comprehension is essential mediation for substantial fees, but to a valid contract. It is provable the financial cost is less than fight- by the express provisions of a writing the matter out in court and may ten contract, without reference to achieve early settlement and an any statements or hidden thoughts

267 memorandum

outside the writing. There would carried out, swinging with a scythe not be a meeting of the minds if even though the assailant missed, or Bill Buyer said, “I’ll buy all your witnessing injury or death to a loved stock,” and he meant shares in a one. There are also situations in corporation, and Sam Seller said, which the obvious result of the alleged “I’ll sell all my stock to you,” and wrongdoing would be mental distress meant his cattle. (See: contract) due to embarrassment or damage to one’s reputation through libel, and memorandum: n. 1) a brief writing, therefore damages can be awarded to note, summary or outline. 2) A the distressed party. However, there “memorandum of decision,” or are limits: in general, breach of con- “memorandum opinion,” is a brief tract judgments cannot include dam- statement by a judge announcing ages for mental anguish due to the his/her ruling without detail or loss of a deal or employment. But then giving extensive reasons, which there is the case of the shop which may or may not be followed by a failed to deliver the bridal gown in more comprehensive written deci- time for the wedding—mental an- sion. Such memoranda (plural) are guish flows naturally (along with the issued by appeals courts in lan- bride’s tears) from such a breach. (See: guage such as: “The petition of ap- damages, mental suffering) pellant is denied for the reasons

stated in Albini v. Younger” or law can be upheld only “The decision below is affirmed.” If by enforcement officers, then our scheme government is mens rea: (menz ray-ah) n. Latin of at an end. Every citizen has person- for a “guilty mind,” or criminal in- a al duty in it—the duty to order tent in committing the act. (See: crime, intent) his oum actions, to so weigh the effect of his example, that his shall mental anguish: n. mental suffering conduct be a positive force in his which includes fright, feelings of community with respect to distress, anxiety, depression, grief the law. and/or psychosomatic physical —Herbert Hoover symptoms. It is distinguished from physical pain due to an injury, but it mental competency: n. (See: compe- may be considered in awarding tent) damages for physical injury due to a defendant’s negligence or intention- mental cruelty: n. a term, rapidly al infliction of harm. Where there is going out of fashion and out of the no physical injury, damages can still statutes, which has been used to jus- be awarded for mental anguish if it tify granting a divorce when the state is reasonable to presume such laws required that some wrong had would naturally flow from the inci- to be found in the defending spouse. dent. Examples: holding a pistol to In absence of actual physical cruelty

one’s head, any threat of bodily (or unwillingness to discuss it) the harm when it appears it could be person wanting the divorce could

268 mesne profits

testify to a list of indignities (“he joining together of two corporations in swore at me, he came home late, he which one corporation transfers Ml of humiliated me in front of friends, its assets to the other, which continues he was hateful to my mother, he to exist. In effect one corporation read girlie magazines,” or similar “swallows” the other, but the share- tales told about the wife) which holders of the swallowed company re- would be verified by a relative or a ceive shares of the surviving corpora- friend to satisfy the judge that the tion. A merger is distinguished from a petitioning spouse would suffer “consolidation,” in which both compa- mental harm if the marriage con- nies join together to create a new cor- tinued and proved that there were poration. 2) in real property law, when grounds for a divorce. As “no-fault” an owner of an interest in property ac- divorce has gained favor, such cha- quires a greater or lesser interest in rades have faded into legal history. the same property, the two interests (See: cruelty, divorce) become one. Examples: a person with a life estate is given the title to the mental suffering: n. emotional pain property by inheritance, the life estate synonymous with “mental anguish.” is merged with the titled interest. 3) (See: mental anguish) another important form of merger occurs when a person acquires two mercantile law: n. that broad area of parcels of land which were once a sin- the law (also called commercial gle lot that had been divided into two law), statutes, cases and customs lots by a “lot split” granted by the city which deal with trade, sales, buy- or county. If the minimum lot size has ing, selling, transportation, con- been increased by changes in local or- tracts and all forms of business dinances and the two lots are now transactions. Much of the law of sub-standard size, the buyer who ac- business transactions is covered by quires title in the two lots may find the Uniform Commercial Code, that they are “merged” into one lot which has been adopted almost uni- and he or she has lost the right to

versally in the United States. (See: build a house on each lot. Tb avoid this commercial law, contract, cor- problem, the buyer should make sure poration, seller, Uniform Com- title in each lot is obtained under a dif-

mercial Code ) ferent name, i.e. husband taking one, and wife the other. merchantable: adj. a product of a

high enough quality to make it fit mesne: (mean, with a silent s) adj. from for sale. To be merchantable an arti- Norman French for intermediate, the cle for sale must be usable for the middle point between two extremes. It purpose it is made. It must be of av- is seldom used, except in reference to erage worth (not necessarily special) “mesne profits.” (See: mesne profits) in the marketplace and must not be broken, unworkable, damaged, con- mesne profits: n. profits which have taminated or flawed. (See: sale) accrued while there was a dispute

over land ownership. If it is deter- merger: n. 1) in corporate law, the mined the party using the land did not

269 metes and bounds

have legal ownership, the true minor: n. someone under legal age, owner can sue for some or all of the which is generally 18, except for

profits made in the interim by the il- certain purposes such as drink-ing legal tenant, which are thus called alcoholic beverages. (See: legal age, “mesne profits.” (See: mesne) maturity)

metes and bounds: (meets and minority: n. 1) in voting, a side with bounds) n. a surveyor’s description less than half the votes. 2) a term for of a parcel of real property, using people in a predominantly Caucasian carefully measured distances, an- country who are not Caucasian, such gles and directions, which results as the United States where Cau- in what is called a “legal descrip- casians comprise the majority and the tion” of the land, as distinguished minorities include African Americans, from merely a street address or Hispanics, Asians, indigenous Ameri- parcel number. Such a metes and cans (Indians) and other so-called

bounds description is required “people of color.” This ironic term is to be recorded in official county used despite the fact that the majority records on a subdivision map and of the world’s population is not Cau- in the deeds when the boundaries casian. Sometimes the term is em- of a parcel or lot are first drawn. ployed to include women and homosexuals. “Minority” carries with it a military law: n. regulations gov- certain patronizing tone even when erning the conduct of men and used to assert rights of peoples who women in the armed services in re- have been discriminated against, ei- lation to their military (not civil- ther socially or by law. 3) the period of

ian) activities. (See: court-mar- life under legal age. (See: legal age, tial, judge advocate) majority, minor)

mining claim: n. a description by minutes: n. 1) the written record of boundaries of real property in which meetings, particularly of boards of di- metal ore and/or minerals may be rectors and/or shareholders of corpora- located. A claim on public land tions, kept by the secretary of the cor- must be filed with the Bureau of poration or organization. 2) the record Land Management or other federal of courtroom proceedings, such as the agency, and the claim must be start and recess of hearings and trials, “worked” by being mined or pre- names of attorneys, witnesses and rul- pared for mining within a specific ings of the court, kept by the clerk of period of time. the court or the judge. Such court minutes are not a transcript of everything ministerial act: n. an act, particular- that is said, which is taken down by

ly of a governmental employee, the court reporter if recorded at all. which is performed according to statutes, legal authority, estab- Miranda warning: n. the require- lished procedures or instructions ment, also called the Miranda rule, set from a superior, without exercising by the U.S. Supreme Court in Miran-

any individual judgment. da v. Arizona (1966) that prior to the

270 misjoinder

time of arrest and any interrogation or administrator of a dead person’s es- of a person suspected of a crime, tate or by any person with a responsi- he/she must be told that he/she has: bility to care for and protect another’s

the right to remain silent, the right assets (a fiduciary duty). It is a felony to legal counsel, and the right to be (a crime punishable by a prison sen- told that anything he/she says can tence). (See: embezzlement, fidu- be used in court against him/her. ciary, larceny, theft) The warnings are known as Miran- da rights or just “rights.” Further, if misdemeanor: n. a lesser crime pun- the accused person confesses to the ishable by a fine and/or county jail authorities, the prosecution must time for up to one year. Misde- prove to the judge that the defen- meanors are distinguished from dant was informed of these rights felonies, which can be punished by a and knowingly waived them, before state prison term. They are tried in the confession can be introduced in the lowest local court such as munic- the defendant’s criminal trial. The ipal, police or justice courts. Typical Miranda rule supposedly prevents misdemeanors include: petty theft, self-incrimination in violation of the disturbing the peace, simple assault Fifth Amendment to the U.S. Con- and battery, drunk driving without stitution. Sometimes there is a injury to others, drunkenness in question of admissibility of answers public, various traffic violations, to questions made by the defendant public nuisances and some crimes before he/she was considered a which can be charged either as a prime suspect, raising a factual felony or misdemeanor depending on issue as to what is a prime suspect the circumstances and the discretion and when does a person become of the District Attorney. “High crimes such a suspect? (See: rights) and misdemeanors” referred to in the U.S. Constitution are felonies. “mirror” wills: n. the wills of a hus- (See: felony) band and wife which are identical

except that each leaves the same misfeasance: n. management of a busi- gifts to the other, and each names ness, public office or other responsibil- the other as executor. ity in which there are errors and an unfortunate result through mistake or misadventure: n. a death due to un- carelessness, but without evil intent

intentional accident without any vi- and/or violation of law. Misfeasance is olation of law or criminal negligence. distinguished from “malfeasance,” Thus, there is no crime. (See: homi- which is intentional conduct in viola- cide, manslaughter) tion of the law. (See: malfeasance) misappropriation: n. the intention- misjoinder: n. the inclusion of parties al, illegal use of the property or (plaintiffs or defendants) or causes of funds of another person for one’s action (legal claims) in a single lawsuit own use or other unauthorized pur- contrary to statute. Reasons for a court

pose, particularly by a public offi- ruling that there is misjoinder include: cial, a trustee of a trust, an executor a) the parties do not have the same

271 misnomer

rights to a judgment; b) they have for rescission since “ignorance of the conflicting interests; c) the situa- law is no excuse.” 2) an error discov- tions in each claim (cause of action) ered to be incorrect at a later time. are different or contradictory; or d) (See: contract, rescission) the defendants are not involved

(even slightly) in the same transac- mistrial: n. the termination of a trial tion. In a criminal prosecution the before its normal conclusion because most common cause for misjoinder is of a procedural error, statements by a that the defendants were involved in witness, judge or attorney which prej- different alleged crimes, or the udice a jury, a deadlock by a jury with- charges are based on different trans- out reaching a verdict after lengthy actions. (See: joinder) deliberation (a “hung” jury), or the failure to complete a trial within the misnomer: n. the wrong name. time set by the court. When such situations arise, the judge, either on his misprision of a felony: n. the own initiative or upon the motion (re- crime of concealing another’s quest) of one of the parties will “de-

felony (serious crime) from law en- clare a mistrial,” dismiss the jury if forcement officers. (See: accesso- there is one and direct that the law- ry, aid and abet, felony) suit or criminal prosecution be set for trial again, starting from the begin- misrepresentation: n. the crime of ning. (See: trial) misstating facts to obtain money, goods or benefits of another to mitigating circumstances: n. in which the accused is not entitled. criminal law, conditions or happen- Examples: a person a) falsely claims ings which do not excuse or justify to represent a charity to obtain a criminal conduct, but are considered donation which he/she keeps; b) out of mercy or fairness in deciding says a painting is a genuine Jackson the degree of the offense the prosecu- Pollock when it is a fake and thus is tor charges or influencing reduction able to sell it for a price much of the penalty upon conviction. Ex- greater than its true value. Misrep- ample: a young man shoots his fa- resentation is also called “false pre- ther after years of being beaten, be- tenses.” (See: false pretenses) littled, sworn at and treated without love. “Heat of passion” or “dimin- mistake: n. 1) an error in compre- ished capacity” are forms of such hending facts, meaning of words or mitigating circumstances. (See: di- the law, which causes one party or minished capacity, heat of pas- both parties to enter into a contract sion, “Twinkie” defense) without understanding the obliga-

tions or results. Such a mistake can mitigation of damages: n. the re- entitle one party or both parties to a quirement that someone injured by rescission (cancellation) of the con- another’s negligence or breach of contract. A mistaken understanding of tract must take reasonable steps to re- the law (as distinguished from facts) duce the damages, injury or cost, and by one party only is usually no basis to prevent them from getting worse.

272 :

monopoly

Thus, a person claiming to have motion (petition) to the court for modi- been injured by another motorist fication is common after divorce judg- should seek medical help and not let ments because the courts “retain juris- the problem worsen. If a tenant diction” over matters concerning the moves out before a lease has ex- children which may need changes such pired, a landlord must make reason- as terms of child support and custody. able attempts to re-let the property and take in some rents (which are modus operandi (mode-us ah-purr- credited against the amount re- and-ee or ah-purr-and-eye) n. from mainder of the lease) to mitigate Latin, a criminal investigation term his/her loss. for “way of operating,” which may prove the accused has a pattern of re- IVTNaughten rule: n. a traditional peating the same criminal acts using “right and wrong” test of legal in- the same method. Examples: a repeat sanity in criminal prosecutions. offender always wore a blue ski mask Under M’Naughten (its name comes and used a sawed-off shotgun, climbed from the trial of a notorious English up trellises to burglarize, pretended to assassin in the early 1800s), a de- be a telephone repairman to gain en- fendant is legally insane if he/she trance or set up phoney companies to cannot distinguish between right disguise a fraudulent scheme. and wrong in regard to the crime with which he/she is charged. If the moiety: (moy-et-tee) n. half. Generally judge or the jury finds that the ac- a reference to interest in real property, cused could not tell the difference, moiety is seldom used today. then there could not be criminal intent. Considering modem psychia- molestation: n. the crime of sexual acts try and psychology, tests for lack with children up to the in- age of 18 , of capacity to “think straight” (with cluding touching of private parts, ex- lots of high-priced expert testi- posure of genitalia, taking of porno- mony) are used in most states either graphic pictures, rape, inducement of under the American Law Institute’s sexual acts with the molester or with Model Penal Code or the “Durham other children and vernations of these Rule.” (See: diminished capacity, acts by pedophiles. Molestation also insanity, temporary insanity, applies to incest by a relative with a “Twinkie” defense) minor family member and any unwanted sexual acts with adults short M. O.: n. slang for modus operandi, of rape. (See: pedophilia, rape) the way or pattern in which a repeat criminal usually commits his/her monopoly: n. a business or inter-relat-

crime. (See: modus operandi ) ed group of businesses which controls so much of the production or sale of a modification: n. a change in an exist- product or kind of product as to con- ing court order or judgment made trol the market, including prices and necessary by a change in circum- distribution. Business practices, com- stances since the order or judgment binations and/or acquisitions which was made or to cure an error. A tend to create a monopoly may violate

273 month-to-month

various federal statutes which regu- in a mock court. There are also moot late or prohibit business trusts and court contests between teams from monopolies or prohibit restraint of different law schools. (See: moot) trade. However, limited monopolies

granted by a manufacturer to a moot point: n. 1) a legal question which

wholesaler in a particular area are no court has decided, so it is still de-

usually legal, since they are like “li- batable or unsettled. 2) an issue only of censes.” Public utilities such as elec- academic interest. (See: moot) tric, gas and water companies may also hold a monopoly in a particular The complete independence of geographic area since it is the only the courts justice is pecu- practical way to provide the public of liarly essential to a limited service, and they are regulated by Constitution. state public utility commissions. Alexander Hamilton, (See: antitrust laws, license, re- — straint of trade) Federalist Papers

month-to-month: adj. referring to a moral certainty: n. in a criminal trial, tenancy in which the tenant pays the reasonable belief (but falling short monthly rent and has no lease, and of absolute certainty) of the trier of the the tenancy can be terminated by fact (jury or judge sitting without a the landlord at any time on thirty jury) that the evidence shows the de-

days notice. (See: landlord and fendant is guilty. Moral certainty is an- tenant, tenancy) other way of saying “beyond a reasonable doubt.” Since there is no exact

monument: n. 1) an established measure of certainty it is always some- landmark which a surveyor uses as what subjective and based on “reason- part of a legal description of real able” opinions of judge and/or jury. property. 2) a building or other (See: beyond a reasonable doubt, structure of historic importance, guilt, verdict) which may be recognized formally and marked by federal, state or local moral turpitude: n. gross violation of agencies, and therefore may not be standards of moral conduct, vileness. tom down or substantially altered. An act involving moral turpitude is considered intentionally evil, making

moot: adj. 1) unsettled, open to argu- the act a crime. The existence of moral ment or debatable, specifically turpitude can bring a more severe about a legal question which has not criminal charge or penalty for a crim- been determined by any decision of inal defendant. any court. 2) an issue only of academic interest. (See: moot court, moratorium: n. 1) any suspension of moot point) activity, particularly voluntary suspension of collections of debts by a moot court: n. law school exercise in private enterprise or by government which students argue both sides of or pursuant to court order. 2) in an appeal from a fictitious lawsuit bankruptcy, a halt to the right to

274 motion

collect a debt. In times of economic property is still security and the seller

crisis or a natural disaster like a is still liable for payment, or the buyer flood or earthquake, there may be “assumes the mortgage” and becomes a moratorium on foreclosures or personally responsible for payment of mortgage payments until the pub- the loan. Under English common law lic can get back to normal activi- a mortgage was an actual transfer of ties and earnings. title to the lender, with the borrower having the right to occupy the proper- mortgage: n. a document in which ty while it was in effect, but non-pay- the owner pledges his/her/its title to ment ended the right of occupation. real property to a lender as security Today only Connecticut, Maine, New for a loan described in a promissory Hampshire, North Carolina, Rhode Is- note. Mortgage is an old English land and Vermont cling to the com- term derived from two French mon law, and other states using mort- words “mort” and “gage” meaning gages treat them as liens on the prop- “dead pledge.” To be enforceable the erty. More significantly, 14 states use mortgage must be signed by the a “deed of trust” (or “trust deed”) as a owner (borrower), acknowledged be- mortgage. These states include: Cali- fore a notary public, and recorded fornia, Illinois, Texas, Virginia, Col- with the County Recorder or orado, Georgia, Alaska, Arizona, Recorder of Deeds. If the owner Idaho, Mississippi, Missouri, Mon- (mortgagor) fails to make payments tana, North Carolina and West Vir- on the promissory note (becomes ginia. Under the deed of trust system delinquent) then the lender (mort- title is technically given to a trustee to gagee) can foreclose on the mort- hold for the lender, who is called a gage to force a sale of the real prop- beneficiary. (See: deed of trust, fore- erty to obtain payment from the closure, judicial foreclosure, no-

proceeds, or obtain the property it- tice of default, trust deed) self at a sheriff’s sale upon foreclosure. However, catching up on delin- mortgagee: n. the person or business

quent payments and paying costs of making a loan that is secured by the foreclosure (“curing the default”) real property of the person (mort- can save the property. In some gagor) who owes him/her/it money. states the property can be redeemed (See: mortgage, mortgagor) by such payment even after foreclosure. Upon payment in full the mortgagor: n. the person who has bor- mortgagee (lender) is required to ex- rowed money and pledged his/her real ecute a “satisfaction of mortgage” property as security for the money (sometimes called a “discharge of provided by the lender (mortgagee).

mortgage”) and record it to clear the (See: mortgage, mortgagee) title to the property. A purchase- money mortgage is one given by motion: n. a formal request made to a purchaser to a seller of real prop- a judge for an order or judgment. erty as partial payment. A mort- Motions are made in court all the time gagor may sell the property either for many purposes: to continue (post- “subject to a mortgage” in which the pone) a trial to a later date, to get a

275 motion for a new trial

modification of an order, for tempo- and cannot prove its case. Attorneys rary child support, for a judgment, most often make this motion after for dismissal of the opposing party’s the plaintiff or prosecutor has pre- case, for a rehearing, for sanctions sented all the evidence they have,

(payment of the moving party’s costs but they can make it at the end of or attorney’s fees), or for dozens of the evidence presentation but before other purposes. Most motions re- judgment or upon evidence being quire a written petition, a written presented that proves to the judge brief of legal reasons for granting that the defendant cannot lose. the motion (often called “points and Quite often this is an oral motion, authorities”), written notice to the and arguments are made in the attorney for the opposing party and judge’s chambers where the jury can- a hearing before a judge. However, not hear. It is also sometimes called during a trial or a hearing, an oral a motion for nonsuit. (See: motion) motion may be permitted.

motion for a summary judgment: n. motion for a new trial: n. a re- a written request for a judgment in quest made by the loser for the the moving party’s favor before a law- case to be tried again on the basis suit goes to trial and based on testi- that there were significant legal mony recorded outside court, affi- errors in the way the trial was con- davits (declarations under penalty of ducted and/or the jury or the judge peijury), depositions, admissions of sitting without a jury obviously fact and/or answers to written inter-

came to an incorrect result. This rogatories, claiming that all factual motion must be made within a few and legal issues can be decided in the days after the judgment is formal- moving party’s favor. These alleged ly entered and is usually heard by facts are accompanied by a written the same judge who presided at legal brief (points and authorities) in the trial. Such a motion is seldom support of the motion. The opposing granted (particularly if the judge party needs to show by affidavits, heard the case without a jury) unwritten declarations or points and au- less there is some very clear error thorities (written legal argument in which any judge would recognize. support of the motion) that there are Some lawyers feel the motion “triable issues of fact” and/or of law by helps add to the record of argu- points and authorities. If there are ment leading to an appeal of the any triable issues the motion must be

case to an appeals court. (See: denied and the case can go to trial. judgment notwithstanding the Sometimes, if there are several claims verdict, motion, N.O.V.) (causes of action) such a motion may cause the judge to find (decide) that motion for dismissal (non-suit): some causes of action can be decided n. application by a defendant in a under the motion, leaving fewer mat- lawsuit or criminal prosecution ters actually to be tried. The paper-

asking the judge to rule that the work on both sides is complex, bur- plaintiff (the party who filed the densome and in many states, based on lawsuit) or the prosecution has not strict procedures. (See: motion)

276 :

municipal court motion in limine (lim-in-nay) n. the probable reason a person com- Latin for “threshold,” a motion mitted a crime, such as jealousy, made at the start of a trial request- greed, revenge or part of a theft. ing that the judge rule that certain While evidence of a motive may be

evidence may not be introduced in admissible at trial, proof of motive is trial. This is most common in crimi- not necessary to prove a crime. nal trials where evidence is subject to constitutional limitations, such mouthpiece: n. old-fashioned slang as statements made without the Mi- for one’s lawyer. randa warnings (reading the suspect his/her rights). (See: in limine, movant: n. the party in a lawsuit or Miranda warning, motion) other legal proceeding who makes a motion (application for a court order motion to strike: n. a request for a or judgment). (See: motion, move) judge’s order to eliminate all or a

portion of the legal pleading (com- move: v. to make a motion in court ap- plaint, answer) of the opposition on plying for a court order or judgment. any one of several grounds. It is (See: motion, movant) often used in an attempt to have an entire cause of action removed multifarious: adj., adv. reference to a (“stricken”) from the court record. A lawsuit in which either party or var- motion to strike is also made orally ious causes of action (claims based during trial to ask the judge to order on different legal theories) are im- “stricken” answers by a witness in properly joined together in the same violation of rules of evidence (laws suit. This is more commonly called covering what is admissible in trial). misjoinder. (See: misjoinder) Even though the jury is admonished to ignore such an answer or some multiplicity of suits: n. several actu- comment, the jury has heard it, and al or potential lawsuits which should “a bell once rung, cannot be un- be joined together in one suit and rung.” (See: motion, strike) one trial. It is a basic principle of law that multiplicity is to be avoided motion to suppress: n. a motion when possible, practical and fair. Ex- (usually on behalf of a criminal de- ample: several suits are filed by dif- fendant) to disallow certain evi- ferent people against the same per- dence in an upcoming trial. Exam- son or entity, based on the same set ple: a confession which the defen- of facts and the same legal issues. dant alleges was signed while he On motion of either party or by the was drunk or without the reading judge’s own determination, the judge of his Miranda rights. Since the can order the cases consolidated. motion is made at the threshold of the trial, it is a motion in limine, municipal: adj. referring to an incor- which is Latin for “at the thresh- porated or chartered city or town. old.” (See: motion in limine)

municipal court: n. a lower court motive: n. in criminal investigation which usually tries criminal mis-

277 muniment of title

demeanors and civil lawsuits in- reckless lack of concern for the life of volving lesser amounts of money others (such as firing a gun into a than superior, district or county crowd or bashing someone with any courts. The authority, importance deadly weapon). Depending on the and geographical area covered dif- circumstances and state laws, mur- fer from state to state. In Califor- der in the first or second degree may nia, municipal courts have county- be chargeable to a person who did not wide jurisdiction, try misdemeanor actually kill, but was involved in a criminal cases, conduct prelimi- crime with a partner who actually nary hearings of felonies and try did the killing or someone died as the cases up to $25,000, while in many result of the crime. Example: In a states they only handle cases aris- liquor store stick-up in which the ing out of violations of city ordi- clerk shoots back at the hold-up man nances, traffic and/or small claims. and kills a bystander, the armed rob- (See: court) ber can be convicted of at least second degree murder. A charge of mur- muniment of title: n. documentary der requires that the victim must die evidence of title to real property. A within a year of the attack. Death of muniment could be a deed, a decree an unborn child who is “quick” (fetus of distribution proving inheritance, is moving) can be murder, provided or a contract of sale. (See: deed, there was premeditation, malice and quiet title action, title) no legal authority. Thus, abortion is not murder under the law. Example: murder: n. the killing of a human Jack Violent shoots his pregnant girl- being by a sane person, with intent, friend, killing the fetus. Manslaugh- malice aforethought (prior inten- ter, both voluntary and involuntary, tion to kill the particular victim or lacks the element of malice afore- anyone who gets in the way) and thought. (See: first degree murder, with no legal excuse or authority. homicide, malice aforethought, In those clear circumstances, this manslaughter, premeditation,

is first degree murder. By statute, second degree murder) many states consider a killing in which there is torture, movement mutual: adj., adv. referring to anything of the person before the killing in which both parties have reciprocal (kidnapping) or the death of a po- rights, understanding or agreement. lice officer or prison guard, or it was as an incident to another crime mutual wills: n. wills made by two peo- (as during a hold-up or rape), to be ple (usually spouses, but could be first degree murder, with or with- “partners”) in which each gives his/her out premeditation and with malice estate to the other, or with dispositions presumed. Second degree murder they both agree upon. A later change is such a killing without premedi- by either is not invalid unless it can be tation, as in the heat of passion or proved that there was a contract in in a sudden quarrel or fight. Malice which each makes the will in the con- in second degree murder may be sideration for the other person making implied from a death due to the the will. (See: mirror wills)

278 National Labor Relations Board: mean convenient, useful or making n. an independent regulatory com- good sense. mission created in 1935 by the Na-

tional Labor Relations Act (Wagner necessary inference: n. 1) a conclu- Act), with five members appointed sion militated by reason and logic by the President subject to confir- applied to known facts. 2) unavoid- mation by the Senate. The NLRB is able meaning. intended to protect employees’

rights to unionize, prevent abuses necessary party: n. a person or entity by employers or unions, and oversee whose interests will be affected by the union and organizing elections. outcome of a lawsuit, whose absence as a party in the suit prevents a judg- natural law: n. 1) standards of con- ment on all issues, but who cannot be duct derived from traditional moral joined in the lawsuit because that principles (first mentioned by would deny jurisdiction to the particu- Roman jurists in the first century lar court (such as shifting jurisdiction A.D.) and/or God’s law and will. The from a state to federal court). In this biblical ten commandments, such as rare technical situation, a necessary “thou shall not kill,” are often in- party who is not in the suit differs from cluded in those principles. Natural an “indispensable party,” who must be law assumes that all people believe joined if the lawsuit is to proceed, and in the same Judeo-Christian God from a “proper party,” who could be and thus share an understanding of joined but is not essential. (See: indis- natural law premises. 2) the body of pensable party, proper party) laws derived from nature and reason, embodied in the Declaration of “If the law supposes that, Independence assertion that “all said Mr. Bumble, “the law is i men are created equal, that they are ass—an idiot.” endowed by their creator with cer- —Charles Dickens, Olivei tain inalienable Rights, that among Twist these are Life, Liberty and the pursuit of happiness.” 3) the opposite of “positive law,” which is created by negative declaration: n. a finding by a mankind through the state. city council or other local government that a proposed development or project natural person: n. a real human would have no effect on the environ- being, as distinguished from a cor- ment and therefore the developer need poration, which is often treated at not prepare and file an “environmental law as a fictitious person. impact report.” (See: EIR, environmental impact report) necessary: adj., adv. 1) essential. 2) less forcefully, it can negative pregnant: n. a denial of an

279 negligence

allegation in which a person actu- foreseeable” at the time of the al-

ally admits more than he/she de- leged carelessness. If the injury is nies by denying only a part of the caused by something owned or con- alleged fact. Example: Plaintiff al- trolled by the supposedly negligent leges Defendant “misused more party, but how the accident actually than a hundred thousand dollars occurred is not known (like a ton of placed in his trust in 1994.” Defen- bricks falls from a construction job), dant denies the amount was more negligence can be found based on the than a hundred thousand, and de- doctrine of res ipsa loquitor (Latin nies it was given to him in 1994. for “the thing speaks for itself”). Fur- Thus, he did not deny the misuse, thermore, in six states (Alabama, just the amount and the date. North Carolina, South Carolina, Tennessee, Virginia, Maryland) and negligence: n. failure to exercise the District of Columbia, an injured the care toward others which a party will be denied any judgment reasonable or prudent person (payment) if found to have been would do in the circumstances, or guilty of even slight “contributory taking action which such a reason- negligence” in the accident. This ar- able person would not. Negligence chaic and unfair rule has been re- is accidental as distinguished from placed by “comparative negligence” “intentional torts” (assault or tres- in the other 44 states, in which the

pass, for example) or from crimes, negligence of the claimant is bal- but a crime can also constitute anced with the percentage of blame negligence, such as reckless dri- placed on the other party or parties ving. Negligence can result in all (“joint tortfeasors”) causing the acci- types of accidents causing physical dent. In automobile accident cases in and/or property damage, but can 16 states the head of the household also include business errors and is held liable for damages caused by miscalculations, such as a sloppy any member of the family using the land survey. In making a claim for car under what is called the “family damages based on an allegation of purpose” doctrine. Nine states (Cali- another’s negligence, the injured fornia, New York, Michigan, Florida, party (plaintiff) must prove: a) Idaho, Iowa, Minnesota, Nevada, that the party alleged to be negli- Rhode Island) make the owner of the gent had a duty to the injured vehicle responsible for all damages party—specifically to the one in- caused by a driver given permission jured or to the general public, b) to use the car, whether or not the that the defendant’s action (or fail- negligent driver has assets or insur- ure to act) was negligent—not ance to pay a judgment. Eight states what a reasonably prudent person (Connecticut, Massachusetts, New would have done, c) that the dam- Jersey, Oregon, Rhode Island, Ten- ages were caused (“proximately nessee, Virginia, West Virginia) caused”) by the negligence. An allow the owner to rebut a presump- added factor in the formula for de- tion that the driver was authorized termining negligence is whether to use the car. Negligence is one of the damages were “reasonably the greatest sources of litigation

280 next of kin

(along with contract and business other expenses and deductions have disputes) in the United States. been paid and/or subtracted. Thus the (See: comparative negligence, term is used in net profit, net income, contributory negligence, dam- net loss, net worth or net estate. (See: ages, family purpose doctrine, net estate) foreseeable risk, gross negligence, joint tortfeasors, liabili- net estate: n. the remaining estate of a ty, negligence per se, res ipsa person who has died, calculated by loquitur, tort, tortfeasor) taking the value of all assets and subtracting all debts of the person who negligence per se: (purr say) n. neg- died, including funeral costs, expenses ligence due to the violation of a pub- of administering the estate and any

lic duty, such as high speed driving. other allowable deductions. The feder- (See: negligence, per se) al estate tax (and/or state inheritance

tax where it exists) is then based on negligent: adj., adv. careless in not the net estate value. (See: estate tax, fulfilling responsibility. (See: neg- gift tax, inheritance tax) ligence) new matter: n. newly claimed facts or negotiable instrument: n. check, legal issues raised (brought up) by a promissory note, bill of exchange, defendant (the party being sued) to security or any document repre- defend himself/herself/itself beyond senting money payable which can just denying the allegations in the be transferred to another by hand- complaint filed by the person bring-

ing it over (delivery) and/or ening the lawsuit (plaintiff). Such new

dorsing it (signing one’s name on matters are called “affirmative de- the back either with no instruc- fenses.” (See: affirmative defense,

tions or directing it to another, answer) such as “pay to the order of Pamela Townsend”). (See: bearer paper, next friend: n. a person (often a rela- bill of exchange, check, promis- tive) who voluntarily helps a minor sory note, security) or incompetent in legal matters, particularly by filing a lawsuit. However,

negotiation: n. 1) the transfer of a this informal practice has been sup- check, promissory note, bill of ex- planted in almost all states by peti- change or other negotiable instru- tions for appointment of a guardian ment to another for money, goods, ad litem at the time the lawsuit is services or other benefit. 2) give- filed. (See: guardian ad litem) and-take discussion or conference

in an attempt to reach an agree- next of kin: n. 1) the nearest blood rel- ment or settle a dispute. (See: ne- atives of a person who has died, in- gotiable instrument) cluding the surviving spouse. 2) anyone who would receive a portion of the net: n., adj. the amount of money or estate by the laws of descent and dis-

value remaining after all costs, loss- tribution if there is no will. (See: de- es, taxes, depreciation of value and scent and distribution)

281 nihil

nihil: (ni [as in it]-hill) n. from Latin recommended by the prosecutor in ex- for nothing. change for not contesting the charge (which is often reduced to a lesser nil: n. from Latin nihil nothing , crime). It is standard practice for the or zero. judge to ask either the attorneys or the defendant, “Is there a factual basis for

nisi prius: (nee-see pree-us) adj. the plea?” before accepting it and find- Latin for “unless first,” in some ju- ing the defendant guilty. (See: nolo risdictions it means the original trial contendere, plea, plea bargain) court which heard a case as distinguished from a court of appeals, as no fault insurance: n: a type of auto- in court nisi prius. “Court of original mobile insurance required of car jurisdiction” is often substituted for owners by law in 19 states (New the term nisi prius. (See: original York, Michigan, Massachusetts, jurisdiction, trial court) Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Kansas, Kentucky, Maryland, Min- The law holds that it is better nesota, New Jersey, North Dakota, that ten guilty persons escape, Oregon, South Carolina, South Dako- than one innocent suffer. ta) and the District of Columbia, in —Sir William Blackstone, which the persons injured in an acci- Commentaries on the Laws of dent are paid basic damages by the England company that insured the vehicle in which they were riding or by which no contest: n. in criminal law, a de- they were hit as a pedestrian. The fendant’s plea in court that he/she amount of damages to be paid by the will not contest the charge of a par- insurance is limited to actual medical ticular crime, also called nolo con- and rehabilitation expenses, lost tendere. While technically not an ad- wages and necessary expenses (such mission of guilt for commission of as loss of use of the vehicle) with a the crime, the judge will treat a plea low maximum and for a limited peri- of “no contest” as such an admission od. In addition, an injured person can and proceed to find the defendant sue the negligent driver for medical guilty as charged. A “no contest” plea costs above the amount of the insur-

is often made in cases in which there ance, pain and suffering if the in- is also a possible lawsuit for dam- juries required medical treatment or ages by a person injured by the crim- resulted in permanent injury, broken inal conduct (such as reckless dri- bones or disfigurement, or wrongful ving, assault with a deadly weapon, death. All registered automobiles aggravated assault), because it can- must be insured. The benefits of no

not be used in the civil lawsuit as an fault include rapid payment of all admission of fault. “No contest” is medical expenses in most cases; elim- also used where there has been a ination of lawsuits except in cases in- “plea bargain” in which the defen- volving lesser injuries, very serious dant does not want to say he/she is injury or death; and elimination of guilty but accepts the sentence extensive and costly investigation,

282 nominal party

proof of negligence, medical reports nolle prosequi: (no-lay pro-say-kwee) and depositions. The statutes vary n. Latin for “we shall no longer pros- in states requiring “no fault” insur- ecute,” which is a declaration made ance. There have been legal chal- to the judge by a prosecutor in a crim-

lenges to the statutes, primarily inal case (or by a plaintiff in a civil

suggesting that limitations on the lawsuit) either before or during trial, right to sue or establishment of meaning the case against the defen- narrow categories of injury for dant is being dropped. The statement which a claim of “pain and suffer- is an admission that the charges caning” may be included in a lawsuit not be proved, that evidence has are unconstitutional. State courts demonstrated either innocence or a have struck down those restric- fatal flaw in the prosecution’s claim tions which were arbitrary or pre- or the district attorney has become vented legitimate claims. The fight convinced the accused is innocent. over no fault insurance laws con- Understandably, usage of the phrase tinues state by state, with the in- is rare. In the 1947 courtroom movie,

surance companies and some court Boomerang ! the climactic moment ar- reform advocates (who believe “no rived when the District Attorney fault” alleviates a clogging of the himself proved the accused person in- courts) favoring it, and trial attor- nocent and declared nolle prosequi. neys either opposing the proposal outright or wanting much more lee- nolo contendere: (no-low kahn-ten- way for filing lawsuits. (See: disso- durr-ray) n. Latin for “I will not con-

lution of marriage, negligence) test” the charges, which is a plea made by a defendant to a criminal no fault divorce: n. divorces (disso- charge, allowing the judge to then lutions) in which neither spouse is find him/her guilty, often called a required to prove “fault” or marital “plea of no contest.” (See: no contest) misconduct on the part of the other. To obtain a divorce a spouse nominal damages: n. a small amount must merely assert incompatibility of money awarded to a plaintiff in a or irreconcilable differences, lawsuit to show he/she was right but meaning the marriage has irre- suffered no substantial harm. The trievably broken down. This most famous case of nominal dam- means there is no defense to a di- ages was when Prime Minister Win- vorce petition (so a spouse cannot ston Churchill was awarded a shilling threaten to “fight” a divorce), there (about 25 cents) in a libel lawsuit he is no derogatory testimony, and had brought against author Louis marital misconduct cannot be used Adamic for writing that Churchill to achieve a division of property fa- had been drunk during a dinner at vorable to the “innocent” spouse. the White House. The Prime Minister Increasingly popular since the was vindicated, but the jury could not 1960s, no fault divorce is in effect find that his towering reputation had in every state except Illinois and been damaged. (See: damages) South Dakota. (See: dissolution of marriage, divorce) nominal party: n. a defendant or a

283 :

nominee

plaintiff included in a lawsuit be- non-conforming use: n. the existing cause of a technical connection with use (residential, commercial, agricul- the matter in dispute, and neces- tural, light industrial, etc.) of a parcel sary for the court to decide all issues of real property which is zoned for a and make a proper judgment, but more limited or other use in the city or with no responsibility, no fault and county’s general plan. Usually such

no right to recovery. Example: suing use is permitted only if the property an escrow holder or trustee who is was being so used before the adoption

holding a title to real property or de- of the zoning ordinance which it vio- posited funds but has no interest in lates. Example: a comer parcel has the property, funds or the lawsuit. been used for a gasoline station for Thus the court can order the nomi- years, and now the city has zoned the nal defendant to transfer title or pay entire area as residential (for homes out the funds when the rights of the only). The non-conforming use will be

real parties are decided. (See: nec- allowed as “grandfathered in,” but if essary party, party) the station is tom down the only use would be residential. (See: general nominee: n. 1) a person or entity who plan, grandfathered in, zoning) is requested or named to act for another, such as an agent or trustee. 2) non-contestability clause: n. an in- a potential successor to another’s surance policy provision which re- rights under a contract. Example: In quires the insurance company to chal- a real estate purchase agreement, lenge any statement in the application Bob Buyer agrees to purchase the for the insurance within a specific property, but provides that title time. This prevents the company from (legal ownership) will be granted to denying coverage on the basis of fraud “Bob Buyer or nominee,” so that or error in the application when a Buyer can sell his rights to another claim is made by the policyholder. person before the deal closes, or because Buyer is really acting for non-contiguous: adj. referring to two someone else. 3) the executor pro- or more parcels of real property which posed by a person in a will is a nom- are not connected. inee until officially appointed by the judge after the testator (will writer) non-discretionary trust: n. a trust in has died, and the will is submitted which the trustee is directed to invest for probate (administration of the es- only in specifically named securities tate). 4) a person chosen by conven- and to diversify the investments tion, petition or primary election to among certain types of securities. The be a candidate for public office. (See: trustee has no discretion or personal agent, executor) decision-making power in the matter. (See: trust) non compos mentis (nahn com-pose meant-is) adj. referring to someone non-feasance: n. the failure of an who is insane or not mentally com- agent (employee) to perform a task petent to conduct one’s affairs. (See: he/she has agreed to do for

competent, compos mentis ) his/her principal (employer), as

284 notary public

distinguished from “misfeasance” disguised profits. (See: charity, cor- (performing poorly) or “malfeasance” poration, cy pres doctrine) (performing illegally or wrongly). (See: malfeasance, misfeasance) non sequitur. (nahn sek [as in heck]-

kwit-her) n. Latin for “it does not fol- non-profit corporation: n. an or- low.” The term usually means that a ganization incorporated under conclusion does not logically follow state laws and approved by both from the facts or law, stated: “That’s a the state’s Secretary of State and non sequitur.” its taxing authority as operating for educational, charitable, social, non-suit: n. a ruling by the judge in religious, civic or humanitarian a lawsuit either when the plaintiff purposes. A non-profit corporation (the party who filed the suit) does (also called “not for profit corpora- not proceed to trial at the appointed tion”) is formed by incorporators, time or has presented all his/her/its has a board of directors and offi- evidence and, in the judge’s opinion, cers, but no shareholders. These there is no evidence which could incorporators, directors and offi- prove the plaintiff’s case. A non-suit cers may not receive a distribution terminates the trial at that point and of (any money from) profits, but of- results in a dismissal of the plain- ficers and management may be tiff’s case and judgment for the de- paid reasonable salaries for ser- fendant. (See: dismissal) vices to the corporation. Upon dissolution of a nonprofit corporation no-par stock: n. shares in a corporation its assets must be distributed to an which are issued without a price per organization existing for similar share stated on the stock certificate. purposes under the “cy pres doctrine.” In order for contributions to notary: (See: notary public) the corporation to be deductible as

charitable gifts on federal income notary public: n. a person authorized taxes, the corporation must submit by the state in which the person re- a detailed application (with a sub- sides to administer oaths (swearings to stantial fee) for an Internal Rev- truth of a statement), take acknowl- enue Service ruling that it is es- edgments, certify documents and to tablished for one of the specific take depositions if the notary is also a nonprofit purposes spelled out in court reporter. The signature and seal the Internal Revenue Code. Infor- or stamp of a notary public is neces- mational tax returns must be filed sary to attest to the oath of truth of a annually with the IRS and the person making an affidavit and to at- state taxing body. In addition, the test that a person has acknowledged state Attorney General may have that he/she executed a deed, power of oversight powers to determine if attorney or other document, and is re- the corporation is abiding by state quired for recording in public records. laws by limiting its activities to The Secretary of State of each state ap- its approved non-profit purposes points notaries public for a specified and not milking the corporation for term of years. A notary public must see

285 note

proof of identity (e.g. driver’s license) again for the crime charged. (See: ar-

of those swearing and keep an offi- raignment, not guilty by reason of cial journal of documents notarized. insanity, plea)

The authority is good only in the state which appoints the notary. not guilty by reason of insanity: n. plea in court of a person charged with a crime who admits the criminal act, Why not put it out ofthe power but whose attorney claims he/she was of the vicious and the lawless so mentally disturbed at the time of to use us [women] with cruelty the crime that he/she lacked the ca- and indignity with impunity. pacity to have intended to commit a —Abigail Adame, letter to crime. Such a plea requires that the husband John Adams court set a trial on the issue of insanity alone either by a judge sitting with- note: n. a promissory note, a written out a jury or by a jury. A finding of in- statement of debt by one or more sanity will result in a verdict of “not

people to one or more people, with guilty,” but, if the condition still exists,

a statement of a specific amount it may result in incarceration in a

owed or due, date it is due, interest mental facility for the criminally in-

(if any) on the amount, and other sane or confinement in a mental hos- terms such as installments, penalty pital. If the insanity no longer exists for late payment, full amount due (temporary insanity), the judge has if delinquent, how secured (as by the option to require some psychologi- real property), and attorneys’ fees cal therapy, but the treatment varies and costs if required to collect on the from state to state. This is not the note. (See: promissory note) same as insane at time of trial and thus incompetent to stand trial, which

not guilty: n. 1) plea of a person who will postpone trial (in all likelihood claims not to have committed the forever) pending recovery while the crime of which he/she is accused, defendant is confined to a mental fa-

made in court when arraigned (first cility. (See: incompetent, insanity, brought before a judge) or at a later insanity defense, not guilty, tem- time set by the court. The choices of porary insanity) what one can plea are: guilty, not

guilty, no contest, not guilty by rea- notice: n. 1) information, usually in son of insanity, or incompetent to writing in all legal proceedings, of stand trial. 2) verdict after trial by a all documents filed, decisions, re- judge sitting without a jury or by a quests, motions, petitions, and up- jury (unanimous decision in all but coming dates. Notice is a vital princi- two states, which allow a verdict by ple of fairness and due process in only 10 of 12 jurors), stating that legal procedure and must be given to the prosecution has not proved the both parties, to all those affected by a

defendant guilty of a crime or that it lawsuit or legal proceeding, to the op- believes the accused person was in- posing attorney and to the court. In sane at the time the crime was com- short, neither a party nor the court mitted. The accused cannot be tried can operate in secret, make private

286 notice to quit overtures or conceal actions. Notice of trust or statute. 3) information. 4) of a lawsuit or petition for a court being informed of a fact, or should order begins with personal service have known based on the circum- on the defendants (delivery of no- stances, as “he had notice that the tice to the person) of the complaint roof was not water-tight.” (See: con- or petition, together with a sum- structive notice, notice to quit, mons or order to appear (or file an 30-day notice, three-day notice) answer) in court. Thereafter, if a party is represented by an attor- notice of default: n. a notice to a bor- ney, notice can usually be given to rower with property as security the attorney by mail. If there is a under a mortgage or deed of trust so-called ex parte hearing (an emer- that he/she is delinquent in pay- gency session with a judge with ments. If the delinquency (money only the requesting party or his/her owed and late), plus costs of prepar- attorney present) the party wanting ing the legal papers for the default, the hearing must make a diligent are not paid within a certain time, attempt to give notice to the other foreclosure proceedings may be com- party. A court may allow “construc- menced. Other people with funds se- tive” notice by publication in an cured by the same property are usu- approved legal newspaper of a ally entitled to receive copies of the summons in a lawsuit. Examples: notice of default. (See: notice) in a divorce action, publication gives constructive notice to a notice to quit: n. the notice given by a spouse known to have left the state landlord (owner) to a tenant to leave or hiding to avoid service; in a quiet the premises (quit) either by a certain title action, notice by publication date (usually 30 days) or to pay over- is given to alert unknown descen- due rent or correct some other default dants of a dead person who may (having pets, having caused damage, have had an interest in the real too many roommates, using the prop- property which is the subject of erty for illegal purposes, etc.) within a a lawsuit. Recordation of deeds, short time (usually three days). A no- mortgages, deeds of trust, ease- tice to quit must contain certain in- ments, leases and other documents formation, such as: names of the per- affecting real property title give sons to leave, whether their tenancy “constructive” notice to the general is by written or oral agreement, an public, and thus “constructive” no- amount of any financial delinquency tice to anyone interested in the and the period it covers, and to whom property, without delivering notice they should surrender the premises. to individuals. 2) a writing inform- If the tenant is month-to-month, a no- ing a party to a contract, promisso- tice to quit without reference to de- ry note, lease, rental agreement or fault usually requires no reason. Al- other legal relationship of a delin- though state laws vary, generally the quency in payment, default, intent notice must be served personally on to foreclose, notice to pay rent or the tenant or posted in a prominent quit (leave) or other notice required place like the front door with a copy by the agreement, mortgage, deed sent by certified mail. Such notice

287 notorious possession

and failure of the tenant to quit noxious: adj. harmful to health, often (leave) is a requirement to bring referring to nuisances. a lawsuit for unlawful detainer

(often referred to as “eviction”). nugatory: adj. of no force or effect; in-

(See: lease, month-to-month, valid. Example: a statute which is notice, unlawful detainer) unconstitutional is a nugatory law.

notorious possession: n. occupa- nuisance: n. the unreasonable, un- tion of real property or holding warranted and/or unlawful use of personal property in a way which property, which causes inconve- anyone can observe is as if the per- nience or damage to others, either son is the owner. to individuals and/or to the general public. Nuisances can include nox- N.O.V.: adj. shorthand acronym of ious smells, noise, burning, misdirec-

Latin for non obstante veredicto tion of water onto other property, il- (nahn ahb-stan-tuh very-dick-toe) legal gambling, unauthorized collec- meaning “notwithstanding the ver- tions of rusting autos, indecent signs dict,” referring to a decision of a and pictures on businesses and a judge to set aside (reverse) a jury’s host of bothersome activities. Where decision in favor of one party in a illegal they can be abated (changed, lawsuit or a guilty verdict when the repaired or improved) by criminal or judge is convinced the judgment is quasi-criminal charges. If a nuisance not reasonably supported by the interferes with another person’s facts and/or the law. The result is quiet or peaceful or pleasant use of called a “judgment N.O.V.” Granting his/her property, it may be the basis a motion for such a ruling means for a lawsuit for damages and/or an the court realizes it should have di- injunction ordering the person or en- rected the jury to reach an opposite tity causing the nuisance to desist verdict in the first place. (See: (stop) or limit the activity (such as judgment notwithstanding the closing down an activity in the verdict, verdict) evening). (See: public nuisance)

novation: n. agreement of parties to nullity: n. something which may be

a contract to substitute a new con- treated as nothing, as if it did not tract for the old one. It extinguish- exist or never happened. This can es (cancels) the old agreement. A occur by court ruling or enactment of novation is often used when the a statute. The most common exam- parties find that payments or per- ple is a nullity of a marriage by a formance cannot be made under court judgment. (See: annulment) the terms of the original agreement, or the debtor will be forced to nunc pro tunc: (nuhnk proh tuhnk): default or go into bankruptcy un- adj. Latin for “now for then,” this less the debt is restructured. While refers to changing back to an earlier voluntary, a novation is often the date of an order, judgment or filing of only way any funds can be paid. a document. Such a retroactive re- (See: accord and satisfaction) dating requires a court order which

288 —

nunc pro tunc can be obtained by a showing that the earlier date would have been legal, and there was error, accidental omission or neglect which has caused a problem or inconvenience which can be cured. Often the judge will grant the nunc pro tunc order ex parte (with only the applicant appearing and without notice). Examples: a court clerk fails to file an answer when he/she received it, and a nunc pro tunc date of filing is needed to meet the legal deadline (statute of limitations); a final divorce judgment is misdi- rected and, therefore, not signed and dated until the day after the re-marriage of one of the parties the nunc pro tunc order will prevent the appearance or actuality of a bigamous marriage.

289 oath: n. 1) a swearing to tell the answering a question as asked and is truth, the whole truth and nothing not allowed to make unsolicited com- but the truth, which would subject ments. The trial attorney must be the oath-taker to a prosecution for alert and quick in order to object be-

the crime of perjury if he/she fore the witness answers. This is knowingly lies in a statement ei- called an “objection” and must be ther orally in a trial or deposition based on a specific list of legal re- or in writing. Traditionally, the strictions on questions. 2) n. a par- oath concludes “so help me God,” ticular thing. 3) n. an aim or pur- but the approval of a supreme pose, as “the object of the contract...” being is often omitted. Criminal (See: objection) perjury charges are rare, however, since the person stating the un- objection: n. a lawyer’s protest about truth will almost always claim the legal propriety of a question which error, mistake, loss of memory or has been asked of a witness by the op- opinion. At the beginning of any posing attorney, with the purpose of

testimony by a witness, the clerk making the trial judge decide if the or court reporter administers an question can be asked. A proper objec- oath to the witness. 2) The “swear- tion must be based on one of the spe- ing in” of a person assuming a pub- cific reasons for not allowing a ques- lic office, sometimes called the tion. These include: irrelevant, imma-

“oath of office.” 3) sworn commit- terial, incompetent (often stated to- ment of allegiance, as to one’s gether, which may mean the question country. (See: affidavit, perjury) is not about the issues in the trial or the witness is not qualified to answer), obiter dicta: (oh-bitter dick-tah) n. hearsay (the answer would be what remarks of a judge which are not someone told the witness rather than necessary to reaching a decision, but what he/she knew first-hand), leading are made as comments, illustrations (putting words in the mouth of one’s or thoughts. Generally, obiter dicta own witness), calls for a conclusion is simply dicta. (See: dicta, dictum) (asking for opinion, not facts), compound question (two or more questions object: 1) v. to ask the court not to asked together), or lack of foundation

allow a particular question asked (referring to a document lacking testi- of a witness by the opposing mony as to authenticity or source). An lawyer on the basis that it is either objection must be made quickly and legally not permitted, confusing in loudly to halt the witness before its wording or improper in its he/she answers. The judge will either “form.” An attorney may also ob- “sustain” the objection (ruling out the

ject to an answer to the question question) or “overrule” it (allow the on the basis that it is not “respon- question). The judge may ask for an sive” since a witness is limited to “offer of proof’ in which the lawyer

290 occupational disease

asking the question must explain to non-subjective definition since “one

the court the reason the question is person’s obscenity is another person’s relevant, and what evidence his/her art,” or, as one Supreme Court Justice

questions will bring out. Badly stated, “I can’t define it, but I know it

worded, confusing or compound when I see it.” (See: pornography) questions are usually challenged by an objection to the form of the ques- obstruction of justice: n. an attempt tion, which is essentially a demand to interfere with the administration of that the question be withdrawn and the courts, the judicial system or law reworded. An attorney may “object” enforcement officers, including threat- to a witness’s answer as “non-re- ening witnesses, improper conversa- sponsive” to the question, but the tions with jurors, hiding evidence or proper request should be that the interfering with an arrest. Such activ- answer or a comment without a ity is a crime. question be “stricken” from the

record. (See: compound question, occupancy: n. 1) living in or using lay a foundation, hearsay, imma- premises, as a tenant or owner. 2) tak- terial, incompetent, irrelevant, ing possession of real property or a leading question, object, over- thing which has no known owner, rule, sustain) with the intention of gaining ownership. (See: occupant) obligation: n. a legal duty to pay or

do something. occupant: n. 1) someone living in a residence or using premises, as a tenant obligee: (ah-bluh-jee) n. the person or or owner. 2) a person who takes pos- entity to whom an obligation is session of real property or a thing owed, like the one to be paid on a which has no known owner, intending promissory note. to gain ownership. (See: occupancy) obligor: (ah-bluh-gore) n. the person occupation: n. 1) fairly permanent or entity who owes an obligation to trade, profession, employment, busi-

another, as one who must pay on a ness or means of livelihood. 2) posses- promissory note. sion of real property or use of a thing. obscene: adj., adv. a highly subjective occupational disease: n. an illness reference to material or acts which resulting from long-term employ- display or describe sexual activity in ment in a particular type of work, a manner appealing only to “pruri- such as black lung disease among ent interest,” with no legitimate miners, or cancer among asbestos in- artistic, literary or scientific pur- stallers. If the chances of being af- pose. Pictures, writings, film or pub- flicted by such an illness are signifi- lic acts which are found to be ob- cantly higher than the average in the scene are not protected by the free population, then a former employee speech guarantee of the First may receive benefits from Social Se- Amendment. However, the courts curity or worker’s compensation for a have had difficulty making a clear work-related disability.

