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Nolo’s Plain-English Law Dictionary

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Nolo’s Plain-English Law Dictionary

By the Editors of Nolo, Gerald N. Hill and Kathleen Thompson Hill First Edition May 2009

Editor Shae Irving

Cover Design Susan putney

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Nolo’s plain-English law dictionary / by the editors of Nolo and Gerald and Kathleen Hill. -- 1st ed. p. cm. ISBN-13: 978-1-4133-1037-5 (pbk.) ISBN-10: 1-4133-1037-0 (pbk.) 1. Law--United States--Dictionaries. I. Hill, Gerald N. II. Hill, Kathleen, 1941- III. Nolo (Firm) IV. Title: Plain-English law dictionary. KF156.N654 2009 349.7303--dc22 2009011279

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Like it or not, legal terms are everywhere, of the latest twists in legal language. We’re demanding our attention. When you rent committed to finding and defining the an apartment, are you the lessor or the important terms that aren’t contained in lessee? When you read a newspaper article other legal dictionaries. And we’ll keep about a politician embroiled in scandal, adding new terms to the online version what does it mean that a grand jury has of this dictionary, which you can find been convened? If a state trooper pulls at www.nolo.com. You can also use this you over, and the speeding ticket says you dictionary on your iPhone—just check must post bail, what is it talking about? the iTunes Store. To make sense of words like these, turn Here’s another quick tip to help you use to Nolo. It’s our mission to put the law this book: If you’re looking for a term that into everyday, understandable language. starts with a number, like “410(k) plan” We’ve been doing it for almost 40 years— or “1031 exchange,” you’ll find it spelled and now we’re tackling legal language one out as a word. For example, to find “1031 word at a time. Nolo’s Plain-English Law exchange” look it up as though it’s spelled Dictionary includes nearly 4,000 legal “ten-thirty-one exchange.” terms, old and brand new. More than 15 lawyers and a talented Just a few years ago, legal terms like support staff have worked together to “cramdown,” “phishing,” “CSI effect,” and bring you Nolo’s Plain-English Law “coho” didn’t exist or were rarely used in Dictionary. We hope you’ll find it both everyday conversation. Here, you’ll find useful and entertaining. clear definitions of these and many more l

v

Contributors

Keith Bauerle worked at Nolo and especially for same-sex couples. She is the contributed to this dictionary while coauthor of several Nolo books, including attending law school at UC Berkeley. Nolo’s Essential Guide to Divorce, Becoming After graduating, he clerked for the High a Mediator, Do Your Own California Court of American Samoa and practiced Adoption, and How to Change Your Name environmental law with the Denver office in California. of Earthjustice. He currently practices Diana Fitzpatrick Diana worked on environmental and land use law in the municipal finance issues at the San San Diego City Attorney’s office. Francisco City Attorney’s office before Ilona Bray Illona’s legal background joining Nolo. She also worked at a law includes solo practice as well as experience firm in New York for several years before in the nonprofit and corporate worlds. She moving to the Bay Area. Diana is a has written or coauthored several Nolo graduate of New York University School titles, including Effective Fundraising for of Law and Barnard College. Nonprofits, Becoming a U.S. Citizen, and Lisa Guerin During her years as a law Nolo’s Essential Guide to Buying Your First student at the University of California Home. at Berkeley, Lisa worked for Nolo as a Catherine Caputo Before joining Nolo, research and editorial assistant. After Cathy was an attorney in private ­practice a stint as a staff attorney at the U.S. assisting start-up and small business Court of Appeals for the Ninth Circuit, ­clients with a wide range of legal needs. Lisa has worked primarily in the field of She edits small business books and soft- employment law, in both government ware and also focuses on issues affecting and private practice. Lisa rejoined Nolo seniors, such as Social Security benefits in 2000 and is the coauthor of several and retirement. Cathy received her law employment titles, including Create Your degree, with honors, from the University Own Employee Handbook and Dealing of San Francisco School of Law. With Problem Employees. Emily Doskow Emily is a Nolo author Gerald N. Hill and Kathleen Thompson and editor, and a mediator and attorney Hill Gerald has practiced law in San in private practice in Berkeley, California, Francisco’s financial district and in a specializing in adoption and family law, small town; has served as a pro tem judge,

vii arbitrator, university law instructor, and Bethany K. Laurence Beth graduated executive director of a state agency; and from Hastings College of the Law at has drafted legislation. He has a B.A. in the University of California in 1993. political science from Stanford University She spent several years working for a and a J.D. from the University of corporate legal publisher before coming California, Hastings College of the Law. to Nolo. She joined Nolo’s editorial staff Kathleen is a journalist and language in 1997 and has never been happier. Beth analyst, who writes a weekly newspaper is the coauthor of Nolo’s Business Buyout column, was a Coro Fellow in Public Agreements and the editor of many of Affairs, served on a grand jury, and Nolo’s small business books. chaired two municipal commissions. Janet Portman Janet received under­ She earned a B.A. at the University of graduate and graduate degrees from California, a degree from the Sorbonne, Stanford University and a law degree Paris, and an M.A. in political psychology from the University of Santa Clara. She from Sonoma State University. was a public defender before coming Together, the Hills have coauthored to Nolo. Janet is Nolo’s managing 28 books, including The Encyclopedia editor, the author of Every Landlord’s of Federal Agencies and Commissions, Guide to Finding Great Tenants, and the The Facts on File Dictionary of American coauthor of many Nolo titles, including Politics, and The Real Life Dictionary of the Every Landlord’s Legal Guide, Every Law. They have taught at the University Tenant’s Legal Guide, Renters’ Rights, and of British Columbia, University of Negotiating the Best Lease for Your Business. Victoria, and Sonoma State University, and were visiting scholars at the Institute Mary Randolph Mary has been editing of Governmental Studies at the University and writing Nolo books and software of California, Berkeley. for more than a decade. She earned her law degree from Berkeley Law (Boalt Shae Irving Shae graduated from Berkeley Hall), and her undergraduate degree Law (Boalt Hall) in 1993 and began at the University of Illinois. She is the working for Nolo in 1994. She has written author of Deeds for California Real Estate, extensively on durable powers of attorney, The Executor’s Guide, and other Nolo health care directives, and other estate materials. planning issues. She is the managing editor for Nolo’s Quicken WillMaker Plus Alayna Schroeder Alayna graduated from software. the University of California, Hastings College of the Law. She is coauthor

viii of several Nolo titles, including Nolo’s Richard Stim Rich graduated from the Essential Guide to Buying Your First Home. University of San Francisco Law School Alayna currently practices employment and worked in private practice for 16 years law, focusing on advising employers until joining Nolo as an editor in 2000. on sound employment practices and He is the author of Profit From Your Idea, investigating employment disputes. Getting Permission, and Music Law, and is the coauthor of Patent Pending in 24 Betsy Simmons-Hannibal Betsy is a Nolo Hours. editor specializing in estate planning books and software. She graduated with Ralph Warner Ralph is a cofounder of honors from Golden Gate University Nolo. He is the author (or coauthor) of a School of Law where she was research number of Nolo books, including Every editor of the law review. Prior to joining Landlord’s Legal Guide, Everybody’s Guide Nolo, she trained at two private law firms to Small Claims Court, Form a Partnership, as well as the San Francisco Superior and Get a Life: You Don’t Need a Million Court and the Federal District Court to Retire Well. Ralph is a lawyer who of Northern California. When she’s not became fed up with the legal system and working, you might find her playing dedicated his professional life to making soccer, traveling with her husband, or law more accessible and affordable to all doting on her curious dog. Americans. Marcia Stewart Marcia is an expert on Drew Wheaton Drew received his under- landlord-tenant law, buying and selling graduate degree from Willamette Uni- houses, and other issues of interest to versity, where he studied philosophy. In consumers. She is the coauthor of Nolo’s 2004, he joined Nolo, where he now Every Landlord’s Legal Guide, Every works in the editorial department as a Tenant’s Legal Guide, Renters’ Rights, and legal researcher. In the near future, Drew Leases & Rental Agreements, and editor of plans to attend law school. Nolo’s LeaseWriter software for landlords.

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Table of Contents

Definitions: A-Z...... 1

The Constitution of the United States of America...... 459

xi

A

ABA See: American Bar Association abandonment 1) Giving up a right, generally of ownership, with the abandon To intentionally and perma- intention never to claim it again. nently give up, surrender, leave, desert, 2) In family law, leaving a spouse or relinquish all interest, obligations, or or child(ren) with the intent not to ownership in a house, apartment, or return. In some cases, such as adoption, other property (such as a patent), a abandonment will be presumed if the right of way, or a spouse or children. parent fails to contact or support the The word is often used when a tenant child for a specified period of time. has left his or her rental unit and the property inside and does not intend to abandonment (of residence) An come back. State landlord-tenant laws immigration law term referring to typically regulate how the landlord situations where a permanent resident may deal with abandoned property (green card holder) leaves the United left ­behind by the tenant. To aban- States with the intention of making a don a child or spouse means to have permanent home in another country. no contact and give no support for an Permanent residents who spend longer extended period of time. than six months outside the United States will, upon their return, face abandoned property To relinquish serious questions about whether they ownership and rights in real estate or intended to abandon their residence. other property—for example, a tenant After one year away, an immigrant who (by all outside appearances) has will be presumed to have abandoned intentionally and permanently left an residence, and will need to prove apartment with personal possessions. otherwise in order to reenter the United Abandoned property includes intel- States. lectual property rights—for example, if an inventor has not applied for a patent, abandonment (of trademark) A situation others are legally permitted to use the in which trademark rights are lost invention. because the owner: does not use the mark for an extended period of time

1 abate

with the intent not to resume use; lets to marry or defile the person, the others use the mark without adequate person abducted must be a child, or supervision; or allows the mark to the abductor must intend to subject the become a generic term. (See also: victim to concubinage or prostitution. generic) Kidnapping is more limited, requiring the use of force or the threat of force. abate 1) To do away with or put an end to a problem. 2) To reduce or abet To help someone commit a crime, decrease in amount or value, usually including helping the criminal escape proportionally. (See also: abatement) from police or plan the crime. (See also: aid and abet) abatement 1) The removal of a problem that is against public or private policy abeyance A condition in which there is or that endangers others, including no clear legal owner to real estate. For nuisances such as weeds that might example, after a property owner dies, it catch fire in an otherwise empty lot. may take a while to determine who the 2) An equal reduction of recovery new legal owner of the real estate is. of debts by creditors when there are ab initio Latin for “from the beginning” not enough funds or assets to pay the —for example, “the contract was void full amount. 3) A partial or complete ab initio.” cancellation of a taxpayer’s taxes, penalties, or interest by the IRS. abortion The termination of a pregnancy 4) Reducing the sum owed under a by the removal, by surgical or other contract, on the grounds that the other means, of an embryo or fetus from a side did not deliver as promised. For woman’s uterus. Until 1973 abortion example, rent may be abated when was considered a crime unless performed a landlord has failed to maintain a by physicians to protect the life of the habitable premises. 5) After a death, an mother. TheS upreme Court ruled in the equal reduction in gifts to beneficiaries case of Roe v. Wade (1973) that a woman if the deceased person didn’t leave had the right to choose abortion to end enough property to fulfill all the a pregnancy through the first trimester. bequests made in the will and meet In the latter stages of pregnancy, danger other expenses, such as debts or taxes. to the life of the mother could still justify a legal abortion. abduction Leading someone away by fraudulent persuasion or by force. In abrogate To annul or repeal a law or some states, the abductor must intend pass legislation that contradicts the

2 AB trust

prior law. Abrogate also applies to the rate of interest to be paid on the revoking or withdrawing conditions of judgment amount, court costs, and a contract. any specific orders that the losing defendant must obey. The abstract is abscond To leave suddenly and in secret, acknowledged and stamped so that usually to avoid arrest, prosecution, it can be recorded and made official or service of process; or to leave with with the government. The purpose is funds or goods that belong to someone to create a public record and create a else. lien or claim if necessary on any real absentee ballot A paper ballot submitted property owned or later acquired by by mail or in person by a voter who the defendant located in the county expects to be unable to get to his or her in which the abstract of judgment is polling place on election day. recorded. absolute Complete, without condition, and not subject to modification, as “The law must be stable, but it cannot with “absolute ownership” or a “divorce stand still.” absolute.” —Roscoe Pound, abstention doctrine The principle The Philosophy of Law underlying a federal court’s decision not to hear a case or controversy that is also being considered by a state court. abstract of title A short history of a piece Federal courts will abstain when they of real estate that lists any transfers want to avoid the possibility that their in ownership as well as any liabilities decisions could conflict with a state’s attached to it, such as mortgages, administration of its own affairs. ease­ments, liens, or property taxes. It is usually prepared by an abstracter or abstract In general, a summary of a title insurance agent. record or document, such as an abstract of judgment, abstract of trust, or abstract of trust See: certification of trust abstract of title to real property. abstracter One who prepares a title abstract of judgment A written summary report or abstract of title for real estate. of a court judgment stating how much AB trust A trust that allows couples to money the losing defendant (the reduce or avoid overall estate taxes. judgment debtor) owes to the person Each spouse puts property in the AB who won (the judgment creditor), trust. When the first spouse dies,

3 abuse

his or her half of the property goes decision for abuse of discretion, the to the beneficiaries named in the appellate court must find that the trust—commonly, the couple’s grown decision was wholly unsupported by the children—with the crucial condition evidence, illegal, or clearly incorrect. that the surviving spouse has the abuse of process Using a legal process in right to use the property for life and a civil or a criminal case, such as filing is entitled to any income it generates. a lawsuit or taking a deposition, in The surviving spouse may even be order to inconvenience another party or allowed to spend principal in certain otherwise use the process improperly. circumstances. When the surviving Some courts define the term to mean spouse dies, the property passes to the using litigation to pursue objectives trust beneficiaries. It is not considered other than those named in the suit. For part of the second spouse’s estate for example, filing a lawsuit over a certain estate tax purposes. Using this kind debt, when the real reason for the suit of trust keeps the second spouse’s is to force payment on another debt, taxable estate half the size it would be would be abuse of process. Because of if the property were left directly to the its chilling effect on the right of access spouse. (See also: bypass trust, credit to the courts, claims of abuse of process shelter trust) are difficult to win. abuse 1) Mistreatment, as in child abuse. abut When two pieces of land or other 2) Excessive and wrongful use, as in parcels of real property touch each substance abuse. 3) In bankruptcy, other or share a common border. mis­use of Chapter 7 bankruptcy by a debtor that has enough disposable accelerated depreciation A method of income to fund a Chapter 13 deducting the cost of a business asset repayment plan. more rapidly than by using straight- line depreciation. There are several abuse excuse A type of self-defense claim accelerated depreciation methods, with which defendants seek to justify often referred to as MACRS (modified their actions by proving that they were accelerated cost recovery system). subjected to years of prolonged child or spousal abuse. acceleration To bring about at an earlier time. For example to advance the abuse of discretion A standard of review­ due date of a promissory note so the ing a lower court’s or other decision outstanding balance is immediately maker’s judgment. To overturn a due. (See also: acceleration clause)

4 accommodation acceleration clause A contract clause that a person who is accused of infringing provides that the entire outstanding upon another’s copyrighted material amount owed under the contract will may seek to refute the claim by become immediately due under certain showing that he had no opportunity to circumstances. This clause is most see, hear, or copy that work—that is, he often found in promissory notes with had no access. In family law, a husband installment payments for purchase of who disputes paternity of his wife’s real property and requires that if the child might have argued that his wife property is sold then the entire amount had relations with other men—that is, of the note is due immediately (the so- others “had access”—but that claim is called “due on sale clause”). rarely relied upon in light of modern and highly accurate scientific paternity accept See: acceptance testing. acceptance Agreeing to the terms of accessory Someone who intentionally an offer, thereby creating a contract. helps another person commit a felony (Compare: counteroffer) by giving advice before the crime or acceptance of service Agreement by a helping to conceal the evidence or the defendant or the defendant’s attorney perpetrator. An accessory is usually not to accept a complaint or other petition physically present during the crime. (like divorce papers) without having For example, hiding a robber who is the sheriff or process server show being sought by the police might make up at the door (often, the papers are someone an “accessory after the fact” to received by mail). Most states use a form a robbery. (Compare: accomplice) entitled Receipt and Acknowledgment accommodation 1) A favor done without of Acceptance of Service (or similar compensation (pay or consideration), language), which the person who is such as a signature guaranteeing served signs, dates, and sends back to payment of a debt, sometimes called an the attorney who sent the complaint or accommodation indorsement. 2) Giving petition. Attorneys must be careful that in to an adversary on a point to make a they have written legal authority from deal work. 3) A change in an employer’s clients to receive papers on their behalf. or landlord’s policy or practice, made (See also: service) in order to allow a person with a access In the context of real estate, the disability to perform a particular job right and ability to enter, approach, or live in a rental. (See also: reasonable and pass to and from. In copyright law, accommodation)

5 accompanying relative accompanying relative A family member fessional trained in financial analysis of someone who immigrates to the rather than one who keeps the books. United States, who is legally allowed (Compare: bookkeeper) to immigrate at the same time. Most accounting The process by which people who receive some type of visa or financial information about a business green card can also obtain green cards is recorded and analyzed. or similar visas for their accompanying relatives—that is, their spouses and accounts payable Money owed by a busi- unmarried children under the age ness to suppliers, vendors, employees, of 21. banks, landlords, and other creditors. On a company’s balance sheet, accounts accomplice Someone who helps another payable are categorized as liabilities. person (known as the principal) commit a crime. Unlike an accessory, an accom- accounts receivable Money due or plice is usually present when the crime owed to a business or professional is committed. An accomplice is guilty by customers or clients for goods of the same offense and usually receives or services. Generally, accounts the same sentence as the principal. For receivable refers to the total amount instance, the driver of the getaway car due to a business and is considered in for a burglary is an accomplice and will calculating the value of the business. be guilty of the burglary even though account stated 1) A statement of the he may not have entered the building. amount that parties to a transaction, (See also: accessory) loan, or settlement agree is owed by one accomplice witness A person who is a to the other. 2) The name for a cause witness to a crime and also charged as of action in a lawsuit brought to collect an accomplice to the same crime. the amount the parties have agreed is owed. accord and satisfaction An agreement to settle a contract dispute by accepting accredited investor A high-net-worth less than what’s due. This procedure investor who is permitted to invest in is often used by creditors who want to certain types of higher risk investments cut their losses by collecting as much without the securities being registered money as they can from debtors who with the U.S. Securities and Exchange cannot pay the full amount. Commission (SEC). Under federal securities law, a company that offers accountant Someone who works with or sells its securities must register financial data. Usually a skilled pro-

6 acknowledged father

the securities with the SEC or find accumulation trust A trust in which the an exemption from the registration income is retained and not paid out to requirements. Selling to accredited beneficiaries until certain conditions investors is one such exemption. are met. For example, if Uncle Pierre The term generally includes wealthy creates a trust for Nick’s benefit but individuals and organizations such directs that Nick not get a penny until as corporations, endowments, or he gets a PhD in French; Nick is the retirement plans. beneficiary of an accumulation trust. accretion An out-of-the-ordinary increase accusation A formal assertion, by a in property that goes to the property prosecuting attorney, that a defendant owner. In real estate, accretion is an has committed an illegal act. increase in land that results from the deposit of soil by a river or ocean. Accretion also occurs when someone The Accused. (1988) A victim of gang who inherits assets receives more than rape caught in the law enforcement/ expected because another beneficiary judicial system convinces a prosecutor to press dies or doesn’t accept a share, or when for a conviction instead of settling for a plea bargain. Jodie Foster won an academy award. trust assets increase due to some With Kelly McGillis, Bernie Coulson, Leo Rossi. unexpected and unusual event. (See also: alluviation) accrual method of accounting A method accused A person charged with a crime. of accounting in which income is acknowledge 1) To admit something, accounted for when earned (not whether bad, good, or indifferent. received) and expenses are accounted 2) To state to a notary public or other for when liability for paying them is officer (such as a county clerk) that incurred (not when they are paid). a document bearing your signature (Compare: cash method of accounting) was actually signed by you. (See also: accrue To earn or accumulate over time, acknowledgment) such as interest on an investment that acknowledged father The biological grows or vacation time that is earned by father of a child born to an unmar- working a certain number of hours. ried couple who has been established accumulated earnings See: retained as the father either by his admission, earnings by his signing a voluntary written acknowledgment of paternity, or by an

7 acknowledgment

agreement between him and the child’s I was crossing the street at Elm and mother. An acknowledged father has Main.” parental rights and obligations, includ- actionable A situation where enough ing the obligation to support the child. facts or circumstances exist to meet the acknowledgment A statement you make legal requirements to file a legitimate in front of a notary public or other lawsuit. If the facts required to prove a person who is authorized to administer case cannot be alleged in the complaint, oaths stating that a document bearing the case is not actionable. (See also: your signature was actually signed cause of action) by you. acquisition of citizenship When a child “America is the paradise of lawyers.” born outside the United States becomes —Justice David J. Brewer a U.S. citizen by virtue of having a U.S. citizen parent or parents. The exact legal requirements depend upon the act of God An extraordinary and unex- year in which the child was born, and pected natural event, such as a hur- the laws that were in effect then. ricane, tornado, earthquake, tsunami, acquit The finding by a judge or jury that or even the sudden death of a person. a defendant is not guilty of a crime. An act of God may be a defense against liability for injuries or damages; insur- acquittal A decision by a judge or jury ance policies often exempt coverage for that a defendant in a criminal case is damage caused by acts of God. Under not guilty of a crime. An acquittal is the law of contracts, an act of God not a finding of innocence; it is simply often serves as a valid excuse if one of a conclusion that the prosecution has the parties to the contract is unable to not proved its case beyond a reasonable fulfill his or her duties—for instance, doubt. completing a construction project on act A statutory plan passed by Congress time. or any state legislature which is a “bill” act of nature See: act of God until enacted and becomes law. actual controversy An actual dispute action Another term for a lawsuit. For that can be legally resolved, as opposed example, a plaintiff might say, I“ filed to a hypothetical or theoretical conflict this negligence action last fall after the created for the sake of attaining an defendant, Ms. Adams, struck me while

8 ademption

advisory opinion. It is a Constitutional the intent to permanently deprive the requirement for federal jurisdiction. owner of the object (the mental state, or mens rea). actual damages In a lawsuit based on one party’s injuries, the loss or harm ADA See: Americans with Disabilities Act suffered by the injured person, or the addendum An addition to a contract specific amounts of money that the or completed written document, such person loses as a result of the injuries, as a detailed explanation of a contract including lost wages and medical clause or a proposed change to a expenses. (See also: damages) contract. House purchase agreements actual notice Actual awareness or often included addenda (plural of direct notification of a specific fact or addendum), covering subjects such as proceeding. Actual notice occurs when payment schedules and other financing an individual is directly told about terms, what appliances are included in something—for example, when a tenant the sale, and date of transfer of title. An notifies the landlord that a window is addendum should be signed separately broken, the landlord has actual notice of and attached to the original agreement the broken window. “Personal service” so that there will be no confusion as to of court documents is another common what is included or intended. method of delivering actual notice. ADEA See: Age Discrimination in Also called “express notice.” (Compare: Employment Act constructive notice) adeem See: ademption actuarial tables Standardized life expectancy tables based on various ademption The failure of a bequest of human conditions such as age, sex, property in a will. The gift fails (is and health. Actuarial tables are widely “adeemed”) because the person who accepted in courts as evidence of life made the will no longer owns the expectancy. property when he or she dies. Often this happens because the property has actus reus Latin for a “guilty act.” been sold, destroyed, or given away to The actus reus is the act which, in someone other than the beneficiary combination with a certain mental named in the will. If a bequest is state, such as intent or recklessness, adeemed, the beneficiary named in the constitutes a crime. For example, the will might be out of luck; it depends crime of theft requires physically taking on state law. For example, say Mark something (the actus reus) coupled with

9 ademption by satisfaction

writes in his will, “I leave to Rob my contract of adhesion might be a form Honda Accord,” but then trades in contract provided by an unethical the Accord for a new hybrid. When leasing company. Adhesion contracts Mark dies, Rob might get nothing or are often evidenced by the comparative might receive the hybrid, depending strength of the parties—for example, on state law. States that have adopted a giant corporation as compared to an the Uniform Probate Code generally average citizen. allow a beneficiary to get something in ad hoc (ad-hock) Latin shorthand mean­ this situation. (See also: ademption by ing “for this purpose only.” Thus, an ad satisfaction) hoc committee is formed for a specific ademption by satisfaction When a purpose, usually to solve a particular person bequeaths specific property problem. An ad hoc attorney is one through a will and then gives that hired to handle one problem only, property to the beneficiary while still perhaps to analyze a specialized area of living. (See also: ademption) the law or argue a key point in court. adequate remedy A remedy that a adjourn The final closing of a meeting, court deems adequate under the such as a meeting of the board of circumstances. The remedy may be directors or any other official gathering. ordered by the court or arrived at by It should not be confused with a recess, the parties to the lawsuit. For example, meaning the meeting will break and a court might consider it adequate for then continue at a later time. one party to compensate the other with adjudicate To rule upon or decide in a money (damages) or to take some other judicial proceeding. action such as tearing down a shed that crosses a property line. adjudication 1) In a judicial proceeding, the act of resolving a dispute or deciding adhesion contract (contract of adhesion) a case. 2) A judicial ruling or decision. A contract that so strongly favors one party or so unfairly restricts another, adjustable rate mortgage (ARM) A that it creates a presumption that one mortgage loan with an interest rate party had no choice when entering that fluctuates in accordance with a into it. If a court determines that the designated market indicator—such as contract is overly unfair, it may refuse the weekly average of one-year U.S. to enforce the agreement against the Treasury Bills—over the life of the disadvantaged party. An example of a loan. To avoid constant and drastic

10 ad litem

fluctuations, ARMs typically limit how paid, and deductible retirement plan often and by how much the interest rate contributions. You calculate your AGI can vary. on the first page of your federal tax return and it serves as the basis for figuring the income tax you owe. Former San Francisco 49ers quarterback Steve Young is an adjuster A person hired by an insurance attorney, as is baseball manager Tony LaRussa. company to negotiate and settle an Other sports figure attorneys include insurance claim. broadcasters Howard Cosell and Mel Allen, adjustment The settlement of how much as well as Miller Huggins, who managed the is to be paid on a claim or debt. For Murderers’ Row New York Yankees in the 1920s. example, an IRS-approved change to a tax liability as originally reported on a tax return. Or, an insurance adjusted basis An owner’s original tax company’s settlement on a claim. Also basis in an asset, adjusted for various includes deductions from an individual events during the period of ownership. taxpayer’s total income on Form 1040. The costs of capital improvements are adjustment of status The procedure for added to the original basis (which is applying for U.S. permanent residence normally the price the owner paid (a “green card”) while living in the for the asset). The costs of damage or United States. Applicants submit a deprecation are subtracted from the written application and later attend original basis. Adjusted basis is used to an interview at a local USCIS (U.S. calculate the owner’s capital gain or loss Citizenship and Immigration Services) for income tax purposes if the property office. Adjustment of status is available is sold, or an inheritor’s tax basis if the only to certain people. Not only does asset passes at the owner’s death. the immigrant have to be eligible for adjusted gross income (AGI) Adjusted a green card in the first place, he or gross income (AGI) is gross income she must also (with some exceptions), from taxable sources (including wages, be staying in the United States legally, interest, capital gains, income from with a visa or other status. retirement accounts, alimony received) ad litem (ad-light-em) Latin, meaning minus allowable deductions, such “for the purposes of the legal action as unreimbursed business expenses, only.” A person who files a lawsuit for some medical expenses, alimony a minor child or for a person who is

11 administer

incompetent acts as “guardian at litem” administrative hearing A hearing before (guardian just for the purposes of the a governmental agency or an adminis- lawsuit). A person acting ad litem has trative law judge. There is no jury, but the responsibility to pursue the lawsuit the agency or the administrative law and to account for the money recovered judge has the authority to make a deci- for damages. (See also: guardian ad sion and issue a ruling. litem) administrative law The procedures administer 1) To conduct the duties of created by administrative agencies a job or position. 2) To manage the (governmental bodies), including rules, affairs of the estate of a person who regulations, opinions, and orders. These has died under supervision of the local procedures are often unique to each probate court. 3) To give an oath to agency and are usually not found in someone who is about to testify in statutes. court or assume governmental office, administrative law judge (ALJ) A profes- as in “administer the oath.” (See also: sional hearing officer who works for the executor, probate) government to preside over hearings administration (of an estate) The court- and appeals involving governmental supervised distribution of the probate agencies. ALJs are generally experienced estate of a deceased person. If there in the particular subject matter of the is a will that names an executor, that agency involved. Formerly called hear- person manages the distribution. If not, ing officers. the court appoints someone, who is Administrative Procedure Act A ­federal generally known as the administrator. statute establishing the rules and In some states, the person is called regulations for applications, claims, the “personal representative” in either hearings, and appeals involving govern- instance. mental agencies. There are similar acts administrative expenses In a Chapter 13 in many states which spell out the rules bankruptcy case, the trustee’s fee, the for dealing with state government agen- debtor’s attorney fees, and other costs of cies. (See also: administrative law) bringing a bankruptcy case, which the administrator A person appointed by a debtor must pay in full. Administrative probate court to handle the distribu- costs are typically 10% of the debtor’s tion of the property of someone who total payments under the repayment has died without a will, or with a will plan. that fails to name someone to carry out

12 administrator with will annexed

this task. (See also: administrator ad meaning administrator “during the litem, administrator ad prosequendum, prosecution.” administrator cum testamento annexo, administrator ad prosequendum See: administrator de bonis non, adminis- administrator ad litem trator de bonis non cum testamento annexo (DBNCTA), administrator administrator cum testamento annexo pendente lite, administrator with will See: administrator with will annexed annexed, special administrator) administrator de bonis non Latin for “administrator of goods not admin- “It is far better to have less learning and istered.” The person appointed by a more moral character in the practice of ­probate court to finish probate proceed- law than it is to have great learning and no ings when the executor or previous morals.” administrator can’t finish the job. —Vice President Thomas R. Marshall administrator de bonis non cum testamento annexo An administrator appointed by a probate court to take administrator ad litem A person over probate proceedings when the ­appointed by a probate court to rep- named executor dies, leaving the job resent an estate during a lawsuit. (Ad unfinished. litem is Latin for “during the litiga- tion.”) An administrator ad litem is administrator pendente lite Latin for appointed only if there is no existing “administrator pending litigation.” executor or administrator of the estate, The person appointed by a court to or if the executor or administrator begin probate proceedings during a has conflicting interests. For example, lawsuit that challenges the will. The Jerry’s will leaves most of his property administrator pendente lite takes an to his brother, Jeff, and also names inventory of the deceased person’s Jeff as executor of the will. But Jerry’s property and handles the business sister, Janine, feels that Jerry made the affairs of the estate until the dispute will under improper pressure from Jeff is settled. Also called a special and brings a lawsuit to challenge it. administrator. The court appoints an administrator ad administrator with will annexed An litem to represent Jerry’s estate while administrator who takes the place the lawsuit is in progress. Also known of an executor under a will. The as administrator ad prosequendum, administrator steps in either when a

13 administratrix

will fails to nominate an executor or the admission against interest An admission named executor is unable to serve. Also against interest is an exception to the called administrator cum testamento hearsay rule which allows someone to annexo or CTA. testify to a statement by another person that reveals something incriminating, administratrix An outdated term for embarrassing, or otherwise damaging a female administrator—the person to the maker of the statement. appointed by a court to handle probate on behalf of someone who admission of guilt Admission by someone died without a will. Now, whether that he or she has committed acts that male or female, this person is called amount to a criminal offense. the administrator or, in some states, admit To state something is true. personal representative. 1) In civil cases, the defendants will admiralty court See: maritime court admit or deny each allegation in their answers filed with the court. When admiralty law See: maritime law the defendant admits an allegation, admissible evidence The evidence that a that claim need not be proved in trial. trial judge may allow in at a trial for the 2) In criminal law, to agree that a fact judge or jury to consider in reaching is true or to confess guilt. 3) To allow a decision. Evidence is admitted or something to come in as evidence in a deemed inadmissible based on the trial, as when the judge rules, “Exhibit applicable rules of evidence in the place D, plaintiff’s letter, is admitted into where the case is being heard. The basic evidence.” rules of evidence are the same in almost adopt 1) To approve or accept some­ all jurisdictions. There are also both thing—for example, a legislative body federal and military rules. may adopt a law or an amendment, admission 1) One side’s statement a government agency may adopt a that certain facts are true, or failure regulation, or a party to a lawsuit may to respond to certain allegations, in adopt a particular argument. 2) To response to a request from the other assume the legal relationship of parent side during pretrial discovery. 2) An to another person’s child. (See also: out-of-court statement by an adverse adoption) party that is against the interest of the adopted child Any person, whether an party who said it, offered into evidence adult or a minor, who is legally adopted as an exception to the hearsay rule. (Compare: declaration against interest)

14 advance parole

as the child of another in a court adultery Consensual sexual relations by proceeding. (See also: adoption) a married person with someone other than the person’s spouse. In states that adoption A court procedure by which still allow fault grounds for divorce, an adult becomes the legal parent of adultery is always sufficient grounds someone who is not the adult’s biologi- for a divorce. In addition, some states cal child. An adoption decree creates factor in adultery when dividing a parent-child relationship recognized property between divorcing spouses. for all legal purposes—including child support obligations, inheritance rights, ad valorem tax A tax that is calculated and custody. An adult can also adopt “according to value” of property, based another adult under certain circum- on an assigned valuation of a piece of stances. real estate or personal property. Local property tax and sales tax are common adoptive parent A person who completes examples. An ad valorem tax may be all the requirements to legally adopt a imposed annually or when an asset is child who is not his or her biological sold, inherited, or transferred. (See also: child. Generally, any single or married millage) adult whom the court determines to be a “fit parent” may adopt a child. Some advance A type of loan or payment in states have special requirements, such as which money is paid ahead of time, requiring the adoptive parent to be at in anticipation of repayment or other least a specified number of years older future adjustment. For example, paying than the child, and requiring the parent for goods before they are shipped. to have resided in the county for a advance directive A legal document that minimum amount of time. An adoptive allows you to set out written wishes for parent has all the responsibilities of a your medical care and to name a person biological parent. to make sure those wishes are carried ADR See: alternative dispute resolution out. (See also: living will, durable power of attorney for health care) ad seriatim (add sear-ee-ah-tim) One after another, as in “The neighbors’ advance parole In the immigration lawsuits against my client were filed ad context, advance parole may be granted seriatim.” to a person who is already in the United States but needs to leave temporarily, adult In most situations, any person 18 without a visa. With advance parole, years of age or older. the applicant’s pending immigration

15 advance sheets

application will not be canceled while for adversely possessing property vary he or she is away. This helps preserve between states, but usually include the person’s right to return to the continuous and open use for a period of United States—though it does not five or more years and paying taxes on guarantee entry. the property in question. advance sheets A looseleaf booklet adverse witness See: hostile witness comprising recent court decisions. (See advisory opinion An opinion by a court, also: reports) administrative agency, or attorney advancement A gift made by a living general that does not resolve a dispute person—usually from a parent to between parties but instead states the a child—with the intent that the legal rule on a particular matter. amount will proportionately reduce the affiant Someone who signs an affidavit recipient’s share of the gift-giver’s estate. and swears to its truth before a notary Gifts made shortly before death are public or another person authorized more typically treated as advancements to take oaths, such as a county clerk. than those made years earlier. (Compare: declarant) adverse Contrary or opposed to one’s own interests. For example, an adverse party would be the one suing you. “Laws grind the poor, and rich men rule the law.” adverse interest A right or concern —Oliver Goldsmith that’s contrary to the interest or claim of another. An adverse interest in real property is a claim against the property, affidavit Any written document in which such as an easement. the signer swears under oath before a adverse party The opposite side in a notary public or someone authorized to law­suit. Sometimes when there are take oaths (like a county clerk) that the numerous parties in one lawsuit, they statements in the document are true. may be adverse to each other on some In many states, a declaration under issues and in agreement on other penalty of perjury, which does not matters. require taking an oath, is the equivalent of an affidavit. adverse possession A means by which one can legally take another’s property affirm An act by one court to agree with without paying for it. The requirements and confirm a lower court’s decision.

16 after-acquired property affirmative action Policies of govern- applies to a situation in which if one ments and other institutions, private thing is true then it can be inferred that and ­public, intended to promote a second thing is even more certainly employment, contracting, educational, true. Thus, if one party is too young to and other opportunities for members serve as administrator, then his younger of historically disadvantaged groups. brother certainly is too young. Because they may favor some groups after-acquired evidence In employment over others, affirmative action policies law, facts the employer learns after must be narrowly tailored to meet the firing an employee for which the institution’s legitimate goals, such as employer would have fired the employee remedying the effects of past discrimi- anyway. After-acquired evidence may nation or promoting full diversity in a be used as a defense to a wrongful school setting. termination lawsuit or to limit the affirmative defense When a defendant in damages available to an employee who a civil lawsuit files a response, usually was wrongfully fired. For example, an called an “answer,” the answer will state employer may discover, after illegally the defendant’s denials of the claims firing an employee because of his made. In addition, the defendant may age, that the employee stole from state affirmative defenses that excuse the employer. The employer may use or justify the behavior on which the this evidence to limit its damages for lawsuit is based. For example, an lost wages in an age discrimination affirmative defense of “unclean hands” lawsuit to what the employee would argues that the person bringing the have earned between the time he was lawsuit has acted badly in a way that fired and the time the employer would should preclude any finding against the have discovered his theft and fired him defendant. absent any age discrimination. affix 1) To attach something to real after-acquired property 1) Property that estate in a permanent way, including a person acquires after taking on a debt, planting trees, constructing a building, which becomes additional collateral for or installing a built-in bookshelf. the debt. Typically, this occurs when 2) To add a signature or or seal to a the debtor has signed an agreement document. pledging all property as security for the debt. 2) Property acquired by a debtor a fortiori (ah for-shee-oh-ree) Latin for after filing for bankruptcy. 3) Property “with even stronger reason,” which someone acquires after making a will.

17 after-acquired title after-acquired title Title to property the employee or applicant is at least 40 acquired by someone after that person years old. has purportedly transferred the Age Discrimination in Employment Act property to someone else. As soon as (ADEA) A federal law that prohibits the seller actually acquires title, it passes discrimination based on age against to the person to whom it was sold. For employees or applicants who are at least example, John signs, acknowledges, 40 years old. (See also: Older Workers and records a deed of his late father’s Benefit Protection Act (OWBPA)) ranch to Sam, even though John has not yet received title from his father’s agency The relationship of a person estate. When John gets the title from (called the agent) who acts on behalf his father’s estate and records it, the of another person, company, or after-acquired title goes automatically government, known as the principal. to Sam. The principal is responsible for the acts of the agent, and the agent’s acts bind the principal. The Firm. (1993) Tale of a top-of-class neophyte lawyer caught in a law firm agent A person authorized to act for and fronting for crooks—with deadly results. Tom under the direction of another person Cruise, Gene Hackman, Jeanne Tripplehorn, when dealing with third parties. The Holly Hunter, Hal Holbrook. person who appoints an agent is called the principal. An agent can enter into binding agreements on the principal’s after-discovered evidence (newly behalf and may even create liability for discovered evidence) Evidence found the principal if the agent causes harm by a losing party in a civil or criminal while carrying out his or her duties. case after a motion has been ruled Also called an attorney-in-fact. upon or trial has been completed. agent for acceptance of service See: To convince the judge to reopen the agent for service of process matter, the losing party must prove that the evidence absolutely could not have agent for service of process The­ indiv­ been discovered earlier. (See also: writ idual designated to receive legal of coram nobis) documents and tax notices for a corporation or an LLC. The agent age discrimination Treating an employee is responsible for ensuring that the or applicant for employment less business’s owners receive important favorably because of his or her age, if

18 agreement

correspondence and legal notices in against the victim, but did so using a timely manner. State law requires extreme force (such as a deadly weapon). that the agent be designated in the Aggravated battery may also be charged corporation’s articles of incorporation on the basis of the seriousness of the or the LLC’s articles of organization. victim’s injuries. (See also: battery) age of consent See: legal age, age of aggravating circumstances Circum- majority stances that increase the seriousness or outrageousness of a given crime, which age of majority Adulthood in the eyes will increase the wrongdoer’s penalty or of the law. After reaching the age of punishment. For example, the crime of majority, a person is permitted to vote, aggravated assault is a physical attack make a valid will, enter into binding made worse because it is committed­ contracts, enlist in the armed forces, with a dangerous weapon, results in and purchase alcohol. Also, parents severe bodily injury, or is made in may stop making child support pay­ conjunction with another serious crime. ments when a child reaches the age Aggravated assault is usually consid- of majority. In most states the age of ered a felony, punishable by a prison majority is 18, but this varies depend­ ­sentence. ing on the activity. For example, in some states people are allowed to vote AGI See: adjusted gross income when they reach the age of 18, but can’t agreed statement of facts A statement purchase alcohol until they’re 21. of facts, agreed to by the parties to aggravate To make more serious or a lawsuit (at trial or on appeal) and severe. submitted to the court in writing. aggravated assault The crime of agreement A meeting of the minds. physically attacking another person An agreement is made when two and causing serious bodily harm; or people reach an understanding about assault with a deadly or dangerous a particular issue, including their weapon such as a gun, knife, ax, or obligations, duties, and rights. While blunt instrument. Aggravated assault is agreement is sometimes used to mean usually a felony, punishable by a term a contract—a legally binding oral or in state prison. (See also: assault) written agreement—it is actually a broader term, including understandings aggravated battery A crime in which that might not rise to the level of a someone has not only used force legally binding contract.

19 aid and abet aid and abet To help someone else com­ country. Can refer to legal immigrants mit a crime. An aider and abettor is a as well as undocumented (or, in helper who is present at a crime scene common parlance, “illegal”) aliens. but in a passive role, such as acting as alienation In real estate law, the complete a lookout. In most situations, an aider and voluntary transfer of title to real and abettor faces the same punishment estate from one person to another. as the perpetrator of the crime. The freedom to alienate property a.k.a. An abbreviation for “also known is considered essential to complete as,” usually used before alternate names ownership. for the same person. For example, alienation of affections Deliberate “Elizabeth Simmons a.k.a. Betsy diversion of a person’s affection away Simmons.” from someone—usually a spouse—who aleatory Depending on an uncertain has a right to expect such affection. In event. Usually applied to insurance most places, alienation of affection is no contracts in which payment is depen- longer recognized as a legal claim. dent on the occurrence of an uncertain alien registration card (ARC) The official event, such as injury to an insured name used in immigration law for a person or fire damage to an insured green card, indicating that the holder building. has U.S. permanent residence. alias A name used that is not the given alimony The money paid by one ex- name of a person (such as Harry for spouse to the other for support under Harold, initials, a maiden name, or a the terms of a court order or settlement criminal’s false name). agreement following a divorce. Except alibi A defense that asserts that the in marriages of long duration (ten defendant could not have committed years or more) or in the case of an the crime because the defendant was ailing spouse, alimony usually lasts somewhere else when the crime took for a set period, with the expectation place. that the recipient spouse will become self-supporting. Alimony is also called alibi witness A witness who confirms a “spousal support” or “maintenance.” defendant’s alibi. aliquot (al-ee-kwoh) A Latin term for a alien A foreign-born person in the United definite fractional share, usually applied States who has not become a U.S. when dividing and distributing the citizen and is still a citizen of another

20 alternative dispute resolution

assets in a deceased person’s estate or alternate beneficiary A person, organiza- trust. tion, or institution that receives prop- erty through a will, trust, or insurance ALJ See: administrative law judge policy when the first namedbeneficiary ­ allegation A statement by a party in a is unable or refuses to take the prop- pleading describing what that party’s erty. For example, in his will Jake position is and what that party intends leaves his collection of sheet music to to prove. Certain allegations are his daughter, Mia, and names the local required for a plaintiff to maintain a symphony as alternate beneficiary. If lawsuit. (See also: pleading) Mia dies before Jake or if Mia decides to disclaim the gift, the manuscripts allege To claim a fact is true. A complaint, will pass directly to the symphony. which plaintiffs file to commence a In insurance law, the alternate benefi- lawsuit, will allege certain facts. Civil ciary, usually the person who receives defendants may allege their own facts the ­insurance proceeds because the in their answers. ­initial or primary beneficiary has died, Allen charge See: dynamite charge is sometimes called the secondary or contingent beneficiary. alluviation The depositing of gravel or sediment by a river. (See also: accretion, alluvion) William O. Douglas served the longest alluvion An increase in one’s land from on the Supreme Court—36 years, soil deposited on the shoreline by from 1939–1975. natural action of a stream, river, bay, or ocean. (Compare: accretion) alternative dispute resolution (ADR) A alter ego A corporation, limited liability catchall term that describes a variety of company, or other entity set up to methods that parties can use to resolve provide a legal shield for the person disputes outside of court, including controlling the operation. Proving negotiation, conciliation, mediation, that such an organization is a mere collaborative practice, and the many cover, or alter ego, for the business types of arbitration. The common owner is one way to “pierce the veil” denominator of all ADR methods is of the corporation or limited liability that they are faster, less formalistic, less company, or take away the owners’ expensive, and often less adversarial limited liability protection. than a court trial.

21 alternative minimum tax alternative minimum tax (AMT) An alternative writ of mandate (mandamus) IRS system created to ensure that A court order that requires a govern­ high-income individuals, corporations, mental agency, court, or officials to trusts, and estates pay a minimum obey to take a certain action, or show amount of tax, regardless of deductions, cause at a hearing why it should not credits, or exemptions. To arrive at have to obey. (Compare: peremptory AMT, certain items (such as passive writ of mandate) losses from tax shelters) are added ambiguity When language in an agree­ back to adjusted gross income. If the ment has more than one meaning. alternative minimum tax is higher than Patent ambiguity occurs when the the regular tax liability for the year, language of the document itself is then you must make up the difference ambiguous. Latent ambiguity is by paying the alternative minimum tax. not readily apparent, but arises in alternative pleading A legal fiction in connection with external circum­ which a pleader alleges two or more stances. When a contract is ambiguous, legal claims which are inconsistent with external evidence may be introduced each other. For example, someone hurt to help determine the original intent of in an accident can plead that the other parties. party was negligent or ran into him amend To alter or change by adding, intentionally. Or in a criminal trial, a subtracting, or substituting. One can defendant may plead not guilty and not amend a statute, a contract, or a written guilty by reason of insanity (in which pleading filed in a law suit. The change there is the implied admission that the is usually called an amendment. defendant committed the act). (See also: pleading) amended complaint A second (or third, or fourth, etc.) version of a complaint Alternative reproductive technology submitted by the plaintiff or petitioner. (ART) A general term for a collection A party may amend a complaint to of methods for conceiving children correct facts, add new claims, substitute through medical technology, including discovered names for persons sued as in vitro fertilization, ovum donation, “Doe” defendants, or revise a cause of donor insemination, and other tech- action after the court has found the niques. Conception by ART can lead complaint inadequate. to legal conflict over who the parents of the resulting child are. amended pleading A written pleading in a lawsuit that is changed and refiled

22 amortization

as an amended pleading by the party services, and places of public accom- who initially filed it. Pleadings are modation, such as restaurants, hotels, amended for various reasons, including and theaters. The law also requires correcting facts, adding claims, adding employers to make reasonable accom- affirmative defenses, or responding modations to allow employees with to a court’s finding that a pleading is disabilities to do their jobs. inadequate as a matter of law. amicus See: amicus curiae amended tax return A tax return filed amicus curiae Latin for “friend of the by an individual or entity to correct an court,” a person or organization that is error made on a previously filed return not a party to a lawsuit but that has a or to get a refund of taxes paid. strong interest in the case and wants to participate, usually by filing a brief in America’s first woman admitted to support of one party’s position. Amicus the bar was Arabella Mansfield of curiae must be invited by the court Iowa on June 15, 1869, when the admitting or obtain permission from the court judge ruled that the word “men” in the state before participating. law meant men and/or women. Mrs. Mansfield amnesty A pardon extended to a group or never actively practiced but served as a class of individuals by the government, professor at Iowa Wesleyan and later DePauw. usually before any trial or conviction. Amnesties often follow wars—for example, the amnesty granted to American Bar Association (ABA) A Confederate officials and soldiers after voluntary professional association of the Civil War or to those who violated U.S. lawyers founded in 1878. The the Selective Service Act by evading the ABA’s activities and mission include draft during the Vietnam War. providing law school accreditation, continuing legal education classes, amortization 1) A periodic payment plan information about the law, programs to to pay a debt (such as a mortgage or assist lawyers and judges in their work, car loan) by a certain date, in which and initiatives to improve the legal interest and a portion of the principal system for the public. is included in each payment. Payments are usually calculated in equal monthly Americans with Disabilities Act (ADA) A installments. Since the largest portion federal law that prohibits discrimination of the early payments is interest (based against people with physical or ­mental on the amount owed), the principal disabilities in employ­ment, public

23 AMT

doesn’t decline significantly until the angel investor An affluent individual who latter stages of the loan term. 2) A tax invests in small, private companies, method of recovering costs of certain usually in exchange for company stock assets by taking deductions evenly over or promissory notes that are convertible time. This is similar to straight-line into shares of company stock. Angel depreciation and unlike an accelerated investors often work closely with the depreciation method. For example, company’s management to help with when someone buys a company, the introductions or other advice to make Internal Revenue Code directs that the company more successful. business goodwill costs must be annual exclusion amount The amount amortized over 15 years by the buyer. that anyone can give to any recipient, AMT See: alternative minimum tax free of federal gift tax, in any calendar year. The amount is indexed for ancillary administration A probate court inflation and is adjusted by the IRS proceeding conducted in a different each year, in $1,000 increments. state from the one the deceased person resided in at the time of death. Usually, annual exclusion gift A gift that is not ancillary probate is necessary if the subject to federal gift tax because it deceased person owned real estate in does not exceed the annual exclusion another state. For example, if Tatiana amount. dies in Montana, where she had been annual meeting A term commonly used living, and leaves a parcel in Columbus, to refer to annual meetings of share­ Ohio, then there must be ancillary holders or directors of a corporation. administration in Ohio probate court Shareholders normally meet to elect to transfer the property. directors or to consider major structural ancillary jurisdiction A term used in changes to the corporation, such as federal courts for when the court takes amending the articles of incorporation control of matters not normally under or merging or dissolving the corpor­ federal jurisdiction so that it can give ation. Directors meet to consider or a judgment on the entire controversy, ratify important business decisions, part of which is a federal matter that it such as borrowing money, buying real is authorized by law to determine. (See property, or hiring key employees. also: pendent jurisdiction) annual percentage rate A yearly interest ancillary probate See: ancillary rate that includes up-front fees and administration costs paid to acquire the loan, calculated

24 anticipation

by taking the average compound interest following reasons: misrepresentation, rate over the term of the loan. Mortgage concealment (for example, of an ad- lenders are required to disclose the APR diction or criminal record), misunder- so that borrowers can more accurately standing, and refusal to consummate compare the actual cost of different the marriage. loans with different fees. answer A defendant’s written response to annuitant The beneficiary of an annuity. a plaintiff’s initial court filing (called a complaint or petition). An answer annuity A purchased policy that pays a normally denies some or all of the fixed amount of benefits every year— facts asserted by the complaint, and although most annuities actually pay some­times seeks to turn the tables on monthly—for the life of the person who the plaintiff by making allegations or is entitled to those benefits. In a simple charges against the plaintiff (called life annuity, when the person receiving counterclaims) or providing justifica- the annuity dies, the benefits stop; there tion for the defendant’s behavior (called is no final lump sum payment and no affirmative defenses). Normally a provision to pay benefits to a spouse or defendant has 30 days in which to file other survivor. A continuous annuity an answer after being served with the pays monthly installments for the life plaintiff’s complaint. In some courts, of the retired worker, and also provides an answer is called a “response.” a smaller continuing annuity for the worker’s spouse or other survivor after antenuptial agreement See: prenuptial the worker’s death. A joint and survivor agreement annuity pays monthly benefits as long anticipation A situation in which an as the retired worker is alive, and then invention is too similar to an earlier continues to pay the worker’s spouse for ­invention to be considered new (or life. ­novel). Because novelty is a requirement annulment A court procedure that dis- for patentability, anticipated inventions solves a marriage and treats it as if it are not patentable. An invention is never happened. The most common usually anticipated by 1) prior publi­ reason for a person to want an annul- cations (a news article, trade journal ment instead of a divorce is for religious article, ­academic thesis, or prior patent), purposes. Annulments are rare since the 2) ­prior inventions (if all significant advent of no-fault divorce but may be elements of the later invention are obtained in most states for one of the found in an earlier one prior to the

25 anticipatory breach

date of ­invention or the application’s antitrust laws Federal and state laws filing date), 3) placing the invention created to regulate trade and commerce on sale more than one year prior to an by preventing unlawful restraints, application’s being filed, or 4) public price-fixing, and monopolies. The use or display of the invention more laws are intended to promote healthy than a year prior to filing the patent market competition and encourage application. (See also: one-year rule, the production of quality goods and prior art) services at the lowest prices. The primary federal antitrust laws are the anticipatory breach When a party to a Sherman Act and the Clayton Act. contract declares that he or she will not be performing his or her contractual ­obligations, either by word (for example, “All are equal before the law and are “I won’t deliver the rest of the goods”) entitled without any discrimination to or by action (for example, not showing equal protection of the law.” up with goods or stopping payment). —Article 7, International The result is that the other party to Declaration of Human Rights the contract is excused from having to complete his or her obligations under the agreement. Anticipatory breach is APN See: assessor’s parcel number often a defense to a lawsuit for payment or performance on a contract. One apparent authority The condition that cannot repudiate one’s obligations and arises if a third party believes that demand that the other person perform. an agent has the authority to act for another person or company (called the anticontest clause See: no-contest clause principal) when that authority has not antilapse statute A statute that passes in reality been granted. If an agent acts a bequest in a will to the heirs of the with apparent authority, the agent’s beneficiary, if the beneficiary of the will acts legally bind the principal. For dies before the testator. example, a customer may believe that an employee who presents a contract antitransfer laws Laws that penalize on company stationery is authorized people who, in order to become eligible to sign that contract on behalf of the for means-tested benefits such as SSI company. Even if the employee does and Medicaid, have transferred their not have the authority to enter into assets to others for less than fair market contracts, the company will be legally value. bound by the signed agreement.

26 appraise appeal A written petition to a higher brief responding to the appeal, and court to modify or reverse a decision often makes an oral argument before of a lower court (either a trial court the appellate court, asking that the or intermediate level appellate court). lower court’s judgment be upheld. In An appeal begins when the loser at trial some courts, an appellee is called a (called the appellant) files a notice of respondent. appeal within strict time limits (often applicable exclusion amount The 30 days from the date of judgment). The amount that a person can leave to any appellant and the appellee (the winner person or entity without paying federal at trial) submit written arguments and estate tax. In addition, any property left often make oral arguments explaining to a qualifying charity or a spouse who why the lower court’s decision should be is a U.S. citizen passes free of estate tax. upheld or overturned. (See also: marital deduction) appear To come to court. appraisal A determination of the value appearance Officially coming into court of something, such as a house, jewelry, as a party, a lawyer representing a party, or stock. A professional appraiser—a or an interested person. qualified, disinterested expert—makes an estimate by examining the property, appellant A party to a lawsuit who and looking at the initial purchase appeals to a higher court in an effort price and comparing it with recent sales to have a losing decision modified or of similar property or items. Courts reversed. commonly order appraisals in probate, appellate court A higher court that bankruptcy, or foreclosure proceedings reviews the decision of a lower court in order to determine the fair market when a losing party files an appeal. value of property. Banks and real estate companies use appraisals to ascertain appellate jurisdiction The power of the worth of real estate for lending a court to review and revise a lower purposes. And insurance companies court’s decision. (Compare: original require appraisals to determine the jurisdiction) amount of damage done to covered appellee A party to a lawsuit who wins property before settling insurance in the trial court—or sometimes on claims. a first appeal—only to have the other appraise To professionally evaluate the party (called the appellant) file for value of property, such as real estate, an appeal. An appellee files a written

27 appraiser

jewelry, antique furniture, or securities; approach the witness A request by an typically done in order to determine the attorney to the judge for permission to value of assets for insurance coverage, go up to a witness on the witness stand divide partnership or beneficiary assets, to show the witness a document or set a house sales price, determine taxes, exhibit. “May I approach the witness?” or make insurance claims. is the typical request, and it is almost always granted. appraiser A professional who is hired to determine the current value of appurtenant In real property law, this real estate or other property. Some describes any right or restriction appraisers specialize in residential which goes with that property, such houses for the purpose of setting a sales as an easement to gain access across price or securing a mortgage. Other the neighbor’s parcel or a covenant appraisers specialize in particular assets, (agreement) against blocking the such as jewelry. neighbor’s view. Any subsequent owner has the same right or restriction. appreciate See: appreciation APR See: annual percentage rate appreciation An increase in the value or worth of an asset or piece of property a priori assumption (ay pree-or-ee) From that’s caused by external economic Latin, an assumption that is knowable factors occurring over time, rather than without further need to prove or by the owner having made improve­ experience it. ments or additions. For example, arbiter A person or entity that has the increased market demand or inflation legal authority to decide disputes. can cause property to appreciate. The term is commonly used in the context arbitrary Based on individual discretion, of real estate. not supported by fair or substantial cause or reason, such as discriminating approach The term lawyers use when against someone simply because they would like to have a conversation they have a beard or other personal with opposing counsel and the characteristic; often used in reference to judge, out of the earshot of the jury, a judge’s ruling in a court case. as in, “Your honor, may I approach the bench?” Judges who initiate the arbitration An out-of-court procedure conversation will ask, “Will counsel for resolving disputes in which one approach?” or more people—the arbitrator(s)— hear evidence and make a decision.

28 arrears

Arbitration is like a trial in some ways, may not be the true value since it but typically proceeds much more may not have been an “arm’s length” quickly and with less formality. transaction. arbitrator See: arbitration arraignment A court appearance in which the defendant is formally arguendo Latin for “for the sake of argu- charged with a crime and asked to ment” used by lawyers in the context respond by entering a plea. Other of “assuming arguendo” that the facts matters often handled at arraignment were as the other party contends, but are arranging for the appointment of a the law prevents the other side from lawyer to represent the defendant and prevailing. For example, a lawyer might the setting of bail. (See also: plea) say at trial, “even assuming, arguendo, that the court finds our client, the ­defendant, was negligent, the other True Believer. (1989) A lawyer who has party was also so negligent that he shed his radical ideals for a high-paying cannot recover damages.” In short, the career takes on the appeal of a convict at the lawyer is not admitting anything and urging of a young law clerk. James Woods, wants only to make a legal argument. Robert Downey, Jr., Yuji Okumoto, Margaret Colin. argument A persuasive presentation sum­ marizing the law and facts regarding an issue. arrearages Overdue alimony or child ARM See: adjustable rate mortgage support payments. Child support arrearages can’t be discharged in bank­ arm’s length The description of an ruptcy, and courts usually will not agreement made by two parties freely retroactively cancel them. A spouse or and independently of each other, and parent who falls on tough times and without some special relationship, such is unable to make payments should as being a relative, having another request a temporary modification of deal on the side, or one party having the payments before the arrearages complete control of the other. It is build up. relevant for determining whether an agreement was freely entered into, and arrears Money that a party fails to pay the price, terms, and other conditions when due. Often the sum of multiple were fair. For example, if a man sells unpaid amounts, such as rent, install- property to his son the price paid ments on an account or promissory

29 arrest

note, or monthly child support. A ­person articles of impeachment The formal who has failed to make payments is “in document filed to impeach a public arrears” for the amount due. official. The articles of impeachment state the charges against the official arrest Being detained by the police and the reasons why the official should in a manner that, to any reasonable be removed from office. Article of person, makes it clear he or she is not impeachment must be brought by the free to leave. A person can be “under appropriate legislative body, such as a arrest” even though the police have senate, state legislature, or city council. not announced it; nor are handcuffs or physical restraint necessary. articles of incorporation A document Questioning an arrested person about filed with state authorities (usually involvement in or knowledge of a the Secretary of State or Division of crime must be preceded by Miranda Corporations, depending on the state) warnings. to form a corporation. As required by the general incorporation law of the arrest warrant A document issued by state, the articles normally include the a judge or magistrate that authorizes purpose of the corporation, its principal the police to arrest someone. Warrants place of business, the names of the are issued when law enforcement initial directors who will control it, and personnel present evidence to judges the amounts and types of stock it is or magistrates that convince them that authorized to issue. it is reasonably likely that a crime has taken place and that the person to be articles of organization A document named in the warrant is criminally filed with state authorities (usually responsible for that crime. the Secretary of State or Division of Corporations, depending on the state) to arson The crime of intentionally setting form a limited liability company (LLC). fire to any structure. A death that As required by the general LLC law of results from arson is murder. the state, the articles normally include ART See alternative reproductive the purpose of the LLC, its principal technology. place of business, and the names of its initial members or managers. article A paragraph or section of any writing, such as a portion of a as is A term in a sales contract providing corporate charter (called articles of that the buyer agrees to take property, incorporation), a will, or different such as a house, horse, auto, or appliance sections of a statute.

30 assign

in its present condition, without the the annual property tax bill. 2) TheIRS right to complain if it is faulty. However, process of recording a tax liability in the buyer must have had the right to the account of a taxpayer. reasonable inspection of the property, assessor The government agency that so that he or she has a chance to find sets a value on real estate parcels for the any obvious deficiency before purchase. purpose of local real estate taxes. assessor’s parcel number The designation “Lawyer: One who is willing to go to court of property on the local property tax and spend your last cent to prove rolls. Some states or counties require he’s right.” the APN to be on a real estate deed —Evan Esar, Esar’s Comic Dictionary before it can be recorded. asset Generally, any property that has assault A crime that occurs when value, whether monetary or sentimen- one person tries to physically harm tal. As used by the IRS, the term means another in a way that makes the any property with a value and useful person under attack feel immediately life of at least one year that is used threatened. Actual physical contact is in a trade or business—for example, not necessary; threatening gestures that ­machinery, buildings, vehicles, equip- would alarm any reasonable person can ment, patents, and money held by or constitute an assault. Assault is often owed to a business. (See also: capital charged with battery, which requires asset, hidden asset, depreciable asset, intended physical contact. (See also: fixed asset, liquid asset) battery) assign To transfer to another person (the assault and battery The combination assignee) all or some of the rights and of two crimes, of threat (assault) and responsibilities that another person actual beating (battery). Victims can (the assignor) holds under a contract. also sue in a civil suit for the damages For example, a tenant may assign his suffered as a result of the attack. lease to another person, who then has the right to live in the rental and the assess 1) To determine or evaluate the obligation to honor all terms of the worth of a piece of property (real or lease. Also, to assert or point out, as in, personal), often for the purpose of “The appellant assigned as errors three calculating taxes. The assessed value is of the judge’s rulings.” multiplied by the tax rate to determine

31 assigned risk assigned risk A driver with a poor receives any money left over once all record who would normally be denied debts are paid. coverage by insurance companies, and assisted suicide Suicide of a terminally who is assigned to a state operated or ill or otherwise incapable person with designated insurance program. help (such as painless drugs) from a assignee A person to whom a property physician, family member, or other right is transferred. For example, an individual. A form of euthanasia, assignee may take over a lease from assisted suicide is illegal in almost all a tenant who wants to permanently states. move out before the lease expires. The associate In a professional organization, assignee takes control of the property a junior professional; for example, in a and assumes all the legal rights and law firm, a lawyer with less experience responsibilities of the tenant, including than a partner. payment of rent. However, the original tenant remains legally responsible if the Associate Justice Any U.S. Supreme assignee fails to pay the rent. Court Justice, other than the Chief Justice. assignment 1) A transfer of property rights or ownership rights from one association A group of people who have person to another, called the “assignee.” joined together for a common purpose. For example, a lease may be assigned Unlike a corporation, an association from one tenant to another. Or, is not a legal entity. To make this ownership rights for a patent, copyright, distinction the term “unincorporated trademark, or trade secret may be association” is often used, although transferred by assignment. 2) The technically redundant. property or rights that are transferred. assume 1) To take over another person’s assignment for benefit of creditors A rights and/or obligations. For example, voluntary transfer of a debtor’s property one person might assume another’s into a trust to be used to pay creditors. car lease, residential lease, or debt. The trustee collects any income owed 2) In bankruptcy, for the bankruptcy the debtor, liquidates the debtor’s trustee to take over an unexpired lease property that has been transferred or executory contract. The bankruptcy to the trust, and uses the money to trustee has the right to assume or reject pay the debtor’s creditors. The debtor these agreements. If the trustee assumes a lease or contract, he or she can either

32 attempt

allow the agreement to continue in at issue memorandum A document that force or assign that agreement, if the states that all parties to a case have been trustee believes doing so could raise served, that the parties disagree (or are money for the debtor’s creditors. “at issue”) over one or more points that need to be resolved at trial, and how assumption See: assume, assumption of much time the parties estimate will be risk required for trial. assumption of risk 1) An affirmative attached 1) In real estate, when equip­ defense in a negligence case, in which ment, shelving, or furniture is solidly the defendant claims that the situation incorporated into a structure, such (taking a ski-lift, climbing a steep as bolted to the floor or wired to the cliff) was so inherently or obviously ceiling (and not capable of being hazardous that the injured plaintiff removed without damage to the must have known of the risk, but took structure). If an item is so attached the chance of being injured. 2) The act it probably has become a part of the of contracting to take over a risk, such real estate and is called a fixture. 2) In as buying the right to a shipment and creditor lawsuits, refers to money or accepting the danger that it could be property that is seized by court order, damaged or prove unprofitable. based on evidence that the owner of the assured The person or entity that is money or property may soon depart to insured, often found in insurance avoid payment of the debt. contracts. attachment The seizing of a person’s asylum Also sometimes called “political property to secure a judgment or to asylum.” This is a legal status granted be sold to satisfy a judgment. This is to someone who has fled to the United usually performed by a sheriff, based on States and submitted an application a writ of attachment issued by a judge. proving that he or she fears persecution attempt Starting but not completing if forced to return to his or her home an intended criminal act. Attempts country. (The grounds are the same as involve more than just thinking about for refugee status, but the application doing a criminal act or planning it process is different—refugees apply without at least some concrete steps. while they’re still outside the United Attempted crimes can include attempted States.) Asylees can apply for a green murder, attempted robbery, attempted card one year after their asylum rape, attempted forgery, attempted approval.

33 attest

arson, and a host of other crimes. attestation clause A provision at the Attempts are often punished less end of a will or other legal document severely than completed crimes. that sets out the legal requirements of the document and states that those attest To state and confirm that some­ requirements have been met. By signing thing is true or genuine. For example, the attestation clause, a person is stating witnesses to a will attest that the and confirming that everything within will maker signed the document and the clause is true. declared it to be his or her will. attorney 1) An agent or someone authorized to act for another. 2) A To Kill a Mockingbird. (1962) Small-town person authorized to practice law by southern lawyer defends a black man a state following a bar examination accused of rape during the Depression, fighting and the meeting of other qualifying racism and an unfair judicial system while requirements. trying to prove his client’s innocence. Adapted from Harper Lee’s novel, the screenplay won attorney at law (or attorney-at-law) See: an Academy Award as did star Gregory Peck. attorney With Mary Badham, Philip Alford, Brock Peters, Robert Duvall. attorney-client privilege A rule that keeps communications between an attorney and client confidential and attestation The act of watching someone protects everything said between sign a legal document, such as a will attorney and client from being or power of attorney, and then signing discovered by the opposing party your own name as a witness. When you during pretrial investigation, or used witness a document in this way, you as evidence in a trial. The same type of are attesting—that is, stating and privilege exists between physician and confirming—that the person whom patient, clergy and parishioner, and you watched sign the document in fact spouses. did so. Attesting to a document does attorney fees See: attorney’s fee not mean that you are vouching for its accuracy or truthfulness. You are only Attorney General Head of the United acknowledging that you watched it States Department of Justice and chief being signed by the person whose name law officer of the federal government. is on the signature line. The Attorney General represents the

34 attorney work product privilege

United States in legal matters, oversees payment as part of an hourly or per federal prosecutors, and provides legal job fee agreement). Attorney fees must advice to the president and to heads of usually be paid by the client who hires executive governmental departments. a lawyer, though occasionally a law or Each state also has an attorney general, contract will require the losing party responsible for advising the governor of a lawsuit to pay the winner’s court and state agencies and departments costs and attorney fees. For example, a about legal issues, and overseeing state contract might contain a provision that prosecuting attorneys. says the loser of any lawsuit between the parties to the contract will pay attorney-in-fact A person named in a the winner’s attorney fees. Many laws written power of attorney document to designed to protect consumers also act on behalf of the person who signs provide for attorney fees—for example, the document, called the principal. most state laws that require landlords to The attorney-in-fact’s power and provide habitable housing also specify responsibilities depend on the specific that a tenant who sues and wins using powers granted in the power of attorney that law may collect attorney fees. document. An attorney-in-fact is an And in family law cases—divorce, agent of the principal. custody and child support—judges attorney of record The attorney who has often have the power to order the more appeared in court or signed pleadings affluent spouse to pay the other spouse’s or other forms on behalf of a client. attorney fees, even where there is no This attorney will remain the attorney clear victor. of record on a case until the client attorney work product Written materials, dismisses the attorney, the court allows charts, notes of conversations and the attorney to withdraw, or the case is investigations, and other materials closed. related to a the preparation of a case attorney’s fee The payment made to a or other legal representation. Their lawyer for legal services. These fees may importance is that they cannot be take several forms: hourly, per job or required to be introduced in court or service—for example, $350 to draft a otherwise revealed to the other side. will, contingency (the lawyer collects a attorney work product privilege A rule percentage of any money she wins for that protects materials prepared by a her client and nothing if there is no lawyer in preparation for trial from recovery), or retainer (usually a down

35 attractive nuisance

being seen and used by the adversary audit An examination of the financial during discovery or trial. records of a person, business, or organization, typically done to correct attractive nuisance Something on a piece careless or improper bookkeeping of property that attracts children but or to verify that proper records are also endangers their safety. For exam- being kept. Businesses and nonprofits ple, unfenced swimming pools, open often undergo an annual audit by an pits, farm equipment, and abandoned independent accounting firm. The IRS refrigerators have all qualified as attrac- also conducts audits, mainly to assess tive nuisances. Landowners have a duty taxes owed. to keep their property free of attractive nuisances. auditor A person authorized to conduct an audit to verify the accuracy of attractive nuisance doctrine A legal the financial records and accounting doctrine that makes a property owner practices of a business or government. responsible for harm caused by leaving Many counties have an appointed or a piece of equipment or other ­condition elected Auditor to make independent on the property that would be both audits of all governmental agencies ­attractive and dangerous to curious chil- in the county government. The term dren. Examples of attractive nuisances “auditor” is often misused as meaning are tools and construction equipment, any accountant. unguarded swimming pools, open pits, and abandoned refrigerators. augmented estate Generally, property owned by both a deceased person at-will employment An employment and the surviving spouse, plus any arrangement in which the employee property the deceased spouse gave away may quit at any time, and the employer shortly before death. The concept of an may fire the employee for any reason augmented estate is used only in some that is not illegal. For example, an states. Its value is calculated only if a employer may fire an at-will employee surviving spouse declines to take what for poor performance, to cut costs, or was left by will and instead claims a because the employer simply doesn’t share of the deceased spouse’s estate. like the employee, but may not fire an (This is called taking against the will.) at-will employee for discriminatory The amount of the surviving spouse’s reasons, to retaliate against the employee “statutory share” or “elective share” for reporting harassment, or because the depends on state law. employee exercised a legal right.

36 award authenticate To offer testimony that avails Any amount available to the owner tells the judge what an item of evidence of an insurance policy other than the is and its connection to the case. The actual proceeds of the policy. Avails purpose of authentication is usually include dividend payments, interest, to establish that the evidence can be cash or surrender value (the money admitted for purposes of making a you would get if you sold your policy decision in the case. back to the insurance company) and loan value (the amount of cash you can author Under copyright law, the person borrow against the policy). who creates the work, or the person or business that pays another to avowal A direct statement or declaration. create the work under a work for hire Often refers to a sworn statement a arrangement. witness makes after the judge rules that his or her testimony will not be authority 1) A power to act or to order admitted at trial. The avowal creates others to act. Often one person or a record of what the witness would entity gives another the authority to have said, which may be considered by act, as an employer to an employee, a higher court if a party appeals the a principal to an agent, a corporation judge’s refusal to allow the testimony. to its officers, or a government to an agency. 2) A court decision used to avulsion Change in the border of two make a point or support an argument. properties due to a sudden change in the natural course of a stream or river, authorize To officially empower someone such as a flood, when the border is de- to act. (See also: authority) fined by the channel of the waterway. A automatic stay An injunction that goes famous American case is the Mississippi into effect automatically when a debtor River’s change which put Vicksburg on files for bankruptcy. The automatic the other side of the river. stay prohibits most creditor collection award 1) The written decision of an activities, such as filing or continuing arbitrator or commissioner (or any lawsuits, making written requests for nonjudicial arbiter) setting out the payment, or notifying credit reporting arbitrator’s award. 2) The amount agencies of an unpaid debt. awarded in a money judgment to autopsy A physician’s examination of the a party to a lawsuit, arbitration, body of a deceased person to determine or administrative claim. Example: the cause of death. “Plaintiff is awarded $27,000.”

37 B

Bachelor of Laws A degree in law from deduct it from ordinary income. A a law school, abbreviated to LL.B lender who made a personal loan that (for “Legum Baccalaureus”), which has become a bad debt may deduct it means that recipient has successfully as a short-term capital loss. In some completed three years of law studies. cases, the debtor must claim the Most accredited law schools now grant amount of the debt as income—and a Juris Doctor (J.D.) degree instead. pay tax on it—in the year when the Law schools that made the switch business or lender writes off the debt as allowed their LL.B. holders to claim a uncollectable. J.D. retroactively. bad faith The intentional refusal to back-to-back life sentences Slang for fulfill a legal or contractual obligation, consecutive life terms imposed by misleading another, or entering into a judge when the defendant was an agreement without intending to convicted of more than one crime, or having the means to complete it. each of which carries a life sentence. Most contracts come with an implied Making the sentences consecutive and promise to act in good faith. not concurrent (served at the same badgering the witness When, instead of time) lessens the chance of parole: being questioned, a witness is subjected Unless specified “without possibility of to derisive comments (“You expect the parole,” a life sentence really means 20 jury to believe that?”), legal arguments or more years in prison before parole is posed as questions (“With all the possible. A convict serving concurrent evidence against you, how can you deny life sentences could conceivably receive that you stole the watch?”), or questions parole on all of them after serving the that assume facts not in evidence minimum term, but someone with (“There were ten people blocking your consecutive sentences would have to view, yet you can identify the security begin serving the second sentence upon guard?”). being paroled for the first. bail The money paid to the court, usually bad debt A debt that can’t be collected. at arraignment or shortly thereafter, A business that is owed a bad debt may

38 bailiff

to ensure that an arrested person who bail bondsman A professional agent for is released from jail will show up at an insurance company who specializes all required court appearances. The in providing bail bonds for people amount of bail is determined by the charged with crimes and who do not local bail schedule, which is based on have the money necessary to post the seriousness of the offense. The judge the entire bail with the court. Bail can increase the bail if the prosecutor bondsmen usually charge a fee of 10% convinces him that the defendant is of the amount of the bond. The offices likely to flee (for example, if he has of a bail bondsman are usually close to failed to show up in court in the past), the local courthouse and jail, and some or can decrease it if the defense attorney make “house calls” to the jail or hand shows that the defendant is unlikely to out cards in court. (See also: bail) run (for example, he has strong ties to the community by way of a steady job and a family). “Injustice anywhere is a threat to justice everywhere.” bail bond A bond that a court accepts in —Martin Luther King, Jr. exchange for allowing the defendant to remain at liberty until the end of the case. The defendant pays a certain bailee (custodian) A person with whom portion of the bail to a bondsman, some article is left, usually pursuant to usually 10%, and may also have to a contract, who is responsible for the pledge collateral, such as an interest safe return of the article to the owner in real property. The bondsman offers when the contract is fulfilled. Examples the bond to the court. If the defendant include banks holding bonds, storage appears at all court dates, the bail companies where furniture or files are will be exonerated, or ended, but the deposited, a parking garage, or a kennel bondsman will keep the 10%. If the or horse ranch where an animal is defendant fails to appear for a court boarded. hearing, the judge can issue a warrant for his arrest and demand the entire bailiff 1) A court official, usually a peace bail. Usually, the bondsman will look officer or deputy sheriff, who keeps for the defendant and bring him back, order in the courtroom and handles forcibly if necessary, in order to avoid errands for the judge and clerk. 2) In having to pay the entire bail or selling some jurisdictions, a person appointed the collateral to satisfy the bail. by the court to handle the affairs of an

39 bailment

incompetent person or to be a keeper of bait and switch A dishonest sales goods or money pending further order practice in which a business advertises of the court. a bargain price for an item in order to draw customers in and then tells the bailment A legal relationship in which prospective buyer that the advertised one party (bailor) leaves personal prop- item is of poor quality or no longer erty in the possession, and under the available and attempts to switch the temporary control, of another (bailee). customer to a more expensive product. Common examples include leaving In most states this practice is a crime a car in a parking garage, lodging a and can also be the basis for a personal pet at a kennel, or storing household lawsuit if damages can be proved. goods in a storage center. While most bailments are considered “bailments Baker v. Carr (1962) A U.S. Supreme for hire” (in which the bailee is paid), Court case in which the Court held there is also “constructive bailment” that federal courts could decide cases when the circumstances create an questioning whether state voting obligation upon the bailee to protect districts were properly delineated. the goods, and “gratuitous bailment” (These questions were previously left in which there is no payment, but the in the hands of state legislatures.) The bailee is still responsible, such as when case initiated a long series of federal a finder of a lost diamond ring places it court cases dealing with apportionment with a custodian pending finding the issues. (See also: Reynolds v. Sims) owner. balance due The amount of a debt bailor Someone who delivers an item of owed on an account, a mortgage, or a personal property to another person promissory note. The balance due is not for a specific purpose. For example, a necessarily the sum of installments due person who leaves a broken computer (because the installments may include with a repairman in order to get it fixed amortized interest), but may be the is a bailor. principal due without further interest. bailout When a government, individual, balance sheet A financial statement or business provides emergency financial listing a business’s assets (what it owns), assistance to a failing business or govern- liabilities (what it owes), and net worth mental entity to keep it afloat and avoid (the difference between the assets and the consequences of its collapse. liabilities) at a particular point in time. It is usually prepared each month,

40 bankruptcy estate

quarter of a year, annually, or upon sale are “commercial” banks with broad of the business. It is intended to show powers. Savings and loan associations the overall condition of the business. perform some banking services but are not full-service commercial banks and balloon mortgage A mortgage that is not lack strict regulation. (Compare: credit fully paid off over the loan term (such union) as five, seven, or ten years), leaving a balance at the end. The borrower must bankruptcy A federal legal process for either pay off the remaining mortgage debtors seeking to eliminate or repay or refinance the loan. their debts. There are two types of bankruptcies for consumers: Chapter balloon payment A large final payment 7, which allows debtors to wipe out due at the end of a loan, typically a many debts in exchange for giving up home or car loan, to pay off the amount nonexempt property to be sold to repay the monthly payments didn’t cover. creditors, and Chapter 13, which allows Many states prohibit balloon payments debtors to keep all of their property and in loans for goods or services that repay all or a portion of their debts over are primarily for personal, family, or three to five years. Business can file for household use, or require the lender to Chapter 7 or Chapter 11 bankruptcy. let the borrower refinance the balloon Chapter 11 lets companies reorganize payment before forcing collection. their debt to stay in business. ballot 1) A method or process of casting bankruptcy court A specialized federal a vote. 2) The actual paper, card, or court that hears only bankruptcy cases. machine that indicates a voter’s choices Bankruptcy courts are established in in an election. 3) The total number of districts in every state, and petitioners votes cast in an election. 4) A list of file for bankruptcy in the district where candidates running for office. the petitioner lives or does business. bank An officially chartered institution bankruptcy discharge An order issued empowered to receive deposits, make by the bankruptcy court at the end of a loans, and provide checking and bankruptcy case, wiping out all of the savings account services. In the United debtor’s dischargeable debts. States, banks are organized under federal or state regulations. Banks bankruptcy estate Everything a debtor receive funds for loans from the Federal owns when filing for bankruptcy, Reserve System provided they meet except certain pensions and educational established requirements. Most banks trusts.

41 bankruptcy petition preparer bankruptcy petition preparer A non­ bar examination An examination for in- lawyer who helps debtors complete dividuals who want a license to practice their bankruptcy paperwork for a law. Typically, bar exams are multiday fee. Bankruptcy petition preparers tests of endurance and knowledge, may not give legal advice or represent covering a wide range of legal topics. people in court; instead, they act as a Once licensed in a particular state, an typing service, completing the required attorney can practice law in that state bankruptcy forms as directed by the and in federal courts in that state. Some debtor who hires them. states require a special bar examination for attorneys who have already passed bankruptcy proceedings The way a the bar in other states, while others bankruptcy case wends its way through recognize out-of-state attorneys if they the court system, from the time the have established local residence. Law- bankruptcy petition is filed until the yers from one state may occasionally debtor receives a bankruptcy discharge. practice in another with the consent of bankruptcy trustee A person appointed the court alone. by the court to oversee a bankruptcy case. In a Chapter 7 case, the trustee’s role is to gather the debtor’s nonexempt My Cousin Vinny. (1992) A comedy in property, sell it, and distribute the which two New Yorkers are wrongly proceeds to creditors. In a Chapter accused of a murder in rural Alabama. They enlist a cousin, inexperienced lawyer Vinny 13 case, the trustee’s role is to receive Gambini, to defend them. the debtor’s monthly payments and distribute them to creditors. bar Collectively, all lawyers qualified to bargain A mutual agreement between practice in a given court or jurisdiction. two parties that is voluntary and involves the exchange of consideration bar association An organization of (money, goods, services, or a promise lawyers. Membership in a state bar to do something). If the agreement association (also called an “integrated” involves an illegal transaction or the or “unified” bar association) is often consideration is insufficient or illegal, a mandatory before a lawyer can practice bargain does not constitute a contract. in that state. There are also many voluntary bar associations organized by barratry Creating legal business by city, county, or other community. stirring up disputes and quarrels, generally for the benefit of the lawyer

42 bench

who sees fees in the matter. Barratry to earn his or her own money in order is illegal in all states and subject to to receive trust funds. This provision is criminal punishment or discipline by intended to encourage the beneficiary the state bar. to work, and not just lie around the beach and live off the trust. barrister In Great Britain, a lawyer who may argue cases in superior courts. bearer A person holding a negotiable (Compare: litigator) instru­ment, such as a check, promissory note, bank draft, or bond. This becomes basis For income and capital gains tax important when the document states purposes, the value that is used to it is “payable to bearer,” which means determine profit or loss when property whoever holds this paper it can receive is sold. Often the basis is what you the funds due on it. paid for the property, adjusted to reflect improvements made or damage bearer paper A negotiable instrument incurred while you own the property. payable to whoever has possession of it, (See also: adjusted basis, carryover rather than being payable to a specific basis, stepped-up basis) person. basis point A basis point is a unit of belief Convinced of the truth of a measure used in describing interest statement or allegation. In the phrase rates. One basis point is equivalent to “upon information and belief,” 1/100th of a percent, or 0.01%. For the so-called belief is based only on example, if the prime rate increases by unconfirmed information, so the person 50 basis points, it means that the rate declaring the belief is hedging his or her has risen 0.5%. bet as to whether the belief is correct. battery A crime consisting of physical bench The desk and seat (usually a chair contact that is intended to harm rather than an actual bench) where a someone. Unintentional harmful judge sits in the courtroom. Sometimes contact is not battery, no mater how the word “bench” is used in place of the careless the behavior or how severe the word “judge”—for example, a party to injury. A fist fight is a common battery; a lawsuit might ask for a bench trial, being hit by a wild pitch in a baseball meaning a trial by a judge without a game is not. jury. And lawyers in a trial sometimes “approach the bench,” meaning they beach bum trust provision A clause in a step up to speak to the judge. trust that requires the trust beneficiary

43 bench trial bench trial A trial decided by a judge beneficial use The right to enjoy the (sitting on the “bench”), without a jury. pleasant qualities of something such as light, air, view, access, or water in bench warrant An arrest warrant issued a stream even though the title to the by a judge while sitting on the bench, property in which the use exists is held holding court. A bench warrant is used by another. when a defendant on bail fails to show up, or when a witness under subpoena beneficiary A person or organization fails to appear. The judge will usually set legally entitled to receive benefits bail at the same time. Bench warrants through a legal device, such as a will, for lesser matters (such as failing to trust, or life insurance policy. appear to answer to a traffic ticket) beneficiary deed See: transfer-on-death may simply be noted on the defendant’s deed record. If the defendant is stopped later by the police for any reason, the benefit 1) Profit, advantage, or privilege. police will have the ability to act on the 2) A perquisite by an employer to warrant and arrest the person. an employee, beyond wages, such as vacation time, health insurance cover­ beneficial interest The right of a party age, or a pension. 3) A payment from to some profit, distribution, or benefit an insurance policy or govern­ment from a contract or trust. A beneficial program, such as Social Security interest is distinguished from the rights benefits, workers compensation of someone like a trustee or official who benefits, or unemployment benefits. has responsibility to manage the assets, but does not share in the benefits. benefit of counsel Advice from an attorney. Typically used in the negative beneficial ownership Ownership of the (“without benefit of counsel”) to benefits related to property, rather than describe a situation in which a person in the property itself. For example, was not advised by an attorney and the beneficiary of trust income has therefore didn’t appreciate the full beneficial ownership of that trust. Also, import of his or her actions. a person may have beneficial ownership of securities, such as voting rights or benevolent society benefits See: fraternal investment rights, without actually benefit society benefits having his or her name on the title of bequeath To leave personal property the stocks. through a will. (Compare: devise)

44 bid bequest Personal property (anything but be in the best interests of the child. real estate) left under the terms of a And in disputes over child custody, the will. judge will make a decision based on the child’s best interests. Factors considered Berne Convention An international by the court in deciding the best treaty that standardizes basic copyright interests of a child include: the child’s protection among all of the signatory age, sex, and mental and physical countries. A member country will health; age, lifestyle, and mental afford the same treatment to a copy­ and physical health of the parents; right owner from another country as it emotional ties between the parents does to owners in its own country. and the child; ability of the parents to best evidence rule A rule of evidence provide the child with food, shelter, that demands that the original of any clothing, and medical care; potential document, photograph, or recording negative affect of changing the status be used as evidence at trial, rather quo; and the child’s preference. than a copy. A copy will be allowed beyond a reasonable doubt See: reason­ into evidence only if the original is able doubt unavailable. BFOQ See: bona fide occupational bestiality Copulation by a human with qualification an animal, which is a crime in all states as a “crime against nature.” BFP Slang for bona fide purchaser. bias An actual or potential decision “True law is right reason in agreement maker’s predisposition for or against a with nature; it is of universal application, party to a lawsuit or a particular group unchanging and everlasting; it summons to duty of people. Bias may result from things by its commands, and averts from wrongdoing like discriminatory attitudes, personal by its prohibitions.” opinions, financial dealings, or personal —Cicero knowledge of one of the parties or witnesses. bid An offer to pay or charge a specific best interests (of the child) The test that price, under set terms, for an item or courts use when making decisions that service. People make bids at auctions, at affect a child. For example, an adoption which the highest offer wins. The term is allowed when a court declares it to is also used to refer to a contractor’s

45 bifurcate

offer to build a project or sell goods payor) to pay a specified sum of money or services at a given price and other to a designated person (the payee). It is terms, with often the lowest bidder the same as a draft. A bill of exchange getting the job. drawn on a bank account is a “check.” bifurcate See: bifurcated trial bill of lading A document of title for goods being shipped that demonstrates bifurcated trial A trial that is divided the holder has a right to transport the into stages: one stage to establish guilt goods. It also acts as a receipt to the or liability, and the other stage to shipper of goods from the carrier establish damages or punishment. (trucking company, railroad, ship, bigamy The condition of having two or air freighter) as well as a contract spouses at the same time. A marriage providing the terms of transport. in which one of the parties is already bill of particulars A document, written legally married is bigamous and usually by a plaintiff or prosecutor at the therefore void. In most states, if the request of a defendant in a civil or bigamy was intentional, it is also a criminal action, that sets out detailed crime. information about the claims or charges bilateral contract A contract in which being brought against the defendant. both parties exchange promises to Knowing these particulars, the perform. (Compare: unilateral contract) defendant is able to mount a defense. bill 1) A statement of what is owed. 2) A Bill of Rights The first ten amendments legislative proposal for enactment of to the federal constitution, adopted a law. 3) An old-fashioned term for in 1791. The Bill of Rights includes various documents filed in lawsuits or many cornerstones of our democracy: criminal prosecutions. freedom of speech, religion, and assembly; prohibitions against unreason­ bill of attainder A legislative act that able search and seizure, cruel and declares a named person guilty of a unusual punishment, and compelled crime, particularly treason. Such bills self-incrimination; and the rights to due are prohibited by Article I, Section 9 of process and a speedy trial if accused of the United States Constitution. a crime. bill of exchange An unconditional bill of sale A written statement attesting written order from one person (the to the transfer (sale) of goods, pos- maker or drawer) to another person (the

46 blog

sessions, or a business to a buyer. It blank endorsement An endorsement that is useful to show that the buyer now passes title to a negotiable instrument has ownership and to detail what was without naming the person to whom actually purchased. A bill of sale may it should be paid. (Compare: qualified accompany an agreement that states the endorsement) agreed-upon terms of sale, including blanket search warrant An unconsti- the date of transfer, the price, timing of tutionally broad authorization from a payment, and other provisions. judge that allows the police to search binder A temporary insurance contract multiple areas for evidence without that provides insurance coverage while specifying exactly what they are look- the permanent policy is being prepared. ing for. binding precedent See: precedent blind pig See: blind tiger bird-nesting A custody arrangement blind tiger A place where liquor is in which the children of divorcing illegally sold; a speakeasy. This term parents stay in the family home and was commonly used during prohibition the parents take turns living there with and derives from the practice of them, usually sharing time equally. The exhibiting animal curiosities in these parents each have their own place to establishments. live when not in the family home with blind trust A trust in which a trustee the children (or, occasionally, alternate manages investments for someone who living in a second home). has no knowledge of the trust’s specific blackletter law Legal rules that are so assets or the actions taken by the well settled that they require little or no trustee to manage them. Blind trusts legal discourse. Also called hornbook are often used by high-ranking elected law. or appointed officials to avoid conflicts of interest. blackmail An unjustified demand, threat- ening to reveal embarrassing, disgrace- blog Short for “Web log,” an online jour- ful, or damaging facts (or rumors) nal to which regular entries are posted. about a person to the public, family, Some blogs cover a specific topic, and spouse, or associates unless paid off to feature commentaries, videos, and/or not carry out the threat. Blackmail is other material on that subject; ­others charged under the crime of extortion. function more as a personal diary.

47 Bluebook

Many blogs are interactive, allowing to investigate suspected governmental readers to comment on posts. corruption. Specialists in a technical field are called a “blue-blue ribbon Bluebook A reference guide considered by jury.” Blue ribbon juries are not allowed legal professionals to be the authority in criminal cases, because doing so on legal citation. The book’s complete would violate a defendant’s right to be title is The Bluebook: A Uniform tried by a jury of his peers. System of Citation. The Bluebook is published by the Harvard Law Review blue sky laws The laws that aim to Association in collaboration with protect people from investing in sham the editors of the Yale Law Journal, companies that consist of nothing but the Columbia Law Review, and the “blue sky.” Blue sky laws require that University of Pennsylvania Law Review. companies seeking to sell stock to the public submit information to and obtain the approval of a state or federal The Pelican Brief. (1993) Based on the official who oversees corporate activity. John Grisham legal thriller, this film involves the murder of two Supreme Court board of directors The policy managers justices. Included in the big-name cast are Julia of a corporation or organization elected Roberts, Denzel Washington, Hume Cronyn, by the shareholders or members. (See and Robert Culp. also: director) boilerplate Slang for standard provisions in a contract, form, or legal pleading blue flu An organized protest by law that are routine and often preprinted. enforcement officers who call in sick. Boilerplate provisions are meant to be Police officers may stage these “sick- used in many contracts, but some may outs” because they are not legally not apply to every situation. allowed to go on strike. boiler room A telephone bank operation blue law A statute or ordinance that in which fast-talking telemarketers forbids or regulates an activity, such as or campaigners attempt to sell stock, the sale of liquor on Sundays. services, goods, or candidates. Such blue ribbon jury A jury consisting of operations, especially securities sales, persons with special qualities, such as are often fraudulent and illegal. advanced education or special training, bona fide Latin for “good faith,” it sometimes used in complicated civil signifies the “real thing” and the lack of cases (with the parties’ consent) and

48 booking

deceit. In the case of a party claiming has to pay out on the bond, it will sell title as bona fide purchaser or holder, the collateral to cover its loss. 2) An it indicates lack of knowledge of any interest-bearing document issued by a defect in title. government or company as evidence of a debt. A bond provides predetermined bona fide occupational qualification payments at a set date to the bond (BFOQ) An employer’s job requirement holder. Bonds may be “registered” that discriminates against a protected bonds, which provide payment to the class but is not considered illegal bond holder whose name is recorded because it is reasonably necessary to the with the issuer and appears on the bond operation of a business. certificate, or “bearer” bonds, which bona fide purchaser Someone who provide payments to whomever holds purchased something with no reason the bond in-hand. to believe that the property belonged bondsman 1) Someone who sells bail to someone else or that the property bonds. 2) A surety (a guarantor or in- was subject to another party’s claim. surance company) who provides bonds The purchaser must have paid a full that guarantee another’s performance and fair price for the property and have on a contract. received the item in the normal course of business. (See also: holder in due book account An account of a customer course) kept in a business ledger of debits and credits (charges and payments), bond 1) A written agreement purchased containing all the financial transactions from a bonding company that with that party during the period. guarantees a person will properly carry It provides a clear statement of the out a specific act, such as managing amount due from or to that party at funds, showing up in court, providing any time. good title to a piece of real estate, or completing a construction project. If booking A quaint phrase that refers to the person who purchased the bond the recording of an arrested person’s fails at his or her task, the bonding name, age, address, and reason for company will pay the aggrieved party arrest when that person is brought to an amount up to the value of the jail and placed behind bars. Nowadays, bond. The bonding company often the book is likely to be a computer. requires collateral (by placing a lien Usually, a mug shot and fingerprints on the purchaser’s real estate), and if it are taken, and the arrestee’s clothing

49 bookkeeper

and personal effects are inventoried and the cost of a journey. The contract is stored. generally called a “bottomry bond.” If the loan is not paid back, the lender can bookkeeper A person who records sell the ship and/or its freight. financial data in the financial records of a business. (Compare: accountant) bounty hunter Someone who who chases down defendants who have skipped books The collection of financial records bail, and turns them in. of business activity kept on paper or in a computer file. boycott An organized effort to damage a business by refusing to patronize it. The book value A method of valuing a goal is attract attention to and influence corporation’s stock or a company’s the business’s policies. Labor unions worth by adding up the stated value of and their sympathizers have boycotted assets as shown on the books (records) lettuce and grapes not picked by union of the company and deducting all farm workers, and civil rights activists the liabilities (debts) of the company. have boycotted stores and restaurants Because it does not include factors such that had “white only” hiring policies. as earnings potential or the goodwill The term is named for Captain Charles (reputation) of the company, book value C. Boycott, a notorious land agent, is a conservative method of valuation. whose neighbors ostracized him during boot In a 1031 exchange, any property, Ireland’s Land League rent wars in liabilities, or money received that does the 1880s. Boycotts are not illegal in not qualify for the exchange and is themselves, unless there are threats or taxed. For example, if a taxpayer sells a violence involved. (See also: secondary relinquished property with a $100,000 boycott) gain and buys a replacement property Brady material Evidence known to the for $10,000 less than the sales price prosecution that is favorable to the of the relinquished property, he has defense. Under the U.S. Supreme $10,000 boot. Court case of Brady v. Maryland, the border patrol See: Customs and Border prosecution’s failure to hand over this Protection (CBP) exculpatory evidence is a violation of a defendant’s due-process rights, but if bottomry A contract, similar to a the defendant is convicted, this error mortgage, in which a ship and/or its won’t necessarily result in a reversal of freight is pledged as security for a the conviction. loan to finance repairs, equipment, or

50 brief breach A failure or violation of a legal breach of warranty Violation of an agree­ obligation—for example, a failure ment between a seller and a buyer as to perform a contract (breaching to the condition, quality, or title of the its terms), failure to do one’s duty item sold. It can apply to title of real (breach of duty, or breach of trust), property or goods, or to an assurance causing a disturbance, threatening, or about quality of an item sold. The other violent acts which break public warranty need not be expressed, but tranquility (breach of peace), or illegally may be implied from the circumstances entering property (breach of close). at the time of sale. The party making the warranty is liable to the party to breach of contract A legal claim that whom the guarantee was made. one party failed to perform as required under a valid agreement (written or breaking and entering Entering any oral) with the other party. For example building through the slightest amount you might say, “The roofer breached of force (even pushing open a door), our contract by using substandard without authorization. When someone supplies when he repaired my roof.” enters in order to commit a crime, this is burglary. If there is no such intent, breach of promise A broken promise, the breaking and entering alone may be usually to marry. No longer a valid illegal trespass, which is a misdemeanor claim, historically breach of promise crime. was used to seek money damages when a fiancee—usually the intended bribery The crime of giving or taking groom—called off the wedding. money or some other valuable item in order to influence a public official breach of the peace The crime of dis­ (any governmental employee) in the orderly conduct or creating a public performance of his or her duties. Bribery disturbance, usually involving can also involve corrupt dealing with the unnecessary or distracting noise. employees of a business competitor in Merely insulting another, or causing order to secure an advantage. annoyance, is not a breach of the peace. brief A document used to submit a legal breach of trust An act of a trustee that contention or argument to a court. A violates the trustee’s duties or the terms brief typically sets out the facts of the of a trust. A breach of trust need not be case and a party’s legal arguments. intentional or malicious; it can be due These arguments must be supported to carelessness or negligence. by legal authority and precedent, such

51 broker

as statutes, regulations, and previous building and loan association Another court decisions. Don’t be fooled by name for a savings and loan association. the name—briefs are usually anything As the name implies, these institutions but brief, as pointed out by writer were originally meant to provide loans Franz Kafka, who defined a lawyer as for building a house after the depositor “a person who writes a 10,000-word had saved enough for a down payment. decision and calls it a brief.” bulk sale The sale of all or most of a broker A person or entity that arranges business’s inventory, merchandise, or contracts (for real estate, insurance, equipment. (See also: bulk sales law) stocks, and the like) between a buyer bulk sales law A law that regulates the and seller for a commission. Brokers in transfer of business assets so that many fields are regulated and licensed business owners cannot dispose of by each state and have a fiduciary duty assets in order to avoid creditors. If to act in the best interests of their a business owner wants to conduct a customers or clients. bulk sale of business assets—that is, Brown v. Board of Education of Topeka get rid of all or most of its inventory, (1954) A U.S. Supreme Court case in merchandise, or equipment—the which Chief Justice Earl Warren ruled business owner must give written notice for a unanimous Court that separate to creditors and, in some states, publish educational facilities for blacks and and record a notice of the sale. Only a whites are inherently unequal and few states still have a bulk sales law, and equal conditions for all races must in most it applies only to companies be provided with all deliberate speed, that manufacture or sell inventory from overturning Plessy v. Ferguson. stock. The Uniform Commercial Code and most states have repealed their bulk bucket shop An unofficial and usually sales law since remedies are provided by illegal betting operation in which the Fraudulent Transfer Act. the prices of stocks and commodities are posted and the customers bet on bulk transfer See: bulk sale the rise and fall of prices without burden A duty or obligation, or anything actually buying stock, commodities, or that restricts an activity or use. This can commodity futures. Bucket shops are be intangible—for example, a burden seldom seen today since there are many on land such as a zoning restriction or opportunities to gamble legally on the the right of a neighbor to pass over the stock and commodities markets. property to reach his home (easement).

52 business burden of proof A party’s job of convinc­ murder (a felony) or to steal a bicycle ing the decision maker in a trial that (probably a misdemeanor). (See also: the party’s version of the facts is true. In felony, misdemeanor) a civil trial, it means that the plaintiff burial insurance Insurance that covers the must convince the judge or jury by a cost of disposing of a person’s remains. preponderance of the evidence that the plaintiff’s version is true—that is, over burial policy An insurance policy that 50% of the believable evidence is in the covers the cost of disposing of a person’s plaintiff’s favor. (That said, the burden remains. of proof may shift to the defendant if Bush v. Gore (2000) The U.S. Supreme the defendant raises a factual issue in Court case that played a pivotal role defense to the plaintiff’s claims.) In a in the 2000 presidential election. criminal case, because a person’s liberty The Court reversed the decision of is at stake, the government has a harder the ­Florida Supreme Court that had job, and must convince the judge or granted a hand recount of ballots jury beyond a reasonable doubt that the requested by the campaign of Vice defendant is guilty. President Gore in three Florida counties. The Court held that the “Death and taxes are inevitable, but death Florida Supreme Court’s method for does not get worse every time recounting ballots was a violation of Congress meets.” the Equal Protection Clause of the —Anonymous Fourteenth Amendment. The Court also ruled that no alternative method could be established within the time burglary The crime of entering a building limits set by the State of Florida, with the intent to commit a crime. Old effectively resolving the election in definitions required that the entering favor of George W. Bush. be accompanied by a “breaking,” by business Any activity carried on with forcing one’s way in or by any physical the intent to make a profit or any act that allows entry; and that the enterprise engaged in such activity. A crime intended be a felony. Modern business does not have to have a formal statutes are less restrictive. For instance, organization; it can be a corporation, someone would be guilty of burglary partnership, sole proprietorship, or any if he entered a house through an other type of entity, ranging from a unlocked door in order to commit a street peddler to General Motors.

53 business equity business equity The net worth of a one party from the obligations of the business, equal to its assets minus its contract or lease in exchange for a liabilities. financial payment to the other party. business invitee A person who enters buy-sell agreement A binding contract commercial premises for the purpose of between co-owners that controls the doing business. A business is liable to purchase of a withdrawing owner’s a business invitee for injury caused by ownership interest and includes transfer dangerous conditions of the premises, restrictions that control when owners such as wet floors. can sell their interest, who can buy an owner’s interest, and what price will business license A permit issued by a be paid. These agreements often cover local or state governmental agency for what happens when an owner retires, a business to operate. Also called a tax goes bankrupt, becomes disabled, gets registration certificate. divorced, or dies. business records exception An exception bylaws The rules that govern the inter- to the evidence rule prohibiting hearsay. nal affairs or actions of a corporation. The business records exception allows a Bylaws are adopted by the shareholders business document to be admitted into or the board of directors of a corpora- evidence if a proper foundation is laid tion. They generally include procedures to show the document is reliable. for holding meetings and electing the but-for test One of several tests to board of directors and officers. The- by determine a defendant’s responsibility laws also set out the duties and powers for the subject of a lawsuit or criminal of the corporation’s board of directors proceeding. For example, the prosecu- and officers. tor may need to argue that: “But for the bypass trust A trust for couples designed defendant’s speeding, the car would not to save on federal estate tax at the death have gone out of control, and therefore of the second spouse. When the first the defendant is responsible.” This is spouse dies, the trust is split into two, shorthand for whether the action was one of which is called the bypass trust the “proximate cause” of the damage. because the property it holds bypasses buyout agreement An agreement taxation when the second spouse dies. between two parties to a contract, often (See also: AB trust, credit shelter trust) a landlord and tenant, that releases

54 C

cafeteria plan A benefit program in calumny (cal-um-nee) Maliciously which employees choose from a menu misrepresenting another’s words or of options, such as health coverage, life acts, causing injury to that person’s insurance, disability insurance, and reputation; or falsely charging another so on. with a crime. calendar 1) The list of cases to be called cancel To cross out or destroy a docu­ for trial before a particular court. 2) To ment by tearing it up, writing on its set and give a date and time for a case, face that it is cancelled or void, or petition, or motion to be heard by a otherwise defacing it. court. cancellation See: cancel calendar call A hearing at which cases cancellation of removal An immigration are scheduled for trial or hearing. In benefit allowing an immigrant in general, numerous cases will be set for a removal proceedings to ask the calendar call at the same time, and the immigration judge to grant permanent judge overseeing the hearing schedules residence. The judge’s decision will each of them based on the status of the be a matter of discretion. In the case specific case. of undocumented immigrants, the calendar year accounting period A applicant must prove 1) having lived 12-month period for tax purposes that continuously in the United States for at ends on December 31. least ten years; 2) good moral character during those years; 3) that he or she call 1) The demand for payment of money. isn’t statutorily barred from entry based 2) A request to assemble. (See also: call on having violated certain U.S. security option) or criminal laws; and 4) that his or call option An option to buy a particular her U.S. citizen or permanent resident commodity or security at a fixed price spouse, parent, or children would for a certain amount of time. Some­ face “extraordinary and exceptionally times simply called a “call.” (Compare: unusual hardship” if the applicant were put option) forced to leave the United States. In the

55 caning

case of immigrants who already have to decide cases involving crimes and U.S. permanent residence, but are in matters that today would be heard in removal proceedings because of having civil courts. committed a crime, the applicant cap Slang for maximum, as the most must prove that he or she has 1) been interest that can be charged on an a lawful permanent resident for at adjustable rate promissory note. least five years; 2) lived in the U.S. for at least seven years in any status; and capital The basic assets of a business 3) not been convicted of an aggravated or the investment in a business by its felony. owners. caning A punishment for crimes used capital account The record that lists the in various countries (currently not amount of funds and assets invested in a including the United States), in which business by the owners or stockholders, the convicted defendant is lashed with a including retained earnings. It states the cane or rod. net worth of the business at a given time. capital asset Any type of property owned “In a democracy the law says that it is just by a business that has a useful life of for the poor to have no more advantage more than one year, such as a computer than the rich; and that neither should be or truck. masters, but both equal.” capital case A prosecution for murder in —Aristotle, Politics which the prosecutor asks the jury to decide if the defendant is guilty and, if he is, whether he should be put to canon law The laws of a church or death. When prosecutors bring a capital religion, especially those of the Roman case (also called a death penalty case), Catholic Church, that govern the they must charge one or more “special powers of the clergy, administration circumstances” that the jury must of the church, and church ceremonies. find to be true in order to sentence the Roman Catholic laws, which are drawn defendant to death. Each state (and the from ancient church documents, federal government) has its own list of councils of bishops’ decisions, and special circumstances, but common papal rulings, are collected in the Code ones include multiple murders, use of a of Canon Law. In medieval Europe, bomb, or a finding that the murder was ecclesiastical courts used canon law especially heinous, atrocious, or cruel.

56 capital stock capital expenditure Payment by a a student loan while the debtor is in business to acquire a capital asset school, which is then added to the or make improvements to an asset principal on the loan. This results in which increases its value or adds to the debtor having to pay interest on its useful life. It includes payments interest. 2) In accounting, interest by a business for property, fixtures, that is not immediately expensed, machinery, or other capital assets but but is instead considered an asset and not for day-to-day operations such as amortized over time. payroll, inventory, maintenance, and capitalized value The current value of advertising. an asset, based on the total income capital gains Profit on the sale of a capital expected to be realized over its asset, such as stock or real estate. If a economic life span. The anticipated person sells a primary residence, current earnings are discounted (given a lower tax law lets the seller exclude $250,000 value) so they take into account the in profit from capital gains tax. A time value of money. couple can exclude $500,000. capital offense A criminal charge that capital investment See: capital is punishable by the death penalty. expenditure Crimes punishable by death vary from state to state. These offenses may capitalization 1) The writing off of a include first degree (premeditated) capital expenditure proportionately ­murder, murder with special circum- over future years when the benefit from stances, rape with additional bodily the expenditure is not confined to the harm, and the federal crime of treason. period under consideration. 2) The sum (See also: special circumstances) of a corporation’s long-term debt, stock, and retained earnings. capital punishment A sentence of death. capitalized expenditure An expenditure capital stock The original amount paid for a capital asset that must be deducted by investors into a corporation for its from business income over more than issued stock. Capital stock bears no one year, as opposed to an ordinary direct relationship to the present value expense. of stock, which can fluctuate after the initial issue or first stock offering. capitalized interest 1) Interest on a loan Capital stock also does not reflect the that is added to the principal balance. value of corporate assets, which can go For example, interest may accrue on

57 capricious

up or down based on profits, losses, or penis. Carnal knowledge is a necessary purchases of equipment. legal part of many sexual crimes. capricious Unpredictable and subject to carrier Any business that transports whim, often used to refer to judicial property or people by any means of decisions which appear arbitrary. conveyance (truck, auto, taxi, bus, airplane, railroad, ship) for a charge. caption A heading required on all There are two types of carriers: common pleadings (court documents), listing carrier (in the regular business of the name and contact information of providing transport) and a private carrier the lawyer or self-represented party, (a party not in the business, but agrees identifying the court in which the case to make a delivery or carry a passenger is filed, and stating the names of the in a specific instance). parties, the case number, and the title of the document. carryback A method for receiving a refund of back taxes by applying a care Attention, prudence, having deduction or credit from a current year responsibility for. Care is the opposite to a prior year. (See also: carryover) of negligence and a person exercising reasonable care cannot be liable for carrying for hire The act of transporting injuries that occur as a result of that goods or individuals for a fee. person’s actions. carrying on business A routine and careless 1) Negligent. 2) The opposite continuous involvement in an activity of careful. A careless act can result in undertaken for the purpose of making the careless person being responsible profit. This can be accomplished with for damages caused to others by the or without a physical or visible business carelessness. entity. cargo insurance Insurance that pays carryover A method by which deductions the beneficiary of the policy if freight and credits for one tax year that could covered by the policy is damaged or lost not be used to reduce tax liability during transit. in that year are applied against tax liability in subsequent years. (See also: carnal knowledge Sexual intercourse carryback) between a male and female in which there is at least some slight penetration carryover basis The tax basis of someone of the woman’s vagina by the man’s who receives a gift. The recipient’s basis

58 cash method of accounting

is the same as the giver’s; it simply court may consider—but is not bound “carries over” when the gift is made. by—decisions from other state or federal courts or commentaries by legal cartel A group of independent corpora- scholars, as well as the arguments and tions or other entities that join together briefs submitted by lawyers in the case. to fix prices, control distribution, or re- duce competition. For example, OPEC case system The method of studying law (Organization of Petroleum Exporting used in most American law schools, in Countries) is an intergovernmental which students read and outline (brief) organization that represents 13 oil pro- appellate opinions (cases), then hear ducing countries. Many private (non- lectures about them and discuss them. governmental) cartels operate behind a Each case stands for a particular rule veil of secrecy, particularly because they of law and is printed in “casebooks” are illegal under United States antitrust on particular topics (such as contracts, laws (the Sherman and Clayton Acts). torts, criminal law, and constitutional law). The case system is reinforced case 1) A cause of action, lawsuit, or the by textbooks and outlines on the right to sue (as in, “Do I have a case?”). subject matter, which were formerly 2) A written decision of a court that is the principal sources of learning. The reported in official “reporters” and can method was introduced at Harvard be cited as precedent for other cases. in 1869 by professor Christopher C. case law The law based on judicial Langdell and soon became standard. opinions (including decisions that cashier’s check A check issued by a bank interpret statutes), as opposed to law on its own account, not on a depositor’s based on statutes, regulations, or other account. The bank receives money from sources. Also refers to the collection the purchaser in the amount of the of reported judicial decisions within a cashier’s check, then issues the check particular jurisdiction dealing with a and guarantees its payment. specific issue or topic. cash method of accounting A method case of first impression A court case of accounting in which income is that presents a new question or issue accounted for when actually received for legal interpretation (or at least (not, for instance, when an order new within that court’s jurisdiction). is taken) and expenses are reported For example, the question may when actually paid (not when liability concern recently passed or rarely used for paying them is incurred, such as legislation. In making its decision, the

59 cash surrender value

making an order). (Compare: accrual quake. Casualty loss qualifies for a tax method of accounting) deduction benefit. S( ee also: casualty) cash surrender value The amount of cash causa mortis See: contemplation of death available upon voluntary termination cause 1) To make something happen. of an insurance policy before the 2) The reason something happens. In insurance benefits become payable. order to hold someone responsible for casual labor Sometimes used to refer harm to another person, the one must to work that does not further the have caused the injury to the other. business of the employer, typically on a one-time or very sporadic basis. For example, someone who was hired for In the Name of the Father. (1993) A one day to clean the windows of a car determined attorney wins exoneration showroom or a group that was hired for a young Irishman and his family framed for a terrorist bombing. Oscar nominations went for a few hours to unload new office to Emma Thompson, Daniel Day-Lewis, and furniture might be referred to as casual Pete Poslethwaite. labor. Casual labor is not a legally recognized category, however: Workers performing casual labor are either cause of action A specific legal claim— independent contractors or employees, such as for negligence, breach of and the hiring company’s legal and contract, or medical malpractice—for tax obligations to workers performing which a plaintiff seeks compensation. casual labor are the same as for other Each cause of action is divided into workers. discrete elements, all of which must casualty 1) An accident or event which be proved to present a winning case. A could not have been foreseen or complaint often states multiple causes avoided, such as a shipwreck, fire, or of action, and each cause of action is earthquake. 2) The liability or loss made up of certain required elements— resulting from such an accident or for example, a cause of action for event. (See also: casualty loss) breach of contract must show offer, acceptance, transfer of something of casualty loss Financial loss or loss value, and breach of the agreement. of property arising from a sudden, unexpected, or unusual event such as a caveat (kav-ee-aht) 1) Latin for “let him storm, flood, fire, shipwreck, or earth­ beware”; a warning or caution. 2) A formal notification by an interested

60 certificate of citizenship

party to a court, judge, or ministerial cease and desist letter A letter from officer not to do an act till the party an intellectual property owner that giving the notice has the opportunity to requests that alleged illegal activity, be heard. such as copyright infringement, be stopped immediately. caveat emptor Latin for “let the buyer beware.” The basic premise is that you cease and desist order An order of are buying a product or property at a court or government agency to a your own risk and should personally person, business, or organization to examine and test for obvious defects stop doing something. In order to and imperfections. Caveat emptor obtain such an order, the plaintiff needs still applies even if the purchase is “as to make a strong showing that the is” or when a defect is obvious upon activity is harmful to the plaintiff or reasonable inspection before purchase. contrary to law. Likely subjects a cease Since implied warranties and consumer and desist order might, for example, protections regarding product liability include the felling of timber contrary to have come upon the legal landscape, regulation or the selling of stock shares the seller is held to a higher standard of without a proper permit. The order disclosure than “buyer beware” and has may be permanent or hold until a final responsibility for defects which a buyer judicial determination is made. cannot note by casual inspection. census An official count of the number CC&Rs See: covenants, conditions, and of people living in a certain area, such restrictions as a district, city, county, state, or nation. The U.S. Constitution requires CCCS See: Consumer Credit Counseling the federal government to perform a Service national census every ten years. The C corporation Common business slang census includes information about the to distinguish a regular corporation, respondents’ sex, age, family, and social whose profits are taxed separate from and economic status. Its results are its owners under subchapter C of the publicly available. Internal Revenue Code, from an S certificate of citizenship An identity corporation, whose profits are passed document that USCIS will provide to through to the shareholders and taxed people who have derived or acquired on their personal income tax returns U.S. citizenship and would like to prove under subchapter S of the Internal their U.S. citizenship status. (See also: Revenue Code.

61 certificate of deposit

acquisition of citizenship, derivation of it, and the amounts and types of stock citizenship.) it is authorized to issue. In most states, this document is called the articles of certificate of deposit( CD) A document incorporation. issued by a bank in return for a deposit of money. Interest rates on CDs are certificate of organization A document fixed, and usually higher than on sav- filed with state authorities (usually ings accounts, because banking institu- the Secretary of State or Division of tions require a commitment to leave the Corporations, depending on the state) money on deposit for a fixed period of to form a limited liability company time. Often there is a financial penalty (LLC). As required by the general (fee) for cashing in a CD before the LLC law of the state, the certificate pledged time has run out. normally includes the purpose of the LLC, its principal place of business, certificate of formation A document and the names of its initial members filed with state authorities (usually the or managers. Most states refer to Secretary of State or Division of Corpo- this document as the articles of rations, depending on the state) to form organization. a limited liability company (LLC). As required by the general LLC law of the certificate of title Generally, the title state, the certificate normally includes document for a motor vehicle issued the purpose of the LLC, its principal by the state in which it is registered, place of business, and the names of describing the vehicle by type and its initial members or managers. Most engine number, as well the name and states refer to this document as the address of the registered owner and any articles of organization. lienholder (financial institution that loaned money to finance purchase of certificate of incorporation A document the car). In some states this document filed with state authorities (usually is pink and is commonly called a the Secretary of State or Division of “pink slip.” Corporations, depending on the state) to form a corporation. As required by certificate of trust See: certification of the general incorporation law of the trust state, the certificate normally includes certification of trust A condensed the purpose of the corporation, its version of a declaration of trust, which principal place of business, the names leaves out details of what property of the initial directors who will control is held in the trust and the identity

62 chain of title

of the beneficiaries. You can show certified public accountant( CPA) The a certification of trust to a financial most highly qualified of accounting organization or other institution to professionals, a CPA has passed a state’s prove that you have established a Uniform Certified Public Accountant valid trust, without revealing specifics Examination and has met additional that you want to keep private. In state education and experience some states, this document is called a requirements. certificate or abstract of trust. certification mark A name, symbol, or President Franklin D. Roosevelt never other device used by an organization graduated from law school, because that certifies origin, material, mode of he failed courses at Columbia in his final manufacture, quality, accuracy, or other semester and did not bother to make them characteristics—for example, the “UL” up. He satisfied the courts by oral examination symbol certifying quality standards for that he was qualified. electrical appliances. certified check A check issued and certiorari (sersh-oh-rar-ee) Latin for guaranteed by a bank, certifying that “to be fully informed.” In cases in the maker of the check has enough which there is no appeal as a matter money in his or her account to cover of right, certiorari is a writ (order) by the amount to be paid. The bank sets the appeals court to a lower court to aside the funds so that the check will send all the documents in a case so remain good even if other checks are that the appeals court can review the written on the particular account. decision. Certiorari is most commonly certified copy A copy of a document used by the United States Supreme issued by a court or government agency Court, which grants certiorari when at guaranteed to be a true and exact copy least four Justices believe that the case of the original. Many agencies and involves a sufficiently significant federal institutions require certified copies issue. of legal documents before permitting chain of title The line of owners of real certain transactions. For example, a estate, stretching from the current certified copy of a death certificate is owner back in time to the original grant required before a bank will release the from some government. The chain of funds in a deceased person’s payable- title is shown by deeds, judgments in on-death account to the person who lawsuits over title, affidavits, and other has inherited them.

63 challenge

documents showing ownership changes court from behind the bench and not and recorded in the county land records encounter people on the way. Trial office. An error in this chain of title court judges often schedule pretrial is what title searches are supposed to settle­ment conferences and other find and what title insurance protects informal or sensitive meetings in purchasers against. chambers. challenge When selecting a jury, the champerty An agreement between the right of each party to request that party suing in a lawsuit (the plaintiff) a potential juror be excused. There and another person, who agrees to may be a “challenge for cause” on the finance and carry the lawsuit in return basis the juror had admitted prejudice for a percentage of the recovery. In or shows some obvious conflict of some states, champerty is illegal. interest (for example, the juror used However, it is also the basis for the to work for the defendant) which the legal and commonly accepted practice judge must resolve. More common of contingency fee arrangements is the “peremptory challenge,” which with attorneys, who represent their is a request that a juror be excused clients and are paid from any award or without stating a reason. Each side is settlement the plaintiff receives in the normally allowed a limited number of suit. peremptory challenges. chancellor From the old English legal challenge for cause A party’s request that system, a chancellor is a judge who sits the judge dismiss a potential juror from in what is called a chancery (equity) serving on a jury by providing a valid court. The chancellor has the power legal reason why he shouldn’t serve. to order that something be done, Potential bias is a common reason as distinguished from ordering the potential jurors are challenged for defendant to pay damages. Almost cause—for example, the potential juror all U.S. states’ courts now combine is a relative of a party or one of the chancery (equity) functions and law. lawyers, or admits to a prejudice against chancery A court of equity, in which a one party’s race or religion. Judges can judge can order acts performed, such also dismiss a potential juror for cause. as that a contract be modified or an chambers A fancy word for a judge’s activity stopped. The chancery court’s office. It’s usually close to the court­ functions are distinct from those of room so that the judge can enter the common law courts, which can order

64 character witness

money damages to be paid, and where including towns, cities, villages, coun- jury trials are available. The division ties, and school districts. between chancery and equity courts is Chapter 11 bankruptcy A type of partly based on the old English legal bank­ruptcy that allows businesses to system. However, the original reason reorganize their debt load in order to for the division between courts, which remain in business. was so that law courts could follow statutory rules and equity courts could Chapter 12 bankruptcy A type of bank­ rule on issues of fairness, has been ruptcy that allows small farmers to mostly lost. Chancery courts still exist reorganize their debts. in a few U.S. states today (check with Chapter 13 bankruptcy A type of con- the individual court for an exact list sumer bankruptcy designed to help of what types of cases it hears). In debtors reorganize their debts and pay other states, chancery court functions all or a portion of them over three to have been merged into the regular law five years. In Chapter 13 bankruptcy, courts’ activities. debtors keep their property and use change of circumstances A reason for a their income to repay creditors accord- court to modify an existing order for ing to a monthly repayment plan. At the payment of alimony and/or child the end of the three-to-five-year period, support. In most cases, in order to the balance of what the debtor owes on seek a change in the support amount, many types of debts is erased. the person seeking the change must Chapter 13 plan A document the debtor show that circumstances (such as the must file in a Chapter 13 bankruptcy, employment, health, or income of the showing the debtor’s proposal for repay- payor) have changed from when the ing debts. Typically, a Chapter 13 plan order was made. requires the debtor to make set pay- Chapter 7 bankruptcy A consumer liqui- ments once or twice a month, which dation bankruptcy proceeding in which the bankruptcy trustee uses to pay the trustee sells any nonexempt prop- creditors. The plan must last for three erty the debtor owns and distributes the to five years, and the debtor must de- proceeds to the debtor’s creditors. At vote all disposable income to the plan. the end of a Chapter 7 case, many or all character witness A person who testifies of the debtor’s debts are discharged. in court on behalf of another as to that Chapter 9 bankruptcy A type of bank- person’s positive character traits and the ruptcy available only to municipalities,

65 charge

person’s reputation in the community. promise to receive fixed payments Such testimony is often offered when for life (or, commonly, for the life of the person’s honesty or morality is an the donor and the donor’s spouse). issue, as in some criminal cases and The donor can take an income tax in civil cases involving accusations of deduction for part of the value of the fraud. assets given to the charity. Payments are based on how much is donated and the age of the recipients (called annuitants “I would pray, O Lord, never to diminish or beneficiaries). These annuities my passion for a client’s cause, for provide a way to make a gift to a from it springs the flame which leaps across charity, often a university, and receive the jury box and sets fire to the conviction of income for life. the jurors.” —Louis Nizer, charitable lead trust A kind of charitable A Lawyer’s Prayer trust. The person (grantor) who sets up the trust transfers assets to it, and income from the trust property then charge A formal accusation of criminal goes to the charity for a set period of activity. The prosecuting attorney time. Then the trust property goes decides on the charges, after reviewing back to the person who set up the trust police reports, witness statements, and (or another beneficiary that person any other evidence of wrongdoing. named, usually the grantor’s children Formal charges are announced at an or grandchildren). Typically, the charity arrested person’s arraignment. serves as trustee of the charitable trust. (Compare: charitable remainder trust) charitable contribution Cash or cash equivalent (goods or property) donated charitable organization A nonprofit to a charitable organization. If made ­organization created and operated to a qualified recipient (one officially for purposes that benefit the public created for charitable, religious, interest, such as educational, scien- educational, scientific, artistic, literary, tific, ­religious and artistic purposes. or other good works), then charitable Charit­able organizations that meet contributions are tax deductible. the require­ments of Internal Revenue Code 501(c)(3) are exempt from federal charitable gift annuity A contract with a ­income tax and are eligible to receive charity under which someone transfers tax deductible charitable contributions. assets to the charity in return for a

66 chattel mortgage charitable remainder annuity trust A achieve income and estate tax savings kind of charitable remainder trust in for the person who creates the trust (the which the income beneficiary is paid a grantor). These trusts are usually set up fixed amount by the trustee each year. during the grantor’s lifetime and are irrevocable. (See also: charitable lead charitable remainder trust A kind of trust, charitable remainder trust) charitable trust in which someone places substantial assets into an irrevoc­ charity See: charitable organization able trust. The trust is set up so that the charter 1) A document that establishes donor (or other beneficiaries named in an organization, such as a governmental the trust) receives trust income for a entity (for example, a city charter) or a number of years or for life, after which company (for example, a corporation’s the assets go to a tax-exempt charity. Articles of Incorporation). 2) To hire The IRS allows a large deduction in or rent for temporary use, such as the year the assets are donated to the chartering a boat. trust. The tax savings are sometimes used to buy an insurance policy on the chart of accounts A complete list of a life of the donor payable to children business’s expense and income accounts or grandchildren at the donor’s death. in a ledger. The list is arranged either This way the donor can make the gift by category (asset, liability, revenue, to charity, receive income from the expense) or in the order of the trust, and still make a large gift at appearance in the financial statements. death to family members. There are chattel An item of personal property that several kinds of charitable remainder can be moved from place to place. trusts, including charitable remainder unitrusts and charitable remainder chattel mortgage An old term for an annuity trusts. (Compare: charitable arrangement under which an item of lead trust) personal property (chattel) serves as security (collateral) for a loan taken out charitable remainder unitrust A kind to buy the item. Like a mortgage on a of charitable remainder trust in which house, this was essentially a mortgage the trustee pays the income beneficiary on something other than real estate. an amount equal to a percentage of the These agreements are now generally trust assets each year. referred to as security agreements charitable trust A trust designed to make and are governed by the Uniform a substantial gift to a charity and also Commercial Code.

67 check check A draft upon a particular account parents who are legally responsible for in a bank, in which the drawer or them. Most commonly, child support maker (the person who has the account is ordered when parents divorce or and signs the check) directs the bank to separate and one parent is required pay a certain amount to the payee. (See to pay the other an amount of child also: negotiable instrument) support that is determined by state guidelines, based on the parents’ chief justice A judge who presides over incomes and the amount of time each any state supreme court or over the parent spends with the child(ren). U.S. Supreme Court. Support may also include paying for child 1) A person’s offspring of any age, insurance benefits, school tuition, and which can include biological offspring, other expenses. Child support is not unborn children, adopted children, deductible or taxable. stepchildren, foster children, and churn See: churning children born outside of marriage. 2) A person under an age specified by law, churning To make a client’s account often 14 or 16. For example, state law excessively active by the unethical may require a person to be over the and usually illegal frequent buying age of 14 to make a valid will, or may and selling of the client’s shares of define the crime of statutory rape as sex stock, primarily in order to generate with a person under the age of 16. In commissions. this sense, a child can be distinguished CID See: common interest development from a minor, who is a person under the age of legal majority (18 in most CIF An acronym for Cost, Insurance, states). and Freight. CIF is an international commercial term used to describe who child custody See: custody (of a child) will pay these fees when goods are child’s trust A trust created for a minor transported by sea (and it’s sometimes or young adult. The trustee controls the used to describe air freight as well). trust property until the young person These trade terms are often identical reaches the age stated in the trust. At in form to domestic terms (such as that time, trust funds are transferred to the American Uniform Commercial the beneficiary. Code), but have different meanings. You should consult an international child support Financial and other trade lawyer before using this or similar support for children provided by the terms.

68 civil circuit court 1) The name used for the in writing and forgo an appearance principal trial court in many states. in court. 2) A court-issued writ that 2) In the federal system, the term may commands a person to appear in court refer to courts within the 13 circuits. to do something demanded in the writ Eleven of these circuits cover different or to show cause for not doing so. 3) A geographic areas of the country—for reference to a legal authority, such as a example, the United States Court of case or statute. Appeal for the Ninth Circuit covers cite 1) To make reference to a legal Alaska, Arizona, California, Hawaii, authority, such as a statute or the Idaho, Montana, Nevada, Oregon, and decision in another case, to make a Washington. The remaining circuits legal point in argument. 2) To give are the District of Columbia, and the notice of being charged with a minor Federal Circuit, (which hears patent, crime and a date for appearance in customs, and other specialized cases court to answer the charge rather than based on subject matter). The term being arrested (usually given by a police derives from an age before mechanized officer). transit, when judges and lawyers rode the circuit of their territory to hold citizen A person who, by place of birth, court in various places. nationality of one or both parents, or having successfully completed any circumstantial evidence Evidence that applicable requirements, is granted full proves a fact by means of an inference. rights and responsibilities as a member For example, from the evidence that of a nation or political community. a person was seen running away from Some countries allow dual citizenship the scene of a crime, a judge or jury (maintaining citizenship in more than may infer that the person committed one country). the crime. Usually, many pieces of circumstantial evidence are needed citizen’s arrest An arrest made by a before a judge or jury will find that they private citizen, in contrast to the typical add up to proof beyond a reasonable arrest made by a police officer. Citizen’s doubt. Compare: direct evidence arrests are lawful in certain limited situations, such as when a private citation A police-issued order to appear citizen personally witnesses a violent in court to defend against a charge. crime and then detains the perpetrator. Failure to appear can result in a warrant for the citee’s arrest, but often civil Noncriminal. (See also: civil case) a person may consent to the penalty

69 civil action civil action See: civil case of damages or other court-enforcement of a lawsuit. civil case A noncriminal lawsuit, usually involving private property rights. For civil liberties Rights granted to the example, lawsuits involving breach of people under the Constitution (and contract, probate, divorce, negligence, derived primarily from the First and copyright violations are just a few Amendment), to speak freely, think, of the many hundreds of varieties of assemble, organize, worship, or petition civil lawsuits. without government interference or restraints. (Compare: civil rights) civil penalties civil fines A Civil Action. (1988) Based on John ( ) Fines or other Harr’s best-seller about an actual event, financial payments imposed by a state John Travolta plays an idealistic attorney or federal agency for violation of laws or challenging a polluter suspected of poisoning regulations. Examples include fines for a Massachusetts river, causing cancer in the late payment of taxes, or penalties for surrounding neighbor­hoods. This courtroom failing to obtain a building permit. drama also stars Robert Duvall. civil procedure The rules set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) civil code In many states, the name for laws that establish the format under the collection of statutes and laws that which civil lawsuits are filed, pursued, deal with business and negligence and tried. Civil procedure refers only lawsuits and practices. to form and procedure, and not to the civil law 1) A generic term for all non- substantive law that gives people the criminal law, usually relating to settling right to sue or defend a lawsuit. disputes between private citizens. 2) A civil rights Rights guaranteed by the Bill body of laws and legal concepts derived of Rights, the 13th and 14th, 15th and from Roman law as opposed to English 19th Amendments to the Constitution. common law, which is the framework Civil rights include civil liberties of most state legal systems. In the (such as the freedom of speech, press, United States only Louisiana, relying assembly, and religion), as well as due on the French Napoleonic Code, has a process, the right to vote, equal and fair legal structure based on civil law. treatment by law enforcement and the civil liability A legal obligation that arises courts, and the opportunity to enjoy to a private party, usually for payment the benefits of a democratic society,

70 cleaning fee

such as equal access to public schools, suffered from the same discrimination recreation, transportation, public or other injury. Whether a person facilities, and housing. is part of a class is often crucial in determining who can sue on the Civil Rights Act of 1964 A federal law person’s behalf or collect a share of a that prohibits discrimination on the class action judgment. basis of race, color, national origin, sex (including pregnancy), and religion class action A lawsuit in which a large in employment, education, and number of people with similar legal access to public facilities and public claims join together in a group (the accommodations, such as restaurants class) to sue someone, usually a and hotels. The employment provisions company or organization. Common of the law are often referred to as “Title class actions involve cases in which VII,” based on their location in the a product has injured many people, U.S. Code. or a group of people has suffered discrimination at the hands of an civil union A relationship available in organization. New Hampshire, New Jersey, and Vermont that provides all of the rights Clayton Antitrust Act A federal antitrust and responsibilities of marriage for law, enacted in 1914, that amended same-sex couples who register as civil and expanded upon the Sherman Act union partners. (enacted in 1890), which prohibits direct or indirect interference with civil union partners Parties to a civil interstate trade. union relationship in New Hampshire, New Jersey, or Vermont, under which clean hands doctrine The principle that the partners have the same rights and a party who has acted unethically or responsibilities as married spouses in bad faith in relation to a lawsuit will under state law. not win the suit or be granted equitable relief by the court. For example, if a claim in bankruptcy See: creditor’s claim contractor is suing a homeowner to claims See: patent claims recover the price of work he did on the home, his failure to perform the class A group that shares common work as specified would leave him with attributes. In legal terms, this might be unclean hands. a group of people with the same level of rights (such as heirs who are equally cleaning fee A nonrefundable fee charged related to the deceased), or who’ve by a landlord when a tenant moves in.

71 clean room

The fee covers the cost of cleaning the shouting “Fire!” in a crowded theater is rented premises after the tenant moves not protected speech. out, even if the tenant leaves the place clearly erroneous A standard of review spotless. Cleaning fees are illegal in in civil appellate proceedings. Under some states and specifically allowed in this standard, an appeals court must others, but most state laws are silent on accept the lower court’s findings of fact the issue. Landlords in every state are unless the appellate court is definitely allowed to use the security deposit to and firmly convinced that a mistake clean a unit that is truly dirty. has been made. In other words, it is not clean room A method of developing pro- enough that the appellate court may prietary material in which an isolated have weighed the evidence and reached development team is monitored. The a different conclusion; the lower court’s purpose is to provide evidence that decision will only be reversed if it is similarities to others’ works or products implausible in light of all the evidence. are due to legitimate constraints and clear title Ownership of property that not copying. is free of claims or disputes about clear and convincing evidence The ownership. Clear title is necessary burden of proof placed on a party before property can be sold. (See also: in certain types of civil cases, such cloud on title, title search) as cases involving fraud. Clear and clerk 1) An official or employee who convincing is a higher standard than handles the business of a court or a “preponderance of the evidence,” system of courts, maintains files of each the standard typical in most civil case, and issues routine documents. cases, but not as high as “beyond a Almost every county has a clerk of the reasonable doubt,” the burden placed courts or county clerk who fulfills those on the prosecution in criminal cases. functions, and most courtrooms have (See also: beyond a reasonable doubt, a clerk to keep records and assist the preponderance of the evidence) judge in the management of the court. clear and present danger Although the 2) A young lawyer who helps a judge U.S. Constitution’s First Amendment or a senior attorney research and draft protects freedom of speech, any speech documents. that poses a “clear and present danger” Clinton v. City of New York (1998) A to the public or government loses this U.S. Supreme Court case in which protection. The classic example is that the Court declared the line item veto

72 closing argument

unconstitutional because it gave the closed shop A business that hires only executive a legislative function. union members either by choice or by agreement with the unions, although Clinton v. Jones (1997) A U.S. Supreme the Labor-Management Relations Act Court case in which the Court made closed shops illegal. (Compare: unanimously ruled that presidential union shop) immunity did not protect a sitting president from a civil lawsuit. closely held corporation Refers to any corporation where the stock is not publicly traded on a stock exchange. “Wrong must not win by technicalities.” Closely held corporations usually —Aeschylus, Eumenides have a small number of shareholders. (Compare: close corporation) closing close corporation A corporation owned The final step in the sale and and operated by a few individuals, purchase of real estate in which the often members of the same family, seller’s deed of title is exchanged for rather than by public shareholders. the buyer’s payment. Some of the Close corporations are regulated final documents, including the deed by state close corporation statutes, and mortgage or deed of trust, are which usually limit the number of then recorded in the county recorder’s shareholders to 30 or 35 shareholders office. Depending on local practice, the and require special language in the closing is handled by a title company, articles of corporation. In exchange for escrow officer, or attorney. Also called following these requirements, state law settlement. usually permits close corporations to closing argument A speech made at function more informally than regular trial after all the evidence has been corporations. For example, shareholders presented by each party. The closing can make decisions without holding argument reviews and summarizes the meetings of the board of directors and evidence, and forcefully explains why can fill vacancies on the board without the verdict should be granted in favor a formal vote of the shareholders. of the arguing party. In trials before a (Compare: closely held corporation) judge (without a jury), it is common for closed-end loan A loan that must be paid both parties to waive closing argument off within a certain period of time. on the theory that the judge has almost (Compare: open-ended loan) surely already arrived at a decision.

73 cloud on title cloud on title A claim or dispute about Bar Association (ABA), the code has the ownership of or an encumbrance been replaced in most states by the on property. For example, a tax lien Model Rules of Professional Conduct. on a piece of real estate or a possible codicil A supplement or addition to a claim by the heir of a former owner will. A codicil may explain, modify, might create a cloud on the title. Or a add to, subtract from, qualify, alter, past mortgage might have been paid or revoke existing provisions in a will. off, but the property documents were Because a codicil changes a will, it must never recorded (filed in the public be signed in front of witnesses, just like land records). These kinds of potential a will. problems are usually turned up in a title search. (See also: clear title) codify The process of arranging and labeling a system of laws. code A systematic collection of written laws gathered together, often grouped cohabitation Living together in the by subject matter. A state may have same residence, either as spouses or separate codes such as a civil code, unmarried partners. Cohabitation corporations code, evidence code, penal is often a reason for termination of code, and so forth. alimony, on the assumption that a person cohabiting with another no codefendant One of two or more longer needs the support of a former ­defendants charged with the same spouse. crime or sued in the same claim. Also called joint defendant. Cohan rule A federal court decision which allows taxpayers in certain Code of Federal Regulations (C.F.R.) situations to approximate expenses for A set of publications containing tax deduction purposes when their regulations issued by federal agencies records are missing. It cannot be used and organized by subject. for travel and entertainment business Code of Professional Responsibility A set expenses. of rules governing the ethical conduct cohousing A type of collaborative living of attorneys in the practice of the in which residents share in the design of law. It covers such topics as conflicts their community. Generally, cohousing of interest, honesty with clients, means that each resident or family confidentiality, and conduct toward has a private space, and the cohousing other attorneys and the courts. First community also shares common space developed and pushed by the American

74 collateral estoppel

and facilities such as a playground law case is not permitted to go to court. for children, laundry facilities, and a If the dispute does end up in court—or common kitchen where members can if one of the parties threatens to go to share meals. court—the collaborative law process ends and neither lawyer can continue to coinsurance 1) A form of insurance work on the case. in which a person insures property for less than its full value and agrees collateral Property that someone prom- to be responsible for the difference. ises or gives to a creditor to guarantee Essentially the owner and the insurance payment of a debt—thus creating company share the risk. 2) Insurance what’s called a secured debt. If the held jointly by two or more insurers. ­borrower defaults on the loan, the creditor may seize the property and sell collaborative divorce A method of it to cover the debt. ­resolving a divorce case in which both spouses hire attorneys who practice collateral attack A legal action in one ­collaborative law, and the parties case challenging another case or and attorneys sign an agreement that another court’s ruling. For example, a requires them to negotiate the divorce father ordered to pay child support in a through a series of four-way meetings, divorce case in Minnesota, collaterally often with the assistance of professionals attacks the order in a Maine court such as custody evaluators, appraisers, claiming that the Minnesota court did or accountants. If the divorce cannot be not have jurisdiction over him. settled through these meetings and one collateral consanguinity The relationship party seeks a court trial, both lawyers between blood relatives who do not de- must withdraw and the parties must scend from one another—for example, hire new lawyers. This provides a finan- cousins. (See also: consanguinity) cial incentive for settling. collateral descendant A relative de- collaborative law An alternative way to scended from a brother or sister of an settle disputes in which both parties ancestor—for example, a cousin, niece, hire specially trained attorneys who nephew, aunt, or uncle. work to help them respectfully resolve the conflict. Every participant in a col- collateral estoppel A legal doctrine laborative case agrees to work together that says that a judgment in one case to seek a “win-win” solution to the prevents (estops) a party to that suit needs of both parties. A collaborative from trying to litigate the same issue in

75 collection agency

another legal action. Also called issue collision damage waiver Rental car preclusion. insurance that makes the rental car company responsible for damage to collection agency A company hired by or theft of a rental car. Also known as a creditor to collect a debt. Creditors CDW, damage waiver, and loss damage typically hire a collection agency only waiver, this insurance often duplicates after having tried—and failed—to coverage provided in a consumer’s collect the debt on their own. existing auto insurance policy. collective mark A name, symbol, or other device used by members of an organization to: 1) identify goods Famous trial attorney Clarence or services it provides; or 2) indicate Darrow planted a spy on the staff of membership in the organization. For the District Attorney, from whom he learned example, the letters ILGWU may be that the prosecution had absolute proof that his clients, the McNamara brothers, were guilty used on a shirt label to signify that of setting off the bomb at theLos Angeles the shirt was made by a member of Times in 1911 that killed 20 people. the International Ladies’ Garment Workers’ Union, or may be used on a button worn by an ILGWU member. collision insurance coverage A com- (Compare: certification mark) ponent of car insurance that pays for collective work Under copyright law, a damages to the insured vehicle that work, such as a periodical, anthology, result from a collision with another or encyclopedia, in which a number vehicle or object. Collision insurance of separate and independent works are generally covers the amount of damage assembled into one work. To create a over and above an amount the insured collective work, permission must be person must pay, called the deductible obtained from the copyright owners of amount. the separate parts (assuming such parts collusion Secret cooperation between are not already in the public domain). two people or entities in order to fool, Although the author of the collective defraud, or gain an unfair advantage compilation may not own the copyright over another. Price fixing by companies to any of the individual parts, the supposed to be competitors is one creativity involved in selecting and example of collusion. organizing the constituent materials is often protected by copyright. (See also: collusive action A lawsuit brought by compilation) parties pretending to be adversaries in

76 commercial frustration

order to obtain an answer to a legal commencement of action The formal question or a precedent-setting decision procedure by which a legal proceeding from the court. The action will be is initiated. Civil law suits commence dismissed if a judge determines it does when the party suing files a written not involve a true controversy. complaint or petition with the court. Criminal proceedings are typically color of law Conduct based upon what commenced by a prosecutor filing a appears to be a legal right or enforce­ petition with the court or seeking an ment of statute, but in reality is a indictment from a grand jury. violation of law, such as issuing phony traffic tickets in order to raise revenue comment A statement made by a judge or extort payoffs. or attorney during a trial that’s based on an alleged but as-yet unproven color of title The appearance of owner­ fact. The lawyer for the other side may ship of property, evidenced by posses- object, and the judge may remind the sion or a document that purports to jury (if a jury is present) that such show ownership, when there is actually comments should not be taken as a defect in the title. evidence. (How­ever, as they say, “A bell comaker One of two or more people who once rung, cannot be unrung.”) sign the same check or promissory note. commerce 1) the sale or exchange of Each comaker is liable for the entire commodities, property, or services, amount to be paid. (See also: maker) typically involving transportation from comfort care Medical care intended to place to place. 2) As defined by the provide relief from pain and discom- Lanham Act, trade that the federal fort, such as pain control drugs. (See government is authorized to regulate, also: palliative care) typically trade across interstate lines. To qualify for federal trademark protection comity (kom-i-tee) The principle that and registration, a mark must have first one jurisdiction will recognize the been used in commerce. executive, legislative, and judicial acts of another jurisdiction and will give commercial frustration An unforeseen effect to the other’s laws. and uncontrollable event that excuses a party to a contract from performing comity of nations Courtesy between his or her duties under that contract. nations that obligates their mutual For example, a landlord can break a recognition of each other’s laws. lease if the property she agreed to rent

77 commercial law

accidentally burns down before the Securities and Exchange Commission tenants move in. (SEC), and the Federal Trade Commission (FTC). commercial law The law that applies to the rights, relations, and conduct commitment A judge’s order sending of persons and businesses engaged someone to jail or prison, upon con- in commerce, merchandising, trade, viction or before trial (for diagnostic and sales. In recent years this body of purposes), or directing that a mentally law has been codified in the Uniform unstable person be confined to a mental Commercial Code (UCC), which has institution. Technically, the judge ­orders been almost universally adopted by the law enforcement personnel to take the U.S. states. prisoner or patient to such places. commingling The act of mixing the common area 1) Facilities and space, funds belonging to one party with such as recreation facilities, parking, those of another party. Usually, spouses laundry rooms, or a courtyard in or business partners may commingle ­condominiums, apartment buildings, assets without a problem. However, in and some cooperative housing projects. community property states, a spouse In rental properties, landlords are may run the risk of turning separate responsible for maintaining common property into community property areas in a safe condition. Common areas (transmutation). Business partners may in condominiums are not individually have to account to each other. Trustees, owned by the residents, but shared by guardians, agents, and other fiduciaries percentage interest or owned by the must be careful not to commingle the management organization. 2) The area funds that they are caring for with in a shopping center or mall outside of those of their own, since commingling the individual stores, for which each is generally prohibited as a conflict of business pays a share of maintenance interest. based on percentage of total store space occupied. commission 1) A fee paid to an agent or employee for performing a specific common carrier An individual, a service, as distinguished from regular company, or a public utility (like payments of wages or salary. 2) A municipal buses) that is in the regular group appointed by law to conduct business of transporting people or certain government business, especially freight, and must do so as long as the regulation. Examples include a local approved charge or fare is paid. planning or zoning commission, the

78 community property common interest development A type marriage to take effect—merely living of housing, composed of individually together for a long time won’t do it. owned units, such as condominiums, common property Property owned by townhouses, or single-family homes, two or more parties. that share ownership of common areas, such as swimming pools, land­ common stock A class of stock for which scaping, and parking. Common dividends (payouts) are calculated on a interest developments (also known as pro rata basis (according to the number community interest developments or of shares a shareholder owns). Holders CIDs) are managed by homeowners’ of common stock have rights to vote associations. on corporate matters and to receive a share of the assets if the corporation is common law The body of law that liquidated. (Compare: preferred stock) developed over many years in England based on court decisions and custom, as compared to written statutes “A man’s home is his castle.” (codifications of the law). Colonists —Sir Edward Coke, imported England’s common law to Comments on Littleton what became the United States, and it survives today, greatly expanded and changed by the published decisions of community interest development See: American courts. Many common law common interest development principles, however, have been codified in state statutes. Only Louisiana does community property A method of not take as its basic law the English defining the ownership of property common law; instead, that state’s law is acquired during marriage, in which based on France’s Napoleonic Code. all earnings during marriage and all property acquired with those common law marriage In some states, earnings are owned in common and a type of marriage in which couples all debts incurred during marriage can become legally married by living are the responsibility of both spouses. together for a long period of time, Typically, community property consists representing themselves as a married of all property and profits acquired couple, and intending to be married. during marriage, except property Contrary to popular belief, the couple received by inheritance, gift, or as the must intend to be married and act as profits from property owned before though they are for a common law marriage. Community property

79 community property with right of survivorship

laws exist in Arizona, California, penalty was excessive or there is Idaho, Nevada, New Mexico, Texas, evidence of rehabilitation, reform, Washington, and Wisconsin. In community service, or other indica­ Alaska, couples can create community tions of good conduct. property by written agreement. (See commute a sentence See: commutation also: separate property, equitable distribution) company Any formal business entity for profit which may be a corporation, a community property with right of partnership, association, or individual survivorship A way for married couples proprietorship. Often people think the to hold title to property, available in term “company” means the business some community property states. It is incorporated, but that is not true. allows one spouse’s half-interest in In fact, a corporation usually must community property to pass to the use some term in its name such as surviving spouse without probate. “corporation,” “incorporated,” “corp.” community service Unpaid work that or “inc.” to show it is a corporation. benefits the community and that may comparable rectitude An anachronistic be required of a convicted defendant as doctrine that grants the spouse who an alternative to a jail sentence. is least at fault a divorce when both community trust See: pooled trust spouses have shown fault grounds for divorce. It is a response to an old commutation Reducing a sentence common law rule that prevented a resulting from a criminal conviction, divorce when both spouses were at which can be done by the governor fault. of a state (state convictions) or the president of the United States (federal comparative negligence A rule of law convictions). A commutation is applied in negligence cases in which distinguished from a pardon, which responsibility and damages are based wipes out the conviction and can even on the proportional fault of every stop the actual or potential charge party directly involved. Compare: (as when President Gerald R. Ford contributory negligence pardoned ex-President ­Richard M. compensation Payment for work Nixon even without charges having performed or damages suffered (for been officially made—a rare instance example, in the form of workers’ of the use of the presidential pardon compensation benefits). power). Commutation implies the

80 compos mentis compensatory damages Money damages tions are databases, anthologies, and recovered as compensation for economic collective works. The creative aspects of loss, such as lost wages. a compilation—such as the novel way it is organized and the selection of the competence 1) The state of being able materials to be included—are entitled or qualified to do something—for to copyright protection whether or not example, make a will or testify in the individual parts are in the ­public court. 2) Authority, authenticity, or domain or are subject to another admissibility, as in “the competence of ­owners copyright. (See also: database, the evidence.” collective work) competent 1) Able to act in the circum- complainant A person or entity that stances, including the ability to per- begins a lawsuit by filing a complaint. form a job or occupation, or to reason Usually called the plaintiff or or make decisions. 2) In wills, trusts, petitioner. and contracts, sufficiently mentally able to understand and execute a document. complaint Papers filed in court by an 3) In criminal law, sufficiently mentally injured party to begin a lawsuit by able to stand trial or testify. 4) In evi- setting out facts and legal claims dence, relevant and legally admissible. (usually called causes of action). The person filing the complaint is called competent evidence Legally admissible the plaintiff and the other party is evidence. Competent evidence tends called the defendant. In some states to prove the matter in dispute. In a and in some types of legal actions, murder trial, for example, competent such as divorce, complaints are called evidence might include the murder petitions and the person filing is called weapon with the defendant’s finger­ the petitioner. The plaintiff’s complaint prints on it. must be served on the defendant, who competent witness A person who is then has the opportunity to respond legally qualified to testify as a witness. by filing an answer. A complaint filing Legal qualification may depend on must be accompanied by a filing fee the witness’s age, mental capacity, and payable to the court clerk, unless the relationship to the matter at issue. party asks a judge to waive the fee based on inability to pay. compilation A work formed by selecting, collecting, and assembling preexisting compos mentis (cahm-puhs men-tis) materials or data. Examples of compila- Latin for having a sound mind.

81 compound interest compound interest Interest paid at by anything other than a collision, least in part on accumulated interest. including vandalism, theft, and natural For example, if interest on a savings disasters. Like collision insurance, account is compounded monthly, comprehensive coverage usually only the depositor is paid interest on the pays up to the fair market value of your amount deposited after the first month. car (minus any deductible). After the second month, the depositor compromise An agreement between receives interest on the total amount in opposing parties to settle a dispute or the account: the amount deposited plus reach a settlement in which each gives the interest paid in the first month. some ground rather than continue the dispute or go to trial. “The law was not made for a righteous compromise verdict A jury verdict that man, but for the lawless and occurs when some jurors compromise disobedient.” their opinions in order to avoid —The Bible, St. Paul in Timothy 1:9 deadlock. compulsory joinder See: mandatory compound question A single question joinder that actually asks more than one thing. compulsory license A statutory arrange­ In a trial or deposition, the opposing ment under which permission is not party can object to such a question. If required before using someone else’s the objection is sustained, the question intellectual property, provided that a must be withdrawn and asked in a fee is paid. series of separate questions. concealed weapon A weapon, particularly compounding a felony The decision by a a handgun, which is kept hidden on victim of a crime to not prosecute the one’s person or under one’s control (in a crime (by refusing to cooperate with glove compartment or under a car seat). the police or prosecuting attorney) Carrying a concealed weapon is a crime or to hamper the prosecution, in unless the person with the weapon is a exchange for money payment or other law enforcement officer or has a permit recompense. Compounding is a crime. to carry a concealed weapon. Permits comprehensive insurance coverage An are usually issued by local law enforce- element of car insurance that pays ment under guidelines that require the for damages to your vehicle caused applicant to show the need for such

82 condemn

a weapon, and require that the appli- concurrent condition Under an agree­ cant have a record free of convictions, ment, a situation in which one party ­arrests, or improper activity. must fulfill a condition at the same time that the other party fulfills a concealment Failure to reveal inform­ mutual condition. (See also: condition) ation that one knows should be disclosed in good faith. Such conceal­ concurrent sentence When a criminal ment can be a cause for rescission defendant is convicted of two or more (cancellation) of a contract by the crimes, a judge sentences the defendant misled party or a civil lawsuit for fraud. to a certain period of time for each crime. Sentences that may all be served conclusion 1) In a trial, the end of all at the same time, with the longest evidence being introduced and final period controlling, are concurrent arguments made, so nothing more sentences. Judges may sentence concur- can be presented. 2) In a trial or rently out of compassion, plea bargain- court hearing, a final determination ing, or the fact that the several crimes of the facts by the jury or judge or a are interrelated. When the sentences judge’s decision on the law. (See also: run one after the other, they are con- conclusion of fact, conclusion of law) secutive sentences. conclusion of fact In a trial, the final condemn 1) When a public agency result of an analysis of the facts deter­mines that a building is unsafe or presented in evidence, made by the unfit for habitation and must be torn trier of fact (a jury or judge). When a down or rebuilt to meet building and judge is the trier of fact, he or she will health code requirements. 2) When present orally in open court or in a a govern­mental agency takes private written judgment the conclusions of ­property for public use under the right fact supporting the decision. of eminent domain, but constitutionally conclusion of law A judge’s final decision the property owner must receive just on a question of law which has been compensation. If an agreement cannot raised in a trial or a court hearing, be reached then the owner is entitled particularly those issues which are vital to a court deter­mination of value in to reaching a judgment. These may be a ­condemnation action (lawsuit), but presented orally by the judge in open the public body can take the property court, but are often contained in a ­immediately upon deposit of the esti- written judgment, such as an award of mated value. 3) To sentence a convicted damages or denial of a petition. defendant to death. 4) Send to prison.

83 condemnation condemnation See: eminent domain remainder beneficiary. George only has conditional ownership of the estate condemnation action A lawsuit brought because his ownership depends on Joan by a public agency to acquire private being dead when their mother dies. property for public purposes (schools, Also called contingent ownership. highways, parks, hospitals, redevelop- ment, civic buildings, for example), conditional resident A foreign-born or even for private development that person who, instead of being granted has a public benefit (rare). While the permanent resident status (a green government has the right to acquire card), is granted U.S. residence on the private property (eminent domain), a conditional, two-year basis. Near the owner is entitled under the Con- the end of the two years, the person stitution to receive just compensation must petition for the removal of the for the loss of his land, which will be conditions—in other words, prove determined by a court if necessary. continuing eligibility for the same status, with a request to convert to condition A term or requirement stated permanent resident status. Under in a contract whose occurrence or non- current law, people who apply for green occurrence determines the rights and cards as the spouse of a U.S. citizen duties of the parties to the contract. where the marriage is less than two (See also: concurrent condition, condi- years old at the time they’re approved tion precedent, condition subsequent) for U.S. residence, as well as all conditional bequest In a will, a gift that immigrant investors, are the only two will occur only if a stated condition is groups who are required to spend time met. For example, a will clause that says as conditional residents. “I give my house to my daughter Sarah conditional sale A sale of property or if she is married.” goods which will be completed only if conditional ownership Ownership in certain conditions are met by one or which the owner does not have full both parties to the transaction. Example: right to the property, but could acquire Hotrod agrees to buy Tappit’s 1939 full ownership if specific conditions are LaSalle for $1,000 cash if Tappit can fulfilled—the ownership is conditional get the car running by September 1. on those conditions. For example, conditional SSI payments Temporary SSI George is the alternate remainder payments made on the condition that beneficiary of his mother’s life the recipient get rid of certain assets in estate. Joan, his sister, is the primary

84 condone

an appropriate manner. They are made condominium A type of real property if an applicant for SSI has too many ownership in which each owner holds assets to qualify for that program. title to his or her individual unit and shares ownership jointly of common condition precedent An event or state of areas such as driveways, parking, eleva- affairs that must occur before some­ tors, outside hallways, and recreation thing else will be required to occur. In and landscaped areas. A homeowners’ a contract, a condition precedent is an association typically manages the com- event that must take place before the mon areas and oversees the covenants, parties must perform the agreement. conditions, and restrictions (CC&Rs) (Compare: condition subsequent) that apply to the property. Condomini- conditions of carriage The terms of the ums are often referred to as a common contract with an airline after purchas­ing interest development. a ticket. Conditions of carriage cover everything from baggage limitations to the amount of compensation the “Government can exist without law, but passenger can recover if injured on law cannot exist without government.” the flight. These provisions vary from —John Locke airline to airline. To read the conditions of carriage for an airline, either check its website or look in the fine print on condonation One person’s approval the back of the ticket (if there’s a print of another’s activities, constituting a version—even if there is, it may not defense to a fault divorce. For example, have room for the full contract). If if a wife did not object to her husband’s none of that works, the airline is legally adultery even though she was aware obligated to provide a copy. of it, and she later tries to use it as grounds for a divorce or the basis for condition subsequent An event or state a settlement in her favor, he could of affairs that, if it happens, defeats counter these efforts by arguing that or modifies an existing arrangement she had condoned his behavior. or discharges an existing duty. In a contract, a condition subsequent can condone To forgive, support, or overlook often terminate the duty of one party another person’s wrong or illegal to perform under the agreement. action, so that it appears the action (Compare: condition precedent) is acceptable to the person or entity condoning it.

85 confess confess In criminal law, to voluntarily confession of judgment Usually, a clause state that one is guilty of a criminal within a promissory note, allowing the offense. A confession must be truly creditor to, upon nonpayment by the voluntary (not forced by threat, torture, borrower, get a court judgment for the or trickery) and generally cannot be amount owed and in some cases collect admitted in trial if it is not. If the from the borrower’s assets, all without confession results from custodial giving the borrower advance notice. questioning, it generally cannot be confidence game A swindle in which the used at trial unless the defendant was perpetrator obtains money by gaining given and waived the so-called Miranda the victim’s trust. warnings prior to questioning. (See also: Miranda warnings) confidential communication Information exchanged between two people who confession Voluntary statement by an 1) have a relationship in which private accused, orally or in writing, in which communications are protected by law, the accused admits guilt of a particular and 2) intend that the information be crime or crimes kept in confidence. The law recognizes confession and avoidance A plea, or certain parties whose communications answer, to a complaint in a civil case, will be considered confidential and in which the defendant admits the protected, including spouses, doctor allegations in the lawsuit but alleges and patient, attorney and client, and other facts that, if found to be true priest and confessor. Communications by the trier of fact, will negate the between these individuals cannot be negative effect of the plaintiff’s claims. disclosed in court unless the protected For example, in a few states, a plaintiff party waives that protection. The who sues over injuries allegedly caused intention that the communication be by the defendant’s negligence will not confidential is critical. For example, recover any damages if the defendant if an attorney and his client are can prove that the plaintiff was in part discussing a matter in the presence also negligent (contributory negligence). of an unnecessary third party—for When a defendant admits having example, in an elevator with other acted negligently, but alleges that the people present—the discussion will not plaintiff was also careless, the defendant be considered confidential and may has entered a plea of confession and be admitted at trial. Also known as avoidance. privileged communication.

86 conjugal rights confidential relation A relationship of stamp the document with the filing intimacy and trust, especially one in date and add any handwritten notations which one person is in a position of to the document that exist on the greater knowledge or power. (See also: original, including dates and the fiduciary) judge’s signature. A conformed copy may or may not be certified—this is, confine See: imprison guaranteed by a court or government confirm­ation hearing A federal bank­ agency to be a true and exact copy of ruptcy court hearing at which the the original. judge decides whether or not a conforming loan A mortgage loan small debtor’s proposed Chapter 13 plan (for enough to be bought by Fannie Mae repayment of debts over several years) is or guaranteed by the Federal Housing feasible and meets legal requirements. Administration. The dollar limit on confiscate To take private property conforming loans is adjusted periodically for public use without reasonable and is higher in areas with a high cost of compensation, such as when the living. (Compare: jumbo loan) government confiscates an automobile confrontation The right of a criminal used to transport contraband. defendant, from the Sixth Amendment conflict of interest 1) A real or apparent to the Constitution, to object to the conflict between one’s professional witness and to cross-examine that or official duties and one’s private witness. interests. 2) A situation where one duty confusingly similar In trademark law, conflicts with another—for example, when a trademark, logo, or business if an attorney were to represent both name is so close to that of an already parties in a divorce proceeding. existing trademark, logo, or name conflict of laws A conflict of the laws that the public might misidentify the of two jurisdictions (such as two new mark with the older one. Such countries, two different states, or confusion may not be found if the state and federal law) when both are products or businesses are clearly not in applicable to a legal dispute. (Compare: the actual or potential product markets preemption) or geographic area of the other. conformed copy An exact copy of conjugal rights The intimate rights of a document filed with a court. To marriage, including comfort, compan- conform a copy, the court clerk will ionship, affection, and sexual relations.

87 connivance

Some states allow prisoners to have with these objectors sometimes call “conjugal visits,” including sexual inter- them “draft dodgers.” course, with their spouse or partner. conscious parallelism Price-fixing connivance 1) Ignoring another person’s between competitors that occurs wrongdoing, for example, by indirectly without an actual agreement between condoning an illegal act by another the parties. For instance, one company person. 2) In family law, a (somewhat raises its price for a service and other archaic) defense that says that a person competitors do the same. Can also be making claims against a spouse used to describe imitative activity over connived in the spouse’s bad behavior. terms other than price. For example, For example, a husband who invites his one airline starts to require double wife’s lover along on vacation may have miles for domestic trips and other connived in her adultery, and if he tried airlines follow suit. to gain an advantage in the divorce as a result, she could assert his connivance as a defense. The oldest Supreme Court justice was Olivier Wendell Holmes, who was 90 consanguinity An old-fashioned term when he retired in 1932. referring to the relationship of “blood relatives”—people who have a common ancestor. Consanguinity exists, for consecutive sentence Two or more example, between brothers and sisters sentences of jail time to be served but not between husbands and wives. one after another. For example, if a conscientious objector A person who convicted felon was sentenced to two refuses to serve in the military due to consecutive ten-year terms, the total religious or strong philosophical views sentence would be 20 years. (Compare: against war or killing. Refusing to concurrent sentence) answer a draft call is a federal felony, consent Voluntary agreement by a but when a person’s religious beliefs competent person to another person’s are long-standing and consistent (as proposition. with the Quakers) then the objection consent decree to service is excused. Conscientious A court order to which objectors may be required to perform all parties have agreed. It is often done some nonviolent work like driving an after a settlement between the parties ambulance. Those who do not agree that is subject to approval by the court.

88 consignee consent judgment See: consent decree must be founded on an exchange of one form of consideration for another. consent order See: consent decree Consideration may be a promise to consequential damages Damage or perform a certain act—for example, injury that does not directly and a promise to fix a leaky roof in return immediately result from a wrongful act, for a payment of $1,000—or a promise but is a consequence of the initial act. not to do something, such as build To be awarded consequential damages a second story on a house that will in a lawsuit, the damages must be a block the neighbor’s view (in return for foreseeable result of the initial act. money or something else). Whatever its particulars, consideration must be conservatee A person who requires a something of value to the people who court-appointed conservator to handle are making the contract, even if the personal and/or financial affairs. value is very low. Acts which are illegal (Compare: ward) or so immoral that they are against conservator Someone appointed by established public policy cannot serve a judge to oversee the affairs of an as consideration. Examples include incapacitated person. A conservator prostitution, gambling where it’s who manages financial affairs is often outlawed, hiring someone to break a called a “conservator of the estate.” One skater’s knee, or paying someone to who takes care of personal matters, such breach another agreement (back out of as health care and living arrangements, a promise). is known as a “conservator of the consign 1) To give goods to another to person.” Sometimes, one conservator sell; profits from the sale are generally is appointed to handle all these divided between the seller and the tasks. Depending on where you live, original owner. 2) To give goods to a a conservator may also be called a carrier for delivery. 3) To give over to guardian, committee, or curator. the custody or care of another. 4) To conservatorship A legal arrangement be destined for, as in “consigned to that gives an adult the court-ordered oblivion” or “consigned to a life of authority and responsibility to manage drudgery.” another adult’s financial affairs. consignee A person or business to whom consideration A benefit or right for something is consigned, typically goods which the parties to a contract must for sale or delivery. bargain. In order to be valid, a contract

89 consignment consignment The act of entrusting and sexual relations. The term may goods to a person or business who will arise in a lawsuit if a spouse brings a sell them for you (charging a fee or claim against a third party for “loss of commission for doing so), and return consortium” after the other spouse is the goods if unsold. injured or killed. Consolidated Omnibus Budget conspiracy An agreement by two or Reconciliation Act (COBRA) A more people to commit an illegal act federal law that enables employees and or to commit a legal act using illegal their families to continue health care means. Proving conspiracy requires coverage under an employer’s group evidence that the parties agreed to health plan even after they experience the plan before taking action. Proving an event—such as a layoff, termination, criminal conspiracy usually requires cut in hours, or divorce—that would evidence that some overt action otherwise end their coverage. Employees occurred in furtherance of the plan. and their families must pay the full Some conspiracies may give rise to both premium, but they get to pay the criminal and civil charges. For example, employer-negotiated group rate, which is a scheme by a group of salesmen to often less expensive than an individual sell used automobiles as new, could rate. This continued coverage lasts for be the basis for two actions: criminal 18 to 36 months, depending on the prosecution for fraud and conspiracy; event that made the employee eligible. and a civil action by victims of the scheme for damages for the fraud and consortium 1) A group of separate conspiracy. individuals or companies that come together to undertake an enterprise conspirator A person that is a party to or transaction that is beyond the a conspiracy—that is, someone that means of any one member. For enters into an agreement to commit example, a group of local businesses illegal acts, or to commit legal acts might form a consortium to fund using illegal means. and construct a new office complex. constable A peace officer for a particular 2) The duties and rights associated geographic area—most often a rural with marriage. Consortium includes county—who commonly has the power all the tangible and intangible benefits to serve legal papers, arrest lawbreakers, that one spouse derives from the and keep the peace. Depending on the other, including material support, state, a constable may be similar to a companionship, affection, guidance, marshal or sheriff.

90 constructive fraud constitution The fundamental, underly­ ing conditions are so intolerable that ing document which establishes the a reasonable person in the same situ- government of a nation or state. The ation would quit. For purposes of a United States Constitution, originally discrimination or harassment lawsuit, a adopted in convention on September constructive discharge is like any other 17, 1787, ratified by the states in 1788, tangible employment action. and thereafter amended 27 times, is the prime example of such a document; however, states also have constitutions. “The Constitution is either a superior paramount law, unchangeable by constitutional rights Rights given or ordinary means, or it is on a level with ordinary reserved to the people by the U.S. legislative acts.” Constitution, and in particular, the Bill —Chief Justice John Marshall, of Rights. in Marbury v. Madison constitutional tort A violation of one’s constitutional rights by a government constructive eviction When a landlord servant. provides housing that is so substandard construction The act of interpreting that a landlord has legally evicted the and giving meaning to a statute, law, tenant without following state eviction contract, or will when there is some rules and procedures. For example, ­ambiguity or question about its mean- if the landlord refuses to provide ing. Strict, or narrow, construction heat or water or refuses to clean up means considering only the literal an environmental health hazard, the words, whereas broad, or liberal, con- tenant has the right to move out and struction, means taking into account stop paying rent, without incurring societal and situational meanings to the legal liability for breaking the lease. language. constructive fraud When the circum- constructive a legal fiction for treating a stances show that someone’s actions situation as if it were actually so. (See give that person an unfair advantage also: constructive fraud, constructive over someone else by unfair means eviction, constructive notice, construc- ­(lying or not telling a buyer about tive possession) defects in a product, for example), the court may decide to treat the situation constructive discharge When an as if there was actual fraud even if all ­employee quits a job because work-

91 constructive notice

the technical elements of fraud have not and has a legal duty to deliver them been proven. to the rightful owner. Unlike other common trusts, a constructive trust is a constructive notice The fiction that temporary measure ordered by a court someone got notice even though actual to correct a wrong. notice was not personally delivered to that person. The law may provide that construe To determine the meaning of a public notice put on the courthouse a written document, statute, or legal bulletin board is a substitute for actual decision, based upon rules of legal notice. Or the court may authorize interpretation. service by publication when a spouse consulate U.S. consulates are branch has left the state to avoid service in a offices of U.S. embassies, located divorce action. The legal advertisement all over the world. Most consulates of the summons in an approved news­ accept and process nonimmigrant paper is treated as constructive notice, and immigrant (green card) visa just as if the summons and petition had applications. been served personally. Consumer Credit Counseling Service constructive possession When someone (CCCS) A nonprofit agency with offices does not have actual possession, but in a number of states. It offers free or has the power to control an asset, that low-cost debt and credit counseling. person has constructive possession. Having the key to a safe deposit box, Consumer Leasing Act A federal law for example, gives one constructive that requires written lease agreements possession. for personal property for more than four months (for personal, family, constructive receipt of income Income or household use), to include certain not physically received but treated by terms, including a statement of the the tax code as if it had been received number of lease payments and their because it is accessible to the recipient. dollar amounts, penalties for not For instance, when a business receives paying on time, and whether a lump a check from a client, it is considered sum payment is due at the end of the constructive income since the check agreement. can be cashed. consumer protection laws Federal and constructive trust A relationship that state laws established to protect retail arises when someone has wrongfully purchasers of goods and services from obtained title to or possession of assets

92 contingency

inferior, adulterated, hazardous, and causa mortis. (See also: gift in contem- deceptively advertised products, and plation of death) deceptive or fraudulent sales practices; contempt See: contempt of court these laws cover everything from food to cosmetics, from banking to fair contempt of court Behavior in or out housing. Most states have established of court that violates a court order, or agencies to actively protect the otherwise disrupts or shows disregard consumer. for the court. Refusing to answer a proper question, to file court papers consumer report Written or oral inform­ on time, to pay court-ordered child ation provided by a consumer reporting support, or to follow local court agency that relates to a person’s rules can expose witnesses, lawyers, credit­worthiness, credit standing, and litigants to contempt findings. credit capacity, character, personal Contempt of court is punishable by fine characteristics, or lifestyle, to be used or imprisonment. in employment decisions, to decide whether to grant the person credit, to contest To oppose, dispute, or challenge decide whether to rent to the person, or through formal or legal procedures. for other legitimate business purposes. For example, the defendant in a lawsuit Examples of consumer reports include almost always contests the case made by criminal background checks and credit the plaintiff. Or, a disgruntled relative reports. To request a consumer report may formally contest the provisions of about someone, the requester must a will. follow the procedures in the Fair Credit contiguous Connected or “next to”; Reporting Act. usually referring to adjoining pieces of consummation The actualization of a real estate. marriage. Sexual intercourse is required contingency A provision in a contract to “consummate” a marriage. Failure stating that some or all of the terms of to do so is grounds for divorce or the contract will be altered or voided by annulment. the occurrence of a specific event. For contemplation of death When anticipa- example, a contingency in a contract tion of death due to age, illness, injury, for the purchase of a house might state or mortal danger causes a person to that if the buyer does not approve make a gift, transfer property, or take the inspection report of the physical some other dramatic action. Also called condition of the property, the buyer does not have to complete the purchase.

93 contingency fee contingency fee See: contingent fee cases—award the successful lawyer between 20% and 50% of the amount contingent Uncertain or dependent on recovered. Lawyers representing something else. (See also: contingent defendants charged with crimes may beneficiary, contingent interest, not charge contingency fees. In most contingent fee) states, contingency fee agreements must contingent annuity An annuity whose be in writing. amount of payment (or the payee) is not contingent interest An interest that certain and depends on a specific future a party will receive only if specific event. conditions occur. For example, Bill leaves his “interest in The Centerville And Justice for All. (1979) Al Pacino Cafe to Sarah, if she is still living in fights corruption in the legal system, Centerville.” If Sarah is not living in with a climactic explosion at a crooked judge. Centerville when Bill dies, she will not Jack Warden, John Forsythe, Lee Strasberg, receive his interest in the cafe. Christine Lahti, Craig T. Nelson. contingent ownership See: conditional ownership contingent beneficiary 1) An alternate contingent remainder A future interest beneficiary named in a will, trust, in property that will pass only if certain or other document. 2) Any person circumstances occur, or that will pass entitled to property under a will if one to an unknown person or entity. For or more prior conditions are satisfied. example, John makes a will that leaves For example, if Fred is entitled to his farm to Frank for life and then, if take property under a will only if he’s Scotty has gone to college by the time married at the time of the will maker’s Frank dies, to Scotty. death, Fred is a contingent beneficiary. contingent trust A trust that is not contingent fee A method of paying currently operational, but will become a lawyer for legal representation by operational under specific conditions. which, instead of an hourly or per job contingent will A will that only takes fee, the lawyer receives a percentage effect if specific conditions occur. of the money her client obtains after settling or winning the case. Often continuance The postponement of a contingency fee agreements—which are hearing, trial, or other scheduled court most commonly used in personal injury proceeding, at the request of one or

94 contract

both parties, or by the judge without contract A legally binding agreement consulting them. Unhappiness with involving two or more people or long trial court delays has resulted in businesses (called parties) that sets the adoption by most states of “fast forth what the parties will or will not track” rules that sharply limit the do. Most contracts that can be carried ability of judges to grant continuances. out within one year can be either oral or written. Major exceptions include continuing objection An objection to contracts involving the ownership of certain questions or testimony during real estate and commercial contracts a trial which has been overruled by the for goods worth $500 or more, judge, but the attorney who made the which must be in writing to be objection announces that he or she is enforceable. (See: statute of frauds) A continuing the objection to all other contract is formed when competent questions on the same topic or with the parties—usually adults of sound same legal impropriety in the opinion mind or business entities—mutually of the attorney. Thus there is no need agree to provide each other some for an objection every time the same benefit (called consideration), such as question or same subject is introduced. a promise to pay money in exchange continuing trespass A repeated or on­ for a promise to deliver specified goods going (not one-time) trespass (unlawful or services or the actual delivery of entry or possession), especially onto those goods and services. A contract real property. For example, building a normally requires one party to make road or structure that extends onto a a reasonably detailed offer to do neighbor’s property, or piling up rocks something—including, typically, the or garbage there, would be a continuing price, time for performance, and other trespass. essential terms and conditions—and the other to accept without significant contra Latin for against or opposite change. For example, if I offer to sell to. This usage is usually found in you ten roses for $10 to be delivered legal writing in statements like: “The next Thursday and you say I“ t’s a deal,” decision in the case of Hammerhead we’ve made a valid contract. On the v. Nail is contra to the rule stated in other hand, if one party fails to offer Keeler v. Beach.” something of benefit to the other, contraband Property that is illegal there is no contract. For example, if to possess, produce, distribute, or Maria promises to fix Josh’s car, there transport. is no contract unless Josh promises

95 contract for deed

something in return for Maria’s contributory negligence A doctrine of services. (See: bilateral contract, common law that if a person’s own unilateral contract) negligence contributes to causing an accident in which that person is contract for deed A contract used for injured, the injured party can’t collect seller financing where the seller will any damages (money) from another keep title to the property until the party who caused the accident. buyer pays off the loan. After the buyer Because this doctrine often ended in pays off the entire loan, the seller signs unfair results (where a person only a deed transferring title to the buyer. slightly negligent was prohibited from contract of adhesion See: adhesion recovering damages from a person who contract was much more so), most states now use a comparative negligence test instead, contractor 1) A person or entity that in which the relative percentages of enters into a contract. 2) A person negligence by each person are used or entity that agrees to construct to determine how much the injured a building or to provide or install person recovers. specialized portions of a construction project. The party responsible for the control The power to direct, regulate, overall job is the general contractor, manage, oversee, or restrict the affairs, and those hired to construct or install business, or assets of a person or entity. certain parts (electrical, plumbing, controlled substance A drug that has roofing) are subcontractors, who are been declared by federal or state law responsible to the general contractor to be illegal for sale or use, but may be and not to the property owner. dispensed by prescription. The basis contribution 1) The sharing of a loss for control and regulation may be the or discharging of a debt by several danger of addiction, physical or mental persons who may be jointly responsible. harm, the potential for trafficking by Under partnership law, for example, illegal means, or dangers posed by if one partner pays a judgment made those who have used the substances. against the partnership, that partner controlling law The laws of the may seek contributions from the other state which will be relied upon in partners. 2) A donation to a charitable interpreting or judging disputes organization for which no consideration involving a contract, trust, or other is sought in return. documents. Quite often an agreement

96 cooling-off rule

will state as one of its provisions that conveyee A person or entity to which the controlling law will be that of a property is conveyed. particular state. conveyor A person or entity that transfers controversy A disagreement, argument, or delivers ownership of property to or quarrel. See also: actual controversy another. contumacy The refusal to follow a court convict 1) To find or prove someone order; contempt of court. guilty of a crime or offense after a court trial. 2) A person who has been contutor (kahn-too-tuhr) A joint convicted of a crime and is serving a guardian of a ward. sentence. conversion The civil wrong (tort) of conviction A finding by a judge or jury wrong­fully using another’s personal that the defendant who has been on property as if it were one’s own, trial is guilty of the crime with which holding onto another’s property that he or she was charged. accidentally comes into one’s hands, or purposely giving the impression that cookie Information that a website places the assets of another belong to oneself. and stores on a visitor’s hard drive The true owner has the right to sue for so that the website can retrieve the the property or the value and loss of use information when the visitor returns to of it. The converter can be guilty of the the site. For example, a website may use crime of theft. a cookie to retrieve a visitor’s name and address so the visitor doesn’t have to enter that information again. A website “For where no law is, there is no can legally use cookies to personalize a transgression.” visitor’s experience, to track a visitor’s —The Bible, Romans 4:15 movements on a site, or to target a visitor for specific advertisements. convey To transfer ownership (title) of cooling-off rule A rule that allows you property to another through a written to cancel a contract within a specified document such as a deed. time period (typically three days) after signing it. Federal cooling-off conveyance A document, such as a deed rules apply this three-day grace period or will, that transfers property from one to sales made anywhere other than party to another. a seller’s normal place of business.