291 occupational hazard

occupational hazard: n. a danger or the court to take a lawsuit, petition or risk inherent in certain employ- motion off the list of pending cases or ments or workplaces, such as deep- motions which are scheduled to be sea diving, cutting timber, high-rise heard. A case or motion will be ordered steel construction, high-voltage off calendar if the lawyers agree (stip-

electrical wiring, use of pesticides, ulate) to drop it, if the moving party’s

painting bridges and many facto- lawyer fails to appear, if a suit is set- ries, The risk factor may limit in- tled pending final documentation or surance coverage of death or injury any number of procedural reasons for while at work. the judge to determine the case should not proceed at that time. A suit or mo- occupy the field: v. to preempt (motion can be put back “on calendar” by nopolize) an area of statutory law by stipulation of the lawyers or upon mo- a higher authority, such as federal tion of either party. (See: calendar) preemption of bankruptcy or interstate commerce over state legisla- offender: n. an accused defendant in a tion, and state statutes or state con- criminal case or one convicted of a stitution prevailing over laws of crime. (See: accused, defendant) cities and counties on certain topics. (See: preemption) offense: n. a crime or punishable violation of law of any type or magnitude. (See: crime) There is far too much law for those who can afford it, and far offer: n. a specific proposal to enter into too little for those who cannot. an agreement with smother. An offer is —Derek Bok, President of essential to the formation of an en- Harvard University forceable contract. An offer and acceptance of the offer creates the contract. of counsel: adj. reference to an attor- (See: contract) ney who is not actively involved in the day-to-day work of a law firm, offeree: n. a person or entity to whom but may be available in particular an offer to enter into a contract is matters or for consultation. This made by another (the offeror). designation often identifies a semi- retired partner, an attorney who oc- offer of proof: n. an explanation made casionally uses the office for a few by an attorney to a judge during trial clients or one who only consults on a to show why a question which has

particular case or on his/her special- been objected to as immaterial or ir- ty. Putting the name of the attorney relevant will lead to evidence of value “of counsel” on a law firm’s sta- to proving the case of the lawyer’s tionery gives the office the prestige client. Often the judge will ask: of the lawyer’s name and reputa- “Where is this line of questions tion, without requiring his/her full- going?” and the offer of proof is the re- time presence. sponse. The offer provides the opposition a preview of the questions (and

off calendar: adj. refers to an order of helps prevent surprise), but is

292 offset

essential to overcome the objections. public agency. The term can also apply (See: evidence, immaterial, irrel- to an organizational act or product evant, objection, testimony) which is authorized by the organization, such as an Official Boy Scout offeror: n. a person or entity who knife or emblem, an official warranty, makes a specific proposal to another membership card or set of rules. 2) n. (the offeree) to enter into a contract. a public officer or governmental em- (See: contract, offer, offeree) ployee who is empowered to exercise judgment. 3) n. an officer of a corpora- officer: n. 1) a high-level manage- tion or business. (See: officer) ment official of a corporation or an unincorporated business, hired by official misconduct: n. improper the board of directors of a corpora- and/or illegal acts by a public official tion or the owner of a business, such which violate his/her duty to follow as a president, vice president, secre- the law and act on behalf of the pub-

tary, financial officer or chief execu- lic good. Often such conduct is under tive officer (CEO). Such officers the guise or “color” of official author-

have the actual or apparent authority. (See: color of law, official) ity to contract or otherwise act on behalf of the corporation or busi- officious intermeddler: n. a volun- ness. 2) a public official with execu- teer who assists and/or benefits an- tive authority ranging from city other without contractual responsi- manager to governor. 3) a law en- bility or legal duty to do so, but nev- forcement person such as a police- ertheless wants compensation for man or woman, deputy sheriff or his/her actions. The courts generally federal marshal. find that the intermeddler must rely on the equally voluntary gratitude of officer of the court: n. any person the recipient of the alleged benefit. who has an obligation to promote (See: Good Samaritan rule) justice and effective operation of the

judicial system, including judges, offset: 1) n. also called a “setoff,” the de- the attorneys who appear in court, duction by a debtor from a claim or de- bailiffs, clerks and other personnel. mand of a debt or obligation. Such an

As officers of the court lawyers have offset is based upon a counterclaim an absolute ethical duty to tell against the party making the original judges the truth, including avoiding claim. Example: Harry Hardhead dishonesty or evasion about reasons makes a claim or files a lawsuit ask- the attorney or his/her client is not ing for $20,000 from Danny Debtor as appearing, the location of documents the final payment in purchase of a and other matters related to conduct restaurant; as part of his defense of the courts. (See: attorney, bailiff, Debtor claims an offset of $10,000 clerk, judge) for alleged funds owed by Hardhead for repairs Debtor made on property

official: 1) adj. referring to an act, owned by Hardhead, thus reducing

document or anything sanctioned the claim of Hardhead to $10,000. 2) v. or authorized by a public official or to counterclaim an alleged debt owed

293 offshore corporation

by a claimant to reduce the demand omnibus clause: n. 1) an automobile of that claimant. (See: counter- insurance policy clause which provides claim, defense, setoff) coverage no matter who is driving the car. 2) a provision in a judgment for offshore corporation: n. a corpora- distribution of an estate of a deceased tion chartered under the laws of a person, giving “all other property” to country other than the United the beneficiaries named in the will. States. Some countries (particularly in the Caribbean) are popular on all fours: adj. a reference to a law- nations of incorporation since they suit in which all the legal issues are

have little corporate regulation or identical (or so close as to make no dif- taxes and only moderate manage- ference) to another case, particularly ment fees. Professional trustees an appeals decision which is a prece- and nominal officials in the coun- dent in deciding the suit before the try of incorporation perform rou- court. Thus, an attorney will argue

tine contacts with the local govern- that the prior case of, for example,

ment but take no active part in Steele v. Merritt is “on all fours” with management. The reasons for the the case before the court, and so the use of offshore corporations are court must reach the same conclusion. best known to the incorporators, (See: precedent) but may include avoidance of taxes, ease of international opera- on demand: adj. in a promissory note, tions, freedom from state regula- a requirement that the amount due tion and placement of funds in ac- must be paid when the person to counts out of the country. whom the funds are owed demands payment (rather than upon a certain omission: n. 1) failure to perform an date or on installments). Such a note act agreed to, where there is a duty is called a “demand note.” (See: de- to an individual or the public to act mand note) (including omitting to take care) or

where it is required by law. Such on file: prep, having been formally filed an omission may give rise to a law- with the clerk of the court or the

suit in the same way as a negligent judge, such as a pleading is “on file.” or improper act. 2) inadvertently (See: file) leaving out a word, phrase or other language from a contract, deed, on or about: prep, a phrase referring judgment or other document. If the to a date or place used in a complaint

parties agree that the omission in a lawsuit or criminal charge if

was due to a mutual mistake, the there is any uncertainty at all, in document may be “reformed,” but order to protect the person making this may require a petition for a the allegations of fact from being court order making the correction challenged as being inaccurate. if it had been relied upon by gov- Thus, a complaint will read “On or ernment authorities or third par- about July 11, 1994, Defendant ties. (See: breach of contract, drove his vehicle negligently and negligence, reformation) without due care on or about the cor-

294 opinion

ner of Sunset and Vine Streets....” charges and arguments over evidence (See: charge, complaint) and motions which might prejudice the jury. The Sixth Amendment to the on or before: prep, a phrase usual- Constitution, later applied to the ly found in a contract or promisso- states under the 14th Amendment, ry note, designating performance guarantees criminal defendants a or payment by a particular date, “public trial,” so all criminal proceed- but which may be done prior to ings are held in “open court.” This that date. does not apply to pre-trial negotiations and procedural and motion dis- on the merits: adj. referring to a cussions with the judge, which are judgment, decision or ruling of a usually held in chambers. court based upon the facts present-

ed in evidence and the law applied opening statement: n. the explanation to that evidence. A judge decides a by the attorneys for both sides at the case “on the merits” when he/she beginning of the trial of what will be bases the decision on the funda- proved during the trial. The defen- mental issues and considers techni- dant’s attorney may delay the opening cal and procedural defenses as ei- statement for the defense until the ther inconsequential or overcome. plaintiff’s evidence has been intro- Example: An attorney is two days duced. Unlike a “closing argument,”

late in filing a set of legal points the opening statement is supposed to and authorities in opposition to a be a factual presentation and not an motion to dismiss. Rather than dis- argument. (See: closing argument) miss the case based on this techni-

cal procedural deficiency, the judge operation of law: n. a change or trans- considers the case “on the merits” fer which occurs automatically due to as if this mistake had not occurred. existing laws and not an agreement or court order. Examples: a joint tenant on the stand: prep, testifying during obtains full title to real property when a trial, in which the witness almost the other joint tenant dies; a spouse in always sits in a chair beside the a community property state will take judge’s bench, often raised above the title to all community property if the floor level of the courtroom and be- spouse dies without a will that leaves hind a knee-high panel. some of the dead mate’s interest in the community property to another; or a open court: n. the conduct ofjudicial guardianship of a minor ad litem (for proceedings (trials, hearings and purposes of a lawsuit) ends automati- routine matters such as trial set- cally upon the child turning 18. tings) in which the public may be present. Some hearings and discus- opinion: n. the explanation of a sions are held in the judge’s cham- court’s judgment. When a trial court bers (“in camera”) or with the court- judgment is appealed to a court of room cleared of non-participants appeals, the appeals judge’s opinion and/or the jury such as adoptions, will be detailed, citing case prece- sanity hearings, juvenile criminal dents, analyzing the facts, the ap-

295 option

plicable law and the arguments which gives him/her a period of time of the attorneys for the parties. to decide if he/she wishes to purchase, Those opinions considered by the tying up the property for that period, court to be worthy of serving as a and then pay $500,000 for the proper-

precedent or involving important ty. If the time to exercise the option ex- legal issues will be published in pires then the option terminates. The the official reports available in amount paid for the option itself is not most law libraries. Since appeals refundable since the funds bought the courts have anywhere from three option whether exercised or not. Often to nine judges, there are often “dis- an option is the right to renew a consenting opinions” which disagree tract such as a lease, broadcasting a with the majority opinion, and television series, the employment of “concurring opinions” which agree an actor or athlete, or some other ex- with the result, but apply different isting business relationship. A “lease- emphasis, precedents or logic to option” contract provides for a lease of reach the determination. Normally property with the right to purchase the majority opinion identifies the the property during or upon expira- author, but some brief opinions are tion of the lease. labeled “in banc” (by the bench) or

“per curiam” (by the court) in or: conj. either; in the alternative. It is which the author is not specified. often vital to distinguish between “or” and “and.” Example: Title to the Cadillac written “Mary or Bill Man is a creature endowed Davidson” means either one could with reason and free will; but transfer the car, but if written “Mary when he goes to law as plain- and Bill Davidson,” both must sign tiff, his reason seems to have to change title. left him; while, ifhe stands in the position of defendant, it is O.R.: n. short for “own recognizance,” generally against his free meaning the judge allowed a person will. accused in a criminal case to go free —Gilbert Abbott A Beckett, pending trial without posting bail. A The Comic Blackstone person so released is often referred to as having been “OR-ed.” (See: option: n. a right to purchase proper- own recognizance) ty or require another to perform upon agreed-upon terms. An option oral contract: n. an agreement made is paid for as part of a contract, but with spoken words and either no must be “exercised” in order for the writing or only partially written. An property to be purchased or the per- oral contract is just as valid as a formance of the other party to be written agreement. The main prob- required. “Exercise” of an option lem with an oral contract is proving normally requires notice and pay- its existence or the terms. As one ment of the contract price. Thus, a wag observed: “An oral contract is as

potential buyer of a tract of land good as the paper it’s written on.” An might pay $5,000 for the option oral contract is often provable by ac-

296 ostensible agent

tion taken by one or both parties uments or appear previously, or to per- which is obviously in reliance on suade the judge he/she should not the existence of a contract. The grant a writ of mandate against a gov- other significant difference be- ernmental agency. (See: O.S.C.) tween oral and written contracts is that the time to sue for breach of ordinance: n. a statute enacted by a an oral contract (the statute of lim- city or town. itations) is sometimes shorter. For example, California’s limitation is ordinary: adj. regular, customary and two years for oral compared to four continuing, and not unusual or ex- for written, Connecticut and Wash- traordinary, as in ordinary expense, ington three for oral rather than ordinary handling, ordinary risks or six for written, and Georgia four ordinary skill. for oral instead of 20 for written.

(See: agreement, contract) ordinary course of business: n. conduct of business within normal com- order: 1) n. every direction or man- mercial customs and usages. date of a judge or a court which is

not a judgment or legal opinion (al- original jurisdiction: n. the authori- though both may include an order) ty of a court to hold a trial, as distin- directing that something be done or guished from appellate jurisdiction that there is prohibition against to hear appeals from trial judg- some act. This can range from an ments. (See: jurisdiction) order that a case will be tried on a certain date, to an order that a con- orphan: n. a child, particularly a minor, victed defendant be executed at the whose two natural parents are dead. state prison. 2) v. for a judge to direct In some cases, such as whether a that a party before the court perform child is eligible for public financial as- a particular act or refrain from cer- sistance to an orphan, “orphan” can tain acts, or to direct a public official mean a child who has lost one parent. or court employee (like a sheriff) to take certain actions such as seizing O.S.C.: n. short for order to show cause. property or arresting an AWOL de- (See: order to show cause) fendant. (See: judge, judgment) ostensible agent: n. a person who has order to show cause: n. a judge’s been given the appearance of being an written mandate that a party appear employee or acting (an agent) for an- in court on a certain date and give other (principal), which would make reasons, legal and/or factual, (show anyone dealing with the ostensible cause) why a particular order should agent reasonably believe he/she was not be made. This rather stringent an employee or agent. This could in- method of making a party appear clude giving the ostensible agent sta-

with proof and legal arguments is tionery or forms of the company, let- applied to cases of possible contempt ting him/her use the company truck,

for failure to pay child support, sanc- telephone or desk in the company of- tions for failure to file necessary doc- fice. Businesses should be careful not

297 ostensible authority

to allow such situations in which ment so that the parties can request an ostensible agent could bind the a court to enforce the settlement in business on a contract or make the case one of the parties reneges and apparent employer responsible for fails to honor the terms of the settle- damages for an accident, libel or ment. Quite often a judgment ap- assault by the “agent.” (See: approving an out-of-court settlement is parent authority, ostensible held in abeyance and replaced by a authority) dismissal if the terms are fulfilled. Some out-of-court settlements are ostensible authority: n. apparent kept confidential and the lawsuit is authority to do something or repre- dismissed. (See: settlement) sent another person or entity. (See: apparent authority, osten- outlaw: n. popularly, anyone who sible agent) commits serious crimes and acts outside the law.

ouster: n. 1) the wrongful disposses- sion (putting out) of a rightful out-of-pocket expenses: n. moneys owner or tenant of real property, paid directly for necessary items by a forcing the party pushed out of the contractor, trustee, executor, admin- premises to bring a lawsuit to re- istrator or any person responsible to gain possession. This often arises cover expenses not detailed by agree- between partners (in a restaurant ment. They may be recoverable from or store) or roommates, when one a defendant in a lawsuit for breach of co-owner or co-tenant forces out the contract; allowable for reimburse- other, changes locks or makes occu- ment by trustees, executors or ad- pancy intolerable. 2) removal of ministrators; or deductible by a land- someone from a position or office lord from a tenant’s security deposit against his/her expectations or will. for damages beyond normal wear and tear. outbuilding: n. a structure not connected with the primary residence You cannot change people's on a parcel of property. This may hearts merely by laws. Laws pre- include a shed, garage, bam, ca- sumably express the conscience bana, pool house or cottage. of a nation and its determination or will to do something. out of court: adj. referring to ac- —Dwight D. Eisenhower tions, including negotiations between parties and/or their attorneys, without any direct involve- output contract: n. an agreement in ment of a judge or the judicial sys- which a producer agrees to sell its

tem. Most commonly it refers to an entire production to the buyer, who “out-of-court settlement” in which in turn agrees to purchase the entire

the parties work out a settlement output, whatever that is. Example: agreement, which they may pre- an almond grower has a “home” for sent to the court for inclusion in a his output, and the packer of nuts is judgment approving the agree- happy to have a sure-fire supply,

298 own recognizance (O.R.)

even though it may have to store own: v. to have legal title or right to

away a glut. something. Mere possession is not ownership. overcharge: v. 1) to charge more than

a posted or advertised price. 2) to file owner: n. one who has legal title or a criminal complaint for crimes of right to something. Contrary to the

greater degree than the known facts cynical adage: “Possession is nine- support, in an effort by the prosecu- tenths of the law,” possession does tor to intimidate the accused. not necessarily make one a legal owner. (See: own) overrule: v. 1) to reject an attorney’s objection to a question to a witness ownership: n. legal title coupled with or admission of evidence. By over- exclusive legal right to possession. ruling the objection, the trial judge Co-ownership, however, means that allows the question or evidence in more than one person has a legal in- court. If the judge agrees with the terest in the same thing. (See: own) objection, he/she “sustains” the objection and does not allow the own recognizance (O.R.): n. the question or evidence. 2) to decide basis for a judge allowing a person (by a court of appeals) that a prior accused of a crime to be free while appeals decision on a legal issue awaiting trial, without posting bail, was not correct and is therefore no on the defendant’s own promise to longer a valid precedent on that appear and his/her reputation. The legal question. (See: appellate judge may consider the seriousness court, objection, sustain) of the crime charged, the likelihood the defendant will always appear, overt act: n. in criminal law, an ac- the length of time the person has tion which might be innocent itself lived in the area, his/her reputation but if part of the preparation and in the community, his/her employ- active furtherance of a crime, can ment, financial burdens and the de- be introduced as evidence of a demeanor of the accused. In minor fendant’s participation in a crime. crimes, traffic offenses and technical Example: Rental of a van, pur- law violations such as leaky septic chase of explosives, obtaining a systems, judges routinely grant re- map of downtown New York City lease on one’s own recognizance. and going back and forth to the (See: bail, O.R.) World Trade Center, could each be considered overt acts as part of the terrorist bombing of that building. owe: v. to have a legal duty to pay funds to another. However, to owe does not make the amount “payable” if the date for payment has not yet arrived. (See: debt, due, payable)

299 paid into court: adj. referring to distinguished from medical bills, money deposited with the clerk of future medical costs and lost the court by a person or entity who wages which can be calculated, knows that the money is owed but called “special damages.” (See: dam- does not know to whom they should ages, general damages, special pay it until the outcome of a lawsuit damages, suffering) between two other parties is decided. In short, the party handing over palimony: n. a substitute for alimony in the money is saying: “Here is the cases in which the couple were not

money. You two argue over it, but married but lived together for a long spare me the trouble and cost of the period and then terminated their rela-

suit.” Example: A contractor buys tionship. The key issue is whether supplies from a hardware store on there was an agreement that one part- credit. The store is owned by two ner would support the other in return people who have dissolved their for the second making a home and per- partnership and are fighting over forming other domestic duties beyond who owns accounts receivable, in- sexual pleasures. Written palimony cluding the funds owed by the con- contracts are rare, but the courts have tractor. The contractor knows he found “implied” contracts, when a owes the money for his supplies, woman has given up her career, wants to meet his obligations, and managed the household or assisted in wants to get rid of the debt. So the the man’s business for a lengthy peri- contractor gives what he thinks he od of time. In the past 20 years pal- owes the hardware store to the imony suits have proliferated, particu- court to hold while the two former larly against celebrities and wealthy partners settle their differences. businessmen, but the earliest was the (See: interpleader) famous California case of Sarah Althea

Hill v. Senator William Sharon in the pain and suffering: n. the physical 1880s, which Ms. Hill lost. The line and mental distress suffered from between a mutual “affair” and a rela- an injury, including actual broken tionship warranting palimony is a bones and internal ruptures, but difficult one which must be decided on also the aches, pain, temporary and a case by case basis. Palimony suits permanent limitations on activity, may be avoided by contracts written potential shortening of life, depres- prior to or during the relationship. sion and embarrassment from (See: alimony) scarring, all of which are part of

the “general damages” recoverable pander: 1) v. to solicit customers for a by someone injured by another’s prostitute. 2) n. a pimp, who procures negligence or intentional attack. customers for a prostitute or lures a

The dollar value of damages for woman into prostitution, all for his

pain and suffering is subjective, as own profit. 3) v. catering to special

300 pardon

interests without any principles, Usually paralegals have taken a pre- such as a politician who says to scribed series of courses in law and whatever group he/she is address- legal processes, which is much less ing just what they want to hear to demanding than those required for a win their support, contributions or licensed attorney. Paralegals are in- favors. (See: prostitute) creasingly popular, often handling much of the paperwork in probates of panderer: n. 1) a person who pan- estates, divorce actions, bankrupt- ders or solicits for a prostitute. 2) cies, investigations, analyzing deposi- some politicians catering to special tions, preparing and answering inter- interests. (See: pander) rogatories and procedural motions and other specialized jobs. Clients panel: n. the list of people selected should be sure that the hourly rate to appear for jury duty. (See: charged for paralegals is much less

jury, venire ) than that for the attorneys.

paper hanger: n. slang for a person paramount title: n. a right to real prop- who criminally writes and cashes erty which prevails over any other per-

“bad” checks on accounts he/she son’s claim of title. (See: title) either does not have or which

have no money in them. (See: parcel: n. a defined piece of real estate, forgery, fraud) usually resulting from the division of a large area of land. It can range in par: n. 1) an equal level. 2) the face size from a small lot to a gigantic value of a stock or bond, printed on ranch. 2) a package. (See: real estate, the certificate, which is the real property) amount the original purchaser

paid the issuing corporation. How- pardon: 1) v. to use the executive ever, most common stocks are is- power of a Governor or President to sued as “no-par value,” and the forgive a person convicted of a crime, value reflects the current market thus removing any remaining penal- for the stock. Preferred stocks ties or punishments and preventing state a par value upon which the any new prosecution of the person dividends are calculated, and the for the crime for which the pardon par value of bonds establishes the was given. A pardon strikes the con- final pay-off amount upon maturi- viction from the books as if it had ty, usually many years in the fu- never occurred, and the convicted ture. (See: bond, common stock, person is treated as innocent. Some- preferred stock, stock) times pardons are given to an older rehabilitated person long after the paralegal: n. a non-lawyer who per- sentence has been served to clear forms routine tasks requiring some his/her record. However, a pardon knowledge of the law and proce- can also terminate a sentence and dures and who is employed by a law free a prisoner when the chief execu- office or works free-lance as an in- tive is convinced there is doubt about dependent for various lawyers. the guilt or fairness of the trial, the

301 parens patriae

party is rehabilitated and has agreed or the court previously decid- performed worthy public service, ed. (See: child support, custody, or there are humanitarian rea- divorce, guardian, ward) sons such as terminal illness. The most famous American pardon was parent: n. the lawful and natural fa- the blanket pardon given by Presi- ther or mother of a person. The word dent Gerald Ford to ex-President does not mean grandparent or ances- Richard Nixon in the wake of the tor, but can include an adoptive par- Watergate scandal and Nixon’s ent as a replacement for a natural resignation; that pardon closed parent. (See: adoption) the door to any future prosecution against Nixon for any crime parental neglect: n. a crime consisting before the pardon. A pardon is dis- of acts or omissions of a parent (in- tinguished from “a commutation of cluding a stepparent, adoptive parent sentence” which cuts short the or someone who, in practical terms, term; “a reprieve,” which is a tem- serves in a parent’s role) which endan-

porary halt to punishment, partic- gers the health and life of a child or ularly the death penalty, pend- fails to take steps necessary to the ing appeal or determination of proper raising of a child. The neglect whether the penalty should be re- can include leaving a child alone when duced; “amnesty,” which is a blan- he or she needs protection; failure to ket “forgetting” of possible crimi- provide food, clothing, medical atten- nal charges due to a change in pub- tion or education to a child; or placing

lic circumstances (such as the end the child in dangerous or harmful cir- of a war or the draft system); or cumstances, including exposing the a “reduction in sentence,” which child to a violent, abusive or sexually shortens a sentence and can be predatory person. granted by a judge or an executive. (See: amnesty, commutation, pari delicto: adj. equal fault. (See: in reprieve) pari delicto)

parens patriae: (paa-rens pat-tree- parish: n. 1) a geographic area served eye) n. Latin for “father of his coun- by a church (particularly Catholic) try,” the term for the doctrine that originally measured by whether peo- the government is the ultimate ple living in the area could walk to the guardian of all people under a dis- church. 2) in Louisiana, the govern- ability, especially children, whose mental equivalent of a county. care is only “entrusted” to their parents. Under this doctrine, in a parody: n. the humorous use of an ex- divorce action or a guardianship isting song, play, or writing which application the court retains juris- changes the words to give farcical and diction until the child is 18 years ironic meaning. Parodies have been old, and a judge may change cus- challenged as copyright infringements tody, child support or other rulings on the original works, particularly affecting the child’s well-being, no since some have reaped terrific profits. matter what the parents may have Recent decisions favor the parodies

302 partition

and say they have an originality of tracting party. A partial breach can be their own and, thus, are not in- remedied (made up) by a small reduc- fringements. There is a free speech tion in payment or other adjustment. issue involved in these decisions Example: a landlord promises to rent since parodies traditionally have so- an apartment furnished, and when the cial and political significance. tenants move in some furnishings are (See: copyright) not there. The landlord may lower the rent temporarily until he/she can parol: adj. oral. (See: parol evi- bring in the missing or expected items. dence rule)

partial disability: n. the result of an in- parole: n. 1) the release of a convicted jury which permanently reduces a per-

criminal defendant after he/she has son’s ability to function, but still per- completed part of his/her prison sen- mits some working or other activity. In tence, based on the concept that dur- worker’s compensation cases an in- ing the period of parole, the released jured worker is often awarded a per- criminal can prove he/she is rehabil- centage rating of permanent partial itated and can “make good” in soci- disability, which will entitle him/her to ety. A parole generally has a specific a money settlement. The percentage period and terms such as reporting payoff is often based on a physician’s to a parole officer, not associating evaluation of what part of the person’s

with other ex-convicts, and staying normal functioning is gone. out of trouble. Violation of the terms

may result in revocation of parole partial verdict: n. in a criminal trial, and a return to prison to complete the result when the jury finds the de- his/her sentence. 2) a promise by a fendant guilty of one or more charges prisoner of war that if released he but not guilty (or deadlocks) on one or will not take up arms again. more other charges. (See: verdict)

parol evidence rule: n. if there is ev- participate: v. to invest and then re- idence in writing (such as a signed ceive a part or share, as in business contract) the terms of the contract profits, payments on a promissory cannot be altered by evidence of oral note, title to land, or as one of the (parol) agreements purporting to beneficiaries of the estate of a person change, explain or contradict the who has died. written document.

partition: n. a lawsuit which one co- partial: adj. not complete or owner of real property can file to get a entire. (See: partial breach, par- court order requiring the sale of the tial disability) property and division of the profits, or division of the land between the co- partial breach: n. the failure to meet owners, which is often a practical im- a term of a contract which is so min- possibility. Normally, a partition order imal that it does not cause the con- provides for an appraisal of the total tract to fail or justify breach (break- property, which sets the price for one of ing the contract) by the other con- the parties to buy out the other’s half.

303 partner

Partition cases are common when centage of ownership, is responsible co-owners differ on whether to sell, for all the debts and contracts of the keep or divide the property. partnership even though another partner created the debt or entered partner: n. 1) one of the co-owners into the contract, has a share in and investors in a “partnership” management decisions, and shares which is an on-going business enter- in profits and losses according to the prise entered into for profit. A “gen- percentage of the total investment. eral partner” is responsible for the Often a partnership agreement may debts, contracts and actions of all provide for certain division of man- the partners in the business, is an agement, shares of investment, prof- equal in management decisions unit and/or rights to buy out a partner less there is an agreement estab- upon leaving the partnership or lishing management duties and death. Each partner owes the other rights, and shares in the profits and partners a duty of full disclosure of losses based on the percentage of information which affects the busi- the investment (either in money or ness and cannot commandeer for effort) in the partnership. A “limited himself/herself business opportuni- partner” does not share responsibil- ties which rightfully belong to the ity for debts beyond his/her invest- partnership. A partnership which ment, cannot share in management, does business under a trade name and shares in profits based on a must file with the county or state a written agreement. A “silent part- certificate of “doing business under a ner” is no different from any partner fictitious name,” which gives notice except he/she is not visible to the to the public of the names of part- public and has no part in day-to-day ners and the business address. A management. 2) slang for “domestic “limited partnership” limits the re- partner,” usually two people living sponsibility for debts beyond the in- together, either homosexual or het- vestment to the managing “general erosexual, sharing lives and posses- partners.” The investing “limited sions, and not married. (See: do- partners” cannot participate in man- mestic partners, general part- agement and are limited to specific ner, limited partner, limited percentages of profit. A partnership partnership, partnership) differs from a “joint venture,” which involves more than one investor for partnership: n. a business enter- only a specific short-term project and prise entered into for profit which prompt division of profits. Partner- is owned by more than one person, ships are traditionally the most frag- each of whom is a “partner.” A ile of business arrangements and are partnership may be created by a often dissolved and subject to dis- formal written agreement, but putes. But several million exist in may be based on an oral agree- the United States and, ironically, ment or just a handshake. Each they are the favorite business entity partner invests a certain amount for law firms. (See: general part- (money, assets and/or effort) which ner, partner, limited partner- establishes an agreed-upon per- ship, silent partner)

304 passive

party: n. 1) one of the participants in It is not what a lawyer tells a lawsuit or other legal proceeding I do; but who has an interest in the outcome. me may what humanity, reason, and justice Parties include plaintiff (person fil- tell me I ought to do. ing suit), defendant (person sued or charged with a crime), petitioner —Edmund Burke (files a petition asking for a court ruling), respondent (usually in op- party of the second part: n. a position to a petition or an appeal), reference to a party to a written con- cross-complainant (a defendant tract, as distinguished from “the who sues someone else in the same party of the first part.” (See: party lawsuit), or cross-defendant (a per- of the first part) son sued by a cross-complainant). 2) a person or entity involved in an party wall: n. a wall shared by two ad- agreement. 3) a common reference joining premises which is on the prop- by lawyers to people or entities in- erty line, such as in townhouses, con- volved in lawsuits, transactions, dominiums, row houses or two units in contracts or accidents, as in “both a duplex. Both owners are responsible parties knew what was expected,” for maintaining structural integrity of

“he is a party to the contract,” “he the wall, even if the wall is entirely on was not a party to the criminal con- the property of one of the parties. spiracy....” (See: contract, cross-

complaint, defendant, indis- passenger: n. a rider who has paid a pensable party, necessary fare on a train, bus, airline, taxi, ship, party, petitioner, plaintiff, ferry, automobile or other carrier in proper party, real party in in- the business of transporting people for terest, respondent) a fee (a common carrier). A passenger is owed a duty of care by such a carri- party of the first part: n. reference er and has a right to sue for damages in a written contract to identify for injuries suffered while being trans- one of the people entering into the ported without proof of negligence.

agreement. The agreement would One tricky issue is whether a person read “Mary McConnell (here- who has entered the depot, station or inafter called The Party of the airport, but not yet purchased a ticket First Part).” Better practice is to or has not boarded, is entitled to the identify the parties by a short form rights of a passenger to recover for of their name (“hereinafter re- damages. A passenger without pay- ferred to as McConnell”) or as ment of fare who is injured must prove Buyer, Seller, Owner, Trustee or the driver’s negligence in a suit for some other useful identification. damages. (See: common carrier, Name use aids in following and un- guest statute) derstanding the contract and avoids confusion with “the party of passion: n. (See: heat of passion) the second part,” which identifies another party to the agreement. passive: adj. referring to being inactive.

A “passive trustee” is one who has no

305 patent

responsibilities other than to hold patents to determine if the proposed title or wait for an event which invention is truly unique, and if ap- would activate the trust. “Passive in- parently so, can file an application, income” for tax purposes includes any cluding detailed drawing and specifi- income in which there is no effort or cations. While awaiting issuance of active management, and is treated the patent, products or designs should differently for some purposes, such be marked “patent pending” or “pat. as Social Security income limita- pending.” Upon receiving the patent tions. It may include stock divi- the product can be marked with the dends, trust profits, rents with no word “patent” and the number desig- management involvement and inter- nated by the Patent Office. The rights est on bank accounts. can be transferred provided the assignment is signed and notarized to patent: 1) adj. obvious. Used in such create a record or “licensed” for use. expressions as a “patent defect” in Manufacture of a product upon which

an appliance. 2) n. an exclusive there is an existing patent is "patent right to the benefits of an invention infringement” which can result in a or improvement granted by the U.S. lawsuit against the infringer with Patent Office, for a specific period of substantial damages granted. 3) n. a time, on the basis that it is novel nearly obsolete expression for a grant (not previously known or described of public land by the government to an in a publication), “non-obvious” (a individual. (See: patent ambiguity, form which anyone in the field of ex- patent defect, patent infringe- pertise could identify), and useful. ment, patent pending) There are three types of patents:

a) “utility patent” which includes a patent ambiguity: n. an obvious in- process, a machine (mechanism consistency in the language of a writ- with moving parts), manufactured ten document. products, and compounds or mix- tures (such as chemical formulas); patent defect: n. an obvious flaw in a b) “design patent” which is a new, product or a document (such as leaving original and ornamental design out the property description in a deed). for a manufactured article; and c) “plant patent” which is a new va- patent infringement: n. the manufac- riety of a cultivated asexually repro- ture and/or use of an invention or im- duced plant. Example: Secretary of provement for which someone else Agriculture and later Vice President owns a patent issued by the govern- Henry A. Wallace developed hybrid ment, without obtaining permission of

com which made him rich for life. A the owner of the patent by contract, li- utility or plant patent lasts 17 years cense or waiver. The infringing party and a design patent lasts 14 years, will be liable to the owner ofthe patent but all types require payment for all profits made from the use of the of “maintenance” fees payable be- invention, as well as any harm which ginning 3 1/2 years after the is- can be shown by the inventor, whether suance to keep them up. Patent law the infringement was intentional or specialists can make a search of not. (See: patent, infringement)

306 peaceable possession

patent pending: n. often abbreviated payable: 1) adj. referring to a debt to “pat. pend.” or “pat. pending,” the which is due. A debt may be owed, but term is printed on a product to in- not yet payable until a certain date or form others that an application for a event. 2) n. a debt which is due. patent has been filed with the U.S. “Payables” are all the liabilities (debts) Patent Office, but the patent has not of a business. yet been granted. (See: patent)

payable on demand: adj. a debt on a paternity suit: n. a lawsuit, usually promissory note or bill of exchange by a mother, to prove that a named which must be paid when demanded person is the father of her child (or by the payee (party to whom the debt the fetus she is carrying). Evidence is owed). of paternity may include blood tests (which can eliminate a man as a payee: n. the one named on a check or possible father), testimony about promissory note to receive payment. sexual relations between the

woman and the alleged father, evi- payment in due course: n. the giving dence of relationship of the couple of funds to the holder of a promissory during the time the woman became note or bill of exchange when due, pregnant, admissions of fatherhood, without any knowledge that the docu- comparison of child in looks, eye and ment had been acquired by fraud or hair color, race and, increasingly, that the holder did not have valid title. DNA evidence. In addition to the de- The true owner of the bill or note can- sire to give the child a known natur- not also demand payment, but must al father, proof of paternity will lead look to the recipient of the funds. (See: to the right to child support, holder in due course) birthing expenses and the child’s in-

heritance from his father. The payment in full: n. the giving of all

threat of a paternity suit against a funds due to another. This language is man married to another may lead to often inserted on the back of a check a prompt and quiet settlement. above the place for endorsement to prove that the payee accepts the pay- pawn: v. to pledge an item of per- ment as complete. sonal property as security for a loan, with the property left with Common sense the pawnbroker. The interest rates often makes good law. are on the high side, the amount of Justice William O. the loan is well below the value of — Douglas the pledged property, and the broker has the right to sell the item payor (payer): n. the party who must without further notice if the loan is make payment on a promissory note. not paid. Pawnbrokers are licensed

by the state. (See: pledge) peaceable possession: n. in real estate, holding property without any pay: v. to deliver money owed. adverse claim to possession or title by another.

307 peace bond

peace bond: n. a bond required as for a lawsuit by the victim on the basis part of a court order to guarantee of invasion of privacy. that a person will stay away from another person he/she has threat- peer: n. an equal. A “jury of one’s peers,” ened or bothered. The bond will be to which criminal defendants are con- forfeit (given up) if the order is vio- stitutionally entitled, means an im- lated, but that is no consolation to partial group of citizens from the judi- a person injured, molested or mur- cial district (e.g. county) in which the dered by the violator. (See: injunc- defendant lives. It does not mean a tion, stay away order) jury ethnically, educationally, economically or sexually the same as the de- peculation: n. misappropriation of fendant, although in some jurisdic- public (government) funds or prop- tions attempts are made to meet those erty. (See: misappropriation) criteria. (See: jury of one’s peers)

pecuniary: adj. relating to money, as peer review: n. an examination and in “pecuniary loss.” evaluation of the performance of a professional or technician by a board pedophilia: n. an obsession with or committee made up of people in the children as sex objects. Overt acts, same occupation. This may arise in including taking sexually explicit determining whether a person has photographs, molesting children been legitimately discharged, denied and exposing one’s genitalia to promotion or penalized by an employ- children, are all crimes. The prob- er, or is found to have failed to meet lem with these crimes is that pe- minimum standards of performance dophilia is also treated as a mental and is thus liable in a lawsuit claim- illness, and the pedophile is often ing damages due to negligence. released only to repeat the crimes or escalate the activity to the level penal: adj. referring to criminality, as in of murder. (See: molestation, defining “penal code” (the laws specify- pornography, rape) ing crimes and punishment), or “penal institution” (a state prison or peniten- peeping tom: n. a person who tiary confining convicted felons). stealthily peeks into windows, holes

in restroom walls or other openings penalty: n. 1) in criminal law, a money with the purpose of getting a sexual fine or forfeiture of property ordered thrill from seeing women or girls un- by the judge after conviction for a dressed or couples making love. The crime. 2) an amount agreed in advance term comes from the legendary Tbm if payment or performance is not made who was the one person who peeked on time, such as a “late payment” on a when Lady Godiva rode her horse promissory note or lease, or a financial naked through the streets of Coven- penalty for each day a building con- try to protest taxes. Being a peeping tractor fails to complete a job. tom is treated as a crime based on sexual deviancy, with various names pendente lite: (pen-den-tay lee-tay) in different states. It forms the basis adj. Latin for awaiting the litigation

308 peremptory writ of mandate (or mandamus)

(lawsuit). It is applied to court or- day,” it is short for payment of daily ders (such as temporary child sup- expenses and/or fees of an employee or port) which are in effect until the an agent.

case is tried, or rights which cannot be enforced until the lawsuit is over. peremptory: adj. absolute, final and not entitled to delay or reconsidera- pendent jurisdiction: n. in federal tion. The term is applied to writs, juror procedure, the policy that allows a challenges or a date set for hearing. federal court to decide a legal question normally tried in state courts peremptory challenge: n. the right of

because it is based on the same the plaintiff and the defendant in a facts as a lawsuit which is under jury trial to have a juror dismissed be- federal court jurisdiction. (It also fore trial without stating a reason. may be spelled: pendant) This challenge is distinguished from a “challenge for cause” (reason) based penitentiary: n. a state or federal on the potential juror admitting bias, prison in which convicts are acquaintanceship with one of the par- held for commission of major ties or their attorney, personal knowl- crimes (felonies). edge about the facts, or some other basis for believing he/she might not be people: n. the designation for the impartial. The number of peremptory prosecuting government in a crimi- challenges for each side will differ

nal trial, as in People v. Capone. based on state law, the number of par- Such a case may also be captioned ties to a case, and whether it is a civil

State v. Davis or in federal prosecu- or criminal trial. The usual phrasing

tions, United States v. Miller. used by lawyers exercising the challenge is “Juror number seven may be per. prep, from Latin for “by means excused.” (See: challenge for cause,

of” or simply, “by” as in “per day” (by jury, voir dire ) day) or “per capita” (by head). peremptory writ of mandate (or per capita: adj. Latin for “by head,” mandamus): n. a final order of a meaning to be determined by the court to any governmental body, gov- number of people. To find the per ernment official or a lower court to capita cost, the total number of perform an act the court finds is an of- persons are added up and the bill, ficial duty required by law. This is dis- tax or benefits are divided equally tinguished from an alternative writ of among those persons. mandate (mandamus), which orders the governmental agency, court or of- per curiam: adj. Latin for “by the ficials to obey the order or show cause court,” defining a decision of an at a hearing why it should not. The appeals court as a whole in which usual practice is for anyone desiring no judge is identified as the specif- such an order to file a petition for the

ic author. alternative writ. If the officials do not comply with the order and fail to per diem: adj. or n. Latin for “per convince the court that the writ of

309 perfect

mandate should be denied, then the there is not full performance. (See: court will issue the peremptory specific performance) writ. In some emergency situations or when there is no conceivable rea- perjurer: n. a person who intentional- son for the government not to follow ly lies while under an oath adminis- the law, then the peremptory writ tered by a notary public, court clerk will be issued after a notice of hear- or other official, and thus commits the ing without the alternative writ. crime of peijury. A peijurer may com- (See: mandamus, mandate) mit peijury in oral testimony or by signing or acknowledging a written perfect: (with stress on the second legal document (such as an affidavit, syllable) v. 1) to complete; to take declaration under penalty of peijury, all required steps to achieve a re- deed, license application, tax return) sult, such as obtaining a lien or knowing the document contains false other security by legal action or information. (See: perjury) completing and filing all documents to present a case to a court peijury: n. the crime of intentionally

of appeals. A mechanic’s lien for lying after being duly sworn (to tell labor and/or materials used to im- the truth) by a notary public, court prove real property is “perfected” clerk or other official. This false state- by filing a lawsuit and obtaining a ment may be made in testimony in judgment that the lien attaches to court, administrative hearings, depo- the property. 2) to make perfect. sitions, answers to interrogatories, as (See: mechanic’s lien) well as by signing or acknowledging a written legal document (such as affi- perfected: adj. having completed all davit, declaration under penalty of necessary legal steps to achieve a re- peijury, deed, license application, tax sult, such as perfected title to prop- return) known to contain false infor-

erty. (See: perfect) mation. Although it is a crime, prosecutions for peijury are rare, because a perform: v. 1) to fulfill one’s obliga- defendant will argue he/she merely tions under a contract. 2) to comply made a mistake or misunderstood. with requirements of a court order. (See: performance) permanent disability: n. an injury which impairs the physical and/or performance: n. fulfillment of one’s mental ability of a person to perform obligations required by contract. his/her normal work or non-occupa- Specific performance of a contract tional activities supposedly for the may be demanded in a lawsuit. Par- remainder of his/her life. Under tial performance is short of full per- worker’s compensation laws (cover- formance spelled out in the contract, ing on-the-job injuries) once the con- but if the contract provided for a sedition is stable, a degree of perma-

ries of acts or deliveries with pay- nent disability is established even if ment for each of the series, there the employee is able to work despite may be partial recovery for what has the physical problem. Permanent dis- been performed or delivered even if ability is also one basis for awarding

310 personal property

general damages in a lawsuit for ing a structure, using a building, dri- injury suffered due to the negli- ving on the highway, conducting a re- gence or intentional attack of an- tail business, and dozens of other ac-

other. (See: permanent injury, tivities. The purpose of permits is Workers’ Compensation Acts) supposedly to guarantee that laws and regulations have been obeyed, permanent injunction: n. a final but they also are a source of public order of a court that a person or revenue. (See: license) entity refrain from certain activities permanently or take certain ac- perpetuity: n. forever. (See: in perpe- tions (usually to correct a nuisance) tuity, rule against perpetuities) until completed. A permanent in-

junction is distinguished from a per se: (purr say) adj. Latin for “by it- “preliminary” injunction which the self,” meaning inherently. Thus, a pub- court issues pending the outcome of lished writing which falsely accuses a lawsuit or petition asking for the another of having a sexually transmit-

“permanent” injunction. (See: in- ted disease or being a convicted felon is junction,, preliminary injunc- “libel per se,” without further explanation, temporary injunction) tion of the meaning of the statement. (See: libel per se, slander per se) permanent injury: n. physical or

mental damage which will restrict person: n. 1) a human being. 2) a cor- the employment and/or other activi- poration treated as having the rights ties of a person for the rest of his/her and obligations of a person. Counties life. In a lawsuit to recover damages and cities can be treated as a person caused by the negligence or inten- in the same manner as a corporation. tional wrongful act of another, a per- However, corporations, counties and manent injury can be a major ele- cities cannot have the emotions of ment in an award of general dam- humans such as malice, and there- ages. (See: permanent disability) fore are not liable for punitive damages unless there is a statute autho- permissive: adj. 1) referring to any rizing the award of punitive dam- act which is allowed by court order, ages. (See: corporation, party) legal procedure, or agreement. 2)

tolerant or allowing of others’ be- personal effects: n. things which in- havior, suggesting contrary to oth- clude clothes, cosmetics and items of ers’ standards. adornment. This is not the same as “personalty” which means all tangi- permit: 1) v. to allow by silence, ble property which is not real proper- agreement or giving a license. 2) n. ty, money or investments. The ex-

a license or other document given pression is often found in wills (“I by an authorized public official or leave my personal effects to my niece, agency (building inspector, depart- Susannah”). (See: personalty) ment of motor vehicles) to allow a

person or business to perform cer- personal property: n. same as “per- tain acts. These can include build- sonalty.” (See: personalty)

311 personal service

personal service: n. delivering a for “by roots,” by representation. The summons, complaint, notice to quit term is commonly used in wills and tenancy or other legal document trusts to describe the distribution which must be served by handing it when a beneficiary dies before the per- directly to the person named in the son whose estate is being divided. Ex- document. Personal service is dis- ample: “I leave $100,000 to my daugh- tinguished from “constructive ser- ter, Eleanor, and if she shall prede- vice,” which includes posting the no- cease me, to her children, per stirpes.” tice and then mailing a copy or pub- Thus, if Eleanor dies before her par- lishing a summons on a person the ent, then the $100,000 will be divided court has found is hiding to avoid among her children equally. A way to service, and from “substituted ser- make this more clear is to substitute

vice,” which is giving the document for per stirpes: “...to her children, by to someone else (another resident, a right of representation, share and secretary or receptionist, or other share alike,” which is clear to the non- responsible adult) at the address. lawyer. If there is no provision for dis- (See: constructive service, ser- tribution to children of a predeceased vice of process, substituted ser- child, then the gift will become part of vice, summons) the residue (what is left after specific gifts), and then the grandchildren may personal services: n. in contract law, not share if there are surviving chil- the talents of a person which are un- dren of the giver. (See: descent and usual, special or unique and cannot distribution, trust, will) be performed exactly the same by another. These can include the tal- petition: 1) n. a formal written request ents of an artist, an actor, a writer or to a court for an order of the court. It is professional services. The value of distinguished from a complaint in a

personal services is greater than lawsuit which asks for damages and/or general labor, so woodcarving is per- performance by the opposing party. Pe- sonal service and carpentry is not. titions include demands for writs, or-

Therefore, if an actor contracts to ders to show cause, modifications of perform in a movie and fails to show, prior orders, continuances, dismissal he/she will be liable for damages of a case, reduction of bail in criminal based on the difficulty to replace cases, a decree of distribution of an es- him. An artist who contracts to paint tate, appointment of a guardian, and a a picture cannot send a substitute, host of other matters arising in legal since he/she was retained for his/her actions. 2) n. a general term for a writ- unique ability and product. ing signed by a number of people asking for a particular result from a pri- personalty: n. movable assets vate governing body (such as a home- (things, including animals) which owners association, a political party, or are not real property, money or in- a club). 3) in public law, a writing vestments. (See: real property, signed by a number of people which is personal effects) required to place a proposition or ordinance on the ballot, nominate a person per stirpes-, (purr stir-peas) adj. Latin for public office, or demand a recall

312 pimp

election. Such petitions for official physician for damages if the doctor action must be signed by a specified breaches the confidence by testifying. number of registered voters (such as Of course, in most trials involving in-

five percent). 4) v. to make a formal juries the physician will testify with request of a court; to present a writ- the plaintiffs permission. Note: when ten request to an organization’s gov- the defendant’s physician examines erning body signed by one or more the injured plaintiff, the plaintiff has members. 5) n. a suit for divorce in given permission for that examina- some states, in which the parties are tion and potential testimony, so a called petitioner and respondent. plaintiff must be cautious in making (See: dissolution of marriage, di- statements. (See: confidential com- vorce, motion, writ) munication, privilege)

petitioner: n. one who signs and/or picketing: n. standing or parading files a petition. (See: petition) near a business or government office usually with signs of protest or claims petit jury: n. old-fashioned name for in labor disputes or public policy con- the jury sitting to hear a lawsuit or troversies (peace marches to pro- or criminal prosecution, called “petit” anti-abortion advocates). Picketing is

(small) to distinguish it from a constitutionally guaranteed as free

“grand” jury, which has other du- speech, but in some cases it may be

ties. (See: Grand Jury, jury) limited by court order to prevent physical combat, blocking of en- petty larceny: n. a term used in trances or threats to the public safety. many states for theft of a small

amount of money or objects of little pierce the corporate veil: v. to prove value (such as less than $500). It is that a corporation exists merely as a distinguished from grand larceny, completely controlled front (alter ego) which is theft of property of greater for an individual or management worth and a felony punishable by a group, so that in a lawsuit the individ- term in state prison. Petty larceny ual defendants can be held responsible is a misdemeanor with a maximum (liable) for damages for actions of the punishment of a term in the county corporation. If a corporation has issued jail. States which only use the stock and held regular meetings of

term “larceny” often treat theft of shareholders and directors, it is unlike- smaller amounts as a misdemeanor ly a judge will “pierce” the veil and limit in charging and sentencing. the liability to the corporation, unless

there is proof that the corporation was physician-patient privilege: n. the created to accomplish a fraud on those

right and obligation of a physician dealing with it. (See: corporation) to refuse to testify in a trial or other legal proceeding about any state- pilferage: n. a crime of theft of little ment made to him/her by a patient things, usually from shipments or on the basis that any communica- baggage. (See: theft) tion between doctor and patient is confidential. A patient could sue the pimp: n. a person who procures a pros-

313 pink slip

titute for customers or vice versa, plaintiff: n. the party who initiates a sharing the profits of the person’s ac- lawsuit by filing a complaint with the tivities. Supposedly he provides pro- clerk of the court against the defen- tection for the prostitutes, but quite dants) demanding damages, perfor- often he will threaten, brutalize, mance and/or court determination of rape, cheat and induce drug addic- rights. (See: complaint, defendant, tion of the prostitutes. A pimp com- petitioner) mits the crime of pandering. (See: pander, panderer, prostitution) plaintiff’s attorney: n. the attorney who represents a plaintiff (the suing pink slip: n. 1) slang for official auto- party) in a lawsuit. In lawyer parlance mobile registration certificate, due a “plaintiff’s attorney” refers to a to its color in some states. 2) slang lawyer who regularly represents perfor notice of being fired or laid off sons who are suing for damages, while from a job. a lawyer who is regularly chosen by an insurance company to represent its in- piracy: n. the crime of robbery of sureds is called a “defense attorney.” ships or boats on the oceans. Accu- (See: defense attorney, plaintiff) sation, trial and punishment of pi-

rates may be under international plain view doctrine: n. the rule that a agreement applicable anywhere, law enforcement officer may make a or under the laws of the particular search and seizure without obtaining

nation where the accused has a search warrant if evidence of crimi- been captured. nal activity or the product of a crime can be seen without entry or search. plagiarism: n. taking the writings Example: a policeman stops a mo- or literary concepts (a plot, charac- torist for a minor traffic violation and ters, words) of another and selling can see in the car a pistol or a mari- and/or publishing them as one’s juana plant on the back seat, giving own product. Quotes which are him “reasonable cause” to enter the brief or are acknowledged as vehicle to make a search. (See: search quotes do not constitute plagia- and seizure, search warrant) rism. The actual author can bring

a lawsuit for appropriation of plea: n. 1) in criminal law, the response his/her work against the plagiarist by an accused defendant to each and recover the profits. Normally charge of the commission of a crime. plagiarism is not a crime, but it Pleas normally are “not guilty,” can be used as the basis of a fraud “guilty,” “no contest” (admitting the charge or copyright infringement if facts, but unwilling to plead “guilty,” prior creation can be proved. (See: thus resulting in the equivalent of a copyright, infringement) “guilty” verdict but without admitting the crime), or “not guilty by reason of plain error: n. a mistake by the trial insanity” (at the time of the criminal court found by a court of appeals to act). However, the accused may make be very obvious and sufficient to re- a “dilatory plea” challenging the juris- quire reversal of the trial decision. diction of the court or claiming that

314 pleading

he/she is the wrong defendant, re- term in prison if convicted after trial quiring a special hearing. He/she and the ability to get information on may admit the acts but have excus- criminal activity from the defendant. es to be considered (a “plea in abate- There are three dangers: a) an inno- ment”), which may affect the judge’s cent defendant may be pressured into sentence. Pleas are entered orally a confession and plea out of fear of a at arraignment (first court appear- severe penalty if convicted; b) particu- ance) or a continued (postponed) ar- larly vicious criminals will get lenient raignment. If after a preliminary treatment and be back “on the street”

hearing the judge determines the in a short time; c) results in unequal defendant must face trial for a treatment. Public antipathy to plea felony, he/she will have to enter bargaining has led to some state a plea again before a judge of the statutes prohibiting the practice, but trial court. 2) any written answer informal discussions can get around or other response filed by a defen- the ban. (See: cop a plea, plea) dant to a complaint or petition in a

civil lawsuit. (See: arraignment, plead: v. 1) in civil lawsuits and peti- plead, preliminary hearing) tions, to file any document (pleading) including complaints, petitions, decla- plea in abatement: n. (See: plea) rations, motions and memoranda of points and authorities. 2) in criminal plea bargain: n. in criminal proce- law, to enter a plea of a defendant in dure, a negotiation between the de- response to each charge of criminal fendant and his attorney on one side conduct. (See: plea, pleading) and the prosecutor on the other, in

which the defendant agrees to plead pleading: n. 1) every legal document “guilty” or “no contest” to some filed in a lawsuit, petition, motion crimes, in return for reduction of and/or hearing, including complaint, the severity of the charges, dis- petition, answer, demurrer, motion, missal of some of the charges, the declaration and memorandum of prosecutor’s willingness to recom- points and authorities (written argu- mend a particular sentence or some ment citing precedents and statutes). other benefit to the defendant. Laypersons should be aware that, ex- Sometimes one element of the bar- cept possibly for petitions from prison- gain is that the defendant reveal in- ers, pleadings are required by state or formation such as location of stolen federal statutes and/or court rules to goods, names of others participating be of a particular form and format: in the crime or admission of other typed, signed, dated, with the name of crimes (such as a string of burglar- the court, title and number of the case, ies). The judge must agree to the re- name, address and telephone number sult of the plea bargain before ac- of the attorney or person acting for cepting the plea. If he does not, then himself/herself (in pro per) included. 2) the bargain is cancelled. Reasons the act of preparing and presenting for the bargain include a desire to legal documents and arguments. Good cut down on the number of trials, pleading is an art: clear, logical, well- danger to the defendant of a long organized and comprehensive. (See:

315 pledge

answer, complaint, demurrer, political question: n. the determina- plea, plead) tion by a court (particularly the Supreme Court) that an issue raised

pledge: v. to deposit personal prop- about the conduct of public business is erty as security for a personal loan a “political” issue to be determined by of money. If the loan is not repaid the legislature (including Congress) or when due, the personal property the executive branch and not by the pledged shall be forfeit to the courts. Since 1960 the U.S. Supreme lender. The property is known as Court has been willing to look at some collateral, lb pledge is the same as questions previously considered “po- to pawn. 2) to promise to do some- litical,” such as “one-man-one-vote,” thing. (See: pawn) as constitutional issues.

plenary: adj. full, complete, covering polygamy: n. having more than one all matters, usually referring to an wife or husband at the same time, order, hearing or trial. usually more than just two (which is “bigamy”). It is a crime in all states. police court: n. in some states a type (See: bigamy) of municipal court which handles misdemeanors (minor crimes) and polygraph: n. a lie detector device,

traffic violations, as well as conduct- from Greek for “many” (poly) “mes- ing arraignments (first appear- sage” (graph) since numerous physi- ances) and preliminary hearings of ological responses are tested when those accused of felonies to decide if questions are answered. (See: lie de-

there is cause to send the defendant tector test) to a higher court for trial. Police courts only handle criminal cases- pornography: n. pictures and/or writ- unlike those municipal courts which ings of sexual activity intended solely also have jurisdiction over some civil to excite lascivious feelings of a par- cases. (See: arraignment, munici- ticularly blatant and aberrational pal court, preliminary hearing) kind, such as acts involving children, animals, orgies, and all types of sexu- police powers: n. from the 10th al intercourse. The printing, publica- Amendment to the Constitution, tion, sale and distribution of “hard which reserves to the states the core” pornography is either a felony or rights and powers “not delegated to misdemeanor in most states. Since the United States,” which include determining what is pornography and protection of the welfare, safety, what is “soft core” and “hard core” are health and even morals of the pub- subjective questions to judges, juries

lic. Police powers include licensing, and law enforcement officials, it is dif- inspection, zoning, safety regula- ficult to define, since the law cases tions (which cover a lot of territory), cannot print examples for the courts quarantines, and working condi- to follow. (See: obscene) tions as well as law enforcement. In short, police powers are the basis of positive law: n. statutory man-made a host of state regulatory statutes. law, as compared to “natural law,”

316 post

which is purportedly based on uni- possession of stolen goods: n. the versally accepted moral principles, crime of possession of goods which one “God’s law,” and/or derived from na- knows or which any reasonable per-

ture and reason. The term “positive son would realize were stolen. It is law” was first used by Thomas generally a felony. Innocent posses- Hobbes in Leviathan (1651). (See: sion is not a crime, but the goods are natural law, statute) generally returned to the legal owner. (See: possession) posse comitatus : (pahs-see coh- mitt-tah-tus) n. from Latin for possessory interest: n. in real estate, “possible force,” the power of the the intent and right of a person to oc- sheriff to call upon any able- cupy and/or exercise control over a bodied adult men (and presumably particular plot of land. A possessory women) in the county to assist him interest is distinguished from an in- in apprehending a criminal. The terest in the title to property, which assembled group is called a posse may not include the right to immedi- for short. ately occupy the property. Example: a long-term lease. (See: possess,

possess: v. to own, have title to, oc- possession, real property) cupy, physically hold or have under exclusive control. In wills there is possibility of a reverter: n. the po-

often the phrase “of which I die tential that the title to a real proper- possessed,” in describing the es- ty interest will return to the original tate. (See: possession) grantor or giver or to his/her lineal descendants. Examples of events possession: n. 1) any article, object, which could cause the title to revert: asset or property which one owns, A gift of property to a hospital on con-

occupies, holds or has under condition that it be used forever for trol. 2) the act of owning, occupying, health care, but if the building is no holding or having under control an longer used for that purpose the article, object, asset or property. property will revert to the family of “Constructive possession” involves the original grantor; the real proper- property which is not immediately ty is given to a daughter and her chil- held, but which one has the right to dren, but will revert to her brother’s hold and the means to get (such as descendants if her line dies out with- a key to a storeroom or safe deposit out further issue. (See: reversion) box). “Criminal possession” is the

holding of property which it is ille- post: v. 1) to place a notice on the en- gal to possess such as controlled trance or a prominent place on real narcotics, stolen goods or liquor by property, such as a notice to quit a juvenile. The old adage “posses- (leave), pay rent or of intent to conduct sion is nine-tenths of the law” is a a sheriffs sale, which requires mailing rule of force and not of law, since of a copy to the occupant to complete ownership requires the right to pos- service of the notice. 2) to place a legal sess as well as actual or construc- notice on a designated public place at tive possession. (See: possess) the courthouse. 3) a commercial term

317 postdated check

for recording a payment. 4) to mail. ing, taking title, transferring, exercising legal rights and many other acts. postdated check: n. a check delivered now with a written date in the power of acceptance: n. the ability to

future, so that it cannot be cashed accept an offer and thus create a bind- until that date. The danger to the ing contract. In real estate an accep- recipient is that such a check is tance can only be made for a period legally only a promissory note due specified in the offer, and the power is at the later date, and if the account terminated permanently by the mak- is closed or short when the check is ing of a counter-offer. Thus, one can- presented at the bank, the payee not make a counter-offer and then de- has no rights to demand payment cide to accept the original offer. by the bank or claim that the delivery of a bad check was criminal. power of appointment: n. the right to leave property by will, transfer, gift or post mortem.', n. Latin for “after distribution under a trust. Such a death,” an examination of a dead power is often found in a trust in body to determine cause of death, which each of the trustors (the cre- generally called an autopsy. ators of the trust, usually a husband (See: coroner) and wife) is empowered to write a will leaving his or her share (or some part) pot: n. slang for marijuana, an illeg- to someone. If the power of appoint-

al narcotic. ment is not used then it expires on the death of the person with the power. pom- over will: n. a will of a person who has already executed a trust in power of attorney: n. a written docu- which all property is designated to ment signed by a person giving anoth- be distributed or managed upon the er person the power to act in conduct- death of the person whose posses- ing the signer’s business, including sions are in trust, leaving all proper- signing papers, checks, title docu- ty to the trust. A pour over will is a ments, contracts, handling bank ac- protection which is intended to guar- counts and other activities in the antee that any assets which some- name of the person granting the how were not included in the trust power. The person receiving the power become assets of the trust upon the of attorney (the agent) is “attorney in party’s death. A pour over will often fact” for the person giving the power, provides that if the trust is invalid in and usually signs documents as whole or in part, the distribution “Melinda Hubbard, attorney in fact under the will must be made under for Guilda Giver.” There are two types the same terms as stated in the in- of power of attorney: a) general power valid trust. (See: trust, will) of attorney, which covers all activities, and b) special power of attorney, power: n. the right, authority and abil- which grants powers limited to specif- ity to take some action or accomplish ic matters, such as selling a particular something, including demanding ac- piece of real estate, handling some tion, executing documents, contract- bank accounts or executing a limited

318 )

preemption

partnership agreement. A power of or intimidation purposes, or because attorney may expire on a date stat- the plaintiff believes that a gigantic ed in the document or upon written demand will be a better starting point cancellation. Usually the signer ac- in negotiations. However, the ridicu- knowledges before a notary public lous multi-million prayers in smaller that he/she executed the power, so cases make plaintiffs look foolish and

that it is recordable if necessary, as unrealistic. (See: complaint, default in a real estate transaction. judgment) practicable: adj. when something precatory: adj. referring to a wish or can be done or performed. advisory suggestion which does not have the force of a demand or a re-

practice: 1) n. custom or habit as quest which under the law must be shown by repeated action, as in “it is obeyed. Thus “precatory words” in a the practice in the industry to con- will or trust would express a “hope firm orders before shipping.” 2) n. that my daughter will keep the house the legal business, as in ‘law prac- in the family,” but do not absolutely

tice,” or “the practice of the law.” 3) v. prevent her from selling it. to repeat an activity in order to

maintain or improve skills, as “he precedent: 1) n. a prior reported opin- practices the violin every evening.” ion of an appeals court which estab-

4) v. to conduct a law business, as lishes the legal rule (authority) in the “she practices law in St. Louis.” future on the same legal question decided in the prior judgment. Thus,

pray: v. to formally request judicial “the rule in Fishbeck v. Gladfelter is judgment, relief and/or damages at precedent for the issue before the the end of a complaint or petition. court in this case.” The doctrine that (See: prayer) a lower court must follow a precedent

is called stare decisis 2) adj. before, as prayer: n. the specific request for in the term “condition precedent,” judgment, relief and/or damages at which is a situation which must exist the conclusion of a complaint or pe- before a party to a contract has to tition. A typical prayer would read: perform. (See: stare decisis “The plaintiff prays for: 1) special

damages in the sum of $17,500; 2) predecease: v. to die before someone general damages according to proof else, as “if my brother, Harry, should [proved in trial]; 3) reasonable at- predecease me, his share of my estate

torney’s fees; 4) costs of suit; and 5) I give to his son, Eugene.” such other and further relief as the court shall deem proper.” A prayer preemption: n. the rule of law that if gives the judge an idea of what is the federal government through Con- sought, and may become the basis of gress has enacted legislation on a a judgment if the defendant de- subject matter it shall be controlling

faults (fails to file an answer). over state laws and/or preclude the Sometimes a plaintiff will inflate state from enacting laws on the same damages in the prayer for publicity subject if Congress has specifically

319 preemptive right

stated it has “occupied the field.” If shares of stock in a corporation Congress has not clearly claimed which gives the holders priority in preemption, a federal or state court payment of dividends (and distribu- may decide the issue on the basis of tion of assets in case of dissolution of history of the legislation (debate in the corporation) over owners of “com- Congress) and practice. Example: mon” stock at a fixed rate. While the federal standards of meat or other assurance of first chance at profits is products have preempted state a psychological and real benefit, pre- laws. However, federal and state ferred stock shareholders do not par- legislation on narcotics control may ticipate in higher dividends if the parallel each other. corporation makes large profits, and usually cannot vote for directors. preemptive right: n. the right of a (See: common stock, corporation, shareholder in a corporation to have dividend, stock) the first opportunity to purchase a new issue of stock of that corpora- Laws are made for men of tion in proportion to the amount of understanding, and stock already owned by the share- common should therefore be construed holder. (See: corporation, share- rules holder, stock) by the ordinary of common sense. Thomas Jefferson preference: n. in bankruptcy, the — payment of a debt to one creditor rather than dividing the assets preliminary hearing: n. in criminal equally among all those to whom law, a hearing to determine if a person he/she/it owes money, often by mak- charged with a felony (a serious crime ing a payment to a favored creditor punishable by a term in the state just before filing a petition to be de- prison) should be tried for the crime

clared bankrupt. Such a preference charged, based on whether there is is prohibited by law, and the fa- some substantial evidence that he/she vored creditor must pay the money committed the crime. A preliminary to the bankruptcy trustee. Howev- hearing is held in the lowest local er, the bankruptcy court may give court (municipal or police court), but secured creditors (with a judgment, only if the prosecutor has filed the lien, deed of trust, mortgage or col- charge without asking the Grand Jury lateralized loan) a legal preference for an indictment for the alleged over “general” creditors in distrib- crime. Such a hearing must be held uting available funds or assets. within a few days after arraignment (See: bankruptcy) (presentation in court of the charges and the defendant’s right to plead preferred dividend: n. a payment guilty or not guilty). Since neither side of a corporation’s profits to holders wants to reveal its trial strategy, the of preferred shares of stock. (See: prosecution normally presents only preferred stock) enough evidence and testimony to show the probability of guilt, and de- preferred stock: n. a class of fendants often put on no evidence at

320 preponderance of the evidence

all at the preliminary hearing, un- prayer (request) at the end of a com- less there is a strong chance of get- plaint asking for “any further order ting the charges dismissed. If the deemed proper in the premises” (an judge finds sufficient evidence to try order based on what has been stated the defendant, the case is sent to the in the complaint). (See: real estate, appropriate court (variously called structure) superior, county, district, common

pleas) for trial. If there is no such premium: n. 1) payment for insurance convincing evidence, the judge will coverage either in a lump sum or by dismiss the charges. In the “Perry installments. 2) an extra payment for Mason” television series, the court- an act, option or priority. room scenes were almost always of

preliminary hearings. (See: ar- prenuptial agreement: n. also called raignment, charge, Grand Jury, an antenuptial agreement, a written information) contract between two people who are about to many, setting out the terms of preliminary injunction: n. a court possession of assets, treatment of fu- order made in the early stages of a ture earnings, control of the property of

lawsuit or petition which prohibits each, and potential division if the mar- the parties from doing an act which riage is later dissolved. These agree- is in dispute, thereby maintaining ments are fairly common if either or the status quo until there is a final both parties have substantial assets, judgment after trial. (See: injunc- children from a prior marriage, poten- tion, permanent injunction, tial inheritances, high incomes, or have temporary injunction) been “taken” by a previous spouse. (See: antenuptial agreement) premeditation: n. planning, plotting

or deliberating before doing some- preponderance of the evidence: n. thing. Premeditation is an element the greater weight of the evidence re- in first degree murder and shows in- quired in a civil (non-criminal) lawsuit tent to commit that crime. (See: first for the trier of fact (jury or judge with- degree murder, malice afore- out a jury) to decide in favor of one side

thought, murder) or the other. This preponderance is based on the more convincing evidence premises: n. 1) in real estate, land and its probable truth or accuracy, and

and the improvements on it, a not on the amount of evidence. Thus, building, store, shop, apartment, or one clearly knowledgeable witness other designated structure. The may provide a preponderance of evi- exact premises may be important in dence over a dozen witnesses with determining if an outbuilding hazy testimony, or a signed agreement (shed, cabana, detached garage) is with definite terms may outweigh insured or whether a person ac- opinions or speculation about what the cused of burglary has actually en- parties intended. Preponderance of the tered a structure. 2) in legal plead- evidence is required in a civil case and ing, premises means “all that has is contrasted with “beyond a reason- hereinabove been stated,” as in a able doubt,” which is the more severe

321 prerogative writ

test of evidence required to convict presentment: n. 1) making a demand in a criminal trial. No matter what for payment of a promissory note the definition stated in various legal when it is due. 2) a report to a court by opinions, the meaning is somewhat a Grand Jury, made on its own initia- subjective. (See: evidence) tive without a request or presentation of evidence by the local prosecutor, prerogative writ: n. an historic that a “public” crime (illegal act by generic term for any writ (court public officials or affecting the public order) directed to government good) has been committed. (See: agencies, public officials or anoth- Grand Jury, promissory note) er court. (See: writ)

presiding judge: n. 1) in both state prescription: n. the method of ac- and federal appeals court, the judge quiring an easement upon anoth- who chairs the panel of three or more er’s real property by continued and judges during hearings and super- regular use without permission of vises the business of the court. 2) in the property owner for a period of those counties or other jurisdictions

years required by the law of the with several judges, the one is cho- state (commonly five years or sen to direct the management of the more). Examples: Phillip Packer courts, usually on an annual or other drives across the corner of Ralph rotating basis. The presiding judge Roundup’s ranch to reach Packer’s usually makes assignments ofjudges barn regularly for a period of ten to specialized courts (juvenile, pro- years; for a decade Ronald Retailer bate, criminal, law and motion, fam- uses the alley behind Marjorie ily law, etc.), oversees the calendar, Howard’s house to reach his store- and chairs meetings of the judges. room. In each case the result is a “prescriptive easement” for that presumption: n. a rule of law which specific use. It effectively gives the permits a court to assume a fact is true

user an easement for use but not until such time as there is a prepon- ownership of the property. (See: derance (greater weight) of evidence prescriptive easement) which disproves or outweighs (rebuts)

the presumption. Each presumption is prescriptive easement: n. an ease- based upon a particular set of appar- ment upon another’s real property ent facts paired with established laws, acquired by continued use without logic, reasoning or individual rights. A

permission of the owner for a peri- presumption is rebuttable in that it od provided by state law to estab- can be refuted by factual evidence. lish the easement. The problems One can present facts to persuade the

with prescriptive easements are judge that the presumption is not true. that they do not show up on title Examples: a child bom of a husband reports, and the exact location and wife living together is presumed to and/or use of the easement is be the natural child of the husband un-

not always clear and occasionally less there is conclusive proof it is not; a moves by practice or erosion. (See: person who has disappeared and not

easement, prescription) been heard from for seven years is pre-

322 price fixing

sumed to be dead, but the presump- Gordon,” with or without a reason. tion could be rebutted if he/she Otherwise there may be unfair and is found alive; an accused person is unintended results. Example: Tommy presumed innocent until proven Testator has three children, gives two guilty. These are sometimes called of them $10,000 each, and the re- rebuttable presumptions to distin- mainder (which turns out to be a mil- guish them from absolute, conclu- lion dollars) to set up a scholarship sive or irrebuttable presumptions in fund for orphans. His omitted child, which rules of law and logic dictate who has not spoken to him for 20 that there is no possible way the pre- years, is a pretermitted heir entitled sumption can be disproved. Howev- to one-third of the estate, and will re- er, if a fact is absolute it is not truly ceive $340,000 compared to his sib- a presumption at all, but a certainty. lings’ specified $10,000 each. (See: distribution and descent, heir) presumption of innocence: n. a fundamental protection for a per- pretrial discovery: n. (See: discov- son accused of a crime, which re- ery) quires the prosecution to prove

its case against the defendant be- prevailing party: n. the winner in yond a reasonable doubt. This is a lawsuit. Many contracts, leases, opposite from the criminal law in mortgages, deeds of trust or promis- many countries, where the accused sory notes provide that the “prevail- is considered guilty until he/ ing party” shall be entitled to recov-

she proves his/her innocence or the ery of attorney’s fees and costs if legal government completely fails to action must be taken to enforce the prove its case. (See: beyond a rea- agreement. Even if the plaintiff gets

sonable doubt, presumption) much less than the claim, he/she/it is the prevailing party entitled to in- pretermitted heir: n. the child of a clude attorney’s fees in the collectable

person who has written a will in costs. Usually there is no prevailing

which the child is not left anything party when a complaint is voluntarily and is not mentioned at all. After dismissed prior to trial or settled be- the death of the parent, a preter- fore or after trial has begun. mitted heir has the right to demand the share he/she would have re- price fixing: n. a criminal violation of ceived as an heir under the laws of federal antitrust statutes in which sev- distribution and descent. The rea- eral competing businesses reach a se- soning is that the parent either in- cret agreement (conspiracy) to set advertently forgot the child or in- prices for their products to prevent correctly believed the child was real competition and keep the public dead, and did not mean to leave from benefitting from price competi- him/her out. Thus, if someone wish- tion. Price fixing also includes secret es to disinherit a child or omit setting of favorable prices between him/her from his/her will, that suppliers and favored manufacturers parent should specifically state in or distributors to beat the competition. the will: “I leave nothing to my son, (See: antitrust law)

323 prima facie

prima facie : (pry-mah fay-shah) adj. ty) in equal shares. The intent was to Latin for “at first look,” or “on its preserve larger properties from being face,” referring to a lawsuit or crim- broken up into small holdings, which

inal prosecution in which the evi- might weaken the power of nobles. It dence before trial is sufficient to does not exist in the United States. prove the case unless there is sub- (See: distribution and descent) stantial contradictory evidence pre-

sented at trial. A prima facie case principal: n. 1) main person in a busi- presented to a Grand Jury by the ness. 2) employer, the person hiring prosecution will result in an indict- and directing employees (agents) to

ment. Example: in a charge of bad perform his/her/its business. It is par- check writing, evidence of a half ticularly important to determine who

dozen checks written on a non-exis- is the principal since he/she/it is re- tent bank account makes it a prima sponsible for the acts of agents in the facie case. However, proof that the “scope of employment” under the doc- bank had misprinted the account trine of respondeat superior. 3) in crim- number on the checks might dis- inal law, the main perpetrator (orga- prove the prosecution’s apparent nizer and active committer) of a crime, “open and shut” case. (See: prima as distinguished from an “accessory” facie case) who helps the principal in some fash-

ion. The criminal principal is usually prima facie case: n. a plaintiff’s law- the person who originates the idea of suit or a criminal charge which ap- committing the crime and/or directly

pears at first blush to be “open and carries it out, and is more likely to be shut.” (See: prima facie) charged with a higher degree of the crime, and receive a stiffer prison sen- prime suspect: n. the one person law tence. 4) adj. chief, leading, highest. enforcement officers believe most (See: accessory, agency, agent, re- probably committed a crime being spondeat superior)

investigated. Once a person is determined to be a prime suspect, the po- principal place of business: n. loca- lice must be careful to give the “Mi- tion of head office of a business randa warnings,” or take the risk where the books and records are that any admissions (any evidence kept and/or management works. In gained from the statements) by the most states corporations must report suspect may be excluded in trial. their principal place of business to (See: Miranda warning) the Secretary of State.

primogeniture: n. from Latin for prior(s): n. slang for a criminal defen- “first bom,” the ancient rule from dant’s previous record of criminal feudal England (except in the Coun- charges, convictions, or other judicial ty of Kent) that the oldest son would disposal of criminal cases (such as inherit the entire estate of his par- probation, dismissal or acquittal). ents (or nearest ancestor), and, if Only previous felony convictions can there was no male heir, the daugh- be introduced into evidence. Howev- ters would take (receive the proper- er, the record of “priors” can have an

324 private parts

impact on sentencing, as with mit prior restraint by court order or prior drunk driving convictions re- police action when the material ap-

quiring mandatory jail sentences, pears to be defamatory (hurtful lies), and “three strikes, you’re out,” pro- salacious (nasty), or “improper, mis- viding for extended sentences for chievous, or illegal” (in the words of the third felony conviction. (See: Sir William Blackstone). three strikes, you’re out) privacy: n. the right to be free of un- priority: n. the right to be first or necessary public scrutiny or to be let

ahead of the rights or claims of oth- alone. Once a person is a “public fig- ers. In bankruptcy law, the right to ure” or involved in newsworthy collect before other creditors is given events, the right to privacy may to taxing authorities, judgment evaporate. (See: public figure, holders, secured creditors, bank- right to privacy) ruptcy trustees and attorneys. The

right also can apply to mortgages, private carrier: n. one who provides deeds of trusts or liens given priority transportation or delivery of goods for in the order they were recorded (in money, just for the particular instance,

the “race to the courthouse”). and not as a regular business. It is distinguished from a “common carrier” prior restraint: n. an attempt to which is in the business, such as prevent publication or broadcast of buses, railroads, trucking companies, any statement, which is an uncon- airlines and taxis. However, a private stitutional restraint on free speech carrier may be liable for injuries to and free press (even in the guise of anyone who pays or shares the cost of an anti-nuisance ordinance). Stem- transport. (See: common carrier, ming from the First Amendment to guest statute) the Constitution, the ban on prior

restraint allows publication of libel, private nuisance: n. the interference slander, obvious untruths, anti- with an individual’s peaceful enjoy- government diatribes, racial and ment of one’s property, which can be religious epithets, and almost any the basis for a lawsuit both for dam- material, except if public security ages caused by the nuisance and an or public safety is endangered order (injunction) against continuing (false claim of poison in the reser- the noxious (offensive) activity or con- voir or exhortation to commit a dition. Examples: fumes from a facto- crime like a lynching) and some ry above the legal limit, loud noises forms of pornography. The theory, well above the norm, directing rain articulated by the U.S. Supreme water onto another person’s property,

Court in Near v. Minnesota (1931) operating an auto repair business in a is that free speech and free press neighborhood zoned residential, or nu- protections have priority, and law- merous barking dogs. (See: nuisance, suits for libel and slander and pros- public nuisance) ecutions for criminal advocacy will

curb the effect of defamation and private parts: n. men’s or women’s gen- untruths. Most other nations per- italia, excluding a woman’s breasts,

325 private property

usually referred to in prosecutions (See: Bill of Rights, taking the for “indecent exposure” or produc- Fifth) tion and/or sale of pornography.

privileged communication: n. state- private property: n. land not owned ments and conversations made under by the government or dedicated to circumstances of assured confiden- public use. tiality which must not be disclosed in court. These include communications private road: n. a road or driveway between husband and wife, attorney on privately owned property, limit- and client, physician or therapist and ed to the use of the owner or a patient, and minister or priest with group of owners who share the use anyone seeing them in their religious and maintain the road without status. In some states the privilege is help from a government agency. A extended to reporters and informants. private road has not been given to Thus, such people cannot be forced to a government entity (like a county testify or reveal the conversations to or city) and accepted by that entity law enforcement or courts, even under for public use. Some private roads threat of contempt of court, and if one are used by the public, but should should break the confidentiality he/she be closed off at least once a year to can be sued by the person who had prove that an easement of use is confidence in him/her. The reason for not allowed and to prevent a pre- the privilege is to allow people to speak scriptive easement (taken by con- with candor to spouse or professional

tinued use) from arising. (See: counsellor, even though it may hinder prescriptive easement) a criminal prosecution. The extreme case is when a priest hears an admis- privilege: n. a special benefit, exemp- sion of murder or other serious crime tion from a duty, or immunity from in the confessional and can do nothing

penalty, given to a particular per- about it. The privilege may be lost if son, a group or a class of people. the one who made the admission

waives the privilege, or, in the case of

privilege against self incrimina- an attorney, if the client sues the at- tir n: n. a right to refuse to testify torney claiming negligence in conduct against oneself in a criminal pros- of the case. (See: attorney-client ecution or in any legal proceeding privilege, confidential physi- which might be used against the cian-patient privilege) person. This privilege is guaranteed by the Fifth Amendment to privileges and immunities: n. the the Constitution, which provides: fundamental rights that people enjoy “No person... shall be compelled in in free governments, protected by the any criminal case to be a witness U.S. Constitution in Article IV: “The against himself....” Therefore, re- citizens of each state shall be entitled fusing to answer questions during to all privileges and immunities in a trial (“I refuse to answer on the the several States,” and specifically to

ground it may tend to incriminate be protected against state action by me”) is called “taking the Fifth.” the Constitution’s 14th Amendment

326 probate

(1868): “No State shall make or en- make an arrest without a warrant, force any law which shall abridge search without a warrant, or seize the privileges or immunities of citi- property in the belief the items were zens of the United States.” The defi- evidence of a crime. While some cases

nition of “privileges and immunities” are easy (pistols and illicit drugs in was first spelled out by Supreme plain sight, gunshots, a suspect run- Court Justice Bushrod Washington ning from a liquor store with a clerk in 1823: “protection by the govern- screaming “help”), actions “typical” of ment, with the right to acquire and drug dealers, burglars, prostitutes, possess property of every kind, and thieves, or people with guilt “written to pursue and obtain happiness and across their faces,” are more difficult

safety, subject, nevertheless, to such to categorize. “Probable cause” is

restraints as the government may often subjective, but if the police offi- prescribe for the general good of the cer’s belief or even hunch was cor- whole.” However, the exact nature of rect, finding stolen goods, the hidden privileges and immunities which the weapon or drugs may be claimed as state governments could limit has self-fulfilling proof of probable cause. long been in dispute, with the U.S. Technically, probable cause has to Supreme Court gradually tipping to- exist prior to arrest, search or ward protecting the individual seizure. (See: Bill of Rights, rights of citizens against state search, search and seizure) statutes that might impinge on con-

stitutional rights. probate: 1) n. the process of proving a will is valid and thereafter adminis- privity: n. contact, connection or mu- tering the estate of a dead person actual interest between parties. The cording to the terms of the will. The term is particularly important in first step is to file the purported will the law of contracts, which requires with the clerk of the appropriate court that there be “privity” if one party to in the county where the deceased per- a contract can enforce the contract son lived, along with a petition to have by a lawsuit against the other party. the court approve the will and appoint

Thus, a tenant of a buyer of real the executor named in the will (or if property cannot sue the former none is available, an administrator) owner (seller) of the property for with a declaration of a person who had failure to make repairs guaranteed signed the will as a witness. If the by the land sales contract between court determines the will is valid, the seller and buyer since the tenant court then “admits” the will to pro- was not “in privity” with the seller. bate. 2) n. a general term for the en- (See: contract) tire process of administration of estates of dead persons, including those probable cause: n. sufficient reason without wills, with court supervision. based upon known facts to believe The means of “avoiding” probate exist,

a crime has been committed or that including creating trusts in which all certain property is connected with possessions are handled by a trustee,

a crime. Probable cause must exist making lifetime gifts or putting all for a law enforcement officer to substantial property in joint tenancy

327 probation

with an automatic right of survivor- client privilege, physician-

ship in the joint owner. Even if there patient privilege, confiden- is a will, probate may not be neces- tial communication)

sary if the estate is small with no real estate title to be transferred or probative: adj. in evidence law, tend-

all of the estate is either jointly ing to prove something. Thus, owned or community property. Rea- testimony which is not probative sons for avoiding probate are the (does not prove anything) is immater- fees set by statute and/or the court ial and not admissible or will be (depending on state laws) for attor- stricken from the record if objected to neys, executors and administrators, by opposing counsel. (See: probative the need to publish notices, court facts, probative value) hearings, paperwork, the public nature of the proceedings and delays probative facts: n. evidence which

while waiting for creditors to file tends to prove something which is rel- claims even when the deceased ative to the issues in a lawsuit or crim-

owed no one. 3) v. to prove a will in inal prosecution. (See: probative, court and proceed with administra- probative value) tion of a deceased’s estate under

court supervision. 4) adj. reference probative value: n. evidence which is to the appropriate court for han- sufficiently useful to prove something

dling estate matters, as in “probate important in a trial. However, proba- court.” (See: administrator, ex- tive value of proposed evidence must ecutor, will) be weighed by the trial judge against prejudicing in the minds of jurors to- probation: n. a chance to remain free ward the opposing party or criminal (or serve only a short time) given by defendant. A typical dispute arises a judge to a person convicted of a when the prosecutor wishes to intro- crime instead of being sent to jail or duce the previous conduct of a defen- prison, provided the person can be dant (particularly a criminal convic- good. Probation is only given under tion) to show a tendency toward com- specific court-ordered terms, such as mitting the crime charged, balanced performing public service work, against the right of the accused to be staying away from liquor, paying a tried on the facts in the particular case fine, maintaining good behavior, get- and not prejudice him/her in the ting mental therapy and reporting minds of the jury based on prior ac- regularly to a probation officer. tions. (See: probative) Violation of probation terms will usually result in the person being pro bono. adj. short for pro born publi- sent to jail for the normal term. co, Latin for “for the public good,” legal Repeat criminals are normally not work performed by lawyers without eligible for probation. Probation is pay to help people with legal problems not the same as “parole,” which is and limited or no funds, or provide freedom under certain restrictions legal assistance to organizations in- given to convicts at the end of their volved in social causes such as envi- imprisonment. (See: attorney- ronmental, consumer, minority, youth,

328 product liability

battered women and education orga- (say, 30 days) in which the defendant nizations and charities. has to file an answer or other legal pleading with the clerk of the court, procedure: n. the methods and and sent to the plaintiff. New York mechanics of the legal process. has an unusual system in which a These include filing complaints, an- summons may be served without a swers and demurrers; serving docu- complaint. A subpena is similar to a ments on the opposition; setting summons but is a notice to a witness hearings, depositions, motions, peti- to appear at a deposition (testimony tions, interrogatories; preparing or- taken outside court), or at a trial. A ders; giving notice to the other par- subpena duces tecum is an order to ties; conduct of trials; and all the deliver documents or other evidence rules and laws governing that either into court or to the attorney for process. Every state has a set of pro- a party to a lawsuit or criminal pros-

cedural statutes (often called the ecution. An order to show cause is a Codes of Civil Procedure and Crimi- court order to appear in court and nal Procedure), and courts have so- give a reason why the court should called ‘local rules,” which govern not issue an order (such as paying times for filing documents, conduct temporary child support). The sum- of the courts and other technicali- mons, complaint, subpena, subpena ties. Law practice before the federal duces tecum and order to show cause courts operates under the Federal must all be “served” on the defendant Rules of Civil Procedure and the or person required to appear or pro-

Federal Rules of Criminal Proce- duce, and this is called “service of

dure. Procedural law is distin- process.” Service of process is usually guished from “substantive” law, made by an officer of the court such as which involves the statutes and a deputy sheriff or marshal, or a pro- legal precedents upon which cases fessional process server, but can be are tried and judgments made. performed by others in most jurisdictions. (See: order to show cause, proceeding: n. any legal filing, process server, service of process, hearing, trial and/or judgment in subpena, summons) the ongoing conduct of a lawsuit or criminal prosecution. Collectively process server: n. a person who serves

they are called “proceedings,” as in (delivers) legal papers in lawsuits, ei- “legal proceedings.” ther as a profession or as a government official, such as a deputy sheriff, process: n. in law, the legal means by marshal or constable. (See: service which a person is required to ap- of process) pear in court or a defendant is given

notice of a legal action against proctor: n. 1) in admiralty (maritime) him/her/it. When a complaint in a law, an attorney. 2) person who lawsuit is filed, it must be served on keeps order. each defendant, together with a

summons issued by the clerk of the product liability: n. the responsibility court stating the amount of time of manufacturers, distributors and

329 professional corporation

sellers of products to the public, to architects and real estate brokers. deliver products free of defects Most states provide for such corpora- which harm an individual or numer- tions under special statutes which ous persons and to make good on allow the corporation to operate that responsibility if their products with a single director, who is a are defective. These can include professional. However, unlike other faulty auto brakes, contaminated corporations, the organization does baby food, exploding bottles of beer, not provide a shield for liability for flammable children’s pajamas or any professional negligence (mal- lack of label warnings. Examples: practice) by the licensed profession- Beauty Queen Hair Products makes als. (See: corporation) a hair-permanent kit in which the

formula will cause loss of hair to professional negligence: n. (See: mal- women with sensitive scalps, and practice) Molly Makeup has her hair done at

the Bon Tbn Beauty Shop and suf- proffer: v. to offer evidence in a trial. fers scalp bums and loss of hair.

Molly has a claim for damages pro forma: 1) prep. Latin for “as a mat- against Beauty Queen, the manufac- ter of form,” the phrase refers to court turer. Big Boy Trucks makes a tmck rulings merely intended to facilitate with a faulty steering gear, bought the legal process (to move matters by Tbm Holdtight. The gear fails and along). 2) n. an accountant’s proposed Holdtight runs off the road and financial statement for a business breaks his back. Holdtight can sue based on the assumption that certain Big Boy for the damages. The key el- events occurred, such as a 20% in- ement in product liability law is that crease in annual sales or 6% inflation. a person who suffers harm need prove only the failure of the product pro hac vice: (proh hock vee-chay) to make the seller, distributor and/or prep. Latin for “this time only,” the manufacturer reliable for damages. phrase refers to the application of an An injured person usually need only out-of-state lawyer to appear in court sue the seller and let him/her/it for a particular trial, even though bring the manufacturer or distribu- he/she is not licensed to practice in the tor into the lawsuit or require con- state where the trial is being held. The tribution toward a judgment. How- application is usually granted, but ever, all those possibly responsible sometimes the court requires associa- should be named in the suit as de- tion with a local attorney. fendants if they are known. (See: warrant, warranty) prohibition: n. forbidding an act or activity. A court order forbidding an act professional corporation: n. a is a writ of prohibition, an injunction

corporation formed for the purpose or a writ of mandate (mandamus) if of conducting a profession which against a public official. (See: injunc- requires a license to practice, in- tion, mandate) cluding attorneys, physicians, den-

tists, certified public accountants, promise: 1) n. a firm agreement to

330 promoter

perform an act, refrain from acting of money (called “principal”) to anoth- or make a payment or delivery. In er (payee, obligee, promisee), usually contract law, if the parties exchange to include a specified amount of inter- promises, each promise is “consider- est on the unpaid principal amount ation” (a valuable item) for the other (what he/she owes). The specified time promise. Failure to fulfill a promise of payment may be written as: a) in a contract is a breach of the con- whenever there is a demand, b) on a tract, for which the other party may specific date, c) in installments with or sue for performance and/or dam- without the interest included in each ages. 2) v. to make a firm agreement installment, d) installments with a to act, refrain from acting or make a final larger amount (balloon payment). payment or delivery. (See: consid- A promissory note may contain other eration, contract, covenant) terms such as the right ofthe promisee to order payment be made to another promissory estoppel: n. a false person, penalties for late payments, a statement treated as a promise by a provision for attorney’s fees and costs court when the listener had relied if there is a legal action to collect, the on what was told to him/her to right to collect payment in full if the his/her disadvantage. In order to note is secured by real property and see that justice is done a judge the property is sold (“due on sale”

will preclude the maker of the clause), and whether the note is se- statement from denying it. Thus, cured by a mortgage or deed of trust the legal inability of the person or a financing statement (a filed secu- who made the false statement to rity agreement for personal collateral

deny it makes it an enforceable called UCC-1). The promissory note is promise called “promissory estop- usually held by the party to whom the pel,” or an “equitable estoppel.” Ex- money is owed. There are legal limita- ample: Bernie Blowhard tells tions to the amount of interest which Arthur Artist that Blowhard has may be charged. Charging a rate in ex- a contract to make a movie and cess of the legal limit is called “usury,” wants Artist to paint the back- and this excess is legally uncollectible. ground scenery in return for a per- When the amount due on the note, in-

centage of the profits. Artist paints, cluding interest and penalties (if any), and Blowhard then admits he need- is paid, the note must be cancelled ed the scenery to try to get a movie and surrendered to the person(s) who

deal which fell through and there signed it. A promissory note need only are no profits to share. Artist sues be signed and does not require an ac- and the judge finds that Blowhard knowledgement before a notary public cannot deny a contract with Artist to be valid. (See: interest, obligee, and gives Artist judgment for the obligor, usury) value of his work. (See: estoppel) promoter: n. a person who puts togeth- promissory note: n. a written er a business, particularly a corpora- promise by a person (variously tion, including the financing. Usually

called maker, obligor, payor, the promoter is the principal share- promisor) to pay a specific amount holder or one of the management

331 promotional stock

“ team and has a contract with the in- pro per. adj. short for propria persona ,” corporators or makes a claim for which is Latin for “for oneself,” usually shares of stock for his/her efforts in applied to a person who represents organization. Most states limit the himself/herself in a lawsuit rather amount of “promotional stock” since than have an attorney. (See: in pro it is supported only by effort and not per, in propria persona, propria

by assets or cash. (See: promotion- persona ) al stock) proper party: n. a person or entity who promotional stock: n. stock issued has an interest (financial or protection in a newly formed corporation and of some legal rights) in the subject given to a promoter (organizer) of matter of a lawsuit and, therefore, can the corporation in payment for join in the lawsuit as he/she/it wishes, his/her efforts in putting the compa- or may be brought into the suit (as an ny together and locating sharehold- unnecessary party) by one of the parers or other funding. Most states ties to the legal action. However, the (and the federal Securities and Ex- judgment may leave some matters change Act) limit promotional stock undecided. A proper party is distin- to an amount reasonable for the ef- guished from a “necessary party,” fort since it is not backed by assets which the court will order joined in

or money. (See: promoter) (brought into) the suit if any judgment is to be reached. Example: Marianne proof: n. confirmation of a fact by evi- Steel and Isaac Iron both own lots dence. In a trial, proof is what the with vacation cabins up the hill from trier ofthe fact (jury or judge without Allen Albright’s ranch, and for years a jury) needs to become satisfied that both Steel and Iron have driven up an there is “a preponderance of the evi- old road across Albright’s property to dence” in civil (non-criminal) cases reach their cabins. Steel brings a quiet and the defendant is guilty “beyond a title action against Albright to estab- reasonable doubt” in criminal prose- lish a “prescriptive easement” over the cutions. However, each alleged fact roadway, but Iron does not. The court must be proved separately, as must rules in favor of Steel, but says noth- all the facts necessary to reach a ing about Iron. In this case Iron is a judgment for the plaintiff (the person “proper party,” but did not choose to

filing a lawsuit) or for the prosecu- participate, and it was not necessary tion (the “people” or “state” repre- for Steel to obtain a judgment for her- sented by the prosecutor). The defen- self. (See: necessary party, party) dants in both civil suits and criminal

trials need not provide absolute property: n. anything that is owned by “proof of non-responsibility in a civil a person or entity. Property is divided case or innocence (in a criminal into two types: “real property,” which case), since the burden is on the is any interest in land, real estate, plaintiff or prosecution to prove then- growing plants or the improvements

cases (or prove the person guilty). on it, and “personal property” (some-

(See: beyond a reasonable doubt, times called “personalty”), which is preponderance of the evidence) everything else. “Common property”

332 pro rata

is ownership by more than one per- (so many dollars or cents per $100 son of the same possession. “Com- value of the property). The value is munity property” is a form of joint usually established by an Assessor, a ownership between husband and county official. In California the as- wife recognized in several states. sessed value of real property is based “Separate property” is property on the amount of the last sale of the owned by one spouse only in a com- property, and the tax is limited to 1% munity property state, or a married of that figure (with a few minor ex- woman’s sole ownership in some ceptions) under the so-called “Propo- states. “Public property” refers to sition 13” state constitutional provi- ownership by a governmental body sion. In addition, there are special such as the federal, state, county or assessments for particular public city governments or their agencies property improvements such as side- (e.g. school or redevelopment dis- walks, tree planting, or storm drains tricts). The government and the which are charged to each property courts are obligated to protect prop- owner on the street in which the im- erty rights and to help clarify own- provements are made. (See: ad val- ership. (See: common property, orem, tax) community property, personal property, personalty, public propria persona : adj. from Latin, for property, real property, sepa- oneself. (See: in pro per, in propria rate property) persona, pro per) property damage: n. injury to real or proprietary: adj. referring to owner- personal property through another’s ship. negligence, willful destruction or by some act of nature. In lawsuits for proprietary interest: n. a total or par- damages caused by negligence or a tial ownership. willful act, property damage is dis-

tinguished from personal injury. proprietary rights: n. those rights Property damage may include harm which go with ownership of real prop- to an automobile, a fence, a tree, a erty or a business. home or any other possession. The amount of recovery for property proprietor: n. the owner of anything, damage may be established by evi- but particularly the owner of a busi- dence of replacement value, cost of ness operated by that individual. repairs, loss of use until repaired or replaced or, in of the case heirlooms pro rata : (proh rat-ah or proh ray-tah) or very personal items (e.g. wedding adj. from Latin for “in proportion,” re- pictures), by subjective testimony as ferring to a share to be received or an to sentimental value. (See: dam- amount to be paid based on the frac- ages, property) tional share of ownership, responsibility or time used. Examples: an heir property tax: n. an annual govern- who receives one-quarter of an estate mental tax on real property or per- may be responsible for one-quarter of sonal property based on a tax rate the estate taxes as his/her pro rata

333 pro se

share. A buyer of a rental property government’s attorney in a criminal will pay his/her pro rata share of the case, including District Attorney, property taxes for that portion of States Attorney, U.S. Attorney,

the year in which he/she holds title. Attorney General, Solicitor General, or special prosecutor. A special pro se: (proh say) prep. Latin for “for prosecutor may be assigned to himself.” A party to a lawsuit who investigate as well as prosecute if represents himself (acting in propria necessary when a government official

persona) is appearing in the case is involved directly or indirectly in

“pro se.” (See: in propria persona) the possible criminal activity. (See: Attorney General, District Attor-

prosecute: v. 1) in criminal law, to ney, prosecute) charge a person with a crime and thereafter pursue the case through prospectus: n. a detailed statement by trial on behalf of the government. a corporation required when there is This is normally the function of the an issuance of stock to the general

District Attorney (called States At- public. A prospectus includes the fi- torney or city prosecutor in some nancial status, the officers, the plans, places) and the U.S. Attorney in contingent obligations (such as law- federal criminal cases. A state At- suits) of the corporation, recent perfor- torney General may prosecute in mance and other matters which would crimes of statewide importance, assist the potential investor or invest- and the U.S. Attorney General, ment adviser to evaluate the stock and through the Solicitor General, may the prospects of the company for prof-

prosecute for crimes involving it, loss or growth. The Federal Securi- matters of national significance. 2) ties Act requires the filing of the to conduct any legal action by a prospectus with the Securities and Ex- lawyer on behalf of a client, includ- change Commission and the SEC’s ap- ing both civil and criminal cases, proval before any major stock issue. but most commonly referring to State laws generally require similar prosecution for crimes. (See: At- documentation for some issuances or torney General, District Attor- offers of sales of stock within the state. ney, prosecution, prosecutor) Every potential purchaser of shares of a new stock shares must receive a copy prosecution: n. 1) in criminal law, of the prospectus, even though they the government attorney charging are difficult to understand. Offerings and trying the case against a per- to the public of limited partnership in- son accused of a crime. 2) a com- terests may require that a prospectus mon term for the government’s be prepared and delivered to each inside in a criminal case, as in “the vestor. (See: blue sky laws, corpora- prosecution will present five wit- tion, limited partnership, stock) nesses” or “the prosecution rests” (has completed its case). (See: prostitute: n. a person who receives prosecute, prosecutor) payment for sexual intercourse or other sexual acts, generally as a regu- prosecutor: n. generic term for the lar occupation. Although usually a

334 protest

prostitute refers to a woman offer- or is in danger from a violent person is ing sexual favors to men, male pros- taken in as a temporary ward of the titutes may perform homosexual state and held in probation facilities or acts for money or receive payment placed in a foster home until a court from women for sexual services. A can decide the future placement of the woman prostitute who is sent on a child. Protective custody is sometimes “date” to the hotel room or residence used to help women threatened by a of a male customer is commonly re- husband, boyfriend or a stalker, and ferred to as a “call girl.” (See: pan- also for witnesses who have been der, panderer, prostitution) threatened with physical harm or death if they testify. prostitution: n. the profession of per-

forming sexual acts for money. Pros- pro tem: 1) adj. short for the Latin pro titution is a crime throughout the tempore temporarily or for the time , United States, except for a few being. In law, judge pro tem normally counties in the state of Nevada, refers to a judge who is sitting tem- where it is allowed in licensed hous- porarily for another judge or to an ates of prostitution. Soliciting acts of torney who has been appointed to prostitution is also a crime, called serve as a judge as a substitute for a pandering or simply, soliciting. Pan- regular judge. When an appeals jus- dering on behalf of a prostitute is tice is not available or there is a va- called pimping. (See: pander, pan- cancy, a lower court judge is appointed

derer, pimp, prostitute) Justice Pro Tem until a new Justice is appointed. Small claims cases are often heard by an attorney serving as The law embodies the story ofa Judge Pro Tem. 2) n. short for a tem- nation's development through porary judge as “Sam Collins is Pro centuries, it cannot many and Tem today.” be dealt with as if it contained only the axioms and corollaries pro tempore-, (proh temp-oh-ray): (See: ofa book ofnumbers. pro tem) —Justice Oliver Wendell Holmes, Jr. laHHHH protest: 1) v. to complain in some public way about any act already done or pro tanto. (proh tahn-toe) Latin for about to be done, such as adoption of “only to that extent.” Example: a a regulation by a county board, send- judge gives an order for payments ing troops overseas, or use of the

for one year, pro tanto. death penalty 2) v. to dispute the amount of property taxes, the as- protective custody: n. the act of law sessed evaluation of property for tax enforcement officials in placing a purposes or an import duty 3) n. a person in a government facility or written demand for payment of the foster home in order to protect amount owed on a promissory note him/her from a dangerous person or which has not been paid when due or situation. Most commonly a child a check which has been dishonored who has been neglected or battered (not paid by the bank).

335 prove

prove: v. to present evidence and/or proxy: n. 1) someone who is authorized logic that makes a fact seem cer- to serve in one’s place at a meeting, tain. A party must do this to con- particularly with the right to cast

vince a trier of fact (j ury or judge votes. 2) the written authority given to sitting without a jury) as to facts someone to act or vote in someone’s claimed and to win a lawsuit or place. A proxy is commonly given to criminal case. (See: proof) cast a stockholder’s votes at a meeting of shareholders, and by board mem- provisional remedy: n. a generic bers and convention delegates. term for any temporary order of a court to protect a party from ir- prudent man rule: n. the requirement reparable damage while a lawsuit that a trustee, investment manager of or petition is pending. (See: tem- pension funds, treasurer of a city or

porary injunction, temporary ) county, or any fiduciary (a trusted agent) must only invest funds entrust- proviso: n. a term or condition in a ed to him/her as would a person of pru-

contract or title document. dence, i.e. with discretion, care and intelligence. Thus solid “blue chip” secu- proximate cause: n. a happening rities, secured loans, federally guaran- which results in an event, particu- teed mortgages, treasury certificates larly injury due to negligence or an and other conservative investments intentional wrongful act. In order providing a reasonable return are to prevail (win) in a lawsuit for within the prudent man rule. Some damages due to negligence or some states have statutes which list the other wrong, it is essential to claim types of investments allowable under

(plead) proximate cause in the the rule. Unfortunately, the rule is complaint and to prove in trial that subjective, and some financial man- the negligent act of the defendant agers have put funds into speculative was the proximate cause (and not investments to achieve higher rates of some other reason) of the damages return, which has resulted in bank- to the plaintiff (person filing the ruptcy and disaster, as in the case of lawsuit). Sometimes there is an in- Orange County, California (1994). tervening cause which comes be- (See: fiduciary, trustee) tween the original negligence of

the defendant and the injured public: 1) n. the people of the nation, plaintiff, which will either reduce state, county, district or municipality the amount of responsibility or, if which the government serves. 2) adj. this intervening cause is the sub- referring to any agency, interest, prop- stantial reason for the injury, then erty, or activity which is under the au- the defendant will not be liable at thority of the government or which be- all. In criminal law, the defen- longs to the people. This distinguishes dant’s act must have been the public from private interests as with proximate cause of the death of a public and private schools, public and victim to prove murder or private utilities, public and private manslaughter. (See: intervening hospitals, public and private lands cause, negligence) and public and private roads.

336 public easement public administrator: n. a county tion created to perform a governmen- official with the responsibility to tal function or to operate under gov- handle the affairs of someone who ernment control, such as a municipal has died with no known or avail- water company or hospital. (See: able relative, executor or friend. corporation) At times the public administrator may be instructed by a court to public defender: n. an elected or ap- assume similar duties for a living pointed public official (usually of a person when no conservator or county), who is an attorney regularly guardian is available. (See: pro- assigned by the courts to defend peo- bate, administrative) ple accused of crimes who cannot afford a private attorney. In larger coun- publication: n. 1) anything made ties the public defender has a large public by print (as in a news- case load, numerous deputy public de- paper, magazine, pamphlet, letter, fenders and office staff. In each feder-

telegram, computer modem or pro- al judicial district there is also a fed- gram, poster, brochure or pam- eral public defender, and some states phlet), orally, or by broadcast (radio, have a state public defender to super- television). 2) placing a legal notice vise the provision of attorneys to con- in an approved newspaper of gener- victed indigents for appeals. al publication in the county or dis-

trict in which the law requires such public domain: n. 1) in copyright law, notice to be published. 3) in the law the right of anyone to use literature, of defamation (libel and slander) music or other previously copyrighted publication of an untruth about an- materials after the copyright period other to at least one single person. has expired. Although the copyright Thus one letter can be the basis of a laws have been changed several times, suit for libel, and telling one person a rule of thumb would be that the last is sufficient to show publication of possible date for copyright protection slander. (See: defamation, libel, would be 50 years after the death of notice, slander) the author. Thus, the works of William Shakespeare, Mark Twain, Jack Lon- public benefit corporation: n. a don and other classic writers are in the term used in some states for a non- public domain and may be published profit community service corpora- by anyone without payment of a royal-

tion. Typical examples are clubs like ty. 2) all lands and waters owned by Kiwanis, Rotary, soroptimists and federal, state and local governments. Lions. (See: corporation, non- (See: copyright) profit corporation) public easement: n. the right of the public charge: n. a general term for general public to use certain streets, an indigent, sick or severely handi- highways, paths or airspace. In most capped person who must be taken cases the easement came about care of at public expense. through reservation of the right when land was deeded to individuals or by public corporation: n. a corpora- dedication of the land to the govem-

337 public figure

ment. In some cases public ease- public record: n. any information, min-

ments come by prescription (use for utes, files, accounts or other records

many years) such as a pathway which a governmental body is required across private property down to the to maintain and which must be acces- ocean. Beach access has been the sible to scrutiny by the public. This in- source of controversy between gov- cludes the files of most legal actions. A ernment and private owners in court will take “judicial notice” of a many seaboard states. (See: ease- public record (including hearsay in the ment, prescriptive easement) record) introduced as evidence. For example: a recorded deed to show trans-

public figure: n. in the law of fer of title or a criminal judgment are defamation (libel and slander), a both public records. personage of great public interest or

familiarity like a government offi- public trust doctrine: n. the principle

cial, politician, celebrity, business that the government holds title to sub- leader, movie star or sports hero. In- merged land under navigable waters correct harmful statements pub- in trust for the benefit of the public. lished about a public figure cannot Thus, any use or sale of the land under be the basis of a lawsuit for defama- water must be in the public interest. tion unless there is proof that the Nevertheless, there has been a great writer or publisher intentionally de- deal of use for offshore oil drilling, for famed the person with malice (hate). landfill, and marine shoreline develop- (See: defamation, libel, slander) ment, in which protection of the public interest has been dubious at best. public nuisance: n. a nuisance which affects numerous members of the public use: n. the only purpose for public or the public at large (how which private property can be taken

many people it takes to make a pub- (condemned) by the government

lic is unknown), as distinguished under its power of eminent domain. from a nuisance which only does Public use includes: schools, streets, harm to a neighbor or a few private highways, hospitals, government individuals. Example: a factory buildings, parks, water reservoirs, which spews out clouds of noxious flood control, slum clearance and re- fumes is a public nuisance but play- development, public housing, public

ing drums at three in the morning is theaters and stadiums, safety facili- a private nuisance bothering only ties, harbors, bridges, railroads, air- the neighbors. (See: nuisance) ports, terminals, prisons, jails, public utilities, canals, and numerous other public property: n. property owned purposes designated as beneficial to by the government or one of its the public. (See: condemnation, em- agencies, divisions, or entities. Com- inent domain) monly a reference to parks, play- grounds, streets, sidewalks, schools, public utility: n. any organization libraries and other property regu- which provides services to the gener-

larly used by the general public. al public, although it may be private- (See: common property) ly owned. Public utilities include

338 putative

electric, gas, telephone, water and cepted as legal when in reality it was

television cable systems, as well as not lawful (e.g. due to failure to streetcar and bus lines. They are complete a prior divorce). A putative allowed certain monopoly rights will is one that appears to be the

due to the practical need to service final will but a later will is found entire geographic areas with one that revokes it and shows that the system, but they are regulated putative will was not the last will of by state, county and/or city public the deceased. utility commissions under state laws. (See: monopoly)

publish: v. to make public to at least one other person by any means. (See: publication) 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 expect-

ed of any salesman, it cannot be the basis of a lawsuit for fraud or breach of contract unless the exaggeration exceeds the reality. How- ever, if the puffery includes outright lies or has no basis in fact (“Sears Roebuck is building next door to your store site”) a legal action for rescission of the contract or for fraud against the seller is possible. (See: fraud) punitive damages: n. (synonymous with exemplary damages), damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts. (See: exemplary damages) putative: adj. commonly believed, supposed or claimed. Thus a putative father is one believed to be the father unless proved otherwise, a putative marriage is one that is ac-

339 quantum meruit', (kwahn-tuhm property acquired by a couple who mare-ooh-it) n. Latin for “as much have not been married, but have as he deserved,” the actual value of lived and purchased the property as services performed. Quantum if they were married. Often this in- meruit determines the amount to cludes property purchased or re- be paid for services when no con- ceived by a couple shortly before mar- tract exists or when there is doubt riage. (See: community property, as to the amount due for the work palimony, quasi) performed but done under circumstances when payment could be ex- quasi contract: n. a situation in which pected. This may include a physi- there is an obligation as if there was a cian’s emergency aid, legal work contract, although the technical re- when there was no contract, or quirements of a contract have not evaluating the amount due when been fulfilled. (See: contract, quasi) outside forces cause a job to be terminated unexpectedly. If a person quasi corporation: n. a business sues for payment for services in which has operated as a corporation such circumstances the judge or without completing the legal require- jury will calculate the amount due ments, often in the period just before based on time and usual rate of formal incorporation. (See: corpora- pay or the customary charge, tion, quasi, de facto corporation) based on quantum meruit by im- plying a contract existed. quasi-criminal: adj. a reference to a court’s right to punish for actions or quash: v. to annul or set aside. In law, omissions as if they were criminal. a motion to quash asks the judge for The most common example is finding an order setting aside or nullifying a parent who is delinquent in child an action, such as “quashing” ser- support in contempt of court and pe- vice of a summons when the wrong nalizing him/her with a jail sentence. person was served. If a hearing is quasi-criminal the quasi-defendant is entitled to all due quasi: (kway-zeye, kwah-zee) adj., process protections afforded a crimi-

adv. from Latin for “as if,” almost, nal defendant. (See: criminal, quasi) somewhat, to a degree (always used in combination with another word). quasi in rem: adj. referring to a legal Quasi refers to things and actions action which is primarily based on which are not exactly or fully what property rights, but includes personal they might appear, but have to be rights as well. (See: in rent, in per-

treated “as if’ they were. sonam, quasi)

quasi community property: n. quasi-judicial: adj., adv. referring to in community property states, the actions of an agency boards or

340 quiet title action

other government entity in which (usually to dismiss the complaint) at there are hearings, orders, judg- that point without a trial. “Questions ments or other activities similar to of fact” are distinguished from “ques- those conducted by courts. Example: tions of law,” which can only be decid- a public utilities hearing on setting ed by the judge. (See: finding, judge, telephone company rates is quasi-ju- motion for summary judgment, dicial. (See: judicial, quasi) question of law)

question of law: n. an issue arising in Judicial decrees may not a lawsuit or criminal prosecution change the heart, but they which only relates to determination of can restrain the heartless. what the law is, how it is applied to the —Martin Luther King, Jr. facts in the case, and other purely legal points in contention. All “questions of Queen’s Bench: n. 1) the highest law” arising before, during and some- court in Great Britain during the times after a trial are to be determined reign of a Queen, so that opinions solely by the judge and not by the jury. are identified as a volume of “Questions of law” are differentiated Queen’s Bench (QB). 2) in the Unit- from “questions of fact,” which are deed States, organizations of women cided by the jury and only by the judge lawyers, dating from when women if there is no jury. (See: judge, ques- were a small minority of practicing tion of fact, trier of fact) attorneys and needed to encourage each other, urge employment of quid pro quo : (kwid proh kwoh) n. women attorneys, protect against Latin for “something for something,” to discrimination and promote the identify what each party to an agree- cause of equality for women ment expects from the other, some- lawyers. Recent bar admissions now times called mutual consideration. Ex- include close to 50 percent women. ample of its use: “What is the quid pro quo for my entering into this deal?” query: n. common lawyer lingo for a (See: consideration) question to be answered.

quiet enjoyment: n. the right to enjoy question of fact: n. in a lawsuit or and use premises (particularly a resi- criminal prosecution, an issue of dence) in peace and without interfer-

fact in which the truth or falsity (or ence. Quiet enjoyment is often a con-

a mix of the two) must be deter- dition included in a lease. Thus, if the mined by the “trier of fact” (the jury landlord interferes with quiet enjoy- or the judge in a non-jury trial) in ment, he/she may be sued for breach order to reach a decision in the case. of contract. Disturbance of quiet en- A “question of fact” may also be joyment by another can be a “nui- raised in a motion for summary sance” for which a lawsuit may be judgment which asks the court to brought to halt the interference or ob-

determine whether there are any tain damages for it. (See: nuisance) questions of fact to be tried, allow-

ing the judge to rule on the case quiet title action: n. a lawsuit to

341 —

quit

establish a party’s title to real the performance of a contract with property against anyone and the government or in violation of a everyone, and thus “quiet” any government regulation, when there challenges or claims to the title. is a statute which provides for a Such a suit usually arises when penalty for such violations. Qui tam there is some question about clear suits are brought for “the govern- title, there exists some recorded ment as well as the plaintiff.” In a qui problem (such as an old lease or tam action the plaintiff (the person failure to clear title after payment bringing the suit) will be entitled to of a mortgage), an error in descrip- a percentage of the recovery of the tion which casts doubt on the penalty (which may include large amount of property owned, or an amounts for breach of contract) as a easement used for years without reward for exposing the wrongdoing a recorded description. An action and recovering funds for the govern- for quiet title requires description ment. Sometimes the federal or state of the property to be “quieted,” government will intervene and be- naming as defendants anyone who come a party to the suit in order to might have an interest (including guarantee success and be part of any descendants—known or unknown negotiations and conduct of the case. of prior owners), and the factual This type of action is generally based and legal basis for the claim of on significant violations which in-

title. Notice must be given to all volve fraudulent or criminal acts, and potentially interested parties, in- not technical violations and/or errors. cluding known and unknown, by publication. If the court is con- quitclaim deed: n. a real property vinced title is in the plaintiff (the deed which transfers (conveys) only plaintiff owns the title), a quiet that interest in the property in

title judgment will be granted which the grantor has title. Com- which can be recorded and thus monly used in transfers of title or provide legal “good title.” Quiet interests in title, quitclaims are title actions are a common exam- often made to family members, di- ple of “friendly” lawsuits in which vorcing spouses, or in other transac- often there is no opposition. (See: tions between people well-known to cloud on title, notice, title) each other. Quitclaim deeds are also used to clear up questions of full

quit: v. to leave, used in a written title when a person has a possible notice to a tenant to leave the but unknown interest in the prop- premises (notice to quit). (See: no- erty. Grant deeds and warranty tice to quit, unlawful detainer) deeds guarantee (warrant) that the grantor has full title to the property qui tam action: (kwee tam) n. from or the interest the deed states is Latin for “who as well,” a lawsuit being conveyed, but quitclaim deeds

brought by a private citizen (popu- do not warrant good title. (See: con- larly called a “whistle blower”) vey, deed, grant deed, title) against a person or company who is believed to have violated the law in quorum: n. the number of people