97 cooperative

Various states have cooling-off rules agrees to the recommendation before that sometimes apply even longer the plea is entered (becomes final). cancellation periods to specific types coparcenary 1) Joint ownership. 2) An of sales, such as dancing lessons and estate that is jointly inherited, in equal timeshares. shares, from a single ancestor. cooperative An association of individuals, copartner A partner (owner) of a partner­ businesses, farmers, ranchers, or manu­ ship. The prefix “co” is a redundancy, facturers who cooperate in marketing, since a partner is a member of partner­ shipping, and related activities (some­ ship. The same is true of the term times under a single brand name) “copartnership.” to sell their products efficiently, and then share the profits based on the copy For copyright purposes, the physical production, capital, or effort of each. form in which creative expression is Cooperatives are democratically owned reproduced and retained over time, no and operated. matter how brief. Copies include such things as books, magazines, photo­copies, cooperative housing An arrangement computer disks, and tape recordings. in which an association or corporation The exclusive right to prepare copies of owns a group of housing units and the an original work is one of the primary common areas for the use of all the rights protected by a copyright. residents. The individual participants own a share in the cooperative which copyright A bundle of exclusive rights entitles them to a proprietary lease to granted to the author of a creative work occupy a certain part of the property, such as book, movie, song, painting, to have equal access to the common photograph, design, computer software, areas, and to vote for members of the or architecture. These rights include the Board of Directors which manages the right to make copies, authorize others cooperative. (Compare: condominium) to make copies, make derivative works, sell and market the work, and perform cop a plea Slang for a plea bargain the work. Any one of these rights can in which an accused defendant in a be sold or licensed separately through criminal case agrees to plead guilty or transfers of copyright ownership. “no contest” to a crime. In return, the Copyright rights are acquired auto­ prosecutor promises to recommend a matically once the work is fixed in lenient sentence, or may agree to drop a tangible medium of expression. some of the charges. Often the judge Registration of the work with the

98 corporate charter

Copyright Office offers additional some) of the rights granted under benefits to the copyright owner. S( ee copyright law, usually the author of the also: fixed in a tangible medium of work. (See also: author) expression) copyright registration The status of a copyright notice The formal notice work that meets the requirements of the consisting of the copyright symbol U.S. Copyright Office. Registration is (or word, copyright), plus the date not required for copyright protection of publication and the owner’s but it is required before a court action name, placed on published copies may be brought to stop infringement. of a copyrighted work. For works Registration also confers strategic published in the U.S. after March 1, benefits in an infringement action, 1989, copyright notice is not required. including a presumption that the A notice is still useful to remind registered owner is the rightful owner, others that the work is copyrighted, as well as the ability to collect statutory to steer a would-be user in the right damages and attorney fees. direction to obtain permission, and to preclude a defense of “I didn’t know it was copyrighted” if someone uses Judge Priest. (1934) Will Rogers plays a the copyrighted material without folksy Southern judge in a comedy based permission. (See also: published work) on Irvin S. Cobb stories. The film has often been called out for its blatant depiction of Copyright Office The branch of the racial stereotypes. With Tom Brown, Anita Library of Congress that oversees the Louise, Stepin Fetchit. implementation of the federal copyright laws. The Copyright Office issues regulations, processes applications for coroner A county official who determines registration of copyrights, and accepts the cause of death of anyone who and (for some types of works) stores dies violently (by attack or accident), deposits made in connection with suddenly, or suspiciously. registration. The Copyright Office also corporate charter A document filed with issues opinions on whether certain state authorities (usually the Secretary types of items are subject to copyright of State or Division of Corporations, protection. depending on the state) to form a copyright owner The person or entity corporation. As required by the general who retains legal control over all (or incorporation law of the state, the

99 corporate opportunity

charter normally includes the purpose corporation A legal structure authorized of the corporation, its principal place by state law that allows a business of business, the names of the initial to organize as a separate legal entity directors who will control it, and from its owners. A corporation is often the amounts and types of stock it is referred to as an “artificial legal person,” authorized to issue. In most states, meaning that, like an individual, it this document is called the articles of can enter into contracts, sue and be incorporation. sued, and do the many other things necessary to carry on a business. One corporate opportunity A business advantage of incorporating is that a opportunity that becomes known to corporation’s owners (shareholders) are a director or officer of a corporation legally shielded from personal liability or LLC due to his or her position for the corporation’s liabilities and debts within the company. The director or (unpaid taxes are often an exception). officer owes a duty of loyalty to the (See also: nonprofit corporation, C company not to use the opportunity corporation, S corporation) or knowledge for his or her own benefit unless the company gives its corporeal A thing that has a physical permission. existence, as opposed to something incorporeal, like a right, which does corporate resolution A written not. Also called tangible. document that describes an action taken and approved by the board corporeal ownership The ownership of of directors of a corporation. For actual things, such as land, money, example, when a corporation issues a or a business. (Compare: incorporeal stock dividend, the declaration of the ownership) dividend is a corporate resolution. A corpus From the Latin for body, a term board might also pass a resolution to used to refer to the principal of a trust, take out a loan, buy or sell real estate, as distinguished from interest earned amend the corporate bylaws, or issue on that principal. more stock. Resolutions are recorded with the corporate minutes. corpus delicti (core-pus dee-lick-tie) Latin for the “body of the crime.” Used corporate trustee A bank or other to describe physical evidence that a financial institution that provides crime has been committed, such as trustee services for various types of the corpse of a murder victim or the trusts. charred frame of a torched building. It’s

100 cotenants

used to refer to the underlying principle require a cosigner when renting to a that, without evidence of a crime student or someone with a poor credit having been committed, it would be history. unjust to convict someone. cost basis See: basis corpus juris (kor-pes jur-es) Latin for cost bill A list of claimed court costs “the body of law,” meaning a com- submitted by the prevailing (winning) pendium of all laws. There are several party in a lawsuit after the judge issues encyclopedias of the law which fit this a judgment. Statutes limit what can be definition, the most famous of which included in these costs. is Corpus Juris­ Secundum. Several states have such series of books covering ex- cost of completion The amount of planations of the law of that state. money damages that will be awarded when a contract has been breached by corroborate To confirm and sometimes the failure to perform; the cost will add substantiating (reinforcing) reflect the amount of money required testimony to that of another witness or to finish the job. For example, when a a party, particularly in a trial. general contractor breaches a contract corroborating evidence Evidence that by not completing a house, the cost strengthens, adds to, authenticates, or of completion is the actual cost of confirms already existing evidence. bringing in a new builder to complete the construction. corroborating witness A witness whose testimony supports or confirms cotenancy The situation when more testimony already given. than one person has an interest in real property (such as by signing a rental cosign To sign a document—such as agreement to share an apartment) at a promissory note or lease—along the same time. (See also: tenancy in with another person in order to share common, joint tenancy, tenancy by the responsibility for the obligation. entirety) cosigner A person who signs his or cotenants Two or more tenants who rent her name to a loan agreement, lease, the same property under the same lease or credit application. If the primary or rental agreement. Each cotenant is debtor does not pay, the cosigner is 100% responsible (also known as joint fully responsible for the loan or debt. and severally liable) for carrying out Many people use cosigners to qualify the rental agreement, which includes for a loan or credit card. Landlords may

101 cotrustee

paying the entire rent if the other criminal case, each count is a statement tenant skips town and paying for of a different alleged crime. damage caused by the other tenant. In countable resource Property that the addition, if one cotenant violates the SSI and Medicaid programs consider lease or rental agreement, the landlord available to an applicant or recipient may evict all of them. when determining that person’s cotrustee One of two or more trustees eligibility for benefits. serving at the same time. Depending counterclaim A defendant’s court papers on the language of the trust document, that seek to reverse the thrust of the the cotrustees may be required to act lawsuit by claiming that, despite the together, or each may be allowed to act plaintiff having brought the lawsuit in independently. the first place, the plaintiff is actually wholly or partly at fault concerning “[The legal profession is] ever illustrating the same set of circumstances. The the obvious, explaining the evident, counterclaim goes on to allege that expatiating the commonplace.” the plaintiff thus owes the defendant —Prime Minister Benjamin Disraeli money damages or other relief. A counterclaim is commonly but not always based on the same events counsel 1) The lawyer or lawyers that form the basis of the plaintiff’s representing a client. For example, on complaint. For example, a defendant the advice of counsel, the defendant did in an auto accident lawsuit might file a not take the stand. 2) Used as a verb, to counterclaim alleging that it was really give legal advice. the plaintiff who caused the accident— or could claim that, as long as they’re counselor See: attorney in court, the plaintiff should pay for count In a civil case, each separate state­ having chopped down the defendant’s ment in the complaint that, standing tree the previous week. alone, would support a lawsuit. For counterfeit To fraudulently make money, example, a complaint might begin a document, art, or other item which with a “first count” for negligence, is forged or created to look real, and with detailed factual allegations; a intended to pass for real. second count for breach of contract, a third count for debt, and so forth. counteroffer The rejection of an offer to Also known as a “cause of action.” In a enter into a contract that simultaneously

102 court calendar

makes a different offer, changing the legal issues and claims are heard and terms of the original offer in some way. determined. In the United States, there For example, if a buyer offers $5,000 are essentially two systems: federal for a used car, and the seller replies that courts and state courts. The basic he wants $5,500, the seller has rejected federal court system has jurisdiction the buyer’s offer of $5,000 and has over cases involving federal statutes, made a counteroffer to sell at $5,500. constitutional questions, actions The legal significance of a counteroffer between citizens of different states, is that it completely voids the original and certain other types of cases. There offer. are also special federal courts such as bankruptcy and tax courts. Each state counterpart In the law of contracts, a has local trial courts, which include written paper that is one of several courts for misdemeanors, smaller documents that constitute a contract, demand civil actions (called municipal, such as a written offer and a written city, justice, or some other designation), acceptance. If the parties are in and then superior or district courts different localities, often a contract is to hear felonies, estates, divorces, executed in several counterparts that and major lawsuits. Some states are the same, but each counterpart is have speciality courts such as family, signed by a different party. surrogate, and domestic relations. Small counter wills See: mutual wills claims courts are an adjunct of the lowest courts handling lesser disputes. county attorney A lawyer who represents a county in civil matters and litigates court calendar A list of the cases and violations of county ordinances. hearings that will be held by a court on a particular day, week, or month. course of employment The hours and Because the length of time it will take circumstances of an employee’s job. An to conduct a particular hearing or employer is generally responsible for trial is at best a guess and many courts actions an employee takes within the have a number of judges, accurately course of employment. An employee scheduling cases is difficult, with the who is injured in the course of employ­ result that court calendars are often ment is generally entitled to workers’ revised and cases are often heard later compensation. than initially planned. A court calendar court Any official tribunal presided is sometimes called a docket, trial over by a judge or judges in which schedule, or trial list.

103 court costs court costs The fees charged for the use implied, or claims referred by Congress. of a court, including the initial filing It sits in Washington, DC, and is fee, fees for serving the summons, composed of five judges. Some states complaint, and other court papers, fees also have a court of claims. to pay a court reporter to transcribe Court of Customs and Patent Appeals depositions (pretrial interviews of The court that previously handled witnesses) and in-court testimony, appeals from determinations by the and, if a jury is involved, to pay the U.S. Patent and Trademark Office. daily stipend of jurors. Often costs to Appeals are now heard by the Court photocopy court papers and exhibits are of Appeals for the Federal Circuit also included. Court costs must be paid (CAFC). (See also: Court of Appeals by both the plaintiff and the defendant for the Federal Circuit (CAFC)) as the case progresses. In many types of cases, however, the losing party is held court of equity Courts that handle responsible for both parties’ costs. lawsuits requesting remedies other than monetary damages, such as writs, court docket See: docket injunctions, and specific performance. court-martial 1) A military court for Such courts existed, separate from trying offenses of the Uniform Code courts of law, under English common of Military Justice by members of the law and in several states. Federal armed services. 2) To charge a member bankruptcy courts are an example of the military with an offense against of courts that continue to operate as military law. courts of equity. Compare: court of law court of appeal(s) 1) Any court (state Court of International Trade A U.S. or federal) that hears appeals from federal court that provides judicial trial courts or lower appeals courts. review of civil actions arising out of 2) The intermediate courts in most import transactions and federal laws jurisdictions—that is the courts concerning international trade matters. positioned between trial courts and Formerly called the U.S. Customs the courts of last appeal (usually the Court. supreme court). court of law Any tribunal within a Court of Claims A U.S. federal court judicial system. Under English com­ established in 1855 to hear monetary mon law and in some states, it was claims against the United States govern­ a court that heard only lawsuits in ment, based on contracts, express or which money damages were sought, as

104 covenants, conditions, and restrictions

distinguished from a court of equity, and Louisiana, in which the spouses which could grant specific remedies. promise that they’ll participate in That distinction has dissolved and marriage counseling before filing for today every court (with the exception of divorce and agree to a longer waiting federal bankruptcy courts) is a court of period before the divorce can be final. law. (Compare: court of equity) The filing spouse also must allege fault grounds for the divorce. (See also: fault court order See: order divorce, no-fault divorce) court reporter The person who records every word that is said during official court proceedings (hearings and trials) “A lawyer has no business with the justice and depositions, and who prepares a or injustice of the cause which written transcript of those proceedings he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The upon the request of the judge or a justice or injustice of the cause is to be decided party. by the judge.” court trial A trial in which the judge —Samuel Johnson ­decides factual as well as legal ques- tions, and makes the final judgment. (Compare: jury trial) covenant not to compete See: noncom­ petition agreement court witness A witness called by the court. For example, a judge may call an covenant of quiet enjoyment See: quiet expert witness to clarify an issue for the enjoyment court. covenants, conditions, and restrictions covenant An agreement, contract, or A set of rules, commonly called written promise between two parties “CC&Rs,” that governs the use of that constitutes a pledge to do or real estate, usually enforced by a refrain from doing something. In homeowners’ association. For example, the case of real property, covenants CC&Rs may tell you how big your are found in deeds or in documents house can be, how you must landscape that bind everyone who owns land in your yard, or whether you can have a particular development. (See also: pets. CC&Rs “run with the land,” covenants, conditions, and restrictions) meaning any subsequent owner must also abide by them. Most state laws covenant marriage A type of marriage require that a copy of the CC&Rs available only in Arizona, Arkansas,

105 covenant that runs with the land

be recorded with the county land bankruptcy law, a debtor must undergo records office and be provided to any credit counseling with an approved prospective purchaser. provider before filing for bankruptcy. covenant that runs with the land A credit file See: credit report formal agreement or promise that credit insurance An insurance policy a passes with land from owner to owner lender requires a borrower to purchase so that the land cannot be conveyed to to cover a loan. If the borrower dies a new owner without the covenant. or becomes disabled before paying off cramdown In Chapter 13 bankruptcy, a the loan, the policy will pay off the reduction in the amount of a secured remaining balance. debt the debtor must repay to the creditor A person or entity (such as a replace­ment value of the collateral bank or credit card company) to whom securing the debt. For example, if a a debt is owed. debtor owes $5,000 on a car that’s worth only $3,500, a cramdown would creditor’s claim 1) A written claim filed reduce the amount of the debt that had in federal bankruptcy court by a person to be repaid in Chapter 13 to $3,500. or entity owed money by a debtor who has filed for bankruptcy. 2) A written credibility The quality making testimony claim filed in probate court by a person worthy of belief. or entity owed money by a person who credible witness A witness whose testi­ has died. State law sets a deadline, mony is believable based on his or usually a few months, for filing a claim her experience, knowledge, training, in probate court. If the executor or and ­appearance of honesty and forth- administrator in charge of the probate rightness. denies the claim, the creditor can request a court hearing. credit See: tax credit creditor’s rights The legal procedures credit bureau See: credit reporting and rights available to creditors for agency collecting debts and judgments. credit counseling Counseling that credit report A written account of a ­explores the possibility of repaying debts consumer’s credit history prepared outside of bankruptcy and educates the by a credit reporting agency. Credit debtor about credit, budgeting, and reports generally include information financial management. Under the 2005 on loans, credit cards, and other bills

106 crime of passion

and accounts, as well as a record of the of promoting savings with fair interest consumer’s addresses and employers. To rates and offering loans at reasonable get and use a consumer’s credit report, rates. The National Credit Union a business must follow the procedures Administration (NCUA) charters and laid out in the Fair Credit Reporting supervises federal credit unions. Act. crime A type of behavior that is has been credit reporting agency A private com- defined by the state as deserving of pany that collects and sells information punishment, which usually includes about a person’s credit history. Clients, imprisonment in the county jail or such as banks, mortgage lenders, credit state or federal prison. Crimes and their card companies, landlords, and poten- punishments are defined by Congress tial employers, use the information to and state legislatures. screen applicants. There are three major crime against nature An archaic term credit reporting agencies, Equifax, used to describe sexual practices Experian, and TransUnion, and they deemed deviant or not natural by a are regulated by the federal Fair Credit legislature or a court. Examples range Reporting Act. from bestiality (intercourse between a credit score Numerical calculation human and an animal) to necrophilia that creditors use to evaluate the (intercourse with a dead body). Few creditworthiness of someone applying states have “crime against nature” for credit, such as a mortgage or credit statutes on the books, and any that card. High credit scores (over 700) still include consensual sexual acts, indicate less risk that you will default such as sodomy, between adults are on payments, and low scores (under unconstitutional under a 2003 United 400) indicate potential problems. States Supreme Court decision, Credit scores are based on information Lawrence v. Texas. in your credit report, such as bill- crime of passion A crime committed paying history and outstanding debt. while in the throes of passion, with The biggest credit scoring company is no opportunity to reflect on what is Fair Isaac Corporation (FICO). happening and what the person is credit shelter trust See: bypass trust about to do. For example, a husband who discovers his wife in bed with a credit union A cooperative financial lover and who attacks and kills the institution owned and controlled by its lover in a blind rage has committed a members and operated for the purpose

107 criminal

crime of passion. Because the husband criminal calendar may include arraign- has been overcome with emotion, he ments, bail settings, cases continued lacks the specific intent to kill, which (put off) awaiting a plea, changes of is necessary for a conviction of murder. pleas, setting hearing or trial dates, If a jury believes that he acted in the motions brought by attorneys, sentenc- heat of passion, they will convict him ing hearings, hearings to review reports only of manslaughter, which does not from probation officers, appointing require an intent to kill. (See also: public defenders or other attorneys, manslaughter, specific intent) and other business concerning criminal cases. criminal 1) A popular term for anyone who has committed a crime, whether convicted of the offense or not. More Compulsion. (1959) Based on the 1920s properly, it applies only to those actually Loeb-Leopold thrill killing by spoiled rich convicted of a crime. Repeat offenders young men, the highlight is Orson Welles’s are sometimes called habitual criminals. encapsulated version of Clarence Darrow’s 2) Certain acts or people involved in or argument against the death penalty. With relating to a crime. Examples include Dean Stockwell, Diane Varsi, E.G. Marshall. “criminal taking,” “criminal conspiracy,” a “criminal gang.” criminal case A lawsuit brought by a criminal attorney A popular term for an prosecutor employed by the federal, attorney who specializes in representing state, or local government that charges people charged with crimes, at the trial a person with the commission of a or appellate level. Many lawyers handle crime. criminal defense and also have other clients. In some states, the licensing criminal complaint See: information agency that regulates the practice of criminal insanity A mental defect or law certifies lawyers as “criminal law disease that, as understood in most specialists” based on experience and states, makes it impossible for a person extra training in that field. to know what he or she is doing; or if criminal calendar The list of criminal he or she does know, to know that what ­cases to be called in court on a particu- they are doing is wrong. Some states lar day. The parties charged and their define as insane those defendants who attorneys are given a written notice acted under an irresistible impulse, even of the time and place to appear. The if they knew their actions were wrong.

108 cross-examination

Defendants who are criminally insane adjudicating, and punishing individuals cannot be convicted of a crime, because for violating criminal laws. The rules, criminal conduct involves the conscious whether federal or state, may cover intent to do wrong—a choice that the ­procedural issues such as criminal criminally insane cannot meaningfully arraignment, bail, pretrial release, make. (See also: irresistible impulse test, preliminary hearings, plea bargaining, McNaghten Rule) criminal trials, and criminal discovery. (Compare: civil procedure) criminal justice A generic term for the procedure by which criminal conduct cross-claim See: cross-complaint is investigated, arrests made, evidence cross-complaint Sometimes called a gathered, charges brought, defenses cross-claim, legal paperwork that a raised, trials conducted, sentences defendant files to initiate his or her own rendered, and punishment carried out. lawsuit against the original plaintiff, criminal law Laws written by Congress a codefendant, or someone who is not and state legislators that make certain yet a party to the lawsuit. A cross- behavior illegal and punishable by complaint must concern the same fines and/or imprisonment. Criminal events that gave rise to the original law also includes decisions by appellate lawsuit. For example, a defendant courts that define crimes and regulate accused of causing an injury when she criminal procedure in the absence of failed to stop at a red light might cross- clear legislated rules. By contrast, civil complain against the mechanic who laws are not punishable by imprison­ recently repaired her car, claiming that ment. In order to be found guilty of his negligence resulted in the brakes a criminal law, the prosecution must failing and that, therefore, the accident show that the defendant intended to act was his fault. In some states where the as he did; in civil law, you may some­ defendant wishes to make a legal claim times be responsible for your actions against the original plaintiff and no even though you did not intend the third party is claimed to be involved, consequences. For example, civil law a counterclaim, not a cross-complaint, makes you financially responsible for should be used. a car accident you caused but didn’t cross-examination At trial, the oppor- intend. tunity to question any witness who criminal procedure The legal rules deal- testifies on behalf of any other party ing with investigating, prosecuting, to the lawsuit (in civil cases) or for the

109 cross-licensing

prosecution or other codefendants (in out by juries with wide discretion and criminal cases). The opportunity to little guidance or applied to insane or cross-examine usually occurs as soon mentally retarded defendants, is cruel as a witness completes his or her initial and unusual punishment. There is still testi­mony, called direct testimony. much debate about whether certain Cross-examiners attempt to get the wit- methods of carrying out the death ness to say something helpful to their penalty, including lethal injection, side, or to cast doubt on the witness’s violate the Eighth Amendment’s ban on testimony by eliciting something that cruel and unusual punishment. reduces the witness’s credibility—for cruelty Any act of inflicting unnecessary example, that the witness’s eyesight is emotional or physical pain. Cruelty or so poor that she may not have seen an mental cruelty is the most frequently event clearly. When a witness’s direct used fault ground for divorce because testimony ends up being hostile to the as a practical matter, courts will accept party that called the witness, sometimes minor wrongs or disagreements as that party’s lawyer is allowed to cross- sufficient evidence of cruelty to justify ­examine his own witness. the divorce. Now that every state has cross-licensing The sharing of patent some version of no-fault divorce, cruelty rights through licensing agreements is rarely used as a ground for divorce. so that businesses can use each other’s cruelty to animals A crime that is defined technology and not fear infringement differently in different states and lawsuits. municipalities, but usually involves the cruel and unusual punishment Punish­ willful infliction of pain, suffering, or ment that is extremely excessive in death on an animal, or the intentional relation to the crime, shocking to or malicious neglect of an animal. ordinary sensibilities, or equivalent CSI effect A phenomenon reported by to torture. It is prohibited, but not prosecutors who claim that television defined, by the Eighth Amendment to shows based on scientific crime solving the U.S. Constitution. The definition of have made actual jurors reluctant to cruel and unusual punishment changes vote to convict when, as is typically over the years, as the courts respond to true, forensic evidence is neither “evolving standards of decency.” The necessary nor available. U.S. Supreme Court has ruled that the death penalty, if it could be meted culpability See: culpable

110 current monthly income culpable Sufficiently responsible for rather than being limited to 1,000 criminal acts or negligence to be at for each of five candidates and always fault and liable for the conduct. being outvoted by shareholders with 1,001 or more shares. Cumis counsel An attorney employed by a defendant in a lawsuit when there curator See: conservator is an insurance policy supposedly cure To eliminate or correct a violation covering the claim, but there is a or defect. For example, a landlord’s conflict of interest between the cure or quit notice gives the tenant a insurance company and the insured set amount of time to correct, or cure, defendant. Such a conflict might arise a lease violation or face an eviction if the insurance company is denying lawsuit. full or partial coverage. In California, the defendant can demand that the cure or quit The type of written notice insurance company pay the attorney given to a tenant by a landlord, telling fees of a selected attorney rather than the tenant that he or she must cease use an insurance company lawyer. The a certain behavior within a certain term is derived from the name of a number of days, or move out. If the 1984 California case. tenant does neither, the landlord may proceed with an eviction lawsuit in cum testamento annexo See: administra- most situations. Common reasons for tor with will annexed. a cure or quit notice are having a pet cumulative sentence See: consecutive in violation of a no-pets lease clause, sentence causing a nuisance or disturbance, and having an unauthorized occupant in cumulative voting In corporations, a the rental. system of voting by shareholders for directors in which the shareholder can current monthly income As defined multiply his or her voting shares by the by the 2005 amendments to the number of candidates and vote them bankruptcy law, a debtor’s average all for one person for director. This is monthly gross (before tax) income over intended to give minority shareholders the six months before the debtor files a chance to elect at least one director. for bankruptcy. If the debtor’s income For example, there are five directors to has recently declined—for example, be elected and 10,000 shares issued. A because the debtor lost a job in the last shareholder with 1,000 shares could few months—then his or her current vote 5,000 for his or her candidate monthly income calculated according

111 curtesy

to this formula could be much more under one’s control. 3) Holding an than the debtor is actually earning accused or convicted person in the each month when he or she files for control of the state, beginning with the bankruptcy. The debtor’s current arrest of the person. monthly income is used to determine whether the debtor can file for Chapter 7 bankruptcy, among other things. “The Constitution is either a superior paramount law, unchangeable by curtesy See: dower and curtesy ordinary means, or it is on a level with ordinary legislative acts.” custodial interference The taking of a child from a parent with the intent to —Chief Justice John Marshall, in Marbury v. Madison interfere with that parent’s physical custody of the child. This is a crime in most states, even if the taker also has custody (of a child) The legal authority custody rights. to make decisions affecting a child’s custodial parent A parent who has interests (legal custody) and the sole custody or primary custody of a responsibility of taking care of the child following divorce. (Compare: child (physical custody). When parents noncustodial parent) separate or divorce, they may share legal and physical custody, or one custodian A term used by the Uniform parent may have physical custody with Transfers to Minors Act (UTMA) and the other parent having visitation. Uniform Gifts to Minors Act (UGMA) (See also: joint custody, sole custody, for the person named to manage physical custody, legal custody) property left or given to a child under the terms of either of those Acts. The Customs and Border Protection (CBP) custodian manages the property until Formerly referred to as the Border the child reaches the age specified by Patrol, this is now an agency within state law—21, in most states. Then the the Department of Homeland Security child receives the property outright, (DHS). One of its responsibilities is and the custodian has no further role in to keep the U.S. borders secure from its management. people crossing illegally. Another one is to meet travelers and returning custody 1) In family law, the right to residents arriving at U.S. airports and make decisions about or physically border posts, and to check their visas or live with a child. 2) Holding property other admission documents in order to

112 cy pres doctrine

decide whether they should be allowed Victims of cybersquatting can also use into the United States. If not, CBP the provisions of the Uniform Domain has the power to order them to return Name Dispute Resolution Policy home immediately. adopted by ICANN, an international tribunal administering domain names. Customs Court See: Court of Interna- tional Trade cy pres doctrine (see-pray-doctrine) A doctrine used to give a gift to a similar cybersquatting The practice of acquiring beneficiary when the true beneficiary a business name, trademark, or celebrity no longer exists or is not available. The name as a domain name, hoping to later cy pres doctrine is most often used with profit by reselling the domain name back charitable gifts when the charity named to the company or person who has been in an estate planning document no disadvantaged. The Anti­cybersquatting longer exists. In that case, the trustee Consumer Protection Act of 1999 or court may use the cy pres doctrine authorizes a cybersquatting victim to to give the gift to a similar charity to file a federal lawsuit to regain a domain match the donor’s intention as closely as name or sue for financial compensation. possible.

113 D

D.A. See: District Attorney interstate commerce included the authority to promote commerce as well damages 1) In a lawsuit, the harm caused as prohibit it, a position argued in a to a party who is injured. 2) In a law­ dissent by Oliver Wendell Holmes in suit, the money awarded to one party 1916. based on injury or loss caused by the other. For either definition, there are database A collection of information many different types or categories of arranged in a way to facilitate updating damages. (See also: compensatory dam- and retrieval. Computer databases ages, actual damages, special damages, commonly consist both of materials general damages, exemplary damages, protected by copyright and materials punitive damages, statutory damages, that are said to be in the public nominal damages) domain, either because their copyright has run out or because they consist of dangerous weapon Any object, such ideas and facts that themselves do not as a gun, knife, sword, crossbow, or receive copyright protection. Despite slingshot, that is intrinsically capable the fact that the database owner may of causing serious bodily harm to not own any copyright interest in another person. The definition becomes any of the material in the database, important in cases where criminal the structure and organization of laws attach particular consequences the database itself can qualify as an to crimes performed with a dangerous original work of authorship and thus weapon. (See also: deadly weapon) be subject to copyright protection as a Darby v. United States (1941) A U.S. compilation. (See also: compilation) Supreme Court case in which the date rape Forcible sexual intercourse by a Court, in a decision by Justice Harlan male acquaintance of a woman, during Stone, sustained the portion of the a voluntary social engagement in which 1938 Fair Labor Standards Act the woman did not intend to submit prohibiting child labor and regulating to the sexual advances and resisted the wages and hours, on the basis that the acts by verbal refusals, denials, pleas federal government’s power to regulate

114 debenture

to stop, and/or fighting back. The fact testifying about statements, actions, or that the parties knew each other or that promises made by the deceased person. the woman willingly accompanied the dealer Anyone who buys goods or man are not legal defenses to a charge ­property for the purpose of selling as a of rape. business. It is important to distinguish d.b.a. (also known as DBA) See: doing a dealer from someone who occasion- business as ally buys and occasionally sells, since dealers may need to obtain business deadhand control An attempt to keep licenses, register with the sales tax property in the hands of chosen family authorities, and may not defer capital members or organizations through gains taxes by buying other property. ownership interests that vest far into the future. In the law of wills and death benefit Insurance or pension estates, deadhand control is restricted money payable to a deceased person’s to lives in being at the time the will is designated beneficiary. executed plus 21 years. (This is known death penalty The sentence of execution as the rule against perpetuities.) for murder and some other capital deadly weapon A gun or other instru- crimes. (See also: capital punishment) ment, substance, or device, which is death row The portion of a prison that used or intended to be used in a way houses prisoners who are under death that is likely to cause death. A pros- sentences and are awaiting appeals or ecutor who charges a defendant with execution. ­“assault with a deadly weapon” must prove not only that the defendant death taxes Taxes levied at death, ­assaulted the victim, but did so with based on the value of property left a device that was capable of causing behind. There are two main types death. Some laws list “deadly weapons of death taxes in the United States: per se,” which are weapons that by estate taxes and inheritance taxes. The themselves are likely to cause death, federal government and some state such as a gun, regardless of the user’s governments impose estate taxes on intent. decedent’s estates. And some states levy inheritance taxes on people who inherit dead man’s statute In the law of property. evidence, a rule that prevents a person making a claim against an estate from debenture A type of bond (an interest- bearing document that serves as

115 debit card

evidence of an investment or debt) that debt 1) An amount owed by one person does not require security in the form of or entity to another. 2) A cause of a mortgage or lien on a specific piece of action in a lawsuit to recover a set property. Repayment of a debenture is amount owed by another person or guaranteed only by the general credit of entity. 3) The total of everything a the issuer. For example, a corporation person or entity owes to all creditors. may issue a secured bond that gives the For example, everything the United bondholder a lien on the corporation’s States government owes is collectively factory. But if it issues a debenture, the called “the national debt,” and that loan is not secured by any property amount is made up of a number of at all. When a corporation issues debts. debentures, the holders are considered debt collector Someone who works in creditors of the corporation and are the in-house collections department of entitled to payment before shareholders an original creditor or for a collection if the business folds. agency to track down debtors and get them to pay what they owe. (See also: Boomerang! (1947) Dramatic tale of Fair Debt Collection Practices Act) legal ethics in which a D.A. realizes the debtor A person or entity (such as a defendant is not guilty, based on an actual trial business) who owes money. case tried by future Attorney General Homer Cummings. Dana Andrews, Lee J. Cobb, Arthur debtor in possession A business that has Kennedy, Ed Begley, Sr., Karl Malden. filed for Chapter 11 bankruptcy and is allowed to continue operating during the bankruptcy process. debit card A card issued by a bank that debt relief agency Any person or combines the functions of an ATM company—including lawyers and card and a check. A debit card can be bankruptcy petition preparers, but used to withdraw cash at a bank, like excluding banks, nonprofits, and an ATM card. It can also be used like government agencies—that provides a check at stores, to pay for goods and advice, information, counsel, document services. A debit card is linked to the preparation, or other services to a user’s bank account, from which money person who is contemplating, or filing is automatically withdrawn when the for, bankruptcy. Under the bankruptcy card is used. law passed in 2005, debt relief agencies are subject to certain legal requirements

116 declaration of mailing

and must provide debtors with a them. By contrast, mediators help prescribed notice about their services. disputing parties reach a mutually agreeable resolution, but do not decide debt-to-income ratio The percentage of matters themselves. a person’s monthly gross income that is spent on paying debts, such as housing decision The outcome of a proceeding and credit card payments. Banks and before a judge, arbitrator, government lenders use this ratio to decide how agency, or other legal tribunal. Decision much money (and on what terms) they is a general term often used inter- will lend someone for a mortgage, car, changeably with the terms judgment or or other loan. Traditionally, lenders have opinion. But to be precise, a judgment said that your housing costs (mort­gage is the written form of the court’s deci- principal and interest, home­owner’s sion in the clerk’s minutes or notes, and insurance, and property taxes, also an opinion is a document setting out known as PITI) shouldn’t exceed 28% the reasons for reaching the decision. of your gross income, and that your declarant A person who signs a statement overall debt (PITI plus car and other or declaration alleging that the inform­ loan payments) shouldn’t exceed 36%. ation contained in the statement is true. deceased See: decedent (Compare: affiant) decedent A person who has died, also declaration Any statement made, par- called the deceased. ticularly in writing, including a ­formal statement made under penalty of deceit A deliberate misrepresentation ­perjury and signed by the declarant. made by someone who knew it was false and with the intent to deceive declaration against interest When a someone who justifiably relies on the nonparty witness in a lawsuit is not falsehood. Deceit is a civil wrong (tort). available to testify, a statement made (See also: fraud) by the witness that is against his or her own interest may be admitted in deception See: deceit court as evidence as an exception to the decide To reach a determination of who hearsay rule. (Compare: admission) is right and wrong in a legal matter, declaration of mailing A legal form after looking at the facts and the law. stating that a particular document has Judges, hearing officers, magistrates, been mailed to someone involved in a and arbitrators all may decide the legal action (such as opposing attorneys outcome of cases that come before

117 declaration of trust

or the clerk of the court), to prove to assemble by requiring permits to com­pliance with court requirements. hold a parade. A disappointed applicant The declaration must be signed by who thinks the decision-making its sender, usually under penalty of process is unconstitutional might hold perjury. his parade anyway and challenge the ordinance after he was cited; or he declaration of trust The document that might ask a court beforehand to rule creates a trust. It names a trustee and on the constitutionality of the law. By beneficiaries, sets out how trust assets going to court, the applicant may avoid are to be managed and distributed, a messy confrontation with the city— and may list the assets that are to and perhaps a citation, as well. be held in trust. It is signed by the person creating the trust, who is usually declaratory relief See: declaratory called the grantor, settlor, or trustor. A judgment trust declaration is also called a trust decree An order by a judge, resolving instrument. issues in a court case. Similar to the declaration under penalty of perjury A term “judgment,” but preferred in signed statement, sworn to be true by certain types of cases, like probate the signer, that will make the signer matters. (See also: judgment) guilty of the crime of perjury if the decree of distribution The final court statement is shown to be materially order distributing a probate estate. false—that is, the lie is relevant and significant to the case. decriminalization The repeal or amend­ ment of statutes which made certain declaratory judgment A court decision acts criminal, so that those acts in a civil case that tells the parties no longer are crimes or subject to what their rights and responsibilities prosecution. are, without awarding damages or ordering them to do anything. Courts dedication The giving of land by a private are usually reluctant to hear declaratory person or entity to the govern­ment, judgment cases, preferring to wait until typically for a street, park, or school there has been a measurable loss. But site, as part of and a condition of a real especially in cases involving important estate development. The local county or constitutional rights, courts will step city (or other public body) must accept in to clarify the legal landscape. For the dedication before it is complete. example, many cities regulate the right

118 deep link dedimus potestatum An outdated legal necessary for running a business and procedure that permitted a party to deductible from the business’s gross take and record the testimony of a receipts so that it is not counted toward witness before trial, but only when that taxable income. testimony might otherwise be lost. For deduction In tax law, an amount that example, a party to a lawsuit might use an individual or business can subtract the procedure to obtain the testimony from its gross income (total income) to of a witness who was terminally ill determine its taxable income (the total and might not be able to testify at the income on which it owes tax). Exam- trial. Nowadays, the Federal Rules of ples of federal income tax deductions Civil Procedure routinely permit the include mortgage interest, charitable taking of testimony before trial if that contributions, and certain state taxes. testimony might otherwise be lost. deed A document that transfers owner­ ship of real estate and is recorded in “Delay works always for the man with the the local public land records. (See also: longest purse.” deed of trust, quitclaim deed, transfer- —William Howard Taft on-death deed, warranty deed) deed in lieu of foreclosure A means of deductible Something that is taken away ­escaping an overly burdensome mort- or subtracted. Under an insurance gage. If a homeowner can’t make the policy, for example, the deductible is mortgage payments and can’t find a the maximum amount that an insured buyer for the house, many lenders will person must pay toward his own losses accept ownership of the property in before he can recover from the insurer. place of the money owed on the mort- For example, Julie’s car insurance gage. Even if the lender won’t agree to policy has a $500 deductible. One day accept the property, the homeowner she forgets to set her parking brake and can prepare a quitclaim deed that the car rolls backwards into a telephone unilaterally transfers the homeowner’s pole, sustaining $2,500 in damage. property rights to the lender. Julie’s insurance company deducts $500 deed of trust See: trust deed from the total amount and issues a deep link check to the auto body shop for $2,000. A link from one website to another that bypasses the second deductible business expense An website’s home page and takes the user expenditure that is ordinary and

119 de facto

directly to an internal page on the site. defamation lawsuits if they can show For example, a deep link from Yahoo! that the defamation was made with might take the user directly to a news knowledge that it was false or with article on a news site instead of linking reckless disregard for the truth. (See to the home page of the site. (Compare: also: libel per se) link) default 1) Failure to file an answer de facto Latin for “in fact.” A recognition or other response to a summons or of authority even when legal or formal complaint in a lawsuit. After a certain requirements have not been met. (See period has passed, the plaintiff may also: de facto corporation, de jure) ask the court for a default judgment, which means the defendant who failed de facto corporation A business that has to respond loses the case. A defendant not completed all of the legal steps to who has a legally sufficient reason for become a corporation will be treated failing to respond (for example, the as a corporation by the court to shield defendant never received the summons) the directors, officers, and shareholders may file a motion asking the court to who in good faith thought they overturn the default judgment and were operating the business as a duly allow the defendant to defend the formed corporation. (Compare: de jure lawsuit. 2) Failure to pay a debt or meet corporation) other obligations of a loan agreement. defalcation The failure to turn over or For example, a debtor may default on account for funds entrusted to one’s a car loan by failing to make required care. Defalcation may be, but is not monthly payments or by failing to carry necessarily, criminal or fraudulent. adequate insurance as required by the loan agreement. defamation A false statement that harms a person’s reputation. If the statement default divorce A divorce in which one is published, it is libel; if spoken, it is party obtains a judgment of divorce slander. Most states have retraction based on the other party’s failure to file statutes under which a defamed person a response to the divorce petition. A who fails to seek a retraction from the default divorce can be obtained when publisher, or who seeks and obtains a one spouse truly can’t find the other retraction, is limited to compensation or when the second spouse refuses to equal to the actual (or special) damages. participate in the divorce action, or Public figures, including officeholders when the parties agree to enter a default and candidates, can only prevail in as part of an uncontested divorce

120 defense attorney

proceeding. (See also: uncontested ment that makes the item unusable divorce) or harmful, such as faulty brakes in a car, or invalid, such as a deed signed default judgment At trial, a decision by someone who does not have title awarded to the plaintiff when a to the property. A defect may also be defendant fails to contest the case or minor, such as scratches on a car door, comply with required procedural steps. that lessens value or use of the item, but For instance, the defendant may fail does not make it dangerous or useless. to respond to the plaintiff’s complaint within the required time, or simply defective Incapable of fulfilling its neglect to show up in court. To appeal function, due to an error or flaw. a default judgment, a defendant must defective title Property ownership first file a motion in the court that that is subject to claims by someone issued it, asking to have the default else, making it impossible to sell the vacated (set aside). property. (See also: clear title, title defeasance The act of rendering some­ search) thing null and void, or a clause in a defendant The person against whom a deed, lease, will, or other legal docu­ lawsuit is filed. In some types of cases ment that completely or partially (such as divorce) a defendant may be negates the document if a certain called a respondent. condition occurs or fails to occur. For example, a will may provide that a defense 1) A general term for the gift of property is defeasable—that is, effort of an attorney representing a void—if the beneficiary fails to marry defendant during trial and in pretrial before a certain time. maneuvers to defeat the party suing or the prosecution in a criminal case. defeasible remainder A vested remainder 2) A response to a complaint, called that can be destroyed if a specific an affirmative defense, to counter, condition occurs. For example, “To defeat, or remove all or a part of the Jorge, unless he gets divorced.” Jorge contentions of the plaintiff. has a vested remainder, but it’s also a defeasible remainder because it can defense attorney The attorney represent­ be taken away from him if he gets ing the defendant in a lawsuit or crimi- divorced. nal prosecution. Attorneys who regularly represent clients in civil lawsuits are defect An imperfection in a product, often called “plaintiffs’ attorneys.” machinery, process, or written docu­

121 Defense of Marriage Act

Defense of Marriage Act (DOMA) So- loan, for example) that is secured by called Defense of Marriage laws define the asset. In most states, the lender marriage as a relationship between can file a separate lawsuit to recover a one man and one woman, for the deficiency owed by the borrower. Some purpose of excluding same-sex couples states restrict deficiency judgments after from the institution of marriage. The a home foreclosure. federal DOMA prohibits the federal deficit In a budget, an excess of government from recognizing same-sex expenditures or liabilities over revenues legal relationships entered into in one or assets. of the states that recognize same-sex unions. Individual states’ DOMA laws provide that those states do not allow The Trial. (1963) A French adaptation same-sex marriage and, often, do not of Kafka’s novel about a clerk who is recognize same-sex unions from other arrested and tried without knowing what states. crime he’s been accused of, directed by Orson Welles. Anthony Perkins plays the accused, deferred compensation An arrangement with Jeanne Moreau, Romy Schneider, Elsa in which a portion of an employee’s Martinelli, and Welles himself. income is paid at a later date than the date when it is earned. In most cases, the primary benefit is the tax deferral defined benefit plan A type of pension on the deferred income. plan that promises a specific benefit deficiency 1) In tax, a difference found upon retirement. The benefit may be a by the IRS between a taxpayer’s set amount (such as $1,000 per month) reported tax liability and the amount or may be calculated according to a of tax the IRS says that the taxpayer formula based on, for example, years of should have reported. 2) In lending, service and average salary. (Compare: the remaining balance of the debt after defined contribution plan) the security for the loan has been sold defined contribution plan A type following repossession or foreclosure. of retirement plan that creates an deficiency judgment A judgment for the individual account for each employee amount a homeowner owes the lender funded by contributions by the after a house or other asset is foreclosed employer, the employee, or both. The upon and sold by the creditor for less amount contributed is set, either as than the actual debt (mortgage or car a dollar amount or by formula (for

122 demand

example, a certain percentage of the which the funds are placed in a binding employee’s earnings). Unlike a defined trust for up to 180 days while the seller benefit plan, which guarantees that the acquires an “exchanged” (another employee will be paid a certain amount similar) property, pursuant to Internal on retirement, a defined contribution Revenue Code Section 1031. plan guarantees the employee only delegate 1) To assign authority to the value of his or her account upon another. 2) A person chosen to attend a retirement: amounts contributed to the convention, conference, or meeting on plan plus or minus investment gains behalf of an organization, constituency, or losses. A 401(k) plan is a type of interest group, or business. defined contribution plan. deliberate 1) (duh-lib-er-et) Done with defraud To use deceit, falsehoods, or care, intention, or premeditation. trickery to obtain money, an object, 2) (duh-lib-er-ate) Consideration and rights, or anything of value belonging discussion of facts, laws, and other to another. matters, particularly by members of a degree of kinship The level of the relation­ jury, a panel of judges, or by any group ship between two persons related by including a legislature. blood—for example parent to child, delinquent 1) A payment that is past due one sibling to another, grandparent to or not paid in full. 2) A person who grandchild, uncle to nephew, and so disobeys rules or breaks the law such as on. This may become important when a juvenile delinquent. determining the heirs of an estate when there is no will because most states delivery The transfer of an object, money, disburse intestate estates to the relatives or document to another. To be effective, with the closest degree of kinship to the real estate deeds must be delivered, but decedent. delivery does not necessarily require that the new owner be given physical de jure (deh jur-ay) Latin for according possession of the deed. If a deed is to the law. (Compare: de facto) acknowledged and recorded, the law de jure corporation A corporation formed generally presumes that delivery was in compliance with all applicable laws. made. (Compare: de facto corporation) demand A claim or an assertion of a legal delayed exchange An exchange of right or a right to compensation. (See property to put off capital gain taxes, in also: demand letter)

123 demand letter demand letter Correspondence from one the lawsuit on the grounds that even if party to a dispute to the other, stating the facts alleged in the complaint were the drafting party’s version of the facts true, there is no legal basis for the suit. of the dispute and making a claim A hearing before a judge will then be for compensation or other action to held to determine the validity of the resolve it. Often drafted by an attorney, demurrer. Some parts of a lawsuit may a demand letter is generally an opening be defeated by a demurrer while others gambit in an effort to settle a legal claim. may survive. Some demurrers contend that the complaint is unclear or omits demand note A promissory note that’s an essential element of fact. If the judge payable any time the holder of the finds these errors, the judge will usually note makes a request. This is different sustain the demurrer (state it is valid), from a note due at a specific time, but “with leave to amend” in order upon occurrence of an event, or by to correct the original complaint. If installments. after amendment the complaint is still de minimis (dee minn-uh-miss) Trifling not legally good, a demurrer will be or of little importance. Usually refers to granted. In rare occasions, a demurrer something so small, whether in dollar can be used to attack an answer to a terms, importance, or severity, that the complaint. Some states have substituted law will not consider it. a motion to dismiss for failure to state a cause of action for the demurrer. demise Transfer of real estate by a lease or will. Traditionally, the transfer was denial A statement by a defendant that limited to term of years but the expres- an allegation (claim of fact) is not true. sion has come to refer to outright gifts When a defendant in a civil lawsuit files as well. an answer to a plaintiff’s complaint, the defendant is limited to three choices: demonstrative evidence Objects, admitting, denying, or denying the pictures, models, and other devices allegations on the basis that he or she used in a trial or hearing to has no information to affirm or deny demonstrate or explain facts that the them. If a defendant denies all of the party is trying to prove. allegations, it is called a general denial. demur Presenting a demurrer to a court. The defendant’s answer may also include affirmative defenses. demurrer (dee-mur-ur) A written response to a complaint filed in a de novo (day noh-voh) Latin for “anew,” lawsuit that asks the court to dismiss meaning to do something over again as

124 deponent

if for the first time. S( ee also: trial de the Secretary of State. Among its novo) many functions, DOS operates U.S. embassies and consulates in Department of Homeland Security other countries. Generally, the DOS (DHS) A government agency created in determines who is entitled to a visa 2003 to handle immigration and other or green card when an application is security-related matters. Within DHS’s filed outside the United States. U.S. immigration responsibilities, it oversees Citizenship and Immigration Services U.S. Citizenship and Immigration (USCIS), under the Department Services (USCIS, which replaced the of Homeland Security, regulates former Immigration and Naturalization immigration processing inside the Service or INS); as well as Immigration United States. and Customs Enforcement (ICE) and Customs and Border Protection (CBP). dependent 1) A person receiving support from another person (such as a parent), which may qualify the party supporting When future president John Adams the dependent for an exemption to came to court in Boston to be sworn reduce income taxes. 2) Requiring in as an attorney he forgot to bring his lawyer an event to occur, as the fulfillment sponsor to attest to his skill and honesty. of a contract for delivery of goods is Another attorney stepped forward and swore dependent on the goods being available. to Adams’s talent, saving the young man further embarrassment. dependent care plan A fringe benefit that eligible employees of a business can be given tax-free to care for their Department of Labor (DOL) A federal dependents. This expense is generally government agency that interprets deductible to the business. and enforces a number of labor and dependents benefits A type of Social employment laws, including the Security benefit available to spouses and Occupational Safety and Health Act, minor or disabled children of retired or the Family and Medical Leave Act, the disabled workers who qualify for either federal minimum wage and overtime retirement or disability benefits under laws, and laws that govern child labor. the program’s rigorous qualification Department of State (DOS) A U.S. guidelines. department that handles foreign deponent Someone whose deposition is relations under the leadership of being taken.

125 deportation deportation See: removal even though the item may retain or even increase its replacement value due depose To question a witness or a party to inflation. Depreciation may be used to a lawsuit at a deposition (testimony as a business deduction for income tax under oath taken outside of the court­ reduction, spread out over the expected room before trial). useful life of the asset (straight line) or deposition The taking and recording at a higher rate in the early years of use of the testimony of a party or witness (accelerated). under oath before a court reporter, in a depreciation reserve A business fund place away from the courtroom, before in which the probable replacement trial. A deposition is part of pretrial cost of equipment is accumulated each discovery. The testimony is recorded by year over the life of the asset, so it can the court reporter, who will prepare a be replaced readily when it becomes transcript that can be used for pretrial obsolete and totally depreciated. preparation or in trial to contradict or refresh the memory of the witness, or derelict Something or someone who is be read into the record if the witness is abandoned, such as a ship left to drift not available. at sea or a homeless person ignored by family and society. depreciable asset Property with a useful life of at least one year that gradually dereliction 1) Abandoning possession, loses its value over time. A business which is sometimes used in the phrase deducts the cost of a depreciable asset “dereliction of duty.” It includes over a period of time. abandoning a ship, which then becomes a derelict which salvagers can board. depreciate In accounting, to reduce the 2) Increase of land due to gradual value of an asset each year on the basis lowering of a tide line (which means the that the asset (such as equipment, a land is building up). vehicle, or a structure) will eventually become obsolete, worn out, and of little derivation of citizenship An immigration value. law concept allowing children who already have U.S. green cards to obtain depreciation The actual or theoretical U.S. citizenship automatically, in most gradual loss of value of an asset cases when one or both parents become (particularly business equipment or naturalized U.S. citizens. The exact buildings) through increasing age, requirements depend on what laws were natural wear and tear, or deterioration, in effect during certain key events, in

126 desertion

most cases the year in which the parent descent The passing of estate property naturalized. through inheritance, either by law or through estate planning—as opposed derivative A financial instrument to acquisition of property through whose value is based on the value other means, such as purchase. of an underlying security, such as a commodity, currency, or bond. The descent and distribution The rules by most common derivatives are futures, which an estate is distributed after options, and swaps. They are used the owner’s death. This may occur to manage risk and fluctuations in according to the decedent’s estate plan the value of the underlying security or according to intestate laws if the but are often risky and complicated decedent died without an estate plan. investments. descriptive mark A trademark or service derivative action A lawsuit brought by mark that describes some characteristic a shareholder against the corporation’s of the product or service with which directors, other shareholders of the it is associated. For instance, “Jiffy corporation, or a third party for Lube” describes a purportedly fast failure of management or fraud. The lube service. Descriptive trademarks suing shareholder sues on behalf are harder to protect, at least until the of the corporation (usually because owner can demonstrate that consumers the directors are failing to exercise associate the mark with the source of their authority for the benefit of the the goods or services (a status referred company), and any proceeds of a to as a secondary meaning). (See also: successful action are awarded to the secondary meaning, Supplemental corporation and not to the suing Register) shareholder. desert To intentionally abandon a person derivative work In copyright, a new or thing. creative work based upon an existing desertion The voluntary abandonment work. To be separately protected of one spouse by the other, without under copyright law, a derivative must the abandoned spouse’s consent. include sufficient original creative work. Commonly, desertion occurs when Examples of derivative works include a spouse leaves the marital home for a translation of a book, a toy based on a specified length of time. Desertion a cartoon character, or a movie script is grounds for divorce in states with based on a novel. fault divorce. Desertion can also be the

127 design patent

basis for a court to grant an adoption indeterminate sentence (such as 20 where a parent has deserted a child for years to life) has a minimum term but a specified period of time. S( ee also: the release date, if any, will be chosen abandonment) by a parole board as it periodically reviews the case. (Compare: design patent A patent granted for a new indeterminate sentence) design that is not obvious to those in the field of design, and that is used for deuce A slang term originating in ornamental reasons—that is, the design California for a drunk driving does not affect the functioning of the violation. underlying device. Design patents last devise An old legal term that is generally for 14 years from the date the patent is used to refer to real estate left to issued. (Compare: utility patent) someone under the terms of a will, or to the act of leaving such real estate. “Defiance of the law is the surest road to In some states, devise now applies tyranny.” to any kind of property left by will, —John F. Kennedy making it identical to the term bequest. (Compare: bequest, legacy) devisee A person or entity who inherits detain See: imprison real estate under the terms of a will. determinable 1) Capable of being (Compare: legatee) determined by a court. 2) Capable of devisor Someone who leaves real estate being terminated on the occurrence by will. (See also: testator) of a particular event, usually used to devolution describe an interest in real estate. The transfer of rights, powers, or an office (public or private) from one determinate sentence A jail or prison person or government to another. sentence that is definite and not devolve subject to review by a parole board or When property is automatically other agency. For example, a sentence transferred from one party to another of six months in the county jail is by operation of law, without any act determinate, because the prisoner required of either past or present owner. will spend no more than six months The most common example is passing (minus time off for good behavior, of title to the natural heir of a person in some situations). By contrast, an upon his death.

128 directed trust dicta The plural of dictum. the traditional basis for trademark infringement (probable customer dictum A remark, statement, or confusion) wasn’t an issue. observa­tion of a judge that is not a necessary part of the legal reasoning diminished capacity An impaired mental needed to reach the decision in a case. condition, caused by disease, trauma, or Although dictum may be cited in a intoxication but short of insanity, that legal argument, it is not binding as legal can reduce the criminal responsibility precedent, meaning that other courts are of a defendant. Not all states allow not required to accept it. Dictum is an defendants to offer this plea in response abbreviation of the Latin phrase “obiter to criminal charges. dictum,” which means a remark by the diminution in value A way of assessing way, or an aside. damages after a breach of a contract, Digital Millennium Copyright Act A which measures the difference between federal statute that addresses a number the value of the property as it was of copyright issues created by the use contractually promised and the value of of new technology and the Internet the property as it currently exists or was including digital rights management constructed. (methods for stopping infringement), direct and proximate cause The immedi- and certain rights and privileges (safe ate reason that something happened harbors) that protect Internet Service that caused harm to another person. Providers. The words are often used together, as digital signature See: electronic signature in “The defendant’s negligent act in running the red light was the direct diligence Reasonable care or attention to and proximate cause of the plaintiff’s a matter. injuries.” (See also: legal cause) dilution When a famous trademark directed trust A trust in which certain or service mark is used in a context assets are managed by someone other in which the mark’s reputation for than the trustee. For example, someone quality is tarnished or its distinction might set up a trust and name a is blurred. For example, the use of the bank’s trust department as trustee, but word Candyland for a pornographic site specify in the trust document that a on the Internet diluted the reputation business held in trust be managed by of the Candyland mark for the well- someone else. The outside manager known children’s game, even though goes by different names in different

129 directed verdict

states: a cotrustee, special trustee, trust the plaintiff’s legal claims or causes protector, or adviser. Directed trusts are of action—for example, that the authorized by law in about 30 states. defendant breached a valid contract Most hold at least $1 million in assets, and, as a result, the plaintiff suffered a and often much more. loss. directed verdict A ruling by a judge, direct inheritance Property left outright typically made after the plaintiff has to a person, rather than put into a trust presented all of its evidence but before or account. For those who qualify for the defendant puts on its case, that SSI or Medicaid, direct inheritance awards judgment to the defendant. A may cause a reduction or elimination of directed verdict is usually made because those benefits because the inheritance the judge concludes the plaintiff has is counted as income in the month failed to offer the minimum amount of received and as a resource in the evidence to prove the case even if there following months. Property left to a were no opposition. In other words, special needs trust is not counted as the judge is saying that, as a matter of direct inheritance. law, no reasonable jury could decide directive to physicians See: living will in the plaintiff’s favor. In a criminal case, a directed verdict is a judgment of director A member of the governing acquittal for the defendant. board of a corporation, typically elected at an annual meeting of the direct evidence Real, tangible, or clear shareholders. As a group, the directors evidence of a fact, happening, or are responsible for making important thing that requires no thinking or business decisions—especially those consideration to prove its existence, as that legally bind the corporation— compared to circumstantial evidence. leaving day-to-day management to the direct examination At trial, the initial corporation’s officers and employees. questioning of a party or witness by For example, a decision to borrow the side that called him or her to money, lease an office, or buy real testify. The major purpose of direct property would normally be authorized examination is to explain your version by the board of directors. of events to the judge or jury and to disability 1) For purposes of antidis- undercut your opponent’s version. crimination law, a physical or mental Good direct examination seeks to impairment­ that substantially limits prove all facts necessary to satisfy one or more major life activities. 2) A

130 dischargeable debts

legal impediment to taking a certain history of dishonesty, consistent lack of action, such as being a minor who can- attention to clients, alcoholism or drug not legally enter into a contract. abuse which affect the attorney’s ability to practice, theft of funds, or any disability benefits Money available from pattern of violation of the professional Social Security to benefit those younger code of ethics. than 65 who qualify because of their work and earning record and who disbarment See: disbar meet the program’s medical guidelines discharge 1) To perform one’s legal duties defining disability. The benefits are or meet one’s obligations. 2) To fire roughly equal to those available in someone from a job. 3) In bankruptcy, Social Security retirement benefits. an order of the court that wipes out all dischargeable debts. “You cannot change people’s hearts discharge (of debts) In bankruptcy, the merely by laws. Laws presumably bankruptcy court’s action, at the end express the conscience of a nation and its of the case, to wipe out the debts of determination or will to do something.” the person or business that filed for —Dwight D. Eisenhower bankruptcy. Once a debt is discharged, the debtor no longer owes it, and the creditor may no longer take action to disallowance A finding by the IRS after collect it. an audit that a business or individual taxpayer was not entitled to a deduction discharge (of personal representative) or other tax benefit claimed on a tax A court order releasing the personal return. representative (administrator or executor) from any further duties disbar The removal of an attorney’s connected with the probate of an estate. license to practice law. This penalty This typically occurs when the duties is usually invoked by the state bar have been completed but may happen association where the attorney is sooner if the executor or administrator licensed to practice and will prohibit wishes to withdraw or is dismissed. the attorney from practicing law before the courts in that state or from giving dischargeable debts Debts that can be advice for a fee to clients. Causes of wiped out in bankruptcy, such as credit disbarment include: a felony involving card debts, medical bills, and back rent. “moral turpitude,” forgery, fraud, a (Compare: nondischargeable debts)

131 discharge in bankruptcy discharge in bankruptcy See: bankruptcy a revelation. For example, in many discharge states you must disclose major physical defects in a house you are selling, such disclaim 1) To refuse or give away a claim as a leaky roof or potential flooding or a right to something. For example, problem; and in all states, you must if your aunt leaves you a white elephant disclose the presence of lead-based in her will and you don’t want it, you paint hazards in buildings constructed can refuse the gift by disclaiming before 1978. your ownership rights. 2) To deny responsibility for a claim or act. For discount Payment of less than the full or example, a merchant that sells goods regular amount of the price for goods secondhand may disclaim responsibility or services or less than the amount due for a product’s defects by selling it as is. on a promissory note. disclaimer 1) A contractual provision in discovery A formal investigation— which one party renounces or refuses governed by court rules—that is a right or a responsibility. 2) A formal conducted before trial by both parties. statement by a patent or trademark Discovery allows each party to question owner that it does not claim certain the other parties, and sometimes intellectual property rights. 3) An witnesses. The most common types of irrevocable refusal to accept property discovery are interrogatories, consisting that has been left by will, trust, or of written questions the other party other method, sometimes used in must answer under penalty of perjury; estate planning to reduce overall taxes depositions, at which one party to a paid by a family. (See also: intellectual lawsuit has the opportunity to ask property) oral questions of the other party or witnesses under oath while a written disclaimer trust A kind of bypass transcript is made by a court reporter; trust that gives the surviving spouse and requests to produce documents, the option of not splitting the trust by which one party can force the other after the first spouse’s death if it’s to produce physical evidence. Parties not necessary to save on estate tax. A may also ask each other to admit or surviving spouse may disclaim (decline deny key facts in the case. Discovery to accept) some trust property; that allows parties to assess the strength property goes into the bypass trust. or weakness of an opponent’s case, in disclosure The making known of a order to support settlement talks and fact that had previously been hidden; also to be sure that the parties have as

132 disjunctive allegations

much knowledge as possible for trial. discrimination To treat similarly situated Discovery is also present in criminal people differently on the basis of a cases, in which by law the prosecutor protected characteristic, such as race, must turn over to the defense any gender, or disability. witness statements and any evidence dishonor To refuse to pay the face that might tend to exonerate the amount of a check or the amount due defendant. Depending on the rules on a promissory note. of the court, the defendant may also be obliged to share evidence with the disinherit To deliberately prevent some­ prosecutor. one from inheriting something. This is usually done by a provision in a discretion The power of a judge, public will stating that someone who would official, or private party to make ordinarily inherit property—a close decisions based on his or her opinion family member, for example—should within general legal guidelines. not receive it. In most states, you Discretion is often granted under a cannot completely disinherit your contract, trust, or will. Examples: 1) A spouse; a surviving spouse has the right judge may have discretion as to the to claim a portion (usually one-third amount of a fine or whether to grant to one-half) of the deceased spouse’s a continuance of a trial. 2) A trustee estate. With a few exceptions, however, or executor of an estate may have you can expressly disinherit children. discretion to divide assets among the beneficiaries. 3) A district attorney may disinheritance The act by which one have discretion to charge a crime as a refuses to leave property to a would-be misdemeanor or felony. 4) A governor heir. may have discretion to grant a pardon. disinterested witness A witness who has 5) A planning commission may use no personal interest in the case. its discretion when deciding whether or not to grant a variance to a zoning disjunctive allegations Claims by some­ ordinance. one who files a lawsuit that that one thing or another occurred, and discretionary trust A common type in criminal case that the accused of trust that grants the trustee broad committed one crime or another. Such power to decide when and how much allegations are not allowed because income or property to distribute to a the defendant is entitled to know what beneficiary. allegations to defend against.

133 dismiss dismiss 1) In a court setting, a judge based on the same grounds. (Compare: may dismiss or throw out all or a dismissal without prejudice) portion of a plaintiff’s lawsuit without disorderly conduct Behavior that further evidence or testimony upon disturbs others, including minor being persuaded that the plaintiff has criminal offenses such as public not and cannot prove the case. This drunkenness, loitering, and breach of judgment may be made before or at the peace. anytime during the trial. The judge may independently decide to dismiss or disorderly house A place of illegal may do so in response to a motion by gambling or a house of prostitution. the defendant. Also, the plaintiff may disparate impact When a facially neutral voluntarily dismiss an action before policy disproportionately affects or during trial if the case is settled, if one group, this can be the basis of a it is not provable, or if trial strategy discrimination lawsuit if the group dictates getting rid of a weak claim. A affected is protected by discrimination defendant may also be dismissed from laws (such as race, sex, or age). For a lawsuit, meaning the suit is dropped example, an employer’s policy requiring against that party. 2) To discharge or all employees have the ability to lift let an employee go. 50 pounds could disproportionately dismissal See: dismiss affect women. Unless the employer had a good reason for such a policy, it dismissal without prejudice When a case could be discriminatory, even though it is dismissed without prejudice, it leaves doesn’t explicitly exclude women. the plaintiff free to bring another suit based on the same grounds, for example disparate treatment When two individ­ if the defendant doesn’t follow through uals are treated different based on their on the terms of a settlement. (Compare: status or membership in a protected dismissal with prejudice) class. dismissal with prejudice When a lawsuit disposable income In bankruptcy, the is dismissed with prejudice, the court difference between a debtor’s current is saying that it has made a final monthly income and allowable expenses. determination on the merits of the The law assumes the debtor could case, and that the plaintiff is therefore pay this amount into a Chapter 13 forbidden from filing another lawsuit repayment plan each month. (See also: current monthly income)

134 distinctive trademark disposing mind and memory See: sound of State or state corporations division mind and memory by filing documents to withdraw the corporation as a business entity. Disso- disposition 1) The court’s final deter­ lution can either be started voluntarily, mination of a lawsuit or criminal by resolution of the shareholders, or charge. 2) The act of transferring care, involuntarily, for not paying corporate possession, or ownership to another, taxes or some other action of the gov- such as by deed or will. ernment. dispossess To eject someone from real dissolution of marriage Another term for property, either legally or by self help. a divorce, used in many states. dispute The assertion of conflicting claims or rights between parties involved in a legal proceeding, such as a Kramer v. Kramer. (1979) This award lawsuit, mediation, or arbitration. winner focused on a heart-wrenching child custody battle. Academy Awards for Best dispute resolution See: alternative Picture, plus Best Actor, Director, Supporting dispute resolution Actress, and Screenplay. Dustin Hoffman, Meryl Streep, Jane Alexander, Justin Henry. disregarding the corporate entity See: piercing the veil dissent A stated disagreement with distinctive trademark A standard of prevailing thought. Also, the opinion of trademark protection. Trademarks and a judge of a court of appeals, including service marks are judged on a spectrum the U.S. Supreme Court, that disagrees of distinctiveness. The most unusual with the majority opinion. (in the context of their use) are consid- ered the most memorable. Distinctive dissenting opinion The opinion of a marks typically consist of terms that are judge who does not agree with the fanciful or coined (Maalox or Xerox), majority opinion. (See also: dissent) arbitrary (Penguin for books, Arrow dissolution The process of dissolving for shirts), or suggestive (Accuride tires). (ending) a marriage or a business. Distinctive marks receive maximum (See also: divorce, dissolution of judicial protection under state and corporation) federal laws. Trademarks that describe some aspect of the goods or services are dissolution of corporation Termination not considered distinctive and cannot of a corporation with the Secretary acquire federal registration absent proof

135 distinguish

that consumers associate the goods or government in criminal cases brought services with the mark (known as sec- in a designated county or judicial ondary meaning). (See also: secondary district. A DA’s duties typically include meaning) reviewing police arrest reports, deciding whether to bring criminal charges distinguish To differentiate the ruling against arrested people, and prosecuting in one case from another even though criminal cases in court. The DA both may have similarities of fact. may also supervise other attorneys, distress The seizure of another’s property called Deputy District Attorneys or in order to obtain payment for money Assistant District Attorneys. In some owed. states, a District Attorney may be called a Prosecuting Attorney, County distribute To give assets, usually from an Attorney, or State’s Attorney. In the estate or trust, to the people who are federal system, the equivalent to the entitled to receive them under the terms DA is a United States Attorney. The of a will, trust document, state law, or country has many U.S. Attorneys, beneficiary designation. each appointed by the president, who distributee Someone who receives supervise regional offices staffed with something. Usually, the term refers to prosecutors called Assistant United someone who inherits property from States Attorneys. a deceased person (a distribution from the deceased person’s estate) or receives distributions from a trust. Also called a State’s Attorney. (1931) John Barrymore beneficiary. stars as a flashy district attorney defending a mobster who was his childhood friend. With distribution Transferring at least some Helen Twelvetrees, William Boyd, Ralph Ince. assets of an estate or trust to beneficiaries or paying out profits or assets of a cor- poration or other business to its owners. district court 1) in the federal court system, a trial court for federal cases in distribution of profits The withdrawal of a court district, which is all or a portion profits from a partnership or LLC by a of a state. Thus, if you file suit in partner or LLC member. federal court, your case will normally District Attorney (DA) A lawyer who be heard in federal district court. is elected or chosen by local govern­ 2) A local court in some states. States ment officials to represent the state may also group their appellate courts

136 dividend

into districts—for example, The First diversity of citizenship A basis for taking District Court of Appeal. a lawsuit to federal court, in which the opposing parties are citizens of disturbance of the peace See: breach of different states (including corporations the peace incorporated or doing business in disturbing the peace See: breach of the different states) or one is a citizen of a peace foreign country. It’s also required that the amount in controversy exceed a diversion In a criminal case, an alter­ statutory amount. native procedure in which the case is handled outside of the court, instead Diversity Visa Program (the Lottery) as part of the normal criminal justice Every year, the U.S. Department system. A defendant who agrees to of State allows people from certain be diverted will escape the criminal countries who have sent the fewest charges altogether if he successfully immigrants to the U.S. in recent years, completes the rehabilitation program and who meet specified educational and stays out of trouble for a specified and financial criteria, to enter a lottery time. Only very minor offenses, typically program. The “winners,” who are drug possession cases, are eligible for randomly selected, may then apply for a diversion; and defendants must show U.S. green card (permanent residence). that they are good candidates for divestiture The disposition or sale of rehabilitation before being diverted. an asset by a company or government diversity jurisdiction The power of the entity. It may be voluntary or ordered federal courts to decide civil disputes by a court. between citizens of different states, divestment The disposal or reduction of provided the amount the plaintiff seeks an investment or business interest, for in damages exceeds an amount set by financial, legal, or ethical reasons. Congress (currently $75,000). The so- called citizens may include companies dividend A portion of profits distributed incorporated or doing business in by a corporation to its shareholders different states or a citizen of a foreign based on the type of stock and number country. However, note that the federal of shares owned. Dividends are usually courts traditionally refuse to exercise paid in cash, though they may also be their diversity jurisdiction over cases paid in the form of additional shares of involving domestic relations and stock or other property. The amount of probate. a dividend is established by the cor-

137 divorce

poration’s board of directors; however, proved that convicted people on death state laws often restrict a corporation’s row did not commit the crimes for ability to declare dividends by requir- which they were sentenced. ing a minimum level of profits or assets docket See: court calendar before the dividend can be approved. doctor-patient privilege See: physician- divorce The legal termination of a patient privilege marriage. All states require a spouse to identify a legal reason for requesting doctrine of equivalents A form of patent a divorce when that spouse files the infringement that occurs when an divorce papers with the court. These invention performs substantially the reasons are referred to as grounds for a same function in substantially the same divorce. (See also: dissolution, no-fault manner and obtains the same result as divorce, fault divorce) a patented invention. As a result of a Supreme Court decision, the doctrine divorce agreement An agreement made of equivalents must be applied on an by a divorcing couple regarding the element-by-element basis to the patent division of property, custody and visit­ claims. (See also: patent claims) ation of the children, child support, and alimony. The agreement must be document Usually, a paper with writing put in writing, signed by the parties, on it. Technically, a document could and accepted by the court. (See also: be any item with a message imprinted marital settlement agreement) on it, such as a piece of wood on which someone scratched out a will. DNA Deoxyribonucleic acid, a double chain of chromosomes in the nucleus documentary evidence A document—for of each living cell, whose combination example, a contract, deed, or will— determines each individual’s hereditary that is offered as evidence at a trial characteristics. Because each person’s or hearing. Before being admitted as DNA is different and is found in each evidence, it must be proved that the living cell, testing the DNA of a person document is genuine. This is called and comparing that to the DNA found “laying a foundation.” on a drop of blood, hair, or other body documentation The act of providing substance, can be used to help identify documents or supporting records or the perpetrator of a criminal act. DNA evidence. For example, any tangible tests performed on physical evidence proof that substantiates an item on a years after a trial have repeatedly

138 domestic partner adoption

tax return, such as a canceled check for domain name usually consists of three an expense claimed as a deduction. parts: a generic “top-level” domain such as “.com” or “.gov” that identifies dog-bite statute A state law that makes the type of organization; a second level dog owners liable for injuries caused domain such as nolo or yahoo, which by their dogs, even if an owner didn’t identifies the organization, site, or indi- know that the dog was likely to cause vidual; and a third level domain such as that kind of injury. More than half the “www,” which is used to identify a par- states now have such dog-bite statutes. ticular host server. Domain names have (Compare: one-bite rule) various functions. They can serve as an doing business Carrying on business address (whitehouse.com), as a trade- activities, especially a company doing mark (amazon.com), or as an expression business in a foreign state. Whether an of free speech (generalmotorssucks. out-of-state company will be subject com). Trademark owners can, under to another state’s laws will depend on some circumstances, stop others from whether it does business within that using a domain name if it conflicts state. (See also: long-arm statute) with their existing trademark. (See also: uniform resource locator) doing business as (DBA) A situation in which a business owner operates a company under a name different from “In respect of civil rights, common to all its legal name. The owner must file a citizens, the Constitution of the United fictitious name statement, dba state­ States does not, I think, permit any public ment, or an assumed name statement authority to know the race of those entitled to with the appropriate agency—for be protected in the enjoyment of such rights.” example, the county clerk or Secretary —Justice John M. Harlan, of State—that records the names of dissent in Plessy v. Ferguson the business’s owners. This enables consumers to discover the names of the business owner(s), which is important if domestic partner adoption An adoption a consumer needs to sue the business. by one registered domestic partner, usually of a child born to the other DOMA See: Defense of Marriage Act partner, in one of the states that domain name A combination of letters allows domestic partner registration and numbers that identifies a specific (California, the District of Columbia, computer or website on the Internet. A Maine, Oregon, and Washington).

139 domestic partners domestic partners 1) Couples registered is “diversity of citizenship” between under domestic partnership laws in two parties that may give federal courts California, the District of Columbia, jurisdiction over a lawsuit. A person Maine, Oregon, and Washington State. may have many residences but only one In California, Maine, and Oregon, legal domicile. these couples have all the same rights dominant estate See: dominant tenement and responsibilities as spouses under state law. 2) Unmarried couples of the dominant tenement Property that carries same or opposite sex living together in a right to use a portion of a neighboring committed relationships, who may be property (called an easement). For entitled to some of the same benefits example, property that benefits from as married partners under employer a beach access trail across another policies or city or county rules. property is the dominant tenement. domestic relations The field of law that donation A gift of property. The IRS includes divorce, child custody, child allows you to take an income tax support, and alimony. deduction for the value of donations made to charitable organizations that domestic violence Behavior used by are recognized as such by the IRS. one person in a relationship to hurt or dominate the other. Domestic violence donative intent The conscious desire can include physical violence and sexual to make a gift, as distinguished from assault (which are crimes that can be giving something as a gift by mistake or prosecuted), intimidation, emotional under pressure. abuse, and isolating the victim from donee Someone who receives a gift. others. Applies to partners whether they are married or unmarried, straight or donor Someone who gives a gift. gay, living together or simply dating. dooced Fired for what one writes in a domicile The state in which a person personal blog. The term comes from the has or intends to maintain permanent name of a website (www.dooce.com) residence, or the state in which a kept by Heather Armstrong, who was business locates its headquarters. fired after she wrote about annoying Domicile governs such matters as the habits of her coworkers and managers state in which a deceased person’s estate and what she was actually doing when is probated, where a party can begin she was supposed to be working at divorce proceedings, and whether there home, among other things.

140 dower and curtesy double-entry accounting A system of to the shareholders, if corporate profits accounting that records each business are distributed as dividends. 2) Taxa- transaction twice (once as a debit and tion of the same property for the same once as a credit). For example, if you purpose twice in one year. pay your monthly rent of $1,000, you double wills See: mutual wills you make a debit of $1,000 to the rent expense account and a credit of $1,000 doubling A married couple’s right to to cash. Used for tracking inventory, double the amount of certain property loans, assets, and liabilities. (Compare: exemptions when filing for bankruptcy single-entry accounting) together. For example, if a state allows doubling and provides an exemption for double jeopardy A rule from the Fifth equity in a motor vehicle up to $4,000, Amendment to the U.S. Constitution a married couple filing for bankruptcy that prohibits a criminal defendant together could exempt up to $8,000 in from being twice made to stand trial equity. for the same offense. A defendant is put “in jeopardy” once the jury is sworn. dower See: dower and curtesy If the prosecutor moves to dismiss the dower and curtesy A surviving spouse’s case after that, the defendant cannot be right to receive a set portion of the retried. When a judge dismisses a case, deceased spouse’s estate—usually however, a retrial is generally possible one-third to one-half. Dower (not to unless the dismissal was engineered by be confused with a “dowry”) refers to the prosecutor’s misconduct, or there the portion to which a surviving wife was no overriding necessity to dismiss is entitled, while curtesy refers to what the case. Double jeopardy protects a man may claim. Until recently, these defendants only for retrials brought amounts differed in a number of states. within the original jurisdiction, which However, because discrimination on is why a defendant can be tried in the basis of sex is now illegal in most federal court after being tried in state cases, most states have abolished dower court. Double jeopardy does not and curtesy and generally provide the prevent trial in a civil court on under­ same benefits regardless of sex—and lying facts that previously formed the this amount is often known simply basis of a criminal trial. as the statutory share. Under certain double taxation 1) Taxation of corporate circumstances, a living spouse may not dividends twice: once to the corpora- be able to sell or convey property that is tion as corporate income and then once

141 down payment

subject to the other spouse’s dower and document, such as a law or a legal brief, curtesy or statutory share rights. that is ready for revision or correction. 3) To select for some purpose, such as down payment A lump sum cash pay­ military service. ment paid by a buyer when he or she purchases a major piece of property, dram shop rule A law that makes a such as a car or house. The buyer business that sells alcoholic drinks or a typically takes out a loan for the host who serves liquor to an obviously balance remaining, and pays it off in intoxicated person strictly liable to monthly installments over time. anyone injured by the drunken patron or guest. dowry The money and personal property a bride brings to her new husband to draw 1) The withdrawal of profits from support and maintain the marriage. a partnership or LLC by a partner or (Compare: dower) LLC member. 2) To prepare any legal document. 3) To prepare and sign a bill of exchange or check. After World War II many states waived the bar examination for drawee The party who is to be paid on a servicemen who had been in their final year of bill of exchange or check. law school or had graduated without taking drawer The party who signs a bill of the state examination when they went into the exchange directing that it be paid; for armed forces. example, a person who signs a check. Dredd Scott v. Sanford (1857) A U.S. draft 1) A written order for the payment Supreme Court case in which the of money, such as a check. The person Court ruled that a slave taken to a free who writes the draft is called the drawer, state was still a slave. This decision the person who holds the money—for helped to trigger the Civil War. example, the bank—is called the driving under the influence (DUI) The drawee, and the person who ultimately crime of operating a motor vehicle receives the money is called the payee. while under the influence of alcohol After receiving the draft, the payee can or drugs, including prescription drugs. demand payment at any time unless State laws specify the level of blood the draft specifies a particular time for alcohol content at which a person is payment. Also called a bill of exchange. presumed to be under the influence. 2) A preliminary version of a written

142 dump-buyback

Also called driving while intoxicated avoid a claim of negligence, though not (DWI and drunk driving). necessarily exhaustive. driving while Black Slang for police due-on-sale clause A provision in a profiling of drivers who deviate from mortgage or deed of trust that allows the ethnic standards of a community— the lender to demand immediate for example, regularly stopping African payment of the balance of the mortgage American drivers in a Caucasian upon sale or transfer of ownership neighbor­hood, or stopping Mexican of the property used to secure the American drivers near U.S. borders. mortgage. (See also: acceleration clause) driving while intoxicated See: driving due, owing, and unpaid See: due under the influence due process of law A fundamental driving while intoxicated (DWI) See: principle of fairness in all legal matters, driving under the influence both civil and criminal, especially in the courts. All legal procedures set by drop dead date A provision in a contract statute and court practice, including or a court order that sets the last date notice of rights, must be followed for that an event can take place (such each individual so that no prejudicial as payment), or otherwise certain or unequal treatment will result. consequences will automatically follow, While somewhat indefinite, the term such as cancelling a contract, taking can be gauged by its aim to safeguard property, or entering a judgment. both private and public rights against drunk driving See: driving under the unfairness. influence DUI See: driving under the influence due 1) Owed as of a specific date. dump-buyback A plan by which the 2) Immediately enforceable—for owners of a failing business form a new example, payment is due at time of legal entity which then purchases some service. 3) Proper, just, or reasonable— or all of the assets of the first business for example, due care. for their liquidation value. This can be due and owing See: due done informally with the consent of the failing business’s creditors, who will due care See: reasonable care use the proceeds to recoup a portion of due diligence Care or attention to a the money owed to them, or it can be matter that is sufficient enough to accomplished via a public auction or

143 durable power of attorney

an assignment for benefit of creditors patient advocate, or something similar, proceeding. Occasionally “dump- depending on where you live. buyback” is also used to describe a duress The use of force, false imprison­ business bankruptcy where the owners ment, coercion, threats, or psycho- of the bankrupt business form a new logical pressure to compel someone business entity and submit a formal bid to act contrary to his or her wishes or to purchase their former assets, usually interests. If, for example, duress is used for a fraction of what was originally to make a person sign an agreement owed. or execute a will, a court may find the durable power of attorney A power of document null and void. A defendant ­attorney that remains in effect if the in a criminal prosecution may raise the person who made the document— defense that others used duress to force called the principal—becomes inca- him or her to take part in a crime. pacitated. If a power of attorney is not duty 1) A legal relationship, created by specifically made durable, it automati- law or contract, in which a person or cally expires if the principal becomes business owes something to another. incapacitated. (See also: durable power The breach of this obligation can result of attorney for finances, durable power in liability. 2) A tax on imported goods. of attorney for health care) duty of care The duty of a person or durable power of attorney for finances business to act toward others and the A legal document that gives someone public with vigilance, caution, and authority to manage your financial prudence. Someone whose actions affairs if you become incapacitated. The breach the duty of care is considered person you name to represent you is negligent, and may be sued for resulting usually called your agent or attorney- damages. (See also: standard of care) in-fact. DWI 1) Short for driving while durable power of attorney for health intoxicated. 2) Abbreviation for dying care A legal document that you can without issue (children). (See also: use to give someone permission to driving under the influence) make medical decisions for you if you are unable to make those decisions dying declaration A statement by some­­one yourself. The person you name to who believes he or she is about to die, represent you may be called your agent, relating to the cause or circumstances attorney-in-fact, health care proxy, of that condition. A dying declaration is

144 dynasty trust

an exception to the hearsay rule under they’re doing. Because of its coercive the Federal Rules of Evidence. In a trial nature, some states prohibit the use for murder, for example, a witness may of a dynamite charge as a violation of be allowed to testify that the victim the state constitution, but the practice said, “Frank shot me” while bleeding to passed federal constitutional muster death in the street. in the case of Allen v. Gainer. The instruction is also known as a dynamite dynamite charge A judge’s admonition instruction, shotgun instruction, Allen to a deadlocked jury to go back and charge, or third-degree instruction. try harder to reach a verdict. The judge might remind jurors to respectfully dynasty trust A trust designed to pass consider the opinions of others and down family wealth for many gen- will often assure them that if the case erations while avoiding transfer taxes has to be tried again, another jury (estate tax and generation-skipping tax) won’t necessarily do a better job than to the greatest extent possible.

145 E

EA See: enrolled agent earwitness Someone who heard some­ thing but didn’t actually see it, and earned income Compensation for can so testify in court. (Compare: services rendered, such as wages, eyewitness) commissions, and tips. easement A right to use another person’s earned surplus See: retained earnings real estate for a specific purpose. The earnest payment A partial payment most common type of easement is the (deposit) demonstrating commitment right to travel over another person’s in a contractual relationship, and com- land, known as a right of way. In monly made in real estate transactions. addition, property owners commonly The remainder of the payment is due grant easements for the placement of on a particular date or after a particular utility poles, utility trenches, water event has occurred. The seller keeps the lines, or sewer lines. An easement may earnest money if the buyer fails to make be for an identified path or for use at timely payment in full (or if there is a any reasonable place. similar breach of the agreement). easement by prescription See: prescrip- earnings record The record of a person’s tive easement. earnings over his or her lifetime that eavesdropping Listening to conversations is maintained by the Social Security or observing conduct that is meant Administration for purposes of calcu- to be private. The term comes from lating the amount of benefits to which the common law offense of listening one may be entitled—including retire- to private conversations by crouching ment benefits, disability benefits, or under the windows or eaves of a house. dependents or survivors benefits. Ask Generally, the term is used when the the Social Security Administration for a activity is not legally authorized by a copy of your Social Security Statement search warrant or court order. (Com- to make sure your earnings record is pare: surveillance) accurate.