342 quo warranto

required to be present before a meeting can conduct business. Un- less stated differently in bylaws, articles, regulations or other rules established by the organization, a quorum is usually a majority of members. A quorum for meetings of corporate boards of directors, homeowners’ associations, clubs and shareholders meetings are usually set in the bylaws. The quorum for meetings of governmental bodies such as commissions and boards are usually set by statute. (See: bylaws)

Government can exist without law, but law cannot exist without government. —John Locke

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 ver-

dict is illegal and improper since it is based on guesses and not a rational discussion of the facts. Such a judgment will be set aside on a motion for a new trial and a mistrial will be declared by the judge. (See: award, damages, mistrial, motion for a new trial, verdict)

quo warranto : (kwoh wahr-rahn- toe) n. the name for a writ (order) used to challenge another’s right to either public or corporate office or challenge the legality of a corporation to its charter (articles). (See: corporation, writ)

343 race to the courthouse: n. slang for to either resist or consent, but a recent the rule that the first deed, deed of Pennsylvania case ruled that a woman trust, mortgage, lien or judgment must do more than say “no” on the which is recorded with the County bizarre theory that “no” does not al- Recorder will have priority and pre- ways mean “don’t,” but a flirtatious vail over later recordings no matter come-on. “Date rape” involves rape by when the documents were dated. an acquaintance who refuses to stop (See: deed, judgment, lien, mort- when told to. Defense attorneys often gage, recording) argue that there had to be physical resistance, but the modem view is that Racketeer Influenced Corrupt Or- fear of harm and the relative strengths ganization (RICO) statute: n. a of the man and the woman are obvious

federal law which makes it a crime deterrents to a woman fighting back. for organized criminal conspiracies Any sexual intercourse with a child is to operate legitimate businesses. rape and in most states sexual relations even with consent involving a racketeering: n. the federal crime of girl 14 to 18 (with some variation on conspiring to organize to commit ages in a few states) is “statutory crimes, particularly as a regular rape,” on the basis that the female is

business (“organized crime” or unable to give consent. 2) v. to have “the Mafia”). sexual intercourse with a female without her consent through force, vio-

ransom: 1) n. money paid to a kid- lence, threat or intimidation, or with a napper in demand for the release of girl under age. Technically, a woman the person abducted. Ransom money can be charged with rape by assisting can also be paid to return a valuable a man in the rape of another woman.

object such as a stolen painting. 2) v. Dissatisfied with the typical prosecu- to pay money to an abductor to re- tion of rape cases (in which the defense turn the person held captive. (See: humiliates the accuser, and prosecu- abduction, kidnapping) tors are unable or unwilling to protect the woman from such tactics), women

rape: 1) n. the crime of sexual inter- have been suing for civil damages for course (with actual penetration of a the physical and emotioned damage woman’s vagina with the man’s caused by the rape, although too often penis) without consent and accom- the perpetrator has no funds. Protec- plished through force, threat of vio- tion services for rape victims have lence or intimidation (such as a been developed by both public and pri- threat to harm a woman’s child, hus- vate agencies. On the other side of the band or boyfriend). What constitutes coin, there is the concern of law en- lack of consent usually includes say- forcement and prosecutors that ing “no” or being too drunk or drug- women whose advances have been re- influenced for the woman to be able jected by a man, or who have been

344 real property

caught in the act of consensual sexu- interests which are not physical such al intercourse may falsely cry “rape.” as a right to acquire the property in (See: date rape, statutory rape) the future. (See: real property) ratable: adj. taxable according to real estate investment trust: n. value, such as an estate or property. nicknamed REIT, a real estate investment organization which finds ratification: n. confirmation of an ac- investors and buys real property and tion which was not pre-approved gives each investor either a percent- and may not have been authorized, age interest in the property itself or usually by a principal (employer) an interest in a loan secured by a who adopts the acts of his/her agent mortgage or deed of trust on the (employee). (See: agent, principal) property. Usually the loan is used to develop the property and build upon ratify: v. to confirm and adopt the it, and then there is a division of act of another even though it was profits upon sale—if there is a profit. not approved beforehand. Exam- ple: An employee for Holsinger’s real party in interest: n. the person Hardware orders carpentry equip- or entity who will benefit from a law- ment from Phillips Screws and suit or petition even though the Nails although the employee was plaintiff (the person filing the suit) is not authorized to buy anything. someone else, often called a “nomi- The president of Holsinger’s rati- nal” plaintiff. Example: a trustee fies the deal when Phillips delivers files a suit against a person who the order. A person under the legal damaged a building owned by the age who makes a contract may rat- trust; the real party in the interest is

ify the contract when he/she reach- the beneficiary of the trust. es majority (usually 18) or may

refuse to honor it without obliga- real property: n. 1) all land, struction. (See: agent, principal) tures, firmly attached and integrated equipment (such as light fixtures or a rational basis: n. a test of constitu- well pump), anything growing on the tionality of a statute, asking land, and all “interests” in the prop- whether the law has a reasonable erty which may include the right to connection to achieving a legitimate future ownership (remainder), right and constitutional objective. to occupy for a period of time (tenancy or life estate), the right to drill for ready, willing and able: adj. fully oil, the right to get the property back prepared to act, as in performing (a reversion) if it is no longer used for a contract. its current purpose (such as use for a hospital, school or city hall), use of

real estate: n. land, improvements airspace (condominium) or an ease- and buildings thereon, including at- ment across another’s property. Real tached items and growing things. It property should be thought of as a

is virtually the same as “real proper- group of rights like a bundle of sticks

ty,” except real property includes which can be divided. It is distin-

345 realty

guished from personal property civil (non-criminal) trial. (See: which is made up of movable items. preponderance of the evidence) 2) one of the principal areas of law

like contracts, negligence, probate, reasonable reliance: n. particularly in family law and criminal law. (See: contracts, what a prudent person condominium, easement, life would believe and act upon if told estate, personal property, real something by another. Typically, a estate, reversion) person is promised a profit or other benefit, and in reliance takes steps in realty: n. a short form of “real estate.” reliance on the promise, only to find (See: real estate) the statements or promises were not true or were exaggerated. The one reasonable: adj., adv. in law, just, ra- who relied can recover damages for tional, appropriate, ordinary or the costs of his/her actions or demand usual in the circumstances. It may performance if the reliance was “rea- refer to care, cause, compensation, sonable.” If the promisor says he doubt (in a criminal trial), and a “owned the Brooklyn Bridge,” reliance

host of other actions or activities. on that statement is not reasonable. In a complaint the language would reasonable care: n. the degree of read something like: “in reasonable caution and concern for the safety reliance on defendant’s statement (or of himself/herself and others an or- promise), plaintiff did the follow- dinarily prudent and rational per- ing....” (See: contract) son would use in the circumstances. This is a subjective test of reasonable speed: n. the speed of an determining if a person is negli- automobile determined to be lower gent, meaning he/she did not exer- than the posted speed limit due to the cise reasonable care. (See: duty of circumstances, such as rain, icy road, care, negligence) heavy traffic, poor condition of the vehicle or gloom of night. Exceeding rea- reasonable doubt: n. not being sure sonable speed under the circum- of a criminal defendant’s guilt to a stances can result in being cited for moral certainty. Thus, a juror (or speeding. In the law of negligence, ex- judge sitting without a jury) must ceeding reasonable speed in the pre- be convinced of guilt of a crime (or vailing conditions may be found to be the degree of crime, as murder in- negligent even though below the stead of manslaughter) “beyond a speed limit. (See: negligence) reasonable doubt,” and the jury will

be told so by the judge in the jury in- reasonable time: n. in contracts, com- structions. However, it is a subjec- mon custom in the business or under tive test since each juror will have to the circumstances will define “reason-

decide if his/her doubt is reasonable. able time” to perform or pay. It is bad It is more difficult to convict under practice to draft a contract using such that test, than “preponderance of a vague term. the evidence” to decide for the plaintiff (party bringing the suit) in a reasonable wear and tear: n. com-

346 receivership

monly used in leases to limit the tax savings from past years due to ac- tenant’s responsibility (and there- celerated depreciation or deferred cap- fore liability to repair or repaint) ital gains. (See: income tax)

upon leaving. It is subjective, but the considerations include the length of receipt: n. a written and signed ac- time of tenancy (the longer the occu- knowledgment by the recipient of pay- pancy the more wear and tear can be ment for goods, money in payment of expected), the lack of unusual dam- a debt or receiving assets from the es- age such as a hole in the wall or a tate of someone who has died. broken window, and the condition of

the premises when the tenant receiver: n. 1) a neutral person (often a

moved in. This is often a source of professional trustee) appointed by a conflict between landlord and ten- judge to take charge of the property ant, particularly when there is a de- and business of one of the parties to a posit for any damages “beyond rea- lawsuit and receive his/her rents and sonable wear and tear.” (See: lease) profits while the right to the moneys has not been finally decided. Appoint- ment of a receiver must be requested Where-ever law ends, tyranny by petition of the other party to the begins. suit, and will only be authorized if —John Locke there is a strong showing that the moneys would not be available when a rebate: 1) n. a discount or deduction decision is made. The funds are held on sales price. A secret rebate for the prevailing party. 2) a person given by a subcontractor to a con- appointed to receive rents and profits tractor in return for getting the job coming to a debtor either while a

is illegal, since it cheats the person bankruptcy is being processed or

hiring the contractor. 2) v. to give a while an arrangement is being worked discount or deduction. out to pay creditors, so that funds will be paid for debts and possibly avail- rebuttable presumption: n. since able for distribution to creditors. 3) a presumption is an assumption shorthand for one who commits the of fact accepted by the court crime of receiving stolen goods know- until disproved, all presumptions ing they were obtained illegally. are rebuttable. Thus rebuttable presumption is a redundancy. receivership: n. the process of appoint- (See: presumption) ment by a court of a receiver to take custody of the property, business, rebuttal: n. evidence introduced to rents and profits of a party to a law- counter, disprove or contradict the suit pending a final decision on dis- opposition’s evidence or a presump- bursement or an agreement that a re- tion, or responsive legal argument. ceiver control the financial receipts of

a person who is deeply in debt (insol- recapture: n. in income tax, the re- vent) for the benefit of creditors. Thus, quirement that upon sale of proper- the term “the business is in receiver- ty the taxpayer pay the amount of ship.” (See: receiver)

347 recess

recess: n. a break in a trial or other means there is a disregard for safety. court proceedings or a legislative (See: reckless) session until a certain date and time. Recess is not to be confused reckless driving: n. operation of an au- with “adjournment,” which winds tomobile in a dangerous manner under up the proceedings. the circumstances, including speeding (or going too fast for the conditions, recidivist: n. a repeat criminal of- even though within the posted speed fender, convicted of a crime after limit), driving after drinking (but not having been previously convicted. drunk), having too many passengers in

(See: habitual criminal, three the car, cutting in and out of traffic, strikes, you’re out) failing to yield to other vehicles and other negligent acts. It is a misde-

reciprocal discovery: n. the ex- meanor crime. A “wet reckless” is a

change of documents, lists of wit- plea in a drunk driving prosecution al- nesses, and other information be- lowed to lessen the penalty when the tween the two sides of a lawsuit or blood alcohol level is close to the legal criminal prosecution before trial. limit. (See: reckless, wet reckless) (See: discovery)

reconveyance: n. in those states which reciprocity: n. mutual exchange of use deeds of trust as a mortgage on privileges between states, nations, real property to secure payment of a

businesses or individuals. In regard loan or other debt, the transfer of title to lawyers, reciprocity refers to rec- by the trustee (which has been holding ognizing the license of an attorney title to the real property) back to the from another state without the ne- borrower (on the written request of the

cessity of taking the local state’s bar borrower) when the secured debt is examination. Such reciprocity is sel- fully paid. Under the deed of trust the dom granted now, since many large borrower transfers title in the real

states refuse to give it. property to the trustee (often a title or

escrow company) which holds it for the reckless: adj. in both negligence and benefit of the lender (called “beneficia- criminal cases, careless to the point ry”). The lender must surrender the of being heedless of the conse- promissory note to the trustee who quences (“grossly” negligent). Most cancels it and then reconveys title to commonly this refers to the traffic the borrower and records the recon- misdemeanor “reckless driving.” It veyance. (See: deed of trust) can also refer to use of firearms

(shooting a gun in a public place), ex- record: 1) v. (ree-cored) to put a docu- plosives or heavy equipment. (See: ment into the official records of a careless, negligent, wet reckless) county at the office of the County Recorder or Recorder of Deeds. The

reckless disregard: n. gross negli- process is that the document is taken gence without concern for danger or sent to the Recorder’s office, a

to others. Actually “reckless disre- recording fee paid, the document is gard” is redundant since reckless given a number (a document number,

348 recoverable volume or reel number and page mortgage, proceeding, race to the number), stamped with the date courthouse, trial) (and usually the time) of recording and then in most modem offices, mi- records: n. in business, particularly crofilmed and the document re- corporations, all the written business turned a short time later. Normally documents, especially about financial recorded is any document affecting dealings. Thus, shareholders and title to real property such as a deed, partners are entitled to access to the deed of trust, mortgage, recon- “records” of the business. veyance, release, declaration of homestead, easement, judgment, recording acts: n. the statutes of each lien, request for notice of default, state which established the keeping of foreclosure, satisfaction of judg- official records by County Recorders ment, decree of distribution of a or Recorders of Deeds. (See: record) dead person’s estates and sometimes long-term leases. These recoupment: n. the right of a defendant recordings provide a traceable chain in a lawsuit to demand deduction from of title to the property and give the the amount awarded to plaintiff (party public “constructive” notice of all in- bringing the suit) of a sum due the de- terests in the property. In most fendant from the plaintiff in the trans- states if there is more than one doc- action which was the subject of the ument affecting the property (such lawsuit. Example: Laura Landlord as two deeds, two mortgages, or a sues Tillie Tenant for nonpayment of judgment and mortgage), the first rent, Tenant is entitled to deduct a de- one recorded has “seniority” and posit made at the commencement of first claim on the property in what the lease, or an amount Landlord re- is called a “race to the courthouse.” ceived from re-renting the apartment 2) v. to write down or tape the min- before the lease expired. A recoupment utes, financial transactions, discus- is not the same as an “offset” (setoff), sions and other happenings at meet- which can be money owed from any ings. 3) n. (reck-urred) in trials, matter, including outside the lawsuit. hearings or other legal proceedings the total of the proceedings which recourse: n. the right to demand pay- are transcribed by a court reporter ment to the writer of a check or and included in the minutes of the bill of exchange. (See: bill of ex- clerk or judge, as well as all the doc- change, check) uments filed in the case. On an appeal, the record includes everything recover: v. to receive a money judgment that transpired before the appeal, in a lawsuit. upon which the written briefs (opposing legal arguments) and oral ar- recoverable: adj. referring to the gument are based. On appeal the amount of money to which a plaintiff court can consider only the record, (the party suing) is entitled in a law- unless there is a claim of “newly dis- suit. Thus, a judge might rule covered evidence.” (See: appeal, “$12,500 is recoverable for lost wages, deed, deed of trust, hearing, and $5,500 is recoverable for property

349 recovery

damage to plaintiffs vehicle.” (See: and going into real property which one damages, judgment) owns, particularly when a tenant has failed to pay rent or has abandoned recovery: n. the amount of money the property, or possession has been and any other right or property re- restored to the owner by judgment in ceived by a plaintiff in a lawsuit. an unlawful detainer lawsuit. Reentry may also be allowed when a buyer de- recusal: n. the act of a judge or pros- faults on payments on a contract of ecutor being removed or voluntarily sale or upon foreclosure of a mortgage stepping aside from a legal case due or deed of trust which secured a loan

to conflict of interest or other good on the property. The right of reentry is reason. (See: recuse) usually written into leases and sometimes in mortgages. (See: landlord

recuse: v. to refuse to be a judge (or for and tenant) a judge to agree to a request by one of the parties to step aside) in a law- referee: n. a person to whom a judge suit or appeal because of a conflict of refers a case to take testimony or ac- interest or other good reason (acquire other evidence such as financial quaintanceship with one of the par- records and report to the court on such ties, for example). It also applies to a findings. (See: master) judge or prosecutor being removed or voluntarily removing himself/her- referendum: n. the process by which self from a criminal case in which the repeal or approval of an existing he/she has a conflict of interest, such statute or state constitutional provi- as friendship or known enmity to the sion is voted upon. Many states pro- defendant. (See: recusal) vide for referenda (plural of referendum) which are placed on the ballot by

redeem: v. to buy back, as when an a required number of voter signatures owner who had mortgaged his/her on a petition filed. real property pays off the debt. The term also refers to paying the reformation: n. the correction or amount due and all charges after a change of an existing document by foreclosure (because of failure to court order upon petition of one of the make payments when due) has parties to the document. Reformation begun. A person who has pawned a will be ordered if there is proof that possession may redeem the item by the parties did not intend the lan- paying the loan and interest to the guage as written or there was an pawnbroker. (See: foreclosure, omission due to mistake or misunder- mortgage, redemption) standing. Quite often a party petitions for reformation when one or redemption: n. the act of redeeming, both parties realize the effect of the

buying back property by paying off a document as written is different from

loan, interest and any costs of fore- what was expected but it has already closure. (See: redeem) been recorded or filed with a governmental agency. Examples: a para- reentry: n. taking back possession graph is omitted from a trust which

350 rehearing

results in the transfer to the trust registry of deeds: n. the records of being a gift subject to gift tax, and land title documents kept by the which needs to be corrected to keep County Recorder or Recorder of the state taxing authority from de- Deeds. These are usually kept on mi- manding payment. The attorney crofilm reels of copies of the original writing the final draft of a limited documents, which can be found by partnership agreement writes in a tracing the names of owners in the calculation which would triple the Grantor-Grantee index. These are profit to a limited partner above the public information but may require

amount discussed by the parties, the assistance of an employee to lo- and when the limited partner refus- cate. (See: record) es to change the document, the general partner sues for reformation. regulations: n. rules and administrative codes issued by governmental refresh one’s memory: v. to use a agencies at all levels, municipal, coun-

document, exhibit or previous testi- ty, state and federal. Although they mony in order to help a witness re- are not laws, regulations have the call an event or prior statement force of law, since they are adopted when the witness has responded to under authority granted by statutes, a question that he/she could not re- and often include penalties for viola-

member. Tb attempt to “refresh” the tions. One problem is that regulations memory of a forgetful or reluctant are not generally included in volumes witness, the witness must have de- containing state statutes or federal nied remembering and the attorney laws but often must be obtained from must have the witness identify the the agency or located in volumes in document, exhibit or prior state- law libraries and not widely distrib- ment (lay a foundation showing it is uted. The regulation-making process genuine). (See: testimony) involves hearings, publication in governmental journals which supposedly register: n. in corporations, the give public notice, and adoption by the record of shareholders, and is- agency. The process is best known to suance and transfer of shares on industries and special interests con- the records of the corporation. cerned with the subject matter, but (See: corporation) only occasionally to the general public. Federal regulations are adopted in the registration statement: n. a de- manner designated in the Administra- tailed report to be filed with the Se- tive Procedure Act (A.P.A.) and states curities and Exchange Commission usually have similar procedures. by a corporation making an issuance of shares to be advertised rehearing: n. conducting a hearing and sold to the general public in again based on the motion of one of more than one state (in interstate the parties to a lawsuit, petition or commerce), which must be approved criminal prosecution, usually by the by the SEC before it will approve court or agency which originally heard the stock issuance. (See: blue sky the matter. Rehearings are usually laws, prospectus) requested due to newly discovered

351 rejection of claim

evidence, an unfortunate and possi- awaiting trial. Often called “O.R.” or bly unintended result of the original “R.O.R,” it is granted routinely in traf- order, a change of circumstance or a fic matters, minor and technical simple claim that the judge or crimes, and to people with no criminal

agency was just wrong. record who display stability. It is called to be “ORed” in courtroom rejection of claim: n. in probate law slang. (See: bail, O.R.) (administration of an estate of a person who died), a claim for a debt relevancy: n. (See: irrelevant, of the deceased denied (rejected) in relevant) total or in part by the executor or administrator of the estate. A claim relevant: adj. having some reasonable is rejected in writing filed with the connection with, and in regard to evi- court, and a judge shall approve or dence in trial, having some value or disapprove the rejection if the tendency to prove a matter of fact sig- claimant protests. If a claim is not nificant to the case. Commonly, an ob- acted upon it may be presumed to jection to testimony or physical evi- be approved in most states. There dence is that it is “irrelevant.” (See: ir- are other types of claims which may relevant, objection) be rejected by agencies or individuals, which can be protested in a reliance: n. acting upon another’s state- lawsuit if all administrative proce- ment of alleged fact, claim or promise.

dures are used first (under the rule In contracts, if someone takes some

called “exhaustion of administra- steps (“changes his position” is the tive remedies”). usual legal language) in reliance on the other’s statement, claim or

release: 1) v. to give up a right as re- promise then the person upon whom

leasing one from his/her obligation the actor relied is entitled to contend to perform under a contract, or to re- there is a contract he/she can enforce. linquish a right to an interest in real However, the reliance must be reason-

property. 2) v. to give freedom, as let- able. (See: reasonable reliance) ting out of prison. 3) n. the writing that grants a release. reliction: n. gradual change of water line on real property which gives the release on one’s own recog- owner more dry land. (See: accretion)

nizance: v. for a judge to allow a

criminal defendant pre-trial free- relief: n. generic term for all types of dom without posting bail, based on benefits which an order or judgment the past history of the defendant, of court can give a party to a lawsuit, roots in the community, regular em- including money award, injunction,

ployment, the recommendation of return of property, property title, al- the prosecutor, the type of crime, imony and dozens of other possibili- and in total the likelihood of making ties. (See: judgment) all appearances in court and the improbability that the defendant remainder: n. in real property law, the

will commit another crime while interest in real property that is left

352 remittitur

after another interest in the proper- remedy: n. the means to achieve jus-

ty ends, such as full title after a life tice in any matter in which legal estate (the right to use the property rights are involved. Remedies may until one dies). A remainder must be be ordered by the court, granted by created by a deed or will. Example: judgment after trial or hearing, by Patricia Parent deeds Happy Acres agreement (settlement) between the

Ranch to her sister Sally for life and person claiming harm and the per-

upon Sally’s death to Charla son he/she believes has caused it, Childers, Sally’s daughter, or Char- and by the automatic operation of

la’s children if she does not survive. law. Some remedies require that cer- Charla has a remainder, and her tain acts be performed or prohibited children have a “contingent remain- (originally called “equity”); others in-

der,” which they will receive if Char- volve payment of money to cover loss la dies before title passes. A remain- due to injury or breach of contract; der is distinguished from a “rever- and still others require a court’s dec- sion,” which gives title back to the laration of the rights of the parties grantor of the property (upon Sally’s and an order to honor them. An “ex- death, in the example) or to the traordinary remedy” is a means em- grantor’s descendants; a reversion ployed by a judge to meet particular need not be spelled out in a deed or problems, such as appointment of a will, but can occur automatically by referee, master or receiver to investi- “operation of law.” (See: contingent gate, report or take charge of proper- remainder, deed, reversion, ty. A “provisional remedy” is a tem- title, vested remainder) porary solution to hold matters in status quo pending a final decision All are equal before the law or an attempt to see if the remedy and are entitled without any will work. (See: equity, judgment, discrimination to equal pro- provisional remedy, settlement) tection of the law. —Article 7, International remise: v. to give up something, some- Declaration ofHuman Rights times used in quitclaim deeds. (See: quitclaim deed) remainderman: n. the person who will receive a remainder in real remittitur: n. 1) a judge’s order re- property. (See: remainder) ducing a judgment awarded by a jury when the award exceeds the amount remand: v. to send back. An appeals asked for by the plaintiff (person court may remand a case to the trial who brought the suit). 2) an appeal’s court for further action if it reverses transmittal of a case back to the trial the judgment of the lower court, or court so that the case can be retried, after a preliminary hearing a judge or an order entered consistent with may remand into custody a person the appeals court’s decision (such accused of a crime if the judge finds as dismissing the plaintiff’s case or

that a there is reason to hold the ac- awarding costs to the winning party cused for trial. (See: appeal, on appeal). (See: remand) preliminary hearing)

353 remote

remote: adj., adv. extremely far off or on an oral agreement for either a slight. Evidence may be so remote short period or on a month-to-month from the issues in a trial that it will basis in which the hiring may be ter- not be allowed because it is “imma- minated on a month’s notice. (See: terial.” An act which started the lease, month-to-month) events which led to an accident may be too remote to be a cause, as dis- rental value: n. the amount which tinguished from the “proximate would be paid for rental of similar cause.” Example: While Doug Dri- property in the same condition in the ver is passing a comer a friend calls same area. Evidence of rental value out to him causing him to look away, becomes important in lawsuits in and then Doug looks back and in the which loss of use of real property or middle of the block is hit by a truck equipment is an issue, and the rental backing out of a driveway. The mo- value is the “measure of damages.” mentary inattention is not a cause In divorce cases in which one of the of the injury, and is called a “remote spouses stays in the family resi- cause.” (See: immaterial, proxi- dence, the use of the property has mate cause) rental value which is considered in balancing the income of the parties, removal: n. 1) the change of a legal determining division of property or case from one court to another, as setting the amount of alimony to be from a state court to federal court paid. (See: rent) or vice versa based on a motion by

one of the parties stating that the renunciation: n. 1) giving up a right, other jurisdiction is more appro- such as a right of inheritance, a gift priate for the case. 2) taking away under a will or abandoning the right the position of a public official for to collect a debt on a note. 2) in crimi- cause, such as dishonesty, incom- nal law, abandoning participation in a petence, conviction of a crime or crime before it takes place, or an at- successful impeachment. tempt to stop other participants from going ahead with the crime. A defen- renewal: n. keeping an existing dant may use renunciation as evi- arrangement in force for an addi- dence of his/her innocence. Once the tional period of time, such as a lease, crime is underway, any claimed re- a promissory note, insurance policy nunciation is factually too late. or any other contract. Renewal usually requires a writing or some ac- reorganization: n. the implementation tion which evidences the new term. of a business plan to restructure a corporation, which may include transfers rent: 1) v. to hire an object or real of stock between shareholders of two property for a period of time (or for corporations in a merger. In bank- an open-ended term) for specified ruptcy, a corporation in deep financial payments. 2) n. the amount paid by trouble may be given time to reorga- the renter and received by the nize while being protected from credi- owner. Rent may be specified in a tors by the bankruptcy court. The the- written lease, but also may be based ory is that if the business is able to get

354 representative

on its feet the creditors will eventu- There are also reports of specialized ally collect. (See: bankruptcy, cor- courts and particular subject matters poration, merger) such as taxes, bankruptcy and federal procedure. Thus there are Massachu- repair: v. to restore to former condi- setts Reports, Georgia Reports, tion or in some contracts to opera- Kansas Reports, California Supreme tional soundness. Contracts should Court Reports, California Appellate spell out the repairs to be made and Reports and similar series for every what the final condition will be. Ex- state. Regional reporters include ample: roof repairs should be more Northeast, Atlantic, Southeast, South- than a half-baked patching to tem- ern, Northwest, Pacific and so forth, porarily halt leaking. and combine several states’ decisions. For Supreme Court cases there are repeal: 1) v. to annul an existing law, three major reporters, including U.S. by passage of a repealing statute, or Reports, Supreme Court Reporter, by public vote on a referendum. Re- and Lawyer’s Edition Supreme Court peal of constitutional provisions re- Reports. These reports are available quires am amendment, as with the in almost all law libraries. repeal of prohibition in which the

21st Amendment repealed the 18th repossess: v. to take back property Amendment. 2) n. the act of an- through judicial processes, foreclo- nulling a statute. sure, or self-help upon default in required payments.

replevin: n. under common law, the

right to bring a lawsuit for recovery represent: v. 1) to act as the agent for of goods improperly taken by anoth- another. 2) to act as a client’s attorney.

er. In almost all states the term re- 3) to state something as a fact, such as plevin in no longer used, since the “I tell you this horse is only four years states have adopted “one cause of old.” 4) to allege a fact in court, as “I

action” for all civil wrongs. represent to the court that we will present six witnesses,” “We represent that

reply brief: n. the written legal argu- this is the final contract between the ment of the respondent (trial court parties.” (See: representation) winner) in answer to the “opening brief’ of an appellant (a trial court representation: n. 1) the act of being loser who has appealed). (See: ap- another’s agent. 2) acting as an attor- peal, appellee, respondent) ney for a client. 3) a statement of alleged fact either in negotiations or in

reports: n. the published decisions of court. (See: represent) appeals courts in all states and federal courts, which are found in fed- representative: 1) n. an agent. 2) n. in eral, state and regional series probate law, a generic term for an ex- (called “reporters”) which are con- ecutor or administrator of the estate of stantly updated with pamphlets a person who has died, generally re- called “advance sheets” which are ferred to as the “personal representa- soon followed by bound volumes. tive.” 3) adj. typical, as “these pictures

355 :

reprieve

are representative of the conditions accepted by general public belief, at the job site.” whether or not correct.

reprieve: n. a temporary delay in im- request: 1) v. to ask or demand a judge position of the death penalty (a pun- to act (such as issuing a writ) or de- ishment which cannot be reduced af- manding something from the other terwards) by the executive order of party (such as production of docu- the Governor of the state. Reasons ments), usually by a party to a lawsuit for reprieves include the possibility (usually the attorney). 2) n. the act of of newly discovered evidence (anoth- asking or demanding. er’s involvement, evidence of mental

impairment), awaiting the result of requirements contract: n. a contract some last-minute appeal, or concern between a supplier (or manufacturer) of the Governor that there may have and a buyer, in which the supplier been some error in the record which agrees to sell all the particular prod- he/she should examine. On occasion ucts that the buyer needs, and the a reprieve has saved a man found to buyer agrees to purchase the goods ex- be innocent. Upon the expiration of clusively from the supplier. A require- the reprieve the date for execution ments contract differs from an “an can be reset and the death penalty output contract,” in which the buyer imposed. A reprieve is only a delay agrees to buy all the supplier pro- and is not a reduction of sentence, duces. (See: output contract) commutation of sentence or pardon.

res: (rayz) n. Latin, “thing.” In law lingo repudiation: n. denial of the exis- res is used in conjunction with other tence of a contract and/or refusal to Latin words as “thing that.” perform a contract obligation. Repu-

diation is an anticipatory breach of res adjudicata n. a thing (legal mat- a contract. (See: anticipatory ter) already determined by a court, breach, contract) from Latin for “the thing has been judged.” More properly res judicata. reputation: n. a person’s good name, (See: res judicata) honor or what the community thinks of him/her. The quality and value of resale: n. selling again, particularly at one’s reputation is a key issue in retail. 2) adj. referring to sales to the suits for defamation (libel and slan- general public, as distinguished from der) since the damage to one’s repu- wholesale, sales to retailers. In many tation by published untruths may states a “resale license” or “resale determine the amount of judgment number” is required so that the state against the defamer. Sometimes a can monitor the collection of sales tax person’s favorable reputation is so on retail sales. great that most defamation cannot do him/her much harm. (See: rescind: v. to cancel a contract, putting defamation, libel, slander) the parties back to the position as if the contract had not existed. Both par- reputed: adj. referring to what is ties rescind a contract by mutual

356 residuary bequest

agreement, since a unilateral can- or a portion of the real property cellation of a contract is a “breach” when transferring (conveying) a of the contract and could result in a parcel of real estate to another. lawsuit by the non-cancelling party. (See: reservation) (See: rescission) reserve fund: n. a fund of money cre- rescission: n. the cancellation of a ated to take care of maintenance, re- contract by mutual agreement of pairs or unexpected expenses of a the parties. (See: rescind) business or a multi-unit housing development (often condominiums or a rescue doctrine: n. the rule of law housing cooperative) operated by a

that if a rescuer of a person hurt or homeowners association or other gov- put in peril due to the negligence or erning body. Most states require that intentional wrongdoing of another homeowners associations maintain (the tortfeasor) is injured in the such a fund. process of the rescue, the original wrongdoer is responsible in dam- res gestae-, (rayz jest-tie) n. from Latin ages for the rescuer’s injury. Exam- for “things done,” it means all circum- ple: Sydney Sparetire speeds on a stances surrounding and connected mountain highway, and skids in with a happening. Thus, the res gestae front of Victor Victim, running Vic- of a crime includes the immediate tim’s car off the bank, trapping Vic- area and all occurrences and state- tim in the vehicle. Raymond Right- ments immediately after the crime. guy stops, ties a rope to the grill of Statements made within the res ges- his car, slides down and extricates tae of a crime or accident may be ad- Victim, but on the way up slips and mitted in court even though they are breaks his arm, and then finds the “hearsay” on the basis that sponta- grill is badly bent. The negligent neous statements in those circum-

Sparetire is liable to Rightguy for stances are reliable. his broken arm (including medical expenses, loss of wages and general residence: n. 1) the place where one damages for pain and suffering) as makes his/her home. However, a per- well as the property damage to the son may have his/her state of “domi-

car grill. (See: damages) cile” elsewhere for tax or other purposes, especially if the residence is for reservation: n. a provision in a convenience or not of long standing. 2) deed which keeps (reserves) to the in corporation law, the state of incor- grantor some right or portion of poration. (See: resident) the property. The language might read: “Sarah Sims reserves to her- resident: n. a person who lives in a par-

self an easement of access to lots 6, ticular place. However, the term is 7 and 8,” or “reserves mineral vague depending on the permanence rights,” or “except she reserves lot of the occupation. (See: residence) 5.” (See: reserve) residuary bequest: n. in a will, the

reserve: v. to keep for oneself a right gift of whatever is left (the residue)

357 residue

after specific gifts are given. It is resisting arrest: n. the crime of using also called a residuary legacy. physical force (no matter how slight in

(See: residue) the eyes of most law enforcement officers) to prevent arrest, handcuffing

residue: n. in a will, the assets of and/or taking the accused to jail. It is the estate of a person who has died also called “resisting an officer” (but with a will (died testate) which are that can include interfering with a left after all specific gifts have peace officer’s attempt to keep the been made. Typical language: “I peace) and is sometimes referred to leave the rest, residue and remain- merely as “resisting.” der [or just residue] of my estate to

my grandchildren.” If the residue res judicata: (rayz judy-cot-ah) n. is not given to any beneficiary it Latin for “the thing has been judged,” will be distributed pursuant to the meaning the issue before the court laws of descent and distribution. has already been decided by another (See: descent and distribution, court, between the same parties. residuary bequest, will) Therefore, the court will dismiss the case before it as being useless. Exam- res ipsa loquitur-, (rayz ip-sah loh- ple: an Ohio court determines that quit-her) n. Latin for “the thing John is the father of Betty’s child. speaks for itself,” a doctrine of law John cannot raise the issue again in that one is presumed to be negligent another state. Sometimes called res if he/she/it had exclusive control of adjudicata. (See: res adjudicata ) whatever caused the injury even though there is no specific evidence resolution: n. a determination of policy

of an act of negligence, and without of a corporation by the vote of its negligence the accident would not board of directors. Legislative bodies have happened. Examples: a) a load also pass resolutions, but they are of bricks on the roof of a building often statements of policy, belief or ap- being constructed by Highrise Con- preciation, and not always enactment struction Co. falls and injures Paul of statutes or ordinances.

Pedestrian below, and Highrise is liable for Pedestrian’s injury even respondeat superior-, (rehs-pond- though no one saw the load fall, b) dee-at superior) n. Latin for “let the While under anesthetic, Isabel Pa- master answer,” a key doctrine in the tient’s nerve in her arm is damaged law of agency, which provides that a although it was not part of the sur- principal (employer) is responsible gical procedure, and she is unaware for the actions of his/her/its agent of which of a dozen medical people (employee) in the “course of employ- in the room caused the damage. ment.” Thus, an agent who signs an Under res ipsa loquitur all those agreement to purchase goods for his connected with the operation are li- employer in the name of the employ- able for negligence. Lawyers often er can create a binding contract be- shorten the doctrine to “res ips,” and tween the seller and the employer. find it a handy shorthand for a com- Another example: if a delivery truck plex doctrine. (See: negligence) driver negligently hits a child in the

358 restraint on alienation

street, the company for which the in criminal cases, one of the penalties driver works will be liable for the imposed is requiring return of stolen injuries. (See: agency, agent, goods to the victim or payment to the negligence, principal) victim for harm caused. Restitution may be a condition of granting a de- respondent: n. 1) the party who is re- fendant probation or giving him/her a quired to answer a petition for a shorter sentence than normal. court order or writ requiring the respondent to take some action, halt restraining order: n. a temporary an activity or obey a court’s direc- order of a court to keep conditions as tion. In such matters the moving they are (like not taking a child out party (the one filing the petition) is of the county or not selling marital usually called the “petitioner.” property) until there can be a hear- Thus, the respondent is equivalent ing in which both parties are pre- to a defendant in a lawsuit, but the sent. More properly it is called a potential result is a court order and temporary restraining order (short- not money damages. 2) on an ap- ened to TRO). (See: injunction, peal, the party who must respond to permanent injunction) an appeal by the losing party in the trial court (called “appellant”) in the restraint on alienation: n. an attempt appeals court. in a deed or will to prevent the sale or other transfer of real property either

responsible: adj. 1) legally liable or forever or for an extremely long period accountable. 2) having the ability to of time. Such a restraint on the free- pay or perform. dom to transfer property is generally unlawful and therefore void or void- Restatement of the Law: n. a series able (can be made void if am owner ob- of detailed statements of the basic jects), since a present owner should law in the United States on a vari- not be able to tie the hands of future ety of subjects written and updated generations to deal with their proper-

by well-known legal scholars under ty. This ban on a restraint on alien- the auspices of the American Law ation (transfer) is called “the rule Institute since the 1930s. While not against perpetuities.” Examples: Oliv- having the force of statutes or of deer Oldtimer sells his ranch to his son cided precedents, the Restatement with the condition that title may

(as lawyers generally call it) has the never be transferred to anyone out- prestige of the scholars who have side of the family. Martha Oldtimer in studied the legal questions. Topics her will gives her home to her daugh- covered include agency, contracts, ter Jacqueline on condition that property, torts and trusts. “Jacqueline’s descendants must never sell the place.” However, one is gener-

restitution: n. 1) returning to the ally allowed to limit transfer to a max- proper owner property or the mone- imum period calculated by “lives in tary value of loss. Sometimes resti- being, plus 21 years.” Restraints on tution is made part of a judgment in alienation (so-called restrictive negligence and/or contracts cases. 2) covenants) based on race (“only

359 restraint of trade

Caucasians may hold title”) were feet high, no tennis court or swimming declared unconstitutional in 1949. pool may be constructed within 30 feet (See: convey, deed, restrictive of the property line, and no structure covenant, rule against perpetu- can be built within 20 feet of the ities, use) frontage street. Commonly these covenants are written so that they can restraint of trade: n. in antitrust be enforced by the grantor and other law, any activity (including agree- owners in the subdivision, so that fu- ments among competitors or compa- ture owners will be bound by the nies doing business with each other) covenant (called “covenant running

which tends to limit trade, sales and with the land” if enforceable against transportation in interstate com- future owners). All restrictive merce or has a substantial impact covenants based on race (“the proper- on interstate commerce. Most of ty may be occupied only by Cau- these actions are illegal under the casians”) were declared unconstitu-

various antitrust statutes. Some tional in 1949 and if they still show on state laws also outlaw local re- deeds are null and void. (See: straints on competitive business ac- covenant that runs with the land) tivity. (See: antitrust laws, mo-

nopoly, trust) restrictive endorsement: n. an endorsement signed on the back of a restriction: n. any limitation on ac- check, note or bill of exchange which tivity, by statute, regulation or con- restricts to whom the paper may be tract provision. In multi-unit real transferred. Example: “for transfer

estate developments, condominium only to Frank Lowry, [signed] J. and cooperative housing projects Ripps.” Also spelled “indorsement.” managed by homeowners’ associa- (See: endorsement) tions or similar organizations, such organizations are usually required result: n. common lawyer lingo for out- by state law to impose restrictions come of a lawsuit. on use. Thus, the restrictions are part of the “covenants, conditions resulting trust: n. a trust implied by and restrictions” intended to en- law (as determined by a court) that a hance the use of common facilities person who holds title or possession and property which are recorded was intended by agreement (implied and incorporated into the title of by the circumstances) with the in- each owner. (See: covenants con- tended owner to hold the property for ditions and restrictions) the intended owner. Thus, the holder is considered a trustee of a resulting restrictive covenant: n. 1) an agree- trust for the proper owner as benefi- ment included in a deed to real ciary. Although a legal fiction, the re- property that the buyer (grantee) sulting trust forces the holder to honor will be limited as to the future use of the intention and prevents unjust en- the property. Example: no fence richment. Example: Mahalia leaves may be built on the property except $100,000 with her friend, Albert, of dark wood and not more than six while she is on a trip to Europe,

360 retroactive

asking him “to buy the old Barsallo legal proceeding, or withdraw a place if it comes on the market.” Al- promise or offer of contract. 2) in bert buys the property, but has title defamation, particularly libel, the cor- put in his own name, which the rection of any untruth published in a court will find is held in a resulting newspaper or magazine or broadcast trust for Mahalia. A resulting trust on radio or television, usually upon differs from a “constructive trust,” the demand of the person about whom which comes about when someone the damaging false statement was by accident, misunderstanding or made. A clear and complete retraction dishonesty comes into possession of will usually end the right of the de- property belonging to another. (See: famed party to go forward with a law- constructive trust, trust) suit for damages for libel. In most states a retraction must be demanded retainer: n. the advance payment to before the suit is filed in order to cure an attorney for services to be per- the problem without litigation. (See: formed, intended to insure that the defamation, libel) lawyer will represent the client and that the lawyer will be paid at least retrial: n. a new trial granted upon the that amount. Commonly in matters motion of the losing party, based on which will involve extensive work obvious error, bias or newly discovered there will be a retainer agreement evidence, or after mistrial or reversed signed by the attorney and client. by an appeals court. (See: motion for Further payments for services can new trial) be expected as the time spent on the legal matter increases. Most retroactive: adj. referring to a court’s lawyers do not want to be owed decision or a statute enacted by a money and wish to be paid either in legislative body which would result advance or promptly as the work in application to past transactions is performed. One reason for the and legal actions. In criminal law, retainer, and the problem a lawyer statutes which would increase penal- faces, is that he/she does not want to ties or make criminal activities abandon a client, but at the same which had been previously legal are time does not want to be stuck with prohibited by the constitutional ban

extensive unpaid fees. (See: attor- on ex post facto laws (Article I, Sec- ney’s fees) tion 9). Most court decisions which change the elements necessary to retire: v. 1) to stop working at one’s prove a crime or the introduction of occupation. 2) to pay off a promis- evidence such as confessions are sory note and thus “retire” the usually made non-retroactive to pre- loan. 3) for a jury to go into the jury vent a flood of petitions of people room to decide on a verdict after all convicted under prior rules. Nor can evi-dence, argument and jury in- statutes or court decisions take away structions have been completed. “vested” property rights or change contract rights. However, some deci- retraction: n. 1) to withdraw any sions are so fundamental to justice legal document in a lawsuit or other they may have a retroactive effect,

361 return of service

depending on the balance between minor or did not contribute to the stability of the law and the public judgment at the trial. (See: reversal) good. Retroactive is also called “ret-

rospective.” (See: ex post facto) reversion: n. in real property, the return to the grantor or his/her heirs of return of service: n. written confir- real property after all interests in the mation under oath by a process serv- property given to others have termi- er declaring that there was service of nated. Examples: a) George Gener- legal documents (such as a sum- ous deeded property to the local hos-

mons and complaint). (See: service, pital district for “use for health facil-

service of process) ities only,” and the hospital is even-

tually tom down and the property is revenue ruling: n. a published opin- now vacant. The property reverts to ion of the Internal Revenue Service George’s descendants, b) George wills stating what it would rule on future the property to his sister’s children tax questions based on the same cir- only, who later died without children. cumstances. These rulings are of When the last grandchild dies the general use to taxpayers, tax pre- property reverts to George’s descen- parers, accountants and attorneys dants. Reversion is also called “re- in anticipating tax treatment by the verter.” (See: reverter) IRS. They have the force of law until otherwise determined by the federal reverter: n. synonymous with rever- tax court or a new revenue ruling. sion. (See: reversion) (See: income tax) review: n. the judicial consideration of a reversal: n. the decision of a court of lower court judgment by an appellate appeal ruling that the judgment of court, determining if there were legal a lower court was incorrect and is errors sufficient to require reversal. therefore reversed. The result is The process requires notice of appeal, that the lower court which tried obtaining a transcript of the trial or

the case is instructed to dismiss hearing at the trial level, obtaining all the original action, retry the case the pleadings and other documents or change its judgment. Examples: filed in the original triad, preparation a court which denied a petition for of briefs citing precedents and arguing writ of mandate is ordered to issue that there was reversible error. Then the writ. A lower court which gave the respondent (winner at the trial

judgment with no evidence of dam- court) may file a responsive brief, and ages is ordered to dismiss. the appellant (the one appealing the

decision) has the chance to file a brief reversible error: n. a legal mistake in response to the respondent. The

at the trial court level which is so next step is oral argument (if allowed) significant (resulted in an improp- before the appellate court. Appeals on er judgment) that the judgment procedural issues normally do not in- must be reversed by the appellate clude oral argument. If the appellate court. A reversible error is distin- court denies the appeal a rehearing

guished from an error which is may be requested but is seldom grant-

362 rights

ed. (See: appeal, appellate court, tion, but is a way to get the amend-

reversal, reversible error) ment passed if the basic bill has sup-

port. 3) passenger. revival: n. 1) requesting a court to re-

instate the force of an old judgment. right: 1) n. an entitlement to some- 2) reinstating a contract or debt by a thing, whether to concepts like justice new agreement after the right to de- and due process or to ownership of mand performance or collect has ex- property or some interest in property, pired under the statute of limita- real or personal. These rights include: tions (the time to sue). various freedoms; protection against

interference with enjoyment of life revocation: n. 1) mutual cancellation and property; civil rights enjoyed by

of a contract by the parties to it. 2) citizens such as voting and access to

withdrawing an offer before it is ac- the courts; natural rights accepted by cepted (“I revoke my offer”). 3) can- civilized societies; human rights to

celling a document before it has protect people throughout the world come into legal effect or been acted from terror, torture, barbaric practices upon, as revoking a will. 4) to recall and deprivation of civil rights and a power or authority previously profit from their labor; and such U S. given, as cancelling a power of at- constitutional guarantees as the right

torney or cancelling a driver’s li- to freedoms of speech, press, religion, cense due to traffic offenses. (See: assembly and petition. 2) adj. just,

contract, will) fair, correct. (See: civil rights, marital rights, right privacy) revoke: v. to annul or cancel an act,

particularly a statement, docu- rights: n. 1) plural of right, which is

ment or promise, as if it no longer the collection of entitlements which existed. Thus, a person can revoke a person may have and which are a will or revoke an offer to enter protected by the government and the into a contract, and a government courts or under an agreement (con- agency can revoke a license. (See: tract). 2) slang for the information revocation) which must be given by law enforcement officers to a person who is RICO: n. (See: Racketeer Influ- about to be arrested, is a prime sus- enced Corrupt Organiza- pect in a crime, or is officially action statute) cused of a crime. These “rights” are short for “Miranda rights,” which the

rider: n. 1) an attachment to a docu- Supreme Court, in Miranda v. Ari-

ment which adds to or amends it. zona (1966), required be read to sus- Typical is an added provision to an pects, including the rights to remain insurance policy, such as additional silent and to have an attorney (and if coverage or temporary insurance to the suspect cannot afford a lawyer, cover a public event. 2) in legisla- one will be provided), and warning tures, an amendment tacked on to a that anything the suspect says can bill which has little or no relevance be used against him/her in court. to the main purpose of the legisla- Failure to recite these rights means

363 right of way

that a confession may not be used as events. Invasion of the right to privacy evidence. (See: Miranda warning) can be the basis for a lawsuit for damages against the person or entity (such as a magazine or television show) vio- Defiance of the law is the lating the right. However, the right to surest road to tyranny. privacy does not extend to prohibiting —John F. Kennedy someone from taking another person’s picture on the street. (See: invasion right of way: n. 1) a pathway or road of privacy, privacy) with a specific description (e.g.

“right to access and egress 20 feet riot: n. 1) technically a turbulent and wide along the northern line of Lot 7 violent disturbance of peace by three of the Cobb subdivision in page 75 of or more people acting together. 2) an maps”). 2) the right to cross proper- assemblage of people who are out of ty to go to and from another parcel. control, causing injury or endangering The right of way may be a specific the physical safety of others and/or grant of land or an “easement,” themselves, causing or threatening which is a right to pass across an- damage to property and often violat- other’s land. The mere right to cross ing various laws both individually and

without a specific description is a as a group. The common thread is that “floating” easement. Some rights of the people in a riot have the power way are for limited use such as re- through violence to break the public pair of electric lines or for deliveries peace and safety, requiring police ac-

to the back door of a store. Railroads tion. Often a riot is declared after the own title to a right of way upon crowd has been informed by police of- which to build permanent tracks. 3) ficers that the people constitute an in traffic ordinances, a driver is en- “unlawful assembly” and are ordered titled to the “right of way” to pro- to “disperse” immediately (historically ceed first ahead of other vehicles or in England called “reading the riot pedestrians, depending on certain act”). If the crowd does not disperse, rules of the road, such as the first to its members become subject to arrest reach an intersection. Failure to for the crime of rioting, disturbing the yield the right of way to the vehicle peace, resisting arrest or other sepa- or person entitled to it can result in rate crimes ranging from assault to a citation and fine, to say nothing of unlawful possession of firearms. an accident. It can also be evidence of negligence in a lawsuit for in- riparian: adj. referring to the banks juries suffered in an accident. (See: of a river or stream. (See: ripar- access, easement, egress, float- ian rights) ing easement)

riparian rights: n. the right of the right to privacy: n. the possible right owner of the land forming the bank of to be let alone, in absence of some a river or stream to use water from “reasonable” public interest in a per- the waterway on the land, such as for son’s activities, like those of celebri- drinking water or irrigation. State ties or participants in newsworthy laws vary as to the extent of the

364 robbery

rights, but controversy exists as to the driver has been pulled over. Es-

the extent of riparian rights for di- sentially it is a test of equilibrium version of water to sell to others, for (balance), reflexes and mental acuity, industrial purposes, to mine the consisting of standing on one foot and land under the water for gravel or then the other, walking a straight line, minerals or for docks and marinas. touching one’s nose with the forefinger Consistent in these questions is that of each hand, saying the alphabet a riparian owner may not act to backwards or counting by twos. Some deny riparian rights to the owner of tests include writing. Although some- downstream properties along the times a judgment call by the officers, a waterway, meaning the water may suspect’s failure of the test is often ob- not be dammed and channelled vious and may be supplemented by re- away from its natural course. ports of slurred speech, bloodshot eyes, the smell of alcohol and answers ripe: adj. in constitutional law, refer- to simple questions such as “How ring to a law case appealed from a much did you have to drink?” or “Do

state or federal court which is ready you know where you are?” If the offi-

for consideration by the Supreme cer decides the driver is drunk, he/she

Court, meaning that all other av- will inform the driver he/she is being enues for determining the case have arrested for driving under the influ- been exhausted, there is a real con- ence of alcohol, read the Miranda troversy and the law needs to be set- rights, arrest the driver and transport

tled on one or more issues raised by him/her to a nearby police facility,

the case. where the suspect is asked to submit to an alcohol blood test (breathalizer, risk: n. chances of danger or loss, par- blood or urine) which is more defini- ticularly of property covered by an tive than the subjective roadside test. insurance policy or property being If the driver refuses the blood alcohol used or transported by another. In- test, the officer may testify in court on surance companies assume the risk the roadside test results as proof of

of loss and calculate their premiums drunkenness if there is a trial of the by the value and the risk based on accused. In cases in which the inabili-

statistically determined chances. A ty to drive effectively is due to use of trucking company assumes the risk narcotics or a combination of drugs of loss while carrying goods. (See: and alcohol, the roadside test may assumption of risk, risk of loss) provide crucial evidence of physical symptoms and mental confusion indi- risk of loss: n. the responsibility a cating inability to drive safely even

carrier, borrower or user of property though the alcohol level is below the or goods assumes or an insurance legally drunk level. (See: driving company agrees to cover if there is under the influence, driving damage or loss. (See: risk) while intoxicated, DUI, DWI, Mi- randa warning) roadside test: n. a preliminary test

law enforcement officers use on a robbery: n. 1) the direct taking of suspected drunk driver at the spot property (including money) from a

365 rogatory letters

person (victim) through force, creator for all profits on the basis of threat or intimidation. Robbery is a copyright or patent infringement, felony (crime punishable by a term which usually is far more than a roy- in state or federal prison). “Armed alty. However, a creator does not robbery” involves the use of a gun have to license his/her creation to or other weapon which can do bod- anyone. (See: copyright, infringe- ily harm, such as a knife or club, ment, patent) and under most state laws carries a

stiffer penalty (longer possible rule: 1) v. to decide a legal question, by term) than robbery by merely tak- a court, as in: “I rule that the plaining. 2) a term improperly used to tiff is entitled to the goods and dam- describe thefts, including burglary ages for delay in the sum of $10,000.”

(breaking and entering) and 2) v. to make a judicial command, shoplifting (secret theft from the such as: “I find that George Gonzo is stock of a store), expressed: “We’ve the parent of Larry Gonzo and rule been robbed.” (See: theft) that he must pay support of $150 per month to the mother” for the support rogatory letters: n. a written re- of Larry. 3) n. any regulation govern- quest by a judge to a judge in an- ing conduct. 4) n. one of the regula- other state asking that a witness in tions of covering legal practice before the other state have his/her testimo- a particular group of courts, collec- ny taken in the other state’s court tively called “rules of court” adopted for use in the local court case. (See: by local judges. 5) n. a legal principle deposition, testimony, witness) set by the decision in an appellate case, as “the rule in the case of Mur- royalty: n. a percentage of gross or ray v. Crampton is....” (See: regula- net profit or fixed a amount per tions, rules of court ) sale to which a creator of a work is

entitled which is determined by rule against perpetuities: n. the contract between the creator and legal prohibition against tying up

the manufacturer, publisher, agent property so that it cannot be trans- and/or distributor. Inventors, au- ferred or vest title in another forever, thors, movie makers, scriptwrit- for several future generations, or for a ers, music composers, musicians period of centuries. The maximum pe- and other creators contract with riod in which real property title may the manufacturers, publishers, be held without allowing title to vest movie production companies and in another is “lives in being plus 21 distributors, as well as producers years.” Therefore, a provision in a and distributors for a license to deed or will which reads, “Title shall manufacture and/or sell the prod- be held by David Smith and, upon his uct, who pay a royalty to the cre- death, title may only be held by his ator based on a percentage of descendants until the year 2200, funds received. Should someone when it shall vest in the Trinity Epis- use another person’s creation ei- copal Church,” is invalid, but a provi- ther purposely or by mistake, the sion that “the property will be held by

user could be found liable to the my son George for his life, and there-

366 running at large

after by his son, Thomas, and for 20 such animals. 2) political campaign- years by his future children, before ing by a candidate running for an of- it may be conveyed (transferred) [or fice from no specific district, but from title shall then vest in the church]” an entire city, county or state. is acceptable under the rule. (See: restraint on alienation) rules of court: n. a set of procedural regulations adopted by courts which are mandatory upon parties and their lawyers on matters within the jurisdiction of those courts. Most states have statewide rules of court. Federal court rules are adopted by the district courts based on the Federal Rules of Pro- cedure, and county, district and municipal court judges adopt what are called “local rules” of court.

Local rules encompass the time allowed to file papers, the format of documents (including the paper colors of appeal court briefs), the number of copies to be filed, the procedure to file motions, the basis for calculating alimony and child support, fees for filing various documents and numerous other mun- dane but vital matters. These rules are violated or ignored at the peril of the client and his/her/its counsel. (See: procedure, rule) ruling: n. court decision on a case or any legal question. running with the land: adj. permanently part of the title (ownership) to real property. (See: covenant running with the land)

running at large: adj. 1) referring to cattle or other animals which have escaped from an enclosure and are wandering. The owner will be liable for damage caused by

367 said: adj. a reference back to a thing a newly found expert in his list of wit- that was previously mentioned or nesses, but the date for adding to the identified, popular in legal docu- list has passed. The judge permits the ments, as “the said driver drove said added witness, but allows the opposi- automobile in a negligent manner.” tion to take the expert’s deposition, and imposes a sanction (fine) on sale: n. transfer of something (and Campbell to pay both sides’ costs of title to it) in return for money (or the deposition and $500 attorney’s

other thing of value) on terms fees to the opposing counsel, c) Defen- agreed upon between buyer and sell- dant Danny Dipper says “you son-of-a- er. The price paid may be based on a bitch” in court when the judge fines posted cost, established by negotia- him $100 for jay-walking. The judge tion between seller and buyer, or by imposes a sanction of $200 and a day auction with potential buyers bid- in jail for Danny’s contempt of court.

ding until the highest bid is accepted 2) v. to impose a fine or penalty as part by the seller or his agent (auction- of a judge’s duty to maintain both

eer). (See: contract, forced sale, order and fairness in court. 3) v. in in- sheriff’s sale) ternational law, to impose economic constraints on trade against a country salvage: 1) v. to save goods. 2) n. pay- that violates international law or is

ment to a person or group which guilty of human rights violations. 4) v.

saves cargo from a shipwreck. to allow or approve. This meaning is ironically in contrast to the other defi- sanction: n. 1) a financial penalty im- nitions of “sanction.” (See: contempt posed by a judge on a party or attor- of court) ney for violation of a court rule, for receiving a special waiver of a rule, satisfaction: n. receiving payment or or as a fine for contempt of court. If performance of what is due. (See: ac- a fine, the sanction may be paid to cord and satisfaction, contract, the court or to the opposing party to satisfaction of judgment) compensate the other side for inconvenience or added legal work due to satisfaction of judgment: n. a docu- the rule violation. Examples: a) ment signed by a judgment creditor under local rules Bagatelle’s attor- (the party owed the money judgment) ney is required to file a brief in re- stating that the full amount due on sponse to the opposition’s motion the judgment has been paid. The five days before the hearing, but is judgment creditor (the party who two days late. The judge accepts the paid the judgment) is entitled to de- documents, but imposes a $200 mand that the judgment creditor (the

sanction on Bagatelle’s attorney for party to whom the money judgment is the failure to file them on time, b) owed) sign the satisfaction of judg-

Campbell’s lawyer wants to include ment, file it with the court clerk,

368 scope of employment

acknowledge it before a notary pub- banks. The result was use of many lic, and record the document with savings and loans for speculative and the County Recorder (or Recorder of dishonest investments, lack of con- Deeds) if there is an abstract of trols and tremendous losses to thou- judgment (a document showing the sands of depositors. However, a prop- amount of the judgment which is a erly managed, conservative savings lien on any real property belonging and loan which concentrates on real to the defendant) on record. (See: estate loans guaranteed by the FHA abstract of judgment) (Federal Housing Administration) and/or sold in the secondary mortgage satisfaction of mortgage: n. a docu- market can be safe, profitable and ment signed by a lender acknowl- provide a valuable channel for savings edging that a mortgage has been into the home finance market. fully paid. It must be recorded with

the County Recorder (or Recorder of scienter : n. Latin for “having knowl-

Deeds) to clear the title to the real edge.” In criminal law, it refers to property owned by the person who knowledge by a defendant that his/her paid off the debt. (See: mortgage) acts were illegal or his/her statements were lies and thus fraudulent. save harmless: v. 1) also called hold harmless, to indemnify (protect) an- The Constitution does not pro- other from harm or cost. 2) to agree vide first second class to guarantee that any debt, lawsuit for and citizens. or claim which may arise as a result L. Willkie of a contract or contract performance —Wendell will be paid or taken care of by the party making the guarantee. Exam- scintilla: n. Latin for “spark.” Scintil- ple: the seller of a business agrees to la is commonly used in reference to “save harmless” the buyer from any evidence, in the context that there unknown debts of the business. (See: must be a “scintilla of evidence” (at hold harmless, indemnify) least a faint spark) upon which to base a judgment. savings and loan: n. a banking and lending institution, chartered either scope of employment: n. actions of an by a state or the federal govern- employee which further the business ment. Savings and loans only make of the employer and are not personal loans secured by real property from business, which becomes the test as to deposits, upon which they pay inter- whether an employer is liable for est slightly higher than that paid by damages due to such actions under most banks. In the early 1980s sav- the doctrine of respondeat superior ings and loans were “de-regulated,” (make the master answer). Example: allowing them to make loans for Dick Deliver drives a truck delivering speculative land development, re- groceries for Super-Duper Market. If moving high reserve funds require- Dick negligently runs the truck into ments, and allowing their funds to Victor Victim’s VW while making de- participate in competition with liveries or on the way back from a

369 scrivener

delivery, then Super-Duper is liable until handed to the judge when court since the accident was in the scope reconvenes. (See: jury, verdict) of employment. If Dick goes outside the delivery route to have lunch sealing of records: n. trial records and with his girlfriend and on the way decisions which a judge orders kept se- hits Victim then there is a strong in- cret. Usually these are the criminal ference he was outside the scope of records of under-age offenders which employment. (See: master and cannot be examined without a special servant, respondeat superior) court order or only by those connected with law enforcement. On occasion scrivener: n. a person who writes a records in civil trials are sealed on the document for another, usually for a motion of a party claiming the need to fee. If a lawyer merely writes out protect inventions, business secrets or

the terms of a lease or contract ex- national security. Sometimes sealing is actly as requested by the client, stipulated as part of a settlement to without giving legal advice, then keep the terms from public scrutiny. the lawyer is just a scrivener and

is probably not responsible for search: v. 1) to examine another’s legal errors (unless they were so premises (including a vehicle) to look

obvious as to warrant comment). A for evidence of criminal activity. It is non-lawyer may act as a scrivener unconstitutional under the 4th and without getting in trouble for prac- 14th Amendments for law enforce- ticing law without a license. ment officers to conduct a search without a “search warrant” issued by a seal: n. a device which creates an im- judge or without facts which give the pression upon paper or melted wax, officer “probable cause” to believe evi-

used by government agencies, cor- dence of a specific crime is on the porations and notaries public to premises and there is not enough time show that the document is validly to obtain a search warrant. 2) to trace executed, acknowledged or wit- the records of ownership of real prop-

nessed, since the seal is unique to erty in what is commonly called a “title the sealer. Corporate seals state the search.” (See: abstract, chain of name, date and state of incorpora- title, probable cause, search and tion. Notaries increasingly use a seizure, search warrant) rubber stamp instead of a seal since

their print is easier to microfilm for search and seizure: n. examination of official recording than is a faint em- a person’s premises (residence, busi-

bossed impression. Contracts used ness or vehicle) by law enforcement of- to be “sealed,” but that is rare today. ficers looking for evidence of the commission of a crime, and the taking sealed verdict: n. the decision of a (seizure and removal) of articles of ev- juiy when there is a delay in an- idence (such as controlled narcotics, nouncing the result, such as waiting a pistol, counterfeit bills, a blood- for the judge, the parties and the at- soaked blanket). The basic question torneys to come back to court. The is whether the search and seizure verdict is kept in a sealed envelope were “unreasonable” under the 4th

370 secret rebate

Amendment to the Constitution (ap- can evidence traced through such ille- plied to the states under the 14th gal evidence. (See: fruit of the poiso- Amendment), which provides: “The nous tree, probable cause, search, right of people to be secure in their search and seizure) persons, houses, papers, and effects,

against unreasonable searches and secondary boycott: n. an organized

seizures, shall not be violated.” refusal to purchase the products of, do Thus, searches and seizures must be business with or perform services for under the authority of a search war- (such as deliver goods) a company rant or when the officer has solid which is doing business with another facts that give him/her “probable company where the employees are on cause” to believe there was evidence strike or in a labor dispute. Example: of a specific crime on the premises Big Basket Markets are being struck but no time to get a warrant. Evi- by the Retail Clerks Union, and Cup- dence obtained in violation of the board Canning and Wheato Bread are Constitution is not admissible in selling foodstuffs to Big Basket. The court, nor is evidence traced through Teamsters Union then refuses to de- such illegal evidence. (See: search, liver to Cupboard and Wheato and search warrant, probable cause, asks all its members not to buy from fruit of the poisonous tree) those companies, although Cupboard and Wheato are not involved directly search warrant: n. a written order in the labor dispute. Such “secondary” by a judge which permits a law en- boycotts are unfair labor practices forcement officer to search a specific under federal and many state laws place (eg. 112 Magnolia Avenue, and, thus, are illegal.

Apartment 3, or a 1991 Pontiac, Texas license number 123ABC) and second degree murder: n. a non-pre- identifies the persons (if known) meditated killing, resulting from an and any articles intended to be assault in which death of the victim seized (often specified by type, such was a distinct possibility. Second de- as “weapons,” “drugs and drug para- gree murder is different from first phernalia,” “evidence of bodily degree murder, which is a premedi- harm”). Such a search warrant can tated, intentional killing or results only be issued upon a sworn written from a vicious crime such as arson, statement of a law enforcement offi- rape or armed robbery. Exact distinc- cer (including a prosecutor). The 4th tions on degree vary by state. (See: Amendment to the Constitution first degree murder, manslaugh- specifies: “...no warrants shall ter, murder) issue, but upon probable cause, supported by oath or affirmation, and secret rebate: n. a kickback of money particularly describing the place to by a business to a “preferred” cus- be searched and the persons or tomer, not offered to the public or by a things to be seized.” The 14th subcontractor to a contractor not

Amendment applies the rule to the shown on a job estimate. Both are ille- states. Evidence unconstitutionally gal in most states as unfair business seized cannot be used in court, nor practices and may result in criminal

371 secured transaction

penalties or refusal of a court to en- states the security deposit must be force a contract (written or oral) in kept in a separate bank account, and which there is such a secret rebate. some states require payment of inter- (See: rebate) est on the amount held as a deposit. A security deposit is sometimes con- secured transaction: n. any loan fused with a deposit of the “last or credit in which property is month’s rent,” which may be credited pledged as security in the event to the tenant for the final month’s payment is not made. (See: deed rent. A security deposit cannot be used of trust, lien, mortgage, pawn, legally as a rent credit. (See: landlord pawnshop, UCC-1) and tenant, lease, rent)

securities: n. generic term for shares security interest: n. generic term for of stock, bonds and debentures is- the property rights of a lender or cred-

sued by corporations and govern- itor whose right to collect a debt is se- ments to evidence ownership and cured by property. (See: deed of terms of payment of dividends or trust, lien, mortgage, UCC-1) final pay-off. They are called securities because the assets and/or the sedition: n. the federal crime of advo- profits of the corporation or the cred- cacy of insurrection against the gov- it of the government stand as securi- ernment or support for an enemy of ty for payment. However, unlike se- the nation during time of war, by cured transactions in which specific speeches, publications and organiza- property is pledged, securities are tion. Sedition usually involves actual- only as good as the future profitabil- ly conspiring to disrupt the legal op-

ity of the corporation or the manage- eration of the government and is be- ment of the governmental agency. yond expression of an opinion or Most securities are traded on vari- protesting government policy. Sedi- ous stock or bond markets. (See: tion is a lesser crime than “treason,”

bond, debenture, stock, share, ) which requires actual betrayal of the government, or “espionage.” Espi- security deposit: n. a payment re- onage involves spying on the govern- quired by a landlord from a tenant ment, trading state secrets (particu- to cover the expenses of any repairs larly military) to another country of damages to the premises greater (even a friendly nation), or sabotaging than normal “wear and tear.” The governmental facilities, equipment or security deposit must be returned suppliers of the government, like an within a short time (varying by aircraft factory. During U.S. partici- states) after the tenant vacates, less pation in World War II (1941-1945) the cost of repairing any unusual several leaders of the German-Ameri- damage. Unfortunately for tenants, can Bund, a pro-Nazi organization, these damages are usually subject were tried and convicted of sedition to the judgment of the landlord, who for actively interfering with the war may desire to paint and refinish on effort. Since freedom of speech, press the tenant’s money, which results in and assembly are guaranteed by the many small claims suits. In a few Bill of Rights and because treason

372 self-defense

and espionage charges can be made without time to get a search warrant, for overt acts against the nation’s cannot be admitted in court, nor can security, sedition charges are rare. evidence traced through the illegal (See: espionage, treason) seizure. (See: search and seizure, search warrant, fruit of the poiso- seduction: n. the use of charm, sales- nous tree) manship, promises, gifts and flat- tery to induce another person to self-dealing: n. in the stock market, have sexual intercourse outside using secret “inside” information marriage, without any use of force gained by being an official of a corpo- or intimidation. At one time seduc- ration (or from such an officer) to buy tion was a crime in many states, but or sell stock (or real property wanted if the seducee (usually female) is of by the corporation) before the informa- the age of consent and is not tion becomes public (like a merger,

drugged, intoxicated or otherwise poor profit report, striking oil). Self- unable to consent, seduction is no dealing can also apply to general part- longer criminal. However, just as ners of a limited partnership who do adultery lingers in the criminal not inform limited partners of busi- codes of some states, so does seduc- ness opportunities which should be- tion. (See: adultery, breach of long to the partnership. Self-dealing promise, date rape, rape) can result in a lawsuit for fraud by shareholders. Self-dealing with securi- seisin: (sees-in) n. an old feudal term ties is a crime under the federal Secu- for having both possession and title rities and Exchange Act. of real property. The word is found in some old deeds, meaning owner- self-defense: n. the use of reasonable ship in fee simple (full title to real force to protect oneself or members of property). (See: fee simple, seized) the family from bodily harm from the attack of an aggressor, if the defender seized (seised): n. 1) having owner- has reason to believe he/she/they ship, commonly used in wills as “I is/are in danger. Self-defense is a com- give all the property of which I die mon defense by a person accused of seized as follows:....” 2) having assault, battery or homicide. The force taken possession of evidence for use used in self-defense may be sufficient in a criminal prosecution. 3) having for protection from apparent harm taken property or a person by force. (not just an empty verbal threat) or to (See: seisin, seizure) halt any danger from attack, but cannot be an excuse to continue the at- seizure: n. the taking by law enforce- tack or use excessive force. Examples: ment officers of potential evidence an unarmed man punches Allen Alibi, in a criminal case. The constitution- who hits the attacker with a baseball al limitations on seizure are the bat. That is legitimate self-defense, same as for search. Thus, evidence but Alibi cannot chase after the at- seized without a search warrant or tacker and shoot him or beat him without “probable cause” to believe senseless. If the attacker has a gun a crime has been committed and or a butcher knife and is verbally

373 self-executing

threatening, Alibi is probably war- criminal case to be a witness against ranted in shooting him. Basically, himself...” and the 14th Amendment

appropriate self-defense is judged applies that guarantee to state cases.

on all the circumstances. Reason- Thus refusing to testify in court on the able force can also be used to protect basis that the testimony may be self- property from theft or destruction. incriminating is called “taking the Self-defense cannot include killing Fifth.” (See: Miranda warning, or great bodily harm to defend prop- rights, taking the Fifth) erty, unless personal danger is also

involved, as is the case in most bur- self-serving: adj. referring to a question glaries, muggings or vandalism. asked of a party to a lawsuit or a state- (See: assault, homicide) ment by that person that serves no purpose and provides no evidence, but self-executing: adj. immediately ef- only argues or reinforces the legal po- fective without further action, legis- sition of that party. Example: Question lation or legal steps. Some statutes asked by a lawyer of his own client: are self-executing, as are some legal “Are you the sort of person who would rights (such as when a person holds never do anything dishonest?” Such a property as security and title passes question may be objected to as “self- automatically when payments are serving” by the opposing lawyer and not made). Most judgments in law- will be disallowed by the judge, unless suits are not self-executing and are there is some evidentiary value. Some only documents giving the winning people add self-serving comments to

party the right to try to collect. their testimony, such as “I never tell lies,” which can be stricken from the

self-help: n. 1) obtaining relief or en- record as a self-serving declaration. forcing one’s rights without resort- (See: objection) ing to legal action, such as repos-

sessing a car when payments have sell: v. to transfer possession and owner- not been made, retrieving borrowed ship of goods or other property for or stolen goods, demanding and re- money or something of equivalent ceiving payment or abating a nui- value. (See: sale) sance (such as digging a ditch to divert flooding from another’s proper- seller: n. one who sells goods or other

ty). Self-help is legal as long as it property to a buyer (purchaser). (See: does not “break the public peace” or sale, sell) violate some other law (although brief trespass is common). 2) the senior lien: n. the first security interest maximizing of one’s opportunities. (lien or claim) placed upon property at a time before other liens, which self-incrimination: n. making state- are called “junior” liens. (See: deed ments or producing evidence which of trust, lien, race to the court- tends to prove that one is guilty of a house, mortgage, UCC-1) crime. The 5th Amendment to the

U.S. Constitution guarantees that sentence: 1) n. the punishment given one cannot “be compelled in any to a person convicted of a crime. A

374 separation agreement sentence is ordered by the judge, crime. (See: capital punishment, based on the verdict of the jury (or concurrent sentence, indetermi- the judge’s decision if there is no nate sentence, restitution, sus- jury) within the possible punish- pended sentence) ments set by state law (or federal law in convictions for a federal separate property: n. in community crime). Popularly, “sentence” refers property states (California, Texas, Ari- to the jail or prison time ordered zona, Idaho, Louisiana, New Mexico, after conviction, as in “his sentence Nevada and Washington), the proper- was 10 years in state prison.” Tech- ty owned by one spouse which he/she nically, a sentence includes all fines, acquired: a) before marriage, b) by in- community service, restitution or heritance, c) as a gift, d) assets trace- other punishment, or terms of pro- able to other separate property such bation. Defendants who are first of- as money received from sale of a house fenders without a felony record may owned before marriage, and e) proper- be entitled to a probation or pre-sen- ty the spouses agree is separate prop- tence report by a probation officer erty. State laws vary, but basically sep- based on background information arate property can be controlled by the and circumstances of the crime, spouse owning it. The laws of descent often resulting in a recommenda- applied to separate property and right tion as to probation and amount of to give separate property by will differ punishment. For misdemeanors from the treatment of community (lesser crimes) the maximum sen- property. Example: a child may inher- tence is usually one year in county it part of one spouse’s separate proper- jail, but for felonies (major crimes) ty if there is no will, while community the sentence can range from a year property would pass automatically to to the death penalty for murder in the spouse. Upon divorce community most states. Under some circum- property is divided equally, while sep- stances the defendant may receive a arate property is kept by the owner “suspended sentence,” which means without division with the other spouse. the punishment is not imposed if (See: community property) the defendant does not get into other trouble for the period he/she separation: n. married persons living would have spent in jail or prison; apart, either informally by one leav- “concurrent sentences,” in which the ing the home or agreeing to “sepa- prison time for more than one crime rate” while sharing a residence with- is served at the same time and only out sexual relations, or formally by lasts as long as the longest term; obtaining a “legal separation” or ne- “consecutive sentences,” in which gotiating a “separation agreement” the terms for several crimes are setting out the terms of separate liv- served one after another; and “inde- ing. (See: legal separation, separa- terminate” sentences, in which the tion agreement) actual release date is not set and will be based on review of prison separation agreement: n. an agree- conduct. 2) v. to impose a punishment between two married people who ment on a person convicted of a have agreed to live apart for an

375 sequester

unspecified period of time, perhaps sequestration: n. the act of a judge forever. The agreement generally issuing an order that a jury or wit- covers any alimony (money paid ness be sequestered (kept apart for spousal support), child support, from outside contacts during trial). custody arrangements if there are (See: sequester) children, payment of bills and management of separate bank ac- seriatim-, (sear-ee-ah-tim) prep. Latin counts. A separation agreement for “one after another” as in a series. may determine division of property Thus, issues or facts are discussed se- if the separation appears perma- riatim (or “ad seriatim”), meaning one nent. It cannot be enforced by by one in order. (See: ad seriatim) court order unless one party files a petition for legal separation or files servant: n. an employee of an employ- a lawsuit for specific performance er, technically one who works for a of a contract. If the couple recon- master. A servant is distinguished ciles, the separation agreement is from an "independent contractor” voidable (can be cancelled) by the who operates his/her own business parties. However, most separation even though spending much time on agreements are interim agree- the work of a particular person or en- ments to serve between the time of tity. The servant has established

separation and the eventual di- hours or piece work, is under the divorce of the parties. (See: dissolu- rection of the employer even as to de- tion of marriage, divorce, legal tails, cannot work for competitors separation, separation) and acts for the benefit of the employer rather than for himself/her- sequester: v. to keep separate or self. The employer of a servant must apart. In so-called “high-profile” provide to the servant (employee) criminal prosecutions (involving worker’s compensation insurance, major crimes, events or persons Social Security coverage, make in- given wide publicity) the jury is come tax deductions, and provide sometimes “sequestered” in a hotel benefit from various federal and without access to news media, the state labor laws. An independent general public or their families ex- contractor is responsible for such cept under supervision, in order to payments and benefits himself/her- prevent the jury from being “taint- self. (See: employee, independent ed” by information or opinions about contractor, master and servant) the trial outside of the evidence in

the courtroom. A witness may be se- service: n. 1) paid work by another per- questered from hearing the testimo- son, either by contract or as an em- ny of other witnesses, commonly ployee. “Personal services” is work called being “excluded,” until after that is either unique (such as an artist he/she has testified, supposedly to or actor) or based on a person’s partic- prevent that witness from being in- ular relationship to employer (such as fluenced by other evidence or tailor- a butler, nanny, traveling companion ing his/her testimony to fit the sto- or live-in health care giver). 2) the do- ries of others. (See: sequestration) mestic activities of a wife, including

376 service of process

the marital relationship (consor- nation) can be served upon his/her/its tium), are legally considered “ser- attorney by mail. (See: service) vices” for which a deprived husband may sue a person who has caused in- service by publication: n. serving a jury to his wife. 3) the official deliv- summons or other legal document in ery of legal documents (“service of a lawsuit on a defendant by publish- process”) such as a summons, subpe- ing the document in an advertisement na, complaint, order to show cause in a newspaper of general circulation. (order to appear to show reasons Service by publication is used to give why a judge should not make a par- “constructive notice” to a defendant ticular order), writ (court order), or who is intentionally absent, in hiding, notice to quit the premises, as well unknown (as a possible descendant of as delivery by mail or in person of a former landowner), and only when documents to opposing attorneys or allowed by a judge’s order based on a parties, such as answers, motions, sworn declaration of the inability to

points and authorities, demands and find the defendant after “due dili- responses. (See: employment, loss gence” (trying hard). Service by publi- of consortium, personal ser- cation is commonly used in a divorce vices, service of process) action to serve a spouse who has disappeared without leaving a forward- ing address or to give notice to people We cannot, as citizens, pick who might have a right to object to a and choose the laws we will or “quiet title” action to clear title to real will not obey. property. (See: constructive notice- Ronald Reagan — service, service of process) service by FAX: n. delivery of legal service of process: n. the delivery of documents required by statute copies of legal documents such as to be “served” by transmitting summons, complaint, subpena, order through telecopier phone (FAX), to show cause (order to appear and followed by mailing an original argue against a proposed order), (“hard copy”). Increasingly, the writs, notice to quit the premises and courts recognize this as legitimate certain other documents, usually by

service since it is instantaneous. personal delivery to the defendant or (See: service, service of process) other person to whom the documents are directed. So-called “substituted service by mail: n. mailing legal service” can be accomplished by leav- pleadings to opposing attorneys or ing the documents with an adult resi- parties, while filing the original dent of a home, with an employee with with the court clerk with a declara- management duties at a business of- tion stating that the copy was fice or with a designated “agent for ac- mailed to a particular person at a ceptance of service” (often with name specific address. Once a party has and address filed with the state’s Sec- responded by filing an answer, retary of State), or, in some cases, by subsequent pleadings (except orders posting in a prominent place followed to show cause and orders of exami- by mailing copies by certified mail to

377 services

the opposing party. In certain cases motion that the lawsuit was not set- of absent or unknown defendants, tled, the judge will issue an order to the court will allow service by publi- “set aside” the original dismissal.

cation in a newspaper. Once all parties have filed a complaint, answer setoff (offset): n. a claim by a defen- or any pleading in a lawsuit, further dant in a lawsuit that the plaintiff documents usually can be served by (party filing the original suit) owes mail or even FAX. (See: personal the defendant money which should service, service, service by FAX, be subtracted from the amount of service by mail, service by pub- damages claimed by plaintiff. By lication, substituted service) claiming a setoff the defendant does not necessarily deny the plaintiff’s services: n. work performed for pay. original demand, but he/she claims (See: personal services, service) the right to prove the plaintiff owes him/her an amount of money from servient estate: n. real property some other transaction and that the which has an easement or other use amount should be deducted from the

imposed upon it in favor of another plaintiff’s claim. (See: affirmative property (called the “dominant es- defense, offset) tate”), such as right of way or use for access to an adjoining property or setting: n. the action of a court, clerk or utility lines. The property giving commissioner in scheduling a trial or

usage is the servient estate, and the hearing. (See: set) property holding usage of the ease-

ment is the dominant estate. (See: settle: v. to resolve a lawsuit without a covenant running with the land, final court judgment by negotiation be- dominant estate, easement) tween the parties, usually with the assistance of attorneys and/or insurance

session: n. 1) a meeting (or “sitting”) adjusters, and sometimes prodding by of a court for a particular period of a judge. Most legal disputes sue settled time. “Session” technically means prior to trial. (See: settlement) one day’s business (as in “today’s session”). 2) the term of an appeals settlement: n. the resolution of a law- court covering several months (as suit (or of a legal dispute prior to filing in the “Spring Term” or the “Octo- a complaint or petition) without going ber Term”). forward to a final court judgment. Most settlements are achieved by ne-

set: v. to schedule, as to “set a case gotiation in which the attorneys (and for trial.” sometimes an insurance adjuster with authority to pay a settlement amount

set aside: v. to annul or negate a on behalf of the company’s insured de- court order or judgment by anoth- fendant) and the parties agree to er court order. Example: a court terms of settlement. Many states re- dismisses a complaint believing quire a settlement conference a few the case had been settled. Upon weeks before trial in an effort to being informed by a lawyer’s achieve settlement with a judge or

378 sexual harassment

assigned attorneys to facilitate the several liability: n. referring to respon-

process. A settlement is sometimes sibility of one party for the entire debt reached based upon a final offer just (as in ‘joint and several”) or judgment prior to trial (proverbially “on the when those who jointly agreed to pay courthouse steps”) or even after trial the debt or are jointly ordered to pay a has begun. A settlement reached just judgment do not do so. A person who is before trial or after a trial or hearing stuck with “several liability” because has begun is often “read into the the others do not pay their part may record” and approved by the court so sue the other joint debtors for contri- that it can be enforced as a judgment bution toward the payment he/she has if the terms of the settlement are not made. (See: contribution, joint and complied with. Most lawsuits result several, promissory note) in settlement. (See: settle)

severance: n. 1) a separating by court settlor: n. the person who creates a order, such as separate trials for crim- trust by a written trust declaration, inal defendants who were charged called a “Trustor” in many (particu- with the same crime, or trying the larly western) states and some- negligence aspect of a lawsuit before a times referred to as the “Donor.” trial on the damages. Such division of

The settlor usually transfers the issues in a trial is sometimes also original assets into the trust. (See: called “bifurcation.” Severance is trust, trustor) granted when a joint trial might be unfair or reaching a decision on one severable contract: n. an agreement issue (such as negligence) may save which is made up of several separate the trouble of hearing the other ques- contracts between the same parties, tions. 2) extra pay offered and made to such as series of sales, shipments or a person to encourage him/her to re- different pieces of equipment. There- sign, retire or settle a potential claim fore, breach of one of the separate for discharge.

(severable) contracts is not a breach of the remainder of the overall con- sex offender: n. generic term for all tract and is not an excuse for the persons convicted of crimes involving other party to refuse to honor any sex, including rape, molestation, sex- divisable part of the contract which ual harassment and pornography has not been breached. Example: production or distribution. In most Whitley Widget Company has con- states convicted sex offenders are tracted with Hardy Hardware to de- supposed to report to local police au- liver a dozen wall heaters, one ton of thorities, but many do not. (See: mo- nails, 100 rolls of linoleum and a lestation, pornography, rape, sex- truckload of roof tiles, with a price ual harassment) set for each type of product. Whitley no longer produces nails and cannot sexual harassment: n. unwanted sex- deliver them, but the other parts of ual approaches (including touching, the contract remain in force between feeling, groping) and/or repeated un- Whitley and Hardy. (See: breach of pleasant, degrading and/or sexist re- contract, contract) marks directed toward an employee

379 shall

with the implied suggestion that Mark, Luke and John, share and the target’s employment status, share alike.” Luke dies before Testa- promotion or favorable treatment tor, so the 2,000 shares will be divided depend upon a positive response among the three surviving nephews. and/or “cooperation.” Sexual harassment is a private nuisance, un- shareholder: n. the owner of one or fair labor practice or, in some more shares of stock in a corporation, states, a civil wrong (tort) which commonly also called a “stockholder.” may be the basis for a lawsuit The benefits of being a shareholder in- against the individual who made clude receiving dividends for each the advances and against the em- share as determined by the board of ployer who did not take steps to directors, the right to vote (except for halt the harassment. A legal secre- certain preferred shares) for members tary recently won an award of more of the board of directors, to bring a de- than $3 million against a promi- rivative action (lawsuit) if the corpora- nent law firm in California for not tion is poorly managed, and to partic- controlling a partner notorious for ipate in the division of value of assets his sexual harassment of female upon dissolution and winding up of employees. (See: nuisance) the corporation, if there is any value. A shareholder should have his/her

shall: v. 1) an imperative command as name registered with the corporation, in “you shall not kill.” 2) in some but may hold a stock certificate which statutes, “shall” is a direction but has been signed over to him/her. Be- does not mean mandatory, depend- fore registration the new shareholder ing on the context. may not be able to cast votes represented by the shares. (See: corpora-

share: n. 1) a portion of a benefit from tion, shareholders’ meeting) a trust, estate, claim or business usually in equal division (or a specif- shareholders’ agreement: n. an em- ically stated fraction) with others ployment agreement among the (“to my three daughters, in equal shareholders of a small corporation shares”). 2) a portion of ownership permitting a shareholder to take a interest in a corporation, represent- management position with the corpo- ed by a stock certificate stating the ration without any claim of conflict of number of shares of an issue of the interest or self-dealing against the corporation’s stock. shareholder/manager. Such agreements are common when there are share and share alike: adj. refer- only three or four shareholders. ring to the equal division of a bene-

fit from an estate, trust or gift, shareholders’ derivative action: n. a which includes the right of the sur- lawsuit by a corporation’s sharehold- vivors to divide the portion of any ers, theoretically on behalf of the cor- beneficiary who dies before receiv- poration, to protect and benefit all

ing the gift. Example: Teal Testator shareholders against the corporation wills her 2,000 shares of IBM stock for improper management. (See: de- “to my four nephews, Matthew, rivative action)

380 shield laws shareholders’ meeting: n. a meet- and responsible for police protection ing, usually annual, of all share- outside of incorporated cities, man-

holders of a corporation (although agement of the county jail, providing in large corporations only a small bailiffs for protection of the courts, percentage attend) to elect the and such civil activities as serving board of directors and hear reports summonses, subpenas and writs, con- on the company’s business situa- ducting judgment sales, and fulfilling tion. In larger corporations top various functions ordered by the management people hold the prox- courts. The office was brought to the ies signed over to them by many of United States from England and is the shareholders to vote for them. unknown in most nations which use (See: board of directors, corpo- federal and state police. Canada, for ration, proxy, shareholder) example, has the highly professional Royal Canadian Mounted Police (and sharp practice: n. actions by a its Quebec equivalent) to serve for lawyer using misleading statements most non-municipal law enforcement. to opposing counsel or the court, The position of sheriff has been criti- denial of oral stipulations (agree- cized as lacking training standards, ments between attorneys) previous- being overly political, not being coor- ly made, threats, improper use of dinated with other jurisdictions, and process or tricky and/or dishonor- being hampered by its lack of authori- able means barely within the law. A ty beyond the county line except when consistent pattern of sharp practice in “hot pursuit” of a suspect who cross- may lead to discipline by the state es the county line. The sheriff’s uni- bar association or by the courts. formed police are called “deputy sher-

iffs,” with the number two person Shepardize: n. a method of locating often entitled “under sheriff.” (See: reports of appeals decisions based bailiff, sheriff’s sale) on prior precedents from Shepard’s Citations, books which list the vol- sheriff’s sale: n. an auction sale of ume and page number of published property held by the sheriff pursuant reports of every appeals court deci- to a writ (court order) of execution (to sion which cites a previously decid- seize and sell the property) to satisfy ed case or a statute. Shepard’s ex- (pay) a judgment, after notice to the ists for all sets of reports of appeals public. (See: execution, forced sale, cases, and is updated every month levy, writ) with supplemental booklets. While

it looks like a mathematician’s book shield laws: n. statutes enacted in of tables, Shepard’s Citations is an some states which declare that invaluable tool in finding appeals communications between news re- decisions which either follow, distin- porters and informants are confiden- guish or deviate from prior case law. tial and privileged and thus cannot (See: reports) be testified to in court. This is similar to the doctor-patient, lawyer- sheriff: n. the top law enforcement of- client or priest-parishioner privilege. ficer for a county, usually elected The concept is to allow a journalist to

381 shifting the burden of proof

perform his/her function of gather- party to a lawsuit which allows setting ing news without being ordered a motion or other legal matter at a to reveal his/her sources and notes time shorter than provided by law or of conversations. In states which court rules. Shortening time is usually have no shield law, many judges granted when the time for trial or have found reporters in contempt some other court action is approaching of court (and given them jail terms) and a hearing must be heard promptly for refusing to name informants or by the judge. Example: the local rules reveal information gathered on the require that a party give the other side promise of confidentiality. (See: 10 days’ notice before a hearing. A privileged communication) hearing on adding a witness to the expert list would be useless unless heard shifting the burden of proof: n. the in five days, since the trial is set to be result of the plaintiff in a lawsuit called in nine days. The court may

meeting its burden of proof in the shorten the time to schedule the hear- case, in effect placing the burden ing to five days, provided the notice is with the defendant, at which time served within 24 hours.

it presents a defense. There may be shifts of burden of proof on specific show cause order: n. an order of the factual issues during a trial, which court, also called an order to show may impact the opposing parties cause or OSC, directing a party to a and their need to produce evidence. lawsuit to appear on a certain date to (See: burden of proof, prima show cause why the judge should not facie case) issue a specific order or make a certain finding. Examples: an order to a

short cause: n. a lawsuit which is es- husband directing that he show cause timated by the parties (usually their why the wife in a divorce action attorneys) and the trial setting judge should not be awarded $1,000 a to take no more than one day. Thus, month alimony (spousal support) and a short cause may be called on the $500 a month child support, why the “short cause” calendar and get prior- husband should not be ordered to stay

ity on the calendar since it can be fit- away, and why the wife should not ted into the court’s schedule and will have temporary custody of their child. not tie up a courtroom for a long pe- (See: order to show cause) riod. Short causes may be treated differently from “long cause” cases, sidebar: n. 1) physically, an area in such as not requiring a settlement front of or next to the judge’s bench conference or having the cases tried (the raised desk in front of the judge) by “pro tem” judges. However, if a away from the witness stand and the supposed “short cause” lasts beyond jury box, where lawyers are called to one day the judge is authorized to speak confidentially with the judge declare a mistrial and the case will out of earshot of the jury. 2) a discus- be reset later as a “long cause.” sion between the judge and attorneys at the bench off the record and outside shortening time: n. an order of the the hearing of the jurors or spectators. court in response to the motion of a 3) in journalism, a brief story on a

382 slander

sidelight to a news story, such as a and legal issues must be the same, biographical sketch about a figure and separate lawsuits would be im- in the news or an anecdote related practical or burdensome. (See: class to the main story, and sometimes action, multiplicity of suits) enclosed within a box. (See: bench, approach the bench) simple trust: n. a trust which requires that all income be distributed each sign: v. 1) to write one’s signature on a year and not accumulated. (See: trust) document, including an “X” by an illiterate or physically impaired simultaneous death act: n. a statute person, provided the mark is proper- in effect in most states which provides ly witnessed in writing as “Eddie that if a husband and wife or siblings Jones, his mark.” An attomey-in- die in an accident in which they died

fact given authority to act for anoth- at the same moment or it cannot be

er person by a power of attorney determined who died first, it is pre- may sign for the one giving sumed that each died before the other the power but should identify the for determining inheritance. (See: de- signature as “by his attomey-in-fact, scent and distribution) George Goodman.” 2) to commu-

nicate by sign language. (See: sine qua non : (see-nay kwah nahn)

mark, subscribe) prep. Latin for “without which it could not be,” an indispensable ac- silent partner: n. a non-legal term tion or condition. Example: if Charlie for an investor who puts money into Careless had not left the keys in the a business, takes no part in man- ignition, his 10-year-old son could agement and is often unknown to not have started the car and backed customers. A “limited partner,” who it over Polly Playmate. So Charlie’s is prohibited from taking part in act was the sine qua non of the in- management and has no liability jury to Playmate. for debts beyond his/her invest-

ment, is a true silent partner. How- situs: n. Latin for “location,” be it where ever, without a limited partnership the crime or accident took place or agreement, a silent partner is re- where the building stands. sponsible for the debts of the partnership as a general partner. (See: slander: n. oral defamation, in which general partner, limited part- someone tells one or more persons an nership, partner) untruth about another, which untruth will harm the reputation of the person similarly situated: adj. with the defamed. Slander is a civil wrong (tort) same problems and circumstances, and can be the basis for a lawsuit. referring to the people represented Damages (payoff for worth) for slander by a plaintiff in a “class action,” may be limited to actual (special) dam- brought for the benefit of the party ages unless there is malicious intent,

filing the suit as well as all those since such damages are usually diffi- “similarly situated.” lb be similarly cult to specify and harder to prove. situated, the defendants, basic facts Some statements, such as an untrue

383 )

small claims court

accusation of having committed a ther of another man or a woman. If ac- crime, having a loathsome disease or complished by force, without consent being unable to perform one’s occu- or with someone incapable of consent, pation, are treated as slander per se sodomy is a felony in all states in the since the harm and malice are obvi- same way that rape is. Homosexual ous and therefore usually result in (male to male) sodomy between con- general and even punitive damage senting adults has also been found a recovery by the person harmed. felony but increasingly is either de- Words spoken over the air on televi- criminalized or seldom prosecuted. sion or radio are treated as libel Sodomy with a consenting adult fe- (written defamation) and not slan- male is virtually never prosecuted der on the theory that broadcasting even in those states in which it re- reaches a large audience as much as mains on the books as a criminal of- if not more than printed publica- fense. However, there have been a few tions. (See: defamation, fair com- cases, including one in Indiana, in ment, libel, slander, which a now-estranged wife insisted that a husband be charged with

small claims court: n. a division of sodomy for sexual acts while they most municipal, city or other lowest were living together. Traditionally local courts which hear cases involv- sodomy was called “a crime against ing relatively small amounts of nature.” Sodomy does not include oral money and without a request for copulation or sexual acts with animals court orders like eviction. The high- (bestiality). (See: bestiality, rape) est (jurisdictional) amount that can be considered in small claims court sole proprietorship: n. a business varies by state, but goes as high as owned by one person, as distinguished $5,000 in California. In small claims from a partnership or corporation. court, attorneys may not represent clients, the filing fee is low, there is solicitation: n. the crime of encourag-

no jury, the procedure is fairly infor- ing or inducing another to commit a mal, each side has a short time to crime or join in the commission of a present his/her case and the right to crime. Solicitation may refer to a pros- appeal only permits a trial de novo (a titute’s (or her pimp’s) offer of sexual new trial) at the next court level. acts for pay. (See: pander) Often the judge is an experienced lawyer sitting as a pro tem judge. solicitor: n. an English attorney who Small claims court is a quick, inex- may perform all legal services except pensive way to settle lesser legal dis- appear in court. Under the British sys- putes, although the controversies are tem, the litigator or trial attorney often important to the participants. takes special training in trial work and The well-known television program is called a “barrister.” Occasionally a People’s Court is intended to be a solicitor becomes a barrister, which is good example of a small claims court. called “taking the silk.” In the United States and Canada attorneys are re- sodomy: n. anal copulation by a man ferred to interchangeably as solicitors inserting his penis in the anus ei- or barristers. (See: attorney)

384 speaking demurrer

Solicitor General: n. the chief trial leave things. (See: competent, in- attorney in the federal Department competent, will) of Justice responsible for arguing cases before the Supreme Court The lawn, if they are to be ob- and ranking second to the Attorney served, have need of good General in the Department. morale. —Niccolo Machiavelli solitary confinement: n. the placement of a prisoner in a federal or state prison in a cell away sounds in: adj. referring to the under- from other prisoners, usually as a lying legal basis for a lawsuit or one form of internal penal discipline, of several causes of action in a suit, but occasionally to protect the con- such as contract or tort (civil wrong). vict from other prisoners or to pre- The phrasing might be: “Plaintiff’s vent the prisoner from causing first cause of action against Defen- trouble. Long-term solitary con- dant sounds in tort, and his second finement may be found to be un- cause of action sounds in contract.” constitutional as “cruel and unusual punishment.” speaking demurrer: n. an attempt to introduce evidence during a hearing solvency: n. 1) having sufficient on a demurrer. A demurrer is a legal funds or other assets to pay debts. opposition to a complaint in a law- 2) having more assets than liabili- suit (or to an answer), which says, in ties (debts). The contrast is “insol- effect, that even if the factual claims vency,” which may be a basis for (allegations) are true, there are legal filing a petition in bankruptcy. flaws or failures in the lawsuit. (See: bankruptcy, insolvency) Therefore, since the factual allegations are admitted for the sake of ar- sound mind and memory: n. hav- gument, introducing evidence is im- ing an understanding of one’s ac- proper, and an attorney making a tions and reasonable knowledge of “speaking demurrer” will be halted, one’s family, possessions and sur- often in mid-argument. Example: At- roundings. This is a phrase often torney Perry Pickwick files a demur- included in the introductory para- rer to a complaint for damages due to graph of a will in which the testa- medical malpractice, in which he ar- tor (writer of the will) declares that gues that the suit was filed too late he/she is “of sound mind and mem- (after the time allowed by the statute ory.” The general test is whether of limitations) since the complaint it- the person making the will under- self stated the malpractice took place stood: a) the meaning and effect of more than three years before the fil- the will, b) what the person owned ing and the limitation by law is two

(more or less), and c) the “natural years. However, the complaint also objects of his/her bounty,” meaning stated that the plaintiff Elsa Ed- the immediate family and any wards did not discover the resulting other particularly close relatives or problems until much later, and friends to whom he/she might therefore, she had extra time. Faced

385 special

with this counterargument, Pick- been paid or arranged. (See: gener- wick attempts a “speaking demur- al appearance) rer” by arguing, “we have a letter in which plaintiff Edwards com- special circumstances: n. in crimi- plained about pain right after the nal cases, particularly homicides, ac- operation.” (See: demurrer) tions of the accused or the situation under which the crime was commit- special: adj. referring to a particu- ted for which state statutes allow or lar purpose, person or happening. require imposition of a more severe In law these include hearings, pro- punishment. “Special circumstances” ceedings, administrator, master, in murder cases may well result in orders and so forth. the imposition of the death penalty for murder (in states with capital special administrator: n. a person punishment) or life sentence without appointed by the court in a probate possibility of parole. Such circum- proceeding (management of the es- stances may include: rape, kidnap- tate of a deceased person) to take ping or maiming prior to the killing,

charge of the assets and/or investi- multiple deaths, killing a police offi- gate the status of the estate and cer or prison guard, or actions show-

report to the court, usually when ing wanton disregard for life, such as there is a dispute between benefi- throwing a bomb into a restaurant. ciaries (those who may receive (See: capital punishment) from the estate) and the executor or administrator. (See: probate) special damages: n. damages claimed and/or awarded in a lawsuit which special appearance: n. the repre- were out-of-pocket costs directly as sentation by an attorney of a per- the result of the breach of contract, son in court for: a) only that par- negligence or other wrongful act by ticular session of the court; b) on the defendant. Special damages can

behalf of the client’s regular attor- include medical bills, repairs and re- ney of record; c) as a favor for an placement of property, loss of wages unrepresented person; or d) pend- and other damages which are not ing a decision as to whether the speculative or subjective. They are attorney agrees to handle the per- distinguished from general damages, son’s case. A special appearance is in which there is no evidence of a spe- different from a “general appear- cific dollar figure. (See: damages, ance” in which the attorney is general damages) committed to represent the client in all future matters, hearings special master: n. a person appointed and trial of the case unless he/she by the court to carry out an order of is allowed to withdraw or is sub- the court, such as selling property or stituted “out of’ the case by the mediating child custody cases. A “spe- client. Quite often an attorney cial” master differs from a “master” in will make a “special appearance” that he/she takes positive action to protect the interests of a poten- rather them just investigating and re- tial client but before a fee has porting to the judge. (See: master)

386 speculative damages

special prosecutor: n. an attorney leave the Lazy Z Ranch to my brother, from outside of the government se- David.” (See: devise, will) lected by the Attorney General or Congress to investigate and possibly specific finding: n. a decision on a fact prosecute a federal government offi- made by a jury in its verdict and cial for wrongdoing in office. The which the judge has requested the

theory behind appointing a special jury to determine as part of its delib- prosecutor is that there is a built-in erations. Often the judge gives a jury conflict of interest between the De- a list of decisions on findings of fact to partment of Justice and officials who be made to help the jurors focus on the may have political or governmental issues. Example: Findings: Was defen- connections with that department. dant exceeding the speed limit?—yes; The most famous special pros- Was defendant negligent?—yes; If de- ecutor was law professor Archibald fendant was negligent, was the negli- Cox, originally chosen to inves- gence a proximate cause of damages tigate White House (and President to defendant?—yes; and so forth. (See: Richard Nixon’s) involvement in the special verdict) Watergate scandal. President Nixon demanded that Attorney General specific legacy: n. a gift in a will of a Elliot Richardson fire Cox, who was certain article or property to a certain being aggressive in his investiga- person or persons. (See: legacy, spe- tion, and Richardson resigned rather cific bequest, specific devise, will) than comply, as did Assistant Attor-

ney General William Ruckelshaus. specific performance: n. the right of a Deputy Attorney General Robert party to a contract to demand that the

Bork finally discharged Cox. defendant (the party who it is claimed breached the contract) be ordered in special verdict: n. the jury’s deci- the judgment to perform the contract. sions or findings of fact with the ap- Specific performance may be ordered plication of the law to those facts left instead of (or in addition to) a judg- up to the judge, who will then ren- ment for money if the contract can der the final verdict. This type of still be performed and money cannot limited verdict is used when the sufficiently reward the plaintiff. Ex- legal issues to be applied are com- ample: when a defendant was to deliv- plex or require difficult computa- er some unique item such as an art- tion. (See: specific finding) work and did not, a judge may order the defendant to actually deliver the specific bequest: n. the gift in a will artwork. (See: contract, prayer) of a certain article to a certain per-

son or persons. Example: “I give my speculative damages: n. possible fi- diamond engagement ring to my nancial loss or expenses claimed by a niece, Sophie.” (See: bequest, will) plaintiff (person filing a lawsuit) which are contingent upon a future specific devise: n. the gift in a will of occurrence, purely conjectural or high- a certain piece of real estate to a cer- ly improbable. Speculative damages tain person or persons. Example: “I should not be awarded, and jury

387 speedy trial

instructions should so state. Exam- soon receive $50,000 from his aunt’s ples: a) plaintiff believes that ten trust and signs an assignment of the years hence, as he ages, he may expected $50,000 to the developer. begin to feel pain from a healed frac- When the aunt dies, the trustee must ture although no physician has tes- ignore the developer’s demand for tified that this is likely to happen; b) payment based on the written assign- plaintiff claims that defendant’s ment but may pay the funds directly failure to deliver products for sale to Junior. (See: trust, will) may hurt plaintiffs reputation with future customers. (See: damages) spot zoning: n. a provision in a general plan which benefits a single parcel speedy trial: n. in criminal prosecu- of land by creating a zone for use tions, the right of a defendant to de- just for that parcel and different mand a trial within a short time from the surrounding properties in since to be held in jail without trial the area. Example: in a residential is a violation of the “due process” neighborhood zoned for single-family provision of the 5th Amendment dwellings with a minimum of 10,000 (applied to the states by the 14th square feet, the comer service station Amendment). Each state has a property is zoned commercial. Spot

statute or constitutional provision zoning is not favored, since it smacks limiting the time an accused person of favoritism and usually annoys may be held before trial (e.g. 45 neighbors. An existing commercial days). Charges must be dismissed business can be accommodated by a and the defendant released if the “zoning variance” (allowing a non- period expires without trial. Howev- conforming use for the time being) or er, defendants often waive the right a “grandfathered” right to continue a to a speedy trial in order to prepare use existing when the zoning plan a stronger defense, and if the ac- was adopted and which will termi- cused is free on bail he/she will not nate if the building is tom down. (See: be hurt by the waiver. (See: due grandfathered in, zoning) process, trial)

spontaneous exclamation: n. a sud- spendthrift clause: n. a provision in den statement caused by the speaker a trust or will that states that if a having seen a surprising, startling or prospective beneficiaiy has pledged shocking event (such as an accident or to turn over a gift he/she hopes to re- a death), or having suffered an injury. ceive to a third party, the trustee or Even though the person who made the executor shall not honor such a spontaneous exclamation is not avail- pledge. The purpose is to prevent a able (such as he/she is dead or miss- “spendthrift” beneficiary from using ing), a person who heard the exclama- a potential gift as security for credit tion may testify about it as an excep- on a speculative investment. Exam- tion to the rule against “hearsay” evi-

ple: Junior Jones is talked into an dence. The reason is that such an ex- investment in Florida swampland clamation lacks planning and is as-

but has no money in hand to pay for sumed to have the ring of tmth to it.

it. So he tells the developer he will Examples: “Chauncey shot him,” “my

388 star chamber proceedings

leg is broken,” “the blue Chevrolet people (supposedly) have toward oth-

hit the girl.” (See: hearsay) ers. Failure to meet the standard is negligence, and any damages resulting spousal support: n. payment for therefrom may be claimed in a lawsuit support of an ex-spouse (or a by the injured party. The problem is spouse while a divorce is pending) that the “standard” is often a subjec- ordered by the court. More com- tive issue upon which reasonable peo- monly called alimony, spousal sup- ple can differ. (See: duty of care, port is the term used in California foreseeable risk, negligence) and a few other states as part of new non-confrontational language standing: n. the right to file a lawsuit

(such as “dissolution” instead of or file a petition under the circum- “divorce”) now used since divorce is stances. A plaintiff will have standing “no-fault” in all states but two. to sue in federal court if a) there is (See: alimony, dissolution of an actual controversy, b) a federal marriage, divorce, no-fault) statute gives the federal court jurisdiction, and c) the parties are resi- springing interest: n. a future right dents of different states or otherwise

to title to real property created by a fit the constitutional requirements deed or will. Example: “I give title for federal court jurisdiction. A state to my daughter Mabel for her life- court example: a trade association time, and, on her death, title to my will have standing to file a petition for grandson Rex.” Rex has a springing a writ of mandate to order a state gov- interest in the property. (See: fu- ernment agency to enforce a regula- ture interest, interest, title) tion if the association represents businesses affected by the regulation, and stakeholder: n. a person having in it would be impractical for each busi- his/her possession (holding) money ness to file its own petition. (See: ac- or property in which he/she has no tual controversy, jurisdiction)

interest, right or title, awaiting the outcome of a dispute between two or star chamber proceedings: n. any ju- more claimants to the money or dicial or quasi-judicial action, trial or property. The stakeholder has a hearing which so grossly violates duty to deliver to the owner or own- standards of “due process” that a ers the money or assets once the party appearing in the proceedings

right to legal possession is estab- (hearing or trial) is denied a fair hear- lished by judgment or agreement. ing. The term comes from a large room (See: escrow) with a ceiling decorated with stars in which secret hearings of the privy standard of care: n. the watchful- council and judges met to determine ness, attention, caution and pru- punishment for disobedience of the dence that a reasonable person in proclamations of King Henry VIII of the circumstances would exercise. If Great Britain (1509-1547). The high- a person’s actions do not meet this handed, unfair, predetermined judg- standard of care, then his/her acts ments, which sent the accused to the

fail to meet the duty of care which all Tower of London or to the chopping

389 :

stare decisis

block, made “star chamber” synony- employees (like a sheriff) who uses the mous with unfairness and illegality “color of law” (claim of legal right) to from the bench. In modem Ameri- violate an individual’s civil rights. can history the best example of star Such “state action” gives the person chamber proceedings was the con- whose rights have been violated by a duct of the House Un-American Ac- governmental body or official the right tivities Committee (1938-1975), to sue that agency or person for dam- which used its subpena power to in- ages. (See: civil rights) timidate citizens by asking them unconstitutional questions about state of domicile: n. the state in their political beliefs and associa- which a person has his/her perma- tions, and then charging them with nent residence or intends to make contempt of Congress for refusing to his/her residence, as compared to answer. Another example was the where the person is living temporar-

conduct of criminal proceedings ily. Domicile depends on intent, loca- against black defendants in some tion of a home where a person regu- southern states from 1876 until the larly sleeps and some conduct. A cor- late 1960s. (See: due process, kan- poration’s state of domicile is the garoo court) state where the corporation is incorporated. (See: domicile, resident) stare decisis (stah-ree duh-sigh-sis) n. Latin for “to stand by a decision,” status conference: n. a pre-trial the doctrine that a trial court is meeting of attorneys before a judge bound by appellate court decisions required under federal Rules of Pro- (precedents) on a legal question cedure and in many states required

which is raised in the lower court. to inform the court as to how the Reliance on such precedents is re- case is proceeding, what discovery quired of trial courts until such time has been conducted (depositions, in- as an appellate court changes the terrogatories, production of docu- rule, for the trial court cannot ig- ments), any settlement negotiations, nore the precedent (even when the probable length of trial and other

trial judge believes it is “bad law”). matters relevant to moving the case (See: appellate court, lower toward trial. Court rules usually re- court, precedent) quire the filing of a status conference statement prior to the conference. In

state: n. 1) the federal or state gov- federal courts the status conference ernment and any of its departments, is also the occasion for setting a trial agencies or components (such as a date. (See: discovery)

city, county or board). 2) any of the 50 states comprising the United statute: n. a federal or state written States. 3) a nation’s government. law enacted by the Congress or state legislature, respectively. Local state action: n. in federal Civil statutes or laws are usually called Rights Acts, dating back to 1875, “ordinances.” Regulations, rulings, any activity by the government of a opinions, executive orders and procla- state, any of its components or mations are not statutes.

390 statutory offer of settlement statute of frauds: n. law in every governmental agency). There are also state which requires that certain statutes of limitations on bringing documents be in writing, such as criminal charges, but homicide gener- real property titles and transfers ally has no time limitation on prosecu- (conveyances), leases for more tion. The limitations (depending on the than a year, wills and some types state) generally range from 1 to 6 of contracts. The original statute years except for in Rhode Island, was enacted in England in 1677 to which uses 10 years for several causes prevent fraudulent title claims. of action. Louisiana has the strictest (See: contracts, deeds, fraud, limitations, cutting off lawsuit rights

leases, wills) at one year for almost all types of cases except contracts. California also has statute of limitations: n. a law short periods, usually one year, with which sets the maximum period two years for most property damage which one can wait before filing a and oral contracts and four years for lawsuit, depending on the type of written contracts. There are also case or claim. The periods vary by statutes of limitations on the right to state. Federal statutes set the limi- enforce a judgment, ranging from five tations for suits filed in federal to 25 years, depending on the state. courts. If the lawsuit or claim is not Some states have special require-

filed before the statutory deadline, ments before a lawsuit can be filed, the right to sue or make a claim is such as a written warning to a physi- forever dead (barred). The types of cian in a claim of malpractice, making cases and statute of limitations pe- a demand upon a state agency and riods are broken down among: per- then waiting for the claim to be denied

sonal injury from negligence or in- or ignored for a particular period, first tentional wrongdoing, property demanding a retraction before filing a damage from negligence or inten- libel suit, and other variations. Ver- tional wrongdoing, breach of an oral mont protects its ski resorts by allow- contract, breach of a written con- ing only one year for filing a lawsuit tract, professional malpractice, for injuries suffered in a skiing acci- libel, slander, fraud, trespass, a dent as an exception to that state’s claim against a governmental entity three-year statute of limitations for (usually a short time), and some other personal injuries. (See: demur- other variations. In some instances rer, laches, toll) a statute of limitations can be ex-

tended (“tolled”) based on delay in statutory offer of settlement: n. a discovery of the injury or on reason- written offer of a specific sum of money able reliance on a trusted person (a made by a defendant to a plaintiff, fiduciary or confidential adviser who which will settle the lawsuit if accept- has hidden his/her own misuse of ed within a short time. The offer may someone else’s funds or failure to be filed with the court, and if the even-

pay). A minor’s right to bring an tual judgment for the plaintiff is less action for injuries due to negligence than the offer, the plaintiff will not be is tolled until the minor turns able to claim the court costs usually 18 (except for a claim against a awarded to the prevailing party.