146 ejectment

EEOC See: Equal Employment Opportu- law said that the divorce had auto­ nity Commission matically revoked her right to inherit. Because a 401(k) plan is ruled by effective assistance of counsel The right federal law (ERISA), it overruled the of a criminal defendant or appellant to state law. have competent legal representation, whether the lawyer was appointed by the court or retained by the defendant. In “In hearing cases I am like everyone else. general, competent legal representation The important thing, however, is to see to is without errors that would result in it that there are no cases.” the denial of a fair trial. This means —Confucius that most attorney errors do not amount to ineffective assistance. effective date The date at which a contract eggshell skull A legal rule that a person or statutory obligation commences. The who causes injury is at fault for all effective date may be different than the the consequences whether foreseen or date a contract is signed or a statute is not. It is derived from a situation in enacted. For example, the effective date which a light blow to the head killed for the Copyright Act of 1976 is January an individual, even though it could not 1, 1978. have been predicted that such a blow would cause death. effluxion of time The normal expiration of a lease due to the passage of time, egress An exit, or the act of exiting. The rather than due to a specific event that most famous use of this word was by might cause the lease to end, such as P.T. Barnum, who put up a large sign destruction of the building. in his circus tent saying “This Way to the Egress.” Thinking an egress was e.g. An abbreviation of the Latin words some type of exotic bird, people eagerly exempli gratia, meaning “for example.” went though the passage and found (Compare: i.e.) themselves outside the tent. (Compare: Egelhoff v. Egelhoff (2001) U.S. Supreme ingress) Court decision in which the Court EIR See: environmental impact report ruled that a woman who was named as the beneficiary of her former husband’s ejectment A lawsuit brought to remove 401(k) plan was entitled to inherit the a party who is occupying real property. money in the plan, even though state This is not the same as an unlawful

147 ejusdem generis

detainer (eviction) suit, because it is the trial begins. Because it’s unfair to against someone who has wrongfully force the party to choose before all of tried to claim title to the property, the evidence is presented, courts now not a tenant who only has a right of generally won’t require the party to possession. Example: George lives on a make a choice. ranch which he claims he has inherited election under the will See: taking from his great uncle, but Betty sues for against the will ejectment on the basis that, in fact, she was entitled to the property through elective share The portion of a deceased her parents. person’s estate that the surviving spouse is entitled to claim under state law. In ejusdem generis (ee-joose-dem gen- many states, the elective share (also ris) Latin for “of the same kind.” called the statutory share) is about one- Used to interpret statutes when a law third of the deceased spouse’s property. lists classes of persons or things. For In some states, however, the amount example, if a law refers to automobiles, the surviving spouse can claim depends trucks, tractors, motorcycles, and other on whether or not the couple has young motor-powered vehicles, a court might children and, in a few states, on how use ejusdem generis to hold that such long the couple was married. In most vehicles would not include airplanes, states, if the deceased spouse left a will, because the list included only land- the surviving spouse must choose either based transportation. what the will provides or the elective elder law An area of law that addresses share. (See also: dower and curtesy) the legal needs of elderly people, Electronic Funds Transfer Act A federal including retirement benefits, estate law that gives consumers the right planning, health care, and other issues. to correct errors in ATM or bank electioneering Campaigning near statements relating to electronic funds a polling place. Electioneering is transfers (such as ATM use, point- prohibited within a certain distance of-sale purchases, and preauthorized from a polling place, typically 100 feet. withdrawals from a bank account) and limits a consumer’s liability for losses in election of remedies An outmoded the event of a stolen or lost ATM card. requirement that if a party files a claim based on two inconsistent legal electronic signature A paperless method theories, the party must choose one of entering into an electronic contract. theory to pursue, usually just before Under the Electronic Signatures Act,

148 emancipated minor

enacted in 2000, electronic contracts element 1) An essential requirement (with a few exceptions) are as enforce- necessary to make a claim or defense able as those executed on paper. The in court. For example, one element law does not specify an approved of ­assault is the intention to cause method of signing electronic agree- ­apprehension of harmful or offensive ments and various methods have been contact. If there is no evidence that the improvised including clicking an “I defendant intended to cause apprehen- Accept” button, typing “Yes,” typing sion, there is no assault. 2) An essential in a name, or using a “key” to encrypt ­requirement of a General Plan (a gov- (scramble) information that uniquely ernment’s long-range land-use policy). identifies the signer. elements (of a case) The component electronic surveillance An advanced parts of a legal claim or cause of action. form of eavesdropping. Electronic To win a lawsuit, a plaintiff must prove surveillance employs sophisticated elec- every element of a legal claim. For tronic equipment to intercept private example, here are the elements of a conversations or observe conduct that is breach of contract claim: There was a meant to be private. It includes the use valid contract. The plaintiff performed of small radio transmitters or “bugs” as specified by the contract. The to listen in on telephone or in-person defendant failed to perform as specified conversations, the use of lasers to inter- by the contract. The plaintiff suffered cept conversations inside a room from an economic loss as a result of the the slight vibrations of the window defendant’s breach of contract. glass, and the use of thermal imaging elements (of a crime) The component scopes for observing conduct inside a parts of crimes. For example, “robbery” structure. Many of these sophisticated is defined as the taking and carrying forms of surveillance require a search away of property of another by force warrant because they violate a person’s or fear with the intent to permanently reasonable expectation of privacy. This deprive the owner of the property. Each area of law is in a constant state of of those four parts is an element that flux as courts interpret the use of new the prosecution must prove beyond a ­technologies. reasonable doubt. eleemosynary (eh-luh-moss-uh-nary) emancipated minor A minor who has Charitable, as applied to a purpose or been released from the custody and institution. control of his or her parents.

149 emancipation emancipation 1) The act of setting free or taking funds or property of an employer liberating from a restraint or bondage or trust. (as in slavery). 2) To release a minor emblements Annual crops to which child from the care and control of the a tenant who cultivated the land is minor’s parents. Rules for emancipation entitled. If the tenant dies before vary from state to state. harvest, the right to harvest the crops embassy U.S. embassies represent the will pass to his or her heirs. U.S. government in other countries, emergency A sudden, unforeseen and are where the U.S. ambassador happen­ing requiring action to protect works. The United States has embassies lives or property. located in many countries around the world, usually in their capital city. The emergency doctrine A doctrine that U.S. may also operate smaller versions excuses a person from having to act of the embassy called “consulates” in with reasonable care if that person other cities within the same country, acted with a sudden and urgent need presided over by a U.S. consul. Most for aid in an emergency. U.S. embassies and consulates accept emergency protective order Any court- and process applications for both non­ issued order intended to protect a immigrant and immigrant visas. person from harm or harassment. An emergency protective order is issued by The Paradine Case. (1948) An Alfred the police, when court is out of session, Hitchcock mystery with Gregory Peck to prevent domestic violence. Most as a lawyer defending a beautiful woman emergency protective orders are stopgap (Alida Valli) on a charge that she murdered measures that last only for a weekend her wealthy husband. With Ann Todd, Charles or holiday, after which the abused Laughton, Charles Coburn, Ethel Barrymore. person is expected to seek a temporary restraining order (TRO) from a court. eminent domain The power of the embezzlement The crime of stealing federal or state government to take the funds or property of an employer, private property for a public purpose, ­company, or government or misappro- even if the property owner objects. The priating money or assets held in trust. Fifth Amendment to the United States embezzler A person who commits the Constitution allows the government to crime of embezzlement by fraudulently take private property if the taking is for a public use and the owner is “justly

150 employment

compensated” (usually, paid fair market subject to the employer’s direction as value) for his or her loss. A public use to the details of how to perform the is virtually anything that is sanctioned job. Employees are subject to payroll by a federal or state legislative body, tax code rules. (Compare: independent but such uses may include roads, contractor) parks, reservoirs, schools, hospitals, Employee Retirement Income Security or other public buildings. Sometimes Act (ERISA) A federal law that sets called condemnation, taking, or minimum standards for pension plans expropriation. and health benefit plans, to protect emolument Payment, profit, or gain as the employees covered by these plans. a result of employment or holding an ERISA requires plans to provide certain office. information to plan participants, imposes responsibilities on those who emotional distress Suffering in response manage and control the plans, and to an experience caused by the negli- requires plans to establish procedures gence or intentional acts of another; a for participants to get benefits from basis for a claim of damages in a lawsuit their plans, including an appeals brought for such an injury. Originally process. damages for emotional distress were awardable only in conjunction with employer The person or entity that hires damages for actual physical harm, but someone (an employee) to do work recently some courts have recognized for compensation and has the right to a right to an award of money damages control how the employee does the job. for emotional distress without physical employer identification number( EIN) injury or contact. In sexual harassment A number assigned to a business by and defamation claims, emotional the IRS after the business submits an distress can sometimes be the only application that is used for tracking harmful result. Professional testimony payments made to employees and taxes by a therapist or psychiatrist may be paid by the business. required to validate the existence and depth of the distress and place a dollar employment 1) The hiring of a person for value upon it. compensation, in which the employer has the right to control how the employee A person who is hired to work employee does the job. 2) The job for for another person or business (the which an employee is hired. employer) for compensation and is

151 Employment Authorization Document

Employment Authorization Document party an easement or lease (for a price, (EAD) More commonly called a work usually), or if the structure is small, permit, this is a photo identification actually moving it onto the owner’s card that certain nonimmigrants property. (foreign-born persons with a temporary encroachment The building of a struc- right to be in the United States) may ture entirely or partly on a neighbor’s apply for in order to show employers property. Encroachment may occur due evidence of their right or approval to to faulty surveying or by the builder’s work. deliberate decision. Solutions range employment taxes See: payroll taxes from paying the rightful property owner for the use of the property to the enabling clause A provision in a new court-ordered removal of the structure. law that empowers a particular public official—such as governor or state encumber To place a lien, mortgage, or treasurer—to put it into effect, including other encumbrance on real estate. making expenditures. encumbrance Any claim or lien on real en banc French for “on the bench,” used estate. Examples include mortgages, to indicate that all of the judges on an deeds of trust, tax liens, mechanic’s appeals court panel are participating in liens, easements, and water or timber a case. Courts generally hear cases en rights. Documents showing encum- banc when a significant issue is at stake brances are usually recorded in the or at the request of the parties. local land records office (commonly called the county recorder or registry of enclosure (inclosure) The act of creating deeds). Also called incumbrance. a boundary around land that limits access to it, for example by a fence, endorsement (indorsement) The placing wall, hedge, ditch, or other physical of a signature on the back of a check, barrier. bill of exchange, or other negotiable instrument so as to make it cashable or encroach To build a structure in whole transferable. or in part on another’s real property. This may occur due to incorrect surveys, endowment Money or property given guesses or miscalculations by builders to an institution for a specific purpose. and or owners when erecting a building, Most often, an endowment is a gift of or by deliberate choice. The solutions money and the principal isn’t spent— vary from giving the encroaching instead, the income from the principal

152 enter a judgment

is used for the benefit of the institution certain act. To obtain such an order, or its members. called an injunction, a private party or public agency has to convince a endowment insurance Provides that judge that speedy action is needed in an insured person who lives for the order to prevent irreparable harm or specified endowment period receives injury. The court will hold a hearing to the face value of the insurance policy— consider evidence from both sides. If that is, the amount paid at death. If the the court grants the writ, the injunction policyholder dies sooner, the beneficiary can be preliminary (the court will named in the policy receives the consider more evidence later, at trial) proceeds. or permanent (but despite its name, a Engel v. Vitale (1962) A U.S. Supreme permanent injunction might not last Court case based on the doctrine of forever). separation of church and state, in which, organized prayer in public schools was declared unconstitutional. “In colonial America Esq. seems to have been confined to justices of the peace, English-only rule A workplace who acquired thereby the informal title of requirement that prohibits employees Squire, but inasmuch as every lawyer of any from speaking any language other dignity became a justice almost automatically, than English. An English-only rule is it was eventually applied to most members of valid only if it is justified by business the bar.” necessity and limited in scope to serve —H.L. Mencken those business needs. For example, if an employer adopted an English-only policy for workers on a factory line enjoyment 1) To exercise a right. 2) The for safety purposes, that would be use of funds or occupancy of property. justified by business necessity. If the (See also: quiet enjoyment) same employer prohibited employees enrolled agent (EA) A type of tax pro- from speaking any other language fessional who is permitted to practice while eating lunch or smoking in ­before the IRS and can represent the company parking lot, that would taxpayers in audits, collections, and probably be too broad. appeals. enjoin A court order that someone do a enter a judgment To officially record a specific act, cease a course of conduct, judgment on the “judgment roll” after or be prohibited from committing a

153 entity

the judge has approved and signed it. effects that a land development or This task is the responsibility of the construction project would have on court clerk. the local environment, such as on the air quality, noise levels, population, entity An organization, institution, or traffic patterns, fire danger, endangered being that has its own existence for species, archeological artifacts, and legal or tax purposes. An entity is often community beauty. Many states require an organization with an existence submission of such reports to local separate from its individual members— governments, with a process for public for example, a corporation, partnership, comment, before a development or trust, estate, or government agency. project can be approved. The entity is treated like a person; it can function legally, be sued, and make environmental law A body of state, decisions through agents. federal, and international statutes and court decisions intended to protect entrapment An act by the police or the environment (natural resources, their agents, such as informants, to wildlife, landscape, and amenities) from induce a person to commit a crime pollution, misuse, overuse, and other for the purpose of prosecuting that damage. Environmental laws both person for that induced crime. If the regulate activities and give individuals judge or jury believes that the person and groups the right to bring legal was predisposed to commit the crime actions to enforce its protections or anyway, even when the government remedy environmental harms. agent suggested the crime or even helped with its commission, they are Equal Employment Opportunity unlikely to accept an entrapment Commission (EEOC) The federal defense. Entrapment defenses are agency responsible for interpreting difficult to mount for defendants with and enforcing laws that prohibit prior convictions. employment discrimination, such as Title VII of the Civil Rights Act entry A transaction recorded in the of 1964, the Age Discrimination in bookkeeping records of a business. Employment Act, and the Americans entry of judgment Placement of a judg­ with Disabilities Act. ment on the official roll of judgments. equal-opportunity employer An employer environmental impact report (EIR) A that does not discriminate on the basis detailed, written analysis of all the of race, color, national origin, gender,

154 equity

religion, age, or disability. Employers equal, but the court is not required to typically claim to be equal-opportunity divide assets equally. In some states, a employers in job advertisements spouse who is guilty of “fault” actions or postings (sometimes using the like adultery may receive less than an abbreviation EOE) to make themselves equal share, and other factors may more attractive to job candidates. contribute to an unequal distribution that is still considered equitable and Equal Pay Act A federal law that prohibits fair. (Compare: community property) sex-based wage discrimination between men and women in the same establish- equitable estoppel See: estoppel ment who are performing under similar equitable lien A lien on property, working conditions. imposed by a court to achieve a fair equal protection The right, guaranteed result. For example, if someone has by the Fourteenth Amendment to embezzled money from a business, the the U.S. Constitution, to be treated business might sue an ask the court the same, legally, as others in the for an equitable lien on the embezzler’s same situation. If a law discriminates property. (See also: constructive trust) between one group of people and equitable ownership See: beneficial another, the govern­ment must have ownership a rational basis for doing so. A law that discriminates on the basis of a equitable relief When a court awards suspect classification—that is, it makes a nonmonetary judgment, such as an a distinction based on race, gender, order to do something (mandamus or or another trait that has historically specific performance) or refrain from resulted in discriminatory treatment— doing something (injunction), when is constitutional only if there is a very monetary damages are not sufficient to compelling reason for the distinction. repair the injury. equitable Fair; based on principles of equity 1) The net value of real estate, justice. (See also: equitable relief) determined by subtracting the amount of unpaid debts secured by the property equitable distribution A legal principle from its market value. 2) A set of legal followed by most states, under which principles that operates in addition assets and earnings acquired during to statutes and common law and is marriage are divided equitably (fairly) intended to give judges flexibility to at divorce. Some states start with the achieve a just result. If traditional presumption that equitable means

155 equity of redemption

legal remedies (which usually involve statutes usually spell out the terms compensation with money) wouldn’t under which redemption is available. be fair in a particular case, a judge can (See also: redemption) use an equitable remedy. A court might equivalent Equal in value, force, or issue an order (injunction) directing meaning. someone to do something or stop doing something. For example, if someone ergo Latin for therefore. has built a garage that extends over ERISA See: Employee Retirement Income the neighbor’s property, a court might Security Act order the garage owner to tear it down. By contrast, the legal remedy would erroneous See: clearly erroneous be for the owner to compensate the error 1) A legal mistake. 2) A mistake of neighbor for the loss in property value. law or fact by a judge or court. The rules of equity arose in England when the strict limitations of common errors and omissions Shorthand for law would not solve all problems, so malpractice insurance, which gives the crown set up courts of chancery physicians, attorneys, architects, (equity) to provide remedies through accountants, and other professionals the royal power. Most eastern states had coverage for claims by patients courts of equity or chancery separate and clients for alleged professional from courts of law, but now most states errors and omissions that amount to combine law and equity. negligence. escalator clause Provision in a lease or “Now, as always, the conflict over other agreement which provides for an technicalities, mostly procedural, between increase (in rent, installment payments, judge and lawyers, takes more time than is alimony, or some other financial occupied by the actual evidence.” payment) when the cost of living index —Harold J. Laski (or a similar gauge) goes up. Often there is a maximum amount or cap on the increase. equity of redemption In foreclosure, escape clause A provision in a contract the homeowner’s right, for a certain that allows one of the parties to be period of time, to redeem the mortgage excused from an obligation if a certain and keep the house by refinancing and event occurs. paying off the original mortgage. State

156 estate tax escheat The forfeit of all property to the the person holding the job absolutely state when a person dies without heirs, must be able to do. An employee with descendants, or named beneficiaries. a disability must be able to perform (Compare: intestate) the essential job functions, with or without a reasonable accommodation, escrow The holding of funds or docu­ to be protected by the Americans with ments by a neutral third party prior to Disabilities Act. closing a sale. For example, buyers and sellers of real estate commonly hire an estate Generally, all the property a escrow agent to facilitate the transfer. person owns at death. Business sales also sometimes involve estate by entirety See: tenancy by the escrow arrangements. entirety escrow agent A person (often an attorney) estate planning The art of continuing to or a company that handles escrow prosper when you’re alive, and passing arrangements. Also sometimes called a your property to your loved ones with a title agent. minimum of fuss and expense after you escrow instructions Written instructions, die. Planning your estate may involve signed by a buyer and seller, telling an making gifts, buying insurance, and escrow agent what needs to happen creating a will, living trust, health care before the deal (usually a real estate directives, durable power of attorney for sale) closes. finances, or other documents. espionage The act of spying on or moni- estate tax A tax imposed by the federal toring the activities of a govern­ment government, and by some states, on or company in order to gather secret property transferred at someone’s death. information. All property, however owned and whether or not it goes through probate espousal 1) A promise between two court before being given to inheritors, people that they will marry each other. is subject to estate tax. In practice, 2) Taking up an idea or cause. however, very few estates—fewer than esquire A form of address showing that 1%—actually owe federal estate tax. someone is an attorney, usually written That’s because the first $3.5 million of Albert Pettifog, Esquire, or simply Esq. property is exempt from the tax, and you can leave an unlimited amount essential job functions The fundamental tax-free to a surviving spouse or charity. duties of a position—those things that The federal estate tax is scheduled to

157 estate tax threshold

be repealed entirely in 2010 and then he or she stated in a deed, especially come back with a $1 million exemption regarding who has valid ownership of in 2011, but it’s more likely that property. Congress will make the $3.5 million estoppel by silence A type of estoppel exemption permanent before 2010. that prevents someone from asserting (Compare: inheritance tax) something when that person had both estate tax threshold The dollar amount the duty and the opportunity to speak of an estate at which estate tax might up earlier, and his or her silence put be due. For example, if you die in a year another person at a disadvantage. where the federal estate tax exception is estoppel in pais See: equitable estoppel $3.5 million, then your estate may owe estate taxes if your estate is larger $3.5 et al. (et ahl) Abbreviation for the Latin million at that time. phrase “et alia,” meaning “and others.” This is commonly used in shortening estimated taxes Quarterly tax payments the name of a court case, so that made by self-employed individuals to instead of listing all the plaintiffs or the IRS and state tax agencies for their defendants, one of them will be listed anticipated income tax liability for followed by the term “et al.” the year, in lieu of withholding from a paycheck. Estimated tax payments ethical will A document or materials in are used to pay both income and self- which a person expresses the beliefs and employment taxes. experiences that have mattered most in his or her life. An ethical will has estop To halt, bar, or prevent. (See also: no legal significance; it is intended to estoppel) convey the maker’s core values to loved estoppel A legal principle that prevents ones. a person from asserting or denying et seq. (et sek) Abbreviation for the Latin something in court that contradicts phrase “et sequentes,” meaning “and what has already been established as the following.” It is commonly used the truth. (See also: equitable estoppel, by lawyers to include numbered lists, promissory estoppel, collateral estoppel, pages, or sections after the first number estoppel by deed, estoppel in pais) is stated, as in “the rules of the road are estoppel by deed A legal principle that found in Vehicle Code Section 1204, et prevents a person from asserting or seq.” denying the truth of anything that et ux. See: et uxor

158 examination et uxor (et-ux-or) Latin for “and wife.” testimony of witnesses, documents, Often appears in its abbreviated form, photographs, items of damaged et ux. In older deeds and documents, property, government records, videos, the phrase was used to indicate that and laboratory reports. Strict rules a property was owned by a couple, limit what can be properly admitted consisting of a named man and his as evidence, but dozens of exceptions unidentified wife (for example, John often mean that creative lawyers find Smith et ux.). In the present day, both a way to introduce such testimony or parties are usually identified by name. other items into evidence. (See also: admissible evidence, inadmissible euthanasia Bringing about the death evidence) of a person who is terminally ill and, usually, suffering. Sometimes called evidentiary 1) Constituting evidence mercy killing. or having the quality of evidence. For example, someone’s statement at the evaluation agreement A contract in scene of a car wreck that one of the which one party promises to submit drivers was speeding has evidentiary an idea and the other party promises value because it says something about to evaluate it. After the evaluation, how the accident happened. 2) Some- the evaluator will either enter into thing that relates to the evidence in a an agreement to exploit the idea or particular case. For example, if a judge promise not to use or disclose the idea. holds a hearing to decide whether or evasion of tax The intentional attempt to not a particular piece of evidence can avoid paying taxes through fraudulent be admitted at trial, that hearing might means, as distinguished from errors, be called an evidentiary hearing. late payment, or using legal “loopholes.” examination 1) The questioning of a eviction Removal of a tenant from rental witness by an attorney (or other party property by a law enforcement officer. if the other party is self-represented). First, the landlord must file and win Direct examination is interrogation by an eviction lawsuit, also known as an the attorney who called the witness, and “unlawful detainer.” cross-examination is questioning by the opposing attorney. 2) In bankruptcy, evidence The many types of information the questions asked of a debtor by the presented to a judge or jury designed to judge, trustee in bankruptcy, attorneys, convince them of the truth or falsity of or creditors, to determine the state of key facts. Evidence typically includes the debtor’s affairs. 3) In criminal law, a

159 examination report

preliminary examination is a hearing to a trade or barter. 3) Short for “Starker” determine whether a defendant charged exchange, an exchange of investment with a felony should be held for trial. real estate to defer capital gains tax. examination report The report issued excise A federal or state tax imposed on by an IRS auditor after an audit is the manufacture, sale, or use of goods concluded with its findings. or on an occupation or activity (such as a business license). Sometimes called an exception 1) A flowery way a lawyer excise tax. might tell a judge that the lawyer dis­ agrees with the judge’s ruling, often excited utterance An exception to the said after the judge rules against hearsay rule that finds an out-of-court a lawyer who has objected to the statement to be inherently reliable if it admission of evidence. In modern is made about a startling event while practice, it is not necessary “to take the person making the statement is exception” to a judge’s adverse ruling, experiencing that event. because it is assumed that the attorney exclusionary rule A rule of evidence that against whom the ruling is made disallows the use of illegally obtained objects. 2) In contracts, statutes, and evidence in criminal trials. For example, deeds, a statement that something is the exclusionary rule would prevent not included, as in “Landlord rents a prosecutor from introducing at trial to Tenant the first floor, with the evidence seized during an illegal search. exception of the storage room.” exclusive license A written contract in exception in deed A statement in a which the owner of a patent, copyright, deed transferring real estate, reserving trademark, or trade secret authorizes, certain rights—for example, mineral for a limited time, someone (the rights or a life estate—to the transferor. licensee) to exclusively exercise one or excessive bail An amount of bail that’s more of the rights. For example, the more than necessary or usual to copyright owner of a comic book may assure that the defendant will appear exclusively license the video game rights for subsequent court appearances. A to a game company. Once a license defendant can claim excessive bail and terminates, the owner regains the make a motion to have it reduced. rights. (Compare: assignment) exchange 1) To trade or barter property, exculpatory A description of evidence in goods, or services for other property, a criminal trial that serves to justify, goods, or services. 2) The act of making

160 executive clemency

excuse, or introduce a reasonable within the required time period. doubt about the defendant’s alleged Illness, press of business by the lawyer actions or intentions. Exculpatory (but not necessarily the defendant), evidence may ultimately show that the or an understandable oversight by defendant is not guilty. No wonder the lawyer’s staff (“just blame the police and prosecutors must, to uphold secretary”) are common excuses which the defendant’s constitutional right the courts will often accept. to due process, tell the defense about any exculpatory evidence they’ve discovered. “A government of laws and not of men” —Constitution of the Commonwealth exculpatory clause A provision in a lease of Massachusetts, written by John Adams that absolves the landlord in advance from responsibility for all damages, injuries, or losses occurring on the ex delicto (ex dee-lick-toe) Latin phrase property, including those caused by the referring to something that arises out of landlord’s actions. Most states have laws a fault or wrong (tort), but not out of a that void exculpatory clauses in rental contract. agreements, which means that a court will not enforce them. execute 1) To finish, carry out, or per- form as required, as in fulfilling one’s exculpatory evidence Evidence that obligations under a contract, plan, or points toward a defendant’s innocence. court order. 2) To complete and other- Prosecutors are required to automatically wise make valid a document, such as a hand over such evidence to the defense, will, deed, or contract, for example by even if the defense doesn’t request signing it and having it notarized. 3) To it, and a showing that this rule was put someone to death pursuant to a violated can sometimes result in a court-rendered sentence (capital punish- conviction being reversed. ment). 4) To murder or assassinate. excusable neglect A legitimate excuse executed remainder See: vested remainder for the failure of a party or his or her lawyer to take required action execution The act of executing a task on time (like filing an answer to a or carrying out a murder or death complaint). This is usually claimed sentence. (See also: execute) to set aside a default judgment for executive clemency The power of a failure to answer or otherwise respond president or governor to pardon a per-

161 executive order

son convicted of a crime or commute that has not yet been distributed to the (shorten) the sentence to be served. beneficiary. executive order A declaration by the executory interest An interest in president or a governor which has the property (particularly real estate) that force of law, usually based on existing will pass to another only if certain statutory powers, and requiring events occur. no action by the Congress or state executory remainder See: contingent legislature. remainder executive privilege The privilege that executrix An old-fashioned term for a allows the president and other high female executor—the person named officials of the executive branch to in a will to handle the distribution of keep certain communications private if the deceased person’s property. Now, disclosing those communications would whether male or female, this person disrupt the functions or decision- is called the executor or personal making processes of the executive representative. branch. As demonstrated by the Watergate hearings, this privilege does exemplary damages Damages awarded not extend to information germane to a over and above special and general criminal investigation. damages to punish a losing party’s willful or malicious misconduct. executor The person named in a will to Sometimes called punitive damages. handle the property of someone who has died. The executor collects the exempt employee An employee who is property, pays debts and taxes, and then not entitled to extra pay for overtime distributes what’s left, as specified in hours worked under the Fair Labor the will. The executor also handles any Standards Act (FLSA). probate court proceedings and notifies exemption 1) In tax law, an amount people and organizations of the death. taxpayers are allowed to deduct Also called personal representative. from their taxable income based on (Compare: administrator) a circumstance or their status. Each executory Not yet performed or done. year, taxpayers get an exemption for For example, an executory contract is themselves, each dependent, blindness one in which all or part of the required or other disability, and for being over performance has not been done, and age 65. 2) In debt and bankruptcy, an executory bequest is a gift in a will protection for certain types and

162 expectancy

amounts of assets from being taken exhibit 1) A document or object by creditors or by the trustee in (including a photograph) introduced as bankruptcy court to pay off debts. S( ee evidence during a trial. 2) a copy of a also: homestead exemption) paper attached to a pleading (any legal paper filed in a lawsuit), declaration, exemption trust A bypass trust funded affidavit, or other document, which is with an amount no larger than the referred to and incorporated into the personal federal estate tax exemption main document. for the year of death. If the trust grantor leaves property worth more ex officio (ex oh-fish-ee-oh) Latin for than that amount, it usually goes to the “from the office.” Used when someone surviving spouse. The trust property holds one position because of the passes free from estate tax because of authority he or she has from another the personal exemption, and the rest is position (such as being on a committee shielded from tax under the surviving simply because one is president of the spouse’s marital deduction. corporation). exempt property Property that may ex parte Latin meaning “for one party,” not be seized by creditors and does referring to motions, hearings, or orders not have to be forfeited in Chapter 7 granted on the request of and for the bankruptcy. Each state has its own list benefit of one party only. This is an of exempt property; in some states, exception to the basic rule of court debtors may choose between the procedure that both parties must be state’s list and a federal list. Typically, present at any argument before a judge, states exempt clothing, household and to the otherwise strict rule that an furnishings, tools of the debtor’s trade, attorney may not notify a judge without personal belongings, and other basic previously notifying the opposition. possessions. Many states also exempt a Ex parte matters are usually temporary certain amount of the debtor’s equity in orders (like a restraining order or a home and a vehicle. temporary custody) pending a formal hearing, or an emergency request for a exhaustion A principle in patent law continuance. that a patent owner cannot later sue a customer who purchased an authorized expectancy The possibility of future copy of a patented product. In other enjoyment of something one counts words, the patent owner’s rights are on receiving, usually referring to real exhausted after the sale. property or the estate of a deceased

163 expense

person, such as a remainder, reversion, witness on a subject relevant to a or distribution after the death of lawsuit or a criminal case. someone who has use for life. expert witness A person who is a expense In business accounting and specialist in a subject who is asked business taxation, any current cost of present his or her expert opinion in a operation, such as rent, utilities, and trial or deposition without having been payroll, as distinguished from a capital a witness to any occurrence relating expenditure for long-term property and to the lawsuit or criminal case. Expert equipment. witnesses are paid for their services. ex post facto Latin for “after the fact.” The so-called Field Codes, used as Refers to laws adopted after an act the model for basic laws in California is committed, making it illegal and several other western states, were written retroactively. Or, it can refer to laws by attorney David Dudley Field for New York, that increase the penalty for a crime but were never fully adopted by that state. after it is committed. Such laws are However, his brother, Stephen Field, came to specifically prohibited by the U.S. California in the Gold Rush, became a member Constitution, Article I, Section 9. of the California state legislature and had the codes adopted there. Soon they were copied express Directly and unambiguously by several other states. Stephen Field was stated or communicated, particularly in later appointed to the U.S. Supreme Court. a contract. Other Field brothers were Cyrus, who laid the express contract A contract in which Atlantic Cable, and Henry, a noted writer and all of the essential terms are explicitly theologian. stated. (Compare: implied contract) express notice See: actual notice expenses of administration The costs of express warranty 1) In consumer or wrapping up a deceased person’s estate commercial transactions, a guarantee and distributing property. They may about the quality of goods or services include attorney fees, appraisal, costs, made by a seller, such as, “This and probate court fees. item is guaranteed against defects expert testimony An opinion stated in construction for one year.” Most during a trial or deposition (testimony express warranties come directly from under oath before trial) by an expert the manufacturer or are included in

164 extortion

the sales contract. 2) An assurance or Many consumers are encouraged to promise made by a contracting party. buy extended warranties (also called service contracts) when they buy cars expropriation Taking of property or or appliances. In the case of appliances rights by governmental authority, most and electronic equipment, extended commonly by eminent domain. warranties are all profit for the seller expunge To intentionally destroy, obliter- and not much benefit to the buyer ate, or strike out records or informa- because only a small percentage of tion in files, computers, and other these goods ever break down during an depositories. For example, state law extended warranty period. An extended may allow the criminal records of a warranty may make sense, however, if juvenile ­offender to be expunged when you are buying a brand new model in he reaches the age of majority, to allow the first few months after it has been him to begin his adult life with a clean manufactured. record. Or, a company or government extension The granting of a specific agency may routinely expunge out-of- amount of extra time to make a date records to save storage space. payment, file a legal document after the ex rel. Abbreviation for Latin ex relatione, date due, or continue a lease after the meaning “upon being related” or, more original expiration of the term. loosely, “on behalf of.” The phrase is extenuating circumstances Surrounding typically used in the title of a legal or mitigating factors that reduce a proceeding filed by the government, party’s level of responsibility or guilt, to indicate the name of an interested whether in a civil or criminal trial. private party who pushed for the Successfully showing extenuating instigation of the suit. For example, a circumstances might result in a case caption might read: The State of lower damage award, a more lenient Tennessee ex rel. Archie Johnson v. Hardy punishment, or a lesser charge. Products. Such suits usually happen when the private party’s interests extinguishment The cancellation or happen to coincide with those of the destruction of a right or interest, quite government or the public. often because the time for enforcement has passed. extended warranty contracts Warranty coverage on an item that kicks in extortion The crime of obtaining after the warranty coverage provided money or property by threat to a by the manufacturer or seller expires. victim’s property or loved ones,

165 extradite

intimidation, or false claim of a right extraordinary fees Attorneys fees claimed (such as pretending to be an IRS in the administration of a dead person’s agent). A direct threat to harm the estate for work beyond normal estate victim is usually treated as the crime administration, including filing col- of robbery, however. Extortion is a lection suits, preparing tax returns, or felony in all states. Blackmail is a form requiring unusual effort beneficial to of extortion in which the threat is to the estate. This claim is in addition to expose embarrassing and damaging the usual statutory or court-approved information to family, friends, or the legal fees. An attorney claiming extra­ public. ordinary fees must submit proof of time, effort, and benefit to justify the extradite To surrender someone who claim, and the final determination is at has been charged with a crime to the judge’s discretion. another state or country, or to obtain the surrender of someone from another jurisdiction. “Laws grind the poor, and rich men rule extradition When a state or country the law.” ­surrenders a person charged with a —Oliver Goldsmith crime to the state or country that made the charge (literally, sends the person back). The rules and procedures for extreme cruelty A ground for divorce ­extradition are governed by interna- based on the infliction of physical or tional treaties, the U.S. Constitution, mental harm on one spouse by the and U.S. federal and state laws. Occa- other. Although all states now have sionally a leader will refuse to extradite “no-fault divorce,” some states still a person if satisfied that the prosecution recognize fault as a ground for divorce, is not warranted. and in other states evidence of cruelty may result in division of property that extrajudicial Actions outside the judicial favoring who was the victim of extreme (court) system, such as an extralegal cruelty. confession, which, if brought in as evidence, may be recognized by the extrinsic evidence Evidence relating to judge during a trial. a contract but not contained in the written document, such as circum- extraordinary compensation See: stances surrounding the agreement or extraordinary fees statements made by the parties. This

166 eyewitness

evidence may be admitted if the docu- against a lawsuit. This could include ment’s meaning is ambiguous. (See destroying evidence or misleading an also: parol evidence rule) ignorant person about the right to sue. extrinsic fraud Fraudulent acts which eyewitness A person who has actually keep a person from obtaining inform­ seen or observed an event and can so ation about his or her rights to enforce testify in court. (Compare: earwitness) a contract or getting evidence to defend

167 F

face amount The original amount due on failure of issue A situation in which a a promissory note or insurance policy person dies without children or other as stated in the document, without direct descendants who could have calculating interest. (See also: par value) inherited property. face value See: face amount fair comment A statement of opinion (no matter how ludicrous) based on facts fact An actual thing or happening, which which are correctly stated, and which must be proved at trial by presentation does not allege dishonorable motives on of evidence and which is evaluated by the part of the target of the comment. the finder of fact (a jury in a jury trial, The U.S. Supreme Court has ruled or by the judge if he or she sits without that to protect free speech, statements a jury). made about a public person (politician, fact finder In a trial of a lawsuit or officeholder, movie star, author, etc.), criminal prosecution, the jury or judge even though untrue and harmful, (if there is no jury) who decides if are fair comment unless the victim facts have been proven. Occasionally a can prove the opinions were stated judge may appoint a “special master” to maliciously—with hate, dislike, intent, investigate and report on the existence or desire to harm. Fair comment is a of certain facts. crucial defense used by members of the media against libel suits. factor A person who buys or sells in his or her own name on behalf of others, Fair Credit Billing Act (FCBA) An taking a commission for services. Also, amendment to the Truth in Lending a person or company that buys or sells Act that gives consumers the right to accounts receivable at a discount or as challenge errors on their credit card security for short-term loans. statements. Once notified of an error, the company must either correct it or failure of consideration The refusal explain why it believes the statement is or inability of a contracting party to correct within set time limits. perform its side of a bargain.

168 fair use

Fair Credit Reporting Act (FCRA) A groups to providing different services federal law that regulates the use and during the tenancy. They also apply to content of credit reports to protect the buying and selling of real estate. consumer privacy and ensure the Fair Labor Standards Act (FLSA) A accuracy of the information they federal law that guarantees a worker’s contain. The FCRA restricts the right to be paid fairly. The FLSA sets information that may be included out the federal minimum wage, states in a credit report, limits who may requirements for overtime, and places request a credit report and how the restrictions on child labor. report may be used, and requires credit reporting agencies and those who fair market value The amount for which use credit reports (such as employers property would sell on the open and landlords) to follow specified market. This is distinguished from procedures in dealing with consumers. “replacement value,” which is the cost of duplicating the property. Fair Debt Collection Practices Act (FDCPA­ ) A federal law that prohibits certain debt collection practices, “Woe unto you, lawyers, for ye have taken including harassing, abusing, or away the key of knowledge.” lying to debtors, contacting third —The Bible, Luke 11:52 parties about a debt (except in limited circumstances), and contacting debtors at work or at inconvenient hours. The fair trade laws State laws that permitted FDCPA applies only to debt collectors manufacturers or producers to set who work for collection agencies, minimum rates for the resale of the not those who work for the original product. They have been repealed in creditor. most states. Fair Housing Act & Fair Housing Amend­ fair use A copyright principle that ments Act Federal laws that prohibit excuses unauthorized uses of a work housing discrimination on the basis of when used for a transformative race or color, national origin, religion, purpose such as ­research, scholarship, sex, familial status, or disability. The parody, criticism, or journalism. When federal Acts apply to all aspects of the determining whether an infringement landlord/tenant relationship, from should be excused on the basis of fair refusing to rent to members of certain use, a court will use several factors

169 false arrest

including the purpose and character of not be liable for a false arrest, even if it the use, amount and substantiality of turns out later that the information the the ­portion borrowed, and effect of the officer relied upon was incorrect. use on the market for the copyrighted false pretenses The crime of knowingly material. Fair use is a defense rather making untrue statements for the than an affirmative right—that is, a purpose of obtaining money or particular use only gets established as a property fraudulently. It is one form of fair use if the copyright owner decides theft. False pretenses include claiming to file a lawsuit and the court upholds zircons are diamonds, turning back the the fair use defense. odometer on a car, or falsely stating false arrest See: false imprisonment that a mine has been producing gold when it has not. false imprisonment A crime in which the perpetrator intentionally restrains family A group of people related by another person without having the consanguinity or affinity. legal right to do so. This can literally family allowance A certain amount of mean physical restraint, such as a deceased person’s money to which locking someone in a car or tying the immediate family members are entitled person to a chair. However, it’s not at the beginning of the probate process. necessary that physical force be used; The allowance is meant to help support threats or a show of apparent authority the surviving spouse and children are sufficient. False imprisonment during the time it takes to probate the is a misdemeanor and a tort (a civil estate. The amount is determined by violation). If the perpetrator confines state law and varies greatly from state the victim for a substantial period of to state. time (or moves the victim a significant distance) in order to commit a felony, Family and Medical Leave Act (FMLA) the false imprisonment may become a A federal law that requires qualifying kidnapping. People who are arrested employers to provide eligible employees and get the charges dropped, or are with 12 weeks of unpaid leave during later acquitted, often think that they a 12-month period to bond with a new can sue the arresting officer for false child, care for a family member with a imprisonment (also known as false serious medical condition, or recover arrest). These lawsuits rarely succeed:A s from a serious medical condition. At long as the officer had probable cause the end of the leave, the employer must to arrest the person, the officer will allow the employee to return to the

170 federal court

same or an equivalent position to that spouse was legally at fault, to obtain held before taking the leave. a divorce. The “innocent” spouse was then granted the divorce from family court A separate court or a the “guilty” spouse. The traditional separate division of the regular state fault grounds for divorce are adultery, trial court, that considers only cases cruelty, desertion, confinement in involving family-related issues, which prison, physical incapacity, and incur- could include divorce, child custody able insanity. Today, all states offer and support, guardianship, adoption, no-fault divorce, but quite a few states and the issuance of restraining orders in also still allow a spouse to allege fault domestic violence cases. in obtaining a divorce, and some states family limited partnership A type of also allow the court to consider fault in partnership comprising only related dividing property or awarding custody family members, usually created by or visitation. parents in order to pass on a family FCBA See: Fair Credit Billing Act business or investments to their children. It provides significant FCRA See: Fair Credit Reporting Act federal gift and estate tax benefits FDCPA See: Fair Debt Collection because members of a family limited Practices Act partnership (sometimes referred to as a FLP—pronounced “flip”) own FDIC See: Federal Deposit Insurance shares in the partnership which can Corporation be transferred between generations at federal benefit rate The share of the SSI lower tax rates. grant paid by the federal government. family pot trust See: pot trust Many states add a supplementary grant to the federal benefit rate. family purpose doctrine The doctrine that the registered owner of a vehicle federal court A branch of the United is liable for any damage caused by any States government with power derived member of the owner’s family while directly from the U.S. Constitution. operating the vehicle. Federal courts decide cases involving the U.S. Constitution, federal law—for FAPE See: free appropriate public example, patents, labor law, federal education taxes, and federal crimes, such as fault divorce A tradition that required robbing a federally chartered bank. one spouse to prove that the other Federal courts may also decide cases

171 federal courts

where the parties are from different to regulate business practices and states and are involved in a dispute for enforce antitrust laws. The FTC $75,000 or more. often shows up in the news when big businesses attempt to merge, but it also federal courts See: federal court plays a role in protecting consumers Federal Deposit Insurance Corporation from unfair business practices, (FDIC) A federal agency that promotes including actions by collection agencies public confidence in the U.S. financial and credit bureaus. While the FTC system by insuring deposits in banks generally does not have authority to and by limiting the effect on the intervene in specific consumer disputes, economy when a bank fails. it can take action against a company about which it has received numerous federal question A basis for filing a consumer complaints. lawsuit in federal district court— namely, that it is based on subjects Federal Unemployment Tax Act (FUTA) enumerated in the U.S. Constitution or Legislation which requires employers a federal statute is involved. Existence to contribute to a fund that pays of a federal question gives the federal unemployment insurance benefits. court jurisdiction. fee 1) Absolute title in land. It often federal tax deposits (FTD) The biweekly appears in deeds which transfer title or monthly deposit an employer is as “Mary Jo Stone grants to Howard required make in a federal depository Takitall in fee ….” The word “fee” can (bank) to submit payroll taxes withheld be modified to show that the title was from employees, as well as employer “conditional” on some occurrence or contributions for Social Security and could be terminated (“determinable”) Medicare taxes, to the IRS. upon a future event. 2) A charge for services. Federal Tort Claims Act A statute that allows recovery for damages caused fee simple An old term meaning complete by a federal employee if the injury ownership of real estate. Owners with occurred in the scope of the employee’s fee simple have no legal restrictions job. It also establishes regulations and on their freedom sell the property, procedures for making such claims in give it away, or leave it at death. it is federal courts. some­times used in real estate deeds, as in “Harry Hernandez grants to Federal Trade Commission (FTC) A Roberta Irving title in fee simple ….” federal government agency established (Compare: fee tail)

172 fertile-octogenarian rule fee tail A form of real estate ownership, accidental death, to be charged against now abolished, that required property the felon as first-degree murder. A to be passed only to the descendants of felon can be guilty of murder during a certain person. This kept land in the the course of the dangerous felony family indefinitely. even if the felon is not the killer, as might happen when a robber kills a felon A person who has been convicted clerk—the driver of the getaway car, as of a felony, which is a serious crime well as the robber, may be charged with punishable by imprisonment or in for first-degree murder. The rule extends the most serious felonies, death. to unusual circumstances, such as the felonious 1) Refers to an act done with killing of one of two bank robbers by criminal intent. The term is used to a bank security officer (the surviving distinguish between a wrong that robber may be charged with murder). was not malicious and an intentional Feres doctrine A legal doctrine that pre- crime, as in “felonious assault,” which vents people who are injured as a result is an attack meant to do real harm. of military service from successfully 2) Relating to a felony. suing the federal government under the felony A serious crime (contrasted with Federal Tort Claims Act. The doctrine less serious crimes such as misdemean- comes from the U.S. Supreme Court ors and infractions), usually punishable case Feres v. United States, in which by a prison term of more than one year ­servicemen who picked up highly or, in some cases, by death. For exam- radioactive weapons fragments from a ple, murder, extortion, and kidnapping crashed airplane were not permitted to are felonies; a minor fist fight is usually recover damages from the government. charged as a misdemeanor, and a speed- Also known as the Feres-Stencel doc- ing ticket is generally an infraction. trine or the Feres rule. In some states, certain crimes (known fertile-octogenarian rule An unrealistic as wobblers) may be charged as both legal fiction that any living person a misdemeanor and a felony, and the (male or female) is capable of having eventual designation depends on the a child. In estate planning, this defendant’s ability to fulfill the condi- rule could defeat the intentions of a tions of his sentence. (See also: wobbler) person leaving property to others. For felony murder doctrine A rule that example, if property could not pass to allows a killing that occurs in the one’s child as long as he or she might course of a dangerous felony, even an acquire a sibling, then the child would

173 FICA tax

have to wait until both parents died, defendants are not permitted in federal unnecessarily tying up the property. cases. Most states have passed laws to cure fictitious name Fictitious names are this anomaly. often used in conducting a business. They may also be used when filing a A Few Good Men. (1992) Tom Cruise, lawsuit against a party whose real name assisted by Demi Moore, defends young is unknown or when it is appropriate to marines charged with murder. With Jack conceal the true name of the party. (See Nicholson. also: doing business as) fiduciary A person or company that has the power and obligation to act FICA tax Short for Federal Insurance for another under circumstances Contributions Act tax, it is a payroll tax which require total trust, good faith, that incorporates the Social Security and honesty. Fiduciaries can include tax and Medicare tax. The FICA tax is trustees, business advisers, attorneys, 15.3% of an individual’s earned income guardians, administrators of estates, up to a certain limit (called the Social real estate agents, bankers, stock Security Wage Base) that increases each brokers, title companies, or anyone year, and then 2.9% of wages without who undertakes to assist someone who limit. places complete confidence and trust in FICO Abbreviation for Fair Isaac Corpor­ that person or company. ation, the biggest credit scoring fiduciary relationship A relationship in company. (See also: credit score) which an individual places complete fictitious business name See: fictitious confidence, trust, and reliance in name someone who has a fiduciary duty to act for the individual’s benefit. fictitious defendants When a party suing A fiduciary relationship need not (plaintiff) is not sure whether there are be formally or legally established; it unknown persons involved in the suit, may be assumed where the fiduciary they are given fictitious names, usually has superior knowledge and training designated Doe I, Doe II, and so forth, compared to the person whose affairs with an allegation in the complaint the fiduciary is handling. that if and when the true names are discovered they will be inserted in the field sobriety test A preliminary test complaint by amendment. Fictitious used by law enforcement officers to

174 final settlement

evaluate whether a driver is intoxicated. in one or more cardboard folders. The test is performed on the side of Today most files—especially those for the road where the driver was pulled inactive cases—are stored electronically. over, and is designed to test the driver’s filing fee A fee charged by a public official ability to perform the type of mental to accept a document for processing. and physical multitasking that is For example, you must usually pay a required to operate an automobile. filing fee to submit pleadings to the The driver is often asked to stand on court in a civil matter, or to put a deed one foot and then the other, walk in a on file in the public record. straight line, touch his or her nose with the forefinger of each hand, say the final beneficiary The person or institution alphabet backward, and so on. designated to receive trust property upon the death of a life beneficiary. For fieri facias( fee-air-ee fay-shee-es) Latin example, Jim creates a trust through for “that you cause to be done.” This which his wife Jane receives income for is a court document that instructs a the duration of her life. Their daughter, sheriff to seize and sell a defendant’s the final beneficiary, receives the trust property in order to satisfy a monetary principal after Jane’s death. judgment against the defendant. final decree A final judgment in a court fighting words Inflammatory words that case. are either injurious by themselves or might cause the hearer to immediately final judgment The final determination retaliate or breach the peace. Use of such of a court case, put in writing by the words is not necessarily protected “free judge who presided over the case. (See speech” under the First Amendment. also: final decree) If the hearer is prosecuted for assault, final settlement An agreement reached claiming fighting words may establish by the parties to a lawsuit, usually in mitigating circumstances. writing or read into the record in court, file A term commonly used to describe settling all issues. Usually there are both the process of submitting a docu­ elements of compromise, waiver of any ment to a court—for example, “I filed right to reopen or appeal the matter my small claims case today”—and to even if there is information found later describe the physical location where which would change matters (such as these papers are kept. Traditionally, a recurrence of a problem with an injury), court’s case files were kept indefinitely mutual release of any further claim by

175 financial guardian

each party, a statement that neither side revoked, or amended for a specific is admitting fault, and some action or period of time. If the offer is accepted payment by one or both sides. In short, without a change during that period, the case is over, provided the parties do there is a firm, enforceable contract. what they are supposed to do according first degree murder The intentional to the final settlement’s terms. killing of another person by someone financial guardian See: guardian of the who has acted willfully, deliberately, estate or with planning. All murder that is committed with poison or by lying in finder’s fee A fee charged by real estate wait is first degree murder. brokers and apartment-finding services in exchange for locating a rental first impression See: case of first property. These fees are permitted by impression law. Some landlords, however, charge fiscal year accounting period A finder’s fees merely for renting a place. 12-month period ending on the last This type of charge is not legitimate day of any month except December. and, in some areas, is specifically Many businesses are required to use a declared illegal. calendar year as their tax year, but if finding The determination by the trier you can prove that your business has a of fact (judge or jury) of a factual natural business year that is different question submitted to it for decision. from the calendar year, you might be Often referred to as a finding of fact. A able to adopt a fiscal tax year. finding of fact is distinguished from a fishing expedition Legal grasping at conclusion of law, which is determined straws; the use of pretrial investigation by the judge as the sole legal expert. discovery or witness questioning in finding of fact See: finding an unfocused attempt to uncover damaging evidence to be used against fire insurance An insurance policy that an adversary. pays the beneficiary of the policy if property covered by the policy is fitness The ability of a prospective damaged by fire. Fire insurance often adoptive parent to provide for the best covers damage caused other events as interests of a child the parent wishes well, such as wind or rain damage. to adopt. A court may consider many aspects of the prospective parents’ lives firm offer An offer (usually in writing) in evaluating their fitness to adopt a which states it may not be withdrawn,

176 flight

child, including financial stability, the owner of the fixture and the owner marital stability, career obligations, of the real estate agree otherwise, other children, physical and mental the fixture becomes the property of health, and criminal history. the landowner once it is attached. When a tenant has installed a heater, fixed annuity An annuity that provides window box, or other item that is payments of a set amount for the bolted, nailed, screwed, or wired into recipient’s life or some other specified the wall, ceiling, or floor, it becomes term. (Compare: variable annuity) the property of the landlord. A trade fixed asset Long-term tangible property fixture is an item needed by a business, used in the operation of a business that such as machinery or other equipment, is not readily converted into cash or and despite its name, these usually consumed in the ordinary course of do not become part of the building business. Examples include machinery, (commercial leases typically include a buildings, fixtures, and equipment. clause allowing tenants to remove these Also referred to as a capital asset. fixtures when the lease is up). fixed in a tangible medium of expression A requirement for copyright protection. “Laws are made for men of common A work must be recorded in some understanding, and should therefore physical medium, whether on paper, be construed by the ordinary rules of common canvas, disk, or computer hard drive. sense.” This means that spontaneous speech —Thomas Jefferson or musicianship that is not recorded, (a jazz solo at a live performance, for instance) is not protected by copyright. flexible savings account( FSA) An fixed rate mortgage A mortgage loan account into which employees may that has an interest rate that remains set aside pretax income for medical constant throughout the life of the expenses not paid by health insurance loan, usually 15 or 30 years. (such as co-payments, premiums, and expenses that are outside of the fixed trust See: nondiscretionary trust employer’s plan) or for dependent care fixture Anything that has been attached expenses. to real estate in such a way as to flight Running away or hiding to become part of the premises. Unless avoiding arrest or prosecution.

177 flipping flipping A popular real estate investment forcible entry The crime of taking strategy in hot markets where someone possession of a house, other structure, buys a property for investment and or land by the use of physical force or resells it a short time later for a profit serious threats against the occupants. (often after making improvements to This can include breaking windows, the property). doors, or using terror to gain entry, as well as forcing the occupants out by floating easement An easement (a right threat or violence after having come in to use another’s property for a particular peacefully. purpose) which allows access but does not spell out the exact dimensions and foreclosure The legal process by which location of the easement. a creditor with a claim (lien) on real estate forces a sale of the property in FMLA See: Family and Medical Leave Act order to collect on the lien. Foreclosure FOB See: free on board typically begins when a homeowner falls behind on mortgage payments forbearance Voluntarily refraining from for several months. (See also: judicial doing something, such as asserting a foreclosure, nonjudicial foreclosure) legal right. For example, a creditor may forbear on its right to collect a debt by foreclosure sale The forced sale of real temporarily postponing or reducing the estate, usually at public auction, that borrower’s payments. has been foreclosed on—that is, that has been seized by the lender after forced sale The sale of goods by a the borrower defaulted on mortgage creditor of their owner, authorized payments. by court order. For example, forced sales may occur when someone files foreign corporation A corporation that for bankruptcy or goes through is incorporated under the laws of a foreclosure. different state or nation. In the U.S., it usually refers to an out-of-state forced share See: elective share corporation. Out-of-state corporations force majeure A contract provision that must file a notice of doing business in excuses performance if it’s rendered any state in which they do business. impractical by a supervening event foreign divorce A divorce obtained in a (sometimes known as an “Act of different state or country from the place God”)—for example, a fire. French for where one spouse resides at the time of “a greater force.” the divorce. As a general rule, foreign

178 forgery

divorces are recognized as valid if the in science or technology to reach spouse requesting the divorce became conclusions for a lawsuit or prosecution. a resident of the state or country foreseeability The ability to reasonably granting the divorce, and if both anticipate the potential results of an parties consented to the jurisdiction action, such as the damage or injury of the foreign court. A foreign divorce that may happen if one is negligent or obtained by one person without the breaches a contract. consent of the other is normally not valid, unless the nonconsenting spouse foreseeable risk A likelihood of injury later acts as if the foreign divorce were or damage that a reasonable person valid, for example, by remarrying. should be able to anticipate in a given set of circumstances. Foreseeable forensic Any material, such as evidence risk is a common affirmative defense or testimony, suitable for use in court put up by defendants in lawsuits for or other legal matters. negligence, essentially claiming that forensic animation Computer animation the plaintiff should have thought twice used in court to recreate the events of before taking a risky action. Signs that an accident. warn “use at your own risk” do not bar lawsuits over injuries or damages from forensic medicine The area of medical risks that weren’t foreseeable. science that helps solve a legal question using scientific or technical facts. For forfeit To involuntarily lose property or example, coroners can often determine rights as a penalty for violating the law. cause of death. For example, one may have to forfeit one’s driver’s license due to multiple forensics Generally, suitable for debate or traffic violations or drunk driving. argument. More specifically, forensics also refers to the use of science or forfeiture The loss of property or a tech­nology to discover evidence for a privilege due to breaking a law. court of law. For example, the forensics forger Someone who creates or attempts department of a police force may to pass off a false document, signature, investigate crimes using science and or other imitation of an object of value. technology. forgery A false document, signature, or forensic testimony Testimony given by other imitation of an object of value an expert witness who uses expertise used with the intention to deceive another into believing it is the real

179 form interrogatories

thing. Those who commit forgery are your area. Commonly referred to as commonly charged with the crime of FSBO, pronounced “fizzbo.” fraud. forthwith A term found in contracts, form interrogatories Preprinted sets of court orders, and statutes, meaning questions that one party in a lawsuit as soon as can be reasonably done. It asks an opposing party during the implies immediacy, with no excuses for discovery process. Form interrogatories delay. cover the issues commonly encountered in the kind of lawsuit at hand. For example, there are form interrogatories “The common law is nothing else but designed for contract disputes, landlord- reason.” tenant cases, personal injury cases, and —Sir Edward Coke, others. Form interrogatories are often Commentary on Littleton supplemented by specific questions written by the lawyers about the specific issues in the particular case. forum Refers to the court in which a lawsuit is filed or in which a hearing formula AB trust A trust funded with or trial is conducted. The appropriate an amount no larger than the personal forum depends on which court has federal estate tax exemption of the year personal jurisdiction over the parties of death. (See also: AB trust) and the subject matter of the case. fornication Sexual intercourse between a forum non conveniens Latin for an man and woman who are not married inconvenient court. The idea that to each other. Fornication is still on the a court may change the venue of a books as a misdemeanor crime in some lawsuit if that is more convenient for states, but following the Supreme Court the parties. However, because strict decision in Lawrence v. Texas, can’t be written rules of jurisdiction and venue enforced. are used to decide where a case can for sale by owner Selling your house with­ and cannot be properly filed, this term out a real estate broker. Doing so can has largely lost any real meaning. Also save you a commission but requires that called forum inconveniens. you devote time and energy not only to forum shopping The process by which marketing and showing the house but a plaintiff chooses among two or also to learning and following the legal more courts that have the power— rules controlling sales of real estate in technically, the correct jurisdiction

180 401(k) plan

and venue—to consider the plaintiff’s care of someone other than the child’s case. This decision is based on which natural parents. Foster children may court is likely to consider the case most be removed from their family home favorably. In some instances, a case can because of parental abuse or neglect. properly be filed in two or more federal Occasionally, parents voluntarily place district courts as well as in the trial their children in foster care. courts of several states—and this makes foster parent An adult who takes over forum shopping a complicated business. care of a minor child who has been It often involves weighing a number placed in the foster care system because of factors, including proximity to the the child’s own family cannot take care court, the reputation of the judge in the of the child or have had custody taken particular legal area, the likely type of away by a court or agency. available jurors, and subtle differences in governing law and procedure. four corners of an instrument The principle that a document’s meaning for value received A phrase used in a should be derived from the document promissory note, bill of exchange, itself, without reference to anything or other contract to show that some outside of the document (extrinsic consideration (money or other value) evidence), such as the circumstances has been given in exchange for surrounding its writing or the history of whatever the contract requires. the party signing it. foster care Court-ordered care provided 401(k) plan A deferred compensation to children who are unable to live in retirement savings arrangement in which their own homes, usually because their employers withhold a portion of their parents have abused or neglected them. employees’ pretax wages and invest Foster parents have a legal responsibility them in a plan where they may earn to care for their foster children, but do income, tax-free, until the employee not have all the rights of a biological withdraws the money. Some employers parent—for example, they may have also contribute to their employees’ limited rights to discipline the children, 401(k) plan, often through matching to raise them according to a certain employee contributions, at least up to religion, or to authorize nonemergency a certain amount. Because a 401(k) is a medical procedures for them. retirement plan, employees must pay a foster child A child placed by a penalty for early withdrawals, although government agency or a court in the some plans allow employees to borrow

181 framing

money from their plans without penalty franchisee An individual or entity that is for certain expenses. granted a franchise. framing The act of displaying another franchiser An individual or entity company’s Web page within a bordered that grants a franchise; also spelled area of a website—similar to the franchisor. picture-in-picture feature offered on franchise tax A state tax on corporations some televisions. For example, when or businesses. a user enters a search engine request, the search engine might display the frank 1) The privilege of sending mail for contents of an online store within the free, granted to members of Congress. search engine’s website, framed by the 2) A mark, stamp, or signature on mail search engine’s text and logos. When that substitutes for postage. 3) A letter a Web page is framed within another or package that has been franked. website, the URL or domain name of 4) The act of franking—for example, to the framed Web page is usually not frank a letter. displayed and users are not able to fraternal benefit society benefits bookmark that site. (See also: URL, Benefits, often group life insurance, domain name) fraternal societies provide to their franchise 1) A right granted by the members. The Elks, Masons, or government to a person or corporation, Knights of Columbus are common such as a taxi permit, bus route, an fraternal societies that provide benefits. airline’s use of a public airport, business Also called benefit society, benevolent license, or corporate existence. 2) To society, or mutual aid association grant (for a periodic fee or share of benefits. Under bankruptcy laws, these profits) the right to operate a business benefits are virtually always considered or sell goods or services under a brand exempt property or chain name. Well-known franchise fraud Intentionally deceiving someone operations include McDonald’s, and causing that person to suffer a loss. Holiday Inns, Ace Hardware, Rexall Fraud includes lies and half-truths, Drug Stores, and Amway Distributors. such as selling a car that is a lemon franchise agreement The contract that and claiming “she runs like a dream.” establishes the terms of a franchise Or, failing to point out a mistake in a relationship. contract, such as a survey that shows ten acres of land being purchased and

182 free appropriate public education

not 20 as originally understood. Fraud Fraudulent Transfer Act Act allowing a can be the basis of a civil lawsuit for creditor to sue a debtor who intended damages and for prosecution as a crime. to defraud a creditor by transferring property to another person without fraud in the inducement The use of receiving reasonably equivalent value deceit or trick to cause someone to in return. In other words, if a business act to his or her disadvantage, such as does not pay off its debts before selling signing an agreement or deeding away its assets, the creditors of the business real property. The heart of this type of can void the transfer or get a judgment fraud is misleading the other party as to against the new owner of the assets the facts upon which that person will and seize them to pay the debts. Most base his or her decision to act. Example: states have adopted this Act or an older “There will be tax advantages to you if version of it. you let me take title to your property,” or “You don’t have to read the rest of free and clear Property ownership that is the contract—it is just routine legal not subject to a secured debt, such as a language” but actually includes a mortgage or car loan. For example, if balloon payment. you have paid off the mortgage on your house and no creditor has filed a lien fraudulent conveyance The transfer (claim) against it, you own your house (conveyance) of title to real property free and clear. for the express purpose of putting it beyond the reach of a known creditor. In such a case, the creditor may bring a Philadelphia. (1993) Academy Award lawsuit to void the transfer. winner Tom Hanks brings an anti­ fraudulent transfer In a bankruptcy case, discrimination law­suit against the law firm that a transfer of property to another for fired him after discovering he had AIDS. The all-star cast includes Denzel Washington, Jason less than the property’s value for the Robards, Mary Steenbergen, Antonio Banderas, purpose of hiding the property from and Joanne Woodward. the bankruptcy trustee—for instance, when a debtor signs a car over to a relative to keep it out of the bankruptcy free appropriate public education A estate. Fraudulently transferred requirement of the Individuals with property can be recovered and sold Disabilities Education Act that a by the trustee for the benefit of the child with disabilities is entitled to creditors.

183 freehold

an educational program (including the suspect without a warrant. Fresh classroom setting, teaching strategies, pursuit also enables an officer to enter and services) that is individually another jurisdiction (county or state) tailored to meet his or her unique to pursue a fleeing suspect (normally, needs. officers’ abilities to arrest people are limited to their county and state). freehold An antiquated term for any interest in real estate that is of friendly suit A lawsuit brought by two indeterminate length. It’s distinguished parties, not as adversaries, but by from an interest that has a definite agreement in order to resolve a legal ending date, such as a lease. A life estate question that affects them both. For is an example of a freehold. example, two companies might bring a friendly suit to court in order to clarify freelancer See: independent contractor the legal interpretation of a contract free on board (FOB) A reference to the between them. place where purchased goods will friendly witness A witness whom you be shipped without transportation have called to testify on your behalf, charge. Free on board at the place of and whom you may not cross-examine. manufacture shows there is a charge If the witness testifies in a way that for delivery. Example: if an automaker hurts your case, you can ask the in Detroit sells a car “FOB Detroit,” judge to declare him or her a “hostile then there will be a shipping charge if witness,” which means that you can delivery is taken anywhere else. begin to cross-examine with leading freeze-out Majority shareholders in a questions. company using their power to deprive fringe benefit A benefit given to em- one or more minority shareholders of ployees in addition to salary. Examples their role in governing the company. include health and life insurance, retire- This is done to force the minority ment plans, and paid holidays. Fringe shareholders to sell their stock at a benefits usually are not taxable for the reduced price and exit the company. employee and are generally tax deduct- fresh pursuit Also known as “hot ible for the employer. pursuit,” the chase by police of a frisk Quickly patting down the clothes person whom police have reason to of a suspect to search for a concealed believe has just committed a crime. In weapon. this situation, the officer may arrest

184 full disclosure frivolous In a legal context, a lawsuit, covered through unconstitutional motion, or appeal that lacks any basis means (such as a forced confession and is intended to harass, delay, or or illegal search and seizure), may embarrass the opposition. This can not be used as evidence against a result in a successful claim by the other criminal defendant. For example, if a party for the costs of defense, including suspect is arrested but is not read the attorney’s fees. Judges are reluctant to Miranda rights, then tells the police find an action frivolous, based on the the location of stolen property, and the desire not to discourage people from police then find the stolen property as using the courts to resolve disputes. a result of the interrogation, the stolen property is inadmissible because it was acquired through an unconstitutional “Decency, security and liberty alike interrogation. demand that government officials shall be subjected to the same rules of conduct that frustration of purpose See: commercial are commands to the citizen.” frustration —Justice Louis D. Brandeis FSBO See: for sale by owner FTC See: Federal Trade Commission frolic and detour Employee conduct that FTCA See: Federal Tort Claims Act is outside the scope of employment and is undertaken purely for the employee’s fugitive from justice A person convicted own benefit. Although an employer or accused of a crime who hides from is generally liable for the acts of its law enforcement or flees the jurisdiction employees, an employer is not liable (perhaps across state lines) to avoid for damages employees cause while arrest or punishment. on a frolic and detour. For example, a full disclosure 1) The need in certain situ- delivery company could be liable for ations (such as real estate transactions) injuries one of its drivers causes while for both parties to tell the whole truth racing to make a delivery; it probably about all information relevant to the would not be liable if the same driver transaction. 2) Securities and Exchange shot a guard while robbing a bank on Commission rule that a publicly traded his lunch hour. company must release its financial fruit of the poisonous tree In criminal statements and other important in- law, the doctrine that evidence dis­ formation relating to the company’s business.

185 full faith and credit full faith and credit A Constitutional will be held in trust. With the most doctrine contained in Article IV, common kind of revocable living trust, Section 1 of the U.S. Constitution that this transfer takes place on paper only, requires courts and agencies in one state because the person who sets up the to recognize, respect, and enforce legal trust and owns the property also serves judgments and other actions from other as trustee. states. fungible things Sometimes called fundamental right In constitutional “fungibles,” they are goods which are law, certain rights protected by the inter­changeable, often sold or delivered due process or equal protection clause in bulk, since any load is as good as that cannot be regulated unless the another. Grain or gravel are fungibles, regulating law passes a rigorous set of as are securities which are identical. criteria (strict scrutiny). Fundamental future interest A right to receive property rights, as defined by the Supreme sometime in the future, either on a Court, include various rights of privacy particular date or upon the occurrence (such as marriage and contraception), of an event. For example, John’s will the right to interstate travel, and the leaves his house to his sister Marian, right to vote. but only after the death of his wife, funding a trust Transferring ownership Hillary. Marian has a future interest in of property to a trustee, so the property the house.

186 G

gag order A judge’s order prohibiting gender bias Prejudice against people the attorneys and parties in a pending of a particular gender, usually lawsuit or criminal prosecution from women. Gender bias may result in talking about the case to the media or discriminatory treatment or unequal the public. opportunity. garnish To get a court order requiring a gender identity A person’s self-identified third party that holds funds belonging gender, versus their anatomical gender to a debtor to set some portion of that at birth. In some states, it is illegal for money aside for the benefit of the employers to discriminate based on creditor. For example, a court might gender identity. issue an order garnishing the wages of General Agreement on Tariffs and Trade a parent who owes child support; the (GATT) A comprehensive free-trade employer is then required to withhold a treaty signed by most developed ­nations. certain amount of the parent’s paycheck Among other things, member countries each month and send that money to are required to treat all other member someone—often, the local sheriff—to countries equally in the ­application of be paid to the other parent. import and export tariffs, offer basic garnishee The person or entity (often a copyright protection to ­authors from bank or employer) that receives a court member countries, consult with each order garnishing wages or funds it owes other about trade matters, and attempt to a debtor. (See also: garnish) to resolve differences in a peaceful man- ner. GATT created an international garnishment A court-ordered procedure regulatory body known as the World for taking money or property from Trade Organization (WTO) to enforce someone to satisfy a debt. For example, compliance with the ­agreement. a debtor’s wages might be garnished to pay child support, back taxes, or a general appearance The first time an lawsuit judgment. attorney appears in court on behalf of a client; after making a general appear­ GATT See: General Agreement on Tariffs ance, the attorney is then responsible and Trade

187 general bequest

for all future appearances in court general plan A term sometimes used to unless officially relieved by court order describe a land-use document that lays or substitution of another attorney. forth the plan of a city, county, or area, typically establishing zones for different general bequest A bequest of money in a types of development, uses, traffic will. (Compare: specific bequest) patterns, and future development. (See general counsel The senior attorney for a also: zoning) corporation. general damages Monetary recovery in “The right to be left alone—the most a lawsuit for injuries suffered or breach comprehensive of rights and the right of contract for which there is no exact most valued by civilized men.” ­dollar value that can be calculated. Gen- —Justice Louis D. Brandeis eral damages can include, for example, pain and suffering, compensation for a shortened life expectancy, and loss of the general power of attorney A broad companionship of a loved one. power of attorney document that gives general denial An answer to a lawsuit or the named agent power to handle all claim, in which the defendant denies matters permitted by law on behalf of everything alleged in the complaint the person (called “the principal”) who without specifically denying any executed the document. (Compare: allegation. (See also: denial) limited power of attorney) general journal See: general ledger generation-skipping transfer A transfer (during life or at death) made by a general ledger A book or computer file grandparent to a grandchild, skipping where double-entry accounting entries the middle generation. Very large are recorded for a business. transfers of this kind are subject to general partner A person who joins with a special federal generation-skipping at least one other to own and operate transfer tax. a business for profit—and who (unlike generation-skipping transfer tax A a corporation’s owners) is personally federal tax imposed on large amounts liable for all the business’s debts and of money given or left to a grandchild obligations. A general partner’s actions or great-grandchild. Its purpose is to can legally bind the entire business. (See keep families from avoiding the estate also: partnership, limited partnership) tax that would be due if the oldest

188 Gideon v. Wainright (1963)

generation left property to their children, because the trademark is used widely who then left it to their children and indiscriminately to refer to a type (the original giver’s grand­children). of product or service. For example, Currently, the exempt amount is $3.5 escalator was originally a protected million, so this tax applies only to trademark used to designate the people wealthy enough to transfer more moving stairs manufactured by a than that to their grandchildren. It is specific company. Eventually, the word imposed in addition to any estate became synonymous with the very tax due. idea of moving stairs and thus lost its trademark protection. Other examples generation-skipping trust A trust of trademarks that have become generic designed to save on estate tax. The terms are lite beer, soft soap, and cola. trust principal is preserved for the trust (See also: generic) maker’s grandchildren, with his or her children receiving only income from Genetic Information Nondiscrimination the trust. Because the children (the Act (GINA) A federal law passed in middle generation) never legally own 2008, which prohibits health insurers the property, it isn’t subject to estate and employers from discriminating on tax at their death. (See also: generation- the basis of an employee’s or applicant’s skipping transfer tax) genetic information. generic In trademark law, the status of Gibbons v. Ogden (1824) A U.S. Supreme a word or symbol commonly used to Court case in which Chief Justice John describe an entire type of product or Marshall’s decision struck down state service rather than to distinguish one barriers to interstate commerce. The product or service from another. An case involved a steamboat operator who example is “raisin bran,” used by several was denied a license by one of the states manufacturers of breakfast cereals to he serviced. describe their products. Generic terms Gideon v. Wainright (1963) A U.S. can never receive trademark protection ­Supreme Court case in which the because they don’t serve the basic Court used the due process clause of function of trademarks to distinguish the Fourteenth Amendment to extend goods and services in the marketplace. the constitutional right to an attorney (See also: genericide) in federal criminal cases for those who genericide A process by which a trade­ could not afford representation to indi- mark owner loses trademark rights gent defendants in state prosecutions.

189 gift

The indigent defendant was represented the annual exclusion—without paying gratis by future Supreme Court Justice gift taxes. Abe Fortas. The ruling greatly increased Gitlow v. New York (1925) A U.S. the use of public defenders. In 2002, Supreme Court case in which the the Court ruled the right applied in Court ruled that the First Amendment all cases where jail time is a possible right to free speech applied to state laws punishment. under the Fourteenth Amendment. gift 1) A voluntary transfer of property go bail Slang for putting up the bail without payment or conditions. 2) The money to get an accused defendant out thing that is transferred. of jail after an arrest or pending trial or gift causa mortis See: gift in contempla- appeal. (See also: bail) tion of death going out Court slang for going to trial, gift in contemplation of death A gift of meaning the trial will start either right personal property (not real estate) by a away or shortly. For example, a clerk person expecting to die soon. If a gift might tell assembled lawyers who are is made in contemplation of death, it expecting to go to trial that day, “Your is included in the value of the deceased case is going out today at 10 a.m. in person’s estate for federal tax purposes. Department 9.” In Latin, called a gift causa mortis. golden parachute An agreement by gift tax Federal taxes assessed on any a corporation with an executive to gift, or combination of gifts, from provide substantial payments to the one person to another that exceeds executive in the event of a change in $13,000 in one year. Several kinds of ownership or early retirement. gifts are exempt from this tax: gifts golden rule argument During a jury to tax-exempt charities, gifts to your trial, an attempt to persuade the jurors spouse (limited to $133,000 annually to put themselves in the place of the if the recipient isn’t a U.S. citizen), victim or the injured person and deliver and gifts made for tuition or medical the verdict that they would wish to bills. In addition to the annual gift receive if they were in that person’s tax exclusion, there is a $1 million position. For example, if the plaintiff cumulative tax exemption for gifts. In in a personal injury case has suffered other words, you can give away a total severe scarring, the plaintiff’s lawyer of $1 million during your lifetime— might ask the jury to come back with over and above the gifts you give using

190 grace period

the verdict they themselves would want aid of an injured or ill stranger from to receive had they been disfigured in being sued for contributory negligence, such a manner. As a rule, judges frown as long as the volunteer aid-giver (the upon this type of argument, because Good Samaritan) acted with reasonable jurors are supposed to consider the facts care. of a case in an objective manner. goods Items held for sale in the regular good cause A legally sufficient reason for course of business, as in a retail store. a ruling or other action by a judge. goods and chattels See: personal property good title See: clear title In a medieval trial by fire, a suspect was forced to hold a red-hot iron in goodwill The benefit a business has his hand or to walk blindfolded and barefoot through its name and good reputation. among nine red-hot ploughshares scattered on Goodwill is not a tangible asset like the ground. If the suspect passed through the equipment or inventory. In an acquisi- ordeal unharmed, he was innocent. tion, goodwill is valued as the amount paid for the business above the fair market cost of all the business’s assets. good faith Honest intent to fulfill a governing law A contract provision promise to act or to act without taking (also known as a “choice of law”) that an unfair advantage over another determines which state’s laws should be person. Absence of intent to defraud followed in the event of a dispute. someone. governmental immunity See: sovereign good faith estimate (GFE) A disclosure immunity that real estate mortgage lenders must, under the Real Estate Settlement grace period A period of time during Procedures Act (RESPA), give to all which a debtor is not required to mortgage loan applicants within three make payments on a debt or will not days of when they apply. The disclosure be charged a fee. For example, most must estimate all settlement charges the credit cards offer a grace period of 20 homebuyer will need to pay at closing, to 30 days before interest is charged such as the lender’s fees and other on purchases; as long as you pay your closing costs. bill in full within the grace period, you won’t owe any interest. Similarly, many Good Samaritan rule The doctrine that student loans offer a grace period for protects a volunteer who comes to the

191 grandfather clause

at least a few months after graduation, evidence (they only decide whether the so new graduates don’t have to start person should stand trial). (See also: repaying their loans right away. petit jury) grandfather clause 1) A provision in grand jury witness A witness who a new law that limits its application testifies before a grand jury. to individuals or businesses that are grand larceny The crime of theft of new to the system, while those already another’s property over a certain value in the system are exempt from the set by state law (for example, $500). It new regulation. For example, when is distinguished from petty (or petit) Washington, DC, raised its drinking larceny, which is the theft of property age from 18 to 21, people between that is lesser in value. Some states those ages, who could drink under recognize only the crime of larceny, the old law, were allowed to retain but have both misdemeanor larceny the right to legally consume alcohol (punishable by imprisonment in a under a grandfather clause. 2) A local jail and a fine) and felony larceny provision of several Southern states’ (punishable by state prison time). constitutions in the late 1800s designed to to keep blacks from voting; now grand theft See: grand larceny unconstitutional, these grandfather grant To give, sell, or otherwise transfer clauses denied the vote to people who something to someone. (See also: grant were illiterate or did not own property, deed) unless their descendants had voted before 1867. grant deed A deed to real estate contain­ ing an implied promise that the person grandfathered in See: grandfather clause transferring the property actually has grand jury A group of people chosen at good title and that the property is random that sits on a regular basis to not encumbered in any way, except hear evidence brought by a prosecutor. as described in the deed. This is the The prosecutor presents evidence most commonly used type of deed. against a person that he or she thinks (Compare: quitclaim deed, warranty will justify an indictment (formal deed) charges) and a trial. Grand juries, grantee Someone who receives title to unlike petit juries, meet in secret, need real estate from a seller (grantor) in not reach unanimous decisions, and a document called a grant deed or do not decide on a person’s guilt or quitclaim deed.

192 green card grantor 1) Someone who transfers owner­ grantor-retained unitrust See: grantor- ship of real estate through a grant deed. retained trust 2) Someone who creates a trust; also gratuitous Voluntary or free. called settlor or trustor. grantor-grantee index A set of records found in the county land records office, “Man is a creature endowed with reason listing current and past owners of all and free will; but when he goes to law parcels of real estate in the county. as plaintiff, his reason seems to have left him; while, if he stands in the position of defendant, it You can find information about the is generally against his free will.” ownership of real estate by looking up the name of a grantor (person selling or —Gilbert Abbot A. Beckett, The Comic Blackstone leaving the property) or grantee (buyer or inheritor). These records, once kept in large bound books, are now generally gravamen The essential element of a on microfilm or digital media. lawsuit. For example, the gravamen of grantor-retained annuity trust See: a lawsuit involving a car accident might grantor-retained trust be the careless driving (negligence) of the defendant. grantor-retained income trust See: grantor-retained trust green card The well-known term for an Alien Registration Card (ARC). This grantor-retained trust An irrevocable plastic photo identification card is given trust designed to save on estate tax. to people who are legal permanent There are several kinds; with all of residents of the United States. It serves them, you keep income from trust as a U.S. entry document, enabling property, or use of that property, for holders to return to the United States a period of years. When the trust after temporary absences, and it proves ends, the property goes to the final their right to work in the United beneficiaries you’ve named. These States. The green card expires after a trusts are for people who have enough certain number of years and must be wealth to feel comfortable giving away renewed—but note that the holder’s a substantial hunk of property. They permanent residence itself doesn’t come in three flavors: grantor-retained expire, only the ability to prove it using annuity trusts (GRATs), grantor- the card. retained unitrusts (GRUTs), and grantor-retained income trusts (GRITs).

193 greenmail greenmail A situation in which a person computing attorney fees for probating or entity (the greenmailer) buys enough estates; the lawyer gets a percentage of stock in a public company to threaten the gross estate. a hostile takeover. The greenmailer gross income The total income of an offers to end the threat to the company individual or business from all sources, by selling its stock back at a higher before subtracting adjustments, price. The term combines the words exemptions, or deductions, allowed by greenback and blackmail. tax law. Gregg v. Georgia (1976) A U.S. Supreme gross lease A commercial real estate Court case in which the Court held lease in which the tenant pays a fixed that the death penalty for murder was amount of rent per month or year, not in and of itself a cruel and unusual regardless of the landlord’s operating punishment prohibited by the Eighth costs, such as maintenance, taxes Amendment. The Court also ruled that and insurance. A gross lease closely the character of the defendant was to be resembles the typical residential lease. considered when deciding whether to The tenant may agree to a “gross lease impose the death penalty. with stops,” meaning that the tenant Griswold v. Connecticut (1965) A U.S. will pitch in if the landlord’s operating Supreme Court case in which the costs rise above a certain level. In Court struck down, as an invasion of real estate lingo, the point when the privacy, laws against the sale or use of tenant starts to contribute is called the contraceptives. “stop level,” because that’s where the landlord’s share of the costs stops. gross estate For the purpose of determin­ ing whether or not an estate must file gross negligence A lack of care that a federal estate tax return, the total demonstrates reckless disregard for of all property someone owned at the safety or lives of others, which is death, without regard to any debts or so great it appears to be a conscious liens against the property or the costs violation of other people’s rights of probate. Taxes are due only on to safety. It is more than simple the value of the property the person inadvertence, and can affect the actually owned (the net estate) plus the amount of damages. amount of taxable gifts made during grounds for divorce Legal reasons for the last three years of life. In a few requesting a divorce. All states require states, the gross estate is used when a spouse who files for divorce to

194 guaranty

state the grounds. Now that no-fault vehicle. The downside of a guaranteed divorce is prevalent, the most common reservation is that if you don’t show up ground for divorce is “irreconcilable and haven’t cancelled your reservation, differences.” you will be billed for one night in the room or one day’s use of the vehicle. group insurance A single insurance policy, such as life or health insurance, guaranteed signature A signature that under which individuals in a group— has been witnessed by a person— for example, employees (and sometimes commonly, a bank employee—who their dependents)—are covered, as long is qualified to guarantee signatures. as they remain part of the group. Companies often require guaranteed signatures on documents requesting the group life insurance Life insurance reregistration of stocks in the name of available through an employer or someone who has inherited them. association that covers participating employees and members under guarantor A person or entity that one master insurance policy. Most makes a legally binding promise to group life insurance policies are term be responsible for another’s debt or insurance policies, that terminate when performance under a contract, if the the member or employee reaches a other defaults or fails to perform. The certain age or leaves the organization guarantor gives a “guaranty,” which and do not accumulate any cash is an assurance that the debt or other surrender value. obligation will be fulfilled. guarantee See: guaranty guaranty When used as a verb, to agree to pay another person’s debt guaranteed reservation A hotel or rental or perform another person’s duty, if car reservation secured by a credit card that person fails to come through. number. In exchange for your card As a noun, the written document in number, the hotel or rental agency which this assurance is made. For promises to have a room or vehicle for example, if you cosign a loan, you have you no matter when you show up. If made a guaranty and will be legally you have a guaranteed reservation with responsible for the debt if the borrower a hotel, it must provide you with a fails to repay the money as promised. room, either at that hotel or at another The person who makes a guaranty is comparable establishment. If you have called the guarantor. Also known as a a guaranteed reservation with a car guarantee or warranty. agency, it must provide you with a

195 guardian guardian An adult who has been vator of the estate. (Compare: guardian appointed by a court to control and of the person) care for a minor or the minor’s property. Someone who looks after a child’s property is usually called a “guardian “It is not what a lawyer tells me I may do; of the estate.” An adult who has legal but what humanity, reason, and justice authority to make personal decisions for tell me I ought to do.” the child, including responsibility for —Edmund Burke his physical, medical, and educational needs, is often called a “guardian of the person.” Sometimes just one person will guardian of the person Someone be named to take care of all these tasks. appointed by a court to make personal An individual appointed by a court to decisions for a minor child or an look after an incapacitated adult may incapacitated adult, commonly called also be known as a guardian, but is a ward. Such decisions usually include more frequently called a conservator. day-to-day living arrangements, health care, education, and other matters guardian ad litem A person, not neces- related to the ward’s comfort and well- sarily a lawyer, who is appointed by a being. A guardian of the person may court to represent and protect the inter- also be called a personal guardian or ests of a child or an incapacitated adult conservator of the person. (Compare: during a lawsuit. For example, a minor guardian of the estate) who is a party to a lawsuit must have a guardian ad litem (often a parent) to guardianship A legal relationship created act in the minor’s behalf with regard to by a court between a guardian and decisions like whether or not to take a a ward—either a minor child or an settlement offer. A guardian ad litem incapacitated adult (although the (GAL) may also be appointed to repre- latter relationship is more commonly sent a child whose parents are locked in called a conservatorship). The guardian a contentious battle for custody. has a legal right and duty to care for the ward. This may involve making guardian of the estate Someone appoint- personal decisions on the ward’s behalf, ed by a court to care for the property managing the ward’s property, or both. and finances of a minor child or an incapacitated adult. A guardian of the guest statute A law in only a few states estate may also be called a property that prevents a nonpaying automobile guardian, financial guardian, or conser- passenger from suing the driver when

196 guilty

the passenger is hurt as a result of the continuing to drive recklessly after the simple negligence of the driver. In passenger has asked the driver to stop general, the social passenger can sue or asked to be let out. the driver only if the driver’s actions guilty In a criminal case, the admission constitute gross, or extreme, negligence. by a defendant that he has committed Examples might include drunk driving, a charged crime, or the finding by a playing “chicken,” driving a car judge or a jury that the defendant has knowing that the brakes are faulty, or committed the crime.

197 H

habeas corpus (hay-bee-us kor-pus) reversal of a conviction based on claims Latin for “you have the body.” A that the judge conducted the trial prisoner files a petition for writ of improperly. Often, convicted prisoners habeas corpus in order to challenge file both. the authority of the prison or jail habeas corpus ad subjiciendum See: warden to continue to hold him or habeas corpus her. If the judge orders a hearing after reading the writ, that becomes the habitable A residence that is safe and prisoner’s opportunity to argue that fit for human habitation. By law in the confinement is illegal. Habeas every state but Colorado, landlords corpus is an important protection must offer habitable premises and against illegal confinement, once keep them up. Although the definition called “the great writ.” For example, of a habitable dwelling varies from it can be used in cases where a person state to state, all agree that basic is being held without charges, or services (adequate heat, hot water, and when due process obviously has been plumbing) and a sound structure that denied, bail is excessive, parole has does not pose unreasonable safety risks been granted, an accused has been are required in every rental. Tenants improperly surrendered by the bail have various remedies when premises bondsman, or probation has been become substandard. (See also: summarily terminated without cause. implied warranty of habitability, rent A particularly frequent use of habeas withholding, repair and deduct) writs is by convicted prisoners arguing habitual criminal A person who has that the trial attorney failed to prepare been convicted of multiple felonies (or the defense and was incompetent. of numerous misdemeanors), a fact Prisoners sentenced to death also that may increase punishment for any file habeas petitions challenging the further criminal convictions. (See also: constitutionality of the state death three strikes) penalty law. Note that habeas writs are different from and do not replace half blood 1) Siblings who share only one appeals, which are arguments for parent. 2) A half brother or half sister.

198 health benefits harass To engage in harassment. hazard insurance A type of insurance, found for example in homeowners’ and harassment In employment law, business policies, that protects against offensive, unwelcome conduct based physical damage to the property caused on the victim’s protected characteristic, by unexpected and sudden events such that is so severe or pervasive that it as fires, storms, and vandalism. affects the terms and conditions of the victim’s employment. Harassment may headnote In a printed legal opinion, the take the form of words, actions, gestures, summary appearing above the decision demands, or visual displays, such as that summarizes the key legal points of photographs or cartoons. Some­times, the case. harassment is used more generally to head of family See: head of household refer to repeated irritating or bothersome behavior, such as persistent telephone calls from a debt collector. (See A Few Good Men. (1992) Tom Cruise, also: protected characteristic, sexual assisted by Demi Moore, defends young harassment) marines charged with murder. With Jack Nicholson. harmless error An error by a judge in the conduct of a trial that an appellate court finds was not damaging enough head of household 1) For purposes of to the appealing party’s right to a fair federal income taxes, a filing category trial to justify reversing the judgment. for someone who is unmarried or Harmless errors include technical errors legally separated from a spouse and that have no bearing on the outcome who provides a home for at least one of the trial, and an error that was dependent for more than half of the corrected (such as mistakenly allowing year. The tax rate for someone filing testimony to be heard, but then as head of household is lower than it ordering it stricken and admonishing would be for someone filing as a single the jury to ignore it). In general, the person. 2) The primary breadwinner in more overwhelming the evidence a family. against the appealing party (appellant), the harder it will be to convince the health benefits Benefits paid under appellate court that any errors were health insurance plans, such as Blue harmful. In such situations, courts rule Cross/Blue Shield, to cover the costs of that even in the absence of the errors, health care. the appellant could not have won.

199 health care declaration health care declaration See: living will the prosecutor has presented sufficient evidence that the accused has committed health care directive A legal document a crime to hold him/her for trial. that allows you to set out written wishes for your medical care, name a hearsay A rule of evidence that prohibits person to make sure those wishes are the use of out-of-court statements that carried out, or both. (See also: living are offered as proof of the subject of will, durable power of attorney for the statement. These statements are not health care, advance directive) admitted as evidence because person who made the statement isn’t in court health care proxy A person named in a for the other party to cross-examine. health care directive to make medical For example, if Cathy, an eyewitness decisions for the person who signed to an accident, later tells Betsy that the document, called the principal. the pickup ran the light, Betsy would A health care proxy may go by many not be allowed to recount Cathy’s other names, including agent, attorney- remarks. Out-of-court statements that in-fact, or patient advocate. aren’t offered to prove the truth of the health maintenance organization (HMO) statement are admissible, however. A group plan for medical insurance in Suppose Tom is called to testify, “On which members prepay a flat fee and are January 1, Bob said the Steelers stink.” given access to the services of partici- If the party calling Tom wants to prove pating doctors, hospitals, and clinics. that Bob was alive on January 1, Tom’s Members typically make copayments, testimony would be admitted, because but do not need to pay deductibles. the other side could question Tom about whether the conversation really hearing Any proceeding before a judge or took place on that date. Whether the other qualified hearing officer without Steelers are a poor team is beside the a jury, in which evidence and argument point. Even statements that are hearsay is presented to determine some issue may be admitted if they fall within one of fact or both issues of fact and law. of the many exceptions to the rule. In The term usually refers to a brief general, hearsay will be admitted if the court session that resolves a specific circumstances of the statement indicate question before a full trial takes place, a high probability that the statement is or to such specialized proceedings as true. For example, a statement uttered administrative hearings. In criminal spontaneously and under duress—such law, a “preliminary hearing” is held as a victim’s remarks immediately before a judge to determine whether

200 hereditary succession

following an accident—could be heiress A female heir, usually used to admitted because the judge might find describe a woman who has inherited that the person had little time to plan a large fortune from a relative—for to say anything other than the truth. example, a “department store heiress.” hearsay rule A rule of evidence that heir hunter A business that searches prohibits secondhand testimony at a for relatives legally entitled to inherit trial. For example, if an eyewitness to from the estate or trust of a deceased an accident later tells another person person, in exchange for a portion of what she saw, the second person’s what they inherit. Heir hunters often testimony is hearsay. The reason for tell a potential inheritor that there is this rule is that the opposing party the possibility of inheritance but won’t has no ability to confront and cross- provide details unless the heir agrees to examine the person who has firsthand pay a fee of one-tenth to one-third of knowledge of the event. the amount that’s eventually inherited. Probate courts sometimes review heir- heat of passion A mitigating hunter arrangements and may modify circumstance that may be raised by their terms or even declare them invalid an accused criminal, claiming to have as against public policy—that is, as so been in an uncontrollable rage, terror, unfair that courts won’t enforce them. or fury at the time of the alleged crime, especially one provoked by the victim. heirs of the body Descendants of one’s bloodline, such as children or grand­ heir Someone who has a right, under children, until such time as there are state law, to inherit a deceased person’s no direct descendants. If the bloodline property (which means the closest runs out, the property will “revert” to family members). The term is often the nearest relative traced back to the used in a broader sense, to include original owner. anyone who receives property from the estate of a deceased person. held Decided or ruled, as in “the court held that the contract was valid.” heir apparent One who is expected to inherit property from the estate of a hereditament An archaic term, still family member. found in some wills and deeds, for any kind of property that can be inherited. heir at law A person entitled to inherit property under intestate succession hereditary succession See: intestate laws. succession

201 hidden asset hidden asset An item of value that does someone possessing a promissory note, not show on the books of a business, check, or bond, for which the holder is often excluded for an improper entitled to receive payment as stated in purpose, such as escaping taxation or the document. hiding it from a bankruptcy trustee. high seas International marine waters not “[The legal profession is] ever illustrating included in the territorial waters of any the obvious, explaining the evident, country. expatiating the commonplace.” highway Any public street, road, or —Prime Minister Benjamin Disraeli turnpike that any member of the public has the right to use. holder in due course Someone who hiring firm Commonly refers to a busi- 1) holds a check or promissory note ness that hires one or more independent that was received in good faith and in contractors. Unlike an employer, a exchange for value and 2) who has no ­hiring firm does not have to withhold suspicion that there is a claim against tax, contribute to Social Security and it by another party or that it was Medicare, or provide workers compen- previously dishonored. Such a holder sation for an independent contractor, is entitled to payment by the maker of nor does it have to follow a variety of the check or note. (See also: bona fide employment laws that prohibit discrim- purchaser) ination, impose wage and hour obliga- tions, or require time off. hold harmless In a contract, a promise by one party not to hold the other hit and run statute A law that requires party responsible if the other party motorists who get in an accident to stay carries out the contract in a way that at the scene of the accident to exchange causes damage to the first party. For information with the other motorists or example, many leases include a hold to give a report to the police. harmless clause in which the tenant hobby loss A loss from a business activity agrees not to sue the landlord if the engaged in more for enjoyment than for tenant is injured due to the landlord’s profit, which can be deducted against failure to maintain the premises. In annual income only. most states, these clauses are illegal in residential tenancies, but may be upheld holder Anyone in possession of property. in commercial settings. Specifically, holder usually refers to

202 home rule holding 1) Any ruling or decision of a generally not witnessed and may be in court. 2) Any real property to which the form of a letter. Although it’s legal one has title. 3) Investment in a business. in many states, making a holographic will is never advised except as a last holding cell Courthouse jail cells (also resort. called lockups and sometimes bullpens) where defendants who are in custody home equity The current market value and who are to appear in court are of a house minus how much is owed on forced to wait. After their court appear­ it. A home equity loan borrows against ance, such defendants are taken back this amount. to the regular jail where they are being home office The portion of a taxpayer’s held. home in which he or she carries on a holding company A company, usually business activity. If the home office a corporation, that owns and controls meets certain IRS tests, the taxpayer other companies. may take a tax deduction for expenses related to the business portion of the holding over The continued occupancy home, such as rent paid and utilities. of a rental past the date that the lease or rental agreement ends. Most of the homeowners’ association An organiza­ time, a residential tenant who holds tion made up of neighbors concerned over with the consent of the landlord with managing the common areas of a will become a month to month tenant. subdivision or condominium complex. These associations take on issues such holdover tenant A tenant who continues as garden, pool, and fence main­tenance; to occupy a residence after the term noise abatement; snow removal; parking of the lease or rental agreement has areas; repairs; and dues. The home­ expired, and without the consent of owners’ association is also responsible the landlord. To get rid of a holdover for enforcing any covenants, conditions, tenant, the landlord must give the and restrictions (CC&Rs) that apply to tenant a notice to quit (get out). If the the property. tenant does not leave, the landlord must go to court and file an unlawful home rule The power of a local city detainer (eviction) lawsuit. or county to act autonomously in, for example, setting up a system holographic will A will that is completely of government and enacting local handwritten, dated and signed by the ordinances. Within the U.S. system, person making it. Holographic wills are

203 homestead

such power must ordinarily be granted homeowner. Other states exempt all by the state government. of a homeowner’s primary residence from repayment of debts, and still other homestead 1) The house in which a states exempt all of a homeowner’s family lives, plus any adjoining land primary residence only if it is under a and other buildings on that land. certain size. 2) Real estate that is not subject to the claims of creditors as long as it home study An investigation of pro­ is occupied as a home by the head of spective adoptive parents to make sure the household. (See also: homestead they are fit to raise a child, required by exemption, Homestead Act) all states. Common areas of inquiry include financial stability, marital Homestead Act A federal law, passed stability, lifestyles and other social in 1862, which allowed people to factors, physical and mental health, and become owners of up to 160 acres of criminal history. unappropriated public land by filing an application, living on the land and hometowned Slang for a lawyer or client improving it for five years, and paying a suffering discrimination by a judge filing fee to acquire title. who favors locals over out-of-towners. Also referred to as a “home advantage,” homestead declaration A form filed “home field advantage,” or “home court with the county recorder’s office to put advantage.” on record your right to a homestead exemption. In most states, the home­ home warranty A service contract that stead exemption is automatic—that is, covers a major housing system—for a homeowner is not required to record a example, plumbing or electrical homestead declaration in order to claim wiring—for a set period of time from the homestead exemption. A few states the date a house is sold. The warranty do require such a recording, however. guarantees repairs to the covered system and is renewable. homestead exemption An exemption from liability given to all or a portion homicide The killing of one human of a primary residence. In most states, being by the act or omission of another. only a portion of the homeowner’s The term applies to all such killings, equity, such as $20,000, can be whether criminal or not. Homicide is protected from a bankruptcy trustee noncriminal in a number of situations, or creditors who wish to sell the including deaths as the result of war home to pay off debts owed by the and putting someone to death by the

204 house closing

valid sentence of a court. Killing may employee is subject to repeated sex- also be legally justified or excused, as based taunting or slurs by her male co- it is in cases of self-defense or when workers. someone is killed by another person hotchpot Putting together or mixing who is attempting to prevent a violent various properties in order to achieve felony. Criminal homicide occurs equal division among beneficiaries when a person purposely, knowingly, or heirs. For example, an estate may recklessly, or with extreme negligence contain cash, securities, personal causes the death of another. Murder belongings, and even real estate which and manslaughter are examples of are part of the residue of an estate to criminal homicide. be given to “my children, share and hornbook law See: blackletter law share alike.” To make such distribution possible, all of the items are put in the hostile possession Occupancy of a piece hotchpot and then divided. of real property in contravention of the rights of others, including the holder of recorded title. Hostile possession Inherit the Wind. (1960) The 1920s is often a prerequisite to claiming Scopes Monkey Trial is fought out ownership by adverse possession. between Spencer Tracy as Clarence Darrow and Fredric March as William Jennings Bryan, hostile witness A witness who testifies arguing over teaching Darwin’s theory of against the party who has called the evolution. With Gene Kelly, Florence Eldridge, person to testify. The examiner may Dick York, Harry Morgan. ask a hostile witness leading questions, as in cross-examination. Also called an adverse witness. hot pursuit An exception to the general hostile work environment Working rule that police officers need an arrest conditions that are created when warrant before they can enter a home unwelcome, discriminatory conduct to make an arrest. If a felony has just that is so severe or pervasive that it occurred and an officer has chased a alters the conditions of a victim’s suspect to a private house, the officer employment and creates an abusive can forcefully enter the house in order working environment. Employers can to prevent the suspect from escaping or be liable when their employees are hiding or destroying evidence. subjected to a hostile work environ­ house closing The final transfer of the ment—for example, when a female ownership of a house from the seller to

205 house counsel

the buyer, which occurs after both have closes, detailing all the costs associated met all the terms of their contract and with the closing. These costs include the deed has been recorded. not only those arising from the loan itself, but others such as escrow fees, house counsel An attorney who works real estate agent commissions, home­ only for a particular business. owners’ insurance, and transfer taxes. household People living together in hung jury A jury unable to come to a one dwelling, who may or may not be final decision, resulting in a mistrial. related. Judges do their best to avoid hung householder A person who supports and juries, typically sending juries back maintains a household, alone or with into deliberations with an assurance other people; more commonly referred (sometimes known as a “dynamite to as head of household. In bankruptcy charge”) that they will be able to law, a householder may claim a home­ reach a decision if they try harder. If stead exemption. a mistrial is declared, the case is tried again unless the parties settle the case housekeeper See: householder (in a civil case) or the prosecution Housing and Urban Development (HUD) dismisses the charges or offers a plea The U.S. Department of Housing and bargain (in a criminal case). Urban Development. This is the agency hybrid adjustable rate mortgage An responsible for managing the Federal adjustable rate mortgage that starts Housing Administration and other with a fixed interest rate for a set term housing finance programs, and for (such as five, seven, or ten years), after enforcing the federal Fair Housing Act which the rate can adjust. and Fair Housing Amendments Act. hyperlink See: link HUD See: Housing and Urban Development hypothecate To pledge as security for a loan without giving up possession, as HUD-1 A standard form that closing in the case of property the borrower agents give to mortgage loan borrowers pledges as collateral and keeps. on the date the real estate purchase

206 I

I-94 card A small green or white card illicit Unlawful or prohibited. For given to all nonimmigrants when they example, the laws may make it a crime enter the United States. The I-94 card to engage in “illicit trade” or possess serves as evidence that a nonimmigrant “illicit drugs.” (Compare: licit) has entered legally. It is stamped with illusory promise A promise that pledges a date indicating how long the non­ nothing, because it is vague or because immigrant may stay for that particular the promisor can choose whether or not trip. (It is this date—and not the to honor it. Such promises do not create expiration date of the visa—that must contracts and are not legally binding. be followed in determining when the immigrant must leave.) A new I-94 immaterial 1) In court, a commonly card with a new date is issued each time heard objection to introducing evidence the nonimmigrant legally enters the in a trial on the ground that it had United States. Canadian visitors are not nothing substantial to do with any issue normally issued I-94 cards. in the case. 2) In a lawsuit, a matter that has no bearing on the issues in i.e. An abbreviation for id est—Latin dispute. for “that is”—and used to expand or explain a general term. For example, immediate relative Although the com- “his children (i.e., Matthew, Mark, mon meaning of this is a close family Luke, and Joan).” It should not be relation, it has a more specific mean- confused with “e.g.” which means “for ing in immigration law. Immediate example.” relatives are a category of prospective immigrants who include a U.S. ­citizen’s IEP See: individualized education program spouse, minor children (under the illegal Against or not authorized by the age of 21), and parents (so long as the law. Also called illicit or unlawful. citizen is at least 21 years old). Immedi- ate relatives have an immediate right illegal immigrant See: undocumented to apply for U.S. permanent residence immigrant (assuming their U.S. family member

207 immigrant visa

agrees to start the process on their a crime in exchange for information or behalf)—unlike more distant relatives, testimony in a criminal matter, granted they aren’t subject to yearly limits on by the prosecutors, a judge, a grand the numbers who can apply for perma- jury, or an investigating legislative com- nent residence. mittee; 2) public officials’ protection from liability for their decisions (like immigrant visa A type of U.S. visa that a city manager or member of a public a U.S. consulate or embassy issues to hospital board); 3) governmental (or people who have just qualified for U.S. sovereign) immunity, which protects permanent residence (a “green card”). government agencies from lawsuits The immigrant visa enables the holder ­unless the government agreed to be to enter the United States, take up sued; 4) diplomatic immunity which permanent residence, and receive his or excuses foreign ambassadors from most her green card. U.S. criminal laws. Immigration and Customs Enforcement (ICE) This agency of theD epartment of Homeland Security handles “There is far too much law for those who enforcement of the immigration laws can afford it, and far too little for those within the U.S. borders; for example, who cannot.” by going to workplaces and checking —Derek Bok, for undocumented workers. President of Harvard University Immigration and Naturalization Service (INS) Formerly, the federal agency impairs an exemption When a lien, in in the Department of Justice that combination with other liens and the administered and enforced immigration amount a debtor may claim as exempt, and naturalization laws. In 2003, exceeds the value of property. For however, the INS officially ceased to example, if a debtor’s home is worth exist, and its functions were taken over $200,000, the debtor is entitled to a by various branches of the Department $35,000 homestead exemption, and of Homeland Security. the home is subject to a mortgage of immunity Exemption from ­penalties, $150,000, a lien that exceeds $15,000 pay­ments, or legal requirements, impairs the debtor’s homestead exemp- granted by authorities or statutes. Gen- tion: Once the mortgage was paid off, erally there are four types of immunity there wouldn’t be enough equity left to at law: 1) a promise not to prosecute for pay both the exemption and the lien.

208 implied warranty of fitness impanel To select a jury and assign the explicit words of agreement had been jury to decide a court case. uttered. For example, implied consent to a contract can be inferred when impaneling The act of selecting a jury one person has been performing on from a list of potential jurors. the contract, and the other person has impeach 1) To discredit, for example, to accepted the first person’s performance show that a witness is not believable— without objecting or complaining. perhaps because the witness made implied contract A contract that is found statements that are inconsistent with to exist even when its terms are not present testimony, or has a reputation explicitly stated because 1) the parties for not being a truthful person. 2) The assumed a contract existed (implied- process of charging a public official, in-fact contract), or 2) denying the such as the U.S. president or a federal contract’s existence would result in judge, with a crime or misconduct, unjust enrichment to one of the parties which results in a trial by the Senate to (implied-in-law contract). (Compare: determine whether the official should express contract) be removed from office. implied covenant of good faith and fair impeachment See: impeach dealing An implied obligation that impleader A procedure in which one assumes that the parties to a contract party brings a third party into a will act in good faith and deal fairly lawsuit. Usually a defendant initiates with one another without breaking the proceeding to show that the their word, using shifty means to avoid third party is liable to the plaintiff. obligations, or denying what the other (Compare: interpleader) party obviously understood. implied Circumstances, conduct, or implied warranty A guarantee that is not statements which substitute for explicit written down or explicitly spoken. (See language to prove authority to act, also: implied warranty of merchantabil- warranty, promise, or consent, among ity, implied warranty of fitness, implied other things. warranty of habitability) implied consent Consent when implied warranty of fitness A warranty surround­ing circumstances exist that implied by law that, if a seller knows would lead a reasonable person to or has reason to know a buyer will use believe that this consent had been property for a specific purpose, the given, although no direct, express, or property is suitable for that purpose.

209 implied warranty of habitability

For example, if a buyer tells a seller he returned to the owner at the end of the wants to purchase a watch suitable for proceeding or it may be forfeited to the deep sea diving, the seller can violate state (for example, in the case of illegal the implied warranty by selling the drugs). buyer a watch that isn’t waterproof and imprison To put a person in prison or depth-tolerant. jail or otherwise confine him or her as implied warranty of habitability A legal punishment for committing a crime. doctrine that requires landlords to improvement As applies to real estate, offer and maintain livable premises any permanent structure or work (such for their tenants. If a landlord fails to as planting trees) on real property, provide habitable housing, tenants in which increases its value or extends its most states may legally withhold rent or useful life. As defined by the IRS, an take other measures, including fixing addition to or alteration of a capital the problem and deducting the cost asset, which either increases its value or from the rent, or moving out. (See also: extends its useful life. constructive eviction) impute 1) To attach or ascribe. 2) To implied warranty of merchantability A place responsibility or blame on one warranty implied by law that property person for acts of another person is fit for the ordinary purpose for which because of a particular relationship, it is used. such as mother to child, guardian impossibility When an act cannot be per- to ward, employer to employee, or formed due to physical impediments, business associates. Example: a child’s nature, or unforeseen events. It can be negligence in driving a car without a a legitimate basis to rescind (mutually license may be imputed to the parent. cancel) a contract. 3) To attribute knowledge to a person because of the person’s relationship impotence A man’s inability to copulate. to the one actually possessing the Impotence can be grounds for annul- information. Example: if one partner ment of a marriage if the condition in a business is informed of something, existed at the time of the marriage and that knowledge is imputed to other is grounds for divorce in some states. partners. (See also: vicarious liability) impound In a criminal proceeding, when in absentia (in ab-sen-shah) Latin for the court or police take possession of “in absence,” or more fully, in one’s personal property. The property may be absence.

210 incapacity inadmissible In immigration law, being as compared to its value, it will take ineligible to enter the United States (or too long to present or risks inflaming obtain any type of visa or green card) the jury. In addition, in criminal because one matches one of the grounds cases, evidence that is gathered using of inadmissibility found at Immigration illegal methods is commonly ruled and Nationality Act Section 212, or 8 inadmissible. U.S. Code Section 1182. Commonly inalienable Not transferable; impossible applied grounds of inadmissibility to take away. include having a criminal record, a history of certain immigration law in camera Latin for “in chambers.” A violations, being without a source legal proceeding is in camera when of financial support, or having a a hearing is held before the judge in communicable disease. private chambers or when the public is excluded from the courtroom. Proceed­ ings are often held in camera to protect Music Box. (1989) Jessica Lange stars as a victims and witnesses from public lawyer who is the daughter of an accused exposure, especially if the victim or war criminal. She defends her father, though witness is a child. she is unsure of his innocence. With Armin Mueller-Stahl, Frederic Forrest, Donald Moffat. incapacitated 1) Lacking the physical or mental abilities to manage one’s own personal care, property, or finances. inadmissible evidence Testimony or 2) Lacking the ability, due to illness or other evidence that fails to meet state or injury, to perform one’s job. federal court rules governing the types incapacity 1) A lack of physical or of evidence that can be presented to a mental abilities that results in a person’s judge or jury. The main reason evidence inability to manage his or her own is ruled inadmissible is because it falls personal care, property, or finances. into a category deemed so unreliable 2) A lack of ability to understand one’s that a court should not consider it as actions when making a will or other part of a deciding a case—for example, legal document. 3) The inability of hearsay evidence or an expert’s opinion an injured worker to perform his or that is not based on facts generally her job. This may qualify the worker accepted in the field. Evidence will also for disability benefits or workers’ be declared inadmissible if it suffers compensation. 4) Under the Family from some other defect—for example, Medical Leave Act (FMLA), the

211 incentive stock option

inability to work, attend school, or incidental beneficiary Someone who perform other regular daily activities benefits as the result of a contract due to a serious health condition, or trust but is not a direct, intended treatment for the condition, or recovery beneficiary. For example, a neighbor from the condition. might benefit from a homeowner’s contract with a tree service, and incentive stock option (ISO) An option children might benefit if their parent to purchase stock (usually given to receives distributions from a trust. senior employees) which provides (Compare: third-party beneficiary) favorable tax treatment for the option holder, as long as certain holding period incidents of ownership Any control over requirements are met. If the holding property. If you give away property but period requirements are met, the keep an incident of ownership—for options are not taxable at the time they example, you give away an apartment are granted or exercised, and any profit building but retain the right to receive is taxed at long-term capital gains rate rent—then legally, no gift has been instead of ordinary income rates. made. This distinction can be impor- tant if you’re making large gifts to incest Sexual contact between close reduce your eventual estate tax. blood relatives, including brothers and sisters, parents and children, grand­ income Money, goods, or other economic parents and grandchildren, or aunts or benefit received. Under income tax uncles with nephews or nieces; 18 states laws, income can be active through also include copulation or cohabitation one’s efforts or work, or passive from between first cousins in the definition rentals, stock dividends, investments, of incest. Incest is a crime in all states, and interest on deposits in which there even if consensual by both parties. is neither physical effort nor manage- ment. For tax purposes, income does in chambers Discussions or hearings held not include gifts and inheritances in the judge’s office, called his or her received. Taxes are collected based on chambers. (See also: in camera) income by the federal government and inchoate Something that has begun most state governments. but has not been completed, such as income in respect of decedent Any a potential crime for which all the income a deceased person would have elements have not been accomplished, received, had he or she lived. or a contract that has not been formalized.

212 incorporate income statement See: profit and loss Incompetence can be the basis for statement the appointment of a guardian or conservator to handle the incapacitated income tax A tax on an individual person’s affairs. 2) In criminal law, or a corporation’s net income after unable to understand the nature of deductions for various expenses and a trial, and therefore not qualified payments, such as charitable gifts or to stand trial or testify. 3) A general business expenses. There is a federal reference to evidence that is not income tax and most states assess admissible at trial. income tax but at a lower rate than the federal government. incompetent evidence Evidence that is inadmissible because it’s irrelevant or incompatibility A conflict in personali- immaterial to the issues in the lawsuit. ties that makes married life together See also: inadmissible evidence impossible. In a number of states, ­incompatibility is the accepted reason incontrovertible evidence Evidence for a no-fault divorce. (See also: irrecon- that leaves no doubt as to a particular cilable differences) conclusion. Examples might include a fingerprint showing that someone incompatible Unable to live together as was present in a room, or a blood test husband and wife due to irreconcilable proving who parented a child. differences. If one spouse desires to end the marriage, that fact proves incorporate To create a corporation by incompatibility, and a divorce will be submitting articles of incorporation granted even though the other spouse for an organization, which may be a does not want a divorce. profit-making business or a nonprofit entity that operates for charitable, social, incompetence 1) The inability or lack religious, or educational purposes. The of qualifications to do something—for process includes having one or more example, perform a job duty or testify incorporators file articles of incor­ at a trial. 2) The inability, as deter­ poration with the Secretary of State or mined by a court, to handle one’s own Division of Corporations, appoint a personal or financial affairs. board of directors, hold a first meeting incompetency See: incompetence of the board of directors to launch the enterprise, and issue stock according incompetent 1) Unable to manage to state laws and regulations of the one’s affairs due to mental incapacity Securities and Exchange Commission. or sometimes physical disability.

213 incorporate by reference incorporate by reference In documents, proving both the insanity of the spouse to include language from another being divorced and that the insanity is docu­ment by referring to it (rather than incurable. repeating it). For example: Plaintiff incorporates by reference all of the allegations contained in the First and The Insider. (1999) A former employee Second Causes of Action set forth above. of a tobacco company is persecuted for disputing tobacco executives’ claims that incorporation The act of incorporating nicotine is not addictive. Starring Al Pacino, an organization. (See also: incorporate) Russell Crowe, and Christopher Plummer. incorporator Any person who joins in incorporating a company; specifically, a indecent exposure Revealing one’s person who files the articles of incorpo- genitals under circumstances likely to ration or certificate of incorporation for offend others. Exposure is indecent a new corporation. under the law whenever a reasonable incorporeal A thing that is not physical, person would or should know that such as a right. Also called intangible. his act may be seen by others—for (Compare: corporeal) example, in a public place or through an open window—and that it is likely incorporeal ownership Not ownership to cause affront or alarm. Indecent of a thing, but ownership in a right exposure is considered a misdemeanor related to a thing. For example, if you in most states. own piece of land, that is corporeal ownership. But if you own a right indefeasible Incapable of being altered of way on that piece of land, that or voided, usually used to describe is incorporeal ownership. (See also: an absolute interest in real estate that corporeal ownership) cannot be changed. incriminate To suggest, charge, accuse, indefeasible remainder A vested show, or admit involvement in a crime. remainder that cannot be undone. (Compare: defeasible remainder) incumber See: encumber indemnify To guarantee against a loss or incumbrance See: encumbrance damage that another might suffer. incurable insanity A legal reason for indemnity An agreement to compensate obtaining a divorce. It is rarely used, another party for loss or damage. however, because of the difficulty of

214 indictable offense indenture 1) Generally, any written indeterminate sentence A prison agreement between two parties. 2) A sentence that consists of a range of real estate deed in which two parties years (such as “five to ten years”). The agree to continuing obligations; for state parole board holds hearings that example, one party may agree to main­ determine when, during that range, tain the property and the other to make the convicted person will be eligible periodic payments. 3) In finance, a for parole. The principle behind written agreement that describes the indeterminate sentences is the hope that borrowers’ responsibility to the lenders prison will rehabilitate some prisoners; in a bond or debenture issue and states those who show the most progress will the maturity date and the interest rate; be paroled closer to the minimum term also called a bond indenture. than those who do not. (Compare: determinate sentence) independent contractor A legal category of worker that is distinct and different index A market-sensitive interest rate from an employee. The key to the that determines interest-rate changes definition is that, unlike employees, on adjustable-rate mortgages and independent contractors retain control other variable rate loans. Common over how they do their work. Employers indices include the six-month London are not required to withhold and pay Interbank Offered Rate (LIBOR), the federal, state, and Social Security Federal Home Loan Bank 11th District (FICA) taxes on behalf of independent Cost of Funds (COFI), and the prime contractors, as they must do for rate as listed in The Wall Street Journal. employees. indicia (in-dish-eeh-yah) From Latin for independent trustee A trustee who is “signs,” or “to point out.” Indications not related to the beneficiary of the or marks suggesting that something trust and does not stand to inherit any is probable. Used, for example, in the property under the trust. Independent terms “indicia of title” and “indicia of trustees are preferred when family partnership.” members are likely to disagree over indictable offense A crime that the manage­ment of the trust. However, prosecutor can charge by bringing independent trustee’s fees are usually evidence of it to the grand jury. These higher than those charged by a family are serious crimes that include murder, member. manslaughter, rape, kidnapping, grand theft, robbery, burglary, arson,

215 indictment

conspiracy, and fraud, as well as included in a lawsuit in order for the attempts to commit them. court to render a final judgment. For example, if a person sues his neighbors indictment A grand jury’s conclusion to force them to prune a tree that that a serious crime has occurred, and poses a danger to his house, the lawsuit that it is reasonably probable that the must name all owners of the relevant defendant committed it. Prosecuting property. attorneys may generally choose how to charge a crime: by indictment or individual retirement account (IRA) by using a criminal complaint. To A retirement plan established by proceed by way of indictment, the an individual that allows annual prosecutor will show the grand jury contributions of income and provides enough evidence to persuade them that some tax advantages. the target of the investigation should individualized education program The be brought to trial. The target does process provided under the federal not have a right to be present, and the Individuals with Disabilities Education proceeding is not public. By contrast, Act to evaluate the educational needs a criminal complaint is followed by of and develop an academic plan for a preliminary hearing, at which the students with disabilities. It refers both defendant is present and where the to 1) the meetings where the school defendant can question opposing district determines whether or not a witnesses and call witnesses of his child is eligible for special education own. When prosecutors want to charge services and if so, the plan for the someone but reveal as little as possible coming year, and 2) the annual detailed of their case and evidence, they often written description of the program and choose the indictment option. (See: services to help children with special indictable offense) needs succeed in school. indigent Impoverished, or unable to indorse See: endorsement ­afford the necessities of life. A defendant who is indigent has a constitutional indorsement See: endorsement right to court-appointed representation, ineffective assistance of counsel according to a 1963 Supreme Court Representation of a criminal defendant, decision, Gideon v. Wainright. at trial or on appeal, by a court- indispensable party A person or entity appointed lawyer or a retained lawyer, (such as a corporation) that must be that involved errors that were so serious

216 informed consent

that they resulted in the denial of a fair wants more specifics must ask by way trial. Most errors do not rise to the level of a discovery request. (Compare: of ineffective assistance, though some indictment) are (such as failing to investigate the defendant’s background in a death- penalty case, where the evidence might Swift justice was meted out to have led jurors to impose a sentence of Giuseppe Zangara, who tried to shoot life without parole instead of death). President-elect Franklin D. Roosevelt in Florida on February 15, 1933, but mortally wounded in extremis Facing imminent death. Chicago Mayor Anton Cermak instead. Cermak died March 6. The murder trial began infancy 1) Very early childhood. 2) The the next day. Zangara was convicted in a brief period of a person’s life when they trial and was electrocuted March 20, just 33 have not reached legal majority or days after the shooting. adulthood. inference A conclusion arrived at by logically drawing on known facts—as information and belief Language used in in, if A and B are true, then C is. legal proceedings to qualify a statement and prevent a claim of perjury. A in forma pauperis (in form-ah paw-purr- person making a statement based on iss) Latin for “in the form of a pauper.” information and belief often lacks A party to a lawsuit who cannot afford personal knowledge as to the statement the court costs and fees can ask that but has a belief that the information is they be waived (forgiven) in order to correct. In effect, the person is saying, proceed “in forma pauperis.” “I am only stating what I have been information The name of the document, told, and I believe it.” sometimes called a criminal complaint informed consent An agreement to or petition, in which a prosecutor do something or to allow something charges a criminal defendant with a to happen, made with complete crime, either a felony or a misdemeanor. knowledge of all relevant facts, such The information tells the defendant as the risks involved or any available what crime he or she is being charged alternatives. For example, a patient with, as well as against whom and may give informed consent to medical when the offense allegedly occurred. treatment only after the health care However, the prosecutor need not go professional has disclosed all possible into great detail. A defendant who risks involved in accepting or rejecting

217 infra

the treatment. A health care provider or infringement (of trademark) facility may be held responsible for an Unauthorized use of a trademark or injury caused by an undisclosed risk. service mark (or a substantially similar In another context, a person accused mark) on competing or related goods of committing a crime cannot give up and services. The success of a lawsuit to his constitutional rights—for example, stop the infringement turns on whether to remain silent or to talk with an the defendant’s use causes a likelihood attorney—unless and until he has been of confusion in the average consumer. informed of those rights, usually via the If a court determines that confusion is well-known Miranda warnings. likely, the owner of the original mark can prevent the second user’s use of the infra Latin for “below,” this is legal infringing mark and sometimes collect shorthand to indicate that the details or damages. (Compare: dilution) citation of a case will come later in the document, such as a legal brief. infringement (of utility patent) The unauthorized manufacture, sale, or infraction A minor violation of law use of (a) a literal copy of a patented commonly punishable by a fine—for invention, or (b) an invention that example, a traffic or parking ticket. performs substantially the same (Compare: misdemeanor) function in substantially the same infringement 1) Violation or breach of a manner as a patented invention. (See legal right, contract, or statute. 2) Un- also: doctrine of equivalents) authorized use of a patent, copy­right, ingress An entrance, or the act of entering. or trademark. (See also: infringement (Compare: egress) (of copyright), infringement (of patent), infringement of (trademark)) in haec verba (in heek verb-ah) Latin for “in these words,” or verbatim. This infringement (of copyright) The is often used when stating the exact unauthorized violation of a copyright language of an agreement within a owner’s exclusive rights in a work. complaint or other pleading rather than Common examples include the illicit attaching a copy of it. distribution of software or music, the adaptation of another’s work in one inherit To receive property from someone medium (such as a book or play) for use who has died. Traditionally, the word in another medium (such as a movie or “inherit” applied only when one received CD-ROM), or the unauthorized public property from a relative who died performance of a recording or film. without a will. Currently, however, the

218 in-kind support and maintenance

word is used whenever someone receives injunctions). Judges can also issue property from the estate of a deceased permanent injunctions at the end of person. trials. inheritance Property received upon the injunctive relief A court-ordered act or death of a relative due to the laws of prohibition against an act that has been descent and distribution. requested in a petition to the court for an injunction. Usually injunctive relief inheritance tax A tax some states impose is granted only after a hearing at which on people or organizations who inherit both sides have an opportunity to property from a deceased person. The present testimony and legal arguments. tax rate depends on the inheritor’s relation­ship to the deceased person; injury Harm done to a person by the acts typically, spouses or children pay no or omissions of another. Injury may tax, but less closely related inheritors do be physical or may involve damage pay inheritance tax. (Compare: estate to reputation, loss of a legal right, or tax) breach of a contract. inheritors Persons or organizations who in-kind Refers to payment, distribution, receive property from someone who or substitution of goods or services dies. in lieu of money. Used in wills and trusts, it empowers the executor or in-house counsel See: house counsel trustee to distribute property “in kind” injunction A court decision commanding to beneficiaries—that is regardless or preventing a specific act, such as of whether the property is money, an order that an abusive spouse stay goods, or services—as long as property away from the other spouse or that a in the correct value is given to each logging company not cut down first- beneficiary. growth trees. Courts grant injunctions in-kind income See: in-kind support and to prevent harm—often irreparable maintenance harm—as distinguished from most court decisions, which are designed in-kind support and maintenance (ISM) to provide a remedy for harm that has Shelter or food provided to an SSI already occurred. Injunctions can be recipient. The value of ISM is considered temporary, pending a consideration of income. An SSI recipient’s monthly the issue later at trial (these are called grant is reduced dollar for dollar by interlocutory decrees or preliminary the total value of the ISM received in

219 in lieu

a month, up to a certain amount. Also not guilty are probably not innocent called in-kind income. under any reasonable understanding of that term. Instead, the prosecutor in lieu Instead of. For example, a “deed in may have simply failed to produce lieu of foreclosure” is a deed to a house enough compelling evidence, failing to offered to the lender by the homeowner convince the jury beyond a reasonable so that the lender will not foreclose. doubt. in limine (in lim-in-ay) From Latin for innocent spouse rule An Internal “at the threshold,” referring to a request Revenue Service rule that says that made to the judge before a trial begins, a spouse who unknowingly signs a such as a request to exclude evidence. fraudulent joint tax return prepared by inlining The process of incorporating the other spouse can be excused from a graphic file from one website onto having to pay penalties on that return. another website. For example, inlining innuendo From Latin innuere, “to nod occurs if a user at site A can, without toward.” In law it means an indirect leaving site A, view a cartoon-of-the- hint. In defamation cases, defendants day featured on site B. sometimes use innuendo when making in loco parentis (in loh-coh par-ent-iss) a comment about the person suing. For Latin for “instead of a parent” or “in example, if there is only one living ex- place of a parent.” People or institutions mayor, the statement “the former mayor that stand in loco parentis to a child is a crook” uses innuendo. might be a foster parent, a county in pari delicto (in pah-ree dee-lick- custodial agency, or a boarding school. toh) Latin for “in equal fault.” In a innocent A term that is often mistakenly lawsuit, it refers to situations where equated to a plea of “not guilty.” the parties are equally at fault or guilty Innocence is not a legal term, but rather of wrongdoing. They may thus be a philosophical, moral, or religious prevented from collecting damages expression of nonresponsibility. By from the others. contrast, a not guilty plea simply means in perpetuity Forever—for example, one that the defendant is demanding that may have the right to keep the profits the prosecutor prove every part of the from land in perpetuity. charged crime beyond a reasonable doubt. Many defendants who plead in personam (in-purr-soh-nam) Latin for (and are found by the jury to be) “against a person.” In a lawsuit against

220 insider trading

a specific person, this concept means insanity See: criminal insanity the defendant must be served with a insanity defense The claim of a defendant summons and complaint to give the in a criminal prosecution that he or court jurisdiction to try the case, and she was insane when the crime was the judgment the court applies to that committed, and therefore should not be person only. (Compare: in rem) held accountable. (See also: diminished in pro per See: pro per capacity, McNaughten rule) in propia persona See: pro per insertion The addition of language into an existing typed or written document inquest A coroner or medical examiner’s (generally initialed by all parties to the investigation or hearing into a document). suspicious death. A jury hearing may be held under some circumstances. insider Someone who has a position in a business or stock brokerage, which in re Latin for “in the matter of.” Used allows him or her privy to confidential in legal documents to refer to a case, information (such as future changes in particularly a case without an opposing management, upcoming profit and loss party. For example, “In re Estate of reports, secret sales figures, and merger Ruth Bentley” might be used to refer to negotiations) which will affect the a probate case about the estate of Ruth value of stocks or bonds. Use of such Bentley. confidential information unavailable to in rem Latin for “against or about a the investing public in order to profit thing,” referring to a lawsuit or other through sale or purchase of stocks or legal action directed toward property, bonds is unethical and a crime under rather than toward a particular person. the Securities and Exchange Act. Thus, if title to property is the issue, insider trading The use of confidential the action is “in rem.” The term is information about a business gained important since the location of the through employment in a company property determines which court has or a stock brokerage, to buy or sell jurisdiction, and enforcement of a stocks and bonds based on the private judgment must be upon the property knowledge that the value will go up or and does not follow a person. down. The victims are the unsuspecting INS See: Immigration and Naturalization investing public. It is a crime under the Service Securities and Exchange Act.

221 insolvency insolvency 1) Generally, the state of installment sale A sale where the having more debts than assets or being purchaser of an asset or business pays unable to pay debts as they come due. the seller over several years. This allows 2) For tax purposes, when a person the capital gain, and thus the capital who has had a debt cancelled still has gains tax, to be spread over several years more debts than assets. Someone who is rather than all be in the year of the sale. insolvent even after a debt is cancelled instruction See: jury instruction does not have to pay income tax on the amount of the cancelled debt. instrument A written legal document such as a contract, lease, deed, will, or bond. “Judges must beware of hard constructions and strained inferences, for there is no insufficient evidence Evidence so worse torture than the torture of laws.” inadequate that a court will find that —Sir Francis Bacon the prosecution or plaintiff has no basis upon which to proceed, and will most likely dismiss the case. inspection of documents The process of insurance A contract in which the examining and copying documents in ­insured pays a fee to the insurance the possession of an opposing party in company, and in exchange, the insur- a lawsuit. ance company agrees to pay the ben- installment agreement An agreement eficiary of the policy a given amount between the IRS and a taxpayer that if specific events occur. For example, allows the taxpayer to pay unpaid life insurance pays a beneficiary on federal taxes under a monthly payment the death of the insured, auto insur- plan. ance pays the beneficiary if the insured gets into an auto accident, and health installment contract An agreement in insurance pays for health care if the which performance is done in install- insured gets sick. There are many, many ments. For example, where payments kinds of insurance including: life insur- of money, delivery of goods, or per- ance, auto insurance, health insurance, formance of services are to be made mortgage insurance, unemployment in a series of payments, deliveries, or insurance, accident insurance, burial ­performances, usually on specific dates insurance, cargo insurance, fire insur- or upon certain happenings. ance, title insurance.

222 intent insured The person or entity who is represents the full and final agreement covered by an insurance policy. of the parties and supersedes any other agreements, oral or written, on insurer The person or entity (usually an the same subject. The purpose of an insurance company) that agrees to pay integration clause is to prevent one for losses suffered by the insured. S( ee party from later claiming that what the also: insurance) parties actually agreed to was different intangible property Personal property from what was written in the contract. that has no physical existence, such as intellectual property Property such as stocks, bonds, bank notes, trade secrets, books, inventions, business secrets, patents, copyrights, and trademarks. and trademarks, that—unlike real or Such “untouchable” items may be personal property—is created by the represented by a certificate or license human mind. Intellectual property that fixes or approximates the value, is typically protected by patent, but others (such as the goodwill or copyright, trademark, and trade secret reputation of a business) are not easily laws (jointly called intellectual property valued or embodied in any instrument. laws). (Compare: tangible personal property) intent The mental desire to act in a integrated pension plan A pension plan particular way. Many crimes require that takes anticipated Social Security that in order to be found guilty, the benefits into account when determining perpetrator must have intended to plan benefits. do what he did. An act may be one integration 1) To combine the full of many possible crimes depending agreement of the parties into a contract, on the intent of the perpetrator. For such that any earlier versions or example, if A shoots and wounds B, understandings that aren’t included the offense could be attempted murder in the contract are superseded. (See (if A intended to kill B), assault with also: integration clause) 2) Bringing intent to cause great bodily injury (A together people of different races into was intending to merely wound B), a institutions, such as schools, housing, minor misdemeanor (A shot on purpose employment, or the military, that have but could not have known that B was historically been segregated. around), or no crime at all (A fired the gun completely by accident). (See also: integration clause A provision in a specific intent) contract stating that the contract

223 intentional tort intentional tort A deliberate act that $100,000 loan with a 5% interest rate, causes harm to another, for which you will have to pay $5,000 in interest the victim may sue the wrongdoer for each year until the loan is paid back. damages. Acts of domestic violence, interested witness A witness in a trial such as assault and battery, are who has a personal interest in the intentional torts (as well as crimes). outcome of the matter at hand. intent to levy A notice to a delinquent taxpayer that the IRS intends to seize (levy) property to satisfy a tax obli- “The law is the last result of human gation, though the levy may not be wisdom acting upon human experience ­i m m i n e n t . for the benefit of the public.” —Samuel Johnson intent-to-use application (ITU) An alternative method for seeking federal trademark registration based on the interference An administrative proceed­ applicant’s bona fide intent to use the ing before the U.S. Patent and Trade­ mark in commerce in the near future. mark Office to determine who gets the Although an ITU applicant may patent in situations where two pending reserve the mark for a limited time, applications (or a pending application registration on the Principal Register and a patent issued within one year of will not occur until the mark is actually the pending application’s filing date) used in commerce. both claim the same invention. inter alia (in-tur ay-lee-ah) Latin for interim order A temporary order made “among other things.” This phrase by a judge pending a hearing or trial, is often found in legal pleadings and where a final order will be entered. writings, for example: “The judge said, inter alia, that the time to file the interlineation The act of writing between action had passed.” the lines of a document, usually to add something that was omitted or interest A fee paid to a bank or other thought of later. Good practice is either creditor for lending money or extending to have all parties initial the change credit. The interest rate represents at the point of the writing or have the the yearly price charged by the lender document retyped and then signed. for the loan and is usually expressed as a percentage of the total amount interlocutory Provisional and not borrowed. For example, if you have a intended to by final. This usually refers

224 interpleader

to court orders which are temporary. need a day or afternoon off when the (See also: interlocutory decree) condition flares up, or an employee receiving chemotherapy may need to interlocutory appeal An appeal that take a few hours off every other week occurs before the trial court’s final for treatment. ruling on an entire case. Internal Revenue Code (IRC) The federal interlocutory decree A court judgment tax laws of the United States. that is not final until the judge decides other matters in the case or until Internal Revenue Service (IRS) The enough time has passed to see if the branch of the United States Treasury interim decision is working. In the that administers the tax laws and past, interlocutory decrees were most collects taxes. often used in divorces. The terms of the international law While there is no one, divorce were set out in an interlocutory specific body of international law, the decree, which would become final only term is taken to mean the collection after a waiting period. of treaties, customs, and multilateral interlocutory judgment See: inter­ agreements governing the interaction of locutory decree nations and multinational businesses or nongovernmental organizations. intermediate scrutiny A legal standard to determine the constitutionality of Internet service provider (ISP) A a statute, when the statute applies to business that provides access to the a quasi-suspect classification (such Internet. An ISP may also offer services as gender). To determine if a statute such as website hosting. An ISP can passes the test, a court considers sometimes be held accountable for whether the statute involves important copyright violations for material posted governmental interests and whether by subscribers and users, but is often the law is substantially related to the protected by the Digital Millennium achievement of important government Copyright Act. The Communications objectives. (See also: strict scrutiny) Decency Act usually protects ISPs from the posting of obscenities or defamation intermittent leave Leave taken under the by subscribers or users. Family and Medical Leave Act (FMLA) in separate blocks of time rather than interpleader A court case between two all at once. For example, an employee parties who both claim the right to with chronic asthma may occasionally money from a third party, when the

225 interrogation

third party agrees the money is owed in terrorem clause (in te-ror-em) Latin but doesn’t know to whom. The debtor meaning “in fear.” This phrase is used deposits the funds with the court to describe provisions in contracts (“interpleads”), asks the court to be or wills meant to scare a person into dismissed from the lawsuit, and lets complying with the terms of the agree- the court decide who gets the money. ment. For example, a will might state (Compare: impleader) that an heir will forfeit an inheritance if the heir challenges the validity of the interrogation Vigorous questioning, will. Of course, if the will is challenged usually by the police of a suspect in and found to be invalid, then the clause custody. Other than providing their itself is also invalid, and the heir takes names and addresses, suspects are not whatever he or she would have inher- obligated to answer the questions, ited if there were no will. Also called a which must be preceded by Miranda terrorem clause or a no-contest clause. warnings. When suspects refuse to answer, their silence generally cannot inter se (in-tur say) Latin for “among be used by the prosecution to help themselves,” referring to rights and prove that they are guilty of a crime. duties owed among certain parties If the suspect has asked for a lawyer, rather than to others. For instance, the police must cease questioning. If shareholders have certain rights and they continue to question, they usually duties to each other. cannot use the answers against the interstate commerce The buying, sell­ suspect at trial. (See also: Miranda ing, or moving of products, services, warnings) or money across state borders. The interrogatories Written questions sent commerce clause of the U.S. Constit­ by one party to another as part of ution allows the federal government the pretrial investigation process, to regulate trade so that the free flow called “discovery.” Interrogatories of commerce between states is not must be answered in writing under ­obstructed. oath or under penalty of perjury intervene To enter into a lawsuit that within a specified time (such as 30 has already started between other days). Lawyers can write their own parties, because a claim exists that is sets of questions, or can use form related to the existing case. Example: interrogatories designed for the most A grocery store sues a dairy producer common types of lawsuits. for providing sub-par butter. A second

226 intoxication

grocery chain has been buying from the intestacy The condition of having died same producer, so the second chain asks without a valid will. In the absence of to intervene in the lawsuit. a will or other valid estate planning documents, the deceased person’s intervening cause An event that occurs property will be distributed according after a party’s improper or dangerous to the state’s “intestacy statutes.” action and before the damage that could otherwise have been caused by intestate The condition of dying without the dangerous act, thereby breaking a valid will. The probate court appoints the chain of causation between the an administrator to distribute the original act and the harm to the injured deceased person’s property according to person. The result is that the person state law. who started the chain of events may intestate succession The method by no longer be considered responsible for which property is distributed when a damages to the injured person since person dies without a valid will. Each the original action is no longer the state’s law provides that the property proximate cause. be distributed to the closest surviving intervention The procedure under which relatives. In most states, the surviving a third party may join an ongoing law­ spouse or registered domestic partner, suit, providing the facts and the legal children, parents, siblings, nieces and issues apply to the intervenor as much nephews, and next of kin inherit, in as to one of the existing parties. (See that order. also: intervene) in toto Latin for in its entirety or com- inter vivos (in-tur vee-vohs) Latin for pletely. For example, if a judge accepts a “among the living.” Inter vivos usually lawyer’s argument in toto, it means that refers to the transfer of property the judge accepts the whole thing. during life, rather than after death intoxication 1) The condition of being through a will or other estate planning under the influence of alcohol or drugs. instrument. It may also refer to a trust Intoxication is not criminal until it created while living, rather than a trust impairs a person’s ability to operate a that comes into being upon the trust vehicle with normal caution (“drunk maker’s death. driving”) based on specific levels of inter vivos trust The Latin name for a alcohol in the blood or, in the case of living trust. “Inter vivos” is Latin for public drunkenness, when the person “between the living.” becomes unable to care for himself,

227 intrinsic fraud

dangerous to himself or others, or the cannot receive benefits greater than he cause of a disturbance. 2) The defense or she provides in return. to a criminal charge, in which the invasion of privacy A legal claim that defendant claims that intoxication another person or business has illegally made it impossible for him to form the used someone’s likeness or unjustifiably intent or specific intent to commit the intruded into that person’s personal crime. This defense is available only affairs. Examples of invasion of privacy rarely. (See also: intent, specific intent) include using someone’s likeness for commercial advantage (for example, Ghosts of Mississippi. (1996) The true falsely claiming that a particular story of investigating and trying the person has endorsed a product), public killer of civil rights leader Medgar Evers, two disclosure of private facts (for example, decades after a jury had acquitted the accused that a person has a particular disease or murderer in a Mississippi state trial. Alec has had an affair), putting someone in Baldwin, Whoopi Goldberg. a false light to the public (for example, publicizing false information that someone was arrested or said something intrinsic fraud An intentionally false inflammatory), and intrusion into representation (lie) which is part of someone’s private affairs (for example, the fraud and can be considered in secretly eavesdropping on someone’s determining general and punitive phone conversations). damages. inventory 1) Property a business owns for inure To take effect, or to benefit some­ resale. 2) In probate, a complete listing one. In property law, the term means of all property owned by a ­deceased “to vest.” For example, Jim buys a person at the time of death. The inven- beach house that includes the right to tory is filed with the court during travel across the neighbor’s property to probate. The personal representative get to the water. That right of way is (executor or administrator) of the estate said, cryptically, “to inure to the benefit is responsible for filing the inventory. of Jim.” Also spelled “enure.” inverse condemnation The taking of a inurement Benefit. For example, a non- portion of property by a government profit organization with tax-exempt agency which so greatly damages the status cannot provide employees with use of a parcel of real property that it private inurement. That is, employees is the equivalent of condemnation of

228 ipso facto

the entire property. Example: the city or business interest purchased in order of Los Angeles widens a boulevard and to make a profit. thereby takes the entire parking lot of investor A person who makes invest­ Bennison’s Market. The city offers to ments. An investor may act either for pay for the lot, but Bennison claims the him or herself or on behalf of others. A market has lost all its business since no stock broker or mutual fund manager, one can park and wants the value of for instance, makes investments for the entire parcel, including the market others who have entrusted that person building. with their money. invest To contribute money to a invitee A person who comes onto an- business venture, or to buy property other’s property, premises, or business or securities, with the intention and establishment upon invitation. The expectation of making a profit. invitation may be direct and express or investigative background check See: “implied,” as when a shop is open and investigative consumer report the public is expected to enter to do business. Property owners must protect investigative consumer report A con- invitees from dangers on the property, sumer report from a consumer report- and are liable for damages if they fail to ing agency that includes information on do so. a person’s character, general reputation, personal characteristics, or lifestyle that involuntary To act without intent, will, is based at least in part on personal or choice. interviews with the person’s friends, IP See: intellectual property family members, neighbors, and others who have information about the per- ipse dixit (ip-see dix-it) Latin for “he son. To request an investigative con- himself said it.” A statement that, sumer report, the person making the while unsupported and unproven, may request must follow the procedures laid carry some weight based solely on the out in the Fair Credit Reporting Act. authority or standing of the person or (See also: consumer report, ­consumer court that issued it. reporting agency) ipso facto (ipp-soh fact-oh) Latin for investment Money spent to acquire “by the fact itself.” This term is used an asset for the purpose of making a by Latin-addicted lawyers when some­ profit, such as the purchase of stock in a thing is so obvious that it needs no corporation. Also refers to the property

229 IRA

elaboration or further explanation. the party seeking the divorce says the A simple example: “A blind person, marriage has fallen apart. (Compare: ipso facto, is not entitled to a driver’s incompatibility, irreconcilable license.” differences) IRA See: individual retirement account IRC See: Internal Revenue Code Adam’s Rib. (1949) Husband and wife lawyers argue, with great wit, two sides irreconcilable differences The most of a murder case. Spencer Tracy, Katharine common basis for granting a no-fault Hepburn. divorce. As a practical matter, courts seldom, if ever, inquire into what the differences actually are, and routinely irreparable harm See: irreparable injury grant a divorce as long as the party irreparable injury Harm that no seeking the divorce says the couple has measurable monetary compensation irreconcilable differences. (Compare: can cure or reverse, such as cutting incompatibility, irremediable break­ down shade trees, polluting a down) stream, or not giving a child needed irrelevant Not pertinent, or germane, medication. Proving irreparable to the matter at hand or to any issue injury is often required in order to before the court. This is the most request a judicial injunction, writ, common objection raised by attorneys temporary restraining order, or other to questions asked or to answers assistance in immediately blocking given during testimony in a trial. For the activity (usually pending further example, if A is charged with hitting court proceedings). Also referred to as B, evidence of A’s honest nature irreparable harm. would probably be irrelevant, but that irresistible impulse test A seldom-used evidence would be relevant if A is test for criminal insanity that labels the charged with embezzlement. person insane if he could not control irremediable or irretrievable breakdown his actions when committing the crime, An accepted ground for a no-fault even though he knew his actions were divorce. As a practical matter, courts wrong. seldom, if ever, inquire into whether irrevocable life insurance trust (ILIT) See: the marriage has actually broken down, life insurance trust and routinely grant a divorce as long as

230 itemized deductions irrevocable trust A permanent trust. IRS Regulations IRS written interpreta- Once it is created, it cannot be revoked, tions of selected provisions of the Inter- amended, or changed in any way. nal Revenue Code. IRS See: Internal Revenue Service ISP See: Internet service provider IRS expenses A table of national and issue A term generally meaning all of regional expense estimates published one’s children and their children down by the IRS. Debtors whose current through the generations, including monthly income is more than their grandchildren, great-grandchildren, and state’s median family income must so on. Also called lineal descendants. use the IRS expenses to calculate their issue preclusion See: collateral estoppel average net income in a Chapter 7 case, or their disposable income in a Chapter itemized deductions Expenses allowed 13 case. by the tax code to be subtracted from income, such as medical expenses, mortgage interest, and charitable expenses.

231 J

J. Abbreviation for Judge, as in Hon. auto parts, electrical and plumbing William B. Boone, J. materials, or petroleum. JAG See: judge advocate John Doe 1) A fictitious name used for a possible male defendant who Jane Doe 1) A fictitious name used for is unknown at the time a complaint a possible female defendant who is is filed to start a lawsuit. 2) The unknown at the time a complaint temporary fictitious name given to an is filed to start a lawsuit. 2) The unidentified hospitalized or dead man. temporary fictitious name given to an unidentified hospitalized or dead joinder The joining together of several woman. lawsuits or several parties all in one lawsuit because the legal issues and the jaywalking The act of crossing a street factual situation are the same for all illegally, for example by walking outside plaintiffs and defendants, or because a marked cross-walks. (The term “jay” party is necessary to the resolution of once referred to a foolish rural person the case. Joinder may be mandatory if who cannot navigate city streets.) a person necessary to a fair result was J.D. See: Juris Doctor not included in the original lawsuit, or it may be permissive if joining the cases jeopardy Being put at risk for a criminal together is only a matter of convenience conviction. Jeopardy “attaches” once or economy. the jury has been sworn. (See also: double jeopardy) joinder of issue The point in a lawsuit when the defendant has challenged JNOV See: judgment notwithstanding the some or all of the plaintiff’s allegations verdict or when it is known which legal jobber Someone who buys products questions are in dispute—in other (usually in bulk or lots) and then words, the “issue is joined.” Usually this resells them to various retailers. This point arrives when pretrial discovery is middleman generally specializes in complete. specific types of products, such as

232 joint liability joint Undivided and shared by two or for causing damages, the court may more persons or entities. It can refer to find that several people were jointly rights, responsibilities, or ownership. negligent. The entire judgment may For example, when property is held in then be collected from any of the joint tenancy, each joint tenant (owner) defendants found responsible, unless has the right to the use and enjoyment the court finds that different amounts of the entire property. of negligence of each defendant contributed to the injury. joint custody “The first thing we do, let’s kill all the An arrangement by which lawyers.” parents who do not live together share the upbringing of a child. Joint custody —William Shakespeare, Henry VI, Part II can be joint legal custody (in which both parents have a say in decisions affecting the child), joint physical joint adventure When two or more custody (in which the child spends a people go together on a trip or some significant amount of time with both other action, not necessarily for profit, parents), or both. which may make them all liable for joint defendant See: codefendant an accident or debt arising out of the activity. (See also: joint venture) joint enterprise An activity joined into by two or more people, with common joint and several Refers to a debt or interests and level of control. The a judgment for negligence against enterprise may be for profit, such as a two or more defendants, in which business partnership or joint venture; or each debtor (person who owes) or it may be a criminal conspiracy or an defendant is responsible for the entire instance of group negligence. amount of the debt or judgment, regardless of each individual’s precise joint liability When two or more persons share of responsibility. For example, are both responsible for a debt, claim, a promissory note for a debt often or judgment. It can be important to the states that if there is more than one person making the claim, as well as to debtor, the debt is joint and several. a person who is sued, who can demand This means the creditor can collect the that anyone with joint liability for the entire amount from any of the signers alleged debt or claim for damages be of the note. Or, if a party injured joined in (brought into) the lawsuit in an accident sues several parties with them. (Compare: several liability)

233 joint ownership joint ownership The ownership of damages, meaning that any of them property by two or more people, can be responsible to pay the entire usually with the right of survivorship. amount, no matter what proportion of responsibility each has. joint powers agreement A contract between a city and a county and a joint venture An enterprise entered into special district in which the city or by two or more people for profit and for county agrees to perform services, a limited purpose, such as the purchase cooperate with, or lend its powers to, or improvement of real estate. A joint the special district. venture has most of the elements of a partnership, except that it anticipates a joint tax return A single tax return filed defined period of operation after which by a married couple on which they it terminates. report their combined income and deductions. joint work Under copyright law, a collaboration between two or more joint tenancy A way for two or more authors in which their contributions are people to share ownership of real joined into a single cohesive work. Each estate or other property. In almost author of a joint work has equal rights all states, the co-owners (called joint to register and enforce the copyright, tenants) must own equal shares of the regardless of how their shares in the property. When one joint tenant dies, work are divided. the other owners automatically own the deceased owner’s share. For example, Jones Act A federal law which covers if spouses own a house as joint tenants injuries to crewmen at sea, gives and one dies, the survivor automatically jurisdiction to the federal courts, and becomes full owner. Because of this sets up various rules for conduct of right of survivorship, the property goes these cases under maritime law. directly to the surviving joint tenants journal See: general journal without the delay and costs of probate. (Compare: tenancy by the entirety, joyriding Driving someone else’s vehicle tenancy in common) without permission, without intending to take it permanently. joint tortfeasors Two or more persons whose collective negligence in a single judge 1) An official with the authority accident or event causes damages to and responsibility to preside in a court, another person. Joint tortfeasors may try lawsuits, and make legal rulings. be held jointly and severally liable for Judges are almost always attorneys.

234 judgment proof

In some states, “justices of the peace” party must pay the other. (See also: may need only pass a test, and federal decree) and state “administrative law judges” judgment by default See: default are often lawyer or nonlawyer hearing judgment officers specializing in the subject matter upon which they are asked to judgment creditor A person or entity rule. 2) The word “court” often refers that wins a lawsuit and receives a to the judge, as in the phrase “The judgment for money damages against court found the defendant at fault,” the other party. or “May it please the court?” when judgment debt A debt that arises out of a addressing the judge. 3) To make a judgment in a lawsuit. legal conclusion, as in “The court judged the defense of self-defense to be judgment debtor A person or entity that unpersuasive.” loses a lawsuit and owes a judgment for money damages to the judgment judge advocate A military officer who is creditor. part of the Judge Advocate General’s Corps. The Corps is the judicial arm judgment notwithstanding the verdict of each of the U.S. armed forces. Judge (JNOV) Reversal of a jury’s verdict by advocates are charged with upholding a judge when the judge believes that military law, as contained in the there were insufficient facts on which Uniform Code of Military Justice. to base the jury’s verdict, or that the Officers of the Corps are the chief verdict did not correctly apply the law. officers in courts-martial and military This procedure is similar to a situation courts of inquiry. Judge advocates in which a judge orders a jury to arrive also provide legal services to service at a particular verdict, called a directed members, and advise commanders on verdict. the laws concerning armed combat. judgment proof A condition of having judgment A final court ruling resolving little money and/or property that a the key questions in a lawsuit and creditor who wins a lawsuit could take. determining the rights and obligations A person might be judgment proof of the parties. For example, after a trial because he or she has no property and involving a vehicle accident, a court will no steady income. Even a person who issue a judgment stating which party owns property might be judgment was at fault and how much money that proof if all of the property is exempt

235 judicial

and, therefore, can’t be taken by having to present evidence on the creditors. point. For example, a court might take judicial notice of the fact that ice melts judicial Referring to a judge, a court, or in the sun. the court system. judicial proceeding Any court proceeding judicial discretion A judge’s power to undertaken by a judge, such as a trial or make decisions based on fairness or hearing. a weighing of the facts and circum­ stances, particularly in cases where a judicial sale A sale ordered by a court, party requesting relief or a benefit has no or under the supervision of a court, automatic or clearcut legal right to it. often conducted by an official (keeper, trustee, or sheriff) appointed by the court, usually to satisfy a judgment or “You [should] recognize in any society that implement a court order. the individual must have rights that are guarded.” jumbo loan A mortgage loan that’s too —Eleanor Roosevelt large to be guaranteed by the Federal Housing Administration and which usually comes with a higher interest judicial foreclosure A foreclosure in rate as a result. (Compare: conforming which the foreclosing party files a loan) lawsuit in the county where the real jump bail A colloquial term for fleeing or estate is located, seeking a court judg­ failing to appear for a court appearance ment allowing the property to be sold after depositing (posting) bail. Also at a foreclosure sale because the owner called skipping bail. (See also: bail) has defaulted on mortgage payments. A few states use what are called strict jurat (jur-at) From the Latin “to swear.” foreclosures, which let the judge order A jurat is the portion of an affidavit or ownership of the property transferred deposition in which a person swears that to the foreclosing party without a sale. the contents of the written statement Judicial foreclosures commonly take are true. It usually includes the date, much longer than nonjudicial ones. the name of the person swearing, the (Compare: nonjudicial foreclosure) name of the authority before whom the oath was made, and sometimes the place judicial notice The court’s authority to where sworn—for example, “Sworn accept matters of common knowledge to this 12th day of October, 2008, or indisputable fact without anyone

236 juror

by Martha J. Milner, before me, a have jurisdiction only to hear cases up notary public for said state and county. to a relatively low monetary amount— Barbara A. Stenerson, Notary Public.” depending on the state, typically in the (Compare: acknowledgment) range of $2,000–$10,000. If a court jurisdiction The authority of a court doesn’t have personal jurisdiction over to hear and decide a case. To make all the parties and the subject matter a legally valid decision in a case, a involved, it “lacks jurisdiction,” which court must have both “subject matter means it doesn’t have the power to jurisdiction” (power to hear the type render a decision. of case in question, which is granted jurisdictional amount The monetary by the state legislatures and Congress) amount that determines whether or not and “personal jurisdiction” (power to a particular court can hear a case. For make a decision affecting the parties example, under the law of a particular involved in the lawsuit, which a court state, the jurisdictional amount of a gets as a result of the parties’ actions). justice, municipal, or city court might For example, a state court’s subject be limited to cases involving less than matter jurisdiction includes the civil $25,000. Small claims courts have low and criminal laws passed by its own jurisdictional limits, usually under state, but doesn’t include patent $15,000 and sometimes as low as disputes or immigration violations, $2,500. which Congress allows to be heard only in federal courts. And no court can Juris Doctor (J.D.) The degree awarded hear or decide a case unless the parties to a law school graduate in the agree to be there or live in the state (or United States. Also called a Doctor of federal district) where the court sits, Jurisprudence. or have enough contacts with the state jurisprudence The study and philosophy or district that it’s fair to make them of law and the legal system. answer to that court. (Doing business in a state, owning property there, or jurist 1) A judge. 2) Someone who studies driving on its highways will usually be the law. enough to allow the court to hear your juror A person who serves on a jury. Lists case.) The term “jurisdiction” is also of potential jurors are obtained from commonly used to define the amount sources such as voter registration rolls, of money a court has the power to telephone directories, and department award. For example, small claims courts of motor vehicles’ lists. Individuals who

237 jury

are selected to serve on a jury receive or fire an employee for serving. And from the court a very small fee for a few states require that the employer their time and sometimes the cost of continue to pay the absent employee. traveling from home to court. jury fees The rather minimal amount jury A group of people selected to ­apply paid each day to jurors for serving in a the law, as stated by the judge, to the trial (a flat fee plus mileage from home facts of a case and render a decision, to court). In criminal trials this amount called the verdict. Traditionally, an is paid by the government, while in American jury was made up of 12 civil lawsuits it’s paid by the parties ­people who had to arrive at a unanimous to the lawsuit, in equal amounts. decision. But today, in many states, The winner is usually entitled to juries in civil cases may be composed reimbursement of the jury fees paid. of as few as six members, and non­ jury instruction A direction or explana- unanimous verdicts may be permit- tion that a judge gives to a jury about ted. (Almost every state still requires the law that applies to a case. 12-­person, unanimous verdicts for criminal ­trials.) The philosophy behind jury nullification A decision by the jury the jury ­system is that—especially in to acquit a defendant who has violated a criminal case—an accused’s guilt or a law that the jury believes is unjust or innocence should be judged by a group wrong. Jury nullification has always of people from the same community been an option for juries in England (“a jury of peers”), acting impartially and the United States, although judges and without bias. Recently, some courts will prevent a defense lawyer from have been experimenting with increas- urging the jury to acquit on this basis. ing the ­traditionally rather passive role Nullification was evident during the of the jury by encouraging jurors to Vietnam War (when selective service take notes and ask questions. protesters were acquitted by juries opposed to the war) and currently jury box The enclosed area in which the appears in criminal cases when the jury jury sits during a jury trial. disagrees with the punishment—for jury duty The obligation to serve on example, in “three strikes” cases when a jury. In most states, employers are the jury realizes that conviction of a prohibited from discriminating against relatively minor offense will result in employees who are called for jury lifetime imprisonment. duty—that is, they cannot demote

238 just compensation jury of one’s peers The constitutionally trials due to exhaustion, sequestration, guaranteed right of criminal defendants the mountain of evidence, and the to be tried by their equals, that is, by desire to do the right thing. an impartial group of citizens from jury tampering The crime of attempt- the legal jurisdiction where they ing to influence a jury through any live. This has been interpreted by means other than presenting evidence courts to mean that the jurors should and ­argument in court, such as con- include a broad representation of the versations about the case outside the population, particularly with regard court, offering bribes, making threats, to race, national origin, and gender. or ­asking acquaintances to exert their Notice that this doesn’t mean that, influence on a juror. for example, women are to be tried by women, Asians by Asians, or African jury trial A trial of a lawsuit or criminal Americans by African Americans. prosecution in which the case is pre- When selecting a jury, the lawyers may sented to a jury for final determination not exclude people of a particular race of the factual questions. (Compare: or intentionally narrow the spectrum of court trial.) possible jurors. jus cogens (jes koh-jens) Latin for jury panel A list of people who’ve been “cogent law.” A principle or norm summoned to the court for jury duty, of international law that is based on from which jurors for a particular trial values taken to be fundamental to the may be chosen. international community that cannot be disregarded. jury selection The process by which a jury is chosen for a particular trial. jus naturale (jus natch-ray-lee) Latin In brief, a panel of potential jurors is for “natural law.” This is a system of called, they’re questioned by the judge legal principles ostensibly derived from and attorneys, some may be dismissed universal divine truths. for cause (such as bias), others based on just cause See: good cause peremptory challenges (in which the attorneys don’t need to state a cause), just compensation 1) In general, a fair and finally the jury is chosen and and reasonable amount of money impaneled. (See also: voir dire) to be paid for work performed or to make one whole after loss due to jury stress The mental and physical damages. 2) The full value to be paid tension found to affect juries in long for property taken by the government

239 justice

for public purposes guaranteed by Fifth course of self-defense, or a death that Amendment to the U.S. Constitution. results from the necessary actions of a police officer would all be justifiable justice 1) A concept of fairness and moral homicides. Justifiable deaths are not the rightness. 2) A scheme or system of law. same as a crime of passion or a claim 3) Judges on the U.S. Supreme Court, of diminished capacity, which refer to the federal courts of appeal, and state defenses aimed at reducing the penalty appellate courts. or degree of crime. (See also: crime of justice of the peace (JP) An official who passion, diminished capacity) handles minor legal matters such as juvenile court A court that hears cases misdemeanors, small claims actions, involving the morale, health, or welfare marriages, and traffic matters. Dating of children, usually under the age of back to early English Common 18. Children who are alleged to have Law, “JPs” were very common up committed crimes will normally have to the 1950s, but are now primarily their cases heard in juvenile court, found in rural areas from which it is but the prosecution may, in extreme unreasonable for the public to travel to cases and where allowed by statute, the county seat for minor matters. ask that the case be handled in regular justice system A term that describes adult court. Children whose parents the courts and other bureaucracies or guardians have neglected or abused that handle American’s criminal legal them may also appear in juvenile court, business, including offices of various where the case is between the state state and federal prosecutors, public (which appears on behalf of the child) defenders, and probation offices. and the parents. justiciable A matter which is capable of juvenile delinquent Slang for a minor being decided by a court. Usually it is who has been found to have committed combined in such terms as: “justiciable a criminal offense. Minors may not end issue,” “justiciable cause of action,” or up with “convictions,” (they are often “justiciable case.” simply adjudged to have committed the crime), and are usually punished by justifiable homicide A killing without laws that do not apply to adults, such evil or criminal intent, for which as by confinement in a facility solely for there is no blame. For example, an juveniles. Also termed juvenile offender, accidental shooting, a killing in the youthful offender, or delinquent minor.

240 K

K The shorthand symbol for “contract” kidnapping Taking a person away by used by lawyers and law students. means of fear, force, or fraud. Kid- napping is a felony. It is also a federal kangaroo court Slang for a court that crime, due to the assumption that the operates unjustly or with unfair bias. victim can be carried across state lines; Keogh plan A type of retirement plan this gives the FBI jurisdiction to pursue for self-employed people, allowing the alleged kidnapper. part of their earnings to be taken kin A blood relative. from their income to accumulate tax- deferred in an investment account until kindred Under some state’s probate laws, withdrawn. all relatives of a deceased person. key employee For purposes of the Family kiting Illegally taking advantage of the and Medical Leave Act (FMLA), a time it takes checks or other instru­ salaried employee who is in the highest- ments to clear (the float), by writing paid 10% of the company’s employees bad checks between different accounts. working within 75 miles of the Because a bank doesn’t realize that employee’s work site. An employer does there are insufficient funds in the not have to reinstate a key employee account, it may honor a bad check. after FMLA leave if doing so would Also called check kiting. cause the company substantial and know-how A particular kind of technical grievous economic injury. knowledge that may not be confidential but that is needed to accomplish a task. land Real estate that can be transferred by deed. It usually includes permanent structures such as buildings.

241 L

L3C See: low-profit limited liability laches A legal defense to a claim for company equitable relief asserting that the plaintiff’s long delay in bringing the labor and materials (time and materials) claim has prejudiced the defendant (as What some builders or repair people a sort of legal ambush). For example, contract to provide and be paid for, if a homeowner watches while the rather than a fixed price or a percentage neighbor builds a house over their of the costs. In many states, if the property line, and only then brings a person performing the work is not a suit to have the house removed, the licensed contractor, he or she is limited encroaching neighbor may raise the to labor and materials in any lawsuit for defense of laches. Don’t confuse laches contract payment, and may not receive with “statutes of limitations,” which set a profit above that amount. forth specific periods of time within labor certification A required procedure which plaintiffs must file certain types for many foreign nationals who have of lawsuits. a job offer from a U.S. employer land Real estate that can be transferred and want to use it to apply for U.S. by deed. It usually includes permanent permanent residence (a green card). structures such as buildings. The employer must prove that there are no qualified U.S. workers available landlady Female of landlord or owner and willing to take the job. To do of real property from whom one rents so, the employer must conduct an or leases residential or commercial real advertising and hiring process and estate. then turn to the U.S. Department landlocked A parcel of real property that of Labor for individual approval of has no access to a public street and a labor certification. The intending cannot be reached except by crossing immigrant can then continue with the another’s property. (See also: easement) process and apply for a green card. This process is also referred to as “PERM,” landlord The owner of real estate, such meaning Program Electronic Review as a house, apartment building, or Management.

242 last antecedent rule

land, that is leased or rented to another other guidelines and remedies for person or entity, called the tenant. trademark owners. landlord and tenant The area of law lapse Under a will, the failure of a gift concerning renting and leasing of property. A gift lapses when the residential or commercial property and beneficiary dies before the person who the rights of both the owner and the made the will, and no alternate has renter or lessee. been named. Some states have antilapse statutes, which prevent gifts to relatives landlord’s lien The right of a landlord of the deceased person from lapsing to seize and sell personal property unless the relative has no heirs of his or belonging to tenants, to cover unpaid her own. A lapsed gift becomes part of rent or damages to the property. Few the residuary estate. states still allow landlord liens, and of those that do, the process is extremely lapse statute See: antilapse statute complicated, requiring written notice larceny Another term for theft. Although to the tenant, exclusion of property that the definition of this term differs from is needed for basic living, and a public state to state, it typically means taking sale. property belonging to another with land trust An agreement by which the intent to permanently deprive a trustee holds ownership of land the owner of the property. If the for the benefit of an individual or taking is not forceful, it is larceny; if entity. Land trusts are often used by it is accompanied by force directed nonprofit organizations for conservation against a person, it is robbery, a much purposes, by large corporations to more serious offense. Many states amass significant landholdings, and by differentiate between petit larceny individuals to keep their names out of (usually a misdemeanor, punishable the public records. by time in the county jail) and grand larceny (theft of a large amount, Lanham Act The federal statute that punishable as a felony in state prison). governs trademarks, service marks, and unfair competition. The Lanham last antecedent rule A doctrine of Act covers matters that include the interpretation by which a court finds procedures for federally registering that qualifying words or phrases refer trademarks, when owners of trademarks to the language immediately preceding may be entitled to federal judicial the qualifier, unless common sense protection against infringement, and shows that it was meant to apply

243 last clear chance

to something more distant or less the title to land) or personal property obvious. For example, in the phrase (a defect in the steering mechanism “the commercial vehicular license shall of a car). Discovery of a latent defect not apply to boats, tractors, and trucks generally entitles the purchaser to a under three tons,” the qualifier “under refund or a nondefective replacement. three tons” applies only to trucks and (Compare: patent defect) not to boats or tractors. last clear chance A rule, most commonly “The law was not made for a righteous applied to auto accidents, providing man, but for the lawless and that the negligence of a party suing for disobedient.” damages for an accident is irrelevant —The Bible, St. Paul in Timothy 1:9 if the party being sued could have avoided the accident by reasonable care in the final moments before the lateral support A landowner’s right accident. Example: a driver drifts over to have his or her land supported the center line, and an oncoming driver by the land that lies next to it, for notes the drifting but proceeds without example, against any slippage, cave- taking simple evasive action and crashes in, or landslide. Example: a developer into the first driver. The oncoming excavated into a hill to build an driver may be liable for the injuries to apartment building, without putting in the first driver who was over the line. a retaining wall. Surrounding buildings last will and testament An old-fashioned caved in, and the developer had to term for what is now usually called pay the entire value of the destroyed just a “will,” which is a document in buildings. which you state who should inherit law 1) Any system of regulations to your property, direct how to pay debts govern the conduct of the people of and taxes, and name a guardian for an organization, community, society, your minor children in case one is ever or nation. 2) A statute, ordinance, or needed. regulation enacted by the legislative latent ambiguity See: ambiguity branch of a government. latent defect A hidden flaw, weakness, or law and motion calendar A description imperfection that cannot be discovered of the kinds of legal matters a particular by reasonable inspection. It may refer judge or courtroom will hear that day, to real property (a hidden defect in week, or any other block of time. The

244 lay a foundation

law and motion calendar consists of derogatory way to refer to old rules pretrial motions (such as a motion to that no longer reflect the way the law compel the other side in a civil case actually works. to answer discovery requests) or other law of admiralty See: maritime law legal requests that are not connected to a trial, and does not include trials law of the case Once judges have decided themselves. a legal question during the conduct of a lawsuit, they are unlikely to change lawful issue Formerly, statutes governing their views and will respond that the wills used this phrase to specify ruling is the “law of the case.” children born to married parents, and to exclude those born out of wedlock. law of the land The body of rules, Now, the phrase means the same as the regulations, and laws that govern a words issue and lineal descendant. country or jurisdiction. The United States Constitution declares itself “the lawful permanent resident (LPR) A supreme law of the land.” non-U.S. citizen who has been given permission to make a permanent lawsuit 1) A legal action by one person or home (and work) in the United States. entity against another person or entity, Permanent residents are given “green to be decided in a court of law. 2) The cards” (not really green) to prove their complaint or petition that begins a status. U.S. permanent residents may court case. travel as much as they like, but their lawyer See: attorney place of residence must remain in the United States and they must keep lay a foundation The act of demonstrat- that residence on a permanent basis. ing to a judge that a piece of evidence a Otherwise, they’ll be said to have litigant would like to introduce meets abandoned their U.S. residence, and evidence rules requirements concern- could lose their right to the green card. ing authenticity and trustworthiness. A permanent resident who leaves the For example, a medical report cannot United States and stays away for more be introduced unless the physician who than six months risks having the U.S. wrote it testifies that he wrote it; and immigration officials believe that he or a photograph must be authenticated she has abandoned residence. by the photographer or by testimony that it truly reflects a particular place law in books Legal rules found in texts. or event. Even after a proper founda- This term is most often used in a tion is laid, however, evidence can still

245 lay witness

be excluded if, for example, it is not declared a “hostile witness” by the relevant to the point for which it is be- judge. (See also: hostile witness) ing offered. lease An oral or written agreement lay witness A witness who is not an (a contract) between two people expert. Lay witnesses may not offer concerning the use by one of the opinions, unless they are based on property of the other. A lease for more first­hand knowledge or help to clarify than one year must be in writing. A testimony. person can lease real estate (such as an apartment, house, or business property) lead hazard A health hazard resulting or personal property (such as a car from the breakdown of lead paint or or a boat). A lease should cover basic lead solder, and the creation of lead issues such as when the lease will begin dust or lead in drinking water. When and end, the rent or other costs, how such lead is ingested, it can cause brain payments should be made, and any damage and other damage. A 1996 restrictions on the use of the property. federal law, “Title X,” and the ensuing The property owner is often called federal regulations set standards for the “lessor,” and the person using the permissible levels of lead hazards. property is called the “lessee.” leading question A question asked of leasehold The tenant’s interest in real es- a witness who is under oath, which tate or right to occupy it, as established suggests the answer. An improper by a written or oral lease or by implicit leading question would be “Didn’t the permission of the owner. defendant appear to you to be going too fast in the limited visibility?” The lease option A provision in a lease (for proper question would be: “How fast real property, such as a house) or do you estimate the defendant was contract (for personal property, such going?” followed by “What was the as a car) that gives the tenant or lessee visibility?” and “How far could you the right to buy the real or personal see?” Leading questions are not allowed property at the end of the lease or on direct examination (questioning contract period, for a price established by the side that called the witness), in advance. but are allowed on cross-examination least restrictive environment A (questioning by adverse parties) or require­ment of the Individuals with when a party’s own witness has been Disabilities Education Act that school districts place disabled children in

246 legal custody

the classroom setting that best meets legal In accordance with and not in their individual needs, rather than violation of the law; having any relation automatically assume that a special to the law. class or school is the best option. legal action Any lawsuit, judicial In many cases, the least restrictive proceeding, or prosecution, brought environment, or LRE, is a regular to protect a right or remedy a legal classroom with nondisabled children violation or injustice. (also known as mainstreaming), with additional services provided to help the legal advertising 1) Legal notices disabled child succeed at school. required by law to be published in court-approved local newspapers. 2) Advertising for the legal services of “The law embodies the story of a nation’s lawyers and law firms. development through many centuries, and it cannot be dealt with as if it contained legal age The age of legal majority, at only the axioms and corollaries of a book of which a person becomes responsible numbers.” for his or her own actions. In almost —Justice Oliver Wendell Holmes, Jr. all states the basic legal age is 18. State laws vary as to legal age for drinking or buying alcoholic beverages, marriage leave year Under the Family and Medical with or without parental consent, Leave Act (FMLA), the 12-month driving, prosecution for crimes, the period by which an employer measures right to choose an abortion, and an employee’s entitlement to FMLA liability for damages. leave. Eligible employees have a right legal aid Free or low-cost legal services to take up to 12 weeks of leave in each for consumers with limited financial 12-month leave year. means; legal aid services are often legacy A gift of personal property to a provided by local bar associations. beneficiary of a will. Technically, legacy legal cause A cause that produces a direct does not include gifts of real estate, but effect, and without which the effect the term is often used to refer to any would not have occurred. (See also: gift from the estate of someone who direct and proximate cause) has died. The more common term for legacy is bequest. (See also: devise) legal custody The right and obligation to make decisions about a child’s upbringing, including schooling and

247 legal duty

medical care. Many states typically used in the case of foster children when have both parents share legal custody of the expectation is that the parents’ a child. Compare: physical custody. rights will be terminated. legal duty See: duty legal separation The legal status of living apart while remaining legally legalese Slang for the sometimes arcane, married. Parties who legally separate convoluted, and specialized jargon of may petition for property division and lawyers and legal scholars. support rights, and in all ways end their legal fiction A presumption of fact marital relationship while retaining the assumed by a court for convenience, status, usually for religious reasons or to consistency, or to achieve justice. retain insurance benefits. legal malpractice See: malpractice legal services The work performed by a lawyer for a client. legal papers Documents containing a statement of legal status, identity, legal succession Succession of right and authority, or ownership, or providing property in a manner defined by the evidence of some type of obligation. law. For example, intestate succession Such documents may include wills, is legal succession because the law deeds, leases, titles, birth certificates, determines who inherits. However, and contracts. Legal papers may also testate succession is not legal succession refer to documents such as a complaint because the testator decides who gets or summons, prepared in order to what. pursue a legal or court action. legal tender Currency that is issued by a legal risk placement A type of adoption government. Checks, credit cards, and in which the child is placed with the other noncash payments are generally prospective adoptive parents before the not legal tender. birth parents have legally given up their legatee A person or organization who rights or had their rights terminated. If receives a gift under the terms of a will. the termination of rights doesn’t occur, Historically, a legatee receives only then the adopting parents must give personal property, not real property; the child back. This is a risk for the however the word now is most often adopting parents, who may lose a child used to refer to a person who takes to whom they’ve become attached. any kind of property under a will. Legal risk placements are sometimes (Compare: devisee)

248 letters of administration legislative immunity A legal doctrine crime. For example, in most situations that prevents legislators from being murder would include the lesser crime sued for actions performed and of assault and battery. decisions made in the course of serving lessor The owner of real property, who in government. This doctrine does rents it to the tenant, or lessee. not protect legislators from criminal prosecution, nor does it relieve them let To lease or rent real property to from responsibility for actions outside another person, as in “Room to Let.” the scope of their office. letter of credit A letter from a bank or legitimate 1) Legal, proper, or real. 2) A other financial institution guaranteeing child born to parents who are married. payment of a certain amount on behalf of a customer. The letter of credit lemon A car that continues to be substitutes the bank’s credit for the ­defective after a reasonable number of customer’s credit. Letters of credit are attempts at repair, or after the car has used primarily to facilitate international been out of commission for a certain transactions. period of time. Under most state lemon laws, the owner has the option—often letter of request A document from a exercised after arbitration or a lawsuit court to a foreign court requesting —of getting a refund or a replacement some type of judicial assistance. Often vehicle. used to ask the foreign court to serve process on, or take evidence from, lemon law Statutes adopted in some some­one in the foreign jurisdiction. states to make it easier for a buyer Also known as rogatory letters or letters of a new vehicle to sue for damages rogatory. or replacement if the dealer or manufacturer cannot make it run letters See: letters of administration, properly after a reasonable number of letters testamentary attempts to fix the car. letters of administration The document lessee Also known as the tenant, the a probate court issues to the person person who rents real estate from the appointed as administrator (personal owner (the lessor). representative) of the estate of someone who died without a will. The letters lesser crime Also known as a lesser- authorize the administrator to settle included offense, a crime that is the deceased person’s estate according necessarily part of a more complex to the state’s intestate succession laws.