391 statutory rape

statutory rape: n. sexual intercourse usually on a procedural matter, be- with a female below the legal age of tween the attorneys for the two sides consent but above the age of a child, in a legal action. Some stipulations

even if the female gave her consent, are oral, but the courts often require did not resist and/or mutually par- that the stipulation be put in writing, ticipated. In all but three states the signed and filed with the court. age of consent is 18, and the age above which the female is no longer stock: 1) n. inventory (goods) of a busi- a child varies, although 14 is com- ness meant for sale (as distinguished mon. The theory of statutory rape is from equipment and facilities). 2) that the girl is incapable of giving share in the ownership of a corpora- consent, although marriage with a tion (called “shares of stock” or simply

parent’s consent is possible in many “shares”). 3) cattle. 4) v. to keep goods states at ages as low as 14. Inter- ready for sale in a business. (See: course with a female child (below 14 share, shareholder) or whatever the state law provides)

is rape, which is a felony. Increasing- stock certificate: n. printed document

ly statutory rape is not charged which states the name, incorporation

when there is clear consent by the fe- state, date of incorporation, the regis- male, particularly when the girl will tered number of the certificate, the not cooperate in a prosecution. Con- number of shares of stock in a corpo- troversy continues over what consti- ration the certificate represents, the tutes “resistance” or “consent,” par- name of the shareholder, the date of ticularly when some men insist a issuance and the number of shares au- woman who said “no” really meant thorized in the particular issue of “yes.” (See: majority, minority, stock, signed by the president and molestation, rape) secretary of the corporation (or with facsimile signatures). On the reverse stay: n. a court-ordered short-term side of the certificate is a form for delay in judicial proceedings to transfer of the certificate to another give a losing defendant time to person. After transfer the new owner arrange for payment of the judg- should register the change of owner- ment or move out of the premises ship with the corporation. (See: cor- in an unlawful detainer case. (See: poration, share, stock) stay of execution) stockholder: n. shareholder in a corpo- stay away order: n. a court order ration. (See: shareholder) that a person may not come near and/or contact another. (See: stockholders’ derivative action: n. peace bond, restraining order) (See: derivative action, shareholders’ derivative action)

stay of execution: n. a court-ordered delay in inflicting the death penalty. stock in trade: n. the inventory of mer- (See: stay) chandise held for sale.

stipulation: n. an agreement, stock option: n. the right to purchase

392 strike

stock in the future at a price set at argument which is intended to distract the time the option is granted (by the other side from the real issues or sale or as compensation by the cor- waste the opponent’s time and effort, poration). To actually obtain the sometimes called a “red herring” (for shares of stock the owner of the op- the belief that drawing a fish across a tion must “exercise” the option by trail will mislead hunting dogs). paying the agreed upon price and requesting issuance of the shares. street: n. a roadway in an urban area, (See: option, stock, share) owned and maintained by the municipality for public use. A private road stop and frisk: n. a law enforcement cannot be a street. officer’s search for a weapon confined to a suspect’s outer clothing strict construction (narrow con- when either a bulge in the clothing struction): n. interpreting the Con- or the outline of the weapon is visi- stitution based on a literal and narrow ble. The search is commonly called a definition of the language without ref- “pat down,” and any further search erence to the differences in conditions requires either a search warrant or when the Constitution was written “probable cause” to believe the sus- and modern conditions, inventions pect will commit or has committed a and societal changes. By contrast crime (including carrying a con- “broad construction” looks to what cealed weapon, which itself is a someone thinks was the “intent” of the crime). The limited right to “stop framers’ language and expands and and frisk” is intended to halt the interprets the language extensively to practice of random searches of peo- meet current standards of human con- ple in hopes of finding evidence of duct and complexity of society. (See: criminal activity or merely for pur- Constitution, construction) poses of intimidation, particularly of minorities. (See: probable cause, strict liability: n. automatic respon- search, search and seizure, sibility (without having to prove neg- search warrant) ligence) for damages due to possession and/or use of equipment, mate- straw man: n. 1) a person to whom rials or possessions which are inher- title to property or a business inter- ently dangerous, such as explosives, est is transferred for the sole pur- wild animals, poisonous snakes or

pose of concealing the true owner assault weapons. This is analogous and/or the business machinations of to the doctrine of res ipsa loquitur in the parties. Thus, the straw man which control, ownership and dam- has no real interest or participation ages are sufficient to hold the owner but is merely a passive stand-in for a liable. (See: liability, negligence, real participant who secretly con- res ipsa loquitur) trols activities. Sometimes a straw

man is involved when the actual strike: 1) v. to remove a statement from owner is not permitted to act, such the record of the court proceedings by as a person with a criminal record order of the judge due to impropriety holding a liquor license. 2) an of a question, answer or comment to

393 structure

which there has been an objection. subchapter S corporation: n. the Often after a judge has stricken choice by a small corporation to be some comment or testimony (an an- treated under “subchapter S” by the swer made before an objection has Internal Revenue Service, which al- stopped the witness), he/she admon- lows the corporation to be treated ishes (warns) the jury not to consid- like a partnership for taxation pur- er the stricken language, but the poses. This may provide the benefit jury has a hard time forgetting since of passing losses (particularly in the “a bell once rung cannot be unrung.” early development of the business) to

2) v. to order that language in a the stockholders. Technically the pleading (a complaint or an answer, term “subchapter S corporation” is a

for example) shall be removed or no misnomer since it is a normal corpo- longer be of any effect, usually after ration except for the election (choice) a motion by the opposing party and which is filed on a form provided by argument, on the basis that the lan- the IRS normally immediately after guage (which may be an entire incorporation, which election can be cause of action) is not proper plead- withdrawn before the beginning of a ing, does not state a cause of action future taxable year. This election is (a valid claim under the law) or is usually prepared and filed with the not in proper form. 3) n. the orga- IRS by the company’s accountant nized refusal of workers to remain and not the incorporating attorney. on the job, usually accompanied by (See: corporation) demands for a union contract, higher wages, better conditions or other subcontractor: n. a person or business employee desires, and possibly in- which has a contract (as an “indepen- cluding a picket line to give voice to dent contractor” and not an employee) workers’ demands and discourage or with a contractor to provide some por- intimidate other workers and cus- tion of the work or services on a project tomers from entering the business, which the contractor has agreed to factory or store. perform. In building construction, subcontractors may include such trades as structure: n. anything built by plumbing, electrical, roofing, cement man/woman, from a shed to a high- work and plastering. If a subcontrac- rise or a bridge. tor is not paid for his/her work, he/she has the right to enforce a “mechanic’s sua sponte: (sooh-uh spahn-tay) lien” on the real property upon which

adj. Latin for “of one’s own will,” the work was done to collect. (See: meaning on one’s own volition, contract, contractor, independent usually referring to a judge’s order contractor, mechanic’s lien) made without a request by any party to the case. These include an subject to: adj. referring to the acqui- order transferring a case to anoth- sition of title to real property upon er judge due to a conflict of interest which there is an existing mortgage or the judge’s determination that or deed of trust when the new owner his/her court does not have juris- agrees to take title with the respon- diction over the case. sibility to continue to make the

394 subpena (subpoena)

payments on the promissoiy note particularly a new loan. A property secured by the mortgage or deed of owner with a loan secured by the trust. Thus, the new owner property who applies for another loan (grantee) buys the property “subject to make additions or repairs usually to” secured debt. However, should must get a subordination of the origi- the new owner fail to pay, the original loan so the new obligation is in nal debtor will be liable for the pay- first place. A declaration of homestead ment, but the holder of the mortgage must always be subordinated to a or beneficiary of the deed of trust loan. (See: secured transactions, may foreclose and the buyer could subordination agreement,) thus lose title. This differs from the new title holder “assuming” the subordination agreement: n. a writ- mortgage or deed of trust by a written contract in which a lender who ten transfer of the obligation. Such a has secured a loan by a mortgage or transfer must be approved by the deed of trust agrees with the proper- lender, since the new owner’s credit ty owner to subordinate the first loan may or may not be as strong as the to a new loan (thus giving the new original owner/borrower’s. (See: as- loan priority in any foreclosure or sumption, deed of trust, mort- payoff). The agreement must be ac- gage, secured transactions) knowledged by a notary so it can be recorded in the official county sublease: n. the lease to another of records. (See: subordination) all or a portion of premises by a tenant who has leased the premises subornation of perjury: n. the crime from the owner. A sublease may be of encouraging, inducing or assisting prohibited by the original lease, or another in the commission of peijury, require written permission from the which is knowingly telling an untruth owner. In any event, the original under oath. Example: lawyer Frank

tenant (lessee) is still responsible for Foghorn is interviewing a witness in paying the rent to the owner (land- an accident case who tells Foghorn lord/lessor) through the term of the that Foghorn’s client was jaywalking original lease and sublease. (See: outside the crosswalk when struck by lease, rent) the defendant’s car. Foghorn tells the witness to help his client by saying the submitted: n. the conclusion of all accident occurred in the crosswalk evidence and argument in a hear- and the witness so testifies in court. ing or trial, leaving the decision in Foghorn is guilty of subornation of the the hands of the judge. Typically witness’s peijury. (See: peijury) the judge will ask the attorneys

after final arguments: “Is it sub- subpena (subpoena): (suh-pea-nah) mitted?” If so, no further argument n. an order of the court for a witness to

is permitted. appear at a particular time and place to testify and/or produce documents in subordination: n. allowing a debt or the control of the witness (if a “subpe- claim which has priority to take sec- na duces tecum”). A subpena is used to ond position behind another debt, obtain testimony from a witness at

395 subpena duces tecum

both depositions (testimony under subpoena: n. the original spelling

oath taken outside of court) and at of subpena, still commonly used. (See: trial. Subpenas are usually issued subpena, subpena duces tecum) automatically by the court clerk but must be served personally on the subrogation: n. assuming the legal party being summoned. Failure to rights of a person for whom expenses appear as required by the subpena or a debt has been paid. Typically, can be punished as contempt of subrogation occurs when an insur- court if it appears the absence was ance company which pays its insured intentional or without cause. (See: client for injuries and losses then contempt of court, deposition, sues the party which the injured per- subpena duces tecum, subpoe- son contends caused the damages to na, witness) him/her. Example: Fred Farmer negligently builds a bonfire which gets

subpena duces tecum : (suh-pea- out of control and starts a grass fire nah dooh-chess-take-uhm or dooh- which spreads to Ned Neighbor’s kess-take-uhm): a court order re- barn. Good Hands Insurance Co. has quiring a witness to bring docu- insured the bam, pays Neighbor his ments in the possession or under estimated cost of reconstruction of the control of the witness to a cer- the barn, and then sues Farmer for tain place at a certain time. This that amount. Farmer will have all subpena must be served personally the “defenses” to the insurance com- on the person subpenaed. It is the pany’s suit that he would have had common way to obtain potentially against Neighbor, including the con- useful evidence, such as documents tention that the cost of repairing the and business records, in the pos- barn was less than Neighbor was session of a third party. A subpena paid or that Neighbor negligently got duces tecum must specify the docu- in the way of firefighters trying to

ments or types of documents (e.g. put out the grass fire. (See: negli- “profit and loss statements of ABC gence, subrogee, subrogor) Corporation for years 1987 through 1995, all correspondence in regard subrogee: n. the person or entity that to the contract between ABC Cor- assumes the legal right to attempt to poration and Merritt”) or it will be collect a claim of another (subrogor) subject to an objection that the re- in return for paying the other’s ex- quest is “too broad and burden- penses or debts which the other claims some.” To obtain documents from against a third party. A subrogee is the opposing party, a “Request for usually the insurance company which Production of Documents” is more has insured the party whose expenses commonly used. Failure to respond were paid. Thus, the subrogee insur- to a subpena duces tecum may sub- ance company may file a lawsuit ject the party served with the sub- against a party which caused the dam- pena to punishment for contempt ages to its insured which the subrogee of court for disobeying a court paid. (See: subrogation, subrogor) order. (See: contempt of court- subpena, witness) subrogor: n. a person or entity that

396 substitution of attorney

transfers his/her/its legal right to unless the product was required for a collect a claim to another (subrogee) Halloween sale. (See: contract, spe- in return for payment of the subro- cific performance) gor’s expenses or debts which he/she/it claims. Thus, a person in- substantive law: n. law which estab- jured in an accident (subrogor) is lishes principles and creates and de- paid by his/her/its own insurance fines rights limitations under which company (subrogee) for the dam- society is governed, as differentiated ages, and then the insurance com- from “procedural law,” which sets the pany sues the party who apparently rules and methods employed to ob- caused the damages. (See: subro- tain one’s rights and, in particular, gation, subrogee) how the courts are conducted. (See: procedure) subscribe: v. 1) to sign at the end of a document. The courts have been substituted service: n. accomplishing flexible in recognizing signatures service (delivery) of legal documents elsewhere on a contract or will, on required to be served personally by the theory that a document should leaving the documents with an adult be found valid if possible. 2) to order resident of the home of the person to and agree to pay for am issue of be served, with an employee with stock, bonds, limited partnership management duties at the office of an interest, investment or periodical individual, with such an employee at magazine or newspaper. corporate headquarters, with a designated “agent for acceptance of service” substantial performance: n. in the (often with name and address filed law of contracts, fulfillment of the with the state’s Secretary of State), or obligations agreed to in a contract, in some cases (like a notice to quit the with only slight variances from the premises) by posting in a prominent exact terms and/or unimportant place followed by mailing copies by cer- omissions or minor defects. A simple tified mail to the person to be served.

test is whether the omission, vari- (See: service, service of process) ance or defect can be easily compensated for with money. Examples: a) substitute in: v. to take over a case the contract is for supplying 144 from another lawyer, which must be pumps for $14,400, and only 140 confirmed by a written statement were delivered; b) the real property filed with the court. (See: substitu- was supposed to be 80 acres and tion of attorney) only contained 78 acres. This constitutes substantial performance un- substitution: n. putting one person in less the loss of two acres is crucial to place of another, in particular replace- the value of the property (e.g. re- ment of the attorney of record in a law- duced the number of lots able to be suit with another attorney (or the

subdivided); c) the product was to be party acting in propria persona). (See: delivered on October 25 and did not substitution of attorney) arrive until November 5. This constitutes substantial performance substitution of attorney: n. a

397 succession

document in which the party to a for which a person injured by anoth- lawsuit states that his/her attorney er’s negligence or wrongdoing may re- of record is being substituted for by cover “general damages” (a money another attorney or by the party amount not based on specific calcula- acting for himselfTherself (in propria tion like medical bills but as compen-

persona ). Normally the departing sation for the suffering which is sub- attorney and the replacement attor- jective and based on the empathy of

ney will both sign the document, the trier of the facts—jury or judge sit- agreeing to the substitution, but ting without a jury). (See: damages, only the new attorney need agree, general damages, injury, negli- since a party may replace counsel at gence, pain and suffering) any time. (See: substitute in) suicide: n. the intentional killing of succession: n. the statutory rules of oneself. Ironically, in most states sui- inheritance of a dead person’s cide is a crime, but if successful there estate when the property is not is no one to punish. However, at- given by the terms of a will, also tempted suicide can be a punishable called laws of “descent and distrib- crime (seldom charged against one ution.” (See: descent and distrib- surviving the attempt). “Assisted sui-

ution, inheritance) cide” is usually treated as a crime, either specifically (as in Michigan) or as successive sentences: n. in crimi- a form of homicide (second degree nal law, the imposition of the murder or manslaughter), even when penalty for each of several crimes, done as a kindness to a loved one who

one after the other, as compared to is terminally ill and in great pain. “concurrent sentences” (at the (See: homicide, manslaughter, sec- same time). Example: Carl Convict ond degree murder) has been found guilty of

manslaughter, assault with a sui generis: (sooh-ee jen-ur-iss) n. deadly weapon and armed robbery, Latin for “one of a kind,” unique. for which the maximum sentences are 15 years, 10 years and 10 suit: n. generic term for any filing of a years, respectively. By imposing complaint (or petition) asking for legal successive sentences, the judge redress by judicial action, often called adds the terms together and sen- a “lawsuit.” In common parlance a suit tences Convict to 35 years. Had the asking for a court order for action

judge made the sentences concur- rather than a money judgment is often

rent, the maximum total would be called a “petition,” but technically it is 15 years. (See: concurrent sen- a “suit in equity.” (See: lawsuit) tence, sentence) sum certain: n. a specific amount stat- suffering: n. the pain, hurt, inconve- ed in a contract or negotiable instru- nience, embarrassment and/or in- ment (like a promissory note) at the ability to perform normal activities time the document is written. A sum as a result of injury, usually in the certain does not require future calcu- combination “pain and suffering,” lation or the awaiting of future

398 summary judgment

happenings. Example: “Wanda issues often accompanies the broader Williams will pay Wilma Jackson motion for summary judgment, which $10,000 for redecorating her house, can result in judgment on the entire

including all costs,” is a sum certain complaint or some causes of action be- as compared to “Williams will pay fore the trial starts. The pleading pro- Jackson for time (at the rate of $50 cedures are extremely technical and an hour) and costs of materials for complicated and are particularly dan- redecoration of Williams’ house.” gerous to the party against whom such a motion is made. (See: summa- summation: n. the final argument ry judgment) of an attorney at the close of a trial in which he/she attempts to con- summary judgment: n. a court order vince the judge and/or jury of the ruling that no factual issues remain to virtues of the client’s case. (See: be tried and therefore a cause of ac- closing argument) tion or all causes of action in a complaint can be decided upon certain summary adjudication of issues: facts without trial. A summary judg- n. a court order ruling that certain ment is based upon a motion by one of factual issues are already deter- the parties that contends that all nec- mined prior to trial. This summary essary factual issues are settled or so adjudication is based upon a motion one-sided they need not be tried. The by one of the parties contending motion is supported by declarations that these issues are settled and under oath, excerpts from depositions need not be tried. The motion is which are under oath, admissions of supported by declarations under fact and other discovery, as well as a oath, excerpts from depositions legal argument (points and authori-

which are under oath, admissions ties), that argue that there are no tri- of fact by the opposing party and able issues of fact and that the settled other discovery, as well as a legal facts require a summary judgment for argument (points and authorities). the moving party. The opposing party The other party may respond by will respond by counter-declarations counter-declarations and legal ar- and legal arguments attempting to guments attempting to show that show that there are “triable issues of

these issues were “triable issues of fact.” If it is unclear whether there is fact.” If there is any question as to a triable issue of fact in any cause of whether there is conflict on the action, then summary judgment must facts on an issue, the summary ad- be denied as to that cause of action. judication must be denied regard- The theory behind the summary judg-

ing that matter. The theory behind ment process is to eliminate the need this summary process is to reduce to try settled factual issues and to de- the number of factual questions cide without tried one or more causes which will require evidence at trial of action in the complaint. The plead- and eliminate one or more causes of ing procedures are extremely techni- action in the complaint or converse- cal and complicated and are particu- ly find a judgment for plaintiff. The larly dangerous to the party against motion for summary adjudication of whom the motion is made. (See:

399 summons

cause of action, summary adju- or sentence pending the decision on dication of issues) the appeal or until further order of the appeals court. (See: appeal, summons: n. a document issued by court of appeals) the court at the time a lawsuit is

filed, stating the name of both plain- superseding cause: n. the same as an tiff and defendant, the title and file “intervening cause” or “supervening number of the case, the court and its cause,” which is an event which occurs address, the name and address of after the initial act leading to an acci- the plaintiffs attorney, and instruc- dent and substantially causes the tions as to the need to file a response accident. The superseding cause

to the complaint within a certain relieves from responsibility (liability) time (such as 30 days after service), the party whose act started the usually with a form on the back on series of events which led to the acci-

which information of service of sum- dent, since the original negligence is mons and complaint is to be filled no longer the proximate cause. out and signed by the process server. (See: intervening cause, proxi- A copy of the summons must be mate cause) served on each defendant at the same time as the complaint to start supplemental: adj. referring to any- the time running for the defendant thing that is added to complete some- to answer. Certain writs and orders thing, particularly a document, such to show cause are served instead of a as a supplemental declaration, sup- summons since they contain the plemental complaint, supplemental same information along with special answer, supplemental claim. orders of the court. After service to the defendants, the original sum- suppression of evidence: n. l)a mons, along with the “return of ser- judge’s determination not to allow ev- vice” proving the summons and com- idence to be admitted in a criminal

plaint were served, is filed with the trial because it was illegally obtained court to show that each defendant or was discovered due to an illegal was served. A summons differs from search. 2) the improper hiding of evi- a subpena, which is an order to a dence by a prosecutor who is consti- witness to appear. (See: complaint, tutionally required to reveal to the order to show cause, service, defense all evidence. Such suppres- service of process, writ) sion is a violation of the due process clause (5th Amendment, applied to Superior Court: n. the name used in states by the 14th Amendment) and 16 states for the basic county trial may result in dismissal, mistrial or court. (See: court) reversal on appeal, as well as contempt of court for the prosecutor. supersedeas: (sooh-purr-said-ee- (See: due process, evidence) uhs) Latin for “you shall desist,” an

order (writ) by an appeals court supra : (sooh-prah) Latin for “above,”

commanding a lower court not to in legal briefs and decisions it refers enforce or proceed with a judgment to the citation of a court decision

400 surrender

which has been previously men- except Maryland and New York tioned. Thus a case when first (which call the highest court the Court

cited will be referred to as Guinn v. ofAppeals). 3) in New York a Supreme United States, (1915) 238 U.S. 347, Court is a basic trial court much like a

meaning it can be found in volume superior, county or district court in 238 of the U.S. Reports (of the other states. (See: court) Supreme Court) at page 347 and was decided in 1915. The next time surcharge: n. an additional charge of

the case is cited as Guinn v. Unit- money made because it was omitted ed States, supra. in the original calculation or as a penalty, such as for being late in supremacy clause: n. Article VI, sec- making a payment. tion 2 of the U.S. Constitution, which reads: “This Constitution, surety: n. a guarantor of payment or and the Laws of the United States performance if another fails to pay or which shall be made in pursuance perform, such as a bonding company thereof; and all treaties made, or which posts a bond for a guardian, an which shall be made, under the au- administrator or a building contrac- thority of the United States, shall be tor. Most surety agreements require the supreme law of the land; and that a person looking to the surety the judges in every state shall be (asking for payment) must first at- bound thereby, any thing in the tempt to collect or obtain performance Constitution or laws of any state to from the responsible person or entity. the contrary notwithstanding.” (See: bond, guarantor) Thus a Supreme Court ruling can be binding on state courts if involv- surplusage: n. a term used in analyzing a constitutional issue. ing legal documents and pleadings to refer to wording or statements which

Supreme Court: n. 1) the highest have no legal effect and, therefore, can court in the United States, which be ignored. has the ultimate power to decide constitutional questions and other surrebutal: n. in written or oral legal appeals based on the jurisdiction argument, the response to the other granted by the Constitution, includ- party’s response (rebuttal) to the ini- ing cases based on federal statutes, tial argument. In written briefs most between citizens of different states, courts will not allow more than a sin- and when the federal government is gle surrebutal. The rule is usually the a party. The court is made up of nine same for oral argument. However, oc- members appointed for life by the casionally the parties joust back and President of the United States, with forth until the judge stops the debate. confirmation required by the Sen-

ate. One of the nine is the ChiefJus- surrender: v. 1) to turn over possession tice (appointed by the President if of real property, either voluntarily or there is a vacancy), and the others upon demand, by tenant to landlord. are Associate Justices. 2) the ulti- 2) to give oneself up to law enforce- mate appeals court in every state ment officials.

401 surrogate

surrogate: n. 1) a person acting on or meets other conditions. Should behalf of another or a substitute, the sentenced party fail to follow including a woman who gives birth these requirements, then the sus- to a baby of a mother who is unable pended sentence may be enforced. to carry the child. 2) a judge in (See: sentence) some states (notably New York) re-

sponsible only for probates, estates sustain: v. in trial practice, for a judge and adoptions. to agree that an attorney’s objection, such as to a question, is valid. Thus, surrogate court: n. a court in a few an attorney asks a witness a ques- states (including New York) with tion, and the opposing lawyer ob- jurisdiction over probates, estates jects, saying the question is “irrele- and adoptions. vant, immaterial and incompetent,” “leading,” “argumentative,” or some survivor: n. a person who outlives other objection. If the judge agrees another, as in “to my sons, Arnold he/she will rule “sustained,” mean- and Zeke, or the survivor.” The ing the objection is approved and the survivor is determined at the time question cannot be asked or an- the asset or property is received, swered. However, if the judge finds so if both sons are alive they are the question proper, he/she will both survivors. “overrule” the objection.

survivorship: n. the right to receive swear: v. 1) to declare under oath that full title or ownership due to hav- one will tell the truth (sometimes ing survived another person. Sur- “the truth, the whole truth and noth- vivorship is particularly applied to ing but the truth”). Failure to tell the persons owning real property or truth and do so knowingly is the other assets, such as bank ac- crime of perjury. 2) to administer an counts or stocks, in “joint tenancy.” oath to a witness that he/she will tell Joint tenancy includes the right of the truth, which is done by a notary survivorship automatically, except public, a court clerk, a court reporter that in some states joint tenancy of or anyone authorized by law to ad- a bank account creates only a pre- minister oaths. 3) to install into of- sumption of survivorship, which fice by administering an oath. 4) to might be disproved by evidence use profanity. (See: notary public, that the joint tenancy was only for oath, perjury) convenience. (See: joint tenancy)

swindle: v. to cheat through trick, de- suspended sentence: n. in crimi- vice, false statements or other fraud- nal law, a penalty applied by a ulent methods with the intent to ac- judge to a defendant convicted of a quire money or property from anoth- crime which the judge provides er to which the swindler is not enti-

will not be enforced (is suspended) tled. Swindling is a crime as one if the defendant performs certain form of theft. (See: fraud, theft) services, makes restitution to persons harmed, stays out of trouble syndicate: n. a joint venture among

402 syndicate individuals and/or corporations to accomplish a particular business objective, such as the purchase, development and sale of a tract of real property, followed by division of the profits. A joint venture, and thus a syndicate, is much like a partnership, but has a specific objective or purpose, after the completion of which it will dissolve. (See: joint venture)

403 tainted evidence: n. in a criminal tax: n. a governmental assessment trial, information which has been (charge) upon property value, transac- obtained by illegal means or has tions (transfers and sales), licenses been traced through evidence ac- granting a right and/or income. These quired by illegal search and/or include federal and state income taxes, seizure. This evidence is called county and city taxes on real property, “fruit of the poisonous tree” and is state and/or local sales tax based on a not admissible in court. (See: fruit percentage of each retail transaction, of the poisonous tree, probable duties on imports from foreign coun- cause, search and seizure, tries, business licenses, federal tax search warrant) (and some states’ taxes) on the estates of persons who have died, taxes on take: v. to gain or obtain possession, large gifts and a state “use” tax in lieu including the receipt of a legacy of sales tax imposed on certain goods from an estate, getting title to real bought outside of the state. (See: ad property or stealing an object. valorem, capital gains, estate tax, franchise tax, gift tax, income tax, taking the Fifth: n. the refusal to unified estate and gift tax, use tax) testify on the ground that the testimony might tend to incriminate tax costs: n. a motion to contest a claim the witness in a crime, based on for court costs submitted by a prevail- the Fifth Amendment to the ing party in a lawsuit. It is called a Constitution, which provides that “Motion to Tax Costs” and asks the “No person... shall be compelled to judge to deny or reduce claimed costs. be a witness against himself,” ap- Example: a winning party claims a plied to state courts by the 14th right to have his/her attorneys’ fees Amendment. The term became fa- and telephone bills paid by the loser, mous during televised Senate com- even though they are not allowable as mittee hearings on organized costs under state law or the contract crime in 1951, when a series of which was the subject of the suit. So crime bosses “took the Fifth.” (See: the loser makes a “Motion to Tax self-incrimination) Costs” to avoid paying these charges. tangible property: n. physical arti- Tax Court: n. a federal agency with cles (things) as distinguished from courts in major cities which hear tax- “incorporeal” assets such as rights, payers’ appeals from decisions of the patents, copyrights and franchises. Internal Revenue Service. Tax court Commonly tangible property is hears the appeal de novo (as a trial called “personalty.” (See: intangi- rather than an appeal) and does not ble property, personal proper- require payment of the amount ty, personalty) claimed by the IRS before hearing the case. Tax court decisions may be

404 tenancy

appealed to the Federal District temporary injunction a lasting rule) or Court of Appeals. (See: court, in- “dissolve” (cancel) the temporary income tax) junction. (See: injunction, temporary restraining order) tax evasion: n. intentional and

fraudulent attempt to escape pay- temporary insanity: n. in a criminal ment of taxes in whole or in part. If prosecution, a defense by the accused proved to be intentional and not just that he/she was briefly insane at the an error or difference of opinion, tax time the crime was committed and evasion can be a chargeable federal therefore was incapable of knowing crime. Evasion is distinguished the nature of his/her alleged criminal from attempts to use interpretation act. Temporary insanity is claimed as a

of tax laws and/or imaginative ac- defense whether or not the accused is

counting to reduce the amount of mentally stable at the time of trial. payable tax. One difficulty with a temporary insanity defense is the problem of proof, tax return: n. the form to be filed since any examination by psychiatrists with a taxing authority by a tax- had to be after the fact, so the only ev- payer which details his/her/their idence must be the conduct of the ac- income, expenses, exemptions, de- cused immediately before or after the ductions and calculation of taxes crime. It is similar to the defenses of which are chargeable to the tax- “diminished capacity” to understand payer. (See: tax) one’s own actions, the so-called “Twinkie defense,” the “abuse excuse,” tax sale: n. an auction sale of a tax- “heat of passion” and other claims of payer’s property conducted by the mental disturbance which raise the federal government to collect un- issue of criminal intent based on mod- paid taxes. em psychiatry and/or sociology. How- ever, mental derangement at the time temporary injunction: n. a court of an abmpt crime, such as a sudden order prohibiting an action by a attack or crime of passion, can be a party to a lawsuit until there has valid defense or at least show lack of been a trial or other court action. A premeditation to reduce the degree of temporary injunction differs from a the crime. (See: crime, defense, di- “temporary restraining order” minished capacity, insanity, in- which is a short-term, stop-gap intent, Twinkie defense) junction issued pending a hearing, at which time a temporary injunc- tenancy: n. the right to occupy real tion may be ordered to be in force property permanently, for a time until trial. The purpose of a tempo- which may terminate upon a certain rary injunction is to maintain the event, for a specific term, for a series status quo and prevent irreparable of periods until cancelled (such as damage or change before the legal month-to-month), or at will (which questions are determined. After the may be terminated at any time). trial the court may issue a “perma- Some tenancy is for occupancy only nent injunction” (making the as in a landlord-tenant situation, or

405 tenancy at sufferance

a tenancy may also be based recognize that type of property on ownership of title to the proper- ownership. (See: community prop-

ty. (See: joint tenancy, landlord erty, tenancy) and tenant, tenancy at sufferance, tenancy at will, tenancy tenancy in common: n. title to proper- by the entirety, tenancy in ty (usually real property, but it can common, tenant, title) apply to personal property) held by two or more persons, in which each tenancy at sufferance: n. a “hold- has an “undivided interest” in the over” tenancy after a lease has ex- property and all have an equal right to pired but before the landlord has use the property even if the percent- demanded that the tenant quit age of interests are not equal or the (vacate) the premises. During a living spaces are different sizes. Un- tenancy at sufferance the tenant is like ‘joint tenancy,” there is no “right bound by the terms of the lease (in- of survivorship” if one of the tenants cluding payment of rent) which ex- in common dies, and each interest

isted before it expired. The only may be separately sold, mortgaged or difference between a “tenancy at willed to another. Thus, unlike a joint sufferance” and a “tenancy at will” tenancy interest, which passes auto- is that the latter was created by matically to the survivor, upon the agreement. (See: landlord and death of a tenant in common there tenant, tenancy, tenancy at must be a probate (court supervised will, unlawful detainer) administration) of the estate of the deceased to transfer the interest (owner- tenancy at will: n. occupation of real ship) in the tenancy in common. (See: property owned by another until joint tenancy, tenancy) such time as the landlord gives notice of termination of the tenancy tenant: n. a person who occupies real (usually 30 days by state law or property owned by another based upon agreement), which may be given at an agreement between the person and any time. A tenancy at will is creat- the landlord/owner, almost always for ed by agreement between the tenant rental payments. (See: tenancy) and the landlord, but it cannot be

transferred by the tenant to some- tender: 1) v. to present to another per- one else since the landlord controls son an unconditional offer to enter

the right to occupy. (See: tenancy) into a contract. 2) v. to present payment to another. 3) n. delivery, except tenancy by the entirety: n. joint that the recipient has the choice not to ownership of title by husband and accept the tender. However, the act of wife, in which both have the right tender completes the responsibility of to the entire property, and, upon the person making the tender. (See: the death of one, the other has title delivery, offer) (right of survivorship). Tenancy by the entirety is used in many states tenement: n. 1) a term found in older and is analogous to “community deeds or in boiler-plate deed lan- property” in the seven states which guage which means any structure on

406 testatrix

real property. 2) old run-down must understand the nature of mak- urban apartment buildings with ing a will, have a general idea of what several floors reached by stair- he/she possesses, and know who are ways. (See: structure) members of the immediate family or other “natural objects of his/her boun- tentative trust: n. a bank account ty.” Inherent in that capacity is the deposited in the name of the deposi- ability to resist the pressures or dom- tor “in trust for” someone else, ination of any person who may try to which is a tentative trust until the use undue influence on the distribu- death of the depositor since the tion of the testator’s (will writer’s) es- money can be withdrawn at any tate. (See: capacity, competent, time. (See: trust) undue influence, will) tenure: n. 1) in real property, the testamentary disposition: n. how the right to possess the property. 2) in terms of a will divide the testator’s employment contracts, particularly (will writer’s) estate, including specific of public employees like school gifts to named beneficiaries. (See: will) teachers or professors, a guaranteed right to a job (barring substantial testamentary trust: n. a trust creat- inability to perform or some wronged by the terms of a will. Example: ful act) once a probationary period “The residue of my estate shall form has passed. the corpus (body) of a trust, with the executor as trustee, for my children’s term: n. 1) in contracts or leases, a health and education, which shall period of time, such as five years, terminate when the last child at- in which a contract or lease is in tains the age of 25, when the re- force. 2) in contracts, a specified maining corpus and any accumulat- condition or proviso. 3) a period for ed profits shall be divided among my which a court sits or a legislature then living children.” A testamentary “ is in session. 4) a word or phrase trust differs from an inter vivos” or for something, as “tenancy” is one “living” trust, which comes into term for “occupancy.” being during the lifetime of the creator of the trust (called trustor, sett- testacy: n. dying with a will (a testa- lor or donor), usually from the time ment). It is compared to “intestacy,” the declaration of trust is signed. which is dying without a will. (See: inter vivos trust, living (See: intestacy) trust, trust, will) testamentary: adj. pertaining to testator: n. a person who has written a a will. will which is in effect at the time of his/her death. (See: will) testamentary capacity: n. having the mental competency to execute a testatrix: n. female form of testator, will at the time the will was signed although distinguishing between and witnessed. To have testamen- genders is falling out of fashion. tary capacity, the author of the will (See: testator)

407 testify

testify: v. to give oral evidence under but has an involvement (such as one oath in answer to questions posed who is a buyer from one of the parties, by attorneys either at trial or at a was present when the agreement was deposition (testimony under oath signed or made an offer that was re- outside of court), with the opportu- jected). The third party normally has nity for opposing attorneys to cross- no legal rights in the matter, unless examine the witness in regard to the contract was made for the third answers given. (See: deposition, party’s benefit. (See: beneficiary, evidence, testimony, trial) third-party beneficiary)

testimony: n. oral evidence given police must obey the law under oath by a witness in answer The while enforcing the law. to questions posed by attorneys at Justice Earl Warren trial or at a deposition (questioning —Chief under oath outside of court). (See: deposition, evidence, testify, third-party beneficiary: n. a person

trial, witness) who is not a party to a contract but has legal rights to enforce the contract

theft: n. the generic term for all or share in proceeds because the con- crimes in which a person intention- tract was made for the third party’s ally and fraudulently takes person- benefit. Example: Grandma enters al property of another without per- into a contract with Oldfield to pur- mission or consent and with the in- chase a Jaguar automobile to be given

tent to convert it to the taker’s use to grandchild as a graduation present. (including potential sale). In many If Oldfield takes a down payment and states, if the value of the property then refuses to go through with the taken is low (for example, less than sale, grandchild may sue Oldfield for $500) the crime is “petty theft,” but specific performance of the contract as

it is “grand theft” for larger a third-party beneficiary. amounts, designated misdemeanor

or felony, respectively. Theft is syn- 30-day notice: n. a notice by a land- onymous with “larceny.” Although lord to a tenant on a month-to-month robbery (taking by force), burglary tenancy or a holdover tenant to leave (taken by entering unlawfully) and the premises within 30 days. Such embezzlement (stealing from an em- notice does not have to state any rea- ployer) are all commonly thought of son and is not based on failure to pay as theft, they are distinguished by rent. The landlord’s service of the no- the means and methods used and tice and the tenant’s failure to vacate are separately designated as those at the end of 30 days provide the types of crimes in criminal charges basis for a lawsuit for unlawful de- and. statutory punishments. (See: tainer (eviction) and a court judg- burglary, embezzlement, larce- ment ordering the tenant to leave. ny, robbery) While this is a common notice period, it does not apply in all states or third party: n. a person who is not a all circumstances, such as local rent party to a contract or a transaction, control ordinances. (See: landlord

408 title

and tenant, service, unlaw- tide lands: n. land between the high ful detainer) and low tides, which is uncovered each day by tidal action. This land belongs three-day notice: n. a notice to pay to the owner of the land which fronts delinquent rent or quit (leave or va- on the sea at that point. cate) the premises given by a landlord to a tenant, which in most time is of the essence: n. a phrase states gives the tenant three days to often used in contracts which in effect pay or get out. Service of the notice says: the specified time and dates in and failure of the tenant to pay or this agreement are vital and thus vacate within three days provide the mandatory, and “we mean it.” There- basis for a lawsuit for unlawful de- fore any delay—reasonable or not, tainer (eviction) for unpaid rent and slight or not—will be grounds for can- a court judgment ordering the ten- celling the agreement. (See: contract) ant to leave. While the three-day no-

tice period is common it does not timely: adj. within the time required by apply in all states or in all circum- statute, court rules or contract. Exam- stances, such as local rent control or- ple: a notice of appeal is required to be dinances. (See: landlord and ten- filed within 60 days of the entry of ant, service, unlawful detainer) judgment, so a notice filed on the 61st day is not “timely.” three strikes, you’re out: n. recent (beginning 1994) legislation enacted time served: n. the period a criminal in several states (and proposed in defendant has been in jail, often many others, as well as possible fed- while awaiting bail or awaiting trial. eral law) which makes life terms (or Often a judge will give a defendant extremely long terms without parole) “credit for time served,” particularly mandatory for criminals who have when sentencing for misdemeanors. been convicted of a third felony (as in Example: Johnny Jumpstart was ar- California) or of three felonies involv- rested for drunk driving and spent ing violence, rape, use of a deadly the night in jail before he was re- weapon or molestation. The impetus leased on his own recognizance. Since for “three strikes, you’re out” has the minimum sentence in his state come from public outrage over mur- was 48 hours, the judge will sentence ders, assaults, rapes and child mo- him to that time, less 14 hours for lestations by released ex-convicts time served. After lengthy waits in with records of repeated violent jail before trial, “time served” may crimes. Concern has been expressed become very important to the defen- about the provisions in some of the dant. (See: sentence)

bills which prohibit plea bargaining of any charged felony down to a mis- title: n. 1) ownership of real property or demeanor, deny any judicial discre- personal property, which stands tion in sentencing and do not distin- against the right of anyone else to guish between violent felonies and claim the property. In real property, cases of non-violent crimes which in- title is evidenced by a deed, judgment volve small amounts of money. of distribution from an estate or other

409 title abstract

appropriate document recorded in is held (joint tenancy, etc.), tax rate, the public records of the county. encumbrances (mortgages, liens, Title to personal property is gener- deeds of trusts, recorded judgments), ally shown by possession, particu- and real property taxes due. A title re- larly when no proof or strong evi- port made when the report is ordered dence exists showing that the prop- is called a “preliminary report,” or a erty belongs to another or that it “prelim,” and at time of recording an has been stolen or known to be lost up-to-date report is issued which is by another. In the case of automo- the final title report. The history of the biles other and vehicles, title is reg- title is called an “abstract.” A title re- istered with the state’s Department port is prepared by a title company, an of Motor Vehicles, which issues a abstractor, an attorney or an escrow title document (“pink slip”) to the company, depending on local practice. owner. 2) the name for one’s position Normally a title report’s accuracy is in a business or organization, such insured by title insurance which will as president, general manager, require the insurance company to ei- mayor, governor, duke. 3) the name ther correct any error or pay damages for legal a case, such as Eugene resulting from a “cloud on title,” en-

Chan v. Runabout Taxi Company, cumbrance or title flaw in the title Inc., which is part of the “caption” of which was not reported. (See: ab- the case. (See: caption, personal stract, cloud on title, title, title property, pink slip, real proper- company, title insurance) ty, title search)

title search: n. the examination of title abstract: n. a history of the county records for the property’s title chain of title. (See: abstract) history by a title company, an abstractor, attorney or escrow officer to deter- title insurance: n. a policy issued by mine the “chain of title” and the cur- an insurance company guarantee- rent status of title, including owner, ing that the title to a parcel of real legal description, easements, property property is clear and properly in the taxes due, encumbrances (mortgages name of the title owner and that the or deeds of trust), long-term leases, owner has the right to deed the judgments or other liens. When a title property (convey or sell) to another. search is completed, a “preliminary Should a problem later arise with report” on title will be issued by the the title (such as an inaccurate de- searcher. On the recording date of any scription), the insurance company new transfer or encumbrance (such as will pay the damages to the new a new secured loan), an updated “final title holder or secured lender or take title report” will be issued which will steps to correct the problem. (See: make it possible to obtain title insur- chain of title, title, title search) ance guaranteeing against any problems with the title. Sometimes the title report: n. the written analysis title search will turn up some “cloud of the status of title to real property, on the title” which reveals something including a property description, is wrong, such as a break in the chain names of titleholders and how title of title, inaccurate property descrip-

410 tort claims act

tion in a previous deed or some old for a person to earn an income to sup- secured loan which has not been report the family and pay creditors. leased. Such clouds can be a reason (See: bankruptcy) to cancel a contract for purchase of the real property. (See: abstractor, tort: n. from French for “wrong,” a civil chain of title, encumbrance, es- wrong or wrongful act, whether inten- crow, lien, title, title company, tional or accidental, from which injury title insurance) occurs to another. Tbits include all negligence cases as well as intentional toll: v. 1) to delay, suspend or hold off wrongs which result in harm. There- the effect of a statute. Examples: a) fore tort law is one of the major areas a minor is injured in an accident of law (along with contract, real prop- when he is 14 years old, and the erty and criminal law) and results in state law (statute of limitations) al- more civil litigation than any other lows a person hurt by negligence category. Some intentional torts may two years to file suit for damages. also be crimes, such as assault, bat- But for a minor the statute is tery, wrongful death, fraud, conver- “tolled” until he/she becomes 18 and sion (a euphemism for theft) and tres- decides whether or not to sue. Thus pass on property and form the basis the minor has two years after 18 to for a lawsuit for damages by the in-

file suit, b) state law allows 10 years jured party. Defamation, including in- to collect a judgment, but if the tentionally telling harmful untruths judgment debtor (party who owes about another—either by print or the judgment amount) leaves the broadcast (libel) or orally (slander)—is state, the time is “tolled,” so the a tort and used to be a crime as well. judgment creditor (party to whom (See: assault, battery, conversion, judgment is owed) will have extra damages, defamation, fraud, libel, time to enforce the judgment equal negligence, slander, trespass, to the time the debtor was out of wrongful death) state. 2) a charge to pass over land, use a toll road or turnpike, cross a tort claims act: n. a federal or state bridge or take passage on a ferry. act which, under certain conditions, waives governmental immunity and

tontine: n. a rare agreement among allows lawsuits by people who claim several persons who agree that each they have been harmed by torts will invest in an annuity and the (wrongful acts), including negligence, last to die will receive the remaining by government agencies or their em- assets and profits. ployees. These acts also establish the procedure by which such claims are

tools of trade: n. in bankruptcy law, made. Before the enactment of tort the equipment a person requires in claims acts, government bodies could order to pursue his occupation, not be sued without the specific per- which is exempt from claims of mission of the government. The fed- creditors. They are also generally eral version is the Federal Tort exempt from attachment by judg- Claims Act. (See: Federal Tort ment creditors since it is important Claims Act)

411 tortfeasor

tortfeasor: n. a person who commits name for the product are not trade- a tort (civil wrong), either intention- marks. Trademarks may be registered ally or through negligence. (See: with the U.S. Patent Office to prove joint tortfeasors, tort) use and ownership. Use of another’s

trademark (or one that is confusingly tortious: adj. referring to an act similar) is infringement and the basis which is a tort (civil wrong). for a lawsuit for damages for unfair (See: tort) competition and/or a petition for an injunction against the use of the infring- to wit: prep, that is to say. Example: ing trademark. (See: trade name) “the passengers in the vehicle, to

wit: Arlene Jones, Betty Bumgart- trade name: n. a name of a business or ner and Sherry Younger.” one of its products which, by use of the name and public reputation, identifies trade: 1) n. a business or occupation the product as that of the business. A for profit, particularly in retail or trade name belongs to the first busi-

wholesale sales or requiring special ness to use it, and the identification

mechanical skill. 2) v. to exchange and reputation give it value and the one thing for another, which in- right to protect the trade name cludes money for goods, goods for against its use by others. Example: goods and favors for goods or money. Sheaffer’s is clearly identified as a (See: trade fixture, trademark, fountain pen manufactured by the trade secret) Sheaffer Company, and no one else can produce pens with that name. trade fixture: n. a piece of equip- However, a motorcycle with the name ment on or attached to the real es- Sheaffer would not be an infringe-

tate which is used in a trade or busi- ment since the product is different. ness. Trade fixtures differ from (See: trademark) other fixtures in that they may be removed from the real estate (even trader: in U.S. income tax law, a per- if attached) at the end of the tenan- son who deals in property as a busi- cy of the business, while ordinary ness, making several purchases and fixtures attached to the real estate sales within a year as distinguished become part of the real estate. The from a few sales of assets held for in- business tenant must compensate vestment. Thus a trader will lose the the owner for any damages due to right to defer capital gains by “ex- removal of trade fixtures or repair changing” for another property. The such damage. (See: fixture, trade) exact details require consultation with a C.P.A. or attorney. trademark: n. a distinctive design,

picture, emblem, logo or wording (or trade secret: n. a process, method, combination) affixed to goods for plan, formula or other information sale to identify the manufacturer as unique to a manufacturer, which gives the source of the product. Words that it an advantage over competitors. merely name the maker (but with- Therefore the trade secret has out particular lettering) or a generic value and may be protected by a

412 transferred intent

court-ordered injunction against use 3) a piece of paper given to allow a per- or revelation of trade secrets by an son or shipment to continue travel. employee, former employee or someone who comes into possession of transfer agent: n. a person or company the trade secret. The employer may retained by a corporation to process seek damages against such a person transfers and registration of shares

for revealing the secret. In addition, of stock (stock certificates). One diffi- the owner of a trade secret involved culty is that the stock certificates do in a lawsuit may request a “protec- not always include the name and ad- tive order” from the judge to prohib- dress of the current transfer agent, it revelation of a trade secret or a but the information can be obtained sealing of the record in the case from the corporation or a stockbroker. where references to the trade secret (See: share, stock) are made. A trade secret is a business process and not a patentable transfer in contemplation of death: invention. (See: patent, trade) n. giving property under the belief of the giver that he/she is about to die transcript: n. the written record of or has a terminal illness. However, all proceedings, including testimo- health recovery may result in cancel- ny, in a trial, hearing or deposition lation of the gift. This is also called a (out-of-court testimony under oath). “gift causa mortis.” (See: gift in con- Jurisdictions vary as to whether templation of death) the attorneys’ final arguments are

recorded, with the Federal Court transferred intent: n. in both criminal Reporter Act, but not all states, re- and tort (civil wrong) law, when an in- quiring inclusion. A copy of the tent to cause harm to one person re- transcript may be ordered from the sults in harm to another person in- court reporter and a fee paid for the stead of the intended target, the law transcription and first copy; if the transfers the intent to the actual opposing party also wants a copy, harm. Examples: a) with malice afore- the cost will not include the tran- thought Nate Nogood intends to shoot scription fee. In most appeals a his girlfriend and misses her, and the copy of the transcript is required so bullet hits a passerby, killing him. No- that the court of appeals can review good may be charged with first degree the entire proceedings in the trial murder since the intent to commit court. Copies of depositions may be murder is transferred to the actual ordered for a fee from the court re- crime, b) Steve Swinger takes a punch porter who took down the testimo- at Harvey Hasgood, his hated enemy, ny. Transcripts are not printed from misses Hasgood and hits Hasgood’s the record unless transcription is date, Teri Truehart, in the nose,

requested. breaking it. Truehart can not only sue Swinger for damages due to the as- transfer: n. 1) the movement of prop- sault but can claim punitive damages erty from one person or entity to an- because the malice against Hasgood other. 2) passage of title to property attaches to the hit upon Truehart. from the owner to another person. (See: intent)

413 treason

treason: n. the crime of betraying or otherwise reacquired by the corpo- one’s country, defined in Article III, ration. Treasury stock held by a corpo- section 3 of the U.S. Constitution: ration earns dividends for the corpora- “Treason against the United States tion, but the corporation may not cast shall consist only in levying war votes in decision-making the way a against them, or in adhering to regular shareholder would be entitled. their enemies, giving them aid and (See: share, stock) comfort.” Treason requires overt acts and includes the giving of gov- treaty: n. a pact between nations ernment security secrets to other which, if entered into by the United countries, even if friendly, when States through its Executive Branch, the information could harm Amer- must be approved by “two-thirds of ican security. Treason can include the Senators present,” under Article revealing to an antagonistic coun- II, section 2 of the Constitution, to be- try secrets such as the design of a come effective. Presidents sometimes bomber being built by a private get around the Senate by entering company for the Defense Depart- into “Executive Agreements” with ment. Treason may include “espi- leaders of other countries which are a onage” (spying for a foreign power mode of cooperation and not enforce- or doing damage to the operation able treaties. of the government and its agencies, particularly those involved in treble damages: n. tripling damages security) but is separate and worse allowed by state statute in certain than “sedition,” which involves a types of cases, such as not making conspiracy to upset the operation good on a bad check or intentionally of the government. (See: espi- refusing to pay rent. Federal antitrust onage, sedition) violations also carry treble damage penalties. (See: damages) treasury bill: n. a promissory note issued in multiples of $10,000 by the trespass: n. entering another person’s U.S. Treasury with a maturity date property without permission of the of not more than one year. (See: owner or his/her agent and without treasury bond, treasury note) lawful authority (like that given to a health inspector) and causing any treasury bond: n. a long-term bond damage, no matter how slight. Any in- issued by the U.S. Treasury. (See: terference with the owner’s (or a legal treasury bill, treasury note) tenant’s) use of the property is a sufficient showing of damage and is a civil treasury note: n. a promissory note wrong (tort) sufficient to form the issued by the U.S. Treasury, for a basis for a lawsuit against the tres- period of one to five years. (See: passer by the owner or a tenant using treasury bill, treasury bond) the property. Trespass includes erecting a fence on another’s property or a treasury stock: n. stock of a private roof which overhangs a neighbor’s corporation which was issued and property, swinging the boom of a crane then bought back by the corporation with loads of building materials over

414 triple net lease

another’s property, or dumping de- determine legal issues and decide fac- bris on another’s real estate. In ad- tual questions and render (give) a dition to damages, a court may judgment. A jury will judge the factual grant an injunction prohibiting any issues and decide the verdict based on further continuing, repeated or per- the law as given in the instructions by

manent trespass. Trespass for an il- the judge. Final verdict or judgment legal purpose is a crime. usually concludes the trial, although in some criminal cases a further trial trial: n. the examination of facts and will be held to determine “special cir- law presided over by a judge (or cumstances” (acts which will increase other magistrate, such as a commis- the punishment) or whether the death sioner or judge pro tern) with au- penalty should be imposed. Through- thority to hear the matter (jurisdic- out a trial there may be various motion). A trial begins with the calling tions on legal issues, some of which of the parties to come and be heard may be argued in the judge’s cham-

and selection of a jury if one has bers. In most criminal cases the exact been requested. Each party is enti- punishment will be determined by the tled to an opening statement by judge at a hearing held at a later time.

his/her attorney (or the party if

he/she is representing himself/her- trial court: n. the court which holds

self), limited to an outline of what the original trial, as distinguished each side intends to prove (the de- from a court of appeals. (See: trial) fense may withhold the opening statement until the defense is ready trial de novo: n. a form of appeal in to present evidence), followed by the which the appeals court holds a trial presentation of evidence first by the as if no prior tried had been held. A plaintiff (in a civil case) or prosecu- trial de novo is common on appeals tion (in a criminal case), followed by from small claims court judgments. the defense evidence, and then by rebuttal evidence by the plaintiff or tribunal: n. any court, judicial body or prosecution to respond to the de- board which has quasi-judicial func- fense. At the conclusion of all evi- tions, such as a public utilities board dence each attorney (plaintiff or which sets rates or a planning com- prosecution first) can make a final mission which can allow variances argument which can include opinion from zoning regulations. (See: court) and comment on evidence and legal

questions. If it is a jury trial, the trier of fact: n. the judge or jury re- judge will give the jury a series of in- sponsible for deciding factual issues

structions as to the law of the case, in a trial. If there is no jury the judge based on “jury instructions” submit- is the trier of fact as well as the trier ted by the attorneys and approved, of the law. In administrative hear- rejected, modified and/or added to by ings, an administrative law judge, a the judge. Then the jury retires to board, commission or referee may be the jury room, chooses a foreperson the trier of fact. and decides the factual questions.