249 letters rogatory

Banks, brokerages, and government necessary as a loan against real estate to agencies often require a certified copy buy other real estate or business assets. of the letters before accepting the levy 1) To seize property to satisfy a debt administrator’s authority to collect or lawsuit judgment. Sometimes used as the deceased person’s assets. (See also: a noun to refer to the property seizure. letters testamentary) 2) To impose or assess, as a tax. letters rogatory See: letter of request lewd Any conduct that is considered indecent or offensive. Today the “The law is a jealous mistress.” term is often used when referring to pornography, prostitution, and indecent —Justice Joseph Story exposure. lewd and lascivious Conduct that is letters testamentary The document a sexual in nature and deemed by judges probate court issues to an executor to be criminal. Examples include (personal representative) of a deceased indecent exposure, prostitution, and person’s estate, authorizing the executor indecent acts. to settle the estate according to the lex loci (lecks loh-see) Latin for the “law terms of the person’s will. Banks, of the place.” It means local law. brokerages, and government agencies often require a certified copy of the LGBT An abbreviation for Lesbian, Gay, letters before accepting the executor’s Bisexual, and Transgender people or authority to collect the deceased groups. person’s assets. (See also: letters of liability 1) In law, the state of being administration) liable—that is, legally accountable leverage 1) The use of borrowed money for an act or omission. 2) In business, to purchase real estate or business as- money owed by a business to others, sets, usually involving borrowed money such as payroll taxes, a court judgment, that equals a high percentage of the an account payable, or a loan debt. value of the purchased property. The liability insurance coverage Insurance dangers of high leverage are overap- that provides compensation to third praisal of the property, a decline in the parties who are injured or whose value of the property, and high carrying property is damaged due to the fault costs (interest, insurance, taxes, mainte- of the insurance holder. You may have nance). 2) To borrow most of the funds

250 lie detector test

liability insurance for your car or your liberty Freedom from restraint, slavery, or home, or to cover actions you take in imprisonment, and the power to follow the course of your profession. Liability one’s own will within the limits set by policies are sometimes called “third- the law or society. party policies.” license 1) Permission to do something liable Legally responsible. For example, otherwise prohibited under law—for a person may be liable for a debt, example, a license to practice law liable for an accident due to careless or drive a car. 2) A contract giving behavior, liable for failing do something written permission, for a limited time, required by a contract, or liable for the to someone to exploit an invention, commission of a crime. Someone who creative work, or trademark. A license is found liable for an act or omission provides a way for an innovator to make must usually pay money damages money from an invention or creative or, if the act was a criminal one, face work without having to manufacture punishment. (See also: liability) and sell copies, and without having to permanently relinquish ownership. libel An untruthful statement about a Some licenses are exclusive (limiting person, published in writing or through the grant to one company) while others broadcast media, that injures the are nonexclusive (permitting several person’s reputation or standing in the companies in an industry to market community. Libel is a tort (a type of the product). 3) A private grant of right civil wrong), and the injured person can to use real property for a particular bring a lawsuit against the person who purpose, such as putting on a concert. made the false statement. Libel and slander (an untruthful statement that is licensee A person or entity that obtains a spoken, but not published in writing or license. broadcast through the media), are both licensor A person or entity that grants a considered forms of defamation. license. libel per se False statements that are so licit Lawful, permitted. (Compare: illicit) widely understood to be harmful that they are presumed to be defamatory, lie detector test The popular name for a such as an accusation that a person polygraph, which tests a person’s physi- has committed a crime, has a dreaded ological response (for example, changes disease, or is unable to perform one’s in blood pressure and respiration) to occupation. questions asked by a testing expert to

251 lien

judge whether the person is telling the no right to sell it or to leave it at death. truth. The test’s reliability is a matter Life estates aren’t as commonly used of ongoing controversy, and in most as they once were, but are still useful U.S. states polygraph test results are not in certain situations. For example, a admissible in court. man in his second marriage might leave a life estate in his house to his lien A creditor’s legal claim against surviving wife, with the provision that particular property owned by a debtor at her death, it is to go to his children as security for a debt. Liens the debtor from his previous marriage. (See also: agrees to, called security interests, remainderman) include mortgages, home equity loans, car loans, and personal loans for which life expectancy The length of time a the debtor pledges property as collateral. person is expected to live based on age, Non­consensual liens are liens placed on gender, health, and many other factors. property without the debtor’s consent, In insurance, and sometimes in court, and include tax liens, judgment liens life expectancy is based on standard (liens a creditor obtains by suing and tables called actuarial tables. getting a court judgment against the life insurance A contract in which an debtor), and mechanics’ liens (liens insurance company agrees to pay filed by a contractor who worked on the money to a designated beneficiary debtor’s house but didn’t get paid). upon the death of the policyholder. lienor A person or entity that holds a lien In exchange, the policyholder pays a on the funds or property of another. regularly scheduled fee, known as the insurance premiums. The purpose of life beneficiary Someone who receives life insurance is to provide financial benefits, under a trust or by will, only support to those who survive the for his or her lifetime (or in rare cases, policy­holder, such as family members for someone else’s lifetime). For an or business partners. When the policy­ example, see bypass trust. (See also: life holder dies, the insurance proceeds estate) pass to the beneficiaries free of probate, life estate The right to the use and enjoy­ though they are counted for federal ment of certain property (usually real estate tax purposes. There are many estate) for life only. So someone who types of life insurance, including: term inherits a life estate in a house may live life insurance, whole life insurance, and in the house for his or her life but has universal life insurance.

252 limited equity housing life insurance avails See: avails possible. In a death penalty case, a jury that decides not to sentence life insurance trust A trust set up to the defendant to death may instead own a life insurance policy, so that the sentence to life without parole. In states policy proceeds aren’t subject to estate without the death penalty, this is the tax when the original policy owner most extreme sentence. dies. Life insurance trusts are usually irrevocable. like-kind property Property that is similar to property being sold in a 1031 exchange. Property must be like-kind In Illinois, you may be arrested for to be eligible for an exchange, but vagrancy if you do not have at least that does not mean it need be similar. one dollar bill on your person—and it is illegal Properties must simply be of the same to give a dog whiskey. nature or character (meaning both are investment or business properties), but not the same grade or quality. life tenant Someone who has a life estate in property. likelihood of confusion See: confusingly similar life-prolonging procedure See: life- sustaining treatment limitation of actions See: statute of limitations life-sustaining procedure See: life- prolonging procedure limited equity housing (Also referred to as limited equity housing cooperatives, life-sustaining treatment Medical or LEHCs.) An arrangement designed procedures that would only prolong the to encourage low- and moderate- process of dying or sustain a condition income families to buy their own place of permanent unconsciousness. A to live. The housing is offered for sale, patient who is receiving life-sustaining usually by a nonprofit organization, treatment will die soon, whether or at an extremely favorable price with not treatment is administered. Life- a low down payment. Typically the sustaining treatment may include housing has been built (or an apart­ a respirator, cardiopulmonary ment building has been converted) resuscitation (CPR), dialysis, surgery, for multiple families, who then share and other medical procedures. common areas and some decision life without possibility of parole A making. The catch is that, upon selling, prison sentence for life, with no parole the owner gets none of the profit if the

253 limited jurisdiction

market value of the unit has gone up. or her direct control. Some states also Any profit returns to the organization protect partners from personal liability that built the home, which then resells for contract breaches or intentional the unit at an affordable price. torts. Some states restrict this type partnership to professionals, such as limited jurisdiction When a particular lawyers, accountants, architects, and court has a narrowly defined authority health care providers. over certain types of cases, such as bankruptcy, claims against the limited partnership A business structure government, probate, family matters, or that allows one or more partners (called immigration. limited partners) to enjoy limited personal liability for partnership debts limited liability A feature of corporations while another partner or partners and LLCs where the business owners (called general partners) have unlimited are legally responsible for paying personal liability. The key difference business debts, claims, and judgments between general and limited partners is only to the extent of the capital they with management decision making— invested in the business. This means general partners run the business and that if the business folds, creditors limited partners (who are usually cannot seize or sell the business owner’s passive investors) are not allowed to home, car, or other personal assets. make day-to-day business decisions. limited liability company (LLC) A If they do, they risk being treated business ownership structure that as general partners with unlimited shields its owners’ personal assets personal liability. through the doctrine of limited liability limited personal liability See: limited (like a corporation) but has pass- liability through taxation (like a partnership), where profits (or losses) are passed limited power of attorney A power of through to the owners and taxed on attorney that gives the agent power to their personal income tax returns. handle only a specified matter—for example, to sign papers completing a limited liability partnership (LLP) A single business transaction or property type of partnership recognized in transfer. (Compare: general power of a majority of states that protects a attorney) partner from personal liability for negligent acts committed by other limiting instructions Jury instructions in partners or by employees not under his which a judge instructs that evidence is

254 lis pendens

admissible for one purpose but not for graphic image activates most links. For another. The judge will often instruct example, if a user clicks on the words, jurors to consider the evidence only for financial calculator, or an image of a the legitimate purpose, and ignore it calculator, the user will be transported for any other purpose. (See also: jury to a page that contains a calculator. instruction) Links are sometimes called hyperlinks. (Compare: deep link) lineal consanguinity The relationship between blood relatives where one is liquid asset Business or personal property a direct descendant of the other. For that can be quickly and easily converted example, a person has consanguinity into cash, such as stock, bank accounts, with her mother, grandmother, and and accounts receivable. daughter. (See also: consanguinity) liquidate To sell the assets of a business, lineal descendant See: issue pay the business’s debts, and divide the remainder among shareholders, lineup A procedure in which the police partners, or other investors. place a suspect in a line with a group of other people and ask an eyewitness liquidated damages In a contract, an to the crime whether the person he saw amount of money agreed upon by both at the crime scene is in the lineup. The parties that a party who breaches the police are supposed to choose similar- contract will pay to the other party. looking people to appear with the Liquidated damages clauses may not be suspect. If the suspect alone matches enforced by judges when they appear the physical description of the perpe- in consumer contracts, because they trator, evidence of the identification are often used to punish the party who may be excluded at trial. For example, breaks the contract, rather than to if the robber is described as a Latino compensate the other side for its actual male, and the suspect, a Latino male, damages. is placed in a lineup with ten white liquidating partner The member of an males, a witness’s identification of him insolvent or dissolving partnership as the robber will be challenged by the responsible for paying the debts and defense attorney. settling the accounts of the partnership. link Any component of a Web page lis pendens (lease pen-denz) 1) Latin for that connects to another Web page “a suit pending.” The term may refer or another portion of the same Web to any pending lawsuit. 2) A written page. Clicking on underlined text or a

255 listed property

notice that a lawsuit has been filed petitioner, respondent, cross- concerning real estate, involving either complainant, or cross-defendant, but the title to the property or a claimed not a witness or attorney. ownership interest in it. The notice is litigation The process of bringing and usually filed in the county land records pursuing (litigating) a lawsuit. office. Recording a lis pendens alerts a potential purchaser or lender that the property’s title is in question, which “Avoid litigation.” makes the property less attractive to a —Abraham Lincoln buyer or lender. After the notice is filed, anyone who nevertheless purchases the land or property described in the notice litigator A trial lawyer; an attorney who takes it subject to the ultimate decision represents plaintiffs or defendants in of the lawsuit. court. listed property Certain types of litigious Description of a person or depreciable assets used in a business company with a disposition toward for which the IRC requires special bringing or prolonging lawsuits, even if record keeping to prorate personal and the suits are unnecessary, unfounded, business use. These assets are prone to or largely retaliatory. being used for personal use, such as cellular phones, home-based computers, living trust A trust that is set up during boats, airplanes, and vehicles. a person’s life. Living trusts are a common and excellent way to avoid literary works One of the broad probate at death, and may also reduce categories of material protected under federal estate tax. Also called “inter the copyright laws. Literary works vivos trust.” (See also: revocable living are expressed in words, numbers, or trust, testamentary trust) other verbal or numerical symbols or indicia. Under this broad definition, living will A legal document in which software—because it is expressed in you state your wishes about the types programming code in numbers and of medical care you do or do not want letters—is considered a copyrightable if you are unable to speak for yourself. literary work. This document may go by many other names, including health care directive, litigant Any party to a lawsuit. This advance directive, declaration, or might include a plaintiff, defendant, directive to physicians.

256 loss of consortium

LLC See: limited liability company company or individual who has had sufficient contacts with the jurisdiction LLP See: limited liability partnership to warrant being subject to its laws. loan broker A person or entity that long cause A lawsuit in which it is specializes in matching homebuyers estimated that the trial will take with appropriate mortgage lenders. more than one day to complete, and Loan brokers (also known as mortgage must be fitted into the court calendar brokers) make most of their money accordingly. by marking up the costs on the loan the wholesale lender is offering. Loan loss 1) The value placed on injury or brokers provide an easy and effective damages due to an accident caused by way to find the cheapest mortgage another’s negligence, breach of contract, rates, given the borrower’s financial or other wrongdoing. The amount of situation and goals. Many states require monetary damages can be determined loan brokers to be licensed. in a lawsuit. 2) When expenses are greater than profits, the difference loan consolidation Combining a between the amount of money spent number of loans into a single new loan. and the income. Consolidation typically extends the repayment period, lowers the monthly loss carryover See: carryover payments, and thereby increases the loss damage waiver (LDW) See: collision interest the borrower will have to pay damage waiver over the life of the consolidated loan. loss of bargain rule The concept that local rules See: rules of court the amount of damages to be paid to locus (low-cuss) Latin for “place,” or the a party in a breach of contract case location where something occurred. should be sufficient to put that party in the position that it would have loiter To linger or hang around in a been in if the contract had been fully public place with no purpose. Many performed by both parties. states and cities have laws that prohibit loitering. loss of consortium A type of legal claim made by a spouse when the other loitering A crime best understood as just spouse has been injured to a point of hanging out. being unable to provide the benefits long-arm statute A law that gives a of a family relationship, including court jurisdiction over a nonresident

257 loss of use

intimacy, affection, company, and lower court 1) Any court of relatively sexual relations. lesser rank, such as municipal or justice court below a superior or county court, a superior or county court below an “Justice should remove the bandage from appeals court, or a federal district court her eyes long enough to distinguish of appeals below the U.S. Supreme between the vicious and the unfortunate.” Court. 2) A reference in an appeal to —Robert G. Ingersoll the trial court that originally heard the case. loss of use The inability to use an auto­ low-profit limited liability company A mobile, premises, or some equipment cross between a nonprofit and for- due to damage caused by the negligence profit organization, also called an L3C. or wrongdoing of another. This concept Low-profit limited liability companies may entitle claimants to damages. For are designed to attract private investors example, during the period of non- and donors who want to provide occupancy while a burned building social benefits. Unlike a regular LLC, is restored, the regular occupant has the primary purpose of an L3C is lost its use and may be entitled to charitable. But the L3C is permitted to compensation for the days he or she distribute after-tax profits to owners or must live or work elsewhere. investors. LRE See: least restrictive environment L.W.O.P. A life prison sentence, literally “life without parole.”

258 M

MACRS Short for modified accelerated mailbox rule In contract law, the cost recovery system. A method of acceptance of a contract is effective depreciation, established by the Internal when a properly prepaid and addressed Revenue Code, for rapidly claiming letter of acceptance is posted, as long as depreciation tax deductions. it is sent within the time in which the offer must be accepted (and unless the magistrate 1) In the U.S., a generic offer requires acceptance by personal term for a court judge. 2) In a few delivery on or before the specified date). U.S. states, a justice of the peace or The mailbox rule is an exception to other lower-level officer of the court, the general principle is that a contract with limited power to hear certain is formed when acceptance is actually types of cases, such as small claims communicated to the offeror. lawsuits or minor crimes, or to conduct particular types of proceedings, such as Mail or Telephone Order Rule A Federal preliminary hearings. 3) In U.S. federal Trade Commission rule that requires district courts, a magistrate judge a seller to ship goods ordered by mail, is an official who conducts routine phone, computer, or fax to a customer hearings assigned by the federal judges, within the time promised or, if no including preliminary hearings in time was stated, within 30 days. If the criminal cases. seller cannot ship within that period, the seller must send the customer a Magna Carta An historical document notice with a new shipping date and from England that helped establish give the options of canceling the order common law and statutes—in other and getting a refund or agreeing to the words, it is a founding document of delay. the law as we know it today. When King John reluctantly signed it in 1215, maim To inflict serious bodily injury, it was essentially a document for the including mutilation, disfigurement, or nobility; however it became the basis of any harm that limits the victim’s ability modern individual rights. to function physically. Originally, in English common law it meant to cut

259 mainstreaming

off or permanently cripple a part of note over to another person before the body such as an arm, leg, hand, or it is delivered, making the endorser foot. In criminal law, such serious harm obligated to pay until it is delivered. can turn an ordinary assault into an (See also: check, promissory note, aggravated assault. payor, payee) mainstreaming See: least restrictive malfeasance Intentionally doing environment something that is illegal. This term is often used when a professional or majority 1) More than half of something, public official commits an illegal act such as the votes cast in an election. that interferes with the performance 2) The age at which a person can of his or her duties. For example, an exercise the legal rights of an adult, elected official who accepts a bribe such as entering into contracts or in exchange for political favors has voting. (See also: age of majority) committed malfeasance. (Compare: major life activity Functions such as misfeasance; nonfeasance) ­caring for oneself, performing manual malice A willful or intentional state of tasks, walking, seeing, hearing, speak- mind, in which the actor intends to ing, breathing, learning, and working. bring about an injury or wrongdoing. Under the Americans with Disabilities 1) In criminal law, malice can be Act, an individual is considered to have evident by the act itself, as when a disability if he or she has an impair- someone purposefully injures someone ment that substantially limits a major else. Murder requires proof of malicious life activity. intent, and first-degree murder make To sign a check, promissory note, requires “malice aforethought.” 2) In agreement, or other document—for a defamation lawsuit (libel or slander), example, to make a contract. the jury’s finding that the defendant acted with malice may increase the make one whole To award an amount of plaintiff’s damages. In order for a damages sufficient to put the injured public figure to win a defamation party back into the position that party lawsuit, he or she must prove malice was in before the injury. on the part of the defendant. (See also: maker 1) The person who signs a check malice aforethought) or promissory note, which makes malice aforethought The state of mind that person responsible for payment. necessary to prove first-degree murder. 2) A person who endorses a check or

260 mandamus

The prosecution must prove that the malum in se (mal-uhm in say) Latin for defendant intended to cause death or something “wrong in itself,” even in the great bodily harm, or exhibited extreme absence of a law making it illegal. In and reckless indifference to the value criminal law, it describes acts that have of life. Any intentional killing that traditionally been considered crimes, does not involve justification, excuse, whether or not a specific written law or mitigation is a killing with malice made them crimes, because they violate aforethought. the principles of civilized society. Examples are murder, rape, and theft. malicious prosecution Filing a civil By contrast, making a left turn at an or criminal lawsuit for an improper intersection where a traffic law prohibits purpose (civil) or without probable it would not be malum in se, because cause (criminal). If a wrongful it is based only on statutory law. prosecution ends in the defendant’s (Compare: malum prohibitum) favor, the defendant can sue the plaintiff for the wrong he has suffered. malpractice The delivery of substandard “It is far better to have less learning and care or services by a lawyer, doctor, more moral character in the practice of dentist, accountant, or other profes­ law than it is to have great learning and no sional. Generally, malpractice occurs morals.” when a professional fails to provide —Vice President Thomas R. Marshall the quality of care that should reason- ably be expected in the circumstances, with the result that a patient or client malum prohibitum (mal-uhm prohibit- is harmed. Such an error or omission uhm) Latin for “wrong due to being may be through negligence, ignorance prohibited,” referring to acts made (when the professional should have illegal by statute to benefit public known), or intentional wrongdoing. welfare, not because they are inherently In the area of legal malpractice, the evil and obvious violations of society’s claimant must prove two things to standards. Generally, they do not show harm: first, that the lawyer failed involve immediate injury or damage to to meet the standard of professional others. Examples include violations of competence; and second, that if the regulatory acts, insider trading, and tax lawyer had handled the work properly, avoidance. (Compare: malum in se) you would have won the original case. mandamus (man-dame-us) Latin for (See also: errors and omissions) “we command.” A writ of mandamus

261 mandate

is a court order that requires another manifest 1) Apparent, obvious, or court, government official, public body, evident. 2) A written list or invoice of corporation, or individual to perform cargo. a certain act. For example, after a Mann Act A federal law that makes it a hearing, a court might issue a writ of crime to transport women across state mandamus forcing a public school to lines for prostitution or similar sexual admit certain students on the grounds activities. The Mann Act was intended that the school illegally discriminated to prevent the movement of prostitutes against them when it denied them from one state to another or in and out admission. A writ of mandamus is of the country in the so-called “white the opposite of an order to cease and slave” trade. desist, or stop doing something (an injunction). Also called a “writ of manslaughter The crime of killing mandate.” someone, but without the malice (evil intent) needed to make the killing mandate 1) Any mandatory order or murder. 1) Involuntary manslaughter requirement under statute, regulation, is a death that results from criminal, or by a public agency. 2) An order or extreme, negligence; or during the from an appeallate court to a lower commission of a crime not included court (usually the original trial court in within the felony-murder rule. the case) directing the lower court to 2) Voluntary manslaughter is an act of enforce a court order or to comply with murder that is reduced to manslaughter the appeallate court’s ruling. (See also: due to extenuating circumstances, such mandamus) as when the defendant acts in “the heat mandatory Required, compulsory, or of passion” or is subject to diminished obligatory. capacity. (See also: felony murder doctrine, diminished capacity) mandatory injunction An injunction that requires a person to carry out a manual accounting system An positive act—for example, return stolen accounting system maintained by hand, computer code. (See also: injunction) using paper, rather than on a computer. mandatory joinder The required inclusion Mapp v. Ohio (1961) A U.S. Supreme in a lawsuit of a party whom the Court case in which the Court ruled court finds is absolutely necessary to a that evidence obtained by illegal search resolution of all issues in the case. (See and seizure could not be introduced in also: joinder) state or federal trials.

262 marital tort

Marbury v. Madison (1803) A U.S. validly married in a state that allows Supreme Court case in which Chief same-sex marriage. Justice John Marshall used a dispute marital misconduct See: fault divorce over judicial appointments to declare a judiciary act unconstitutional, establish­ marital privilege In a civil (noncriminal) ing the power of the Supreme Court to court case, the right of spouses decide the constitutionality of statutes. not to testify about confidential communications between them. In a margin 1) The difference between the criminal case, the right not to testify net sales price of an item or security against a spouse. and its cost. This is often called a profit margin and is frequently expressed marital property Property that is con- as a percentage. For example, if you sidered under state law to be owned by pay 50 cents for a pencil and sell it for both spouses. In community property a dollar, your profit margin is 50%. states, all income earned and property 2) The difference between the face acquired during marriage is marital value of a loan and the market value (community) property. In other states, of the collateral that secures it. 3) An whether property is considered marital investor’s equity in securities purchased property depends on how it is titled on credit through a broker. 4) Cash or and sometimes, other factors. Most collateral that must be deposited with states exclude inheritances from marital a broker who agrees to finance the property. purchase of securities. marital settlement agreement The marginal tax rate See: tax bracket document that sets out the terms of a divorce settlement between two marital deduction A deduction allowed spouses. The marital settlement by the federal estate tax laws for agreement (MSA) is usually all property passed to a surviving incorporated into the final judgment spouse who is a U.S. citizen. This issued by the judge so that it has the deduction (which really functions as force of a court order. an exemption) allows anyone, even a billionaire, to pass his or her entire marital termination agreement See: estate to a surviving spouse without any marital settlement agreement estate tax at all. Under current federal marital tort A tort (civil wrong) by one law, this deduction is not available to spouse against the other. same-sex couples even if they were

263 maritime court maritime court A court that hears and responsibilities toward one another issues involving maritime law. These concerning property and support are federal courts do not use juries and defined by the laws of the state in have unique rules of court. The cases which they live. A marriage can only are often handled by admiralty law be terminated by a court granting a specialists. divorce or annulment. maritime law The laws and regulations which exclusively govern activities at “The constitution does not provide for sea or in any navigable waters. In the first and second class citizens.” United States, the federal courts have —Wendell L. Willkie jurisdiction over maritime law. Also called admiralty law. mark An “X” or other writing that serves marriage certificate A document that as a signature, made by a person who is provides proof of a marriage, typically too weak or does not know how to sign issued to the newlyweds a few weeks his or her full name. after they file for the certificate in a county office. Most states require both marked for identification Documents or spouses, the person who officiated the objects presented during a trial before marriage, and one or two witnesses to testimony confirms their authenticity sign the marriage certificate; often this or relevancy. Each item is given an is done just after the ceremony. exhibit identification letter or number, and can then be physically marked and marriage license A document that referred to by that letter or number. authorizes a couple to get married, The marked exhibits can be introduced usually available from the county clerk’s into evidence (made part of the official office in the state where the marriage record) upon request of the lawyer will take place. Couples pay a small fee offering the evidence and approval for a marriage license, and must often by the judge or by stipulation of both wait a few days before it is issued. In attorneys. addition, a few states require a short waiting period—usually not more than marketable title See: clear title a day—between the time the license is market value See: fair market value issued and the time the marriage may take place. And some states still require marriage The legal union of two people. blood tests for couples before they will Once a couple is married, their rights

264 master and servant

issue a marriage license, though most not participate in management, the no longer do. investors are not personally liable for any debts of the trust. Similar to a marshal 1) A law enforcement officer “limited partnership,” a Massachusetts similar to a sheriff. 2) A judicial officer trust does not need to be set up in who serves papers and provides other Massachusetts. services to the court. The U.S. Marshals (also called federal Marshals) provide mass layoff For purposes of the WARN security and other services to the Act, a reduction in force that results in federal courts. job loss or at least a 50% hours cut at a single employment site for 1) 500 or martial law Military control over all of more employees, not including part-time a country’s activities, usually during employees, or 2) 50 to 499 employees, wartime or due to an emergency or not including part-time employees, if widespread disaster. In the United at least 33% of the employer’s active States, martial law must be ordered by workforce are laid off. the president as commander-in-chief and must be limited to the duration of the mass tort A tort that causes injury to warfare or emergency. In many foreign many people. For example, if toxic countries, martial law has become a emissions from a factory cause injury to method to establish and maintain a whole community, it may be a mass dictatorships either by military leaders tort. or politicians backed by the military. master 1) An outdated term for employer. (Compare: military law) Sometimes, “master and servant” law is Martin v. Hunter’s Lessee (1816) A U.S. used to refer to the field of employment Supreme Court case in which a decision law. 2) A person appointed by a court by Justice Joseph Story extended the to assist with particular issues or Court’s right of judicial review on the proceedings in a case. For example, the constitutionality of statutes to appeals master might hear testimony, conduct from state and federal courts. an investigation, or reach decisions on limited issues in a case. Also referred to Massachusetts trust A legal trust set as a “special master.” up for the purpose of doing business. Investors give management authority to master and servant An outdated term a trustee and receive “trust certificates” that refers to the employment relation­ representing their investments. Since ship and the field of employment law. they own only the certificates and do

265 master trust master trust A special needs trust under recorded by the court reporter or court which a nonprofit organization operates clerk. It is an expression often heard a pooled trust on behalf of many in trials and legal arguments to refer individual beneficiaries. to a fact recorded by the court in the course of a hearing. For example, if it material 1) Relevant and significant was determined in cross-examination information—for example, ­material that Ms. Smith goes by another name, evidence as distinguished from evi- a lawyer might say “Ms. Smith’s alias is dence of minor importance. 2) An a matter of record.” essential contractual condition—for example, a material provision—which, maturity 1) The date when the payment if not performed is justification for the of the principal amount owed under other party to claim breach of contract the terms of a promissory note, bill of and seek remedies. 3) A type of rep- exchange, or bond becomes due. 2) The resentation made to induce someone age when one becomes an adult, which to enter into a contract to which the is 18 for most purposes. (See also: age person would not have agreed without of majority) that assertion. If a material representa- may An expression of possibility, a tion proves not to be true, the contract permissive choice to act or not, as can be rescinded or canceled without distinguished from “shall,” which is an liability. imperative or often mandatory course material witness A witness who has of action. (See also: shall) significant information about the mayhem Historically, injuring someone’s subject matter of a lawsuit or criminal body (particularly by depriving him of prosecution, particularly when few, the use of his arms, legs, eyes, or other if any other witnesses have the same body parts), in a way that makes him knowledge. Judges usually make less able to fight or defend himself. every reasonable effort to allow such a Modern law treats such acts as an witness to testify, including granting aggravated battery. (See also: aggravated a continuance (delaying a trial) to battery.) accommodate the witness. McCulloch v. Maryland (1819) A U.S. matter of record Anything in the Supreme Court case in which Chief record of the court. This may include Justice John Marshall established that testimony, evidence, rulings, and the federal government has “implied sometimes arguments which have been powers” to carry out, without state

266 median family income

interference, any and all rights given bankruptcy. Generally, a means test by the Constitution. Specifically, is any evaluation of inability to pay the Court ruled that the federal that is necessary to qualify for public government could charter a bank and a assistance or another right. (See also: state could not tax it. current monthly income) McNabb-Mallory Rule The rule that when a defendant has been detained Twelve Angry Men. (1957) The jury movie for an unreasonably long time between in which the arguments and emotions of arrest and a preliminary hearing, the jurors make viewers feel sequestered with confessions obtained during that time them. Henry Fonda, Lee J. Cobb, Ed Begley, Sr., are not admissible. This rule rarely Martin Balsam, E.G. Marshall, Jack Klugman, comes into play because of the broader Jack Warden. protections afforded by the Miranda rule. (See also: Miranda warnings) mechanic’s lien A legal claim placed on McNaghten Rule The earliest and most real estate by someone who is owed common test for criminal insanity, in money for labor, services, or supplies which a defendant in a criminal trial contributed to the property for the is judged legally insane only if the purpose of improving it. Typical lien defendant, at the time of the crime: claimants are general contractors, 1) did not know what he or she was subcontractors, and suppliers of physically doing, or 2) did not know building materials. A mechanics’ lien what he or she was doing was wrong. claimant can sue to have the real estate For example, a delusional psychotic sold at auction and recover the debt who believed that his assaultive acts from the proceeds. Because property were in response to the will of God with a lien on it cannot be easily sold would not be criminally responsible for until the lien is satisfied (paid off), his acts. owners have a great incentive to pay means test In bankruptcy, a formula their bills. that uses predefined income and median family income An annual expense categories to determine income figure representing the point whether a debtor whose current at which there are as many families monthly income is higher than the earning more than that amount as median family income for his or her there are earning less than that amount. state should be allowed to file for The Census Bureau publishes median

267 mediation

family income figures for each state Medicaid A program established by the each year, depending on family size. federal government and administered In bankruptcy, a debtor whose current by the states to help pay medical costs monthly income yields an annual for financially needy people. Need is figure higher than the median family defined by the program of the state in income in his or her state must pass the which the applicant resides. Medicaid means test in order to file for Chapter 7 operates in addition to Medicare to bankruptcy. If the debtor chooses to or help pay for some of the medical costs must use Chapter 13, the debtor must that Medicare does not cover. propose a five-year repayment plan. medical certification A document an mediation A way that parties can resolve employer may require an employee to their own dispute without going to provide when taking leave under the court. In mediation, a neutral third Family and Medical Leave Act (FMLA). party (the mediator) meets with the The medical certification form must opposing sides to help them find a be completed by a health care provider mutually satisfactory solution. Unlike and must include facts sufficient to a judge or an arbitrator, the mediator demonstrate that the employee (or has no power to impose a solution— the employee’s family member, if the instead, the mediator facilitates the employee is taking time off to care parties’ communication and helps for him or her) has a serious health to develop and reality-test possible condition as defined by the FMLA. solutions. No formal rules of evidence Medicare A federal government program or procedure control mediation; the that assists older and some disabled mediator and the parties usually agree people in paying their medical costs. on their own informal ways to proceed. The program is divided into three parts. Mediation is very commonly used in Part A is called hospital insurance and divorce cases, and is mandatory in some covers most of the costs of a stay in places when child custody is in dispute. the hospital, as well as some follow-up (Compare: arbitration, trial) costs after time in the hospital. Part B, mediator A person who conducts media- medical insurance, pays some of the tions, a form of dispute resolution in cost of doctors and outpatient medical which the mediator acts as a neutral care. Part D pays for some of the cost third party and works with parties in for prescription medicine. dispute to try to reach a resolution. (See Medicare tax A portion of the FICA also: mediation) (Federal Insurance Contributions Act)

268 memorandum decision

tax that is 2.9% of an individual’s net Megan’s Law An informal name for earned income. The employee’s share of federal and state laws that require the Medicare tax is 1.45% of all wages. convicted sex offenders to register with The employer’s share of the Medicare law enforcement authorities, who then tax is 1.45% of an employee’s wages. make certain information available to the public. Registered information meet and confer A requirement of some varies from state to state, but it often courts that before certain types of includes the offender’s name, address, motions or petitions are heard by the date of conviction, type of crime, and judge, the lawyers (and sometimes their photograph. This information may clients) must meet (usually, in person be made available on the Internet or on the phone) to try to resolve the or distributed through newspapers, matter. This can resolve many problems pamphlets, or other means. These laws and limit the amount of court time are named for seven-year-old Megan needed to resolve disagreements. Kanka, who was kidnapped, raped, and meeting of creditors A meeting the murdered in New Jersey in 1994. debtor must attend in a bankruptcy member A person or entity on the rolls case with the bankruptcy trustee and of an organization, with rights and any creditors who choose to attend. obligations. Also, the owner of a limited Typically, the trustee reviews the liability company. debtor’s papers and may ask a few questions; creditors also have the memorandum Any written record, opportunity to ask questions. In a including a letter or note, that proves Chapter 7 case, creditors rarely attend, that a contract exists between two and the meeting takes only a few parties. This type of memo may be minutes. In a Chapter 13 case, creditors enough to validate an oral (spoken) are more likely to attend, particularly contract that would otherwise be if they wish to challenge the debtor’s unenforceable because of the statute repayment plan. of frauds. (Under the statute of frauds, an oral contract is invalid if it can’t be meeting of the minds An essential completed within one year from the require­ment for contract formation, date the contract is made.) when two parties to a contract have an actual and mutual understanding of the memorandum decision A single, very terms. brief paragraph setting out a court’s decision in a case. A memorandum

269 mens rea

decision does not usually include the mercy killing See: euthanasia court’s reasons for reaching its result; merger 1) In corporate law, the joining those details may appear later in a together of two corporations in which comprehensive written opinion. one corporation transfers all of its assets mens rea (menz-ray-ah) The mental to the other. In effect, one corporation component of criminal liability. To be “swallows” the other. The shareholders guilty of most crimes, a defendant must of the swallowed company receive have committed the criminal act in a shares of the surviving corporation. certain mental state (the mens rea). The Distinguished from a “consolidation,” mens rea of robbery, for example, is in which both companies join together the intent to permanently deprive the to create a new corporation. 2) In real owner of his property. (Compare: actus property law, when an owner of an reus) interest in property acquires a greater or lesser interest in the same property, mental anguish A type of suffering that the two interests become one. 3) In can be compensated in a personal real property law, when a person injury case, generally meaning acquires two parcels of land that had significant mental suffering that may been previously subdivided and that include fright, feelings of distress, are substandard size, the buyer who anxiety, depression, trauma, or grief. acquires title in the two lots may find mental competence See: competence that they are “merged” into one lot. mental cruelty An archaic term that mesne (meen) From old French for in some states remains a ground for intermediate, the middle point between divorce, or a factor in division of two extremes. Seldom used, except in marital property. the phrase “mesne profits.” mental suffering See: mental anguish mesne profits(meen) Profits or value of land during the time someone was mercantile law See: commercial law wrongfully occupying the land. For merchantable Of a high enough quality example, if someone farmed a plot of to be fit for sale. To be merchantable, land without permission, any profit an article for sale must be usable for from that activity would be owed to the the purpose it is made. It must be actual landowner. Similarly, a tenant of average worth in the marketplace who stays on after a court has issued a and must not be broken, unworkable, judgment for possession to the landlord damaged, contaminated, or flawed.

270 ministerial act

owes the landlord the value of the time property tax, divide the millage by spent there without permission. 1,000 and multiply it by the property’s assessed taxable value. For example, if metes and bounds From an old term the millage rate is 20, and the taxable meaning measures and directions, a value of your house is $200,000, the method of coming up with a “legal property tax is 0.020 x $200,000 or description” of a parcel of real estate $4,000. that is much more precise than a street address or parcel number. The mineral rights An ownership interest in description exactly describes the the minerals contained in a particular perimeter of the property, using care­ parcel of land, with or without owner­ fully measured distances, angles, and ship of the surface of the land. The directions. The description must start at owner of mineral rights is usually an identifiable point and end there as entitled to either take the minerals well. It is recorded in the county land from the land or receive a royalty from records office in the county where the the party that actually extracts the property is located. minerals. minimum contacts A legal requirement “The Constitution of the United States that for a lawsuit to go forward forms a government, not a league.” against a nonresident defendant of a —Andrew Jackson given state, the defendant must have some connections with that state. For example, advertising or having business mileage log A record of miles traveled offices within a state may provide in a vehicle used for business, used to minimum contacts between a company substantiate deductions for vehicle use and the state, even if the company is by the business. based elsewhere. mining claim military law Regulations governing the The right to use a portion conduct of men and women in the of public lands to excavate metal ore or armed services in relation to their minerals. A request for a mining claim military (not civilian) activities. describing the property must be made (Compare: martial law) with the appropriate federal, state, or local agency. millage The tax rate on real estate, used ministerial act to calculate property tax. One “mill” An act performed by a equals a tenth of a cent. To calculate government employee following explicit

271 minor

instructions in a statute or other legal court-appointed attorney if the suspect authority, or directions given from cannot afford one, and the warning a superior, without exercising any that anything the suspect says can be discretion or independent judgment. used in court. To use a confession or admission in court, the prosecution minor Someone under legal age, which must prove the suspect knowingly is generally 18, except for certain waived those rights, and thus the rights purposes such as drinking alcoholic should be read or recited to the suspect. beverages. These became known as the Miranda minority 1) In voting, a side with less rights or Miranda warnings. than half the votes. 2) A term for Miranda warnings The warnings that law people in a predominantly Caucasian enforcement must give anyone who is country who are not Caucasian, in custody and about to be questioned including African Americans, Hispanics, by the police, if the police desire to use Asians, indigenous Americans (Indians), any resulting statements against the and other people “of color.” 3) The person questioned. Custodial suspects period of life under legal age. must be told that they have the right minutes 1) The written record of meet- to remain silent; that they have the ings, particularly of boards of directors right to have a lawyer present during or shareholders of corporations, kept questioning; that they have the right by the secretary of the corporation or to a court-appointed attorney if they organization. 2) The record of court- cannot afford one; and that statements room proceedings, such as the start and may be used against them in court. recess of hearings and trials, names of mirror wills See: mutual wills attorneys, witnesses, and rulings of the court, kept by the clerk of the court or misappropriation The intentional, illegal the judge. use of the property or funds of another person for one’s own use or other Miranda v. Arizona (1966) A U.S. unauthorized purpose, particularly by Supreme Court case in which the a public official, a trustee of a trust, an Court established the rights of a executor or administrator of a deceased criminal suspect who has been arrested person’s estate, or by any person with or is otherwise not free to leave. These a responsibility to care for and protect rights are the right to remain silent, another’s assets. the right to have a lawyer present during questioning, the right to a

272 mistrial misdemeanor A crime, less serious than efits to which the person making the a felony, punishable by no more than misrepresentation is not entitled. In one year in jail. Petty theft (of articles some circumstances misrepresentation worth less than a certain amount), can be prosecuted as a crime. Examples first-time drunk driving, and leaving include falsely claiming to represent a the scene of an accident are all common charity to obtain money for personal misdemeanors. benefit, or entering into a marriage when already married (thereby misrep- misfeasance Performing a legal action resenting the legal ability to marry). in an improper way. This term is frequently used when a professional mistake 1) An error which causes one or public official does his job in a way party or both parties to enter into a that is not technically illegal, but is contract without understanding the nevertheless mistaken or wrong. Here obligations or results. Such a mistake are some examples of misfeasance in a can entitle one party or both parties professional context: a lawyer who is to a rescission (cancellation) of the mistaken about a deadline and files an contract. A mistaken understanding of important legal document too late, an the law (as distinguished from facts) accountant who makes unintentional by one party only is usually not a basis errors on a client’s tax return, or a for rescission. 2) An error as to facts or doctor who writes a prescription and law made by a judge. Such errors may accidentally includes the wrong dosage. be harmless (not meriting a reversal) or (Compare: malfeasance; nonfeasance) material (a reversible error). misjoinder The improper inclusion of mistrial A trial that ends prematurely parties (plaintiffs or defendants) or and without a judgment, due either to causes of action (legal claims) in a a mistake that jeopardizes a right to a single lawsuit. (See also: joinder) fair trial or to a jury that can’t agree on a verdict (a “hung jury”). If a judge misprision of a felony Taking affirmative declares a mistrial in a civil case, he or steps to hide the fact of another’s felony. she will direct that the case be set for Merely remaining silent when one a new trial at a future date. Mistrials knows of a felony is not a misprision, in criminal cases can result in a retrial, but hiding evidence or intentionally a plea bargain, or a dismissal of the misleading law enforcement could be. charges. misrepresentation A misstatement of facts to obtain money, goods, or ben-

273 misunderstanding misunderstanding A mistake by both damages. In another context, a person parties to a contract resulting in a claiming to have been injured by failure of meeting of minds. A mis­ another motorist should seek medical understanding between spouses at the help and not let the problem worsen. time of marriage can serve as grounds MLS See: multiple listing service for an annulment. For ­example, if one spouse went into the marriage wanting M’Naughten Rule See: McNaughten Rule children while the other did not, they M.O. See: modus operandi have a misunderstanding that might be judged serious enough for a court to Model Rules of Professional Conduct annul the marriage. A set of professional standards pre- scribing legal ethics and professional mitigating circumstances Information ­responsibility for attorneys in the about the defendant that does not United States. Developed by the Ameri- justify or excuse a criminal act or can Bar ­Association (ABA) to replace civil wrong, but that may reduce the the Code of Professional Responsibility, defendant’s degree of culpability. In most states have adopted the rules in criminal law, juries consider mitigating whole or in part. circumstances when deciding whether to impose the death sentence in a capital case, and judges may consider The People v. Ohara. (1951) A lawyer with them when selecting a sentence. In civil a shady past has to clean up his act to cases, mitigating circumstances may save a client. Spencer Tracy, Pat O’Brien, Diana reduce the amount of damages awarded Lynn, John Hodiak. to the plaintiff. mitigation of damages The requirement modification 1) A change in an existing that someone injured by another’s court order or judgment, commonly negligence or breach of contract must sought in family law cases where take reasonable steps to reduce the a spouse paying support asks for a damages, injury, or cost, and to prevent modification of the amount based them from getting worse. If a tenant on a change in circumstances since breaks a lease and moves out without the original order was made. 2) A legal justification, a landlord must physical change to a legally disabled try to rerent the property reasonably tenant’s living space, made because the quickly and keep his or losses to alteration is necessary for the tenant a minimum—that, is to mitigate

274 month-to-month tenancy

to live safely and comfortably on the method of payment. Unlike a check, a premises. Normally, tenants pay for the money order cannot bounce. modifications and can be asked to undo monopoly When a business controls them when they leave. so much of the production or sale modus operandi (mode-us ah-purr- of a product or service to control and-eye or ah-purr-and-ee) A the market, including prices and criminal investigation term for “way distribution. Business practices and/ of operating,” which may prove the or acquisitions that tend to create a accused has a pattern of repeating the monopoly may violate various federal same criminal acts using the same statutes that regulate or prohibit method. Examples: a repeat offender business trusts and monopolies or always pretended to be a telephone prohibit restraint of trade, such as repairman to gain entrance. the Clayton Act. Public utilities such as electric, gas, and water companies moiety Half of something—for example, may hold a monopoly in a particular half of the property in an estate. geographic area since it is the only Seldom used today. practical way to provide the public molestation The crime of sexual service; they are regulated by state acts with children up to the age of public utility commissions. 18, including touching of private month-to-month Refers to a tenancy parts, exposure of genitalia, taking in which the tenant pays monthly of pornographic pictures, rape, rent and has no fixed-term lease; the inducement of sexual acts with the tenancy can be terminated by the molester or with other children, and landlord at any time, typically on 30 variations of these acts. Molestation days notice (subject to local rent control also applies to incest by a relative regulations). with a minor family member, and any unwanted sexual acts with adults short month-to-month tenancy A rental of rape. agreement that provides for a one- month tenancy that automatically money order A draft for a specified renews each month unless either tenant amount of money, purchased from a or landlord gives the other the proper post office, bank, telegraph office, or amount of written notice (usually 30 other authorized entity. The purchaser days) to terminate the agreement. Some must prepay the amount shown on the landlords prefer to use a month-to- money order, making it a trustworthy

275 monument

month tenancy because it gives them moral certainty In a criminal trial, the the right to raise the rent after giving reasonable belief (but short of absolute proper notice. This type of rental also certainty) of the trier of the fact (the provides a landlord with an easy way to jury or judge sitting without a jury) get rid of troublesome tenants, because that the evidence shows the defendant in most states (subject to rent control is guilty. Moral certainty is another way regulations) month-to-month tenancies of saying “beyond a reasonable doubt.” can be terminated for any reason. Because there is no exact measure of moral certainty, it is always somewhat monument 1) A permanent landmark subjective and based on the reasonable established to make it possible for opinions of the judge and/or jury. (See surveyors to to ascertain boundaries also: reasonable doubt) and create legal descriptions of real estate parcels. A monument can be moral rights Certain rights of authors, a natural or an artificial object—for recognized primarily in European example, a metal marker, a river, or a countries, beyond those traditionally tree. 2) A legal document. granted under copyright law. Moral rights include the right to proclaim moonlighting Holding more than one authorship of a work, disclaim author­ job at a time. Moonlighting refers to ship of a work, and object to any working two jobs at the same time, or modification or use of the work that to working for one employer while on would be injurious to the author’s leave from another. reputation. moot 1) Unsettled, open to argument, moral turpitude A description of conduct or debatable. 2) Without practical that is shamefully wicked, an extreme significance; hypothetical or academic. departure from ordinary standards of (See also: moot point, moot court) morality, justice, or ethics; a base, vile, moot court A fictitious court held in law or depraved frame of mind. Used as a school where students argue both sides test of a criminal act when judging a of a hypothetical case, usually at the violation of law. appellate level. moratorium 1) An authorized period of moot point 1) An unsettled or debatable delay in paying a debt or performing an question. 2) An issue with no practical obligation. 2) A suspension of activity. or relevant value. (See also: moot)

276 motion mortality charge A monthly deduction who owes the individual or business from a universal life insurance policy money. (See also: mortgage) that increases as the policyholder ages. mortgage rate buydown A subsidy on mortgage An arrangement under which a the interest rate a homebuyer pays borrower puts up the title to real estate on a loan; often used (usually by as security (collateral) for a loan to buy developers) as an incentive to encourage the real estate. the borrower typically homebuyers to purchase a particular agrees to make regular payments of home or loan. For example, if the principal and interest to repay the loan. home­buyer’s interest rate is 6%, a If the borrower falls behind (defaults) developer might offer to pay 2% of that on the payments, the lender can fore­ the first year and 1% the second year, close on the real estate and have it sold to lower the buyer’s monthly payment. to pay off the loan. (Compare: trust mortgage servicer A business that deed) mortgage issuers pay to administer their mortgage-backed security A kind of mortgages. The servicer typically accepts investment backed by mortgage loans and records mortgage payments, handles that have been packaged into pools workout negotiations if the homeowner in the secondary mortgage market. defaults, and may supervise the fore­ Payments on the mortgages generate closure process if negotiations fail. the return on investment for the people mortgagor The person who has borrowed who invest in these securities. money and pledged his or her real property as security for the mortgagee It was widely reported that Sir (the person or business making the William Blackstone, who wrote the loan). (See also: mortgage) Commentaries on the Law of England, the bible mortmain (mort-maine) French for on the common law, sipped from a bottle “deadhand,” mortmain refers to lands of port while writing. When the bottle was that are permanently held by a church empty, the day’s work was done. or other corporation. motion A formal request that a judge mortgage broker See: loan broker enter a particular order or ruling in a lawsuit. An oral motion may be made mortgagee The person or business during trial—for example, to strike making a loan that is secured by the the testimony of a witness or admit real property of the person (mortgagor)

277 motion for new trial

an exhibit. Often, motions are made motion to dismiss A motion asking in writing, accompanied by a written the judge to throw out one or more statement explaining the legal reasons claims or an entire lawsuit. Sometimes, why court should grant the motion. the plaintiff or a prosecutor makes a The other party has an opportunity motion to dismiss a case because it has to file a written response, and then been settled out of court. Sometimes, the court decides whether to grant or the defendant files a motion to dismiss deny the motion. The court may hold a claiming that the plaintiff or prosecutor hearing where each party can argue its has committed some procedural error side, or may decide the issue without a that prevents the court from hearing hearing. the case or that, even if all of the facts in the complaint are true, the plaintiff motion for new trial A request made or prosecutor cannot win the case (this by a party, after a judgment is entered type of motion to dismiss is called a in a lawsuit, that the judge vacate demurrer in some courts). that judgment and order a new trial. Typically, a motion for new trial argues motion to strike 1) A request that the that the judge made a significant legal judge eliminate all or part of the other error or that there was insufficient party’s pleading. 2) A request that the evidence to support the jury’s verdict. In judge order evidence deleted from the many jurisdictions, a party must make a court record and instruct the jury to motion for new trial to reserve the right disregard it. Typically, this request is to make the same arguments on appeal. made regarding testimony by a witness in court. motion for summary judgment See: summary judgment motion to suppress A request made by a defendant in a criminal trial that motion in limine A motion made before a the court refuse to allow a particular trial begins, asking the court to decide piece of evidence to be admitted whether particular evidence will be at trial, because that evidence was admissible. A motion in limine is most obtained illegally or in violation of the often made to exclude evidence by a defendant’s rights. party who believes that evidence would prejudice the jury against him or her. motive The probable reason a person For example, a defendant in a criminal committed a crime, as when one acts trial might make a motion in limine to out of jealousy, greed, or revenge. exclude evidence of previous crimes. While evidence of a motive may be

278 murder

admissible at trial, proof of motive is plicity of actions is to be avoided because not necessary to prove a crime. it could lead to inconsistent results. mouthpiece Slang for an attorney. municipal Pertaining to a city or town government—for example, a municipal movant The party in a lawsuit or other park. legal proceeding who makes a motion (application for a court order or municipal court A court that typically judgment). has authority over minor criminal matters, traffic tickets, and civil law­ move To make a motion in court apply­ suits where a relatively small amount of ing for judicial action, such as an order money is at stake. The rules vary from or judgment. state to state; in some states, courts that moving party See: movant handle minor local matters have other names. mugging 1) To be robbed by force or threat, usually outdoors. 2) To have muniment of title 1) Written evidence a “mug shot” or photo taken during of title to real estate. Examples might booking. include a deed, a contract, or the death certificate of a co-owner if property Muller v. Oregon (1908) U.S. Supreme was held in joint tenancy. 2) In Texas, Court decision in which a state law a procedure to transfer real estate left setting a maximum number of working by will that is simpler than regular hours for women was upheld, with probate. future Justice Louis D. Brandeis arguing for the state. murder The killing of a human being by a sane person, with intent or malice multiple listing service A computer-based aforethought, and with no legal excuse service, commonly referred to as MLS, or authority. Many states make killings that provides real estate professionals in which there is torture, movement with detailed listings of most homes of the person (kidnapping) before the currently on the market. The public can killing, or death of a police officer or now access much of the information prison guard first degree murders with through websites like www.realtor.com. or without premeditation, with malice multiplicity of actions More than one presumed. A killing that happens lawsuit raising the same issue(s) against during the course of specified crimes the same defendant. Generally, multi- (known as felony murder) may also

279 mutual

be first degree murder. S( ee also: first mystic will A will that is completed, degree murder, second degree murder) signed, and sealed in secret. The will maker delivers the sealed document mutual Anything in which both parties to a notary public along with a signed have reciprocal rights, understanding, statement that the document is a or agreement. valid will. In front of witnesses, the mutual wills Wills made by spouses or an notary records on the envelope the unmarried couple that have identical circumstances of the transaction, then or nearly identical provisions. For the notary and witnesses sign the example, a husband and wife might envelope. Mystic wills are valid only make mutual wills that leave each in the state of Louisiana under certain person’s property to the other or to the circumstances. Also called a secret will, couple’s children. Also called mirror sealed will, or closed will. wills and reciprocal wills.

280 N

naked option An opportunity to buy The NCUA insures savings in federal stock at a fixed price, offered by a seller and most state-chartered credit who does not own the stock to back unions across the country through the up the promise. If the buyer wants National Credit Union Share Insurance to exercise the option, the seller must Fund (NCUSIF). purchase the stock at market price to National Credit Union Share Insurance make good on the offer. Fund (NCUSIF) A federal fund backed narcotics Drugs that dull the senses or by the full faith and credit of the U.S. alter perception. Popularly used to government that provides deposit describe drugs that cannot be legally insurance for credit unions in much possessed, sold, or transported except the same way as the FDIC provides for medicinal uses for which a physi- insurance for banks. cian or dentist’s prescription is required. National Labor Relations Board (NLRB) Among these “controlled substances” An independent agency created by are heroin, cocaine, L.S.D., opium, Congress in 1935 to administer the methamphetamine (“speed”), angel National Labor Relations Act. The dust, hashish, and numerous chemi- NLRB’s purposes are to remedy cally-designed ­hallucinogenics, as well unfair labor practices by unions or as drugs with a legitimate medical use employers, and to hold elections to such as ­morphine. Dealing in any of determine whether a particular group these narcotics is a felony (subject to of employees wants to be represented a prison term) under both state and by a particular union. NLRB refers federal laws, although mere use may be both to the agency as a whole and to a misdemeanor. Marijuana is also an five members who sit as a court and illicit ­narcotic, but possession of small issue decisions in labor disputes. These amounts for personal use is a misde- decisions can be appealed to the U.S. meanor in most states. Court of Appeals. National Credit Union Administration National Visa Center (NVC) The NVC (NCUA) A federal agency that charters is run by a private company under and supervises federal credit unions.

281 naturalization

contract with the U.S. Department of rules and protections apply to natural State. Federal immigration agencies persons and corporations, such as the send all approved green card petitions Fifth Amendment right against self- and green card lottery registrations to incrimination, which applies only to the NVC. It acts as an intermediary, natural persons. corresponding with the applicant and Near v. Minnesota (1931) A U.S. Supreme ultimately forwarding the case to a U.S. Court case in which the Court ruled consulate in another country for final that prior restraint on publications is a processing. violation of free speech and free press. naturalization The process by which In so doing, the Court struck down a foreign person becomes a U.S. a state law that allowed the police citizen. Eligibility is, in almost all to confiscate publications that were cases, dependent first and foremost on malicious, scandalous, or obscene. The having held a green card for several case involved a virulently anti-Semitic years. Applicants must also meet other pamphlet. testing and residence requirements. A necessaries Things that are essential to a naturalized U.S. citizen has virtually person’s ordinary life, considering their the same rights as a native-born U.S. individual circumstances. For most citizen. people, this includes what is needed for natural law Principles considered health and comfort and excludes things to come from nature and to bind that only provide pleasure. human society in the absence of or in necessary inference A conclusion that addition to human-made (positive) is dictated by a fact or premise. If the law. For example, the Declaration of underlying fact or premise is true, Independence’s statement that “all then the necessary inference is an men are created equal, that they are unavoidable conclusion that must be endowed by their Creator with certain drawn. unalienable Rights, that among these are Life, Liberty and the pursuit of necessary party A person or entity Happiness….” is an assertion of natural whose interests will be affected by the law. outcome of a lawsuit and whose absence from the case prevents a judgment on natural person A living, breathing all issues, but who cannot be joined in human being, as opposed to a legal the lawsuit because that would deny entity such as a corporation. Different

282 negligent

jurisdiction to the court hearing the general public, 2) that the defendant’s case. action (or failure to act) was not what a reasonably prudent person would necessities See: necessaries have done, and 3) that the damages negative amortization See: capitalized were directly (“proximately”) caused by interest the negligence. An added factor in the formula for determining negligence is negative income See: loss whether the damages were “reasonably negative pregnant A denial of wrong­ foreseeable” at the time of the alleged doing that implies the opposite by carelessness. (See also: contributory denying only a qualification of the negligence, comparative negligence, allegation, not the allegation itself. For foreseeable risk, damages, negligence example, if a defendant who is accused per se, gross negligence, family purpose of embezzling a million dollars in doctrine, joint tortfeasors, tortfeasor, 2007 denies the allegation by saying, tort, liability, res ipsa loquitur) “I did not embezzle a million dollars in 2007,” the denial is pregnant with the possibility that the defendant may have President George Washington embezzled a different sum of money in appointed the most Supreme Court a different year. justices (11), with President Franklin Roosevelt coming in second (9). negligence Failure to exercise the care toward others that a reasonable or prudent person would use in the negligence per se Negligence due to the same circumstances, or taking action violation of a law meant to protect the that such a reasonable person would public, such as a speed limit or building not, resulting in unintentional harm code. Unlike ordinary negligence, a to another. Negligence forms a plaintiff alleging negligence per se need common basis for civil litigation, with not prove that a reasonable person plaintiffs suing for damages based on should have acted differently—the a variety of injuries, from physical or conduct is automatically considered property damage to business errors negligent, and the focus of the suit will and miscalculations. The injured be over whether it proximately caused party (plaintiff) must prove: 1) that damage to the plaintiff. the allegedly negligent defendant had negligent See: negligence a duty to the injured party or to the

283 negligent tort negligent tort A tort that occurs when a contributions; sometimes referred to as tortfeasor does not give the proper duty take-home pay. For a business, earnings of care. (See also: negligence) less expenses, taxes, and deductions. negotiable instrument A written docu­ net estate The value of all property ment that represents an unconditional owned at death less liabilities or debts. promise to pay a specified amount net income Gross income minus allowed of money upon the demand of its business expenses. owner. Examples include checks and promissory notes. Negotiable net lease A commercial real estate lease instruments can be transferred from in which the tenant regularly pays not one person to another, as when you only for the space (as he does with a write “pay to the order of” on the back gross lease) but for a portion of the of a check and turn it over to someone land­lord’s operating costs as well. else. When all three of the usual costs— taxes, maintenance, and insurance— negotiation 1) A give-and-take discussion are passed on, the arrangement is that attempts to reach an agreement or known as a “triple net lease.” Because settle a dispute. Negotiation is a form these costs are variable and almost of alternative dispute resolution. 2) The never decrease, a net lease favors the transfer of a check, promissory note, landlord. Accordingly, it may be bill of exchange, or other negotiable possible for a tenant to bargain for a net instrument to another in exchange for lease with caps or ceilings, which limit money, goods, services, or other benefit. the amount of rent the tenant must pay. (See also: negotiable instrument) For example, a net lease with caps may net The amount of money or value specify that an increase in taxes beyond remaining after all costs, taxes, a certain point (or any new taxes) will depreciation of value, losses, and other be paid by the landlord. The same kind expenses and deductions have been of protection can be designed to cover subtracted. The term is used in net increased insurance premiums and profit, net income, net loss, net worth, maintenance expenses. and net estate. net loss See: net operating loss net earnings For an employee, earnings net operating loss (NOL) An annual left after mandatory withholdings net loss from a business operation. An and deductions, such as state and NOL may be used to offset the income federal income tax and Social Security

284 no contest

of unincorporated business owners and the nearest blood relatives as next from other sources of income in the of kin. year of the loss. An NOL may also be nihil Latin for nothing. carried back two years to reduce tax liabilities or secure refunds of taxes. nil Latin for nothing or zero. (See also: carryover) 90-day letter Official notice from the new matter New facts raised in a IRS that a taxpayer has 90 days to pleading that go beyond just denying contest an IRS audit by filing a Petition the allegations and present new issues. to the United States Tax Court. New York Times v. Sullivan (1964) A nisi prius The original lower level or trial landmark Supreme Court decision in court where a case was first heard by the field of libel, which ruled that the the judge and the jury, irrespective commercial press was shielded from of where it is heard now. “Court lawsuits by public officials (later -ex of original jurisdiction” is often tended to public figures) for libel unless substituted for the term nisi prius the public official could show the de- which is Latin for “unless before.” famatory statement (even though false) no contest A criminal defendant’s plea was motivated by malice, meaning the in court that the defendant will not ­defamer knew it was false or made it contest the charge of a particular crime, with reckless disregard for whether or also called “nolo contendere.” While not it was false. The theory was that technically not an admission of guilt for political libel suits would otherwise put commission of the crime, a plea of “no a chill on media reporting. contest” will be treated for sentencing next friend A person, usually a relative, purposes by a judge as an admission who appears in court on behalf of a of responsibility. A no contest plea is minor or incompetent plaintiff, but often made in cases in which there is who is not a party to the lawsuit. For also a possible lawsuit for damages by a example, children are often represented person injured by the criminal conduct in court by their parents as next friends. (such as reckless driving, assault with a deadly weapon, aggravated assault), next of kin The closest relatives, as because it cannot be used in the civil defined by state law, of a deceased lawsuit as an admission of fault. (See person. Most states recognize the also: nolo contendere) spouse or registered domestic partner

285 no-contest clause no-contest clause A clause intended to divorce. In the past, a party seeking keep a person from doing something a divorce had to prove that the other or not doing something. In a will, spouse was at fault for the marriage a no-contest clause is intended to not working. No-fault divorces are keep beneficiaries of the will from usually granted for reasons such challenging its terms. Such clauses as incompatibility, irreconcilable usually state that if a beneficiary differences, or irretrievable or challenges the will and loses, that irremediable breakdown of the beneficiary will receive nothing under marriage. (Compare: fault divorce) the will. Under some states’ laws, no- contest clauses are unenforceable. Also called in terrorem clause, noncontest “The law is only a memorandum.” clause, terrorem clause, anticontest —Ralph Waldo Emerson clause, and forfeiture clause. no fault 1) A type of divorce, now no-fault insurance Car insurance laws available in all states, in which neither that require the insurance companies party must prove that the other party of each person in an accident to pay is at fault in order to obtain a divorce. for medical bills and lost wages of 2) A type of automobile insurance their insured, up to a certain amount, required of car owners by law in 19 regardless of who was at fault. states and the District of Columbia, in which the persons injured in an nolle prosequi (nol-ee pros-ee-kwee) accident are paid only basic damages, Latin for “we shall no longer pros- limited to certain categories of actual ecute.” At trial, this is an entry made on harm, by the company that insured the record by a prosecutor in a criminal the vehicle in which they were riding case or a plaintiff in a civil case stating or by which they were hit. 3) Popular that he will no longer pursue the mat- shorthand for a no-fault insurance ter. In a criminal case, the statement is statute. an admission that the charges cannot be proved or that evidence has demon- no-fault divorce Any divorce in which strated either innocence or a fatal flaw the spouse who wants to end the in the prosecution’s claim. An entry of marriage is not required to accuse the nolle prosequi may be made at any time other of wrongdoing, but can simply after charges are brought and before state that the couple no longer gets a verdict is returned or a plea entered. along. Every state now has no-fault

286 non compos mentis

Most of the time, prosecutors need a that ownership will be granted to “Bob judge’s permission to “nol-pros” a case. Smith or nominee.” 3) A person chosen by convention, petition, or primary nolo Latin for “I choose not to.” (See election to be a candidate for public also: no contest) office. nolo contendere (no-low kon-ten-der-ee) noncompete See: noncompetition See: no contest agreement nol. pros. See: nolle prosequi noncompetition agreement An agree­ nominal damages A term used when ment where one party agrees not to a judge or jury finds in favor of one compete with the other party for a party to a lawsuit—often because a law specific period of time and within requires them to do so—but concludes a particular area. Salespeople, for that no real harm was done and example, often sign noncompetition therefore awards a very small amount of agreements that prevent them from money (for example, $1.00). using the contacts gained by one employer to benefit another employer, nominal party A plaintiff or defendant from selling within a particular area, in a lawsuit who may not have any or even working in the same type of actual interest or responsibility in a business. Noncompetes are also used lawsuit but who is included because in the context of a contract for the of technical reasons—for example, an acquiring sale of a business: The selling escrow company (temporarily holding owner may agree not to compete with title to property) may be named in a the acquiring business for a certain lawsuit over a real property sale. Without period of time. In some states, such as the nominal party, the court is unable California, courts view noncompetition to render the judgment to transfer the agreements with disfavor and will not property. (See also: necessary party, enforce them against employees or party) contractors unless the restrictions are nominee 1) A person or entity who is very narrow. In other states, courts requested or named to act for another, routinely uphold them. such as an agent or trustee. 2) A non compos mentis (nahn calm-piss potential successor to another’s rights men-tiss) Latin for not master of under a contract. For example, in a real one’s own mind. Legally insane or not estate purchase agreement, Bob Smith competent to manage one’s own affairs might purchase the property but agree or go to trial.

287 nonconforming use nonconforming use The existing use the SSI and Medicaid programs for (for example, residential, commercial, purposes of determining the owner’s agricultural, light industrial) of a program eligibility. parcel of real estate that is now zoned noncustodial parent A parent who for other kind of use. Generally, a does not have sole custody or primary nonconforming use is permitted only if custody of a child following divorce. the use was legally established but now (Compare: custodial parent) violates a zoning ordinance because the property was rezoned or the law nondischargeable debts Debts that was changed. For example, a corner cannot be wiped out in bankruptcy, parcel that has been used for a gasoline such as alimony, child support, and station for years might lie in an area most income tax debts. If you file now zoned for residential use only. The for Chapter 7 bankruptcy, you will nonconforming use will be allowed still owe these debts when your case (“grandfathered in”), but if the station is over. If you file for Chapter 13 were torn down or abandoned for a bankruptcy, you will have to pay your certain period of time, only residential nondischargeable debts in full during use would be allowed going forward. your plan or continue to owe the remainder. (Compare: dischargeable noncontestability clause An insurance debts) policy provision that requires an insurance company to challenge a nondisclosure agreement A legally statement made in an application for binding contract (also known as an the insurance within a specific time. NDA or confidentiality agreement) in Thus an insurer cannot deny coverage which a person or business promises on the basis of fraud or error if the to treat specific information as a insurer finds the allegedly fraudulent trade secret and not disclose it to statement or error after that period of others without proper authorization. time has ended. Nondisclosure agreements are often used when a business discloses a trade noncontest clause See: no-contest clause secret to another person or business noncontiguous Used to describe two or for such purposes as development, more parcels of real property which are marketing, evaluation, or securing not connected. financial backing. A nondisclosure agreement will not protect trade noncountable resource Property that secrets if the trade secret owner has is not considered to be a resource by

288 nonobviousness

not taken reasonable steps to keep the of time, and in most cases may not information secret. act with the intention of remaining in the U.S. permanently. There are many nondiscretionary trust A trust in which types of nonimmigrants. Students, the trustee has no discretion about how temporary workers, and visitors are to spend or invest trust funds. Also some of the most common. called a fixed trust. nonimmigrant visa A U.S. visa, issued by nondisparagement clause A provision a U.S. consulate or embassy, that allows in a contract requiring one or more its holder to come to the United States parties to the agreement not to make temporarily and for a limited purpose. negative statements about the other(s). Each nonimmigrant visa comes with A nondisparagement clause is often a different set of privileges, such as included in a settlement agreement that the right to work or study. In addition resolves a dispute. to a descriptive name, a letter of the alphabet and a number identifies each In Michigan, it is illegal to chain an type of nonimmigrant visa. Student alligator to a fire hydrant. visas, for example, are F-1 or M-1, and investor visas are E-2. Nonimmigrant visas also vary according to how long nonexempt property A debtor’s property they permit the holder to stay in the that can be taken by the trustee and United States. For example, someone sold for the benefit of the creditors in on an investor visa can remain for a Chapter 7 bankruptcy case, or can many years, but someone on a visitor’s be seized by creditors if they win a visa can stay for only six months at a judgment against the debtor. (Compare: time. exempt property) nonjudicial foreclosure Foreclosure that nonfeasance The failure to act when a proceeds outside of court, under a duty to act existed. (Compare: mis­ power of sale clause in a deed of trust. feasance, malfeasance) nonlapse statute See: antilapse statute nonimmigrant People who come to nonobviousness A requirement for the United States temporarily, with a ­patent protection. A new invention nonimmigrant visa, for some particular must produce unexpected or surprising purpose. A nonimmigrant must depart new results that are not anticipated by the U.S. within a designated length the existing technology (or prior art). A

289 nonprobate assets

non­obvious invention is unexpected by a purposes. Some nonprofit corporations person with ordinary skill in the art— qualify for a federal tax exemption for example, the telephone technology under Section 501(c)(3) of the Internal created by Alexander Graham Bell was Revenue Code, which makes them not obvious to audio and sound engi- eligible for certain federal and state tax neers of Bell’s day. (See also: prior art) exemptions and the contributions they receive are tax deductible by the donors. nonprobate assets Assets left by a deceased person that do not go through non sequitur (non sek-wi-ter) Latin for probate court proceedings before “it does not follow.” A term used to being transferred to those who inherit indicate that one statement does not them. Common examples are life logically follow from another. insurance proceeds, property held in nonsolicitation agreement An agreement joint tenancy, community property, and that restricts an ex-employee’s ability property held in a living trust. to solicit clients or employees of the ex- nonprobate estate See: nonprobate assets employer. nonprobate transfer The distribution nonsuit A court’s dismissal of case of a deceased person’s property by because the plaintiff does not provide any means other than probate. Many sufficient evidence or make an adequate types of property pass free of probate, legal showing for the judge to rule in including (in some states) property the plaintiff’s favor. left to a surviving spouse and property nontransferable ticket An airline ticket left outside of a will through probate- that can be used only by the passenger avoidance methods such as pay-on- whose name appears on the ticket. All death designations, joint tenancy airlines require passengers to show ID owner­ship, living trusts, and life when they check in, and an airline can insurance. Property that avoids confiscate a ticket if the names on the probate is sometimes described as the ID and on the ticket don’t match. “nonprobate estate.” no-par stock Shares in a corporation that nonprofit corporation An organization are issued without a stated value per incorporated under state laws and share. (Compare: par-value stock) approved by both the state’s secretary of state and its taxing authority as Norris v. Alabama (1935) A U.S. Supreme operating for educational, charitable, Court decision that overturned “the social, religious, civic, or humanitarian Scottsboro case,” in which several

290 notice of default

black men were falsely charged with did not meet its burden of proving guilt raping a white woman. The Court beyond a reasonable doubt. (See also: held that organized exclusion of blacks reasonable doubt) from jury panels (the pool of potential not guilty by reason of insanity A plea jurors) was a violation of a defendants’ entered by a defendant in a criminal constitutional right to due process. trial, in which the defendant claims notarize Certification by a notary that he or she was so mentally public to establish the authenticity of a disturbed or incapacitated at the time signature on a legal document. Many of the offense that he or she could not legal documents, such as deeds and have intended to commit the crime. A powers of attorney, must be notarized. jury that agrees with this plea may find the defendant not guilty by reason of notary See: notary public insanity, but usually the defendant faces notary public A licensed public officer civil commit­ment proceedings if the who administers oaths, certifies docu­ defendant is judged to be dangerous in ments, and performs other specified a subsequent hearing. (See also: insanity functions. Notaries public are usually defense) licensed through the Secretary of State’s notice Information that one person gives office in the state where the notary to another, alerting the other party of lives. A notary public’s signature and the first party’s intentions. Notice of seal is required to authenticate the a lawsuit or petition for a court order signatures on many legal documents. begins with personal service on the note See: promissory note defendants (delivery of notice to the person) of the complaint or petition, not guilty A plea entered by a defendant together with a summons or order to in a criminal case. Often erroneously appear (or file an answer) in court. In confused with a claim of innocence, a noncourt setting, notice can simply technically a plea of not guilty simply be a written statement of intentions, as compels the prosecution to prove when a landlord terminates a tenancy every element of the offense beyond a by serving a termination notice on the reasonable doubt. When the jury (or tenant. a judge sitting without a jury) acquits a defendant after trial, they return a notice of default A statement, usually verdict of “not guilty,” which indicates written, from one party to a contract their conclusion that the prosecution to another, advising the recipient

291 notice of deficiency

that he or she has failed to live up to and what steps a landlord must take a term or condition of the contract. before filing an unlawful detainer or Although defaults are most common eviction lawsuit. in real estate, they can happen in any contract situation. A notice of default can result when a homeowner fails to “Justice delayed is justice denied.” pay as required under his mortgage —Anonymous, often quoted or deed of trust. In a lease situation, a notice of default can be sent by either the landlord or tenant, claiming that notorious possession Possession or one of them has violated a condition control of property that can be observed of the lease. If the defaulting party by others—not a hidden or secret fails to correct, or cure, the default, possession. For example, if neighbors the other side may declare the contract can see that a person is living in and to be over, by instituting foreclosure taking care of a house, it can be said proceedings, an eviction, or taking any that the person has notorious possession other act, depending on the nature of of it. the contract, that ends the contractual NOV (non obstante veredicto) Short­ relationship. hand acronym for the phrase non notice of deficiency See: ninety-day letter obstante veredicto (nahn ahb- stan-teh very-dick-toe), meaning notice of tax lien See: tax lien notice “notwithstanding the verdict,” referring notice to quit A legal termination notice to a decision of a judge to set aside that a landlord gives a tenant to leave a jury’s decision when the judge is (quit) the premises or to pay overdue convinced the verdict is not reasonably rent or correct (cure) some other supported by the facts or the law. The lease violation, such as bringing in an result is called a “judgment NOV.” unauthorized pet or roommate, within novation The voluntary substitution of a a short time (such as three days). State new contract for an old one, usually to rules specify details of these notices, change the parties, duties, or payment such as how and when they may be terms. used, the amount of time the tenant has to leave (and whether the tenant has the novelty A requirement for obtaining chance to correct or cure the violation), a patent. To be novel, all material the delivery and timing of the notice, elements of an invention cannot have been disclosed in any previous

292 nuncupative will

technology or publication (prior art). have real estate documents notarized (Compare: anticipation) when purchasing a house. noxious Harmful to health; often refers nulla bona (nuh-lah bo-nah) Latin for to nuisances, such as fumes or smoke. “no goods.” If a sheriff tries to enforce a writ of execution but can’t find any nugatory Of no force or effect; invalid. property in the jurisdiction that can Example: a statute that is unconstitu- be seized to satisfy the judgment, the tional is a nugatory law. sheriff returns the writ nulla bona. nuisance Something that interferes with nullity Something which may be treated the use of property by being irritating, as nothing, as if it did not exist or never offensive, obstructive, or dangerous. happened. This can occur by court Nuisances include a wide range of ruling or enactment of a statute. The conditions, everything from a chemical most common example is a nullity of plant’s noxious odors to a neighbor’s a marriage by a court judgment. (See dog barking. The former would be a also: annulment) public nuisance, one affecting many people, while the other would be a nunc pro tunc (nunk proh tuhnk) Latin private nuisance, limited to making for “now for then,” meaning to cause an your life difficult. Lawsuits may be order or judgment to apply to an earlier brought to abate (remove or reduce) a date. Example: A divorce judgment is nuisance. (See also: quiet enjoyment, submitted to the court but, because of attractive nuisance) a mistake of the court clerk, not filed or signed by the judge. Six months later, nuisance fees Fees charged by a credit one of the parties marries someone card company or bank for using (or else. When the parties later discover failing to use) its services in particular the divorce was never entered, they ways, such as inactivity fees, fees for can obtain a judgment nunc pro tunc not carrying a balance on a credit making the judgment final as of the card, or fees for using an ATM or date they filed it, so that the remarriage a teller. Sometimes used to refer to is not bigamous. any fee a company charges that is disproportionate to the actual cost of nuncupative will An oral will, which is the service provided or the activity legal only in some states and in very being penalized, such as a $100 fee to unusual circumstances, such as when change an airline seat or a $500 fee to the person making the will faced imminent death.

293 O

oath An attestation that one will tell the standards. For example, the question truth, or a promise to fulfill a pledge, may be irrelevant, immaterial, call for a often calling upon God as a witness. conclusion (seeking opinion, not facts), The best known oath is probably the argumentative, assuming facts not in witness’s pledge “to tell the truth, evidence, or compound (two or more the whole truth, and nothing but the questions asked together). The trial truth” during a legal proceeding. All attorney must be alert to object before witnesses are given the oath (sworn in) an answer is given. before testifying. In another context, obligation A legal duty to pay or do a public official usually takes an “oath something. of office” before assuming the position, declaring that he or she will faithfully obligee The person or entity to whom perform the job’s duties. an obligation is owed (for example, the party to be paid on a promissory note). oath of office See: oath obligor The person or entity that owes an obiter dicta Remarks of a judge which obligation to another (for example, the are not necessary to reaching a decision, party that must pay on a promissory but are made as comments, illustra- note). tions, or thoughts. Generally, obiter dicta is simply dicta. OBRA The federal Omnibus Budget Reconciliation Act, a law that, among obiter dictum See: dictum other things, describes the circum­ object See: objection stances under which property in a special needs trust may be considered objection An attorney’s formal the trust beneficiary’s resource for the statement protesting something that purpose of determining eligibility for has ­occurred in court and seeking SSI and Medicaid. (42 U.S.C. §§ 1395 the judge’s ­immediate ruling. Often, and following.) lawyers object to questions posed to a witness by an opposing attorney obscene A description of material that the because the inquiries do not meet legal average person, applying contemporary

294 Occupational Safety and Health Act

standards in their community, would occupant Someone living in a residence find appeals to the prurient interest in or using premises as a tenant or owner; sex, with no legitimate artistic, literary, includes someone who lives in or uses or scientific purpose or value.P ictures, abandoned property with the intention writings, films, or public acts that are of acquiring ownership. under this standard (from the U.S. occupation Fairly permanent trade, Supreme Court) is not entitled to profession, employment, business, or First Amendment protection as free means of livelihood. speech, and may be regulated or even criminalized. occupational disease A disease that an employee develops as the result obscenity Material that is obscene. of exposure to particular substances, obstruction of justice An attempt to working conditions, or requirements interfere with the administration of on the job. Black lung disease from the courts, the judicial system, or law mining, mesothelioma caused by enforcement officers, including threat- asbestos exposure, and repetitive stress ening witnesses, improper conversations disorder caused by typing or running with jurors, hiding evidence, or inter- a cash register are all examples of fering with an arrest. Such activity is a occupational disease. crime. occupational hazard A danger or risk occupancy Living in or using premises particular to certain jobs. For example, or property as a tenant or owner; hearing loss might be an occupational includes someone who lives in or uses hazard for those who work around loud abandoned property with the intention machinery or in a rock band. of acquiring ownership. Occupational Safety and Health Act occupancy standard A limit on the (OSHA) The primary federal law number of persons allowed per establishing health and safety standards dwelling unit, based on the size of the in the workplace. Generally, OSHA unit, number of bedrooms and baths, requires employers to provide a safe and other factors, such as physical workplace by informing employees limitations of the building. Federal, about potential hazards, following state, and local laws may set either health and safety standards established minimum occupancy standards or for their industry, training employees, maximum occupancy limits (under and recording workplace injuries. health and safety codes).

295 occupy the field occupy the field To preempt or monopo- defendant of a “lesser offense” than the lize an area of statutory law by a higher one charged. authority, such as federal preemption offensive collateral estoppel A doctrine over state laws on issues affecting inter- asserted by a plaintiff (the person in state commerce, and state statutes or the offensive position) that prevents a state constitutions prevailing over laws defendant from relitigating an issue of cities and counties on certain topics. that was previously decided against of counsel An attorney who is affiliated that defendant in a case with a different with a law firm, but not employed as a plaintiff. partner or associate. This designation offer An element required in the creation often identifies a semiretired partner, of an enforceable contract. An offer is an attorney who occasionally uses the a proposal to enter into an agreement office for a few clients, or one who only and must express the intent of the consults on certain matters. person making the offer to form a off calendar Refers to a court order to contract, must contain the essential take a lawsuit, petition, or motion off terms—including the price and subject the list of pending proceedings. The matter of the contract—and must be reasons might be that the lawyers communicated by the person making agreed (stipulated) to drop or postpone the offer. A legally valid acceptance of the case, the moving party’s lawyer the offer will create a binding contract. failed to appear, the suit has been offeree The person or entity to whom an settled pending final documentation, or offer is made, usually to enter into a some other reason that the case should contract. not proceed at that time. The matter can in most instances be put back “on offer in compromise A proposal to the calendar” by stipulation of the lawyers IRS (on an IRS tax form) to settle a tax or upon motion of either party. debt for less than the amount owed. offender A quasi-legal term that refers to offer of proof At trial, an explanation someone who has been convicted of a to a judge by a party or the party’s crime, as in “repeat offender.” attorney as to how a proposed line of questioning, or a certain item of offense A violation of the law, a crime. physical evidence, would be relevant to Often used when describing lesser its case and admissible under the rules crimes, as when the jury convicts the of evidence. Offers of proof arise when

296 offshore corporation

a party begins a line of questioning that by a public officer or public agency. the other side objects to as calling for Examples might include an Official Boy irrelevant or inadmissible information. Scout knife or emblem, or an official If the judge thinks that the questions warranty, membership card, or set of might lead to proper evidence, the rules. 2) A public officer or government questioner will be give a chance to employee who is empowered to exercise show how the expected answers will judgment. 3) An officer of a corporation be both relevant and admissible. This or business. explanation is usually presented out of official misconduct When a public the jury’s hearing, but it does become official acts improperly or illegally in part of the trial record. connection with his or her duties. offeror The person or entity that makes an offer, usually to enter into a contract. “The police must obey the law while officer A person elected by a profit or enforcing the law.” nonprofit corporation’s board of direc- —Chief Justice Earl Warren tors, or by the members or managers of a limited liability company, to manage the day-to-day operations of the orga- officious intermeddler A person who nization. Officers generally hold titles does something to benefit another such as president, secretary, or treasurer. without being requested or legally Many states and most corporate bylaws obligated to do so, and is therefore not or LLC operating agreements require a entitled to seek compensation for his or corporation or LLC to have a president, her actions. For example, someone who secretary, and treasurer. Election of a decides to wash all of the cars on the vice president may be required by state block would not be entitled to demand law. payment from each car’s owner. officer of the court Any person who offset See: setoff has an obligation to promote justice and uphold the law, including judges, offshore corporation A corporation clerks, court personnel, police officers, chartered under the laws of a country and attorneys (who must be truthful in other than the U.S. that does not court and obey court rules). conduct substantial business in its country of incorporation. Some official 1) An act, document, product, or countries (particularly in the Caribbean) anything else sanctioned or authorized are popular nations of incorporation

297 Older Workers Benefit Protection Act

since they have little corporate insured person’s express or implied regulation or taxes and only moderate consent. 2) A clause in a will or probate management fees. Reasons to use court order that disposes of property an offshore corporation may include that was not otherwise specifically avoidance of taxes, ease of international disposed of in the will. For example, operations, freedom from state it might say “I leave all other property regulation, and placement of funds in not specifically mentioned in this will accounts out of the country. to Jane.” Older Workers Benefit Protection Act on all fours Slang for a case or other (OWBPA) An amendment to the Age precedent which shares near-identical Discrimination in Employment Act facts or issues. (See also: precedent) (ADEA), the OWBPA is a federal on demand In a promissory note, a law that requires employers to offer requirement that the amount due must older workers (those who are at least be paid when the person or company 40 years old) benefits that are equal to whom the funds are owed demands to or, in some cases, cost the employer payment (rather than upon a certain as much as, the benefits it offers to date or in installments). Such a note is younger workers. The OWBPA also sets called a demand note. minimum standards for an employee waiver of the right to sue for age one-bite rule A legal rule, still in force in discrimination, designed to ensure that many states, that makes a dog owner the waiver is knowing and voluntary. legally responsible for injury caused by the dog only if the owner knew (or omission 1) Failure to perform an act should have known) that the dog was agreed to, especially if there was a likely to cause that kind of injury. The duty to perform. 2) Leaving out a injured person must show that the word, phrase, or other language from owner had this knowledge. a written document. If the parties agree that an omission was due to a one-person, one-vote rule See: Reynolds mutual mistake, the document may be v. Sims reformed. one-year rule A rule that requires a omitted heir See: pretermitted heir patent application to be filed within one year of: 1) any public use of the omnibus clause 1) A clause in a vehicle invention by the inventor, 2) a sale of insurance policy that provides coverage the invention, 3) an offer to sell the for anyone driving the car with the

298 opening statement

invention, or 4) any description of the open adoption An adoption in which the invention by the inventor in a published adopting parents and birth parents are document. Failure to file a patent in contact before the birth and agree on application within this one-year period some level of contact after the child is results in the invention’s passing into born. Contact may range from sending the public domain, where it is no longer the birth parent(s) a photograph of the eligible for a patent. The application of child once a year to including the birth the one-year rule to sales is sometimes parent(s) in family events. referred to as the on-sale bar. open court Judicial proceedings of a on or about A phrase used in a civil court in session that the public may complaint or criminal charge that refers attend. Certain proceedings, such to a date or place. It is used to protect as hearings on evidence that might the person making the allegations prejudice the jury or reveal sensitive of fact from being challenged as information that should not be made inaccurate. Thus, a complaint will read public, are not held in open court, but “On or about July 11, 2009, Defendant instead are held “in camera” (in the drove his vehicle negligently and judge’s chambers or after the courtroom without due care on or about the corner has been cleared). of Sunset and Vine Streets.” open-ended loan A loan that does not on or before A phrase usually found in a have a definite term or end date—for contract or promissory note requiring example, a credit card account or payment or performance by a particular personal line of credit. date or prior to that date. opening statement A statement made by on the merits Referring to a judgment, an attorney or self-represented party at decision, or ruling of a court based the beginning of a trial before evidence upon the facts presented in evidence is introduced. The opening statement and the law applied to that evidence. outlines the party’s legal position and previews the evidence that will be on the stand A phrase used to describe introduced later. The purpose of an a witness who is testifying under oath opening statement is to familiarize during a trial. The witness almost the jury with what it will hear—and always sits in a chair beside the judge’s why it will hear it—not to present bench, often raised above the floor level an argument as to why the speaker’s of the courtroom, and behind a knee- side should win; that comes after all high panel.

299 operating agreement

evidence is presented as part of the published and create rules for future closing argument. litigants to follow. Appellate judges who disagree with a majority opinion may operating agreement An agreement file dissenting opinions. signed by the members (owners) of a limited liability company that structures the members’ financial rights “We come now to analyze a law. In the and responsibilities, each member’s first place, it is declaratory; in the percentage of ownership in the LLC second it is remedial; and in the fourth, it is and share of profits (or losses), the vindicatory.” LLC’s procedures for holding meetings, —Gilbert Abbot A. Beckett, and what will happen to the business The Comic Blackstone when a member leaves. operation of law A way in which option An agreement that conveys the some­one acquires certain rights or right to purchase property or engage responsibilities automatically under the in a transaction in the future upon law, without taking individual action agreed-upon terms. An option is paid or being the subject of a court order. for as part of a contract, but must be For example, when one joint tenant “exercised” in order for the property to dies, any surviving joint tenants obtain be purchased or the transaction to be title to the jointly owned property; completed. when someone dies without a will, the person’s legal heirs automatically Option ARM A type of adjustable rate become entitled to inherit property mortgage that allows the borrower from the estate. to choose the payment amount, each month, usually from the following opinion A court’s written explanation four options: a minimum payment of a judgment, usually including a based on the borrower’s initial interest summary of the facts, an explanation rate, a payment that covers the interest of the law on the issue, and the court’s that has accrued that month, a fully analysis for applying the law to those amortizing 30-year payment, or a fully facts and coming to a conclusion. The amortizing 15-year payment. opinions of appellate courts (courts that review the decisions of trial courts, O.R. Short for “own recognizance.” A the highest appellate court being person who is charged with a criminal the Supreme Court) are frequently offense may be released without having

300 ordinary course of business

to post bail if the judge is convinced order of examination A hearing in that the person will honor his obligation which a judgment debtor must answer to show up at future court appearances. questions under oath about his or Defendants who are good candidates her assets, income, bank accounts, for “O.R. release” are those who are and other financial information. The unlikely to flee, namely, those with judgment creditor is entitled to request substantial ties to the community this information to find a source (property owners) and people with close from which he or she can collect the and supportive family nearby. judgment. oral contract An agreement based on order to show cause An order from a spoken words that is valid and enforce­ judge that directs a party to come able, provided that it is provable, meets to court and convince the judge the condition of contract formation, why the judge shouldn’t grant an and is not in violation of statutes that action proposed by the other side or, prohibit oral agreements—for example occasionally, by the judge. For example, state statutes that require sales of in a divorce, at the request of one real property and agreements whose parent a judge might issue an order performance takes more than one year, directing the other parent to appear in must be in writing. court on a particular date and time to show cause why the first parent should order A decision issued by a court. not be given sole physical custody of It can be a simple command—for the children. example, ordering a recalcitrant witness to answer a proper question—or it ordinance A law adopted by a town or can be a complicated and reasoned city council, county board of super­ decision made after a hearing, directing visors, or other municipal governing that a party either do or refrain from board. Typically, local governments some act. For example, following a issue ordinances establishing zoning hearing, the court may order that and parking rules, and regulating noise, evidence gathered by the police not be garbage removal, and the operation introduced at trial; or a judge may issue of parks and other areas within the a temporary restraining order. This locality’s borders. term usually does not describe the final ordinary course of business Conduct of decision in a case, which most often is business within normal commercial called a judgment. customs and practices. This term is

301 original jurisdiction

used to determine the legitimacy of ostensible agent One who has the certain transactions. apparent authority to act for another. (See also: apparent authority) original jurisdiction The authority of a court to hear and decide a matter ostensible authority See: apparent before it can be reviewed by another authority court. (Compare: appellate jurisdiction) ouster 1) Wrongfully excluding someone original work of authorship A standard from property, as when a cotenant for copyright protection. Under copy­ changes the locks, preventing another right law, a work is considered original, cotenant’s entry. 2) The removal of a if it owes its origin to the author—that public official from office. is, it is the result of independent effort, outbuilding A structure not connected and not the result of copying. with the primary residence on a parcel origination fee A fee paid to a lender to of property. This may include a shed, process a loan application. Commonly garage, barn, cabana, pool house, or called “points” and calculated as a cottage. percentage of a loan amount. outlaw A popular term for anyone who orphan A person, particularly a minor, commits serious crimes and acts outside whose parents are dead. In some cases, the law. such as whether a child is eligible for out of court Actions, including negotia- public financial assistance, “orphan” tions between parties or their attorneys,­ can mean a child who has lost one without any direct involvement of parent. a judge or the judicial system. Most orphan works Works protected under commonly it refers to an out-of-court copyright whose owners are difficult settlement in which the parties work to locate—for example, a photograph out a settlement agreement, which they taken of Elvis Presley as a teenager, may present to the court for inclusion or a newspaper column from a 1950s in a judgment. newspaper. out-of-pocket expense An expense paid O.S.C. See: order to show cause from an individual’s own funds. OSHA See: Occupational Safety and output contract An agreement in Health Act which a seller agrees to sell its entire

302 ownership

production to the buyer, who in turn question for a witness or the admission agrees to purchase the entire output. of evidence. By overruling the objection, the judge allows the question overbooking A common practice or evidence in court. 2) An appellate whereby an airline, hotel, or other court’s decision that a prior appellate company accepts more reservations decision was incorrect, and is therefore than it has seats or rooms available, no longer a valid precedent on the legal on the presumption that a certain issue in question. percentage of people will not show up. Airlines have a legal right to overbook, overt act In criminal law, an action that while hotels do not. A hotel must might be innocent by itself, but when find a room for everyone who has a part of the preparation and active reservation and shows up on time. furtherance of a crime, is evidence of a An airline may be required to offer defendant’s participation in the crime. compensation for people involuntarily For example, when the first World bumped from a flight, depending on Trade Center defendants were put on several factors, including how long they trial, evidence of their renting a van, must wait for another flight. buying explosives, obtaining a map of downtown New York City, and going back and forth to the World Trade The Trial of Mary Dugan. (1929) The first Center was admitted to establish overt courtroom movie in sound. A woman acts that proved their complicity in the accused of murdering her lover is deserted by bombing. her lawyer and then saved by new counsel. Norma Shearer, Lewis Stone, H.B. Warner, owelty Under common law, an amount Raymond Hackett. that one co-owner must pay to another after a lawsuit to partition real estate, so that each co-owner receives equal value overcharge 1) To charge more than a from the property. posted or advertised price. 2) To file owner One who has legal title or right to a criminal complaint for more serious something. (See also: ownership) crimes than the known facts support, most often to intimidate the accused owners’ agreement See: buy-sell into accepting a plea bargain. agreement overrule 1) A trial judge’s decision to ownership Having the legal right to reject a party’s objection—often, to a use, possess, and give away property.

303 ownership in common

(See also: joint ownership, conditional own recognizance (O.R.) A way the de- ownership) fendant can get out of jail pending trial on the charges, without paying bail, by ownership in common Right of owner­ promising to appear in court when next ship shared by two or more people, required to be there. Sometimes called where at the death of one owner his or “personal recognizance.” Only those her interest in the property passes to his with strong ties to the community, or her heirs. This is in contrast to joint such as a steady job, local family, and ownership, where that interest would no history of failing to appear in court pass to the remaining owner or owners. are good candidates for “OR” release. If the charge is very serious, however, OR may not be an option.

304 P

pain and suffering The physical or pander 1) To solicit customers for a emotional distress resulting from an prostitute. 2) A pimp, who procures injury. Though the concept is somewhat customers for a prostitute or lures abstract, the injured person (the a woman into prostitution for the plaintiff) can seek compensation in the pimp’s own profit. 3) To cater to special form of cold, hard cash. How much the interests without principle. defendant owes for pain and suffering is panderer A person who panders or calculated separately from the amount solicits for a prostitute. owing for more direct expenses, such as medical bills or time lost from work— panel The list of people selected to appear although sometimes these amounts are for jury duty. considered to arrive at a logical figure. paper hanger A slang expression for palimony A nonlegal term coined by someone who writes bad checks. journalists to describe the division of par The face value of a stock or bond, property or an order for support—in which is the amount the original the nature of alimony—paid by one purchaser paid the issuing corporation. member of an unmarried couple to the (See also: par-value stock) other after they break up. paralegal A person who does legal work palliative care Medical care designed to but is not licensed to practice law or keep a patient comfortable and pain- give legal advice. Paralegals employed free while also providing psychological by a law office often handle the routine and spiritual support. Rather than tasks and paperwork of a law practice. focusing on curing an illness, palliative Independent paralegals (those who care emphasizes quality of life for both work directly with the public, not the patient and the patient’s family for lawyers) assist their customers by members. Used negatively, it may providing forms, helping people fill mean the provision of only perfunctory them out correctly, and filing them medical care when an illness could be with the proper court. cured.

305 paramount title paramount title The original title, or a parent The legal or natural father or title that prevails over any other claim mother of a person; the relationship can of title. be established by birth or by adoption. parcel A defined piece of real estate. pardon To use the executive power of “The laws, if they are to be observed, a governor or president to forgive a have need of good morals.” person charged with a crime or con- —Niccolo Machiavelli victed of a crime, thus preventing any prosecution and removing any remain- ing penalties or punishments. A pardon Parental Kidnapping Prevention Act is distinguished from “a commutation (PKPA) A federal law that seeks to con- of sentence,” which cuts short the term; trol and prevent parental kidnapping by “a reprieve,” which is a temporary halt requiring states to ensure parents are in to punishment, particularly the death compliance with the terms of the PKPA penalty, pending appeal or determina- before the court will make a custody tion of whether the penalty should be order, and to refuse to enforce child reduced; “amnesty,” which is a blanket custody orders made in another state forgiving of possible criminal charges when the parent obtaining the order due to a change in public circumstances did not have legal custody of the child. (such as the end of a war or the draft parental neglect A crime consisting of system); or a “reduction in sentence,” acts or omissions of a parent (including which shortens a sentence and can be a stepparent, adoptive parent, or granted by a judge or an executive. someone who, in practical terms, serves Sometimes called a commutation. in a parent’s role) which endangers the parens patriae (par-ens pa-tree-ee) Latin health and life of a child or fails to take for “parent of his or her country.” The steps necessary to the proper raising power of the state to act as guardian of a child. The neglect can include for those who are unable to care for leaving a child alone when he or she themselves, such as children or disabled needs protection, failure to provide individuals. For example, under this food, clothing, medical attention, doctrine a judge may change custody, or education to a child, or placing child support, or other rulings affecting the child in dangerous or harmful a child’s well-being, regardless of what circumstances, including exposing the the parents may have agreed to. child to a violent, abusive, or sexually predatory person.

306 partial verdict parenting plan In a divorce, a document sentence, based on the concept that that sets out the parents’ agreements during the period of parole, the about how they will share time with released criminal can prove he or she is their children. rehabilitated and can “make good” in society. A parole generally has a specific pari delicto See: in pari delicto period and terms, such as reporting to a parish 1) An area served by a particular parole officer, not associating with other church; an ecclesiastical district. 2) In ex-convicts, and staying out of trouble. Louisiana, the governmental equivalent Violation of the terms may result in of a county. revocation of parole and a return to prison to complete his or her sentence. parody When an author or artist ridicules (Compare: probation) a well-known work by imitating it in a comedic way. To the extent that partial breach A failure to satisfy or the parodist copies material protected meet a term of a contract which is so by copyright, the publication may be minimal that it does not cause the considered a copyright infringement contract to fail; also referred to as an unless excused by the fair use defense. immaterial breach. A partial breach is The key factor for a parody to qualify remedied by payment or other adjust­ as fair use is whether the parody is ment—for example if a landlord rents a transformative—it adds something furnished apartment and fails to supply new, with a further purpose or different a bed, the landlord may lower the rent character altering the copied work with temporarily until the bed is provided. new expression, meaning, or message. partial disability The result of an injury parol Oral. (See also: parol evidence rule) that permanently reduces a worker’s ability to function, but still permits the parol evidence rule If there is a written worker to do some gainful activity. contract, the terms of the contract cannot be altered by evidence of oral partially secured debt A debt that is (parol) agreements purporting to secured by collateral that is worth less change, explain, or contradict the than the debt—for example, a $12,000 written document. (See also: extrinsic car loan that is secured by a car that’s evidence) now worth only $10,000. parole The release of a convicted criminal partial verdict In a criminal trial in defendant after that person has which the defendant is charged with completed part of his or her prison more than one crime, the jury’s verdict

307 participate

that the defendant is guilty of one or return. To form a partnership, each more of the charges, but not guilty of partner normally contributes money, the others. property, or labor in exchange for an ownership interest in the partnership. participate To invest and in exchange, Most partnerships are created by a receive a part or share in business formal written partnership agreement, profits, payments on a promissory although they may be based on an note, title to land, or as one of the oral agreement or just a handshake. beneficiaries of the estate of a person (See also: limited partnership, limited who has died. liability partnership) partition A court-ordered sale or physical party 1) A person, business, or other legal division of property, usually real estate, entity that files a lawsuit (the plaintiff that’s owned by more than one person or petitioner) or defends against one as tenants in common or joint tenancy. (the defendant or respondent). 2) A Any co-owner has the right to demand person or other legal entity that enters a partition. into an agreement. partner One of the co-owners and party of the first part Antiquated investors in a partnership. Each partner language used to identify one of the claims a share of the the business’s parties to an agreement. Modern income or losses on the partner’s contract practice is to identify parties individual tax return. General partners with abbreviations, or by an identifier are responsible for the debts, contracts, such as buyer, seller, lessee, lessor, and actions of all the partners in the licensee, or licensor. business. Limited partners do not share responsibility for partnership debts and party of the second part See: party of the cannot share in management decisions. first part partnership Refers to a legal structure for party wall A wall that is shared by two a business of two or more individuals; adjoining premises, either residential called a general partnership when used or business, and that is on the property without a qualifier such as “limited” or line. “limited liability.” Each owner (partner) par value The face value of a stock, is personally liable for all debts of the assigned by a corporation at the time business, and each partner claims a the stock is issued. The par value is share of the the business’s income or often printed on the stock certificate, losses on the partner’s individual tax

308 patent claim

but the market value of the stock may income “passes through” the business be much more than par value. Most to the owners’ tax returns). In contrast, common stocks issued today do not a corporation, or a business that elects have par values, except in states that corporate-style taxation, is taxed require it. In some states, shares with a directly on all business profits. par value cannot be issued at a price less pat-down See: frisk than the par value. par-value stock Shares in a corporation that were given a stated share price (par Legal Eagles. (1986) Opposing lawyers in value) when issued. (Compare: no-par a murder case, Robert Redford and Debra stock) Winger fall in love. With Daryl Hannah, Brian Dennehy, Terence Stamp. passenger A rider on a train, bus, airline, taxi, ship, ferry, automobile, or other carrier in the business of transporting patent A grant by the U.S. Patent and people for a fee (a common carrier). Trademark Office (USPTO) that A passenger is owed a duty of care by allows the patent owner to maintain such a carrier. a monopoly for a limited period of time on the use and development of a passive Being inactive. For tax purposes, new innovation. The USPTO grants “passive income” includes income three types of patents: utility patents produced without active effort or for useful, new, inventions that are not management, such as bank interest, obvious to those in the field; design stock dividends, trust profits, and patents for new and original designs rent (when there is no management that ornament a manufactured product; involvement). In estate planning, a and plant patents for new, asexually or “passive trustee” is one who has no sexually reproducible plants. responsibilities other than to hold title or wait for an event that would activate patent ambiguity See: ambiguity the trust. Patent and Trademark Office (PTO) See: pass-through taxation The taxation U.S. Patent and Trademark Office method applied to sole proprietorships, patent claim The portion of a patent partnerships, and limited liability that establishes the legal boundaries of companies, where the owners pay the invention—that is, the exclusive taxes on all business profits on their rights of the owner. Patent claims are individual tax returns (the business

309 patent claims

written in a formal style and precise features of the invention described in terminology, and they serve as the the application, including those features basis for any determination of patent that distinguish it from prior art. (See infringement. During the application also: prior art) process, patent claims are often the patent infringement See: infringement subject of intense negotiation between (of utility patent) the applicant and the U.S. Patent and Trademark Office (USPTO). patent pending The status of an invention between the time when: a patent claims Statements included in a utility patent application has been filed patent that describe (or “recite”) the and when it is issued or rejected, or the structure of an invention in precise and time between when a provisional patent exact terms, using a long-established application has been submitted and formal style and precise terminology. when a subsequent patent application Claims form the boundaries of an is issued or rejected. Inventors mark invention much like a deed describes their devices patent pending in order to the boundaries of real property. They place others on notice that they claim may be broad or narrow in terms of the priority. Patent pending status does not scope of the invention they address. bestow any legal right to stop copying. The greater the scope of the invention defined in the claims (that is, the patent search A search of all existing broader the claims), the wider the reach or publicly available information to of the patent. determine whether an invention is new ­(novel) and whether persons with patent deed The official document ordinary skill in the field could have (sometimes referred to as letters patent) deduced it (nonobvious). A patent that is sent to an applicant by the U.S. search usually begins with a review of Patent and Trademark Office when the previously issued patents, and progress- applicant’s patent issues. es to other types of documents, such patent defect An obvious flaw in a as journal articles and scientific papers product or a document (such as leaving describing unpatented inventions. The out the property description in a deed). most thorough patent searches are per- (Compare: latent defect) formed by professional patent search- ers at the U.S. Patent and Trademark patent drawing Visual representations Office.S ( ee also: prior art, nonobvious- of an invention that are included in a ness, novelty) patent. Patent drawings show all the

310 payable-on-death designation patent troll Disparaging term for some­ to intimidate or coerce the government one who sues for patent infringement or a civilian population. It is also a but who does not make or sell any federal crime to hack into government product using the patented technology. computers, give financial assistance to terrorists, and to possess substances that paternity suit A lawsuit to determine can be used for biological or chemical the identity of the father of a child weapons for nonpeaceful purposes. born outside of marriage. A paternity suit may be brought either by the pawn To pledge an item of personal mother or by the father himself if the property as security for a loan, with the mother is denying his paternity, and property left with the pawnbroker. The is usually proved by genetic testing. interest rates are on the high side, the Once paternity is established, the amount of the loan is well below the father has all the rights and obligations value of the pledged property, and the of parenthood, including the duty broker has the right to sell the item to support the child and the right to without further notice if the loan is not petition for custody or visitation. paid. Pawnbrokers are licensed by the state. (See also: pledge) Patriot Act Shorthand label for a lengthy and complex package of federal anti­ pawnbroker One who lends money in terrorism and general crime control exchange for items pledged as collateral. laws signed into law less than two payable See: accounts payable months after the September 11, 2001 terrorist attacks on the World Trade payable-on-death designation A way Center and the Pentagon. (The legisla- to avoid probate for bank accounts, tion’s formal name is the “Uniting and government bonds, securities, indi- Strengthening America by Providing vidual retirement accounts, and, in Appropriate Tools Required to Inter- some states, real estate or cars. To create cept and Obstruct Terrorism Act.”) a pay-on-death designation, you simply The Patriot Act was reenacted in 2006. name someone on the ownership docu- Some sections of the original law were ment (such as the registration card for a deleted or amended. Some provisions, bank account) to inherit the property at including the authority for roving your death. You retain complete control wiretaps, expire in 2009 unless they are of your property while you are alive, reenacted. Under the Patriot Act, it is a and you can change the beneficiary federal crime to commit dangerous and (payee) at any time. At your death, the illegal acts on U.S. soil with the intent

311 payable on demand

property is transferred directly to the holder did not have valid title. The true beneficiary, free of probate. owner of the note cannot also demand payment, but must look to the recipient payable on demand A debt on a promis- of the funds. sory note or bill of exchange which must be paid when demanded by the payment in full The giving of all funds payee (the party to whom the debt is due to another. This language is often owed). inserted on the back of check above the place for endorsement to prove that the payee accepts the payment as complete. “The fine for peering into your neighbor’s house without permission is one cow.” payment into court 1) Money or —Irish Laws, collected by property that is given to the court Mary Dowling Daley clerk to be distributed after a lawsuit is concluded. Typically, the person making payment into court is not payback provision A provision in a involved in the law­suit, but owes money special needs trust requiring that, after or property to which the parties dispute the beneficiary dies, the trustee must ownership. For example, a customer use any property left in the trust to might make payment into court for reimburse Medicaid for benefits the money owed a business partnership, if beneficiary received. Special needs the partnership has dissolved and one trusts containing property originally partner is suing the other for ownership belonging to the beneficiary (self-settled of the business’s assets. 2) In landlord- trusts) must have a payback provision tenant law, rent money that a tenant to avoid having the property considered deposits with a court during a dispute the beneficiary’s resource for program with the landlord, often to avoid eligibility purposes. Third-party trusts eviction. do not have a payback provision. payor The person or entity that is respon- payee The one named on a check or sible for payment on a promissory note promissory note to receive payment. or bill. May also be spelled payer. payment in due course Payment of funds pay or quit The type of written notice to the holder of a promissory note or given to a tenant by a landlord, when other negotiable instrument made the tenant is late with the rent. The without knowledge that the document notice tells the tenant to pay the rent, had been acquired by fraud or that the sometimes within a specified number of

312 penal

days, or leave the premises. If the tenant performing other acts specified by law, does neither, the landlord may file an is guilty of a crime. eviction lawsuit. peeping Tom A person who stealthily payroll taxes The income taxes withheld peeks into windows, holes in restroom from an employee’s paycheck plus walls, or other openings with the unemployment contributions and FICA purpose of seeing people undressed or contributions—including both Social couples making love. The term comes Security and Medicare—that must be from the legendary Tom who peeked deposited into an IRS account. when Lady Godiva rode her horse naked through the streets of Coventry PBGC See: Pension Benefit Guaranty to protest taxes. Being a peeping Tom Corporation is treated as a crime based on sexual peaceable possession In real estate, deviancy, and a victim may sue a holding property without any adverse peeping Tom for invasion of privacy. claim to possession or title by another. peer 1) An equal. (See also: jury of one’s (See also: adverse possession) peers) 2) A member of the nobility in peace bond An amount the court requires Great Britain. someone to pay as a guarantee that he peer review An evaluation of someone’s or she will not threaten or bother a work by a group of people in the same particular person or otherwise commit profession or field. A peer-reviewed a breach of the peace. If the protected or “refereed” journal, for example, party is bothered or injured, the bond publishes submissions that have been amount is forfeited to the party or his read and selected by an editorial board or her survivors. of experts in the field. Hospitals, peculation Misappropriation of govern­ schools, and other institutions often ment funds or property. have peer-review boards or committees who evaluate the work of their pecuniary Relating to money. For colleagues, sometimes in response to example, a pecuniary award as an allegations of poor performance or award of money. malpractice. pedophilia An abnormal obsession with penal Relating to crime, as in “penal children as sex objects. A person who code” (the laws specifying crimes and acts upon this obsession, by molesting a punishment) or “penal institution” (a child, taking explicit photographs, and

313 penalty

state prison or penitentiary confining penitentiary A state or federal prison for convicted felons). convicted criminals. penalty Punishment upon conviction pen register A device that makes a of a crime, generally in the form of a record of the phone numbers called monetary fine, forfeiture of property, or from a particular phone. When a court imprisonment. authorizes it, a law enforcement agency may use a pen register in a criminal penalty clause A contract clause that investigation. imposes an excessive monetary penalty in the event a party defaults. Courts pension A retirement fund for employees generally don’t enforce penalty clauses paid for or contributed to by some when the amount imposed is unrelated employers as part of a package of to the damages incurred. compensation for the employees’ work. Pensions became widespread during pendente lite (pen-den-tay lee-tay) Latin the Second World War, when they were for “while the action is pending” or commonly used as lures because there “during litigation.” Often used to were more jobs than workers. describe a court order that is in effect only until the end of a lawsuit, such as Pension Benefit Guaranty Corporation an order for temporary child support (PBGC) A federal insurance fund that pending the resolution of a divorce pays pension benefits to retirees whose proceeding. pension plans have ended, generally because the plans cannot meet their pendent jurisdiction In federal procedure, financial obligations. The PBGC is a federal court’s right to decide a claim funded by insurance premiums paid by it would not ordinarily have a right to employers that sponsor covered plans. decide, because that claim arises out The PBGC covers only defined benefit of the same incident as a claim that plans and only up to a maximum is properly before the court. Federal monthly amount. courts are courts of limited jurisdiction, and they generally don’t have the right people The designation for the govern­ to decide issues of state law between ment in a criminal prosecution, as in residents of the same state. If, however, People v. Capone. These cases may also a plaintiff sued and alleged both federal be captioned State v. Davis (in a state and state law claims, the federal court prosecution) or United States v. Miller could decide the state law claims under (in federal prosecutions). the doctrine of pendent jurisdiction.

314 peremptory writ of mandate (or mandamus) per 1) For each or every—for example, per diem (per dee-um) Latin for “per “She spends five dollars per day.” day,” per diem refers to payment of a 2) According to—for example “Per the set amount for each day’s expenses for judge’s direction, the defendant took an employee or agent. Typically, a per the stand.” diem is available only for travel away from home. For example, someone who per capita Latin for “by head,” meaning goes on an overnight business trip for to be determined by the number of an employer might receive a per diem people. Under a will, this is the most of $50 to cover meals and incidentals common method of determining what on the trip. share of property each beneficiary gets when one of the beneficiaries dies before the will maker, leaving children Lizzie Borden, known in song and of his or her own. For example, Fred story for hatcheting her parents leaves his house jointly to his son to death, was actually acquitted of murder Alan and his daughter Julie. But Alan charges. dies before Fred does, leaving two young children. If Fred’s will states that heirs of a deceased beneficiary peremptory 1) Final and absolute. 2) Not are to receive the property per capita, requiring any showing of cause. (See Julie and the two grandchildren will also: peremptory challenge) each take a third. If, on the other peremptory challenge The right to hand, Fred’s will states that heirs of a dismiss or excuse a potential juror deceased beneficiary are to receive the during jury selection without having to property per stirpes, Julie will receive give a reason. Each party to a lawsuit one-half of the property, and Alan’s gets a set number of peremptory two children will share his half in challenges. (Compare: challenge for equal shares (through Alan by right of cause) representation). peremptory norm See: jus cogens percipient witness A witness who testifies about things she or he actually peremptory writ of mandate (or perceived. For example, an eyewitness. mandamus) A court order to any governmental body, government per curiam By the court. It usually refers official, or a lower court requiring that to a decision made by the court as a the body, official, or court perform an whole, rather than by a specific judge.

315 perfect

act the court finds is an official duty perjury The crime of intentionally lying required by law. (Compare: alternative after being duly sworn to tell the writ of mandate) truth by a notary public, court clerk, or other official. This false statement perfect (per-fect) To take all required may be made in testimony in court, steps to achieve a legal result. For administrative hearings, depositions, example a mechanic’s lien is perfected or answers to interrogatories, as well as by filing a lawsuit and obtaining a by signing or acknowledging a written judgment. legal document (such as an affidavit, perfected Having completed all neces­ declaration under penalty of perjury, sary legal steps to achieve a result, such deed, license application, or tax return) as completing and filing the necessary known to contain false information. documents to record a security interest. PERM Stands for Program Electronic (See also: perfect) Review Management, also known as perform To fulfill one’s obligations under labor certification. a contract. permanent disability A physical or performance Fulfillment of an obligation mental disability that indefinitely required by contract. Performance of a impairs a worker’s ability to perform contract may be demanded in a lawsuit the duties or normal activities that the (specific performance) and it may also worker performed before the accident be short of full performance (part or or serious illness. partial performance). permanent injunction A court order that perjurer A person who intentionally a person or entity take certain actions lies while under an oath administered or refrain from certain activities. A by a notary public, court clerk, or permanent injunction is typically issued other official, and thus commits the once a lawsuit over the underlying crime of perjury. A perjurer may activity is resolved, as distinguished commit perjury in oral testimony or from a preliminary injunction, which is by signing or acknowledging a written issued while the lawsuit is pending. legal document (such as an affidavit, permanent injury Physical or mental declaration under penalty of perjury, damage that will indefinitely restrict deed, license application, or tax return) the employment or other normal knowing the document contains false activities of an individual. In a lawsuit information. (See also: perjury)

316 personal property

to recover damages caused by the personal effects An expression often negligence or intentional wrongful act found in wills to refer to the personal of another, a permanent injury can be property that the will maker owns a major element in an award of general at death. For example, “I leave my damages. personal effects to my daughter Jane.” permanent resident See: lawful perma- personal financial responsibility nent resident (LPR) counseling A class intended to teach budgeting and debt management skills permit A license or other document to those who have filed for bankruptcy. given by an authorized public official Under the 2005 bankruptcy law, or agency—for example, a building someone who files for bankruptcy must inspector or the department of motor get personal financial responsibility vehicles—that allows a person or busi- counseling before he or she can receive ness to perform certain acts. Permits a bankruptcy discharge. are intended to guarantee that laws and regulations are obeyed, but they also personal guardian See: guardian of the are a source of public revenue. person perpetuity Forever. See also: rule against personal injury An injury not to property, perpetuities but to the body, mind, or emotions. For example, if you slip and fall on per se Latin for “by itself,” meaning a banana peel in the grocery store, inherently. Thus, a published writing personal injury covers any actual which falsely accuses another of being physical harm (broken leg and bruises) a convicted felon is libel per se, without you suffered in the fall as well as the further explanation of the meaning of humiliation of falling in public, but not the statement. the harm of shattering your watch. person 1) A human being. 2) A corpora- personal injury recovery The amount tion treated as having the rights and that comes from a lawsuit or insurance obligations of a person. Counties and settlement to compensate someone cities can be treated as a person in the for physical and mental suffering, same manner as a corporation. How- including injury to body, injury to ever, corporations, counties, and cities reputation, or both. cannot have the emotions of humans, such as malice, and therefore are not personal property All property other liable for punitive damages. than land and buildings attached to

317 personal representative

land. Cars, bank accounts, wages, of his or her own. For example, Fred securities, a small business, furniture, leaves his house jointly to his son insurance policies, jewelry, patents, Alan and his daughter Julie. But Alan pets, and season baseball tickets are all dies before Fred, leaving two young examples of personal property. Personal children. If Fred’s will states that property may also be called personal heirs of a deceased beneficiary are to effects, movable property, goods and receive the property “per stirpes,” Julie chattel, and personalty. (Compare: real will receive one-half of the property, estate) and Alan’s two children will share his half in equal shares (through Alan personal representative An alternative by right of representation). If, on the term for the executor or administrator other hand, Fred’s will states that the of an estate, commonly used in states property is to be divided per capita, that have adopted a law called the Julie and the two grandchildren will Uniform Probate Code. each take a third. personal service A method for the formal delivery of court papers in which the papers are placed directly into “It is not desirable to cultivate a respect the hands of the person to be served. for the law, so much as for the right.” (Compare: substituted service) —Henry David Thoreau personal services In contract law, the talents of a person such as an artist petition 1) A formal request for some­ or actor that are unusual, special, thing, submitted to an authority such or unique and cannot be performed as a court or a government agency. exactly the same by another person. For example, the party who loses a The value of personal services is greater court case might petition to appeal. than general labor; for instance, 2) Making a formal request of a court woodcarving is personal service and or presenting a written request to an carpentry is general labor. organization’s governing body signed by personalty See: personal property one or more members. per stirpes Under a will, a method of petitioner 1) A person who signs a determining who inherits property petition. 2) Sometimes a synonym for when a beneficiary has died before plaintiff, used almost universally in some the will maker, leaving living children states and in others for certain types of lawsuits, most commonly divorce

318 picketing

and other family law cases. 3) Someone physical custody The right of a parent who sponsors an immigrant or non­ to have a child live with him or her. immigrant for a green card or visa. In a divorce, physical custody may be either “sole” or “joint.” (Compare: legal petit jury An old-fashioned name for the custody) jury sitting to hear a lawsuit or criminal prosecution, called petit (small) to physical incapacity The inability of a distinguish it from a grand jury, which spouse to engage in sexual intercourse has other duties. with the other spouse. In some states, physical incapacity is a ground for an pet trust A trust set up to benefit one annulment or fault divorce, assuming or more pets. Allowed by law in most the incapacity was not disclosed to the states, these trusts typically name a other spouse before the marriage. trustee to handle the money left for the pets and a caregiver to provide day-to- physician-assisted suicide See: assisted day care. suicide petty larceny A term used in many physician-patient privilege The right to states for theft of a small amount of withhold evidence in a trial or other money or objects of little value (such legal proceeding on the basis that any as less than $500). It is distinguished information disclosed by a patient to from grand larceny which is theft of a doctor for the purpose of diagnosis property of greater worth, which is a or treatment is confidential (unless the felony punishable by a term in state patient consents to disclosure). prison. Petty larceny is a misdemeanor picketing Protesting, typically by stand­ punishable at maximum with a term in ing outside of a business or workplace the county jail. to publicize a dispute or incident phishing A form of Internet fraud in occurring there. Sometimes, picketers which a fake website or email is made want to persuade others not to enter to resemble a legitimate one, in order to the place they are picketing (as might steal valuable information such as credit be the case with workers on strike or cards, Social Security numbers, user antiabortion protesters outside of an IDs, and passwords. “Spear phishing” abortion clinic). Picketing may also is a fraudulent email targeted at a happen online, as when IBM’s campus specific group, often employees of a on the Second Life website was picketed large company or users of a networking by avatars of IBM employees. website.

319 piercing the corporate veil piercing the corporate veil See: piercing piracy 1) Crimes of robbery, kidnapping, the veil and similar activities on the high seas. The trial and punishment of such piercing the veil A judicial doctrine that pirates may be under international allows a plaintiff to hold otherwise law or under the laws of the particular immune corporate shareholders nation where the pirate has been personally liable for the debts of or captured. 2) A colloquial term without damages caused by a corporation legal significance often used to under their control. The corporate describe willful copyright, patent, and veil can be pierced when shareholders trademark infringement. have acted intentionally and illegally, when the corporation has neglected PITI Abbreviation for the major expenses corporate formalities, and/or when the that make up a mortgage payment: corporation is found to be a mere alter principal (the amount borrowed), ego of the shareholders (a shield set interest, (property) taxes, and (home­ up to defraud creditors). This doctrine owners’) insurance. applies to limited liability companies as PKPA See: Parental Kidnaping Prevention well. Also known as disregarding the Act corporate entity. plagiarism Deliberately passing off pilferage The act of theft. Also used to somebody else’s original expression or refer to the items stolen—for example, creative ideas as one’s own. Plagiarism “He hid the pilferage in his car.” can be a violation of law if copyrighted pimp A person who procures a prostitute expression is taken. Often, however, for customers or vice versa, usually plagiarism does not violate any law but sharing the profits of the prostitute’s marks the plagiarist as an unethical activities. A pimp commits the crime of person in the political, academic, pandering. or scientific community where the plagiarism occurs. pink slip 1) Slang for notice from an employer that one is being fired or plain error When a trial court makes an laid off. 2) Slang for the official title error that is so obvious and substantial certificate to a vehicle, because in some that the appellate court should address states the document is or was pink. This it, even though the parties failed to is the source of the phrase “racing for object to the error at the time it was pinks,” when the winner of a car race made. wins ownership of the loser’s car.

320 plead plaintiff The person, corporation, or plea An accused defendant’s formal other legal entity that initiates a lawsuit answer to criminal charges. Typically seeking damages, enforcement of a defendants enter one of the following contract, or a court determination of pleas: guilty, not guilty, or nolo rights. In certain states and for some contendere. A plea is usually entered types of lawsuits, the term petitioner is when charges are formally brought used instead of plaintiff. (at arraignment). (See also: nolo contendere) plaintiff’s attorney A lawyer who regularly represents people who are suing for damages. “The ardor and stress of conflict are not plain view doctrine The rule that allows favorable to abstract considerations of a law enforcement officer to seize justice.” evidence of a crime, without obtain­ —Chief Justice Harlan F. Stone ing a search warrant, when that evidence is in plain sight. For example, a policeman who stops a motorist plea bargain A negotiation between the for a minor traffic violation and sees defense, prosecution, and the judge that a handgun on the back seat may settles a criminal case short of trial. conclude that the driver is unlawfully The defendant typically pleads guilty in possession of the gun, and may enter to a lesser crime or fewer charges than the car to seize it. originally charged, in exchange for a guaranteed sentence that is shorter Plan for Achieving Self-Support (PASS) A than what the defendant would face plan approved by SSI that allows an SSI if convicted at trial. The prosecution recipient to own otherwise countable gets the certainty of a conviction and a resources as part of an effort to become known sentence; the defendant avoids self-supporting. the risk of a higher sentence; and the plant patent A patent issued for new judge gets to move on to other cases. strains of asexually reproducing plants. plead 1) In civil lawsuits and petitions, Plant patents last for 20 years from the filing of any document (pleading) the date the patent is filed. Certain or the act of making an assertion or sexually reproduced plants also may allegation in a legal proceeding. 2) In be protected under the Plant Variety criminal law, the entry of plea of a Protection Act of 1970 for periods defendant in response to each charge of ranging from 18 to 25 years. criminal conduct.

321 pleading pleading Any legal document filed in a points and authorities The legal and lawsuit, including the complaint, peti- factual basis for an argument in a tion, answer, demurrer, motion, decla- lawsuit. A party who wants the judge ration, and memorandum of points and to rule a particular way on a motion authorities (written argument citing often must submit a memorandum of precedents and statutes). points and authorities, in which the party argues that the facts, statutes, and plea in abatement A pleading by the relevant precedents support that party’s defendant, as a response to a plaintiff’s position. claim, where the defendant does not dispute the plaintiff’s claims but objects poison pill A defensive strategy for to its form or the time or place where avoiding a hostile takeover in which a it is asserted, thereby having an excuse company offers low-price stock to its which a judge should consider because current shareholders in order to dilute it could affect the judge’s sentence. the shares and make it more expensive for another company to buy them out. pledge To deposit personal property as security for a personal loan of money. police court A court that handles minor If the loan is not repaid when due, criminal offenses, and that conducts the personal property pledged shall be hearings for more serious criminal forfeit to the lender. The property is cases, to determine whether there is known as collateral. (See also: pawn) enough evidence to send the case to a higher court for trial. plenary Full, complete, covering all matters, often referring to an order, police powers The fundamental right of a hearing, or trial. government to make all necessary laws. In the United States, state police power Plessy v. Ferguson (1896) U.S. Supreme comes from the Tenth Amendment to Court decision in which the Court the Constitution, which gives states the ruled, despite a vigorous dissent by rights and powers “not delegated to the Justice John Harlan, that “separate United States.” States are thus granted but equal” facilities for blacks were the power to establish and enforce constitutional, which remained the laws protecting the welfare, safety, and rule until Brown v. Board of Education health of the public. (1954). political question A question that a court PMI See: private mortgage insurance declines to consider because it more POD See: payable-on-death designation properly belongs before the legislative

322 posse comitatus

or executive branch of the federal or Ponzi scheme A crooked investment state government. arrangement by which investors, lured by the promise of outsized returns, are poll 1) The process of casting and paid from money contributed by new recording votes in an election. Also investors, not from the profits earned the results of an election. 2) To receive by their investments. A Ponzi scheme votes—for example, a candidate is is the same as a pyramid scheme. The said to “poll” a certain number of term “Ponzi scheme” is used primarily votes. 3) The place where votes are cast in the United States, where it was and recorded in an election. Often named after Charles Ponzi, who used referred to as “the polls.” 4) A survey a pyramid scheme to take millions of of individual opinions on a given topic. dollars from investors in 1920. Also, the process of collecting these opinions. pooled trust A special needs trust operated by a nonprofit organization poll book A list of all the registered voters for the benefit of several beneficiaries. in a voting district. Assets are jointly managed and polygamy Having more than one wife or invested. SSI does not consider pooled husband at the same time, usually more trust funds donated by a third party for than just two (which is bigamy). It is a a beneficiary to be a resource available crime in all states. to the beneficiary. polygraph A lie detector device that tests pornography Photographs, films, books, a person’s physiological response (for or other material depicting erotic or example, changes in blood pressure sexual acts designed to cause sexual and respiration) to questioning. The arousal. Pornography is protected test’s reliability is a matter of ongoing by the First Amendment free speech controversy, and in most U.S. states provisions unless it is found to be polygraph test results are not admissible obscene. in court. positive law Statutory man-made law, POMS Program Operations Manual as compared to natural law, that is System, a set of guidelines issued by purportedly based on universally the Social Security Administration to accepted moral principles or derived help lower-level employees interpret the from nature and reason. federal statutes and regulations that posse comitatus (pah-see kom-i-tah- t u h s ) govern the SSI and Medicaid programs. Latin for “power of the county.” The

323 possess

power of the sheriff to call upon any forever for health care. If the building able-bodied citizens to help keep the is no longer used for that purpose, the peace or apprehend a criminal. property will revert to the estate of the original grantor. possess To own, have title to, occupy, physically hold, or have under exclusive post 1) To place a notice prominently. control. In describing the estate of For example, employers are required to a deceased, wills sometimes use the post notices about employee rights in a phrase “of which I die possessed.” conspicuous location. 2) To mail. 3) To record a payment on a particular date. possession Any article, object, asset, or For example, when you pay a credit property which one owns, occupies, card bill, your next statement will show holds, or has under control. you the date payment was “posted to your account.” “America is the paradise of lawyers.” postdated check A check that is dated in —Justice David J. Brewer the future, so it cannot be cashed until that date. post hoc The phrase represents the faulty possession of stolen goods The crime of logic of assuming that one thing was possession of goods which one knows caused by another merely because it or which any reasonable person would followed that prior event in time. From realize were stolen. It is generally a the Latin phrase post hoc, ergo propter felony. hoc, which means “after this, therefore possessory interest In real estate, the because of this.” right of a person to occupy and/or posthumous child A child born after the exercise control over a particular plot of death of his or her father. land; distinguished from an ownership interest. For example, a tenant with posting The act of entering financial a long term lease has a possessory transactions into bookkeeping records interest, but not an ownership interest. or transferring data to a general ledger. possibility of a reverter The potential postjudgment interest Interest on a that the title to a real property interest court judgment that a creditor can will return to the original grantor. collect from the time the judgment is For example, a gift of a building to a entered in the court clerk’s record until hospital on condition that it be used it is paid.

324 practice post mortem Latin for “after death,” else’s property, usually property held an examination of a dead body to in a trust. Most trustees can distribute determine cause of death, generally the income from a trust only accord- called an autopsy. ing to the terms of the trust, but a trustee with a power of appointment pot Slang for marijuana. can choose the beneficiaries, sometimes pot trust A trust for children in which from a list of candidates specified by the trustee decides how to spend money the grantor. For example, Karin cre- on each child, taking money out of ates a trust with power of appointment the trust to meet each child’s specific to benefit either the local art museum, needs. One important advantage of symphony, library, or park, depending a pot trust over separate trusts is that on the trustee’s assessment of need. it allows the trustee to provide for power of attorney A document that gives one child’s unforeseen need, such as another person legal authority to act a medical emergency. But a pot trust on your behalf. If you create such a can also make the trustee’s life difficult document, you are called the principal, by requiring choices about disbursing and the person to whom you give funds to the various children. Most this authority is called your agent or pot trusts end when the youngest child attorney-in-fact. If you make a durable reaches a certain age, usually 18 or 21. power of attorney, the document will pour-over will A will that “pours over” continue in effect even if you become property into a trust when the will incapacitated. (See also: durable power maker dies. A pour-over will is intended of attorney for finances, durable power to guarantee that any assets which of attorney for health care, general somehow were not included in the trust power of attorney, limited power of become assets of the trust upon the attorney, special power of attorney) party’s death. Property left through the PPA See: provisional patent application will must go through probate before it goes into the trust. practicable When something can be done or performed. power of acceptance The legal ability to consent to an offer and create a binding practice 1) Custom or habit—for ex- contract. ample, “It is the practice in the industry to confirm orders before shipping.” 2) A power of appointment The legal author- legal business—for example, “Her law ity to decide who will receive someone practice is located on 4th Street.”

325 praecipe praecipe (pree-suh-pee or pres-uh-pee) once the California Supreme Court 1) A written order (also called a writ) decided that employers may fire an that commands a defendant to do employee who fails a drug test because something or to show why it should not of his use of medical marijuana, all be done. 2) A written request for court lower courts in California must follow action—for example, setting a trial date this rule. or entering a judgment. predatory lending Any type of unscrup­ pray To formally request judicial judg­ ulous lending practice where a lender ment, relief, or damages at the end of a takes advantage of a borrower. It pleading. usually involves borrowers taking on high-cost loans they cannot afford to prayer for relief What the plaintiff in a pay over time because the loans were lawsuit asks of the court—for example, based on the borrowers’ assets and not monetary damages, an injunction to on their ability to repay the debt. Low- make the defendant stop a certain income, elderly, or otherwise vulnerable activity, or both. The plaintiff usually people are often the target of this type makes a “special prayer” for specific of lending. While there are laws against relief (for example, a monetary amount certain specific types of predatory lend- to recover for an injury), and then ing practices, the term is often used as follows with an unspecific “general a catchall for any fraudulent, abusive, prayer” to recover any additional discriminatory, or deceptive lending amount not specified that a court practice. decides is appropriate. predecease To die before someone else. precatory Suggested or recommended, For example, in a will: “If Harry should but not binding. For example, language predecease me, I leave his share of my in a will or trust that says “I hope my estate to his son, Eugene.” daughter will keep the house in the family” is precatory and not legally predeceased spouse In the law of wills, a binding on the daughter who inherits spouse who dies before the will maker the house. while still married to him or her. precedent An opinion of a federal or pre-dup The equivalent of a prenuptial state court of appeals establishing a agreement, sometimes abbreviated to legal principle or rule that must be “prenup,” for couples registering as followed by lower courts when faced domestic partners in states that allow it. with similar legal issues. For example,

326 preliminary hearing preemption 1) The principal that a where the U.S. citizen is at least 21 federal law supersedes a state law (and a years old. Preference relatives must state law supersedes a local law) where usually wait to get a green card, because both governments have made laws on only around 480,000 are available to the same subject and the laws conflict. them in total each year. They must 2) The right of purchasing before others wait in line based on their priority (for example, a preemptive right). date, which is the date when their U.S. citizen or permanent resident petitioner preemptive right The right of a first filed a visa petition indicating shareholder in a corporation to have willingness to sponsor the immigrant. the first opportunity to purchase a new issue of stock of that corporation preferred dividend A payment of a in proportion to the amount of stock corporation’s profits to holders of already owned by the shareholder. preferred shares of stock. (See also: preferred stock) preference In bankruptcy, a debtor’s payment to a creditor within a defined preferred stock A class of stock giving its period of time before filing for holders priority in receiving dividends bankruptcy—three months for regular and a share of assets upon liquidation commercial creditors and one year for of the corporation, but no voting rights. insider creditors, such as friends, family (Compare: common stock) members, and business associates. Pregnancy Discrimination Act A federal Because a preference gives that creditor law that prohibits discrimination an edge over other creditors in the against employees based on the basis bankruptcy case, the bankruptcy of pregnancy, childbirth, or related trustee can get the preference back and medical conditions. distribute it among all of the creditors. prejudgment interest The interest a preference relative An immigration term creditor is entitled to collect under a for certain people who may be eligible loan agreement or by law before going for U.S. permanent residence (a “green to court and obtaining a judgment card”) based on family relationships. against the debtor. Preference relatives include the married children of U.S. citizens, children preliminary hearing In criminal law, over 21 of U.S. citizens, the spouses a hearing to determine if a person or children of U.S. green card holders, charged with a felony (a serious crime and brothers and sisters of U.S. citizens punishable by a term in the state

327 preliminary injunction

prison) should be tried for the crime Premeditation is an element in first charged. To bind the defendant over for degree murder and shows intent to trial, the judge must decide that there is commit that crime. (See also: malice substantial evidence that the defendant aforethought, murder, first degree committed the offense. murder) premises A real estate term for land and Anatomy of a Murder. (1959) Classic the improvements on it, including a courtroom thriller (and good legal building, store, apartment, or other research) written by a justice of the Michigan designated structure. supreme court. Jimmy Stewart, Lee Remick, premium 1) An extra payment for an Ben Gazzara, Arthur O’Connell, Eve Arden, act, option, or priority. 2) Payment for George C. Scott. insurance coverage either in a lump sum or by installments. preliminary injunction A court order prenatal tort A tort involving injury to early in a lawsuit that prohibits the an unborn person. parties from taking a disputed action prenuptial agreement An agreement until the court can decide the merits made by a couple before marriage of the case. For example, if a lawsuit that controls certain aspects of their is filed challenging the validity of a relationship, usually the management new government regulation, the court and ownership of property, and some­ might issue a preliminary injunction times whether alimony will be paid if preventing the government from the couple later divorces. Courts usually enforcing the regulation until the court honor premarital agree­ments unless one can decide whether the regulation is person shows that the agreement was valid. Generally, the party seeking a likely to promote divorce, was written preliminary injunction must show a with the intention of divorcing, or substantial likelihood of success on the was entered into unfairly. A prenuptial merits of the lawsuit and a substantial agreement may also be known as a threat of irreparable harm if the premarital agreement, antenuptial injunction is not granted. agreement, or simply a “prenup,” for premarital agreement See: prenuptial short. agreement prepayment penalty A fee imposed on a premeditation Planning, plotting, or borrower who pays off a loan (usually a deliberating before doing something. mortgage) before its due date. Lenders

328 presumed abuse

impose this kind of fee to encourage hikers have been using a trail through borrowers to hold a debt—and keep your backyard for ten years and you’ve paying interest on it—for the whole never complained, they probably have term of the loan. an easement by prescription through your yard to the trail. preponderance of the evidence The burden of proof required in a civil (non- presenteeism When employees come criminal) action to convince the court to work despite illness or injury that that a given proposition is true. The should have kept them home. plaintiff must convince the judge or presentment 1) A demand for payment jury by a preponderance of the evidence of a promissory note when it is due. that the plaintiff’s version is true—that 2) A formal written accusation to a is, over 50% of the believable evidence court by a grand jury, made on its is in the plaintiff’s favor. (Compare: own initiative without a request or reasonable doubt) presentation of evidence by the local preregistration agreement The equiva- prosecutor. lent of a prenuptial agreement for presiding judge In most courts, the couples (mostly same-sex) in states that judge who directs the management allow registration as domestic partners of the courts, including making or civil union partners. policy decisions for the court, making prerogative writ An antiquated term assignments of judges to specialized for any writ (court order) directed to courts, overseeing the calendar, and government agencies, public officials, or facilitating meetings of the judges. another court. (See: mandamus) presumed abuse In a Chapter 7 bank- prescription The method of acquiring an ruptcy, when the debtor’s current interest in real property by continuous monthly income exceeds the family and open use, in opposition to the median income for his or her state, and rights of the owner. (See also: adverse the debtor cannot pass the means test, possession, easement by prescription) the court will presume that the debtor has enough income to fund a Chapter prescriptive easement A right to use 13 plan. In this situation, the debtor property, acquired by open and obvious will not be allowed to proceed with a use, without the owner’s permission, Chapter 7 bankruptcy unless the debtor over a minimum period of time can prove that he or she is not abusing established by state law. For example, if the Chapter 7 bankruptcy remedy.

329 presumed maximum value presumed maximum value (PMV) The pretrial discovery See: discovery presumed value of food or shelter prevailing party The winner in a lawsuit. provided to an SSI recipient by a third party. The PMV is the amount of the price fixing A criminal violation of federal portion of the SSI grant plus federal antitrust statutes, in which $20. The recipient can prove that the several competing businesses agree to value is in fact less. set prices for their products to prevent real competition and keep the public presumption A rule of law that permits from benefiting from price competition. a court to assume a fact is true until (See also: antitrust laws) such time as there is a preponderance of evidence which disproves or outweighs prima facie (pree-mah fey-shah) Latin the presumption. A presumption shifts for “at first look” or “on its face.” A the burden to the opposing party to prima facie case is one that at first prove that the assumption is untrue. glance presents sufficient evidence for the plaintiff to win. The defendant presumption of innocence One of the must refute the case in some way for most sacred principles in the American him to have a chance of prevailing at criminal justice system, holding that trial. For example, if you can show a defendant is innocent until proven that someone intentionally touched guilty. In other words, the prosecution you in a harmful or offensive way and must prove, beyond a reasonable doubt, caused some injury to you, you have each essential element of the crime established a prima facie case of battery. charged. However, this does not mean that pretermitted heir A child who is you automatically win your case. The not mentioned in a will and whom defendant would win if he could show the court believes was accidentally that you consented to the harmful or overlooked by the person who made offensive touching the will. For example, a child born or prima facie case See: prima facie adopted after the will is made may be deemed a pretermitted heir. If the court prime suspect The person whom law determines that an heir was accidentally enforcement officers believe most omitted, that heir is entitled to receive probably committed a crime being the same share of the estate as he or she investigated. would have if the deceased had died primogeniture Latin for “first born.” without a will. A pretermitted heir is Feudal England (and many other sometimes called an omitted heir.

330 priority

places) practiced male primogeniture, mark considered immune from legal the practice of giving the oldest son the challenge after five years of continuous entire estate of his parents (or nearest use. ancestor). If there was no male heir, prior(s) Slang for past convictions. A the daughters inherited the property in defendant with “priors” may face equal shares. The intent was to preserve an enhanced sentence for a current large properties from being broken offense, as happens when a defendant up into small holdings, which might convicted of driving under the weaken the power of nobles. influence reoffends, thus earning the principal 1) In commercial law, the total mandatory jail sentence provided for amount of a loan, not including any repeat offenders. In order to impose an capitalized fees or interest. 2) When enhanced sentence in a current case, creating a power of attorney or other the prosecutor must plead, or allege, legal document, the person who the past conviction, and prove that it appoints an attorney-in-fact or agent happened. to act on his or her behalf. 3) In the prior art In patent law, all technology law of trusts, the property of the trust, and publications available before the as opposed to the income generated date of invention or anything available by that property. The principal is also about the invention more than one year known as the trust corpus (that’s Latin prior to filing the application. A patent for “body”). 4) In criminal law, the will not issue if prior art is uncovered main perpetrator of a crime. by a patent examiner that demonstrates principal place of business The office of somebody already came up with the a business where the books and records same idea—that is, all of the significant are kept and where executives manage elements in the applicant’s innovation the company. were embodied in an existing innovation. Principal Register The primary list on which trademarks that meet certain priority The right to be ahead of the federal filing standards are placed. The rights or claims of others. In bank­ benefits of getting a mark placed on the ruptcy law, the right to collect before Principal Register include the notice other creditors is given to taxing to potential copiers that your mark is authorities, the holders of court judg- valid and protected, the right to sue to ments, secured creditors, bankruptcy stop copying, and the right to have the trustees, and bankruptcy attorneys.

331 priority date

The right can also apply to mortgages, defamatory, or represents a clear and deeds of trusts, or liens, which are given present danger—a theory articulated priority in the order they were recorded. by the U.S. Supreme Court in Near v. Minnesota (1931). priority date An immigration law term meaning the date on which a petition privacy The right to be free of for immigration or a labor certification unnecessary public scrutiny, or to be let is first filed. The priority date is used to alone. mark the intending immigrant’s place private annuity An arrangement under in the green card waiting list (a list which a parent transfers assets to a that tends to exist in every green card trust for children or grandchildren category that’s subject to an annual and in return gets regular lifetime numerical limit). Each month, the payments (an annuity). Under certain U.S. Department of State publishes circumstances, the trust assets won’t be a “Visa Bulletin” with an updated subject to estate tax when the parent list of priority dates, meaning that dies. anyone with a date that matches or is earlier than the dates on that list can private carrier A business that transports stop waiting and continue with their goods or services for a fee but is under application for a green card. no obligation to do business with the general public. (Compare: common priority debt A type of debt that is carrier) paid first if any creditors are paid in a Chapter 7 bankruptcy case, and private mortgage insurance Insurance must be paid in full in a Chapter 13 that reimburses a mortgage lender if bankruptcy case. Priority debts include the buyer defaults on the loan and the alimony and child support, wages owed foreclosure sale price is less than the to employees, and fees owed to the amount owed the lender (the mortgage trustee and the debtor’s bankruptcy plus the costs of the sale). A home attorney. buyer who makes less than a 20% down payment may have to purchase prior restraint Government action that private mortgage insurance, commonly prevents a publication or broadcast. referred to as PMI. Prior restraints are considered a violation of the First Amendment and private nuisance An activity or thing that are rarely permitted except in cases interferes with the use of property by in which the publication is obscene, an individual (or a few individuals) by

332 probable cause

­being irritating, offensive, or obstructive. the witness revealing criminal activity Nuisances can include everything from and/or being criminally prosecuted. noise and illegal gambling to posting This right is guaranteed in the Fifth indecent signs and misdirecting water Amendment to the Constitution, but is on to other property. Conditions that waivable under certain circumstances. affect an entire community are a public privileged communication See: nuisance. Lawsuits may be brought to confidential communication abate (remove or reduce) a nuisance. Privileges and Immunities Clause A provision found in Article IV of the “Common sense often makes good law.” U.S. Constitution that prohibits states —Justice William O. Douglas from discriminating against those who are not state citizens or from favoring its own citizens over citizens of other private property Land that is not owned states. The Privileges and Immunities by the government or dedicated to Clause has been interpreted to create public use. The owner of private a right to travel, in that it allows property has the right to manage and citizens of one state to go to another control it—for example, by using, state and enjoy the same privileges and selling, mortgaging, or exchanging it. immunities as that state’s citizens. private road A road or driveway on privity A legal relationship between two privately owned property, limited to parties based on contract, estate, or the use of the owner or a group of other lawful status, that confers certain owners who share the use and maintain rights or remedies. For example, parties the road without help from the town, that are in privity of contract can city, county, or state. (See also: public enforce the contract or obtain remedies easement) based on it. privilege A special benefit, exemption probable cause The amount and quality from a duty, or immunity from penalty, of information police must have before given to a particular person, a group, or they can search or arrest without a a class of people. warrant. Most of the time, police must present their probable cause to a judge privilege against self-incrimination A or magistrate, whom they ask for a witness’s right to refuse to testify in search or arrest warrant. Information is court if the testimony might result in

333 probate

reliable if it shows that it’s more likely figures out who inherits under state than not that a crime has occurred and law. It then oversees a procedure to the evidence sought exists at the place pay the deceased person’s debts and named in the search warrant, or that to distribute the assets to the proper the suspect named in the arrest warrant inheritors. (See also: probate) has committed a crime. probate estate Property of a deceased probate The court-supervised process person that goes through probate court following a person’s death that includes proceedings before being distributed to proving the authenticity of the deceased those who inherit it. person’s will, appointing someone to probation A type of sentence for a crimi- handle the deceased person’s affairs, nal offense. The probationer (convicted identifying and inventorying the person) is sentenced to jail, but that deceased person’s property, paying sentence is suspended for a period of debts and taxes, identifying heirs, months or years while the probationer and distributing the deceased person’s is released into the community subject property according to the will or, if to certain conditions of behavior. Com- there is no will, according to state mon conditions of probation include law. Formal probate is a costly, time- performing public service work, pay- consuming process that is best avoided ing a fine, maintaining good behavior, if possible. Most states now offer receiving therapeutic services, paying simplified probate procedures for restitution to a victim, and reporting estates of relatively small value. (See regularly to a probation officer. If the also: administrator, executor, personal probationer fails to comply with the representative) conditions of probation, the probation probate court A specialized court office may have the person arrested and or division of a state trial court brought before a judge for a probation that considers cases concerning the hearing. A judge who finds that proba- distribution of deceased persons’ tion conditions have not been met can property and the appointment of revoke probation and impose the origi- guardians for children or adults who nal sentence. (Compare: parole) need care and supervision. Called probative Tending to prove something. “surrogate’s court” in New York and Courts can exclude evidence that is not several other states, this court normally probative (does not prove anything). examines the authenticity of a will or, if a person dies without a will (intestate), probative facts See: probative

334 process server probative value The term used to rule or series of steps that governs a describe the weight of evidence civil lawsuit or criminal prosecution. submitted to prove something. (See also: civil procedure, criminal Courts may exclude evidence when its procedure) probative value is outweighed by the proceeding 1) The ordinary process of a prejudice the evidence may cause. For lawsuit or criminal prosecution, from example, a prosecutor in a criminal case the first filing to the final decision. 2) A may wish to introduce the previous procedure through which one seeks criminal conduct of a defendant to redress from a court or agency. 3) A show a propensity to commit the crime filing, hearing, or other step that is at issue, but that must be weighed part of a larger action. 4) A particular against the right of the accused to be matter that arises and is dealt with in a tried on the facts of the present case. bankruptcy case. pro bono Short for pro bono publico, proceeds for damaged exempt property Latin “for the public good,” legal work In bankruptcy, money received through performed by lawyers without pay, insurance coverage, arbitration, often to help those without financial mediation, settlement, or a lawsuit to ­resources to pay for services, or to pay for exempt property that has been ­support social causes such as environ­ damaged or destroyed. For example, if mental, youth, battered women, or a debtor had the right to use a $30,000 other educational organizations or homestead exemption, but his or her charities. home was destroyed by fire, the debtor procedural law Law that establishes the may instead exempt $30,000 of the rules of the court and the methods used insurance proceeds. to ensure the rights of individuals in process 1) The legal means by which the court system. In particular, laws a person is given notice of a legal that provide how the business of the proceeding or required to appear in court is to be conducted. (Compare: court. (See also: service of process) substantive law) 2) Proceedings in a legal matter. procedure 1) A method or act that process server A person who delivers furthers a legal process. Procedures papers informing another person include filing complaints, serving or business of a pending lawsuit or documents, setting hearings, and requirement to appear in court. (See conducting trials. 2) The established also: process, service of process)

335 proctor proctor A term in admiralty law, professional negligence See: malpractice referring to a lawyer. proffer To offer evidence for admission at product liability The responsibility trial. of manufacturers, distributors, and profit and loss statement A spreadsheet sellers of products to the public, to showing a business’s gross income and deliver products free of defects that expenses, used to determine the net harm someone and to make good profit or loss for a specific period. on that responsibility if the products are defective. Defective products might include faulty auto brakes, “Law is a bottomless pit.” contaminated baby food, exploding —John Arbuthnot bottles of beer, flammable children’s pajamas, or products that lack proper label warnings. A key feature of product profit margin See: margin liability law is that a person who suffers harm need not prove negligence, pro forma Latin for “as a matter of because the negligence is presumed form.” In the courts, a ruling made as and the result is strict liability (absolute a formality, intended to move matters responsibility) on the seller, distributor, along. and manufacturer. pro hac vice (proh hock-vee-chay) Latin professional corporation A type of meaning “for this one particular corporation authorized by state law occasion.” The phrase usually refers for a fairly narrow list of licensed to an out-of-state lawyer who has professions, including lawyers, doctors, been granted special permission to accountants, many types of higher- participate in a particular case, even level health providers, and sometimes though the lawyer is not licensed to architects. A professional corporation practice in the state where the case is does not free an owner from personal being tried. liability for his or her own negligence prohibition See: writ of prohibition or malpractice, but owners are not personally liable for the malpractice of promise 1) A firm commitment to other owners. In some states, limited perform an act, refrain from acting, liability partnerships offer this same or make a payment or delivery. 2) In benefit and may be more desirable for contract law, something of value other reasons. provided in return for the other party’s

336 proper party

promise (both of which are referred or other funding. Some states limit to as consideration). Failure to fulfill the amount of promotional stock the a contractual promise is a breach, for promoter can receive to an amount which the other party may seek legal reasonable for the effort, since it is remedies such as performance and supported by labor alone and not by damages. assets or cash. promissory estoppel A legal principle proof Factual evidence that helps to that prevents a person who made a establish that an event occurred or a promise from reneging when someone statement is true. When someone is else has reasonably relied on the accused of a crime, the government promise and will suffer a loss if the must prove every element, or aspect, promise is broken. (See also: estoppel) of the crime, such as who physically committed the act and whether that promissory note A written promise person did so with the intent to by one party (called maker, obligor, commit the crime. Unless all elements payor, or promisor) to pay a specific of the charged crime are proved, the amount of money (called principal) to prosecution will not prevail. In civil another party (called payee, obligee, cases, too, the plaintiff must prove or promisee), which often includes a every aspect of the complaint. (See also: specified amount of interest on the burden of proof) unpaid principal amount and penalties for failure to pay according to its terms. pro per A term derived from the Latin “in propria persona,” meaning “for promoter A person who puts together one’s self,” used in some states to a new business, particularly a describe a person who handles his or corporation, including the financing; her own case, without a lawyer. In an organizer of a new venture. other states, the term pro se is used. Usually the promoter is the principal When a nonlawyer files his or her own shareholder and receives shares of legal papers, that party is expected promotional stock for organizing the to write “in pro per” under his or her corporation. name in the heading on the first page. promotional stock Shares issued by proper party A person or entity who has a newly formed corporation to a an interest in the subject matter of a promoter (organizer) of the corporation lawsuit and, therefore, can join in the in payment for putting the company lawsuit or may be brought into the suit together and locating shareholders

337 property

by one of the parties to the legal action. include harm to an automobile, a fence, A proper party is distinguished from a tree, a home, or any other possession. a “necessary party” who the court will property guardian See: guardian of the order joined (brought into) the suit. estate Example: Marianne and Issac both use the road on Allen’s property to reach property tax A tax on the value of their vacation cabins. Marianne brings property (usually real estate, but a lawsuit to establish the right to use sometimes personal property as well) the road. Issac could join the lawsuit as levied by a local government. The a proper party. property’s value is usually established by a public assessor. Local government property Anything that is owned by a entities may also impose special person or entity. (See also: community taxes for particular public property property, personal property, public prop- improvements such as sidewalks, tree erty, real property, separate property) planting, or storm drains that benefit property control trust Any trust that property owners. (See also: ad valorem imposes limits or controls over the tax, millage) rights of trust beneficiaries. These property tort A tort involving damage to trusts include 1) special needs trusts property. designed to assist people who have special physical, emotional, or other propria persona See: pro per requirements; 2) spendthrift trusts proprietary Refers to ownership. designed to prevent a beneficiary from wasting the trust principal; and proprietary interest Total or partial 3) sprinkling trusts that allow the ownership in a company. trustee to decide how to distribute proprietary lease An agreement that trust income or principal among the gives a co-op owner the right to occupy beneficiaries. a specific residential unit. property damage Injury to real or proprietary rights Rights that come personal property through another’s with ownership of a business or real negligence, willful destruction, or by an property. act of nature. In lawsuits for damages caused by negligence or a willful act, proprietor The owner of a business property damage is distinguished from operated by that individual as a sole personal injury. Property damage may proprietorship.

338 prostitute proprietorship See: sole proprietorship prosecutor A lawyer who works for the local, state, or federal government to pro rata (proh rat-ah or proh ray-tah) bring and litigate criminal cases. From Latin for “in proportion,” refers to a share to be received or an amount to be paid based on the fractional share Witness for the Prosecution. (1957) of ownership, responsibility, or time An Agatha Christie courtroom thriller used. For example, a buyer of rental with Charles Laughton as a defense barrister property will pay his or her pro rata fighting back from disastrous testimony by share of the property taxes for that Marlene Dietrich against his client (Tyrone portion of the year in which he or she Power). With Elsa Lanchester, Una O’Connor, holds title. Ian Wolfe. pro se (proh say) A Latin phrase meaning “for oneself” or “on one’s own behalf.” prospectus A detailed statement by This phrase describes a party to a a corporation used to describe an law­suit who represents himself or issuance (offer) of stock to the general herself, without a lawyer. It is used in public. A prospectus includes the some states in place of in pro per (or corporation’s financial statements, in propria persona) and has the same information about its directors and meaning. officers, its business plans, any litigation prosecute When a local District Attorney, in progress, its recent performance, state Attorney General, or federal and other matters that would assist United States Attorney brings a a potential investor or investment criminal case against a defendant. adviser to evaluate the stock and the prospects of the company for profit, Prosecuting Attorney See: District loss, or growth. The Federal Securities Attorney, prosecutor Act requires the filing of the prospectus prosecution 1) In criminal law, the with the Securities and Exchange government attorney charging and Commission before any major stock trying the case against a person accused issuance. State laws generally require of a crime. 2) A common term for the similar documentation for some government’s side in a criminal case, issuances of stock within the state. as in “The prosecution will present five prostitute A person who receives witnesses,” or “The prosecution rests” payment for sexual intercourse or (completed its case).

339 prostitution

other sexual acts, generally as a regular be placed in protective custody, as may occupation. a child or other person who may harm others. prostitution The profession of performing sexual acts for money. pro tem Temporarily or for the time Prostitution is a crime throughout the being. A judge pro tem normally refers United States, except for a few counties to a judge who is sitting temporarily for in the State of Nevada. Soliciting acts another judge or to an attorney who has of prostitution is also a crime, called been appointed to serve as a judge as a pandering or simply, soliciting. substitute for a regular judge. pro tanto (proh tan-toh) Latin for “for so pro tempore (proh temp-oh-ray) See: much” or “to that extent.” Often used pro tem to refer to partial payment on a claim protest 1) To complain in a public way (for example, the debt is pro tanto about an act, such as sending troops discharged). overseas, use of the death penalty, or protected characteristic In employment adoption of a regulation or law. 2) To law, a trait that may not be the basis dispute the amount of property taxes, of employment decisions. Under the assessed evaluation of property for federal law, protected characteristics tax purposes, or an import duty. 3) A include race, color, national origin, written demand for payment of the religion, gender (including pregnancy), amount owed on a promissory note that disability, age (if the employee is at least has not been paid or on a check that 40 years old), and citizenship status. was refused by a bank. protected class A group of people pro- prove In a legal proceeding, to present tected by law from discrimination or evidence or logic that makes a fact seem harassment based on their membership certain. in the group. For example, under fed- proving a will Convincing a probate eral law, race, national origin, sex, and court that a document is truly the age are examples of protected classes. deceased person’s will. Usually this is protective custody The confinement of a simple formality that the executor a person by the government, when the or administrator easily satisfies by authorities think it’s necessary for that showing that the will was signed person’s own security or well-being. A and dated by the deceased person in witness who is being threatened may front of two witnesses. When the will

340 prudent person rule

is holographic—that is, completely followed by a condition or requirement handwritten by the deceased and not of the agreement. witnessed, it is still valid in many provocation The act of inciting another states if the executor can produce person to do a particular thing. In relatives and friends to testify that the a fault divorce, provocation may handwriting is that of the deceased. constitute a defense to the divorce, provisional ballot A paper ballot used preventing it from going through. For by a voter when there is some problem example, if a wife suing for divorce in establishing a voter’s eligibility. The claims that her husband abandoned ballot will be counted only if election her, the husband might defend the suit officials determine that the person was on the grounds that she provoked the in fact entitled to vote. abandonment by driving him out of the house. In criminal law, provocation provisional patent application (PPA) can be a defense that justifies an An interim patent application (also acquittal, mitigated sentence, or called a PPA ) that contains only a reduction of conviction to a lesser portion of the information required charge (for instance, from murder to in a regular patent application. If the manslaughter). PPA sufficiently discloses the invention, and a regular patent application is filed proximate cause See: direct and within one year of the PPA’s filing date, proximate cause the inventor gets the benefit of the PPA proxy 1) Someone who is authorized filing date. In addition, the inventor to serve in one’s place at a meeting, gets the full 20-year patent term from and particularly to cast a vote. 2) The the date the regular application is filed. written authority given to someone provisional remedy Any temporary to act or vote in someone’s place. A order of a court to protect a party from proxy is commonly given to cast a irreparable damage while a law­suit or shareholder’s vote at a meeting of petition is pending. (See also: temporary shareholders. restraining order, interlocutory decree, prudent person rule The requirement temporary injunction) that a trustee, a city or county treasurer, proviso A term or condition in a contract a manager of pension funds, or any or title document, which sometimes fiduciary (a trusted agent) must begins with the phrase “provided that” invest funds with discretion, care, and intelligence. Investments that are

341 PTO

generally within the prudent man rule of communication. 2) A method of include solid “blue chip” securities, providing legal notice, usually by secured loans, federally guaranteed means of an approved newspaper in mortgages, treasury certificates, the appropriate county or district. 3) In and other conservative investments defamation (libel and slander), the providing a reasonable return. Some communication of an untrue statement states have statutes that list the types of to anyone other than the victim of the investments allowable under this rule. falsehood. 4) In copyright law, the act of making copies of a work available to PTO See: U.S. Patent and Trademark the public on an unrestricted basis. (See Office also: published work) public 1) The body politic, or the people of a state, nation, or municipality. 2) Under the authority of the govern­ ”Mercy bears richer fruits than strict ment or belonging and available to the justice.” people; not private. It may refer to an —Abraham Lincoln entity, agency, or activity. For example, there are both public and private schools, public and private utilities, public and public benefit corporation A public ben- private hospitals, public and private efit corporation is usually a corporation lands, and public and private roads. created by the government that performs a specific function for the benefit of the public administrator Someone hired by a public, such as a public library or an probate court to administer a deceased adult day center. More broadly, a public person’s estate if no relatives or creditors benefit corporation can mean any corpo- are available to do it. Some states ration created for a charitable purpose, have public administrators who are though these are usually called non- responsible for temporarily preserving profit or not-for profit corporations if the assets of an estate if there are they are not created by the government. disputes about specific provisions in the Some states (California for example) will or about who will be appointed the define any charitable corporation as a regular administrator. public benefit corporation. publication 1) Information conveyed or public charge A general term for a person made generally known to the public who is in economic distress and who regardless of the media or method must be cared for at public expense.

342 public record public corporation 1) A corporation public figure A person of great public whose shares are traded to the general interest or familiarity, such as a govern­ public on a stock exchange. Also ment official, politician, celebrity, known as a publicly held corporation. business leader, movie star, or sports 2) A corporation created to perform hero. Incorrect harmful statements a governmental function, such as a published about a public figure cannot municipal water company or hospital. be the basis of a lawsuit for defamation A public corporation may operate under unless there is proof that the writer or government control or be financially publisher intentionally defamed the independent. person with malice (hate). public defender A lawyer appointed by public nuisance An activity or thing that the court and paid by the county, state, affects the health, safety, or morals or federal government to represent of a community. It is distinguished clients who are charged with violations from a private nuisance, which harms of criminal law and are unable to pay only a neighbor or a few individuals. for their own defense. For example, a factory that spews out clouds of noxious fumes is a public domain The status of any creative public nuisance, but playing drums work, invention, or device that is not at three in the morning is a private protected by copyright law. Such items nuisance bothering only the immediate are available for use without permission. neighbors. Often, works enter the public domain after patent, copyright, or trademark public property Property owned by rights have expired or been abandoned. the government or one of its agencies, divisions, or entities. Commonly a public domain lands Land or interest reference to parks, playgrounds, streets, in land owned by the United States sidewalks, schools, libraries, and other and administered by the Secretary of property regularly used by the general the Interior through the Bureau of public. Land Management. (Compare: public domain) public record Any information, minutes, files, accounts, or other records which public easement The right of the general a governmental body is required to public to use certain streets, highways, maintain, and which must be accessible paths, or airspace, even though the to scrutiny by the public. areas are owned by others.

343 public trust doctrine public trust doctrine The principle that published work When copies of a certain natural and cultural resources copyrighted work are made available are preserved for public use, and that to the public on an unrestricted basis. the government owns and must protect Both published and unpublished works and maintain these resources for the are entitled to copyright protection, public’s use. For example, under this but some of the rules differ. For doctrine, the government holds title example, the duration of a copyright to all submerged land under navigable in an unpublished work made for an waters. Thus, any use or sale of such employer (a work made for hire), or an land must be in the public interest. anonymous or pseudonymous work, can last up to 25 years longer than if public use The right of the public to the work were published. use property taken by the government through the exercise of its power of eminent domain. Any property taken When future president John Adams by eminent domain must be for a came to court in Boston to be sworn public use. Some jurisdictions define in as an attorney he forgot to bring his lawyer public use broadly to mean a public sponsor to attest to his skill and honesty. benefit, while other jurisdictions limit Another attorney stepped forward and swore its meaning to only actual use by the to Adams’s talent, saving the young man public. further embarrassment. public utility Any organization which provides services to the general public, puffery See: puffing although it may be privately owned. Public utilities include electric, gas, puffing The practice of exaggerating telephone, water, and television cable the value of a product, a business, or systems, as well as streetcar and bus property for promotional purposes. lines. Public utilities are allowed Sellers are not generally held liable certain monopoly rights because of for exaggerations that are considered the practical need to service entire puffing. But they can be liable for geographic areas with one system, but misrepresenting the facts of a product. they are regulated by state, county, and (See also: fraud) city public utility commissions under punitive damages See: exemplary damages state laws. publish See: publication

344 pyramid scheme pur autre vie (per o-tra vee) Legal French example, due to failure to complete a meaning “for another’s life.” It is a prior divorce). phrase used to describe the duration put option An option to sell a particular of a property interest. For example, if commodity or security at a certain time Bob is given use of the family house for a certain price. Sometimes simply for as long as his mother lives, he has called a “put.” (Compare: call option) possession of the house pur autre vie. pyramid scheme A crooked investment putative Commonly believed, supposed, arrangement by which investors, lured or claimed. For example, a putative by the promise of outsized returns, are father is one believed to be the father paid from money contributed by new unless proved otherwise; a putative investors, not from the profits earned marriage is one that is accepted as legal by their investments. (See also: Ponzi when in reality it was not lawful (for scheme)

345

Q

QDOT A qualified domestic trust. This with federal law governing retirement type of trust is used to postpone estate pay. taxes when more than the amount qualified domestic trust See: QDOT of the personal federal estate tax exemption is left to a non-U.S. citizen qualified endorsement An endorsement spouse by the other spouse. that passes title to a negotiable instru­ ment with certain restrictions. For QDRO See: Qualified Domestic Relations example, writing “without recourse” Order on the back of the check would create QMSCO See: Qualified Medical Child a qualified endorsement. (Compare: Support Order blank endorsement) QTIP trust A type of trust for married qualified individual with a disability couples that allows a surviving spouse Under the Americans with Disabilities to postpone estate taxes. A QTIP trust Act, an individual with a disability allows the surviving spouse to make use who has the necessary skill, education, of the trust property tax-free. Taxes are experience and other job-related deferred until the surviving spouse dies requirements to perform the essential and the trust property is received by functions of a position. the final trust beneficiaries, who were qualified intermediary In a 1031 named by the first spouse to die. exchange, a neutral third party who Qualified Domestic Relations Order holds the proceeds of the sale of a (QDRO) A court order based on the relinquished property until replacement division of a party’s pension or retire­ property is purchased with these ment benefits as part of a divorce. The funds. This prevents the investor from QDRO orders the administrator of the receiving the funds during the 1031 pension plan to distribute a specified transaction, and so avoids taxes. share of benefits to the nonemployee Qualified Medical Child Support Order spouse at the time that the employee (QMSCO) A court order that directs spouse begins receiving benefits. This an insurance company to continue special order is necessary to comply

346 quasi

providing health coverage for the child receives a special tax break that is of a noncustodial parent under that designed to help qualifying small C parent’s group health plan. corporations raise capital. It does this by allowing qualifying investors in qualified ownership Ownership with original issue stock to exclude 50% of limitations or conditions. For example, their gains on the sale of the stock if a if your grandmother leaves you a plot of five-year holding period is met. land, but requires that you never build on it. qualified witness A witness who helps lay a foundation for admission of qualified personal residence trust (QPRT) evidence under the business exception A trust designed to save on estate tax by to the hearsay rule by explaining how a moving a residence (or vacation home, business keeps its records. if certain conditions in the tax code are met) out of the owner’s taxable estate. quantum meruit Latin for “as much The owner transfers ownership of the as he deserved.” A principle used to property to the trust but keeps the award the reasonable value of services right to live there for a number of years. performed by the victim of a broken QPRTs are most popular when real contract. estate values are going up rapidly. quash To annul or set aside. A motion qualified plan See: qualified retirement to quash asks the judge for an order plan setting aside or nullifying an action, such as quashing a service of summons qualified retirement plan A retirement when the wrong person was served. plan that meets certain requirements under the Internal Revenue Code quasi (kwah-zee, kway-zeye) From the and is thus eligible for special tax Latin for “as if,” almost, somewhat, considerations and benefits. Often, to a degree. Quasi is always used in the plan allows employers to make tax combination with another word and deductible contributions on behalf of refers to things and actions which eligible employees. Employees generally are not exactly or fully what they do not have to pay tax on the plan might appear, but are treated “as if” earnings until they withdraw the they were. (See, for example: quasi- money. community property, quasi contract, quasi corporation, quasi-criminal, quasi qualified small business stock Certain in rem, quasi-judicial) small business corporation stock which

347 quasi-community property quasi-community property A form of common example is finding a parent property owned by a married couple. who is delinquent in child support If a couple moves to a community in contempt of court and penalizing property state from a non-community him or her with a jail sentence. When property state, property they acquired a hearing is quasi-criminal, the together in the non-community quasi-defendant is entitled to all due property state may be considered process protections afforded a criminal quasi-community property. Quasi- defendant. community property is treated just like quasi in rem Latin for “as if against a community property when one spouse thing,” referring to a legal action that dies or if the couple divorces. involves determining the legal rights of a person with an interest in a property The Rainmaker. (1997) Francis Ford within a court’s jurisdiction. Coppola directed this adaptation of John quasi-judicial 1) A description of decisions Grisham’s novel about a young attorney (Matt or actions of an administrative or Damon) who brings a class action lawsuit executive government agency that against big tobacco. Jon Voight plays an icily are similar to a court proceeding. For slick corporate attorney for the defense. With example, the National Labor Relations Danny DeVito, Claire Danes. Board is a quasi-judicial body that decides labor dispute cases based on the written record of evidence heard quasi contract An arrangement created and decisions reached by administrative and enforced by a court to prevent one law judges. 2) Sometimes used more party from being unjustly enriched by generally to refer to adjudicative pro­ another; also known as an implied- cedures that occur outside of courts. For in-law contract. (See also: implied example, arbitration is often referred to contract, unjust enrichment) as a quasi-judicial proceeding. quasi-corporation A business that quasi-personalty Property that is con­ operates as a corporation but has not sidered to be personal property, completed the legal requirements, even though it is actually (a fixture) often in the period just before formal or legally (a lease) attached to real incorporation. property. quasi-criminal A reference to a court’s Queen’s Bench The highest court in right to punish for actions or omissions Great Britain during the reign of a as if they were criminal. The most

348 quiet title action

queen, so that opinions are identified as agree to go out with me, you’ll be first a volume of Queen’s Bench (QB). in line for promotion.”) question of fact A question that involves quiet enjoyment The right of a property factual matters. In a legal proceeding, owner or tenant to enjoy his or a jury (if there is one) will determine her property without interference. issues of fact, while only a judge can Disruption of quiet enjoyment may decide questions of law. For example, constitute a legal nuisance. Leases whether a defendant was present at the and rental agreements often contain scene of a crime is a question of fact; a “covenant of quiet enjoyment,” whether mere presence meets the legal expressly obligating the landlord to definition of a crime is a question of ensure that tenants live undisturbed. law. quiet title action A lawsuit to determine question of law An issue arising in a who owns a piece of real estate and lawsuit or criminal prosecution which so “quiet” any disputes over the title. only relates to determination of what Such a suit arises when there is some the law is, how it is applied to the facts question about title—for example, in the case, and other purely legal uncertainty about the boundary, claims points in contention. All “questions by a lienholder, a question about an of law” arising before, during, and old mortgage, or an easement that’s sometimes after a trial are to be deter­ been used for years without a recorded mined solely by the judge and not by description. A quiet title lawsuit names the jury. (See also: question of fact) as defendants anyone who might have an interest (including descendants— QUID See: qualified individual with a known or unknown—of prior owners). disability Notice of the action must be posted quid pro quo (kwid pro kwoh) Latin on the property and published in for “this for that.” A quid pro quo is an approved local newspaper. If the what each person in a deal expects to court rules that the plaintiff is the get from the other. In employment rightful owner, it will grant a quiet title law, quid pro quo sometimes refers to judgment, which can be recorded and a type of sexual harassment in which will settle the issue of ownership. Quiet workplace rewards are explicitly linked title actions are a common example of to the victim’s willingness to submit “friendly” lawsuits in which often there to unwanted sexual advances. (“If you is no opposition. (See also: cloud on title)

349 quit quit To leave, used in a written notice to and each other. (Compare: grant deed, a tenant to leave the premises (called a warranty deed) notice to quit). quorum The number of people required qui tam action (kwee-tam) Latin for to be present at a meeting before a vote “who as well,” a lawsuit brought by can be taken. A quorum is usually a a private citizen but brought for “the majority of directors, shareholders, government as well as the plaintiff.” or members, but a different quorum This type of action is generally based may be set in the bylaws or operating on significant legal violations which agreement of the business or involve fraudulent or criminal acts, and association. not technical violations or errors. If quotient verdict An award of money successful, the plaintiff will be entitled damages in a lawsuit obtained by to a percentage of the recovery of the averaging the amounts of damages penalty as a reward for exposing the awarded by jurors when they disagree wrongdoing and recovering funds for as to what the award should be. A the government. quotient verdict is not legal since it is quitclaim deed A deed that transfers not based on a rational discussion of whatever ownership interest the the facts, and such a verdict will be set transferor has in a particular property. aside and a mistrial will be declared by The deed does not guarantee anything the judge. about what is being transferred, however. quo warranto (kwoh wahr-rahn-toe) For example, a divorcing husband Latin for “by what warrant.” The name might quitclaim his interest in certain for a writ (order) used to challenge real estate to his former wife, officially another’s right to either public or giving up any legal interest he may have corporate office or to challenge actions in the property. Quitclaim deeds are that are not authorized by a corporation used primarily among family members charter (articles of incorporation). or others familiar with the property

350 R

Racketeer Influenced and Corrupt rape The crime of having sexual inter­ Organizations Act (RICO) A federal course with another person without law, passed in 1970, that allows consent. Common law defined rape as prosecution and civil penalties for unlawful intercourse by a man against certain acts (including illegal gambling, a woman who is not his wife by force bribery, kidnapping, murder, and or threat and against her will. However, money laundering) performed as part of modernly, states have broadened the an ongoing criminal enterprise. RICO definition so that marriage, gender, has been used to prosecute members of and force are not relevant—lack of the mafia, the Hells Angels motorcycle consent is the crucial element. Statutory gang, and Operation Rescue, an anti- rape occurs when the victim is under abortion group, among others. the legal age of consent even if the intercourse is consensual. racketeering Certain illegal activities, such as bribery, money laundering, ratable Capable of being appraised or prostitution, or extortion, committed as apportioned. Also taxable according to part of an ongoing criminal enterprise. value, such as an estate or property. rainmaker An employee who creates a ratification See: ratify lot of new business for a company by ratify Approval or confirmation of a bringing in new clients. previous contract or other act that ransom 1) As a noun, money paid to, or would not otherwise be binding in demanded by, someone in exchange the absence of such approval. If an for the release of a kidnapped person employer ratifies the unauthorized acts or stolen property. 2) As a verb, of an employee, those actions become ransom may refer to either end of the binding on the employer. A person who transaction—that is, it may mean to is under the legal age to enter into a demand payment for release of a person contract may ratify (and thereby adopt) held captive, or it may mean to pay the contract when he or she reaches money in exchange for the release of majority, or may refuse to honor the the person held captive. contract without obligation.

351 rational basis rational basis See: rational basis test property. Anything that isn’t real estate is personal property. rational basis test A legal standard to determine the constitutionality of real estate agent A foot soldier of the a statute. To determine whether a real estate business who shows houses statute passes the test, a court considers and does most of the other nitty-gritty whether it has a reasonable connection tasks associated with selling real estate. to achieving a legitimate objective. An agent must have a state license and (See also: strict scrutiny, intermediate be supervised by a real estate broker. scrutiny) Most agents are completely dependent upon commissions from sellers for their read on In patent law, to literally describe income, so it pays to find out which an element of an invention. Thus, a side the agent represents (buyer, seller, patent is infringed if the patent’s claims or both) before placing too much trust read on (literally describe) all the in the agent’s opinion. elements of the infringing device. real estate broker A real estate ready, willing, and able Fully prepared professional licensed to negotiate the to act, as in prepared to perform the purchase and sale of real estate for a services required under a contract. commission or fee. One step up from reaffirmation An agreement that a debtor a real estate agent, a broker has more and a creditor enter into after a debtor training and can supervise agents. has filed for bankruptcy, in which the real estate investment trust (REIT) A debtor agrees to repay all or part of an business that invests in real estate. existing debt after the bankruptcy case Investors buy shares in a REIT to invest is over. For instance, a debtor might in real estate in much the same way as make a reaffirmation agreement with they might buy shares in a mutual fund the holder of a car note that the debtor to invest in stocks. A REIT is set up to can keep the car and must continue to minimize or avoid corporate income pay the debt after bankruptcy. taxes. real covenant See: covenant that runs real party in interest The person or entity with the land who will benefit from a lawsuit or real estate Land and things permanently petition even though the plaintiff (the attached to it, such as buildings, person filing the suit) is someone else houses, stationary mobile homes, fences (often called a “nominal” plaintiff). For and trees. Real estate is also called real example, a trustee files a suit against a

352 reasonable speed

person who damaged a building owned to a shift on his Sabbath), as long as by the trust; the real party in the those accommodations do not create an interest is the beneficiary of the trust. undue burden for the employer. real property See: real estate reasonable care The degree of caution and attention to possible dangers realty See: real estate that an ordinarily prudent and rational person would use in similar “There is no distinctly native American circumstances. This is a subjective test criminal class except Congress.” of determining whether a person is —Mark Twain negligent and therefore liable. reasonable doubt The standard of proof used in criminal trials to find a reasonable Just, rational, appropriate, defendant guilty of a crime. When a ­ordinary, or usual in the circumstances. criminal defendant is prosecuted, the It may refer to care, cause, compensa- prosecutor must prove the defendant’s tion, doubt (in a criminal trial), and a guilt “beyond a reasonable doubt.” host of other actions or activities. In A reasonable doubt exists when a the law of negligence, for example, the juror cannot say with moral certainty reasonable person standard is the stan- that a person is guilty. (Compare: dard of care that a reasonably prudent preponderance of the evidence) person would observe under a given set reasonable reliance of circumstances. An individual who A legal standard subscribes to such standards can avoid based upon what a prudent person liability for negligence. would believe. If reliance is not reasonable, a defendant in certain reasonable accommodation Any situations may not seek redress. For adjustment to a work environment or example, someone who invested in a job that allows a qualified worker to machine that allegedly turned rocks perform the job in question. Employers into gold could not recover damages subject to federal employment laws for fraud if it could be shown that must offer reasonable accommodations a prudent person would not have to employees with disabilities (for reasonably relied on such claims. example, providing a TDD telephone reasonable speed to an employee with a hearing impair­ The speed at which ment) or based on religious beliefs it is safe to drive an automobile (such as not assigning an employee consider­ing road conditions and other

353 reasonable time

circumstances, such as rain, ice, heavy rebuttable presumption An assumption traffic, the vehicle’s condition, or of fact accepted by the court to be true visibility. Reasonable speed may be less unless someone proves it to be untrue. than the posted speed limit. Drivers A rebuttable presumption is often who exceed reasonable speed can be drawn from prima facie evidence. cited for speeding or may be found to rebuttal 1) Evidence or argument be negligent even if they were driving introduced to counter, disprove, within the posted speed limit. or contradict the opposing party’s reasonable time A vague, and disfavored, evidence or argument. 2) Legal contractual qualifier used to connote arguments presented in a reply brief. a period by which an act should be rebuttal witness A witness who is called performed. (Compare: time is of the to rebut testimony already presented. essence) recapture In tax law, the requirement reasonable wear and tear Damage or loss that a taxpayer—upon the sale to an item (such as a table) or element of property—pay the amount of of a room (such as the floor) resulting tax savings from past years due to from ordinary use and exposure over accelerated depreciation or deferred time. The term is commonly used in capital gains. leases to limit the tenant’s responsibility to repair damage, repaint the walls, receipt A written and signed or replace items when moving out. acknowledgement by the recipient of The term is subjective, but more wear payment for goods, money in payment and tear can be expected the longer the of a debt, or receiving assets from the occupancy or the worse the condition of estate of someone who has died. the premises when the tenant moved in. receiver 1) In a lawsuit, a neutral This is often a source of conflict between person (often a professional trustee) landlord and tenant, particularly when appointed by a judge to take charge of there is a deposit for any damages the property and business of a party beyond reasonable (sometimes called to the lawsuit, and receive the rents normal or ordinary) wear and tear. and profits due to the party, while the rebate 1) A discount or deduction on lawsuit is being decided. A receiver is sales price. A secret rebate given by a appointed if requested by the other subcontractor to a contractor is illegal. party to the suit and if there is a strong 2) To give a discount or deduction. showing that the property would not be

354 reckless driving

available when the lawsuit concludes. opposite sex and may be related—there 2) In debt and bankruptcy law, a is no requirement that the two people person appointed to receive rents and be in an intimate relationship. profits coming to a debtor either while reciprocal discovery Also known as a bankruptcy is being processed or “reverse Jencks material,” (named after while an arrangement is being worked the U.S. Supreme Court decision out to pay creditors. 3) In criminal that established the principle, Jencks law, shorthand for one who commits v. United States), the duty of the the crime of receiving stolen goods defense to give the prosecution copies knowing they were obtained illegally. of any pretrial statements that a receivership The process of appointment defense witness may have given. The by a court of a receiver to take custody prosecution has a similar duty, to of the property, business, rents and supply the defense with any written profits 1) of a party to a lawsuit pending or recorded pretrial statement that the a final decision or 2) an agreement that defendant may have given. (See also: a receiver control the financial receipts Brady material) of a debtor for the benefit of creditors. reciprocity 1) The condition of being recess A break in a trial or other court reciprocal. 2) The mutual exchange proceedings or a legislative session until of privileges between states, nations, a date and time certain. Recess is not to businesses, or individuals for be confused with adjournment, which commercial or diplomatic purposes. winds up the proceedings. reckless Behavior that is so careless that recidivist A repeat criminal offender, who it is considered an extreme departure is convicted of a crime after having from the care a reasonable person been previously convicted for another. would exercise in similar circumstances. reciprocal beneficiaries Any two reckless disregard Grossly negligent people who register under Hawaii’s without concern for injury to others. reciprocal beneficiary laws. Reciprocal reckless driving Operating an automobile beneficiaries have hospital visitation in a dangerous manner under the rights, the right to inherit from circumstances, including speeding each other in the absence of a will, (or going too fast for the conditions, and certain other limited rights even if within the posted speed limit) under Hawaii state law. Reciprocal and other careless and dangerous beneficiaries may be of the same or

355 reconveyance

driving behavior. Reckless driving is a (including liens) of all property in the misdemeanor. state. (See also: chain of title) reconveyance The transfer of title to real recording acts State statutes that estate from a lender to the buyer when a establish a system to keep records of loan secured by the property is paid off. land ownership in an office in each A trustee (commonly a title or escrow county, commonly called the county company) usually holds title for the recorder, register of deeds, or recorder lender and handles the reconveyance of deeds. The laws provide for the when the loan is fully paid back. (See recording of deeds, liens, mortgages, also: trust deed) decrees of distribution from estates, and other documents that affect ownership of land. By making land records public, “Facts are stubborn things; and whatever recording gives everyone notice of may be our wishes, our inclinations, or ownership and interests in land. the dictates of our passions, they cannot alter the state of facts and evidence.” record keeping The listing of financial —John Adams, while defending transactions, including inflows soldiers accused of the Boston (income) and outflows (payment of Massacre expenses) for a business. records In business, tangible evidence, usually in writing, of the income, record 1) To file a copy of a deed or other expenses, and financial transactions of a document concerning real estate with business or individual. the land records office (often called the county recorder, registry of deeds, recoupment 1) The reduction of a success­ or something similar) for the county ful plaintiff’s judgment by an amount in which the land is located. 2) The the plaintiff owes the defendant arising official transcript of a trial or public from the same trans­action. For example, hearing, including in the case of a trial if a landlord wins an action against a all evidence introduced. tenant for failing to pay rent, the tenant might be entitled to recoupment for recording The process of filing a copy of periods of time when the property a deed or other document concerning was uninhabitable and, therefore, the real estate with the land records tenant was not obligated to pay rent. office for the county in which the 2) Generally, the recovery or collection land is located. Recording creates a of money that was paid out. public record of changes in ownership

356 reentry recourse The right to demand payment may redeem the item by paying the to the writer of a check or bill of loan and interest to the pawnbroker. exchange. (See also: redemption) recover To receive a money judgment in redemption 1) In Chapter 7 bankruptcy, a lawsuit. when the debtor obtains legal title to collateral for a debt by paying recoverable Capable of being recovered the creditor the replacement value in a lawsuit. Refers to the amount of of the collateral in a lump sum. For money to which a plaintiff (the party example, a debtor may redeem a car suing) is entitled. (See also: damages) note by paying the lender the amount recovery The amount of money and any a retail vendor would charge for the other right or property awarded to or car, considering its age and condition. received by a plaintiff in a lawsuit. 2) In foreclosure, the homeowner’s right (usually granted by state statute), recusal A situation in which a judge or for a certain period of time, to redeem prosecutor is removed or voluntarily the mortgage and keep the house by steps down from a legal case. This often refinancing and paying off the original happens when the judge or prosecutor mortgage. has a conflict of interest—for example, a prior business relationship or close red herring A legal or factual issue that is relationship with one of the parties. irrelevant and is used to divert attention away from the main issues of a case. recuse See: recusal (The term is derived from the practice redaction The act of going over a docu­ of training hunting dogs by dragging ment with a fine-toothed comb in order cured herrings across the scent trail of to find any ambiguities or areas that are a fox.) not to your advantage. reentry Taking back, or literally reenter­ redeem To buy back property, as when a ing, property that belongs to the homeowner pays off a mortgage. (This person entering the property but that, typically happens when the homeowner until a specific event has happened, faces foreclosure and pays off the was lawfully occupied by another. A original mortgage by refinancing or landlord properly reenters property that when someone in bankruptcy pays off a tenant has clearly abandoned; and a a loan to keep an item of property.) A bank reenters when it has foreclosed person who has pawned a possession upon a mortgage or deed of trust.