If there is no jury, the judge will triple net lease: n. a lease in which the

415 T.R.O.

lessee’s (tenant’s) rent includes a trustor or settlor) the remaining as- share of real property taxes, insur- sets will be distributed to beneficia- ance and maintenance as well as ries. A trust may take the place of a the basic rent. A “triple-net-lease” is will and avoid probate (management standard in leases of commercial of an estate with court supervision) property in shopping centers and by providing for distribution of all as- malls. (See: lease, rent) sets originally owned by the trustors or settlors upon their death. There T.R.O.: n. legal slang for temporary are numerous types of trusts, includ- restraining order. (See: restraining “revocable trusts” created to han- ing order) dle the trustors’ assets (with the trustor acting as initial trustee), often

true bill: n. the written decision of a called a “living trust” or “inter vivos Grand Jury (signed by the Grand trust” which only becomes irrevocable

Jury foreperson) that it has heard on the death of the first trustor; “ir- sufficient evidence from the prose- revocable trust,” which cannot be cution to believe that an accused changed at any time; “charitable re- person probably committed a mainder unitrust,” which provides for crime and should be indicted. eventual guaranteed distribution of Thus, the indictment is sent to the the corpus (assets) to charity, thus court. (See: indictment) gaining a substantial tax benefit. There are also court-decreed “con- trust: n. an entity created to hold as- structive” and “resulting” trusts over

sets for the benefit of certain per- property held by someone for its sons or entities, with a trustee owner. A “testamentary trust” can be managing the trust (and often hold- created by a will to manage assets ing title on behalf of the trust). given to beneficiaries. (See: charita- Most trusts are founded by the per- ble remainder trust, constructive sons (called trustors, settlors and/or trust, declaration of trust, inter donors) who execute a written dec- vivos trust, living trust, resulting laration of trust which establishes trust, settlor, testamentary trust, the trust and spells out the terms trustee, trustor) and conditions upon which it will be conducted. The declaration also names the original trustee or Justice should remove the ban- trustees, successor trustees or dage from her eyes long enough means to choose future trustees. to distinguish between the vi- The assets of the trust are usually cious and the unfortunate. given to the trust by the creators, —Robert G. Ingersoll although assets may be added by others. During the life of the trust, trust deed: n. another name for a deed profits and, sometimes, a portion of of trust, a form of mortgage used in

the principal (called “corpus”) may some states, in which title is trans- be distributed to the beneficiaries, ferred to a trustee to protect the

and at some time in the future lender (beneficiary) until the loan is (such as the death of the last paid back. (See: deed of trust)

416 “Twinkie” defense trustee: n. a person or entity who Truth in Lending Act: n. a federal holds the assets (corpus) of a statute which requires a commercial trustee for the benefit of the bene- lender (bank, savings and loan, ficiaries and manages the trust mortgage broker) to give a borrower and its assets under the terms of exact information on interest rates the trust stated in the declaration and a three-day period in which the

of trust which created it. In many borrower may compare and consider “living trusts” the creator of the competitive terms and cancel the trust (trustor, settlor) names him- loan agreement. self/herself (or themselves) as the original trustee who will manage turn states’ evidence: v. for a person the trust until his/her death when accused of a crime to decide to give

it is taken over by a successor the prosecutor evidence about the trustee. In some trusts, such as a crime, including facts about other “charitable remainder unitrust,” participants in the crime (or other the trustee must be independent crimes) in return for lenient treat- and therefore cannot be the creator ment, a plea bargain and/or a recom- of the trust. If a trustee has title to mendation of a light sentence. property, he/she/it holds title only for the benefit of the trust and its “Twinkie” defense: n. a claim by a beneficiaries. (See: settlor, trust, criminal defendant that at the time trustor) of the crime he/she was of diminished mental capacity due to intake trustee in bankruptcy: n. a person of too much sugar, as from eating appointed by a bankruptcy court to “Twinkies,” sugar-rich snacks. The supervise the affairs of a person or defense was argued successfully by a business which is in bankruptcy, defense psychiatrist in the notorious determine both assets and debts, case of former San Francisco County marshal (gather) and manage the Supervisor Dan White, who shot and

assets if necessary, and report to killed San Francisco Mayor George the court. Most trustees in bank- Moscone and County Supervisor ruptcy are full-time professionals Harvey Milk, resulting in White’s and are paid from the estates of conviction for only manslaughter in- the debtors. (See: bankruptcy) stead of murder. (See: diminished capacity) trust fund: n. the principal (called the corpus) of a trust, made up of

its assets and, sometimes, accumulated profits. (See: trust)

trustor: n. the creator of a trust (who normally places the original assets into the trust), called a “settlor” or “donor” in many states. Trustor is a title used primarily in western states. (See: settlor, trust)

417 UCC-1: n. a financing agreement Highfliers, Inc. operate a small bank form for using personal property for its employees and friends, which (e.g. equipment) to secure a loan corporate law does not permit with- under the provisions of the Uni- out a bank charter, or sells shares of

form Commercial Code (UCC) stock to the public before a permit is adopted in almost all states. issued. (See: corporation) ultimate fact: n. in a trial, a conclu- unclean hands: n. a legal doctrine sion of fact which is logically de- which is a defense to a complaint,

duced from evidence (“evidentiary which states that a party who is ask- facts”). Example: the evidentiary ing for a judgment cannot have the facts were that driver Larry Lead- help of the court if he/she has done foot a) exceeded the speed limit, b) anything unethical in relation to the

drove over the double-line, c) skid- subject of the lawsuit. Thus, if a defended and lost control of his car; the dant can show the plaintiff had “un- ultimate fact was, therefore, Lead- clean hands,” the plaintiff’s complaint foot was negligent. It is essential to will be dismissed or the plaintiff will

introduce the evidentiary facts dur- be denied judgment. Unclean hands is ing the trial in order to prove the ul- a common “affirmative defense” plead- timate fact. A mere statement by a ed by defendants and must be proved witness that “Leadfoot was negli- by the defendant. Example: Hank gent” is not sufficient, since it is an Hardnose sues Grace Goodenough for opinion of the witness and is not ev- breach of contract for failure to pay the idence. (See: evidence) full amount for construction of an addition to her house. Goodenough ultrahazardous activity: n. an ac- proves that Hardnose had shown her tion or process which is so inherent- faked estimates from subcontractors to ly dangerous that the person or en- justify his original bid to Goodenough. tity conducting the activity is (See: affirmative defense) “strictly liable” for any injury caused by the activity. Examples: unconscionable: adj. referring to a working with high explosives or con- contract or bargain which is so unfair ducting a professional auto race on to a party that no reasonable or in-

public streets. formed person would agree to it. In a suit for breach of contract, a court will ultra vires: (uhl-trah veye-rehz) adj. not enforce an unconscionable con- Latin for “beyond powers,” in the tract (award damages or order specif- law of corporations, referring to ic performance) against the person acts of a corporation and/or its offi- unfairly treated, on the theory that cers outside the powers and/or he/she was misled, lacked information authority allowed a corporation or signed under duress or misunder- by law. Example: Directors of standing. It is similar to an “adhesion

418 undue influence

contract,” in which one party has undisclosed principal: n. a person taken advantage of a person dealing who uses an agent for his/her negoti- from weakness. (See: adhesion ations with a third party, often when contract, contract) the agent pretends to be acting for himself/herself. As a result, the third unconstitutional: adj. referring to a party does not know he/she can look statute, governmental conduct, to the real principal in any dispute. court decision or private contract (See: agent, principal) (such as a covenant which purports to limit transfer of real property only undivided interest: n. title to real to Caucasians) which violate one or property held by two or more persons more provisions of the U.S. Consti- without specifying the interests of tution. The ultimate determination each party by percentage or descrip- of constitutionality is the U.S. tion of a portion of the real estate. Supreme Court. Unconstitutional Such interests are typical between can also refer to violations of a state joint tenants, tenants in common and constitution. (See: constitution, tenants by the entirety. (See: joint Supreme Court) tenancy, real property, tenancy by the entirety, tenancy in common) under the influence: n. one of many phrases for being drunk on alcoholic Now, as always, the conflict beverages or high on drugs or a com- over technicalities, mostly pro- bination of alcohol and drugs. Dri- cedural, between judge and ving a vehicle when “under the in- lawyers, takes more time than fluence” of alcohol or drugs is a is occupied by the actual evi- crime, as is “public drunkenness.” dence. (See: driving under the influ- Harold J. Laski ence, driving while intoxicated) —

underwrite: v. 1) to agree to pay an undue influence: n. the amount of obligation which may arise from an pressure which one uses to force some- insurance policy. 2) to guarantee one to execute a will leaving assets in purchase of all shares of stock or a particular way, to make a direct gift bonds being issued by a corporation, while alive or to sign a contract. The including an agreement to purchase key element is that the influence was

by the underwriter if the public does so great that the testator (will writer),

not buy all the shares or bonds. 3) to donor (gift giver) or party to the con- guarantee by investment in a busi- tract had lost the ability to exercise ness or project. (See: guarantee, his/her judgment and could not refuse guarantor, insurer, underwriter) to give in to the pressure. Evidence of such dominance of another’s mind underwriter: n. a company or per- may result in invalidation of the will, son which/who underwrites an in- gift or contract by a court if the will, surance policy, issue of corporate gift or contract is challenged. Partici- securities, business or project. pation in preparation of the will, ex- (See: underwrite) cluding other relatives being present

419 unfair competition

when the testator and the attorney tax (if any) and prepare the tax meet, are all evidence of undue return. (See: estate tax, gift tax) pressure, and an imbalance or

change in language which greatly Uniform Commercial Code: n. a set favors the person exercising the of statutes governing the conduct of influence is a factor in finding business, sales, warranties, nego- undue influence. Example: Pete tiable instruments, loans secured by Pounder constantly visits his aunt personal property and other commer- Agnes while she is ill and always cial matters, which has been adopted urges her to leave her mansion to with minor variations by all states him instead of to her son. Pounder except Louisiana. (See: UCC-I) threatens to stop visiting the old lady, who is very lonely, tells her unilateral contract: n. an agreement she is ungrateful for his attention, to pay in exchange for performance,

finally brings over an attorney who if the potential performer chooses to

does not know Agnes and is pre- act. A “unilateral” contract is distin- sent while she tells the attorney to guished from a “bilateral” contract, write a new will in favor of which is an exchange of one promise Pounder. (See: will, will contest) for another. Example of a unilateral contract: “I will pay you $1,000 if you unfair competition: n. wrongful bring my car from Cleveland to San and/or fraudulent business meth- Francisco.” Bringing the car is accep- ods to gain an unfair advantage tance. The difference is normally over competitors, including: a) un- only of academic interest. (See: bi- true or misleading advertising, b) lateral contract, consideration, misleading customers by imitative contract, performance) trademark, name or package, c)

falsely disparaging another’s prod- uninsured motorist clause: n. the uct. Although state laws vary, un- clause in a policy of insurance on an fair competition is the basis for a automobile which provides that if legal action (suit) for damages the owner (or a passenger) of the au- and/or an injunction to halt the de- tomobile is injured by a negligent ceptive practices against an unfair driver of another vehicle who does competitor if the practices tend to not have liability insurance, then the harm one’s business. insurance company will pay its insured’s actual damages. unified estate and gift tax: n. in federal estate taxes, the value of the unissued stock: n. a corporation’s estate plus gifts upon which no gift shares of stock which are authorized tax has been paid are combined to by its articles of incorporation but determine the assets upon which have never been issued (sold) to any- the tax is calculated. The estate tax one. They differ from “treasury

“kicks in” at $600,000 for each de- stock,” which is stock that was is- ceased person. In larger estates an sued and then reacquired by the cor- experienced accountant is virtually poration. (See: corporation, share, mandatory to determine the estate stock, treasury stock)

420 use unjust enrichment: n. a benefit by possession of real property without a chance, mistake or another’s misfor- right, such as after a lease has expired, tune for which the one enriched has after being served with a notice to quit not paid or worked and morally and (vacate, leave) for non-payment of rent ethically should not keep. If the or other breach of lease, or being a money or property received rightly “squatter” on the property. Such pos- should have been delivered or be- session entitles the owner to file a law- longed to another, then the party suit for “unlawful detainer,” asking for enriched must make restitution to possession by court order, unpaid rent the rightful owner. Usually a court and damages. 2) a legal action to evict will order such restitution if a law- a tenant or other occupier of real prop- suit is brought by the party who erty in possession, without a legal should have the money or property. right, to declare a breach of lease, (See: constructive trust) and/or a judgment for repossession, as well as unpaid rent and other dam- unlawful: adj. referring to any action ages. Such lawsuits have priority over

which is in violation of a statute, most legal cases and therefore will be federal or state constitution, or es- calendared for trial promptly. (See: tablished legal precedents landlord and tenant, 30-day notice, three-day notice)

unlawi 1 assembly: n. the act of assembling for the purpose of starting unreasonable search and seizure: n. a riot or breaching the peace or search of an individual or his/her when such an assembly reasonably premises (including an automobile) could be expected to cause a riot or and/or seizure of evidence found in endanger the public. Although free- such a search by a law enforcement of- dom of assembly is guaranteed by ficer without a search warrant and the First Amendment to the Consti- without “probable cause” to believe ev- tution, law enforcement has the idence of a crime is present. Such a right to require disbursement of search and/or seizure is unconstitu- such an assembly as part of the “po- tional under the 4th Amendment (ap- lice powers” of the state and the po- plied to the states by the 14th Amend- tential dangers of riot or breach of ment), and evidence obtained thereby peace are subjective and decided on may not be introduced in court. (See: the spot by police officers or other fruit of the poisonous tree, proba- public officials. Claims of “unlawful ble cause, search and seizure) assembly” were often used to break up labor union picket lines until the use: n. the right to enjoy the benefits of late 1930s, against peaceful civil real property or personal property rights marches in the 1950s and (but primarily used in reference to 1960s, and by the police against real property), whether the owner of anti-Vietnam War demonstrators in the right has ownership of title or not. Los Angeles, Washington and Under English common law “use” of Chicago in the late 1960s. property became extremely important since title to real property could not be

unlawful detainer: n. 1) keeping conveyed outside a family line due to

421 use tax

“restraints on alienation,” so “use” and documents the term “et ux.” is of the property was transferred in- sometimes used to mean “and wife,” stead. This is a simplification of the stemming from a time when a wife way “uses” were employed, but was a mere legal appendage of a man today it is only of academic interest. and not worthy of being named.

use tax: n. a state tax on goods purchased in another state for use in the taxing state, to make up for local sales tax. Example: Bill Buyer, who lives in California (which has a sales tax), orders a freezer from a company in a state with no sales tax. California will attempt to charge a “use” tax equivalent to its sales tax.

usurious: adj. referring to the interest on a debt which exceeds the maximum interest rate allowed by law. (See: usury)

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. Charg- ing usury as a practice is a crime, usually only charged if a person makes a business of usury, sometimes called “loan-sharking.” Banks and other commercial lenders generally are not subject to anti-usury laws, but are governed by the marketplace and the competitive rates triggered by loan rates to institutions set by the Federal Reserve Bank. (See: usurious)

utter: v. 1) to issue a forged document. 2) to speak. (See: forgery)

uxor: n. Latin for “wife.” In deeds

422 vacate: v. 1) for a judge to set aside and what it has proved against a crim- or annul an order or judgment inal defendant. 3) a difference be- which he/she finds was improper. tween what is alleged in a civil com- 2) to move out of real estate and plaint and what is proved. A substan- cease occupancy. tial variance may be fatal to the prosecution’s case against the accused or vagrancy: n. moving about without a fatal to a plaintiff’s (the person who means to support oneself, without a filed the suit) lawsuit. In each case the permanent home, and relying on judge can dismiss the case as a matter

begging. Until recently it was con- of law, without sending the factual is- sidered a minor crime (misde- sues to the jury. In criminal cases the meanor) in many states. Constitu- test of a fatal variance is somewhat tionally it is evident that being poor stricter than in a civil lawsuit, since a is not a crime. The same is true of minor difference between the charge “loitering.” (See: loiter) and the proof may mislead the defendant and deny him/her “due process.” valuable consideration: n. a neces- (See: dismissal, due process, proof) sary element of a contract, which confers a benefit on the other party. vehicular manslaughter: n. the Valuable consideration can include crime of causing the death of a human money, work, performance, assets, a being due to illegal driving of an au- promise or abstaining from an act. tomobile, including gross negligence, (See: consideration, contract) drunk driving, reckless driving or speeding. Vehicular manslaughter variance: n. 1) an exception to a zon- can be charged as a misdemeanor ing ordinance, authorized by the ap- (minor crime with a maximum pun- propriate governmental body such ishment of a year in county jail or as a planning commission, zoning only a fine) or a felony (punishable by board, county commissioners or city a term in state prison) depending on council. Example: the zoning ordi- the circumstances. Gross negligence nance requires that no residences or driving a few miles over the speed can be built within 10 feet of a prop- limit might be charged as a misde- erty’s back line, but due to the odd meanor, but drunk driving resulting shape of May Matheson’s property, in a fatality is most likely treated as a she needs to build her dream house felony. Death of a passenger, includ- within five feet of the property line ing a loved one or friend, can be ve- at one point. The local zoning board hicular manslaughter if due to illegal listens to her plea, finds that the driving. (See: gross negligence, neighbors do not object, and grants manslaughter, reckless driving) her a variance to build closer to the back line. 2) a difference between vendee: n. a buyer, particularly of what the prosecution has charged real property.

423 vendor

vendor: n. a seller, particularly of change of venue, which is up to the dis- real property. cretion of a judge in the court where the case or prosecution was originally

filed. Venue is not to be confused with There is no distinctly native “jurisdiction,” which establishes the American criminal class ex- right to bring a lawsuit (often any- cept Congress. where within a state) whether or not it —Mark Twain is the place which is the most convenient or appropriate location. (See: venire: (ven-eer-ay) n. the list from forum non conveniens) which jurors may be selected. (See: jury, panel) verdict: n. the decision of a jury after a trial, which must be accepted by the venue: n. 1) the proper or most conve- trial judge to be final. Ajudgment by a nient location for trial of a case. Nor- judge sitting without a jury is not a

mally, the venue in a criminal case is verdict. A “special verdict” is a deci- the judicial district or county where sion by the jury on the factual ques- the crime was committed. For civil tions in the case, leaving the applica- cases, venue is usually the district or tion of the law to those facts to the county which is the residence of a judge, who makes the final judgment.

principal defendant, where a con- A “directed verdict” is a decision fol- tract was executed or is to be per- lowing an instruction by the judge formed, or where an accident took that the jury can only bring in a spe- place. However, the parties may cific verdict (“based on the evidence agree to a different venue for conve- you must bring in a verdict of ‘not nience (such as where most witness- guilty”). A “chance verdict” (decided es are located). Sometimes a lawsuit by lot or the flip of a coin), a “compro- is filed in a district or county which mise verdict” (based on some jurors is not the proper venue, and if the voting against their beliefs to break a defendant promptly objects (asks for deadlock) and a “quotient verdict” (av- a change of venue), the court will eraging the amount each juror wants order transfer of the case to the to award) are all improper and will re- proper venue. Example: a promisso- sult in a mistrial (having the verdict ry note states that any suit for col- thrown out by the judge) or be cause lection must be filed in Washington for reversal of the judgment on ap- County, Indiana, and the case is filed peal. (See: compromise verdict, di- in Lake County, Indiana. In high rected verdict, judgment, quo- profile criminal cases the original tient verdict, special verdict) venue may be considered not the best venue due to possible prejudice verification: n. the declaration under stemming from pre-trial publicity in oath or upon penalty of peijuiy that a

the area or public sentiment about statement or pleading is true, located the case which might impact upon at the end of a document. A typical potential jurors. For these various verification reads: “I declare under reasons either party to a lawsuit or penalty of peijury under the laws of

prosecution may move (ask) for a the State of California, that I have

424 viz

read the above complaint and I Vexatious litigation includes continu-

know it is true of my own knowl- ing a lawsuit after discovery of the

edge, except as to those things stat- facts shows it has absolutely no merit. ed upon information and belief, and Upon judgment for the defendant,

as to those I believe it to be true. Ex- he/she has the right to file a suit for

ecuted January 3, 1995, at Mon- “malicious prosecution” against the rovia, California, (signed) Georgia original vexatious plaintiff. Moreover, Gamer, declarant.” If a complaint is most states allow a judge to penalize verified then the answer to the com- with sanctions a plaintiff and his/her plaint must be verified. (See: an- attorney for filing or continuing a “friv- swer, complaint, oath) olous” legal action (money award to the defendant for the trouble and/or vest: v. to give an absolute right to attorney fees). (See: frivolous, mali- title or ownership, including real cious prosecution, sanction) property and pension rights. (See: vested, vested remainder) vicarious liability: n. sometimes called “imputed liability,” attachment vested: adj. referring to having an ab- of responsibility to a person for harm

solute right or title, when previously or damages caused by another person the holder of the right or title only in either a negligence lawsuit or crim- had an expectation. Example: after inal prosecution. Thus, an employer of 20 years of employment Larry an employee who injures someone Loyal’s pension rights are now vest- through negligence while in the scope ed. (See: vest, vested remainder) of employment (doing work for the employer) is vicariously liable for vested remainder: n. the absolute damages to the injured person. In right to receive title after a most states a participant in a crime

presently existing interest in real (like a hold-up) may be vicariously li- property terminates. A “vested re- able for murder if another member of mainder” is created by deed or by a the group shoots and kills a shopkeep- decree of distribution of an estate er or policeman. (See: felony mur- given by will. Example: “Title to der, liability, imputed liability) the Hard Luck Ranch to my son, Sean, subject to a life estate to my vigilante: n. someone who takes the brother, Douglas.” Sean has a law into his/her own hands by trying

“vested remainder” which is an ab- and/or punishing another person solute right, Sean could sell to an- without any legal authority. In the other person at this time, with oc- 1800s groups of vigilantes dispensed cupancy delayed until title would “frontier justice” by holding trials of pass to him. (See: vest, vested) accused horsethieves, rustlers and shooters, and then promptly hanging vexatious litigation: n. filing a law- the accused if “convicted.” A mother suit with the knowledge that it has who shoots the alleged molester of her

no legal basis, with its purpose to child is a vigilante. bother, annoy, embarrass and cause legal expenses to the defendant. viz: prep, to wit, or namely. Example:

425 void

“There were several problems, viz: neys in court. Voir dire is used to de- leaky roof, dangerous electrical termine if any juror is biased and/or system and broken windows.” (See: cannot deal with the issues fairly, or to wit) if there is cause not to allow a juror to serve (knowledge of the facts; ac- void: adj. referring to a statute, con- quaintanceship with parties, wit- tract, ruling or anything which is nesses or attorneys; occupation null and of no effect. A law or judg- which might lead to bias; prejudice ment found by an appeals court to against the death penalty; or previ- be unconstitutional is void, a re- ous experiences such as having been scinded (mutually cancelled) con- sued in a similar case). Actually one tract is void, and a marriage which of the unspoken purposes of the voir has been annulled by court judg- dire is for the attorneys to get a feel ment is void. (See: voidable) for the personalities and likely views of the people on the jury panel. In voidable: adj. capable of being some courts the judge asks most of made void. Example: a contract en- the questions, while in others the tered into by a minor under 18 is lawyers are given substantial lati- voidable upon his/her reaching tude and time to ask questions. majority, but the minor may also Some jurors may be dismissed for affirm the contract at that time. cause by the judge, and the attorneys “Voidable” is distinguished from may excuse others in “peremptory” “void” in that it means only that a challenges without stating any rea- thing can become void but is not son. 2) questions asked to determine necessarily void. (See: void) the competence of an alleged expert witness. 3) any hearing outside the void for vagueness: adj. referring presence of the jury held during to a statute defining a crime which trial. (See: jury, peremptory chal- is so vague that a reasonable per- lenge, expert witness) son of at least average intelligence could not determine what elements constitute the crime. Such a Judges must beware ofhard con- structions vague statute is unconstitutional and strained infer- on the basis that a defendant could ences, for there is no worse tor- not defend against a charge of a ture than the torture oflaws. crime which he/she could not un- —Sir Francis Bacon derstand, and thus would be denied “due process” mandated by voluntary bankruptcy: n. the filing the 5th Amendment, applied to the for bankruptcy by a debtor who be- states by the 14th Amendment. lieves he/she/it cannot pay bills and (See: due process) has more debts than assets. Volun- tary bankruptcy differs from “invol- voir dire: (vwahr [with a near-silent untary bankruptcy” filed by creditors “r”] deer) n. from French “to see to owed money to bring the debtor be- speak,” the questioning of prospec- fore the bankruptcy court. (See: tive jurors by a judge and attor- bankruptcy)

426 voting trust voting trust: n. a trust which solicits vote proxies of shareholders of a corporation to elect a board of directors and vote on other matters at a shareholders’ meeting. A voting trust is usually operated by current directors to insure continued con-

trol, but occasionally a voting trust represents a person or group trying to gain control of the corporation. (See: corporation, proxy, shareholder, stockholder)

427 waive: v. to voluntarily give up some- ward: n. 1) a person (usually a minor) thing, including not enforcing a who has a guardian appointed by the term of a contract (such as insisting court to care for and take responsibil- on payment on an exact date), or ity for that person. A governmental knowingly giving up a legal right agency may take temporary custody of such as a speedy trial, a jury trial or a minor for his/her protection and care a hearing on extradition (the trans- if the child is suffering from parental fer to another state’s jurisdiction of neglect or abuse, or has been in trou- one accused of a crime in the other ble with the law. Such a child is a

state). (See: waiver) “ward of the court” (if the custody is court-ordered) or a “ward of the state.”

2) a political division of a city, much The common law is nothing like a council district. (See: guardian) else but reason. —Sir Edward Coke, Com- warrant: 1) n. an order (writ) of a court mentary on Littleton which directs a law enforcement officer (usually a sheriff) to arrest and waiver: n. the intentional and vol- bring a person before the judge, such untary giving up of something, as a person who is charged with a such as a right, either by an ex- crime, convicted of a crime but failed to

press statement or by conduct appear for sentencing, owes a fine or is (such as not enforcing a right). The in contempt of court. A “bench war- problem which may arise is that a rant” is an order to appear issued by waiver may be interpreted as giv- the court when a person does not ap- ing up the right to enforce the same pear for a hearing, which can be re- right in the future. Example: the solved by posting bail or appearing. A holder of a promissory note who “search warrant” is an order permit- several times allows the debtor to ting a law enforcement officer to pay many weeks late does not search a particular premises and/or agree to waive the due date on fu- person for certain types of evidence, ture payments. A waiver of a legal based on a declaration by a law en- right in court must be expressed on forcement official, including a district

the record. (See: waive) attorney. 2) v. to claim to a purchaser that merchandise is sound, of good wanton: adj. 1) grossly negligent to quality or will perform as it should, or the extent of being recklessly un- that title to real property belongs to concerned with the safety of people the seller. (See: guarantee, search or property. Examples: speeding and seizure, search warrant) by a school while it is letting out students or firing a shotgun in a warranty: n. a written statement of public park. 2) sexually immoral good quality of merchandise, clear and unrestrained. title to real estate or that a fact stated

428 widow

in a contract is true. An “express drunk driving when the amount of warranty” is a definite written blood alcohol was borderline illegal, statement and “implied warranty” there was no accident and no prior is based on the circumstances sur- record. The result is a lower fine, no rounding the sale or the creation of jail time and no record of a drunk dri-

the contract. (See: warrant) ving conviction, but if there is a subsequent drunk driving conviction the warranty deed: n. a deed to real “wet reckless” will be considered a property which guarantees that “prior” drunk driving conviction and the seller owns clear title which result in a heavier sentence required can be transferred (conveyed). A for a second conviction. (See: driving “grant deed” generally is a warran- under the influence, DUI, DWI, ty deed, while a “quitclaim deed” is plea bargain) not. (See: grant deed, quitclaim

deed, warrant) whiplash: n. a common neck and/or back injury suffered in automobile ac- waste: n. 1) any damage to real prop- cidents (particularly from being hit erty by a tenant which lessens its from the rear) in which the head value to the landlord, owner or fu- and/or upper back is snapped back ture owner. An owner can sue for and forth suddenly and violently by damages for waste, terminate a the impact. The injury is to the “soft lease of one committing waste tissues” and sometimes to the verte- and/or obtain an injunction against brae, does not always evidence itself further waste. 2) garbage, which for a day or two, and can cause pain may include poisonous effluents. and disability for periods up to a year. The degree of injury and the pain and watered stock: n. shares of stock of a suffering from whiplash are often in corporation which have been issued dispute in claims and lawsuits for at a price far greater than true value. damages due to negligent driving. In this case, the actual value of all shares is less than the value carried white collar crime: n. a generic term on the books of the corporation. (See: for crimes involving commercial corporation, share, stock) fraud, cheating consumers, swindles, insider trading on the stock market, weight of evidence: n. the embezzlement and other forms of strength, value and believability of dishonest business schemes. The evidence presented on a factual term comes from the out-of-date as- issue by one side as compared to sumption that business executives evidence introduced by the other wear white shirts with ties. It also side. (See: evidence, preponder- theoretically distinguishes these ance of the evidence) crimes and criminals from physical crimes, supposedly likely to be com- wet reckless: n. a plea to a charge of mitted by “blue collar” workers. reckless driving which was “alcohol related.” A wet reckless results from widow: n. a woman whose husband a plea bargain to reduce a charge of died while she was married to him and

429 widower

who has not since remarried. by the person who made it (testator), A divorced woman whose ex-hus- be dated (but an incorrect date will not band dies is not a widow, ex- invalidate the will) and witnessed by cept for the purpose of certain two people (except in Vermont which Social Security benefits traceable to requires three). In some states the wit- the ex-husband. nesses must be disinterested, or in

some states, a gift to a witness is void, widower: n. a man whose wife died but the will is valid. A will totally in while he was married to her and the handwriting of the testator, signed who has not remarried. and dated (a “holographic will”) but without witnesses, is valid in many,

widow’s election: n. the choice a but not all, states. If the will (also

widow makes between accepting called a Last Will and Testament) is

what her husband left her in his will still in force at the time of the death of

and what she would receive by the the testator (will writer), and there is a laws of succession. Example: the substantial estate and/or real estate, state law in which the husband died then the will must be probated (ap- would give his widow one-half of his proved by the court, managed and dis- estate by the law of succession (the tributed by the executor under court other half going to the children) if supervision). If there is no executor

there were no will, but in his will the named or the executor is dead or un- late husband left his widow only able or unwilling to serve, am adminis- one-quarter of his estate. She can trator (“with will annexed”) will be ap- elect to take the one-half. (See: com- pointed by the court. A written amend- munity property, descent and ment or addition to a will is called a distribution, succession, will) “codicil” and must be signed, dated and witnessed just as is a will, and

will: n. a written document which must refer to the original will it

leaves the estate of the person who amends. If there is no estate, including signed the will to named persons or the situation in which the assets have entities (beneficiaries, legatees, di- all been placed in a trust, then the will visees) including portions or per- need not be probated. (See: codicil, centages of the estate, specific gifts, estate, executor, guardian, holo- creation of trusts for management graphic will, last will and testa- and future distribution of all or a ment, probate, testator) portion of the estate (a testamentary trust). A will usually names an ex- will contest: n. a lawsuit challenging ecutor (and possibly substitute ex- the validity of a will and/or its terms. ecutors) to manage the estate, states Bases for contesting a will include the authority and obligations of the the competency of the maker of the executor in the management and will (testator) at the time the will distribution of the estate, sometimes was signed, the “undue influence” of gives funeral and/or burial instruc- someone who used pressure to force tions, nominates guardians of minor the testator to give him/her substan- children and spells out other terms. tial gifts in the will, the existence of

To be valid the will must be signed another will or trust, challenging il-

430 witness

legal terms or technical faults in tion requires a plan for distribution the execution of the will, such as of assets to some charitable or other not having been validly witnessed. non-profit entity under the cy pres A trial of the will contest must be doctrine. (See: corporation, cy pres held before the will can be probat- doctrine, partnership) ed, since if the will is invalid, it cannot be probated. (See: in ter- wiretap: n. using an electronic device rorem clause, probate, will) to listen in on telephone lines, which is illegal unless allowed by court order based upon a showing by law right to be left alone the The — enforcement of “probable cause” to rights most comprehensive of believe the communications are part and the right most valued by of criminal activities. Use of wiretap civilized men. is also a wrongful act for which the —Justice Louis D. Brandeis party whose telephones were tapped may sue the party performing the act willful: adj. referring to acts which and/or listening in as an invasion of are intentional, conscious and privacy or for theft of information. A directed toward achieving a pur- wiretap differs from a “bug,” which is pose. Some willful conduct which a radio device secretly placed in one’s has wrongful or unfortunate re- premises to listen in on conversa- sults is considered “hardheaded,” tions or to tape incoming calls with- “stubborn” and even “malicious.” out notice to the caller. The same Example: “The defendant’s attack rules of illegality and tort liability on his neighbor was willful.” apply to “bugging.” (See: invasion (See: willfully) of privacy, probable cause) willfully: adv. referring to doing withdrawal: n. 1) in criminal law, something intentionally, purposeful- leaving a conspiracy to commit a ly and stubbornly. Examples: “He crime before the actual crime is com- drove the car willfully into the crowd mitted, which is similar to “renunci- on the sidewalk.” “She willfully left ation.” If the withdrawal is before the dangerous substances on the any overt criminal act the withdraw- property.” (See: willful) er may escape prosecution. 2) the removal of money from a bank account. wind up: v. to liquidate (sell or dis- (See: check, renunciation)

pose of) assets of a corporation or partnership. (See: winding up) witness: 1) n. a person who testifies under oath in a trial (or a deposition winding up: n. liquidating the as- which may be used in a trial if the sets of a corporation or partner- witness is not available) with first- ship, settling accounts, paying hand or expert evidence useful in a

bills, distributing remaining assets lawsuit. A party to the lawsuit to shareholders or partners, and (plaintiff or defendant) may be a wit- then dissolving the business. ness. 2) n. a person who sees an Winding up a non-profit corpora- event. 3) n. a person who observes the

431 witness stand

signing of a document like a will or Compensation Acts provide for a sys- a contract and signs as a witness on tem of hearings and quasi-judicial de- the document attesting that the terminations by administrative law

document was signed in the pres- judges and appeal boards. However, if

ence of the witness. 4) v. to sign a worker’s’ compensation is granted, it document verifying that he/she ob- becomes the only remedy against an served the execution of the docu- employer and does not include gener- ment such as a will. (See: deposi- al damages for pain and suffering. tion, evidence, trial, will) Thus, an injured worker may waive workers’ compensation and sue the witness stand: n. a chair at the end employer for damages caused by the of the judge’s bench on the jury box employer’s negligence. If a third party side, usually with a low “modesty contributed to the damages, the in- screen,” where a witness sits and jured worker may sue that party for gives testimony after he/she has damages even though he/she receives sworn to tell the truth. When worker’s’ compensation, but recovery called to testify the witness “takes may be subject to a lien for moneys the stand.” Most witness stands paid out by the workers’ compensation are equipped with a microphone insurance company. linked to an amplifying system so that judge, attorneys and jury can Workmen’s Compensation: n. a hear the testimony clearly. (See: former name for worker’s compensa- witness) tion before the unisex title of the acts was adopted. (See: Worker’s words of art: n. 1) specialized lan- Compensation Acts) guage with meaning peculiar to a particular profession, art, techni- work product: n. the writings, notes, cal work, science or other field of memoranda, reports on conversa- endeavor. 2) jargon known only to tions with the client or witness, re- people who specialize in a particu- search and confidential materials lar occupation. which an attorney has developed while representing a client, particu- Workers’ Compensation Acts: n. larly in preparation for trial. A “work state statutes which establish liabil- product” may not be demanded or ity of employers for injuries to work- subpenaed by the opposing party, as ers while on the job or illnesses due are documents, letters by and from to the employment, and requiring third parties and other evidence, insurance to protect the workers. since the work product reflects the Worker’s compensation is not based confidential strategy, tactics and the- on negligence of the employer, but is ories to be employed by the attorney. absolute liability for medical coverage, a percentage of lost wages or World Court: n. the Court of Interna- salary, costs of rehabilitation and re- tional Justice, founded by the United training, and payment for any per- Nations in 1945, which hears interna- manent injury (usually based on an tional disputes, but only when the evaluation of limitation). Worker’s’ parties (usually governments) agree

432 wrongful termination

to have the issue heard and to be wrongful death: n. the death of a bound by the decision. human being as the result of a wrongful act of another person. Such writ: n. a written order of a judge re- wrongful acts include: negligence quiring specific action by the per- (like careless driving), an inten- son or entity to whom the writ tional attack such as assault and/or

is directed. battery, a death in the course of another crime, vehicular manslaughter, writ of attachment: n. a court order manslaughter or murder. Wrongful directing a sheriff (or other law en- death is the basis for a lawsuit forcement officer) to seize property (wrongful death action) against the of a defendant which would satisfy a party or parties who caused the judgment against that defendant. death filed on behalf of the members (See: attachment) of the family who have lost the company and support of the deceased. writ of coram nobis: (writ of core- Thus, a child might be entitled to uhm noh-bis) n. from Latin for “in compensation for the personal loss of our presence,” an order by a court of a father as well as the amount of fi- appeals to a court which rendered nancial support the child would have judgment requiring that trial court received from the now-dead parent to consider facts not on the trial while a minor, a wife would recover record which might have resulted in damages for loss of her husband’s a different judgment if known at the love and companionship and a life-

time of trial. time of expected support, while a parent would be limited to damages for writ of execution: n. a court order loss of companionship but not sup- to a sheriff to enforce a judgment port. A lawsuit for wrongful death by levying on real or personal may be filed by the executor or ad- property of a judgment debtor to ministrator of the estate of the de- obtain funds to satisfy the judg- ceased or by the individual beneficia- ment amount (pay the winning ries (family members). plaintiff). (See: execution) wrongful termination: n. a right of writ of mandate (mandamus): n. a an employee to sue his/her employer court order to a government agency, for damages (loss of wage and including another court, to follow “fringe” benefits, and, if against the law by correcting its prior ac- “public policy,” for punitive dam- tions or ceasing illegal acts. (See: ages). To bring such a suit the dis-

mandamus, mandate ) charge of the employee must have been without “cause,” and the employee a) had an express contract of [should] recognize in any You continued employment or there was society the individual that an “implied” contract based on the must have rights that are circumstances of his/her hiring or le- guarded. gitimate reasons to believe the em- Roosevelt —Eleanor ployment would be permanent, b)

433 wrongful termination

there is a violation of statutory prohibitions against discrimination due to race, gender, sexual

preference or age, or c) the discharge was contrary to “public policy” such as in retribution for exposing dishonest acts of the employer. An employee who believes he/she has been wrongfully terminated may bring an action (file a suit) for damages for discharge, as well as for breach of contract, but the court decisions have become increasingly strict in limiting an employee’s grounds for suit. your honor: n. the proper way to address a judge in court. youthful offenders: n. under-age people accused of crimes who are processed through a juvenile court and juvenile detention or prison facilities. In most states a youth-ful offender is under the age of 18. Often a court has the latitude to try some young defendants as adults, particularly for repeat offenders who appear to be beyond rehabilitation and are involved in major crimes like murder, manslaughter, armed robbery, rape or aggravated assault. A youthful offender has certain advantages: he/she will be kept in a juvenile prison instead of a penitentiary, is more likely than an adult to get probation, can only receive a maximum prison sentence not to exceed a 25th birthday or some other limitation and cannot get the death penalty. (See: juvenile delinquent)

435 zoning: n. a system of developing a city or county plan in which various geographic areas (zones) are restricted to certain uses and development, such as industrial, light industrial, commercial, light- commercial, agricultural, single- family residential, multi-unit residential, parks, schools and other purposes. Zoning is the chief planning tool of local government to guide the future development of a community, protect neighborhoods, concentrate retail business and industry, channel traffic and play a major role in the enhancement of

urban as well as small-town life. In 1926, zoning was declared constitutional by the U.S. Supreme

Court in Village of Euclid v. Am- bler Realty Co.

The constitution is what the judges say it is. — Chief Justice Charles Evans Hughes (said before he was on the Supreme Court)

436

. THE CONSTITUTION OF THE I 'NUTT ) STATES OE AMERICA

,p — - ' Appendix I »

We the people of the United inhabitant of that State in which he States, in order to form a more shall be chosen. perfect union, establish justice, 3. Representatives and direct insure domestic tranquility, provide taxes shall be apportioned among the for the common defense, promote several States which may be included the general welfare, and secure the within this Union, according to their blessings of liberty to ourselves respective numbers, which shall be and our posterity, do ordain and determined by adding to the whole establish this Constitution for number of free persons, including the United States ofAmerica. those bound to service for a term of years, and excluding Indians not ARTICLE I. taxed, three-fifths of all other persons. (The previous sentence in italics was Section 1—Legislative powers; in superseded by Amendment TV, section whom vested: 2.) The actual enumeration shall be All legislative powers herein made within three years after the granted shall be vested in a Con- first meeting of the Congress of the gress of the United States, which United States, and within every sub- shall consist of a Senate and House sequent term of ten years, in such of Representatives. manner as they shall by law direct. The number of Representatives shall Section 2—House of Representatives, not exceed one for every thirty thou- how and by whom chosen. Qualifi- sand, but each State shall have at cations of a Representative. Repre- least one Representative; and until sentatives and direct taxes, how ap- such enumeration shall be made, the portioned. Enumeration. Vacancies state of New Hampshire shall be en- to be filled. Power of choosing offi- titled to choose three, Massachusetts cers, and of impeachment. eight, Rhode Island and Providence

1. The House of Representa- Plantations one, Connecticut five, tives shall be composed of members New York six, New Jersey four, Penn- chosen every second year by the sylvania eight, Delaware one, Mary- people of the several States, and the land six, Virginia ten, North Carolina electors in each State shall have the five, South Carolina five, and Geor- qualifications requisite for electors gia three. of the most numerous branch of the 4. When vacancies happen in the State Legislature. representation from any State, the Ex- 2. No person shall be a Repre- ecutive Authority thereof shall issue

sentative who shall not have at- writs of election to fill such vacancies.

tained to the age of twenty-five 5. The House of Representatives years, and been seven years a citi- shall choose their Speaker and other zen of the United States, and who officers; and shall have the sole power shall not, when elected, be an of impeachment.

439 Section 3—Senators, how and by United States shall be President of whom chosen. How classified. the Senate, but shall have no vote, un- Qualifications of a Senator. Presi- less they be equally divided. dent of the Senate, his right to 5. The Senate shall choose their vote. President pro tem., and other other officers, and also a President officers of the Senate, how chosen. pro tempore, in the absence of the Power to try impeachments. When Vice President, or when he shall ex- President is tried, Chief Justice to ercise the office of President of the preside. Sentence. United States.

1. The Senate of the United 6. The Senate shall have the sole States shall be composed of two power to try all impeachments. When Senators from each State, chosen by sitting for that purpose, they shall be the Legislature thereof (The preced- on oath or affirmation. When the ing words in italics were superseded President of the United States is tried,

by Amendment XVII, section 1.) for the Chief Justice shall preside: and no six years; and each Senator shall person shall be convicted without the have one vote. concurrence of two-thirds of the mem- 2. Immediately after they shall bers present. be assembled in consequence of the 7. Judgment in cases of impeach- first election, they shall be divided ment shall not extend further than to as equally as may be into three removal from office, and disqualifica- classes. The seats of the Senators of tion to hold and enjoy any office of the first class shall be vacated at the honor, trust or profit under the United expiration of the second year, of the States: but the party convicted shall second class at the expiration of the nevertheless be liable and subject to fourth year, and the third class at indictment, trial, judgment and pun- the expiration of the sixth year, so ishment, according to law. that one third may be chosen every second year; and if vacancies hap- Section 4—Times, etc., of holding elec- pen by resignation, or otherwise, tions, how prescribed. One session during the recess of the Legislature each year. of any State, the Executive thereof 1. The times, places and manner may make temporary appointments of holding elections for Senators and until the next meeting ofthe Legisla- Representatives, shall be prescribed

ture, which shall then fill such va- in each State by the Legislature cancies. (The preceding words in thereof; but the Congress may at any italics were superseded by Amend- time by law make or alter such regu- ment XVII, section 2.) lations, except as to the places of 3. No person shall be a Senator choosing Senators.

who shall not have attained to the 2. The Congress shall assemble at age of thirty years, and been nine least once in every year, and such

years a citizen of the United States, meeting shall be on the first Monday and who shall not, when elected, be in December, (The preceding words in an inhabitant of that State for which italics were superseded by Amende- he shall be chosen. ment XX, section 2.) unless they shall 4. The Vice President of the by law appoint a different day.

440 Section 5—Membership, quorum, ad- at the session of their respective journments, rules. Power to punish Houses, and in going to and returning or expel. Journal. Time of adjourn- from the same; and for any speech or ments, how limited, etc. debate in either House, they shall not

1. Each House shall be the be questioned in any other place. judge of the elections, returns and 2. No Senator or Representative qualifications of its own members, shall, during the time for which he and a majority of each shall consti- was elected, be appointed to any civil tute a quorum to do business; but a office under the authority of the smaller number may adjourn from United States, which shall have been day to day, and may be authorized created, or the emoluments whereof to compel the attendance of absent shall have been increased during members, in such manner, and such time; and no person holding under such penalties as each House any office under the United States, may provide. shall be a member of either House 2. Each House may determine during his continuance in office. the rules of its proceedings, punish its members for disorderly behavior, Section 7—House to originate all rev- and, with the concurrence of two- enue bills. Veto. Bill may be passed thirds, expel a member. by two-thirds of each House,

3. Each House shall keep a jour- notwithstanding, etc. Bill, not re- nal of its proceedings, and from time turned in ten days, to become a law. to time publish the same, excepting Provisions as to orders, concurrent such parts as may in their judgment resolutions, etc. require secrecy; and the yeas and 1. All bills for raising revenue nays of the members of either shall originate in the House of Rep- House on any question shall, at the resentatives; but the Senate may desire of one-fifth of those present, propose or concur with amendments be entered on the journal. as on other bills. 4. Neither House, during the 2. Every bill which shall have session of Congress, shall, without passed the House of Representatives the consent of the other, adjourn for and the Senate, shall, before it be- more than three days, nor to any comes a law, be presented to the other place than that in which the President of the United States; if he

two Houses shall be sitting. approves he shall sign it, but if not

he shall return it, with his objections Section 6—Compensation, privileges, to that House in which it shall have disqualifications in certain cases. originated, who shall enter the objec-

1. The Senators and Represen- tions at large on their journal, and

tatives shall receive a compensation proceed to reconsider it. If after such for their services, to be ascertained reconsideration two-thirds of that by law, and paid out of the Treasury House shall agree to pass the bill, of the United States. They shall in it shall be sent, together with the all cases, except treason, felony and objections, to the other House, breach of the peace, be privileged by which it shall likewise be from arrest during their attendance reconsidered, and if approved by

441 two-thirds of that House, it shall 4. Tb establish a uniform rule of become a law. But in all such cases naturalization, and uniform laws on the votes of both Houses shall be the subject of bankruptcies throughout determined by yeas and nays, and the United States; the names of the persons voting for 5. To coin money, regulate the and against the bill shall be en- value thereof, and of foreign coin, tered on the journal of each House and fix the standard of weights respectively. If any bill shall not be and measures;

returned3. by the President within 6. Tb provide for the punishment ten days (Sundays excepted) after of counterfeiting the securities and it shall have been presented to current coin of the United States; him, the same shall be a law, in 7. To establish post-offices and

like manner as if he had signed it, post-roads;

unless the Congress by their ad- 8. lb promote the progress of sci- journment prevent its return, in ence and useful arts, by securing for which case it shall not be a law. limited times to authors and inventors Every order, resolution, or the exclusive right to their respective vote to which the concurrence of the writings and discoveries; Senate and House of Representa- 9. lb constitute tribunals inferior tives may be necessary (except on a to the Supreme Court; question of adjournment) shall be 10. lb define and punish piracies presented to the President of the and felonies committed on the high United States; and before the same seas, and offenses against the law shall take effect, shall be approved of nations; by him, or being disapproved by 11. lb declare war, grant letters him, shall be repassed by two-thirds of marque and reprisal, and make of the Senate and House of Repre- rules concerning captures on land and sentatives, according to the rules water; and limitations prescribed in the 12. lb raise and support armies, case of a bill. but no appropriation of money to that use shall be for a longer term than two Section 8—Powers of Congress. years; The Congress shall have power 13. To provide and maintain a 1. Tb lay and collect taxes, du- navy; ties, imposts and excises, to pay the 14. lb make rules for the govern- debts and provide for the common ment and regulation of the land and defense and general welfare of the naval forces; United States; but all duties, imposts 15. lb provide for calling forth the and excises shall be uniform militia to execute the laws of the throughout the United States; Union, suppress insurrections and 2. lb borrow money on the cred- repel invasions; it of the United States; 16. Tb provide for organizing, arm- 3. Tb regulate commerce with ing, and disciplining the militia, and foreign nations, and among the sev- for governing such part of them as eral States, and with the may be employed in the service of the Indian tribes; United States, reserving to the States

442 respectively, the appointment of the or invasion the public safety may re- officers, and the authority of train- quire it. ing the militia according to the disci- 3. No bill of attainder or ex post pline prescribed by Congress; facto law shall be passed. 17. Tb exercise exclusive legisla- 4. No capitation, or other direct, tion in all cases whatsoever, over tax shall be laid, unless in proportion such district (not exceeding ten to the census or enumeration herein miles square) as may, by cession of before directed to be taken. (Modified particular States, and the accep- by Amendment XVI.) tance of Congress, become the seat 5. No tax or duty shall be laid on of the Government of the United articles exported from any State. States, and to exercise like authority 6. No preference shall be given by over all places purchased by the con- any regulation of commerce or revenue sent of the Legislature of the State to the ports of one State over those of in which the same shall be, for the another: nor shall vessels bound to, or erection of forts, magazines, arse- from, one state, be obliged to enter, nals, dockyards, and other needful clear, or pay duties in another. buildings;—And 7. No money shall be drawn from 18. Tb make all laws which shall the Treasury, but in consequence of be necessary and proper for carrying appropriations made by law; and a into execution the foregoing powers, regular statement and account of re-

and all other powers vested by this ceipts and expenditures of all public Constitution in the Government of money shall be published from time the United States, or in any depart- to time. ment or officer thereof. 8. No title of nobility shall be granted by the United States: and no Section 9—Provision as to migration person holding any office of profit or or importation of certain persons. trust under them, shall, without the Habeas corpus, bills of attainder, etc. consent of the Congress, accept of any Taxes, how apportioned. No export present, emolument, office, or title, of duty. No commercial preference. any kind whatever, from any king, Money, how drawn from Treasury, prince, or foreign state.

etc. No titular nobility. Officers not to receive presents, etc. Section 10—States prohibited from the

1. The migration or importation exercise of certain powers. of such persons as any of the states 1. No State shall enter into any now existing shall think proper to treaty, alliance, or confederation; admit, shall not be prohibited by the grant letters of marque and reprisal; Congress prior to the year one thou- coin money; emit bills of credit; make sand eight hundred and eight, but a anything but gold and silver coin a tax or duty may be imposed on such tender in payment of debts; pass any importation, not exceeding ten dol- bill of attainder, ex post facto law, or lars for each person. law impairing the obligation of con-

2. The privilege of the writ of tracts, or grant any title of nobility. habeas corpus shall not be suspend- 2. No state shall, without the ed, unless when in cases of rebellion consent of the Congress, lay any

443 imposts or duties on imports or ex- United States, shall be appointed ports, except what may be absolute- an elector.

ly necessary for executing its inspec- The electors shall meet in their re- tion laws: and the net produce of all spective states, and vote by ballot for duties and imposts, laid by any State two persons, of whom one at least shall on imports or exports, shall be for not be an inhabitant of the same state the use of the Treasury of the United with themselves. And they shall make States; and all such laws shall be a list ofall the persons voted for, and of subject to the revision and control of the number of votes for each; which list the Congress. they shall sign and certify, and trans- 3. No State shall, without the mit sealed to the seat ofthe government consent of Congress, lay any duty of of the United States, directed to the tonnage, keep troops, or ships of war President of the Senate. The President in time of peace, enter into any of the Senate shall, in the presence of agreement or compact with another the Senate and House of Representa- State, or with a foreign power, or en- tives, open all the certificates, and the gage in war, unless actually invaded, votes shall then be counted. The person or in such imminent danger as will having the greatest number of votes not admit of delay. shall be the President, if such number be a majority of the whole number of ARTICLE II electors appointed; and if there be more than one who have such majority, and Section 1—President: his term of of- have an equal number of votes, then the fice. Electors of President; number House of Representatives shall imme- and how appointed. Electors to vote diately choose by ballot one of them for on same day. Qualification of Presi- President; and if no person have a ma- dent. On whom his duties devolve jority, then from the five highest on the in case of removal, death, etc. Pres- list3.the said House shall in like manner ident’s compensation. His oath of choose the President. But in choosing office. the President, the votes shall be taken 1. The Executive power shall be by States, the representation from each vested in a President of the United state having one vote; a quorum for this States of America. He shall hold his purpose shall consist of a member or office during the term of four years, members from two thirds of the states, and, together with the Vice Presi- and a majority of all the states shall be dent, chosen for the same term, be necessary to a choice. In every case, elected, as follows: after the choice of the President, the 2. Each State shall appoint, in person having the greatest number of such manner as the Legislature votes of the electors shall be the Vice thereof may direct, a number of elec- President. But if there should remain tors, equal to the whole number of two or more who have equal votes, the Senators and Representatives to Senate shall choose from them by bal- which the State may be entitled in lot the Vice President. (This clause was the Congress: but no Senator or superseded by Amendment XII.) Representative, or person holding The Congress may determine an office of trust or profit under the the time of choosing the electors, and

444 the day on which they shall give States, and will to the best of my abil- their votes; which day shall be the ity, preserve, protect and defend the same throughout the United States. Constitution of the United States. 4. No person except a natural bom citizen, or a citizen of the Unit- Section 2—President to be Commander- ed States, at the time of the adop- in-Chief. He may require opinions of tion of this Constitution, shall be el- cabinet officers, etc., may pardon. igible to the office of President; nei- Treaty-making power. Nomination of ther shall any person be eligible to certain officers. When President may that office who shall not have at- fill vacancies. tained to the age of thirty five years, 1. The President shall be comman- and been fourteen years a resident der in chief of the Army and Navy of the within the United States. (For qual- United States, and of the militia of the ification of the Vice President, see several States, when called into the ac- Amendment XII.) tual service of the United States; he 5. In case of the removal of the may require the opinion, in writing, of President from office, or of his the principal officer in each of the exec- death, resignation, or inability to utive departments, upon any subject discharge the powers and duties of relating to the duties of their respective the said office, the same shall de- offices, and he shall have power to volve on the Vice President, and the grant reprieves and pardons for offens- Congress may by law provide for the es against the United States, except in case of removal, death, resignation cases of impeachment. or inability, both of the President 2. He shall have power, by and and Vice President, declaring what with the advice and consent of the Sen- officer shall then act as President, ate, to make treaties, provided two- and such officer shall act according- thirds of the Senators present concur;

ly, until the disability be removed, and he shall nominate, and by and or a President shall be elected. (This with the advice and consent of the Sen- clause was modified by Amend- ate, shall appoint ambassadors, other ments XX and XXV.) public ministers and consuls, judges of

6. The President shall, at stated the Supreme Court, and all other offi- times, receive for his services, a com- cers of the United States, whose ap- pensation, which shall neither be in- pointments are not herein otherwise creased nor diminished during the provided for, and which shall be estab- period for which he shall have been lished by law: but the Congress may by elected, and he shall not receive law vest the appointment of such infe- within that period any other emolu- rior officers, as they think proper, in ment from the United States, or any the President alone, in the courts of of them. law, or in the heads of departments.

7. Before he enter on the execu- 3. The President shall have tion of his office, he shall take the power to fill up all vacancies that following oath or affirmation: may happen during the recess of the

I do solemnly swear (or affirm) Senate, by granting commissions,

that I will faithfully execute the which shall expire at the end of their office of President of the United next session.

445 Section 3—President shall communi- which shall not be diminished during

cate to Congress. He may convene their continuance in office. and adjourn Congress, in case of disagreement, etc. Shall receive ambas- Section 2—Judicial power; to what sadors, execute laws, and commis- cases it extends. Original jurisdiction sion officers. of Supreme Court; appellate jurisdic- He shall from time to time give to tion. Trial by jury, etc. Trial, where.

the Congress information of the state 1 . Thejudicial power shall extend of the union, and recommend to their to all cases, in law and equity, arising consideration such measures as he under this Constitution, the laws of shall judge necessary and expedient; the United States, and treaties made, he may, on extraordinary occasions, or which shall be made, under their convene both Houses, or either of authority; to all cases affecting am- them, and in case of disagreement bassadors, other public ministers and between them, with respect to the consuls; to all cases of admiralty and time of adjournment, he may adjourn maritime jurisdiction; to controver- them to such time as he shall think sies to which the United States shall proper; he shall receive ambassadors be a party; to controversies between and other public ministers; he shall two or more States; between a State take care that the laws be faithfully and citizens ofanother State; between executed, and shall commission all citizens of different States; between the officers of the United States. citizens of the same State claiming lands under grants of different Section 4—All civil offices forfeited for States, and between a State, or the certain crimes. citizens thereof, and foreign states, The President, Vice President, citizens or subjects. (This section was and all civil officers of the United modified by Amendment XI.) States, shall be removed from office 2. In all cases affecting ambas- on impeachment for, and conviction sadors, other public ministers and of, treason, bribery, or other high consuls, and those in which a State crimes and misdemeanors. shall be party, the Supreme Court shall have original jurisdiction. In all ARTICLE III the other cases before mentioned, the Supreme Court shall have appel- Section 1—Judicial powers, Tenure. late jurisdiction, both as to law and Compensation. fact, with such exceptions, and under The judicial power of the United such regulations as the Congress States, shall be vested in one shall make.

Supreme Court, and in such inferior 3. The trial of all crimes, except in courts as the Congress may from cases of impeachment, shall be by jury; time to time ordain and establish. and such trial shall be held in the State The judges, both of the Supreme where the said crimes shall have been and inferior courts, shall hold their committed; but when not committed offices during good behavior, and within any State, the trial shall be at shall, at stated times, receive for such place or places as the Congress their services, a compensation, may by law have directed.

446 Section 3—Treason Defined, Proof of, authority3. of the State from which he Punishment of. fled, be delivered up, to be removed 1. Treason against the United to the State having jurisdiction of States, shall consist only in levying the crime. war against them, or in adhering No person held to service or to their enemies, giving them aid labor in one State, under the laws and comfort. No person shall be thereof, escaping into another, shall, in convicted of treason unless on the consequence of any law or regulation testimony of two witnesses to the therein, be discharged from such ser- same overt act, or on confession in vice or labor, but shall be delivered up open court. on claim ofthe party to whom such ser- 2. The Congress shall have vice or labor may be due. (This clause power to declare the punishment of was superseded by Amendment XIII.) treason, but no attainder of treason shall work corruption of blood, or Section 3—Admission of new States. forfeiture except during the life of Power of Congress over territory and the person attainted. other property.

1. New States may be admitted by ARTICLE IV the Congress into this union; but no new State shall be formed or erected Section 1—Each State to give credit to within the jurisdiction of any other the public acts, etc., of every other State; nor any State be formed by the State. junction of two or more States, or parts Full faith and credit shall be of States, without the consent of the given in each State to the public Legislatures of the States concerned as acts, records, and judicial proceed- well as of the Congress.

ings of every other State. And the 2. The Congress shall have power Congress may by general laws pre- to dispose of and make all needful rules scribe the manner in which such and regulations respecting the territory acts, records, and proceedings shall or other property belonging to the Unit- be proved, and the effect thereof. ed States; and nothing in this Constitu- tion shall be so construed as to prejudice Section 2—Privileges of citizens of any claims of the United States, or of each State. Fugitives from justice any particular State. to be delivered up. Persons held to service having escaped, to be deliv- Section 4—Republican form of govern- ered up. ment guaranteed. Each state to

1. The citizens of each State be protected. shall be entitled to all privileges The United States shall guarantee and immunities of citizens in the to every State in this Union a Repub- several States. lican form of government, and shall 2. A person charged in any protect each of them against invasion; State with treason, felony, or other and on application of the Legislature, crime, who shall flee from justice, or of the Executive (when the Legisla- and be found in another State, ture cannot be convened) against shall on demand of the Executive domestic violence.

447 ARTICLE V United States, shall be the supreme law3.of the land; and the judges in every Constitution: how amended; proviso. State shall be bound thereby, any thing The Congress, whenever two- in the Constitution or laws of any State thirds of both Houses shall deem it to the contrary notwithstanding. necessary, shall propose amend- The Senators and Representa- ments to this Constitution, or, on the tives before mentioned, and the mem- application of the Legislatures of bers of the several State Legislatures,

two-thirds of the several States, shall and all executive and judicial officers, call a convention for proposing both of the United States and of the amendments, which, in either case, several States, shall be bound by oath shall be valid to all intents and pur- or affirmation, to support this Consti- poses, as part of this Constitution, tution; but no religious test shall ever when ratified by the Legislatures of be required as a qualification to any three-fourths of the several States, office or public trust under the or by conventions in three-fourths United States. thereof, as the one or the other mode of ratification may be proposed by ARTICLE VII the Congress; provided that no amendment which may be made What ratification shall establish prior to the year one thousand eight Constitution. hundred and eight shall in any man- The ratification of the Conventions ner affect the first and fourth clauses of nine States, shall be sufficient for the in the Ninth Section of the First Ar- establishment of this Constitution be- ticle; and that no State, without its tween the States so ratifying the same. consent, shall be deprived of its equal Done in convention by the unani- suffrage in the Senate. mous consent of the States present the Seventeenth day of September in ARTICLE VI the year of our Lord one thousand seven hundred and eighty seven, and Certain debts, etc., declared valid. Su- of the independence of the United premacy of Constitution, treaties, States of America the Twelfth. In wit- and law of the United States. Oath ness whereof we have hereunto sub- to support Constitution, by whom scribed our Names, taken. No religious test. 1. All debts contracted and en- George Washington-President and gagements entered into, before the deputy from Virginia adoption of this Constitution, shall be as valid against the United States New Hampshire—John Langdon, under this Constitution, as under Nicholas Gilman the Confederation. 2. This Constitution, and the Massachusetts—Nathaniel Gorham, laws of the United States which shall Rufus King

be made in pursuance thereof; and all treaties made, or which shall be Connecticut—Wm. Sami. Johnson, made, under the authority of the Roger Sherman

448 New York—Alexander Hamilton Amendment I (1791)

New Jersey—Wil. Livingston, Religious establishment prohibit- David Brearly, Wm. Paterson, Jona. ed. Freedom of speech, of the press, Dayton and right to petition. Congress shall make no law re- Pennsylvania—B. Franklin, specting an establishment of reli- Thomas Mifflin, Robt. Morris, Geo. gion, or prohibiting the free exercise Clymer, Thos. FitzSimons, Jared thereof; or abridging the freedom of Ingersoll, James Wilson, Gouv. speech, or of the press; or the right of Morris the people peaceably to assemble, and to petition the Government for a Delaware—Geo. Read, Gunning redress of grievances. Bedford Jun., John Dickinson, Richard Bassett, Jaco. Broom Amendment H (1791)

Maryland—James McHenry, Dan Right to keep and bear arms. of Saint Thomas’ Jenifer, Danl. A well-regulated militia, being nec- Carroll essary to the security of a free State, the right of the people to keep and Virginia—John Blair, James bear arms, shall not be infringed. Madison Jr. Amendment in (1791) North Carolina: Wm. Blount, Rich’d. Dobbs Spaight, Hugh Conditions for quarters for Williamson soldiers. No soldier shall, in time of peace South Carolina: J. Rutledge, be quartered in any house, without Charles Cotesworth Pinckney, the consent of the owner, nor in time Charles Pinckney, Pierce Butler of war, but in a manner to be prescribed by law. Georgia: William Few, Abr. Baldwin Amendment IV (1791)

Attest: William Jackson, Right of search and seizure Secretary. regulated. The right of the people to be secure AMENDMENTS TO THE in their persons, houses, papers, and CONSTITUTION OF THE effects, against unreasonable search- UNITED STATES es and seizures, shall not be violated, and no warrants shall issue, but (The first ten amendments upon probable cause, supported by known as the Bill of Rights were oath or affirmation, and particularly passed by Congress on September describing the place to be searched, 25, 1789, and ratified by sufficient and the persons or things to be states on December 15, 1791) seized.

449 Amendment V (1791) In suits at common law, where the value in controversy shall exceed Provisions concerning prosecu- twenty dollars, the right of trial by tion. Trial and punishment—pri- jury shall be preserved, and no fact vate property not to be taken for tried by a jury shall be otherwise re- public use without compensation. examined in any court of the United No person shall be held to an- States, than according to the rules of swer for a capital, or otherwise infa- the common law. mous crime, unless on a presentment or indictment of a Grand Jury, Amendment VIII (1791) except in cases arising in the land or naval forces, or in the militia, when Excessive bail or fines and cruel in actual service in time of war or punishment prohibited. public danger; nor shall any person Excessive bail shall not be re- be subject for the same offense to be quired, nor excessive fines imposed, twice put in jeopardy of life or limb; nor cruel and unusual punishments nor shall be compelled in any crimi- inflicted. nal case to be a witness against himself, nor be deprived of life, lib- Amendment IX (1791) erty, or property, without due process of law; nor shall private Rule of construction of Constitution. property be taken for public use The enumeration in the Constitu- without just compensation. tion, of certain rights, shall not be construed to deny or disparage oth- Amendment VI (1791) ers retained by the people.

Right to speedy trial, witnesses, Amendment X (1791) etc. In all criminal prosecutions, the Rights of States under Constitution accused shall enjoy the right to a The powers not delegated to the speedy and public trial, by an im- United States by the Constitution, nor partial jury of the State and district prohibited by it to the States, are re- wherein the crime shall have been served to the States respectively, or to committed, which district shall the people. have been previously ascertained by law, and to be informed of the na- Amendment XI (1798) ture and cause of the accusation; to be confronted with the witnesses Judicial powers construed. against him; to have compulsory The judicial power of the United process for obtaining witnesses in States shall not be construed to his favor, and to have the assistance extend to any suit in law or equity, of counsel for his defense. commenced or prosecuted against one of the United States by citizens Amendment VII (1791) of another State, or by citizens or subjects of any foreign state. Right of trial by jury.

450 Amendment XII (1804) shall not choose a President whenever the right of choice shall devolve upon Manner of choosing President them, before the fourth day of March and Vice-President. next following, then the Vice-President The Electors shall meet in their shall act as President, as in the case of respective States and vote by ballot the death or other constitutional dis- for President and Vice-President, ability of the President. (The preceding one of whom, at least, shall not be an sentence in italics was superseded by inhabitant of the same State with Amendment XX, section 3.) The person themselves; they shall name in their having the greatest number of votes as ballots the person voted for as Pres- Vice-President, shall be the Vice-Pres- ident, and in distinct ballots the per- ident, if such number be a majority of son voted for as Vice-President, and the whole number of Electors appoint- they shall make distinct lists of all ed, and if no person have a majority, persons voted for as President, and then from the two highest numbers on of all persons voted for as Vice-Pres- the list, the Senate shall choose the ident, and of the number of votes for Vice-President; a quorum for the pur- each, which lists they shall sign and pose shall consist of two-thirds of the certify, and transmit sealed to the whole number of Senators, and a ma- seat of the Government of the Unit- jority of the whole number shall be ed States, directed to the President necessary to a choice. But no person of the Senate; the President of the constitutionally ineligible to the office Senate shall, in the presence of the of President shall be eligible to that of Senate and House of Representa- Vice-President of the United States. tives, open all the certificates and the votes shall then be counted; the Amendment XIII (1865) person having the greatest number of votes for President, shall be the Slavery abolished.

President, if such number be a ma- 1. Neither slavery nor involun- jority of the whole number of Elec- tary servitude, except as a punish- tors appointed; and if no person ment for crime whereof the party shall have such majority, then from the have been duly convicted, shall exist persons having the highest numbers within the United States, or any place not exceeding three on the list of subject to their jurisdiction. those voted for as President, the 2. Congress shall have power to House of Representatives shall enforce this article by appropriate leg- choose immediately, by ballot, the islation. President. But in choosing the Pres- ident, the votes shall be taken by Amendment XIV (1868) States, the representation from each State having one vote; a quorum for Citizenship rights not to be this purpose shall consist of a mem- abridged. ber or members from two-thirds of 1. All persons bom or naturalized the States, and a majority of all the in the United States, and subject to the States shall be necessary to a choice. jurisdiction thereof, are citizens of the wherein And if the House of Representatives United States and of the State

451 they reside. No State shall make or engaged in insurrection or rebellion enforce any law which shall abridge against the same, or given aid or com- the privileges or immunities of citi- fort to the enemies thereof. But Con- zens of the United States; nor shall gress may by a vote of two-thirds of any State deprive any person of life, each House, remove such disability. liberty, or property, without due 4. The validity of the public debt process of law; nor deny to any per- of the United States, authorized by son within its jurisdiction the equal law, including debts incurred for pay- protection of the laws. ment of pensions and bounties for ser- 2. Representatives shall be ap- vices in suppressing insurrection or portioned among the several States rebellion, shall not be questioned. But according to their respective num- neither the United States nor any bers, counting the whole number of State shall assume or pay any debt or persons in each State, excluding In- obligation incurred in aid of insurrec- dians not taxed. But when the right tion or rebellion against the United to vote at any election for the choice States, or any claim for the loss or of Electors for President and Vice emancipation of any slave; but all President of the United States, such debts, obligations and claims Representatives in Congress, the shall be held illegal and void. executive and judicial officers of a 5. The Congress shall have State, or the members of the Legis- power to enforce, by appropriate leg- lature thereof, is denied to any of islation, the provisions of this article. the male inhabitants of such State, being twenty-one years of age, and Amendment XV (1870) citizens of the United States, or in any way abridged, except for partic- Race no bar on voting rights. ipation in rebellion, or other crime, 1. The right of citizens of the the basis of representation therein United States to vote shall shall be reduced in the proportion not be denied or abridged by the which the number of such male cit- United States or by any State on ac- izens shall bear to the whole num- count of race, color, or previous con- ber of male citizens twenty-one dition of servitude. years of age in such State. 2. The Congress shall have 3. No person shall be a Senator power to enforce this article by ap- or Representative in Congress, or propriate legislation. Elector of President and Vice-Presi- dent, or hold any office, civil or mil- Amendment XVI (1913) itary, under the United States, or under any State, who, having previ- Income taxes authorized. ously taken an oath, as a member of The Congress shall have power to Congress, or as an officer of the lay and collect taxes on incomes, United States, or as a member of from whatever source derived, with- any State Legislature, or as an ex- out apportionment among the sever- ecutive or judicial officer of any al States, and without regard to any State, to support the Constitution census of enumeration. of the United States, shall have

452 3.

Amendment XVII (1913) appropriate legislation. This article shall be inopera- United States Senators to be tive unless it shall have been ratified elected by direct popular vote. as an amendment to the Constitu- The Senate of the United States tion by the Legislatures of the sever- shall be composed of two Senators al States, as provided in the Consti- from each State, elected by the peo- tution, within seven years from the ple thereof, for six years; and each date of the submission hereof to the Senator shall have one vote. The States by the Congress. electors in each State shall have the qualifications requisite for electors Amendment XIX (1920) of the most numerous branch of the State Legislatures. Giving nationwide suffrage to women. When vacancies happen in the The right of citizens of the United representation of any State in the States to vote shall not be denied or Senate, the executive authority of abridged by the United States or by such State shall issue writs of elec- any State on account of sex. tion to fill such vacancies: Provid- ed, That the Legislature of any Congress shall have power to en- State may empower the Executive force this Article by appropriate legis- thereof to make temporary ap- lation. pointments until the people fill the vacancies by election as the Legis- Amendment XX (1933) lature may direct. This amendment shall not be so Terms of President and Vice Presi- construed as to affect the election dent to begin on January 20; those of or term of any Senator chosen Senators, Representatives, January 3.

before it becomes valid as part of 1. The terms of the President and the Constitution. Vice President shall end at noon on the 20th day of January, and the Amendment XVIII (1919) terms of Senators and Representa- tives at noon on the 3d day of January, Liquor prohibition amendment. of the years in which such terms this article 1. After one year from the would have ended if had ratification of this article the not been ratified; and the terms of manufacture, sale, or transporta- their successors shall then begin. tion of intoxicating liquors within, 2. The Congress shall assemble at the importation thereof into, or the least once in every year, and such exportation thereof from the United meeting shall begin at noon on the 3d States and all territory subject to day of January, unless they shall by the jurisdiction thereof for beverage law appoint a different day. for purposes is hereby prohibited. 3. If, at the time fixed the be- President, 2. The Congress and the sever- ginning of the term of the al States shall have concurrent the President elect shall have died, the power to enforce this article by Vice President elect shall become

453 President. If a President shall not 2. The transportation or importa- have been chosen before the time tion into any State, Territory, or fixed for the beginning of his term, Possession of the United States for de- or if the President elect shall have livery or use therein of intoxicating failed to qualify, then the Vice Pres- liquors, in violation of the laws there- ident elect shall act as President of, is hereby prohibited. until a President shall have quali- 3. This article shall be inopera- fied; and the Congress may by law tive unless it shall have been ratified provide for the case wherein nei- as an amendment to the Constitution ther a President elect nor a Vice by conventions in the several States, President elect shall have quali- as provided in the Constitution, with- fied, declaring who shall then act in seven years from the date of the as President, or the manner in submission hereof to the States by which one who is to act shall be se- the Congress. lected, and such person shall act accordingly until a President or Amendment XXII (1951) Vice President shall have qualified. 4. The Congress may by law Limiting Presidential terms of provide for the case of the death of office.

any of the persons from whom the 1. No person shall be elected to House of Representatives may the office of the President more than choose a President whenever the twice, and no person who has held right of choice shall have devolved the office of President, or acted as upon them, and for the case of the President, for more than two years of death of any of the persons from a term to which some other person whom the Senate may choose a was elected President shall be elect- Vice President 1. whenever the right ed to the office of the President more of choice shall have devolved upon than once. But this article shall not them. apply to any person holding the office 5. Sections 1 and 2 shall take of President when this article was effect on the 15th day of October fol- proposed by the Congress, and shall lowing the ratification of this article. not prevent any person who may be 6. This article shall be inopera- holding the office of President, or act- tive unless it shall have been rati- ing as President, during the term fied as an amendment to the Con- within which this article becomes op- stitution by the Legislatures of erative from holding the office of three-fourths of the several States President or acting as President dur- with-in seven years from the date ing the remainder of such term. of its submission. 2. This article shall be inopera- tive unless it shall have been ratified Amendment XXI (1933) as an amendment to the Constitution by the Legislatures of three-fourths Repeal ofAmendment XVIII. of the several States within seven The eighteenth article of years from the date of its submission amendment to the Constitution of the to the States by the Congress. United States is here-by repealed.

454 Amendment XXIII (1961) Amendment XXV (1967)

Presidential vote for District of Presidential disability and Columbia. succession.

1. The District constituting the 1. In case of the removal of the Pres- seat of Government of the United ident from office or of his death or res- States shall appoint in such manner ignation, the Vice President shall be- as the Congress may direct: come President. A number of electors of President 2. Whenever there is a vacancy in and Vice President equal to the the office of the Vice President, the whole number of Senators and Rep- President shall nominate a Vice Presi- resentatives in Congress to which dent who shall take office upon confir- the District would be entitled if it mation by a majority vote of both hous- were a state, but in no event more es of Congress. than the least populous State; they 3. Whenever the President trans- shall be in addition to those ap- mits to the President pro tempore of pointed by the States, but they shall the Senate and the Speaker of the be considered, for the purposes of House of Representatives his written the election of President and Vice declaration that he is unable to dis- President, to be electors appointed charge the powers and duties of his of- by a State; and they shall meet in fice, and until he transmits to them a the District and perform such duties written declaration to the contrary, as provided by the twelfth article of such powers and duties shall be dis- amendment. charged by the Vice President as Act-

2. The Congress shall have ing President. power to enforce this article by ap- 4. Whenever the Vice President propriate legislation. and a majority of either the principal officers of the executive departments Amendment XXIV (1964) or of such other body as Congress may by law provide, transmit to the Presi- Barring poll tax in federal dent pro tempore of the Senate and elections. the Speaker of the House of Represen-

1. The right of citizens of the tatives their written declaration that United States to vote in any prima- the President is unable to discharge ry or other election for President the powers and duties of his office, the or Vice President, for electors for Vice President shall immediately as- President or Vice President, or sume the powers and duties of the for Senator or Representative in office as Acting President. Congress, shall not be denied or Thereafter, when the President abridged by the United States or transmits to the President pro tem- any State by reason of failure to pay pore of the Senate and the Speaker any poll tax or other tax. of the House of Representatives his 2. The Congress shall have written declaration that no inability power to enforce this article by ap- exists, he shall resume the powers propriate legislation. and duties of his office unless the Vice President and a majority of

455 either the principal officers of the and Representatives, shall take effect, executive department or of such until an election of Representatives other body as Congress may by law shall have intervened. provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the Presi- dent is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty- eight hours for that purpose if not in session. If the Congress, within twenty- one days after receipt of the latter

written declaration, or, if Congress is not in session, within twenty-one

days after Congress is required to assemble, determines by two-thirds vote of both houses that the Presi- dent is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the

powers and duties of his office.

Amendment XXVI (1971)

Lowering voting age to 18 years. 1. The right of citizens of the United States, who are 18 years of age or older, to vote shall not be denied or abridged by the United States or any state on account of age. 2. The Congress shall have the power to enforce this article by appropriate legislation.

Amendment XXVII (Passed Sept.

25, 1789; ratified May 7, 1992)

Congressional pay. No law, varying the compensation for the services of the Senators

456 THE AMERICAN COURT SYSTEM

' — Appendix II ^

UNITED STATES dent Clinton, 1994. The Supreme SUPREME COURT Court considers as many as 6,500 The U. S. Supreme Court is locat- cases a year, but in most cases con- ed at United States Supreme Court firms without comment the ruling Building, One First Street NE, below. Less than 200 cases are argued Washington, D.C. 20543. Telephone: before the court each year, and opin- (202) 479-3000 for the clerk’s office. ions signed by the court average about There are nine justices, including 140 a year. the Chief Justice, appointed for life United States (unless convicted under an impeach- Courts of Appeals ment) by the President, with confir- There are 11 Courts of Appeals for mation by the Senate. The Chief “circuits” comprising several states,

Justice is paid $171,500 a year, and plus a Federal circuit based in Wash- the Associate Justices, $164,100 per ington, D.C. to hear customs, patent year. The annual term, when the and court of claims appeals and an Ap- Court sits as a full court, begins the peals Court for Washington, D.C. first week of October, and continues which is under federal law only. Ap- until the Court decides to adjourn. peals judges are paid $141,700 annu- The current members of the court ally. The term “circuit” comes from the are: Chief Justice William H. Rehn- original practice of having members of quist, Arizona, appointed to the the Supreme Court go on circuit to court by President Richard M. hear appeals, which was discontinued Nixon in 1972 and appointed Chief in 1891 when the Courts of Appeal Justice by President Ronald Reagan were established. Each member of the in 1986; John Paul Stevens, Illinois, Supreme Court is assigned a circuit to appointed by President Gerald R. oversee, or to hear special matters Ford, 1975; Sandra Day O’Connor such as a stay of execution. Over (the first woman on the Supreme 40,000 appeals are heard each year. Court), Arizona, appointed by Presi- First Circuit: Maine, Massachu- dent Reagan, 1981; Antonin Scalia, setts, New Hampshire, Rhode Island, Virginia, appointed by President Puerto Rico, at Boston, Massachusetts Reagan, 1986; Anthony M. 02109. Kennedy, California, appointed by Second Circuit: Connecticut, New President Reagan, 1988; David H. York, Vermont, at New York City, New Souter, New Hampshire, appointed York 10007. by President George Bush, 1990; Third Circuit: Delaware, New Jer- Clarence Thomas, Virginia, ap- sey, Pennsylvania, Virgin Islands, at pointed by President Bush, 1991; Philadelphia, Pennsylvania 19106. Ruth Bader Ginsburg, District of Fourth Circuit: Maryland, North Columbia, appointed by President Carolina, South Carolina, Virginia, Bill Clinton, 1993; Stephen Breyer, West Virginia, at Richmond, Virginia Massachusetts, appointed by Presi- 23219.

457 Fifth Circuit: Louisiana, Missis- San Francisco, Eastern District sippi, Texas, at New Orleans, at Sacramento, Central District at Louisiana 70103. Los Angeles, Southern District Sixth Circuit: Kentucky, Michi- at San Diego. gan, Ohio, Tennessee, at Cincinnati, Colorado: at Denver. Ohio 45202. Connecticut: at New Haven. Seventh Circuit: Illinois, Indiana, Delaware: at Wilmington. Wisconsin, at Chicago, Illinois District of Columbia: at Wash- 60604. ington, D.C. Eighth Circuit: Arkansas, Iowa, Florida: Northern District at Tal- Minnesota, Missouri, Nebraska, lahassee, Middle District at Jack- North Dakota, South Dakota, at St. sonville, Southern District at Miami. Louis, Missouri 63101. Georgia: Northern District at At- Ninth Circuit: Alaska, Arizona, lanta, Middle District at Macon, California, Hawaii, Idaho, Montana, Southern District at Savannah. Nevada, Oregon, Washington, Hawaii: at Honolulu. Guam, North Mariana Islands, at Idaho: at Boise. San Francisco, California 94119. Illinois: Northern District at Tenth Circuit: Colorado, Kansas, Chicago, Central District at Spring- New Mexico, Oklahoma, Utah, field, Southern District at East St. Wyoming, at Denver, Colorado Louis. 80294. Indiana: Northern District at Eleventh Circuit: Alabama, Flori- South Bend, Southern District at da, Georgia, at Atlanta, Georgia Indianapolis. 30303. Iowa: Northern District at Cedar Federal Circuit: at Washington, Rapids, Southern District at Des D.C. 20439. Moines. District of Columbia: at Washing- Kansas: at Wichita. ton, D.C. 20001. Kentucky: Eastern District at Lex- ington, Western District at Louisville. United States District Courts Louisiana: Eastern District at New The District Courts are the trial Orleans, Middle District at Baton courts for most federal cases, and Rouge, Western District at Shreveport. there are one or more districts in Maine: at Portland. each state. District Court judges are Maryland: at Baltimore. paid $133,600 per year. Massachusetts: at Boston. Alabama: Northern District at Michigan: Eastern District at De- Birmingham, Middle District at troit, Western District at Grand Montgomery, Southern District at Rapids. Mobile. Minnesota: at St. Paul. Alaska: at Anchorage. Mississippi: Northern District at Arizona: at Phoenix. Oxford, Southern District at Arkansas: Eastern District at Jackson.

Little Rock, Western District at Missouri: Eastern District at St. Fort Smith. Louis, Western District at Kansas California: Northern District at City.

458 Montana: at Billings. West Virginia: Northern District at Nebraska: at Omaha. Elkins, Southern District at Nevada: at Reno. Charleston. New Hampshire: at Concord. Wisconsin: Eastern District New Jersey: at Newark. at Milwaukee, Western District at New Mexico: at Albuquerque. Madison. New York: Northern District at Wyoming: at Cheyenne. Syracuse, Eastern District at Brooklyn, Southern District at Territorial district courts: New York City, Western District Guam at Agana, Puerto Rico at Hato at Buffalo. Rex, and Virgin Islands at St. Croix. North Carolina: Eastern District at Raleigh, Middle District United States Court of at Greensboro, Western District International Trade: New York at Asheville. City, New York 10007. North Dakota: at Bismarck. Ohio: Northern District at United States Court of Cleveland, Southern District at Federal Claims: Washington, D.C. Columbus. 20005. Oklahoma: Northern District at Tulsa, Eastern District at Muskogee, United States Tax Court: Wash- Western District at Oklahoma City. ington, D.C. 20217. Oregon: at Portland. Pennsylvania: Eastern District United States Court of at Philadelphia, Middle District at Veterans Appeals: Washington, Scranton, Western District at Pitts- D.C. 20004. burgh. Rhode Island: at Providence. State Supreme and Appeals South Carolina: at Columbia. Courts South Dakota: at Sioux Falls. Every state has a state court ap- Tennessee: Eastern District at peals system, in which the highest Knoxville, Middle District at court is called the State Supreme Nashville, Western District at Court except in Maryland and New Memphis. York, where that court is called the Texas: Northern District at Dal- Court of Appeals. Many states have las, Southern District at Houston, interim appeals courts which hear the

Eastern District at Ttyler, Western appeals from trial courts, and from District at San Antonio. those appeals courts the decisions Utah: at Salt Lake City. may be appealed to the highest court, Vermont: at Burlington. but in most cases only if the State Virginia: Eastern District Supreme Court (state appeals court in at Alexandria, Western District New York and Maryland) wishes to at Roanoke. hear the case, usually because the Washington: Eastern District at case requires legal clarification of con- Spokane, Western District at flicting decisions or the establishment Seattle. of a precedent.

459 An appeal from a state court ruling may be made to the U. S. Supreme Court only if there is a U. S. Constitutional issue involved. State Supreme Courts (not to be confused with Supreme Court in New York, which is a trial court) generally sit at the state capital, although there are exceptions such as California, where the court is headquartered in San Francisco. MAJOR SUPREME COURT DECISIONS

^ Appendix III

Marbury v. Madison (1803): “carpet bagger” government of Chief Justice John Marshall used a Louisiana, by a vote of 5-4, the court dispute over judicial appointments ruled that the “privileges and immu- to declare a judiciary act unconstitu- nities” protections of the Constitu- tional, in order to establish the tion now applied to the states power of the Supreme Court to de- through the 14th Amendment. cide the constitutionality of statutes. Plessy v. Ferguson (1896): De-

Martin v. Hunter’s Lessee spite a vigorous dissent by Justice (1816): In a decision by Justice John Harlan, the court ruled that Joseph Story the Supreme Court ex- “separate but equal” facilities for tended its right ofjudicial review on blacks were constitutional, which re- constitutionality to appeals from mained the rule until Brown v. Board state and federal courts. of Education (1954).

McCulloch v. Maryland (1819): Muller v. Oregon (1908): A state In ruling that the federal govern- law setting a maximum of working ment could charter a bank and a hours for women was upheld, with fu- state could not tax that bank, Chief ture Justice Louis D. Brandeis argu- Justice John Marshall established ing for the state. that the federal government has “implied powers” to carry out any Standard Oil Co. of New Jersey and all powers given by the Consti- v. United States (1911): The court tution without state interference. confirmed the dissolution of the Stan- dard Oil Trust, because its monopoly Gibbons v. Ogden (1824): position was an unreasonable re- Chief Justice John Marshall’s deci- straint on trade under the Sherman sion struck down state barriers to Antitrust Act. interstate commerce. The case involved a steamboat operator who Schenk v. United States (1919): was denied a license by one of the In sustaining the Espionage Act of states he serviced. 1917 enacted during World War I, the court ruled that freedom of

Dred Scott v. Sanford (1857): speech and freedom of press could be The ruling that a slave taken to a limited if the words in the circum-

free state was still a slave, helped stances were such that created “a trigger the Civil War. clear and present danger.”

Slaughter House Cases Gitlow v. New York (1925): The (1873): In upholding the contract court ruled that the First Amendment rights to an owner of a monopoly right to free speech applied to state on slaughter houses granted by the laws under the 14th Amendment.

461 Village of Euclid v. Amber Re- Darby v. United States (1941): alty (1926): The court ruled that In a decision by Justice Harlan Stone zoning ordinances are a legitimate the court sustained that por- exercise of the states police powers. tion of the 1938 Fair Labor Stan- dards Act prohibiting child labor and Near v. Minnesota (1931): regulating wages and hours, on the Prior restraint on publications is a basis that the federal government s violation of free speech and free power to regulate interstate com- press, the court ruled in striking merce included the authority to pro- down a state law that allowed the mote commerce as well as prohibit police to confiscate publications that it, a position argued in a dissent by were malicious, scandalous or ob- Oliver Wendell Holmes in 1916. scene. The case involved a virulent- ly anti-Semitic pamphlet. Shelley v. Kraemer (1948): The court declared so-called restrictive Norris v. Alabama (1935): The covenants in real property deeds Scottsboro case, in which several which prohibited sale of property to young black men were falsely non-Caucasians, to be unconstitu- charged with the rape of a young tional and in violation of the equal white woman, was overturned on protection provision of the 14th the basis that organized exclusion of Amendment. Where such covenants blacks from jury panels (the pool of remain in the text of deeds they must potential jurors) was a violation of be ignored. the defendants constitutional right to due process. Youngstown Steel v. Sawyer (1952): In the steel seizure case the Schecter Poultry Corp. v. court ruled that President Truman s United States (1935): The court seizure of strike-bound steel plants in struck down the National Industri- order to provide materials for the Ko- al Recovery Act (a key measure of rean War could not be based on in- the New Deal) on the basis that herent presidential powers, but had the government had improperly to be authorized by statute. Truman delegated authority to make rules immediately halted the take-over. governing industries in interstate commerce. The decision by an Brown v. Board of Education of aging court (called nine old men by Topeka (1954): Chief Justice Earl its critics) and other rulings Warren ruled for a unanimous court that New Deal legislation was un- that separate educational facilities for constitutional prompted President blacks and whites are inherently un- Franklin D. Roosevelt to launch equal and equal conditions for all his ill-fated effort to pack the races must be provided with all delib- Supreme Court by adding an addi- erate speed, overturning Plessy v. tional justice for each one who Ferguson. would not retire at 70. Death and resignation soon gave Roosevelt Roth v. United States (1957): The vacancies to fill on the court. court denied free speech and free

462 press protection to obscene material the defamatory statement (even which was utterly without redeem- though false) was motivated by ing social value. malice, meaning the defamer knew it was false or made it with Mapp v. Ohio (1961): Evidence ob- reckless disregard of whether it tained by illegal search and seizure was false or not. The theory was could not be introduced in state or that otherwise potential libel suits federal trials. would put a chill on the reporting on public officials by the media.

Engel v. Vitale (1962): Based on the doctrine of separation of church Reynolds v. Sims (1964): The and state, organized prayer in pub- second one-man-one-vote land- lic schools was declared unconstitu- mark decision, which ruled that tional. both houses of state legislatures had to be apportioned with districts of

Baker v. Carr (1962): In the first approximately equal populations. one-man-one-vote decision, the The result was reapportionment of court ruled that districts which were upper houses (state senates) and malapportioned (varied substantially some lower houses throughout the in population) denied the voters nation for the 1966 elections. equal protection and were therefore unconstitutional. Griswold v. Connecticut (1965): The court struck down laws against Gideon v. Wainwright (1963): the sale or use of contraceptives as The court extended the original con- an invasion of personal privacy. stitutional right to an attorney in federal criminal cases for those who Miranda v. Arizona (1966): The could not afford representation to court established the rights of a indigent defendants in state prose- criminal suspect to remain silent, to cutions under the due process be told he/she can have legal counsel clause of the 14th Amendment. The and that anything he/she says can be indigent defendant was represented used in court. Furthermore, to use a gratis by future Supreme Court confession or admission in court the Justice Abe Fortas. The ruling prosecution must prove the suspect greatly increased the use of public knowingly waived those rights, and defenders. In 2002, the court ruled thus the rights should be read or the right applied in all cases where recited to the suspect. These became jail time is a possible punishment. known as the Miranda rights.

New York Times v. Sullivan Roe v. Wade (1973): The court (1964): A landmark decision in the ruled that abortions (previously field of libel, which ruled that the limited to those necessary to save a commercial press was shielded from womans life) were legkl, and any lawsuits by public officials (later ex- state law which denied the right of a

tended to public figures ) for libel woman to have an abortion in the unless the public official could show first trimester (three months) of preg-

463 nancy was a denial of her right to pri- tect a sitting President from a civil vacy under the due process guarantee suit. in the 14th Amendment. Until that

ruling every state had statutes mak- Clinton v. City of New York ing an elective abortion a crime. (1998): The recently enacted line item veto was declared unconstitu- Gregg v. Georgia (1976): The tional since it gave the executive a death penalty for murder was found legislative function. not to be in and of itself a cruel and

unusual punishment prohibited by Bush v. Gore (2000): With the the 8th Amendment, but the charac- results of the presidential election ter of the defendant was to be con- at stake, the Supreme Court by a sidered in deciding whether to im- vote of 5-4 reversed the decision of pose the death penalty. the Florida Supreme Court which had granted a hand recount of Woodson v. North Carolina ballots in three Florida counties (1976) A mandatory death penalty requested by the campaign of Vice for first-degree murder was ruled un- President Gore. The Bush campaign constitutional since a defendant had petitioned the U.S. Supreme Court the right to individual consideration directly to temporarily halt the of the facts in his/her case. recount, rule that it could not continue and that the results in Florida Regents of the University of certified by its Secretary of State California v. Bakke (1978): The (giving the states electoral votes to reverse discrimination case candidate Bush by a narrow mar- which found that a white applicant gin) were final. The Court granted for a medical school which received both Bush petitions, based on the federal funding could not be ex- rationale that recounting only a few cluded due to his race (a limited counties violated equal protection as quota for whites under the school s to the voters of the other counties. admission plan) due to the non-dis- The Court also declared that a full crimination provisions of the 1964 state recount could not be conducted Civil Rights Act. within the statutory limits spelled out in the constitution for certifying United Steelworkers of electoral vote results. America v. Weber (1979): The 1964 Civil Rights Act provisions for affirmative action programs to encourage minority hiring for jobs in which the minorities were previously underrepresented were ruled constitutional.

Clinton v. Jones (1997): Unanimously the court ruled that presidential immunity did not pro-

464 NORTH AMERICAN and STATE BAR ASSOCIATIONS

Appendix IV

North American Bar Associations

United States: American Bar Association, 750 North Lake Shore Drive, Chicago, IL 60611; Tel.: (312) 988-5000; Fax: (312) 988-5037

Canada: Canadian Bar Association, 20 Toronto Street, Suite 200, Toronto, Ontario, M5C 2B8, Canada; Tel: (416) 869-1047; Fax: (416) 869-1390

Mexico: Barra Mexicana Colegio de Abogados, Varsovia No. 1, Esq. Con P. de la Reforma, Mexico City, Mexico; Tel.: 52(5) 525-2485; Fax 52(5) 336-7775

United States State Bar Associations

Alabama State Bar: 415 Dexter Avenue, P.O. Box 671, Montgomery, AL 36101; Tel.: (334) 261-1515; Fax: (334) 261-6310

Alaska Bar Association: 510 L Street #602, P.O. Box 100279, Anchorage, AK 99510; Tel.: (907) 272-7469; Fax: (907) 272-2932

State Bar of Arizona: 111 W. Monroe Street, Suite 1800, Phoenix, AZ 85003-1742; Tel.: (602) 340-7200; Fax: (602) 271-4930

Arkansas Bar Association: 400 West Markham, Little Rock, AR 72201; Tel.: (501) 375-4605; Fax: (501) 375-4901

California State Bar Association: 555 Franklin Street, San Francisco, CA 94102; Tel.: (415) 561-8200; Fax: (415) 561-8365

Colorado Bar Association: 1900 Grant Street, Suite 950, Denver, CO 80203-4309; Tel.: (303) 860-1112; Fax: (303) 894-0821

Connecticut Bar Association: 101 Corporate Place, Rocky Hill, CT 06067; Tel.: (203) 721- 0025; Fax: (860) 257-4125

Delaware Bar Association: 1225 King Street, 10 th Floor, P.O. Box 1709, Wilmington, DE 19899; Tel: (302) 658-2579; Fax: (302) 658-5212

The District of Columbia Bar Association: 1819 H Street, NW, 12 th Floor, Washington, DC 20006-3690; Tel.: (202) 223-6600; Fax: (202) 223-3388

The Florida Bar Association: 650 Apalachee Parkway, Tallahassee, FL 32399-2300; Tel.: (904) 561-5600; Fax: (904) 561-5827

State Bar of Georgia: 800 The Hurt Building, Atlanta, GA 30303; Tel: (800) 334-6865; Fax: (404) 561-5827

465 Hawaii State Bar Association: P.0. Box 26, Honolulu, HI 96810; Tel.: (808) 537-1868; Fax.: (808) 521-7936

Idaho State Bar: P.O. Box 895, 525 W. Jefferson Street, Boise, ID, 83701; Tel.: (208) 334- 4500; Fax: (208) 334-4515

nd Illinois State Bar Association: Illinois Bar Center, 424 South 2 Street, Springfield, IL 62701-1779; Tel.: (217) 525-1760; Fax: (217) 525-0712

Indiana State Bar Association: 107 N. Pennsylvania Street, Suite 200, Indianapolis, IN 46204-2199; Tel.: (317) 639-5465; Fax: (317) 266-2588

Iowa State Bar Association: 521 East Locust Street, Suite 300, Des Moines, IA 50309; Tel.: (515) 243-3179; Fax: (515) 243-2511

Kansas Bar Association: 1200 Harrison Street, P.O. Box 1037, Topeka, KS 66601; Tel.: (913) 234-5696; Fax: (913) 234-3813

Kentucky Bar Association: 514 West Main Street, Frankfort, KY 40601-1883; Tel.: (502) 564- 3795; Fax: (502) 564-3225

Louisiana State Bar Association: 601 St. Charles Avenue, New Orleans, LA 70130; Tel.: (504) 566-1600; Fax: (504) 566-0930

Maine State Bar Association: 124 State Street, P.O. Box 788, Augusta, ME 04332-0788; Tel.: (207) 622-7523; Fax: (207) 623-4140

Maryland Bar Association, Inc.: The Maryland Bar Center, 520 West Fayette Street, Baltimore, MD 21201; Tel.: (410) 685-7878; Fax: (410) 837-0518

Massachusetts Bar Association: 20 West Street, Boston, MA 02111-1204; Tel.: (617) 338- 0500; Fax: (617) 338-0650

Michigan State Bar Association: 306 Townsend Street, Lansing, MI 48933-2083; Tel.: (517) 372-9030; Fax: (517) 372-2410

Minnesota State Bar Association: 514 Nicollet Mall, Suite 300, Minneapolis, MN 55402; Tel.: (612) 333-1183; Fax; (612) 333-4927

Mississippi State Bar: 643 North State Street, P.O. Box 2168, Jackson, MS 39225; Tel.: (601) 948-4471

Missouri State Bar Association: 326 Monroe Street, P.O. Box 119, Jefferson City, MO 65102; Tel.: (314) 635-4128; Fax; (314) 635-2811

State Bar of Montana: 46 North Last Chance Gulch, Suite 2A, P.O. Box 577, Helena, MT 59624; Tel.: (406) 442-7660; Fax: (406) 442-7763

Nebraska State Bar Association: 635 South 14th Street, P.O. Box 81809, Lincoln, NE 68501; Tel.: (402) 475-7091; Fax: (402) 475-7098

State Bar of Nevada: 600 E. Charleston Blvd., Las Vegas, NV 89104; Tel.: (702) 382-2200; Fax: (702) 385-2878

New Hampshire Bar Association: 112 Pleasant Street, Concord, NH 03301; Tel.: (603) 224- 6942; Fax: (603) 224-2910

466 New Jersey State Bar Association: One Constitution Square, New Brunswick, NJ 08901- 1500; Tel: (908) 249-5000; Fax: (908) 249-2815

State Bar of New Mexico: 121 Tijeres N.E., Garden Level, P.O. Box 25883, Albuquerque, NM 87125; Tel: (505) 797-6000; Fax: (505) 828-3765

New York State Bar Association: One Elk Street, Albany, NY 12207; Tel: (518) 487-5557; Fax: (518) 487-5564

North Carolina State Bar Association: 800 Weston Parkway, Cary, NC 27519; Tel: (919) 677- 0561; Fax: (919) 677-0761

State Bar Association of North Dakota: 515-1/2 East Broadway, Suite 101, P.O. Box 2136, Bismarck, ND 58502; Tel: (701) 255-1404

Ohio State Bar Association; 1700 Lake Shore Drive, P.O. Box 1562, Columbus, OH 43216; Tel: (614) 487-2050; Fax: (614) 487-1008

Oklahoma State Bar Association: 1901 North Lincoln Blvd., Oklahoma City, OK 73105; Tel: (405) 524-2365; Fax: (405) 524-1115

Oregon State Bar: 5200 S.W. Meadows Road, P.O. Box 1689, Lake Oswego, OR 97035-0889; Tel: (503) 620-0222; Fax: (503) 684-1366

Pennsylvania Bar Association: 100 South Street, P.O. Box 186, Harrisburg, PA 17108; Tel: (717) 238-6715; Fax: (717) 238-1204

Rhode Island Bar Association: 115 Cedar Street, Providence, RI 02903; Tel: (401) 421-5740; Fax: (401) 421-2703

South Carolina Bar: 950 Taylor Street, P.O. Box 608, Columbia, SC 29202-0608; Tel: (803) 799-6653; Fax: (803) 799-4118

South Dakota State Bar Association: 222 East Capitol, Pierre, SD 57501; Tel: (605) 224- 7554; Fax: (605) 224-0282

Tennessee Bar Association: 3622 West End Avenue, Nashville, TN 37205; Tel: (615) 383- 7421; Fax: (615) 297-8058

State Bar of Texas: 1414 Colorado, Austin, TX 78711-2487; Tel: (512) 463-1463; Fax: (512) 473-2295

Utah State Bar: 645 South 200 East, Salt Lake City, UT 84111-3834; Tel: (801) 531-9077; Fax: (801) 531-0660

Vermont Bar Association: 35-37 Court Street, P.O. Box 100, Montpelier, VT 05602; Tel: (802) 223-2020; Fax: (802) 223-1573

Virginia State Bar: Eighth and Main Building, Suite 1500, 707 East Main Street, Richmond, VA 23219-2803; Tel: (804) 775-0500; Fax: (804) 775-0501

Washington State Bar Association: 500 Westin Bldg., 2001 6th Avenue, Seattle, WA 98121- 2599; Tel: (206) 727-8200; Fax: (206) 727-8320

West Virginia State Bar: 2006 Kanawha Blvd. East, Charleston, WV 25311; Tel: (304) 558- 2456; Fax: (304) 558-2467

467 State Bar of Wisconsin: 402 West Wilson Street, P.O. Box 7158, Madison, WI 53707-7158; Tel.: (608) 250-6101; Fax: (608) 257-5502

Wyoming State Bar: 500 Randall Avenue, P.O. Box 109, Cheyenne, WY 92003-0109; Tel.: (307) 632-9061; Fax: (307) 632-3737

Guam Bar Association: 141 San Ramon Road, Agana, Guam 96910; Tel.: (641) 477-7623

Puerto Rico Bar Association: P.O. Box 1900, San Juan, PR 00903; Tel.: (809) 721-3358; Fax: (809) 725-0330

Virgin Islands Bar Association: P.O. Box 4108, Christiansted, Virgin Islands, 00822; Tel.: (809) 778-7499; Fax: (809) 773-5060 LEGAL TRIVIA

Appendix V

When future President John absolute proof that his clients, the Mc- Adams came to court in Boston to be Namara brothers, were guilty of set- sworn in as an attorney he forgot to ting off the bomb at the Los Angeles bring his lawyer sponsor to attest to Times in 1911 which killed 20 people. his skill and honesty. Another attorney stepped forward and swore to Swift justice was meted out to Adams talent, saving the young Giuseppe Zangara, who tried to shoot man further embarrassment. President-elect Franklin D. Roosevelt in Florida on February 15, 1933, but Former San Francisco 49ers mortally wounded Chicago Mayor An- quarterback Steve Young is an at- ton Cermak instead. Cermak died torney as is St. Louis Cardinal man- March 6. The murder trial began the ager Tony LaRussa. Other sports next day, Zanagara was convicted in a figure attorneys included broad- brief trial, and was electrocuted March casters Howard Cosell and Mel 20, just 33 days after the shooting. Allen, as well as Miller Huggins, who managed the Murderers Row The so-called Field Codes, used as New York Yankees in the 1920s. the model for basic laws of California and several western states, were writ- Canada s first two women judges, ten by attorney David Dudley Field appointed in 1916 and 1917, were for New York, but were never fully not lawyers but writers of legisla- adopted by that state. However, his tion and advocates of the legal brother, Stephen Field, came to Cali- rights of women and children. fornia in the Gold Rush, became a member ofthe California state legisla- Francis Bacon, the British essay- ture and had the codes adopted there. ist and philosopher, was sacked as Soon they were copied by several the Crowns Attorney General for other states. Stephen Field was later taking bribes. appointed to the U.S. Supreme Court. Other Field brothers were Cyrus, who President Franklin D. Roosevelt laid the Atlantic Cable, and Henry, a never graduated from law school, noted writer and theologian. because he failed courses at Colum- bia in his final semester and did not Hoagy Carmichael, songwriter, bother to make them up. He satis- singer and actor, who wrote Star- fied the courts by oral examination dust and other popular songs, was that he was qualified. a lawyer.

Famous trial attorney Clarence Under early English common law, Darrow planted a spy on the staffofthe a potential juror would not be dis- District Attorney, from whom he qualified because he knew the cir- learned that the prosecution had cumstances of the case, and, in fact,

469 such knowledge was considered was made an “honorary” member of an advantage. the Illinois Bar Association. Mrs. Bradwell was eventually admitted, It was widely reported that Sir as was her daughter, who was first in William Blackstone, who wrote the her class at Union College of the Law Commentaries on the Law of Eng- (now Northwestern). land, the bible on the common law, sipped from a bottle of port while Until 1878, California law limit- writing. When the bottle was empty ed lawyers to “white males” only, the day's work was done. but Clara Shortridge Foltz lobbied through an amendment to the state After World War II many states codes striking that provision, and be- waived the bar examination for came California’s first woman lawyer servicemen who had been in their in 1878. She and Laura De Force Gor- final year of law school or had don also successfully sued to overturn graduated without taking the state the prohibition against women stu- examination when they went into dents at Hastings College of the Law, the armed forces. the only public law college in Califor- nia, after they had been kicked out Lizzie Borden, known in song and after two days of classes. Mrs. Foltz story for hatcheting her parents to later had a 54-year career as an active death (“Lizzie Borden took an ax, lawyer and legal reformer. and gave her mother 40 whacks, and when she saw what she had done, Vice President Aaron Burr shot and she gave her father 41”) was actual- killed former Secretary of Treasury ly acquitted of murder charges. Alexander Hamilton in a duel on July 11, 1804, despite the fact that these America’s first woman admitted two lawyers had been co-counsel on to the bar was Arabella Mansfield several lawsuits. of Iowa on June 15, 1869, when the admitting judge ruled that the In 1859 David Terry, Chief Justice word “men” in the state law meant of the California Supreme Court, re- men and/or women. However, Mrs. signed in order to fight a duel with Mansfield never actively practiced, U. S. Senator David C. Broderick, but served as a professor at Iowa whom Terry shot and killed. Terry Wesleyan and later DePauw. was later shot to death by a U. S. marshal when Terry threatened The Supreme Court ruled in to attack Supreme Court Justice 1873 that the question of whether Stephen Field in a railroad station. a woman could be admitted to the bar was a matter of state jurisdic- Three current members of the U. S. tion and refused to apply the 14th Supreme Court, Antonin Scalia, An- Amendment. For example, Myra thony M. Kennedy and David H. Colby Bradwell, owner of the Souter, graduated from Harvard Chicago Legal News, had been Law School, while Chief Justice turned down in 1869, but in 1872 William H. Rehnquist and Sandra

470 Day O Connor received degrees from Stanford Law School. Justice Kennedy received his undergraduate degree from Stanford.

William O. Douglas served the longest on the Supreme court, 36 years, from 1939-1975.

In the Federal Courts of Appeal, Puerto Rico is included in the same circuit court with Maine, Massachu- setts, New Hampshire and Rhode Island, while the Virgin Islands are lumped together with Delaware, New Jersey and Pennsylvania. More rationally, Guam is included with the West Coast states.

Byron Whizzer White from the University of Colorado was the only All-American football player to serve on the Supreme Court.

471

TOP LEGAL FILMS

9 Appendix VI 4

The Accused: (1988) A victim of Kennedy, Ed Begley, Sr., Karl gang rape caught in the law Malden. enforcement/judicial system convinces female prosecutor to The Caine Mutiny: (1954) Tension- press for conviction instead filled military trial in which Cap- of settling for a plea bargain. tain Queeg (with ball bearings Jodie Foster won Academy rolling in nervous fingers) claims Award. Also Kelly McGillis, his crew mutinied. Humphrey Bernie Coulson, Leo Rossi. Bogart, Van Johnson, Fred MacMurray, Robert Francis, E. Adams Rib: (1949) Husband and G. Marshall, Lee Marvin. wife attorneys argue two sides of a murder case with great A Civil Action: (1998) Based on wit. Spencer Tracy, who played John Harr s best-seller about several lawyer roles, and an actual event, John Travolta Katharine Hepburn. plays an idealistic attorney challenging a polluter sus- Anatomy of a Murder: (1959) Clas- pected of poisoning a Massa- sic courtroom thriller (and chusetts river which causes good law research) written by a cancer in the neighborhoods. justice of Michigan Supreme This courtroom drama also Court. Jimmy Stewart, Lee stars Robert Duvall. Remick, Ben Gazzara, Arthur 0 Connell, Eve Arden, George Class Action: (1990) Father and C. Scott. daughter lawyers battle in court in fair flick made better by And Justice for All: (1979) A1 two leads, Gene Hackman and Pacino fights corruption in Mary Elizabeth Mastrantonio. the legal system, with climactic courtroom explosion at Compulsion: (1959) Based on the crooked judge. Jack Warden, Loeb-Leopold 1920s thrill John Forsythe, Lee Stras- killing by spoiled rich young berg, Christine Lahti, Craig men, highlight is Orson Welles T. Nelson. in 15-minute capsulized version of Clarence Darrow s ar- Boomerang!: (1947) Dramatic tale gument against the death of legal ethics when D.A. real- penalty. With Dean Stockwell, izes defendant is not guilty, Diane Varsi, E. G. Marshall. based on actual case tried by future Attorney General Erin Brockovich: (2000) The ulti- Homer Cummings. Dana An- mate small law firm versus the drews, Lee J. Cobb, Arthur big corporation film. Julia

473 Roberts won the Academy Kelly, Florence Eldridge, Dick Award playing Erin, an in- York, Harry Morgan. trepid legal aide who convinces her crusty lawyer boss (Albert In the Name of the Father: (1993) Finney) to file a difficult class A determined woman attor- action on behalf of sick and dy- ney wins exoneration for a ing families against giant util- young Irishman and his fam- ity Pacific Gas & Electric ily framed for a terrorist (PG&E), based on evidence bombing. Oscar nominations that it knew its power lines for Emma Thompson, Daniel were causing cancer. Vividly Day-Lewis and Pete Postleth- transfers this true story to the wait. screen. The Insider: (1999) The human AFew Good Men: (1992) Tbm Cruise, drama of a tobacco company assisted by Demi Moore, defends ex-employee who had the young Marines charged with temerity to dispute tobacco murder. Also Jack Nicholson. executives claims that nico- tine was not addictive. After The Firm: (1993) Tale of top-of-class the whistle blower is fired, neophyte attorney caught in a maligned, and black-balled, law firm fronting for crooks he reluctantly sues for finan- with deadly results. Tbm Cruise, cial recovery and his good Gene Hackman, Jeanne Trip- name. The film stars A1 plehorn, Holly Hunter, Hal Pacino, Russell Crowe and Holbrook. Christopher Plummer.

Ghosts of Mississippi: (1996) The Judge Priest: (1934) Legendary true story of investigating Will Rogers plays folksy and trying a federal civil southern judge based on Irvin rights violation case against S. Cobb stories. Compare to the killer of civil rights leader To Kill a Mockingbird three Medgar Evers, two decades decades later as racial atti- after a jury had acquitted tudes changed. With Tom the accused murderer in a Brown, Anita Louise, Stepin Mississippi state trial. Alec Fetchit. Baldwin and Whoopi Goldberg build the tension. Judgment at Nuremberg: (1961) War crimes trial of Nazis after Inherit the Wind: (1960) The 1920s World War II with Academy Scopes Monkey Trial is Award-winning screenplay. fought out between Spencer With Spencer Tracy, Burt Lan- Tracy as Clarence Darrow and caster, Maximilian Schell (also Fredric March as William Jen- an Oscar), Marlene Dietrich, nings Bryan, arguing over Judy Garland, Richard Wid- teaching evolution. Also Gene mark, Montgomery Clift.

474 Kramer v. Kramer; (1979) Ultimate social cause vs. the big busi- child custody film which won ness establishment movies, Best Picture Academy Award, Academy Award winner Tom also Best Actor, Director, Sup- Hanks brings an antidiscrimi- portingActress, and Screenplay. nation lawsuit against the law Dustin Hoffman, Meryl Streep, firm that fired him after he Jane Alexander, Justin Henry. contracted AIDs. An all star cast includes Denzel Washing- Legal Eagles: (1986) Opposing ton, Jason Robards, Mary lawyers in murder case, Steenbergen, Antonio Ban- Robert Redford and Debra deras and Joanne Woodward. Winger fall in love. Also Daryl Hannah, Brian Dennehy, The Pelican Brief: (1993) Another Terence Stamp. John Grisham legal thriller, this time involving the mur- The Mouthpiece: (1932) Prosecutor der of two Supreme Court becomes criminal defense Justices. In the big-name cast lawyer representing mobsters are Julia Roberts, Denzel for the big bucks. Warren Washington, Hume Cronyn William, Sidney Fox, Mae and Robert Culp. Madison, Aline MacMahon, John Wray, Guy Kibbee. Presumed Innocent: (1990) Scott Turow s bestseller in which at- Music Box: (1989) Jessica Lange as torney is under suspicion for lawyer daughter of accused war murder of woman lawyer with criminal defends him without whom he had affair. Harrison being sure he is innocent. Also Ford, Brian Dennehy, Raul Ju-

Armin Mueller- Stahl, Frederic lia, Bonnie Bedelia, Paul Win- Forrest, Donald Moffat. field, Greta Scacchi.

Paradine Case: (1947) An Alfred The Rainmaker: (1997) Francis Hitchcock mystery with Gre- Ford Coppola-directed version gory Peck as lawyer defending of John Grisham s novel about Alida Valli on murder charge. a young attorney (Matt Damon) With Ann Todd, Charles assisted by resourceful legal Laughton, Charles Coburn, aide and perennial bar exam Ethel Barrymore. flunkee (Danny Devito) who brings a class action against

The People v. OHara: (1951) big tobacco . Jon Voight plays Lawyer with shady past has to an icily slick corporate attor- clean up his act to save a client. ney for the defense. Cast in- Spencer Tracy, Pat 0 Brien, Di- cludes Claire Danes. ana Lynn, John Hodiak. States Attorney: (1931) John Barry- Philadelphia: (1993) In one of the more stars as flashy district at- earliest young attorney with a torney defending a mobster,

475 who was his childhood friend. urging of young law clerk. Also Helen Twelvetrees, James Woods, Robert Downey, William Boyd, Ralph Ince. Jr., Yuji Okumoto, Margaret Colin. Suspect: (1987) Public Defender Cher represents deaf homeless Twelve Angry Men: (1957) The vet Liam Neeson and gets help jury movie, in which the argu- from juror Dennis Quaid with ments and emotions of the ju- more fun than logic. Also John rors make viewer feel se- Mahoney, Philip Bosco. questered with them. Henry Fonda, Lee J. Cobb, Ed Begley, To Kill a Mockingbird: (1962) Sr., Martin Balsam, E. G. Mar- Small-town southern lawyer shall, Jack Klugman and Jack defends black man accused of Warden head a stellar panel. rape during Depression, fight-

ing racism and unfair The Verdict: (1982) Broken-down al- judicial system while trying coholic storefront lawyer takes to prove his client s innocence. on powerful defendants in neg- Adapted from Harper Lee s ligence case to gain final re- novel, screenplay won Acad- demption for wasted career. emy Award as did star Paul Newman in the lead Gregory Peck. Also Mary backed by Charlotte Rampling, Badham, Philip Alford, Brock Jack Warden, James Mason, Peters, Robert Duvall. Milo 0 Shea, Edward Binns, Lindsay Crouse. The Trial: (1963) A French adapta- tion of Kafka s eerie novel, well Witness for the Prosecution: (1957) directed by Orson Welles. An- An Agatha Christie legal thony Perkins plays the ac- thriller with Charles Laughton cused, with Jeanne Moreau, as defense barrister fighting

Romy Schneider, Elsa Mar- back from disastrous testi- tinelli and Welles himself. mony by Marlene Dietrich against his client (Tyrone Trial of Mary Dugan: (1929) The Power) accused of killing an old first courtroom movie in lady. Also Elsa Lanchester, sound, a woman is accused of Una O Connor, Ian Wolfe. murdering her lover, is de- serted by attorney, and saved by new counsel. Norma Shearer, Lewis Stone, H.B. Warner, Raymond Hackett.

True Believer: (1989) Lawyer who has shed radical ideals for high-paying law career, takes on appeal of Asian convict at

476

continuedfrom front flap important information about the law, the principles behind it, and how they apply to and affect your everyday life.

A handy reference even for attorneys, paralegals, legal secretaries, and law students, this self-contained, single volume of legal definitions and information will provide practical guidance for everyday transactions.

“Common sense often makes good law.” - Justice William O. Douglas, from page 307.

Gerald H. Hill has practiced law in San Francisco’s financial district and in a small town, has served as a *pro-tem judge, arbitrator, universi-

ty law instructor, and executive director of a state agency. He has a B.A. from Stanford University and a J.D. from Hastings College of the Law, University of California. KATHLEEN THOMPSON

HlLL is a political psychologist and language ana- lyst, was a Coro Fellow in Public Affairs, served on a Grand Jury, and chaired two civic commissions. She holds a B.A. from the University of California, Berkeley, and an M.A. from Sonoma State University. The Hills have co-authored more than 20 books, including The Facts On File Dictionary ofAmerican Politics. They currently co- teach United States Government and Politics at the University of British Columbia and both have been visiting scholars at the University of California at Berkeley’s Institute of Governmental Studies.

*pro-tem judge: (n.) a judge who is sitting temporarily for another judge, or an attorney who has been appointed to serve as a judge or as a substitute for a regular judge.

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d.b.a.: (n.) short for “doing business as,” when a person or group uses a business name instead of their own. All states require you to file a certificate of “doing business under a fictitious name” with the County Clerk or some other official.

easement: (n.) the right to use the real property of another for a specific purpose. felony, (n.) a crime sufficiently serious to be punishable by a term in state or federal prison (usually for a year or more). Distinguished from a misdemeanor, which is punishable by a term in a county or local jail and/or a fine.

title: (n.) ownership of real property or personal property, which stands against anyone else’s right to claim that property.

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