357 referee referee A person whom a judge appoints the affirmative, the party then takes the to handle certain parts of a case, such document away from the witness and as taking testimony or reviewing asks the witness to answer the question written evidence. Sometimes, the that led to the failure of memory. referee makes written findings and The testimony the witness gives after submits them to the judge to use in reviewing the document is sometimes deciding the case. referred to as “present recollection refreshed.” referendum The process by which the repeal or approval of an existing statute refugee In the context of U.S. immigra- or state constitutional provision is voted tion law, people who have been allowed upon. Many states allow for referenda to live in the United States indefinitely which are placed on the ballot by a to protect them from persecution in required number of voter signatures on their home countries. Refugees get their a petition filed. status before coming to the U.S. and may, after one year, apply for U.S. green reformation The act of changing a cards. (See also: asylum) written contract when one of the parties can prove that the actual agreement Regents of the University of California v. was different than what’s written down. Bakke (1978) A U.S. Supreme Court Reformation is usually made by a case in which the Court ruled that a court, for example, when both parties white applicant for a medical school overlooked a mistake in the document, that received federal funding could not or when one party has deceived the be excluded because of his race (there other. was a limited quota for whites under the school’s admission plan) due to the refresh one’s recollection To show a nondiscrimination provisions of the witness a document in an effort to 1964 Civil Rights Act. help the witness remember something. A party may try to refresh a witness’s register In corporations, the record of recollection only after demonstrating shareholders, including information on that the witness does not remember. the issuance and transfer of shares. The party may then show the document registered agent See: agent for service of to the witness, ask the witness to process read it silently, and then ask whether the document refreshes the witness’s Register of Deeds A county government recollection. If the witness answers in office where you file documents in the

358 release

public records. Most register of deeds and groups concerned with the subject offices record documents related to real matter. Federal regulations are adopted estate, including deeds, land contracts, under the procedure set out in the mortgages, liens, and lease agreements. federal Administrative Procedure Act Some also accept vital records such as (APA); states usually follow similar birth, death, and marriage certificates. procedures. In many locations, the register of deeds office is known as the county recorder’s office. Vice President Aaron Burr shot and killed former Secretary of Treasury registration statement A detailed Alexander Hamilton in a duel on July 11, 1804, report to be filed with the Securities despite the fact that these two lawyers had and Exchange Commission (SEC) been co-counsel on several lawsuits. by a corporation making an issuance of shares to be advertised and sold to the general public in more than one rehearing Conducting a hearing again state, which must be approved by the based on the motion of one of the SEC before it will approve the stock parties to a lawsuit, petition, or issuance. criminal prosecution, usually by the court or agency which originally heard registry of deeds See: Register of Deeds the matter. Rehearings are usually regulation A rule, adopted under requested due to newly discovered authority granted by a statute, issued evidence, an unfortunate and possibly by a municipal, county, state, or federal unintended result of the original order, agency. Although not laws, they have a change of circumstance, or a simple the force of law and often include claim that the judge or agency was just penalties for violations. Regulations are wrong. not generally published in the books REIT See: real estate investment trust that contain state statutes or federal laws, but often must be obtained from release 1) To give up a right, as releasing the agency. To adopt a regulation, an one from the obligation to perform agency usually drafts the rule, publishes under a contract, or relinquishing an it in governmental journals intended to interest in property. 2) To give freedom, give public notice, holds hearings, and as letting out of prison. 3) The written then adopts a final, revised regulation. document that establishes or grants a The process is best known to industries release.

359 release on one’s own recognizance release on one’s own recognizance A relief The generic term for a benefit judge’s decision to allow a person which an order or judgment of court charged with a crime to remain at can give a party to a lawsuit, including liberty pending the trial, without a money award, injunction, return of having to post bail. Likely candidates property, property title, alimony, and for such release are those with strong many others. roots in the community, regular relinquished property In a 1031 employment, and the recommendation exchange, the property the investor is of the prosecutor. The type of crime selling. Instead of receiving the funds, charged may also play a role. Often the investor has them held in trust called “O.R.” or “R.O.R,” it is granted (usually, with a neutral trustee), until routinely in traffic matters, minor and he or she uses the funds to purchase a technical crimes, and to people with no replacement property. criminal record who display stability. (See also: O.R.) remainder A future interest that will become available when another estate relevant Having some reasonable con­ ends. For example, Patricia deeds nection with, and in regard to evidence Happy Acres Ranch to Sally for life, in trial, having some value or tendency and upon Sally’s death to Charla or to prove a matter of fact significant to Charla’s children if Charla does to the case. A common objection to not survive. Charla has a remainder, testimony or physical evidence is that it and her children have a contingent is irrelevant. remainder, which they will receive if reliance Dependence on another person’s Charla dies before Sally. (or entity’s) statements or actions. remainderman Someone who will inherit Reasonable reliance on another person’s property in the future—usually as a statements may, in some cases, lead to result of the end of a life estate. For a claim of fraud. (See also: reasonable instance, if someone dies and leaves reliance) his home “to Alma for life, and then reliction The increase in land caused by to Barry,” Barry is a remainderman the gradual recession or shrinkage of because he will inherit the home in the a body of water (such as a lake or sea) future, after Alma dies. which gives the owner of the property remainder subject to a condition more dry land. precedent See: contingent remainder

360 removal remainder subject to divestment See: remittitur Latin for “it is sent back.” defeasible remainder 1) A judge’s order reducing a judgment awarded by a jury. 2) An appellate remainder subject to open A vested court’s transmittal of a case back to remainder that will go to a group the trial court so that the case can con­taining an undetermined number be retried, or an order can be entered of people. For example, “to Adam for consistent with the appellate court’s life, and then to his children.” The decision (such as dismissing the remainder left to the children is subject plaintiff’s case or awarding costs to the to open because it is unknown how winning party on appeal). many children (if any) Adam will have at his death. removal 1) The change of a legal case from one court to another, as from a remand To send back. For example, an state court to federal court or vice versa appeals court might reverse a lower based on a motion by one of the parties court’s decision and send a matter back stating that the other jurisdiction is to that court for a new trial. Or a judge more appropriate for the case. 2) An might remand into custody a person immigration legal proceeding, formerly accused of a crime, if there appears to known as “deportation,” conducted be a legal reason to hold the person for before an immigration judge to decide trial. whether or not an immigrant will remedy The means of redressing an be allowed to enter or remain in the injury or enforcing a right in a legal United States. Generally speaking, action. Remedies may be ordered by the a person who is already in the U.S. court, granted by judgment after trial cannot be expelled without first going or hearing, by agreement between the through a removal hearing, while parties, and by the automatic operation someone arriving at the border or a of law. Some remedies require that port of entry can be removed without certain acts be performed or prohibited, a hearing or ever seeing a judge (called others involve payment of money, and “summary” or “expedited” removal). still others require a court’s declaration Those who are deported or removed are of the rights of the parties and an order barred from returning to the United to honor them. States for at least five years unless U.S. Citizenship and Immigration Services remise To give up a claim to something; (USCIS) grants a special waiver. a term sometimes used in quitclaim deeds conveying property.

361 renewal renewal Keeping an existing agreement is an issue, and the rental value is the in force for an additional period of measure of damages. In divorce cases time, such as a lease, a promissory note, in which one of the spouses stays in insurance policy, or any other contract. the family residence, the use of the Renewal usually requires a writing or property may have rental value which some action which evidences the new is considered in balancing the income term. of the parties, determining division of property, or setting the amount of rent Monetary amount a tenant pays a alimony to be paid. landlord (typically on a monthly basis) for occupying premises for a set period rent control Laws that limit the amount of time or an open-ended term. of rent landlords may charge, and that state when and by how much the rent can be raised. Most rent control Presumed Innocent. (1990) Film laws also require a landlord to provide adaptation of Scott Turow’s best-seller a good reason, such as repeatedly in which a lawyer is under suspicion for the paying rent late, for evicting a tenant. murder of his colleague and mistress. Harrison Rent control exists in some cities and Ford, Brian Dennehy, Raul Julia, Bonnie Bedelia, counties in California, Maryland, New Paul Winnfield, Greta Scacchi. Jersey, New York, and Washington, DC. Also called rent stabilization, maximum rent regulation, or a similar term. rental agreement A contract (oral or written) between a landlord and tenant rent withholding A residential tenant’s that provides for a tenancy for a short refusal to pay the rent, based on the period of time, such as one month; it landlord’s unjustified refusal or failure automatically renews at the end of this to fix a defect in the rental that renders period, unless the landlord or tenant it unlivable or seriously unsafe. Rent give each other the proper amount of withholding is legal only if a state notice (which usually must be written) statute provides for it, and often the to terminate the contract. tenant must deposit the rent in court or in an escrow account, pending the rental value The amount which someone landlord’s repairs. (See also: implied would pay for rental of similar property warranty of habitability) in the same condition in the same area. Evidence of rental value becomes renunciation 1) The act of forfeiting a important in lawsuits in which loss right. For example, in wills and estates, of use of real property or equipment

362 reply brief

if a beneficiary does not want to take an Constitutional provisions require an inheritance, the beneficiary can make amendment. a renunciation of that inheritance. replacement property In a 1031 2) In criminal law, renunciation is exchange, the property the investor abandoning a crime before it takes purchases with the proceeds of the place. sale of the original property (called the reorganization 1) The implementation relinquished property). Under current of a business plan to restructure a IRS rules, replacement property must corporation, which may include be identified within 45 days of the sale transfers of stock between shareholders of the relinquished property, and the of two corporations in a merger. 2) In sale must close within 180 days of the bankruptcy, a corporation in deep sale. financial trouble may be given time to replacement value The amount you restructure itself while protected from would have to pay, at the present time, creditors by the bankruptcy court. The to replace a particular item, taking theory is that if the business is able to into consideration the item’s age and get on its feet and either survive or be condition. able to sell itself for a good price, the creditors will eventually collect. (See replevin A type of legal action where the also: Chapter 11 bankruptcy) owner of movable goods is given the right to recover them from someone repair and deduct A residential tenant’s who shouldn’t have them. Replevin is repair of a serious defect or problem often used in disputes between buyers in the rental, making it unlivable and sellers—for example, a seller might or significantly unsafe, followed by bring a replevin action to reclaim goods deducting the cost of the repair from from a buyer who failed to pay for the next month’s rent. Proper use of them. the remedy, which may be invoked only if state law provides for it, requires reply brief When a case is appealed notice to the landlord and allowing the to a higher court, the written legal landlord a reasonable time to fix the argument of the respondent (the party problem. who won in trial court), submitted in answer to the “opening brief” of repeal To annul an existing law by an appellant (the party who lost at passage of a repealing statute or by trial and has appealed to the appellate public vote on a referendum. Repeal of court).

363 reports reports A published volume of federal, representation 1) The act of representing state, or regional judicial decisions. —for example, by serving as agent for Examples include California Appellate another or acting as an attorney for a Reports and Supreme Court Reporter. client. 2) A statement of alleged fact (See also: advance sheets) either in negotiations or in court. 3) A process by which an heir inherits in repossess To take back property that has place of a predecessor, called right of been pledged as collateral for a loan. representation. (See also: repossession) representative 1) An agent or other repossession A creditor’s taking of individual who stands in for another. property that has been pledged as 2) Someone who serves a constituency, collateral for a loan. Vehicles are the such as a member of the House of type of property most often repossessed: Representatives. 3) The executor or Lenders will repossess cars when administrator of the estate of a person the owner has missed loan or lease who has died, sometimes called a payments and has not attempted to personal representative. work with the lender to resolve the problem. The loan contract or lease representative payee Typically, a person and state law dictate what a repossessor authorized by a government agency can and cannot do, but usually a such as the Social Security Adminis- repossessor cannot use force to take tration to receive benefits such as SSI a car. A repossession of property will payments on behalf of a recipient who appear on the car owner’s credit report is not competent to handle his or her for seven years, and he or she will owe own money. the costs of repossession and attorney’s reprieve A temporary delay in imposition fees, as well as the difference between of the death penalty by order of the what the lender can sell the car for and state’s governor. Reasons for reprieves what was owed on the loan or lease. include the possibility of newly represent 1) To act as the agent for discovered evidence, awaiting the another. 2) To serve—for example, as result of a last-minute appeal, or the a member of a legislative body after an governor’s concern that there might election. 3) To act as a client’s attorney. have been some error in the record that 4) To state something as a fact, such as should be examined. On occasion a “This horse is only four years old.” reprieve has saved someone who was later found to be innocent. A reprieve is

364 rescue doctrine

only a delay, not a pardon or reduction requirements contract A contract or commutation of the sentence. between a supplier or manufacturer When the reprieve expires, the date for and a buyer, where the seller agrees to execution can be reset. sell all the particular products that the buyer needs, and the buyer agrees to repudiation Actions demonstrating purchase the goods exclusively from the that one party to a contract refuses supplier. (Compare: output contract) to perform an obligation. (See also: anticipatory breach) res Latin for “thing” or “matter.” reputation What the community thinks res adjudicata See: res judicata of a person; a factor in determining ­liability and damages in suits for defa- mation, because damage to reputation is “No man is above the law, and none is the principal injury. below it.” —Theodore Roosevelt reputed Information based on public belief, whether or not correct. request When a party asks the court to resale Selling again, particularly at act (such as a request for reconsidera­ retail (a retail product is sold once to tion), demands a right (such as request the retail store and again to the final for production of documents from an customer). In many states, a resale opposing party), or asks a question. license, resale number, or seller’s permit is required so that the state can monitor request for admission A discovery the collection of sales tax on retail sales. procedure, authorized by the Federal Rules of Civil Procedure and the court rescind To cancel a contract by mutual rules of most states, in which one party agreement of the parties, putting them asks an opposing party to admit that the positions they would have occupied certain facts are true. If the opponent had the contract not existed. admits the facts or fails to respond in a rescission Cancellation of a contract by timely manner, the facts will be deemed mutual agreement of the parties. true for purposes of trial. A request for admission is called a “request to admit” rescue doctrine A rule in tort law in many states. that states that when a wrongdoer (tortfeasor) has negligently endangered request to admit See: request for the safety of another, the wrongdoer admission can be held liable for injuries suffered

365 reservation

by a third person who attempts to residuary beneficiary A person who rescue the person in danger. receives any property by a will or trust that is not specifically left to another reservation A provision in a deed which designated beneficiary. For example, if keeps (reserves) to the grantor some Antonio makes a will leaving his home right or portion of the property. The to Edwina and the remainder of his language might read: “Sarah Sims property to Elmo, then Elmo is the reserves to herself an easement of access residuary beneficiary. to lots 6, 7, and 8.” residuary bequest In a will, the gift reserve fund The fund of money that of whatever is left over after all covers maintenance, repairs, or specific and general gifts are given. unexpected expenses of a business For example, John gives his house or a multiunit housing develop­ and his stocks to his wife, and leaves ment (often condominiums or a everything else to his daughter—the housing cooperative), managed by gift of “everything else” is the residuary a homeowners’ association or other bequest. governing body. residuary estate The property that res gestae (rayz jest-eye) All circum­ remains in a deceased person’s estate stances surrounding and connected after all specific gifts are made, and with a happening. Thus, the res gestae all debts, taxes, administrative fees, of a crime includes the immediate area probate costs, and court costs are paid. and all occurrences and statements The residuary estate also includes any immediately before and after the crime. specific gifts under a will that fail or res gestae witness (rayz jest-eye) A lapse. For example, Connie’s will leaves witness who has experienced an event her house and all its furnishings to firsthand and can therefore testify Andrew, her VW bug to her friend about what happened. Carl, and the remainder of her property (the residuary estate) to her sister residence 1) The place where one makes Sara. She doesn’t name any alternate his or her home. (Compare: domicile) beneficiaries. Carl dies before Connie. 2) In corporation law, a business’s state The VW bug becomes part of the of incorporation. residuary estate and passes to Sara, resident A person who lives in a particu- along with all of Connie’s property lar place. other than the house and furnishings.

366 respondent

Also called the residual estate or be ruled on again. For example, if residue. a court rules that John is the father of Betty’s child, John cannot raise residue See: residuary estate the issue again in another court. res ipsa loquitur (ray-sip-sah loh-quit-er) (He could appeal the court’s ruling Latin for “the thing speaks for itself”; to a higher court, but he could not a legal presumption that a defendant raise the paternity issue again in acted negligently even though there another lawsuit.) Sometimes called res may be no direct evidence of liability. adjudicata. (See also: collateral estoppel) For example, a construction company res nova Latin for “a new thing,” used is presumed to be negligent if a load by courts to describe an issue of law of bricks under its control falls off a or case that has not previously been roof and injures a pedestrian, even decided. though nobody witnessed the accident. The presumption arises only if 1) the resolution 1) In business, an approval of thing that caused the accident was an action or determination of policy under the defendant’s control, 2) the of a corporation or limited liability accident could happen only as a result company by the vote of its members, of a careless act, and 3) the injured managers, or board of directors. 2) In plaintiff’s behavior did not contribute government, a statement of policy, to the accident. Lawyers also refer to belief, or appreciation passed by a this doctrine as “res ips” or “res ipsa.” legislative body. resisting arrest The crime of using respondeat superior (ruh-spon-dee-at physical force (no matter how slight soo-peer-ee-or) Latin for “let the in the eyes of most law enforcement master answer.” A legal doctrine officers) to prevent arrest, handcuffing, that holds the employer or principal or taking the accused to jail. It is also responsible for the acts of its employees called “resisting an officer” (which or agents committed within the scope can include interfering with a peace of employment. officer’s attempt to keep the peace) respondent A term used instead and is sometimes referred to merely as of defendant or appellee in some “resisting.” states—especially for divorce and other res judicata Latin for a legal issue that family law cases—to identify the party has been finally decided by a court, who is sued and must respond to the between the same parties, and cannot petitioner’s complaint.

367 response response See: answer home, or remove a child from the state. Restraining orders are often issued in responsible 1) Legally liable or account­ cases in which spousal abuse, stalking, able. 2) Having the ability to pay or or other immediate harm is feared. A perform. restraining order is always temporary responsive pleading See: answer and is also commonly referred to as a temporary restraining order or TRO. Restatement of the Law A series of legal treatises that set out basic U.S. law on a variety of subjects, written and updated The youngest Supreme Court justice by legal scholars and published by the ever was Joseph Story. He was 32 American Law Institutes. While not when he joined the Court in 1811 and he having the force of statutes or court served for 33 years. rulings, the Restatements (as lawyers generally call them) are prestigious and can carry some weight in a legal restraint of trade Any activity (including argument. Topics covered include agreements among competitors or agency, contracts, property, torts, companies doing business with each trusts, and more. other) that tends to limit trade, sales, and transportation in interstate restitution Returning property or its commerce or has a substantial impact monetary value to the rightful owner. on interstate commerce. Most restraints The losing party in a negligence or of trade are illegal under various contracts case may be ordered to make antitrust statutes. Some state laws also restitution, such as restoring ruined outlaw local restraints on competitive landscaping. A criminal defendant may business activity. (See also: monopoly) also be ordered to make restitution, such as returning stolen goods or restraint on alienation A provision in a paying the victim for harm caused. deed or will that attempts to restrict the Restitution may be imposed as a sale or transfer of the property forever condition of probation or a shorter- or for an extremely long period of than-normal sentence. time—for example, selling your house to your daughter with the provision restraining order An order from a that it never be sold to anyone outside court directing one person not to the family. These provisions are usually do something, such as make contact unenforceable on the grounds that a with another person, enter the family present owner should not be allowed to

368 resumé inflation

tie the hands of future generations. The occupied only by Caucasians”) were maximum period of time for limiting declared unconstitutional in 1949. transfer is generally “lives in being, restrictive endorsement An endorsement plus 21 years.” (This is known as the signed on the back of a check, note, or rule against perpetuities.) Restraints on bill of exchange that restricts to whom alienation (restrictive covenants) based the paper may be transferred—for on race (“only Caucasians may hold example, “for transfer only to Frank title”) were declared unconstitutional in Lowry.” Also spelled “indorsement.” 1949. resulting trust A trust implied by law, restriction Any limitation on activity, by as determined by a court. Under statute, regulation, or contract provision. this type of trust, the person who In multiunit real estate developments, holds title to or has possession of condominiums, and cooperative housing property is considered a trustee for the projects, the homeowners’ associations or proper owner, who is considered the similar organizations that manage these beneficiary. The resulting trust is a legal developments are usually required to im- fiction that forces a property holder to pose restrictions on use. The restrictions honor the beneficiary’s property rights. are part of the “covenants, conditions, For example, Mahalia leaves $100,000 and restrictions” (“CC&Rs”) intended with her friend, Albert, while she is on to protect and enhance the property. a trip to Europe, asking him “to buy They are part of each owner’s deed. the old Barsallo place if it comes on restrictive covenant An agreement the market.” Albert buys the property, (covenant) in a deed to real estate that but has title put in his own name, restricts future use of the property. which the court will find is held in a Example: “No fence may be built on resulting trust for Mahalia. A resulting the property except of dark wood and trust differs from a “constructive trust,” not more six feet high, no tennis court which comes about when someone or swimming pool may be constructed gains possession of another’s property within 30 feet of the property line, and by accident, misunderstanding, or no structure can be built within 20 dishonesty. feet of the frontage street.” Also called resumé inflation To include false or “covenant running with the land” if misleading information on one’s resumé it’s enforceable against future owners. to make oneself a more attractive Restrictive covenants based on race candidate for a job. Examples include (for example, “the property may be

369 retained earnings

adding degrees or awards one never do, each state defines retaliation, and received or positions one never held. how to prove it, differently. retained earnings The accumulated retirement benefits Benefits provided profits of a corporation that are not paid by the Social Security Administration out as dividends. Instead, the money is to persons of retirement age (which reinvested in the core business or used varies depending on the year you were to pay off debt. Also called accumulated born) who have accumulated sufficient earnings or earned surplus. work credits to be eligible. Retirement benefits may also be provided by an retainer A fee paid in advance to a lawyer individual’s private pension or other to secure the lawyer’s services. It acts retirement plan. as a down payment, ensuring that the lawyer won’t get stiffed and that the retraction To disavow or take back. This client will be represented. If the amount may include: 1) withdrawing a confes- is significant, some states require the sion or legal document in a lawsuit or lawyer and client to sign an agreement. other proceeding; 2) withdrawing a promise or offer of contract; or 3) cor- retaliation Punishment of an employee recting any untruth published or broad- by an employer for engaging in legally cast in the media, usually upon the protected activity such as making a demand of the person about whom the complaint of harassment or participat- damaging false statement was made. A ing in workplace investigations. Re- clear and complete retraction will usu- taliation can include any negative job ally end the right of the defamed party action, such as demotion, discipline, to go forward with a libel lawsuit. In firing, salary reduction, or job or shift most states the plaintiff must request a reassignment. retraction before filing suit, in order to retaliatory eviction An eviction of a give the defendant a chance to cure the tenant by a landlord that is motivated, problem without litigation. in whole or in part, by the tenant’s retrial A new trial (by the same court exercise of a legal right, such as com­ as made the decision in the first trial), plain­ing in good faith to the health granted upon the motion of the losing department, using a tenant remedy party, based on obvious error, bias, or such as rent withholding, or organizing newly discovered evidence. tenants in response to rental conditions. Not all states recognize retaliation as a retroactive A law or court decision that defense to an eviction, and of those that takes away or impairs a previously

370 reversible error

vested right, imposes new duties or tax questions based on the same obligations, or changes or effects past circumstances. These rulings are transactions or legal actions. Retro­ of general use to taxpayers, tax active (or retrospective) laws are not preparers, accountants, and attorneys favored and, unless it is expressly in anticipating tax treatment by the stated, it is usually presumed that IRS. They have the force of law until legislation is not intended to apply otherwise determined by the federal tax retroactively. In criminal law, statutes court or a new revenue ruling. which would increase penalties or make reversal The decision of a court of appeal activities which had been previously ruling that the judgment of a lower legal criminal are prohibited by the court was incorrect and is reversed. Constitutional ban on ex post facto The result is that the lower court which laws. tried the case is instructed to dismiss the original action, retry the case, or is Class Action. (1991) Father and daughter ordered to change its judgment. lawyers battle in court over injuries reverse engineering Disassembly and caused by a defective automobile, roughly examination of products that are based on the controversy over the Ford Pinto. available to the public. Starring Gene Hackman and Mary Elizabeth Mastrantonio. reverse mortgage A loan for homeowners 62 years of age or older who have con­sider­able equity in their houses. return of service Written confirmation Typically, borrowers make no payments under oath by a process server declaring during their lifetimes; the loan is paid that there was service of legal docu­ off at their death, when the house is ments (such as a summons and sold. complaint). reversible error A legal mistake at the revenue agent An IRS employee who trial court level that is so significant performs audits in the field; for (resulted in an improper judgment) example, at a business, a taxpayer’s that the judgment must be reversed by home, or an attorney’s office. the appellate court. A reversible error is distinguished from an error which revenue ruling A published opinion is minor or did not contribute to the of the Internal Revenue Service judgment at the trial. stating what it would rule on future

371 reversion reversion The return to an original proceedings. The successor trustee—the owner, or to that person’s heirs, of real person appointed to handle the trust estate after all interests in the property after the trust maker’s death—simply given to others have terminated. transfers ownership to the beneficiaries Example: George deeds property to the named in the trust. Certain revocable local hospital district for “use for health living trusts can also reduce federal facilities only.” Eventually, the hospital estate tax. Also called “inter vivos is torn down, and the property is now trust.” (Compare: living trust, living vacant. The property reverts to George’s will, testamentary trust) descendants. Also called reverter. revocation Annulment or cancellation reverter See: reversion of a statement, document, or offer not yet accepted, or cancellation of review The judicial consideration of a a contract by the parties to it. For lower court judgment by an appellate example, a person can revoke a will or court, determining if there were legal revoke an offer to enter into a contract, errors sufficient to require reversal. In and a government agency can revoke a reviewing a lower court decision or license. (Compare: rescission) order, appellate courts focus on errors of a legal nature and will usually not revoke To annul or cancel an act, par- disturb factual findings. ticularly a statement, document, or promise, as if it no longer existed. For revival 1) Requesting a court to reinstate example, a person can revoke a will or the force of an old judgment. 2) Re- revoke an offer to enter into a contract, instating a contract or debt by a new and a government agency can revoke a agreement after the right to demand license. performance or collect has expired under the statute of limitations. Reynolds v. Sims (1964) A U.S. Supreme Court case in which the Court ruled revocable living trust A trust set up that the voting districts of state during life that can be revoked at any legislatures must have roughly equal time before death. Revocable living populations. The decision was based on trusts are a common and excellent the Equal Protection Clause of the U.S. way to avoid the cost and hassle of Constitution and is sometimes known probate, because the property held in as the “one-person, one-vote” rule. the trust during the trust maker’s life passes directly to the trust beneficiaries rhadamanthine (rad-a-man-then) Strict after death, without probate court and inflexible in the application of

372 right to counsel

the law; sometimes used to describe a be taken, or the right may be more judge. general. The mere right to cross without a specific description is a “floating” RICO See: Racketeer Influenced and easement. A right of way may be Corrupt Organizations Act. granted for a particular purpose—for rider 1) An attachment to a document example, to repair power lines or to that adds to or amends it. Typical is make deliveries to the back door of a an added provision to an insurance business. 2) In traffic law, the right to policy, such as additional coverage for a proceed, which must be granted to a valuable item or temporary insurance to driver by other drivers under certain cover a public event. 2) An amendment circumstances. A driver who fails tacked on to a legislative bill that has to yield the right of way when it is little or no connection to the main required by law may be ticketed. The purpose of the legislation, as a way to failure to yield can also be evidence of get the amendment passed. negligence if an accident results and there is a lawsuit. right 1) Just, fair, correct. 2) An entitle­ ment to something, whether to a right to cancel (a contract) See: cooling- concept like justice or due process, or to off rule a legally enforceable claim or interest— right to counsel The right of criminal for example, an ownership interest in defendants to have a lawyer appointed property. by the court to represent them if the right of representation See: per stirpes defendants cannot afford to hire one. The Sixth Amendment of the U.S. right of survivorship The right of a Constitution guarantees this right to surviving co-owner to take ownership those charged with federal crimes; the of a deceased owner’s share of the U.S. Supreme Court case of Gideon property. Forms of ownership that v. Wainright extended this right to come with a right of survivorship those charged with state offenses. The include joint tenancy, tenancy by the right to counsel applies only where entirety, and community property with the defendant faces the possibility right of survivorship. of imprisonment, and only at trial right of way 1) The right to pass over or and through the first appeal, if the through property owned by someone defendant is convicted. Juveniles are else, usually based upon an easement. also entitled to counsel. There may be a specific path that must

373 right to privacy right to privacy 1) The right not to have riparian Referring to land adjoining a one’s personal matters disclosed or river or stream. publicized; the right to be left alone. riparian rights Rights of the owner of 2) The right against undue government land adjacent to a river or stream to use intrusion into fundamental personal the water for certain purposes. State issues and decisions. Although the laws vary on the extent of the rights U.S. Constitution does not explicitly given riparian landowners. A riparian state that there is a right to privacy, landowner may not, however, interfere Supreme Court decisions have found an with the rights of other riparian land­ implicit constitutional right to privacy owners farther downstream—which in striking down laws that criminalize means no damming or diversion of a sodomy, the use of contraceptives, and stream. abortion. ripe Referring to a claim for relief that right to work state A state that has a law is ready for a court’s review because an prohibiting union security agreements. injury has occurred or will occur, and is rights 1) Plural of right. 2) Slang for the not just hypothetical or speculative. information which must be given by risk The probability of danger or loss, law enforcement officers to a person particularly of property covered by an who is under arrest or otherwise insurance policy. (See also: assumption not free to leave. (See also: Miranda of risk) warning) risk of loss The responsibility a carrier, riot 1) A turbulent and violent distur- borrower, or user of property or goods bance of peace by three or more people assumes, or an insurance company acting together. 2) An assemblage of agrees to cover, if there is damage or people who are out of control, caus- loss. ing injury, or endangering the physical safety of others or themselves, causing roadside test See: field sobriety test or threatening damage to property, and robbery The crime of directly taking often violating various laws both indi- property (including money) from a vidually and as a group. The common person (victim) through force, threat, thread is that the people in a riot have or intimidation. Robbery is a felony, the power through violence to break punishable by a term in state or federal the public peace and safety, requiring prison. Armed robbery involves the police action.

374 rule against perpetuities

use of gun or other weapon, such as a protection to obscene material which knife or club, and under most state laws was utterly without redeeming social carries a stiffer penalty than robbery value. by merely taking. (Compare: burglary, royalty 1) A form of compensation based embezzlement, shoplifting) on a percentage of revenue or unit sales Roe v. Wade (1973) A U.S. Supreme generated under an agreement, typically Court case in which the Court ruled a patent or copyright licensing contract. that abortions (previously limited to 2) A compulsory payment required those necessary to save a woman’s under statute in exchange for the right life) are legal, and any state law that to use or sell certain property—for denied the right of a woman to have example, a statutory royalty that is paid an abortion in the first trimester (three by the sellers of musical ringtones to months) of pregnancy was a denial the copyright owners of the underlying of her right to privacy under the due songs. process guarantee in the Fourteenth rule 1) To decide a legal question, as Amendment. Until this ruling, every when at the end of a lawsuit a court state had laws making an elective announces: “This court rules that abortion a crime. the plaintiff is entitled to the goods rogatory letters See: letter of request and damages for delay in the sum of $10,000.” 2) A regulation issued by roll over 1) To reinvest funds from a tax- a court or government agency. 3) A deferred account or maturing security legal principle set by a court’s written into a similar account or security. For decision in an appellate case, as “the example, moving money from one rule in the case of Murray v. Crampton individual retirement account (IRA) is ….” (See also: rules of court, local to another IRA, or from a qualified rules) retirement plan into an IRA. 2) To defer or postpone payment of an rule against perpetuities An exceedingly obligation, such as a loan that gives the complex legal doctrine that limits the borrower the option to renew the terms amount of time that property can be on maturity. controlled after death by a person’s instructions in a will. The maximum Roth v. United States (1957) A U.S. period for which title to real property Supreme Court case in which the may be held without being transferred Court denied free speech and free press to another is “lives in being plus 21

375 rule of doubt

years.” For example, a provision in a in court because of an alleged copyright deed or will that reads “Title shall be infringement. held by David Smith and, upon his rules of court A set of procedural rules death, title may be held only by his adopted by local, state, or federal courts descendants until the year 2200, when that instruct parties and attorneys what it shall vest in the Trinity Episcopal the court’s mandatory procedures are Church” is invalid. But a provision about things like the time allowed to stating that “the property will be held file papers, format of documents, filing by my son George for his life, and procedures and fees, basis for calculat- thereafter by his son, Thomas, and ing alimony and child support. for 20 years by the Trinity Episcopal Church, before it may be conveyed” is ruling Any decision a judge makes during acceptable under the rule. the course of a lawsuit. rule of doubt The rule under which the running at large 1) A reference to an U.S. Copyright Office allows software ­animal that is roaming free, such as object code to be deposited in connec- cattle that have escaped an enclosure tion with a computer program registra- or a dog that has slipped its leash. The tion. Under the rule there is an express owner of an animal running at large understanding that doubt exists as to is generally liable for any damage it whether the code qualifies for copy- causes. 2) A reference to a candidate right protection should litigation later who is campaigning for an officeelected ­ occur. In essence, the Copyright Office by an entire city, county, or state, rather is saying, “We will let you deposit than from a particular political district object code, but since we can’t read or within that larger region. understand it, we won’t commit our- running with the land A phrase used selves as to its copyrightability.” If the in real estate law to describe a right registration is accomplished under the or duty that remains with a piece of rule of doubt, the copyright owner may real estate no matter who owns it. For be unable to claim the presumption of example, the duty to allow a public ownership—an important benefit of path across beachfront property would registration—should the issue end up most likely pass from one owner of the property to the next.

376 S

sale The transfer of ownership (title) economic constraints on trade against a to property in return for money (or country that violates international law another thing of value) on terms agreed or commits human rights violations. upon between buyer and seller. 3) To allow or approve. sales tax A state or local tax imposed Sarbanes-Oxley Act A law enacted in on sales of retail products based on a 2002 in response to several corporate percentage of the price. and accounting scandals, requiring publicly traded companies to disclose salvage 1) To save goods. 2) Payment to a information to shareholders, protecting person or group that saves cargo from a whistleblowers, and requiring stringent shipwreck. audit practices. same-sex marriage Marriage between two people of the same sex, currently available only in Connecticut and “If the law supposes that,” said Mr. Massachusetts. (See also: domestic Bumble … “the law is a ass, a idiot.” partners, civil union, reciprocal —Charles Dickens, Oliver Twist beneficiaries) sample ballot A document sent to satisfaction Receiving payment or registered voters to help them prepare performance of what is due under a for an election. A sample ballot usually contract. provides the voter’s polling place and hours, and contains an image of satisfaction of judgment A document what the actual ballot will look like, signed by the party who is owed money including candidates, questions, and under a court judgment (called the instructions for voting. judgment creditor) stating that the full amount due on the judgment has been sanction 1) A financial penalty imposed paid. If the judgment creditor has a by a judge on a party or attorney—or lien on real property belonging to the the act of imposing such a penalty. judgment debtor, then the judgment 2) In international law, to impose debtor may demand that the judgment

377 satisfaction of mortgage

creditor record the satisfaction of retire at 70, Death and resignation soon judgment with the County Recorder (or gave Roosevelt vacancies to fill on the Recorder of Deeds). Court. satisfaction of mortgage 1) Payment in schedule 1) An IRS form on which full on a mortgage. 2) The document a taxpayers report details about an item mortgage holder signs to indicate that or a business and which is attached to a mortgage has been fully paid and the the main tax return. 2) A list of assets mortgage lien has been released. held in a trust, attached to the trust document. save harmless See: hold harmless Schenk v. United States (1919) U.S. savings and loan A banking and lending Supreme Court decision sustaining the institution chartered either by a state Espionage Act of 1917. The Court ruled government or the federal government. that freedom of speech and freedom of Savings and loans institutions take the press could be limited if the words savings deposits, upon which they in the circumstances created “a clear pay interest slightly higher than that and present danger.” paid by most banks, and they make mortgage loans on residential properties scienter (si-en-ter) Latin for “knowingly.” from the deposits. In criminal law, it refers to the knowledge by a defendant that makes Schecter Poultry Corp. v. United States him or her responsible for the crime. (1931) A U.S. Supreme Court case In some, but not all crimes, scienter is in which the Court struck down the a requirement—that is, the crime must National Industrial Recovery Act (a be done knowingly. key measure of the New Deal) on the basis that the government had scintilla A little bit, from the Latin for improperly delegated authority to make “spark.” The term is commonly used rules governing industries in interstate to refer to evidence—for example in a commerce. The decision by an aging lawyer’s argument that there is not a Court (called “nine old men” by its “scintilla of evidence” (at least a faint critics) and other rulings that the New spark) to support one of the other side’s Deal was unconstitutional prompted claims. President Franklin D. Roosevelt to scope of employment The actions or launch his ill-fated effort to pack the activities an employee might reasonably Supreme Court by adding an additional undertake as part of his or her job. justice for each one who would not

378 sealing of records

An employer is responsible for actions terms of a lease or contract exactly an employee takes within the scope as requested by the client, without of employment, which means the giving legal advice, then the lawyer employer can be liable to third parties is just a scrivener and is probably not who are injured by the employee’s responsible for legal errors (unless conduct. For example, an employer they were so obvious as to warrant would be liable for harm to a pedestrian comment). A nonlawyer may act as a caused by its delivery driver while scrivener without getting in trouble for driving a route; the employer most practicing law without a license. likely would not be liable for harm the seal 1) A device that creates an same driver caused if he or she hit a impression upon paper, used by pedestrian while using the delivery van corporations, LLCs, and notaries public as the getaway car in a bank robbery. to show that the document is executed (See also: respondeat superior) or acknow­ledged by the signer. S corporation A term that describes a Corporate and LLC seals include the profit-making corporation whose share­ name of the corporation and the date holders have applied for and received and state of incorporation. Notaries subchapter S corporation status increasingly use a rubber stamp instead from the Internal Revenue Service of a seal, since their print is easier to (IRS). Electing to do business as an microfilm for official recording. 2) To S corporation lets shareholders enjoy conceal from public record. In some limited liability status, as would be instances, for example, a person’s arrest true of any corporation, but be taxed or criminal records may be sealed, as a pass-through tax entity, where meaning without a court order to income taxes are reported and paid by inspect them they may not be viewed. the owners, like a partnership or sole (See also: expunge) proprietor. (A regular, or C, corporation sealed verdict The decision of a jury is taxed as a separate entity from its when there is a delay in announcing owners.) To qualify as an S corporation, the result, such as when court is not in a number of IRS rules must be met, session. The verdict is kept in a sealed such as a limit of 100 shareholders and envelope until handed to the judge U.S. citizenship for all shareholders. when court reconvenes. scrivener A person who writes a sealing of records The requirement that document for another, usually for a trial records and court decisions must fee. If a lawyer merely writes out the

379 search

be kept under seal, in contrast to most may search, and what they may seize, other court records, which are available though in emergency circumstances, for public review. The records most they may dispense with the warrant commonly sealed are criminal records requirement. of underage offenders; cases might also be sealed if they involve inventions, proprietary business information, or Canada’s first two women judges, national security. appointed in 1916 and 1917, were not lawyers but writers of legislation and advocates search 1) In criminal law, to examine of the legal rights of women and children. another’s premises (including a vehicle) or person to look for evidence of criminal activity. It is unconstitutional search warrant An order signed by a under the Fourth and Fourteenth judge that directs owners of private Amend­ments for law enforcement property to allow the police to enter officers to conduct a search without and search for items named in the a “search warrant” issued by a judge, warrant. Judges won’t issue a warrant or without facts that give the officer unless they have been convinced by “probable cause” to believe evidence the police that there is probable cause of a specific crime is present and there for the search—that reliable evidence is not enough time to obtain a search shows that it’s more likely than not that warrant. 2) In civil law, to trace the a crime has occurred and that the items records of ownership of real property sought by the police are connected with in what is commonly called a “title it and will be found at the location search.” named in the warrant. In limited situations, the police may search with­ search and seizure In criminal law, the out a warrant, but they cannot use phrase that describes law enforcement’s what they find at trial if the defense can gathering of evidence of a crime. show that they had no probable cause Under the Fourth and Fourteenth for the search. Amendments to the U.S. Constitution, any search of a person or his premises secondary boycott An attempt to stop (including a vehicle), and any seizure of others from purchasing products from, tangible evidence, must be reasonable. performing services for, or otherwise Normally, law enforcement must doing business with a company that obtain a search warrant from a judge, does business with another company specifying where and whom they that is in the midst of a labor dispute.

380 Section 8

For example, if a grocery chain’s secret rebate A kickback of money by clerks are on strike, and their union a business to a “preferred” customer, discourages a delivery drivers’ union not offered to the public, or by a from moving the products of the chain’s subcontractor to a contractor, but not largest food supply companies, that shown on a job estimate. Both practices would be a secondary boycott. The are illegal in most states as unfair purpose of the secondary boycott is business practices and may result in typically to exert indirect pressure on the criminal penalties or refusal of a court employer to resolve the labor dispute by to enforce a contract (written or oral) in causing its business connections to suffer which there is such a secret rebate. as a result of the dispute. Secondary secret warranty program A program boycotts are illegal under the National ­under which a car manufacturer Labor Relations Act. will make repairs for free on vehicles secondary meaning When a trademark with persistent problems, even after that is not distinctive acquires a the ­warranty has expired, in order to meaning within the marketplace avoid a recall and the accompanying such that consumers associate it with bad press. Secret warranties are rarely the product or service. For example, ­advertised by the manufacturer, so con- though first names are not generally sumers must pursue the manufacturer considered distinctive, Ben & Jerry’s to discover and take advantage of them. Ice Cream has become so well known A few states require manufacturers that it has acquired secondary meaning to notify car buyers when they adopt and is entitled to trademark protection. secret warranty programs. Proving secondary meaning requires Section 8 The name of a federally evidence of public recognition through financed housing assistance program, use and exposure in the marketplace. in which the government helps low- second degree murder An unpremeditat- income tenants with rent payments. ed killing, resulting from an assault in Typically, the government pays about which death of the victim was a distinct one-third of the rent, and the tenant possibility. Second degree murder is dif- pays the balance. Landlords who ferent from first degree murder, which choose to participate in the Section 8 is a premeditated, intentional killing; program must have their properties or results from a vicious crime such as inspected, and must agree to use the arson, rape, or armed robbery. Exact lease addendum issued by HUD, which distinctions on degree vary by state. obligates the landlord to a rental term

381 Section 1244 Stock

of no less than one year, and specifies securities A generic term for shares of allowable reasons for termination. stock, bonds, and debentures issued by corporations and governments Section 1244 Stock Stock issued by to evidence ownership and terms of eligible small corporations under payment of dividends or final payoff. Section 1244 of the Internal Revenue They are called securities because the Code which allows the shareholders to assets or profits of the corporation or treat up to $50,000 of losses ($100,000 the credit of the government stand as if married and filing jointly) from the security for payment. However, unlike sale of the stock as ordinary losses secured transactions in which specific instead of capital losses. property is pledged, securities are only Section 1981 A shorthand reference to as good as the future profitability of the the Civil Rights Act of 1866, which corporation or the management of the declares African Americans to be governmental agency. Most securities citizens entitled to a series of rights are traded on various stock or bond previously reserved to white men. markets. Among the rights conferred by Section security deposit A payment required 1981 are the right to sue or be sued in by a landlord to ensure that a tenant court, to give evidence in a lawsuit, pays rent on time and keeps the rental to purchase property, and to make unit in good condition. If the tenant and enforce contracts, which courts damages the property or leaves owing have interpreted to prohibit racial rent, the landlord can use the security discrimination in employment. deposit to cover what the tenant owes. secured debt A debt that gives the The laws of most states limit the size of creditor the right to take property a deposit, dictate its use, and set specific pledged as security for the debt rules for when and how landlords must (collateral) if the debtor does not pay. return the deposit. For example, a creditor can repossess security interest A claim against a car if the debtor defaults on the car property that secures a debt. loan. (Compare: unsecured debt) sedition The federal crime of advocating secured transaction An arrangement insurrection against the government in which a lender or buyer pledges through speeches and publications. property as collateral for a loan or sale. Sedition charges are rare because (See: secured debt) freedom of speech, press, and assembly

382 self-employment tax

are guaranteed by the Bill of Rights, the police must obtain a search warrant and because treason or espionage before they can seize personal property. charges can be made for overt acts self-dealing Taking part in a transaction against the nation’s security. or business deal that benefits oneself seduction The use of charm, promises, rather than a person or company to and flattery to induce another person whom one owes a fiduciary duty. For to have sexual intercourse outside of instance, a director of a corporation ­marriage, without any use of force or owes a duty to the corporation not to intimidation. At one time, seduction engage in transactions that benefit the was a crime in many states, but seduc- director rather than the corporation. tion is no longer criminal (unless the Self-dealing can also apply to owners ­seduced person is underage or other­ of a partnership or limited liability wise unable to consent). However, company who do not inform their co- seduction does linger in the criminal owners of business opportunities that codes of some states. should belong to the company. seised See: seized self-defense The use of reasonable force to protect oneself from an aggressor. seisin See: seizin Self-defense shields a person from seized Having ownership and possession criminal liability for the harm inflicted of something. This term is not used on the aggressor. For example, a much these days, but it may turn up in robbery victim who takes the robber’s an old will (“I leave all the property of weapon and uses it against the robber which I die seized as follows: ….”) or during a struggle won’t be liable for other document. Also spelled “seised.” assault and battery if he can show that his action was reasonably necessary to seizin Ownership of real estate; in the protect himself from imminent harm. old sense of the term, both ownership and possession. This term is not used self-employed Owning and working in in modern real estate transactions, but a business other than a corporation, as appears in some old deeds. opposed to working for an employer. seizure The taking of physical evidence or self-employment tax Social Security and property by law enforcement officials. Medicare taxes on net self-employment Seized evidence can include taking income that is a percentage of an blood for a drug test to impounding individual’s earned income up to a a car used in a robbery. In most cases, certain limit (called the Social Security

383 self-executing

Wage Base) that increases each year, will is self-proving when two witnesses and then a lower percentage of wages sign under penalty of perjury that they without limit. The tax is reported on observed the will maker sign it and Schedule SE of the individual’s income that he told them it was his will. If no tax return. one contests the validity of the will, the probate court will accept the will self-executing Immediately effective without hearing the testimony of the without further action, legislation, or witnesses or other evidence. In other legal steps. states, the will maker and one or more self-help Obtaining relief or enforcing witnesses must sign an affidavit (sworn one’s rights outside of the normal legal statement) before a notary public process. Examples include repossessing certifying that the will is genuine and a car when payments have not been that all will making formalities were made, retrieving borrowed or stolen observed. goods, demanding and receiving self-serving Refers to a statement or payment, or abating a nuisance (such as answer to a question that serves no digging a ditch to divert flooding from purpose and provides no evidence, someone else’s property). Self-help is but only argues or reinforces the legal legal as long as it does not “break the position of a particular party in a public peace” or violate some other law lawsuit. An example would be a lawyer (although brief trespass is common). asking his own client: “Are you the sort self-incrimination The making of state­ of person who would never do anything ments that might expose the maker dishonest?” A judge may disallow this to criminal prosecution, either now or kind of question unless there is some in the future. The Fifth Amendment evidentiary value. of the U.S. Constitution prohibits the self-settled trust A special needs trust government from forcing a person to funded with property belonging to the provide evidence (as in answering ques- beneficiary, such as a direct inheritance, tions) that might lead to prosecution recovery in a personal injury lawsuit, or for a crime. gift. self-proving will A will that is created in sell To transfer possession and ownership a way that allows a probate court to of goods or other property for money or easily accept it as the true will of the something of equivalent value. person who has died. In some states, a

384 sequester seller An individual or entity that sells to separate property—for example, cash goods or other property to a buyer. from the sale of a vintage car owned by one spouse before marriage—and senior lien The first lien or security any property that the spouses agree is interest placed on property at a time separate property. (See also: community before all other liens, called junior liens. property, equitable distribution) sentence Punishment in a criminal separation In the context of marriage, case. A sentence can range from a the state of living apart. Spouses are fine and community service to life said to be separated if they no longer imprisonment or death. For most live in the same dwelling, even though crimes, the sentence is chosen by they may continue their relationship. the trial judge; the jury chooses the They may also be considered separated sentence only in a capital case, when while living in the same house, if it must choose between life in prison they no longer share a bedroom and without parole and death. each live their separate lives. A legal separation results when the parties ”No, no,” said the Queen. “Sentence first, separate and a court rules on the verdict afterwards.” division of property, alimony (spousal support) or child support, and child —Lewis Carroll, Alice in Wonderland custody, but does not grant a divorce. separation agreement An agreement SEP See: simplified employee pension between two married people to live plan apart indefinitely. Similar to a marital separate property In community settlement agreement, a separation property states, property owned and agreement may define the spouses’ controlled entirely by one spouse rights with regard to property, custody, in a marriage. At divorce, separate and support. property is not divided under the state’s SEP-IRA An individual retirement account property division laws, but is kept set up to receive contributions from a by the spouse who owns it. Separate simplified employee pension plan. property includes all property that sequester a spouse obtained before marriage, 1) To isolate, separate, or through inheritance, or as a gift. It also keep a person or people apart from includes any property that is traceable others. For example, a jury in a highly

385 sequestration

publicized trial may be sequestered to continuing treatment by a health care prevent them from reading or hearing provider; 3) incapacity due to pregnancy anything about the case. A sequestered or prenatal care; 4) incapacity due to, or jury may have to live apart from treatment for, a chronic serious health their families for the duration of the condition; 5) permanent or long-term trial. A witness who is sequestered is incapacity for a condition for which required to leave the courtroom so he treatment may not be effective, such or she does not hear the testimony of as a terminal illness; or (6) ­absence for other witnesses. 2) For a court to take multiple treatments for either restor- custody of property that is the subject ative surgery following an injury or of a dispute, pending the outcome accident, or a condition that would of a legal proceeding to determine require an absence of more than three ownership. days if not treated. sequestration 1) The act of isolating a servant An outdated term for employee. jury or witness. 2) The act of a court service 1) Delivering legal papers to a taking property that is a subject of a defendant or a plaintiff in a lawsuit. legal dispute pending the outcome of 2) Delivering written notification of a lawsuit to determine ownership. (See the sender’s intent to invoke a legal or also: sequester) contractual right. (See also: service of seriatim Latin for one after another, process, personal service, substituted as in a series. For example, issues or service) facts might be discussed seriatim (or service business An enterprise that “ad seriatim”), meaning one by one in derives income primarily from provid­ order. ing personal services, rather than serious health condition Under the goods. Examples include plumbers, ­Family and Medical Leave Act (FMLA), contractors, consultants, physicians, eligible employees may take leave for and accountants. their own serious health condition or to service by fax Using a fax machine care for a family member with a serious to deliver legal documents, which health condition. A serious health con- otherwise would be sent with a process dition is an illness, injury, impairment, server or served by mail. Service by fax or physical or mental condition that is often specifically allowed by statute, involves 1) inpatient care; 2) incapac- and is followed by mailing an original ity for more than three full days with (hard copy) of the document.

386 set service by mail Mailing legal pleadings complaint, subpena, order to show to opposing attorneys or parties, while cause (order to appear and argue filing the original with the court clerk, against a proposed order), writs, notice along with a declaration stating that the to quit the premises, and certain other copy was mailed to a particular person documents, usually by personal delivery at a specific address. to the defendant or other person to whom the documents are directed. In service by publication Serving a certain cases of absent or unknown summons or other legal document in defendants, the court will allow service a lawsuit on a defendant by publishing by publication in a newspaper. Once all the document in an advertisement in parties have filed a complaint, answer, a newspaper of general circulation. or any pleading in a lawsuit, further Service by publication is used to documents usually can be served by attempt to notify a defendant who is mail or even fax. (See also: personal intentionally absent, in hiding, or at service, substituted service) an unknown address. It’s allowed only after a judge has been convinced, based servient estate A parcel of land that is on a sworn declaration, of the serving subject to an easement that benefits party’s inability to find the defendant another parcel of real estate, called after trying hard. Service by publication a dominant estate. For example, one is commonly used in a divorce action parcel (the servient estate) might be to serve a spouse who has disappeared subject to a right of way that provides without a leaving a forwarding address access to another parcel (the dominant or to give notice to people who might estate). (See also: running with the have a right to object to a “quiet title” land) action to clear title to real estate. servient tenement See: servient estate service mark A word, phrase, logo, session 1) A meeting of a court, symbol, color, sound, or other device legislature, or other government body used by a business to identify a service to carry out business. For courts, this is and distinguish it from those of its also called sitting. 2) The period of time competitors. In practice, the legal rights during which such a body is gathered and protections for trademarks and together and working, as in “the spring service marks are identical. term,” or “the court is in session.” service of process The delivery of copies set To schedule, as to “set a case for trial.” of legal documents such as summons,

387 set aside set aside 1) As a verb, to vacate or particular hearing or trial is scheduled annul a court order or judgment. For to take place. example, the losing party in a trial settle To resolve a lawsuit before going to might file a motion asking the judge trial. to set aside the verdict. 2) As a noun, something (often money) that is to settlement 1) The resolution of a dispute be used for a particular purpose. For or lawsuit. 2) Payment or adjustment. example, funds that are earmarked for a For example, a debtor might settle an specific program might be described as account by paying the full amount a set-aside. owed, or an insurance company might settle a property damage claim by paying the insured for the covered ”Good men must not obey the laws too damage. 3) The distribution of property well.” and wrapping up of a decedent’s affairs —Ralph Waldo Emerson by the executor. 4) The transfer of real property from the seller to the buyer (and new owner); closing. setback The distance between a property settlor boundary and a building. Local zoning The person who creates a trust laws usually require minimum setbacks. by a written trust declaration. Called a “trustor” in many (particularly western) setoff A claim made by someone who states and is sometimes referred to allegedly owes money, that the amount as a “grantor” or “donor.” The settlor should be reduced because the other usually transfers the original assets into person owes him or her money. This is the trust. (Compare: grantor) often raised in a counterclaim filed by 707(b) action a defendant in a lawsuit. By claiming An action filed by the a setoff, the defendant does not U.S. Trustee, the bankruptcy trustee, necessarily deny the plaintiff’s original or any creditor, under authority of demand, but seeks to reduce the Section 707(b) of the Bankruptcy amount of money owed to the plaintiff Code, to dismiss a debtor’s Chapter 7 by the amount that the plaintiff owes to bankruptcy case on the ground of the defendant. abuse. severability clause setting 1) The scheduling of a particular A provision in a legal proceeding, such as a hearing contract that preserves the rest of the or trial. 2) The date and time when a contract if a portion of it is invalidated

388 shared custody

by a court. Without a severability layoff. Employers may also be obligated clause, a decision by the court finding to provide severance pay if they one part of the contract unenforceable promised to do so in an employment would invalidate the entire document. contract or employee handbook. severable contract A contract which sex offender A generic term for persons is comprised of several separate convicted of crimes involving sex, contracts such that the breach of one including rape, molestation, sexual does not necessarily mean the breach ­harassment, and pornography produc- of the remainder—for example, a tion or distribution. sales agreement for several pieces of sexual harassment Offensive and unwel­ equipment each with its own payment come sexual conduct that is so severe or schedules. pervasive that it affects the terms and several liability When a party is respon- conditions of the victim’s employment, sible for his or her own obligation either because the victim’s submission (separately from another’s liability), so or failure to submit to the behavior is that the plaintiff may bring a separate the basis for job-related decisions (like action against that party without suing firing or demotion) or because the other responsible parties. (Compare: victim reasonably finds the workplace joint liability) abusive or hostile as a result of the harassment. severance 1) Separation of legal claims by court order to allow the claims to be shall an imperative, usually indicating tried separately. For example, a judge that certain actions are mandatory, not might sever the trials of two defendants permissive. (Compare: may) accused of the same crime. 2) Money share 1) A portion of a benefit from a paid or benefits provided to an employee trust, estate, claim, or business. 2) A who is fired, laid off, or agrees to leave. portion of ownership interest in a (See also: severance pay) corporation, represented by a stock severance pay Money paid to an certificate. employee who is laid off, fired, or leaves shared custody After a divorce or by mutual agreement. Employers are not separation between parents, the sharing generally required to offer severance of parenting responsibilities for children pay, although a few states require some born to the parents. (See also: joint severance pay for employees who lose custody) their job in a plant closing or large

389 shared equity mortgage shared equity mortgage A mortgage situation. Shareholders usually elect in which the lender gets a share of members of the board of directors at an the equity of the home in exchange annual shareholders’ meeting, often by for providing a portion of the down proxies. payment. When the property is later sharp practice Questionable or unethical sold, the lender is entitled to a portion actions, especially by a lawyer. of the proceeds. Sharp practice may include making shareholder An owner of a corporation misleading statements or threats, whose ownership interest is represented ignoring agreements, improperly using by shares of stock in the corporation. process, or employing other tricky and/ The benefits of being a shareholder or dishonorable means barely within include the right to vote for members the law. A consistent pattern of sharp of the board of directors, to receive practice may lead to discipline by a dividends if approved by the board of court or state bar association. directors, to participate in a division Shelley v. Kraemer (1948) A U.S. Supreme of assets the upon dissolution and Court case in which the Court declared winding up of the corporation, and so-called restrictive covenants in real to bring a derivative action (lawsuit) property deeds that prohibited the sale if the corporation is poorly managed. of property to non-Caucasians to be A shareholder’s rights may be limited unconstitutional and in violation of by a buy-sell agreement. Also called a the equal protection provision of the stockholder. Fourteenth Amendment. Where such shareholders’ agreement An agreement covenants remain in the text of deeds among the shareholders of a corpora- they must be ignored. tion that can cover buy-sell rights, sheltered workshop A place of employ­ restrictions on transferring shares, ment designed and managed to ­voting rights, and/or the employment accommodate the needs of people with of a shareholder. (See also: buy-sell disabilities. agreement) Shepardize A method of locating the shareholder’s derivative action See: subsequent history of a case using derivative action a book or computerized version of shareholders’ meeting A meeting of all Shepard’s Citations. This process can or most shareholders of a corporation to locate a list of decisions which either hear reports on the company’s business

390 short cause

follow, distinguish, or overrule any have found reporters in contempt of case. court (and given them jail terms) for refusing to name informants or reveal sheriff The top law enforcement officer information gathered on the promise of for a county, usually elected, who is confidentiality. responsible for police protection outside of incorporated cities, management of the county jail, and providing Suspect. (1987) Public Defender Cher bailiffs for protection of the courts. represents deaf homeless vet Liam A sheriff also handles civil activities Neeson and gets help from juror Dennis like serving summons, subpenas, and Quaid, with more fun than logic. With John writs, conducting judgment sales, and Mahoney, Philip Bosco. fulfilling various functions ordered by the courts. shifting the burden of proof In a lawsuit, sheriff’s sale A sale of property seized by the transfer of the obligation to prove the sheriff pursuant to a court order in particular facts from one party to the order to satisfy a judgment against the other. For example, the person who property’s owner. sued (the plaintiff) initially bears the Sherman Antitrust Act A federal anti­ burden of proving facts that, if no trust law, enacted in 1890, that prohibits rebutting evidence is presented, would direct or indirect interference with allow that party to win the case. The interstate trade. This Act was amended burden may then shift to the defendant by the Clayton Act in 1914. to prove one or more defenses to the plaintiff’s case. shield laws Statutes in some states that make communications between news shoplifting The crime of stealing goods reporters and informants confidential from a retail store by a customer or and privileged, freeing journalists someone posing as a customer. of the obligation to testify about short cause A lawsuit that is estimated them in court. This is similar to the to take no more than one day. A short doctor-patient, lawyer-client, or priest- cause case may get priority for court­ parishioner privilege. The goal is to room space because it can fill a time- let journalists gather news without slot between bigger cases. However, if a being ordered to reveal sources and supposed “short cause” lasts beyond one notes of conversations. In states that day the judge is authorized to declare a have no shield law, many judges

391 shortening time

mistrial and the case will be reset later sick leave Time off work due to illness or as a “long cause.” injury. shortening time A court order allowing a sickness benefits See: disability benefits motion or other legal matter to be set at sidebar 1) An area in front of or next to a time shorter than provided by law or a judge’s bench (the raised desk in front court rules. Shortening time is usually of the judge) away from the witness granted when the time for trial or some stand and the jury box, where lawyers other court action is approaching and are called to speak confidentially with a hearing must be heard promptly by the judge out of earshot of the jury. the judge. Example: Local rules require 2) A discussion between the judge and that a party give the other side ten days’ attorneys at the bench off the record notice before a hearing. If the trial is and outside the hearing of the jurors or set to begin in nine days, a court might spectators. shorten the time to schedule a hearing to five days, provided the notice is sideline business A small business served within 24 hours. activity carried on in addition to an individual’s full-time employment or short sale A sale of a house in which the principal trade or business. proceeds fall short of what the owner still owes on the mortgage. Short sales signature guarantee Verification from usually occur when the homeowner is a bank or broker that a signature is facing foreclosure. Many lenders will genuine. It’s similar to notarization, agree to accept the proceeds of a short but notarization is not a substitute for a sale and forgive the rest of what is guarantee. owed on the mortgage when the owner silent partner An investor who puts cannot make the mortgage payments. money into a business and in exchange By accepting a short sale, the lender can receives a share in the profits, but takes avoid a lengthy and costly foreclosure, no part in management and may be and the owner is able to pay off the loan unknown to the public or customers. A for less than what is owed. (See also: silent partner may be liable for business deed in lieu of foreclosure) debts and judgments unless designated shotgun charge See: dynamite charge as a limited partner in a limited partnership agreement. show cause order See: order to show cause similarly situated Alike in all relevant ways for purposes of a particular

392 skip person

decision or issue. This term is often simultaneous death act A statute used in discrimination cases, in which in effect in most states that helps the plaintiff may seek to show that determine inheritance among he or she was treated differently from beneficiaries who die at the same time. others who are similarly situated except The statutes provide that if spouses, for the alleged basis of discrimination. siblings, or other beneficiaries die For example, a plaintiff who claims simultaneously, or if it cannot be that she was not promoted because she determined who died first, then it is is a woman would seek to show that presumed that each died before the similarly situated men—that is, men other. with similar qualifications, experience, sine qua non Latin for “without which it and tenure with the company—were could not be,” an indispensable action promoted. This term is also used to or condition. Example: if Charlie had define the group of people on whose not left the keys in the ignition, his behalf a class action may be brought: ten-year-old son could not have started Everyone in the group must be similarly the car and backed it over Polly’s bike. situated as to the issue(s) litigated. For So Charlie’s act was the sine qua non of example, in a case alleging that a credit the damage to Polly’s bike. card company charged improper fees, only people who had a credit card with single-entry accounting A system of that company during the time when tracking business income and expenses the improper fees were imposed could that requires each item of income be members of the class. or expense to be recorded just once. (Compare: double-entry accounting) simple trust See: discretionary trust situs Latin for location. Used to refer to simplified employee pension plan A the site of a crime or accident or where pension plan allowing self-employed a building stands. business owners to make contributions toward their own retirement plans and skip person Someone who receives to their employees’ retirement plans. property (by gift or inheritance) from Contributions are made directly to an another person who is at least two individual retirement account set up generations older—most commonly, for each employee (a SEP-IRA) and a grandparent. Transferring assets to there the contributions accumulate tax- a skip person can trigger the federal deferred until withdrawn. generation-skipping transfer tax (GSTT).

393 slander slander An untruthful oral (spoken) government of Louisiana. In so doing, statement about a person that harms the Court ruled that the “privileges the person’s reputation or standing and immunities” protections of the in the community. Because slander Constitution applies to the states is a tort (a civil wrong), the injured through the Fourteenth Amendment. person can bring a lawsuit against the person who made the false statement. If the statement is made via broadcast “Legal process is an essential part of the media—for example, over the radio or democratic process.” on TV—it is considered libel, rather —Justice Felix Frankfurter than slander, because the statement has the potential to reach a very wide audience. Both libel and slander small claims court A state court that are forms of defamation. (See also: resolves disputes involving relatively defamation) small amounts of money—usually between $2,000 and $10,000, SLAPP suit A Strategic Lawsuit Against depending on the state. Adversaries Public Participation, in which a usually appear without lawyers—in corporation, business, or developer fact, some states forbid lawyers in sues an organization in an attempt small claims court—and recount their to scare it into dropping protests side of the dispute in plain English. against its actions. SLAPP suits Evidence, including the testimony of typically involve the environment—for eyewitnesses and expert witnesses, is example, a developer might sue local relatively easy to present because small residents, who are petitioning to change claims courts do not follow the formal zoning laws to prevent a real estate rules of evidence that govern regular development, for interference with the trial cases. A small claims judgment has developer’s business interests. Many the same force as does the judgment of states have “anti-SLAPP suit” statutes any other state court, meaning that if that protect citizens’ rights to free the loser—now called the “judgment speech and to petition the government. debtor”—fails to pay the judgment Slaughter House Cases (1873) U.S. voluntarily, it can be collected using Supreme Court decision that upheld, normal collection techniques, such as by a vote of 5-4, the contract rights of property liens and wage garnishments. an owner of a monopoly on slaughter small entity Status of a patent applicant houses granted by the “carpet bagger” that entitles the applicant to pay

394 sodomy

reduced application, issuance, and credits for purposes of calculating the maintenance fees. Small entities are any amount of Social Security retirement, for-profit company with 500 or fewer disability, survivors, or dependents employees, any nonprofit organization, benefits to which an individual is or an independent inventor. entitled. Social Security statements are generally mailed out each year small estate An estate that contains to people age 40 and older. You can property with a value small enough request your statement from the Social to be eligible, under state law, for Security Administration. simplified probate procedures or out-of- court transfers of the deceased person’s Social Security tax A portion of the FICA property. (Federal Insurance Contributions Act) tax that is 12.4% of an individual’s net smoking gun Slang for evidence that earned income. The employee’s share decisively proves a case. of the Medicare tax is 6.2% of wages Social Security The general term that up to a certain limit (called the Social describes a number of related programs, Security Wage Base) that increases including retirement, disability, each year. The employer’s share of the dependents, and survivors benefits. Medicare tax is 6.2% of an employee’s These programs provide workers and wages up to that limit. their families with some monthly sodomy Anal copulation by a man income when their normal flow of insert­ing his penis in the anus ei- income shrinks because of retirement, ther of ­another man or a woman. If disability, or death. These programs ­accomplished by force, without consent, are administered by the Social Security or with someone incapable of consent, Administration. sodomy is a felony in all states in the Social Security Administration The same way that rape is. Homosexual Social Security Administration (SSA) (male to male) consensual sodomy is an independent federal agency ­between consenting adults has tradi- that administers the Social Security tionally been a felony, but increasingly program, which includes retirement, is either decriminalized or seldom disability, dependents, and survivors prosecuted. Sodomy with a consenting benefits. adult female is virtually never pros- ecuted even in those states in which Social Security statement An accounting it remains on the books as a criminal of each worker’s earnings and work offense.

395 sole custody sole custody A custody arrangement services except representing a client under which one parent is the only in court. Only a specially trained one to have either legal or physical attorney, called a barrister, makes custody or both. A parent with sole court appearances. The United States physical custody has the right to live does not make this distinction among with the child, while the other parent attorneys. has visitation rights. A parent with sole Solicitor General The chief trial attorney legal custody has the right to make all in the U.S. Department of Justice, who decisions affecting the child, including is responsible for arguing cases before decisions about education, religion, and the Supreme Court. The Solicitor medical care. General is the second-highest ranking sole proprietorship A business owned attorney in the Department of Justice, by an individual that has not been behind the Attorney General. registered as a limited liability company, solitary confinement The placement of a corporation, or any other type of legal a prisoner in a cell away from other tax entity. For IRS purposes, the owner prisoners, usually as a form of internal (sole proprietor) and the business are discipline, but occasionally to protect one tax entity, meaning that business the convict from other prisoners or profits are reported and taxed on the to prevent the prisoner from causing owner’s personal tax return. The main trouble. downside of a sole proprietorship is that its owner is personally liable for all solvency 1) Having sufficient funds or business debts. other assets to pay debts. 2) Having more assets than liabilities (debts). solicitation 1) The crime of encouraging (Compare: insolvency) or inducing another to commit a crime. 2) The crime of paying or sound mind and memory When making requesting money in exchange for sex; a will, the ability to understand in prostitution. 3) The act of requesting general what one owns, one’s family something from others, such as asking relationships, and the meaning and others to donate to a particular charity, effect of the will. purchase products, or patronize a sound recording A type of copyrighted certain business. work resulting from the fixation of solicitor In the United Kingdom, an a series of musical or other sounds attorney who may provide all legal (including narration or spoken

396 special appearance

words) in some medium. The result of the pleading may not be considered, is known as a phonorecord. A sound and speaking demurrers are therefore recording copyright protects the way not allowed. (See also: demurrer) that the composition is performed. spear phishing See: phishing The performer, producer, or recording company usually claims copyright in special administrator 1) A person a sound recording. (Compare: musical appointed by a court to take charge of works copyright) only a designated portion of an estate during probate. For example, a special sounds in Referring to an underlying administrator with particular expertise legal basis or cause of action—such on art might be appointed to oversee as a contract or tort (civil wrong)—in the probate of a wealthy person’s art a lawsuit. For example: “Plaintiff’s collection, but not the entire estate. first cause of action against defendant 2) A person appointed to be responsible sounds in tort, and his second cause of for a deceased person’s property for a action sounds in contract.” limited time or during an emergency, sovereign immunity A legal principal such as a challenge to the will or to the making governmental bodies and qualifications of the named executor. In employees immune from being sued in such cases, the special administrator’s their own courts without governmental duty is to maintain and preserve the consent. The legislature can, and estate, not necessarily to take control often does, carve out areas where this of the probate process. (See also: immunity will be waived (canceled). administrator, administrator pendente lite, administrator ad litem) spam Internet slang for unsolicited bulk email, primarily unsolicited commercial special appearance 1) The personal email (UCE). Spam has been linked attendance in court of a party or with fraudulent business schemes, attorney for the sole purpose of arguing chain letters, and offensive sexual and that the court does not have personal political messages jurisdiction over that party. If the party or attorney instead makes a speaking demurrer An attempt to “general” appearance in court, that introduce new evidence during a party is presumed to have waived the hearing on a demurrer. Because a right to contest the court’s jurisdiction. demurrer is an argument that assumes 2) A one-time court appearance by all of the facts in the challenged an attorney for a party who either is pleading are correct, evidence outside

397 special circumstances

represented by another attorney or available for children (ages three to 21) is not represented at the time. Quite with disabilities, including physical, often an attorney will make a “special mental, and learning disabilities (See appearance” to protect the interests of also: individualized education program) a potential client, but before a fee has Special Immigrant A catchall category of been paid or arranged. people made eligible to apply for U.S. special circumstances In criminal green cards by specially passed laws. cases, particularly homicides, actions Commonly used special immigrant of the accused or the situation under types include workers for recognized which the crime was committed religions, former U.S. government for which state statutes allow or workers, and foreign doctors who have require imposition of a more severe been practicing medicine in the United punishment. “Special circumstances” States for many years. in murder cases may well result in special master A person appointed by the the imposition of the death penalty court to carry out an order of the court, (in states with capital punishment). such as selling property or mediating Such circumstances may include: rape, child custody cases. (See also: master) kidnapping or maiming prior to the killing, multiple deaths, killing a police special needs The needs of a person officer or prison guard, or actions with disabilities for things and services showing wanton disregard for life such other than food and shelter, which SSI as throwing a bomb into a restaurant. provides. (See also: capital punishment) special needs trust A trust designed to special damages Damages that com­ hold and disburse property for the pensate the plaintiff for quantifiable benefit of an SSI recipient so that monetary losses such as medical SSI and Medicaid won’t consider the bills and the cost to repair damaged trust property or disbursements to be property (direct losses) and lost a resource or income. To accomplish earnings (consequential damages). this purpose, the trust typically gives Distinguished from general damages, the trustee sole discretion over trust for which there is no exact dollar value disbursements and bars the trustee to the plaintiff’s losses. from making disbursements that would impair the beneficiary’s eligibility for special education The broad term used SSI and Medicaid. In addition, the to describe the educational system trust must be for the beneficiary’s sole

398 specific intent

benefit and bar creditors from going used when the legal issues to be applied after trust assets. A special needs trust are complex or require difficult compu- funded with the beneficiary’s own tation. property (a self-settled trust) is subject specification The narrative portion of a to additional restrictions. Also called a patent application that describes the supplemental needs trust. purpose, structure, and operation of the special power of attorney See: limited invention, as well as any relevant prior power of attorney technology (prior art). The specification must provide enough information about the invention so that a person proficient “There are not enough jails, not enough in the field of invention can build and policemen, not enough courts to enforce operate it. a law not supported by the people.” —Senator and Vice President specific bequest A specific item of prop- Hubert H. Humphrey erty that is left to a named beneficiary under a will. (See also: ademption) specific devise A gift of a specific piece special prosecutor An attorney from of property through a will. (See also: outside of the government selected by devise) the Attorney General or Congress to investigate and possibly prosecute a specific finding A decision on a fact made federal government official for wrong­ by a jury in its verdict at the judge’s doing in office. The theory behind request. Often the judge gives a jury a appointing a special prosecutor is that list of decisions to be made on specific there is a built-in conflict of interest findings of fact to help the jurors focus between the Department of Justice on the issues. For example, a judge and officials who may have political or may ask the jury to answer the specific governmental connections with that question, “Was the defendant exceeding department. the speed limit?” specials See: special damages specific intent A person’s intent to produce the precise consequences special verdict The jury’s decisions or of that person’s act, including the findings of fact with the application intent to do the physical act itself. For of the law to those facts left up to the example, larceny is taking the personal judge, who will then render the final property of another with the intent to verdict. This type of limited verdict is

399 specific legacy

permanently deprive the other person Fifth Amendment’s guarantee of due of it. A person is not guilty of larceny process. Each state has a statute or just because he took someone else’s constitutional provision limiting the property; the prosecutor must prove time an accused person may be held that the defendant intended to take the before trial (for example, 45 days). property, and that he took it in order to Charges must be dismissed and the keep it permanently. defendant released if the period expires without trial. However, defendants specific legacy A gift of a specific piece often waive the right to a speedy trial of property through a will. (See also: in order to prepare a stronger defense or legacy) negotiate a plea to a lesser offense. specific performance A contract remedy spend down To spend resources on provided by a court that orders the medical needs when an applicant for losing side to perform its part of an certain Medicaid benefits has resources agreement rather than, or possibly in over the resource limit. When the addition to, paying money damages to applicant’s resources are sufficiently the winner. Generally required in cases reduced, he or she will qualify for of unique goods, for example artwork Medicaid. or antiques. spendthrift clause A provision in a trust speculative damages Possible financial that restricts a beneficiary’s ability loss or expenses claimed by a plaintiff to transfer rights to future payments that are contingent upon a future of income or capital under the trust occurrence, purely conjectural, or to a third party. In effect, the clause highly improbable. These damages prevents “spendthrift” beneficiaries should not be awarded. For example, a from squandering inheritance before plaintiff may claim that in ten years, as they receive it and it also protects a he ages, he may begin to feel pain from beneficiary’s inheritance from creditors. a healed fracture caused by a defendant (even though no doctor has testified spendthrift trust A trust created for a this is likely to happen), and should beneficiary who may be irresponsible therefore recover money from the with money. The trustee keeps defendant now. control of the trust income, doling out money to the beneficiary as speedy trial In criminal prosecutions, needed, and sometimes paying third the right of a defendant to have a trial parties (creditors, for example) on the within a short time, premised on the

400 spousal support

beneficiary’s behalf, bypassing the the speaker’s state of mind or the truth beneficiary completely. Spendthrift of the matter being spoken about, and trusts typically contain a provision will be admitted if the judge decides prohibiting creditors from seizing the that the circumstances surrounding trust fund to satisfy the beneficiary’s the statement make it likely that the debts. These trusts are legal in most speaker was telling the truth. Without states. (See also: property control trust) this determination, the statement is simply hearsay; that is, a statement spite fence An unsightly fence erected made out of court and offered for the for no other purpose than to irritate truth of the matter it deals with. (See a neighbor. Such a fence may be also: hearsay) illegal under local fence height and appearance regulations or state laws spot zoning Zoning a parcel of land that specifically bar spite fences. Even if differently from the parcels around it. it doesn’t violate regulation or laws, the For example, a school might be allowed fence may still be illegal if it was built in a residential zone if the local zoning with malicious intent. authority decides it benefits the public welfare and is consistent with the city’s split custody A custody arrangement that general land use plan. If a particular involves multiple children and awards instance of spot zoning is challenged sole custody of one child to one parent in court, the court might find it illegal and sole custody of another child to if it violates the general plan, allows the other parent. This arrangement is development that is very different generally disfavored by judges because from the current surrounding uses, or it’s generally not considered beneficial appears to favor an individual property to split up siblings. owner to the detriment of the public. sponsor See: petitioner (immigration) (Compare: variance) spontaneous exclamation A sudden spousal privilege See: marital privilege statement (also known as an “excited spousal share See: elective share utterance”) made by someone who has seen a surprising, startling, or shocking spousal support Monetary support event (such as an accident or a death), paid by one former spouse to another, or has suffered an injury. For example, usually for a specified period of time, “Oh my God, that blue car hit the little pursuant to a divorce agreement or girl!” Spontaneous exclamations are court order. In many states, it’s called often introduced at trial as evidence of alimony.

401 springing durable power of attorney springing durable power of attorney A retirement or disability benefits and durable power of attorney that takes who meet the program’s income and effect only when and if the principal resources requirements. becomes incapacitated. stakeholder 1) In law, a person holding springing interest An interest in property money or property in which he or she that will take effect in the future, has no right or title while awaiting at a specific time or when a specific the outcome of a dispute between event occurs. For example, a will or two or more claimants to the money deed might give someone the right to or property is settled. Once the right use property for life and direct that to legal possession is established by ownership of the property then pass to judgment or agreement, the stakeholder someone else. has a duty to deliver to the owner the money or property. (See also: escrow sprinkling trust A trust that gives the agent) 2) In business, a person or person managing it—the trustee—the company that can be affected by an dis­cretion to disburse its funds among organization’s actions and therefore has the beneficiaries in any way the trustee an interest in the outcome of a project sees fit. It is a type of property control or activity. trust. (See also: pot trust) standard deduction An annual fixed tax SSA See: Social Security Administration deduction granted to each taxpayer who SSDI Social Security Disability Insurance. chooses not to itemize their deductions. This federal program provides monthly The amount of the standard deduction cash payments to disabled persons who is based on a taxpayer’s filing status, qualify because they have paid enough age, and whether he or she is blind or Social Security taxes. There are no is claimed as a dependent on someone resource or income ceilings. else’s tax return. SSI Supplemental Security Income, a standard mileage rate The dollar amount federal program that provides cash per mile that the Internal Revenue payments to persons of limited income Service sets annually for small businesses and resources who are disabled (accord­ and self-employed people to calculate ing to federal standards), over age their vehicle expenses for tax deduction 65, or blind. SSI is the main form purposes. of government support for people standard of care The degree of care who aren’t eligible for Social Security (watchfulness, attention, caution,

402 state court

and prudence) that a reasonable Its practices made “star chamber” person should exercise under the synonymous with any unfair and circumstances. If a person does not secretive proceedings. meet the standard of care, he or she stare decisis (stah-ry dee-sigh-sis) Latin may be liable to a third party for for “let the decision stand,” a doctrine negligence. requiring that judges apply the same Standard Oil Co. of New Jersey v. United reasoning to lawsuits as has been used States (1911) U.S. Supreme Court in prior similar cases. decision confirming the dissolution Starker exchange See: 1031 exchange of the Standard Oil Trust, because its monopoly position was an unreasonable state 1) A body of people that is politically restraint on trade under the Sherman organized, especially one that occupies Antitrust Act. a clearly defined territory and is sovereign. 2) The political system that standing The right to file a lawsuit or governs such a body of people. 3) One make a particular legal claim. Only a of the constituent parts of a nation, as person or entity that has suffered actual in any of the 50 states. injury has standing to seek redress in court. For example, an advocacy group state action The involvement of a may not file a lawsuit challenging the government in a particular activity. constitutionality of a statute on its Certain constitutional claims prohibit own; there must be a plaintiff who has only state action, not private activities. actually been harmed by the statute. For example, the right to free speech enshrined in the First Amendment of star chamber proceedings Proceedings the U.S. Constitution gives people a of any court or other government body right against laws that restrict their that are held in secret and produce speech, not against private efforts to arbitrary results. This derogatory restrict speech (for example, by a private term takes its name from an English employer). court, whose members were appointed by the crown, that met in the 15th state court A court in the state judicial to 17th centuries. That court, which system, rather than the federal judicial met in a room that was apparently system, that decides cases involving decorated with gilt stars, decided guilt state law or the state constitution. State and punishment of people accused courts are often divided according to of violating the monarch’s orders. the dollar amount of the claims they

403 state’s attorney

can hear. Depending on the state, also schedule dates for pretrial motions, small claims, justice, municipal, or city completion of discovery, and trial. courts usually hear smaller cases, while Often, court rules require the parties district, circuit, superior, or county to file paperwork before the conference courts (or in New York, supreme court) answering questions about the issues to have jurisdiction over larger cases. State be discussed at the conference. courts may also be divided according to subject matter, such as criminal court, family court, and probate court. “Judicial decrees may not change the heart, but they can restrain the state’s attorney See: district attorney heartless.” status Under immigration law, the —Martin Luther King, Jr. name of the visa category a person has been assigned and the group of privi- leges received upon becoming either a statute A written law passed by Congress permanent resident or a nonimmigrant or a state legislature and signed into law (temporary visa holder). For example, by the president or a state governor. (In a green card shows that the holder fairly rare circumstances, a legislative has the status of a permanent resident act can become law without the and the privilege of living and working approval of the head of the executive in the United States on a permanent branch of government.) Statutes are basis. An F-1 or M-1 visa indicates that often gathered into compilations called the holder has the status of a student “codes,” large sets of books that can and the privilege of attending school be found in many public and all law in the United States until the study libraries and on the Internet. program is completed. statute of frauds A law in every state that status conference A meeting of the judge requires certain types of documents to and the lawyers (or unrepresented be in writing and signed by the party to parties) in a pending legal matter, to be charged (usually, the defendant in a determine how the case is progressing. lawsuit). Examples include: real estate At the status conference, the judge transfers (conveyances), leases for more may ask about what discovery has than a year, wills, and some types of been conducted, whether and how the contracts. parties have tried to settle the case, and statute of limitations The legally pre­ other pretrial matters. The judge may scribed time limit in which a lawsuit

404 stayaway order

must be filed. Statutes of limitation of consent (determined by state law), differ depending on the type of legal whether or not the sexual act is against claim and on state law. For example, that person’s will. In many states, many states require that a personal “Romeo and Juliet” trysts, in which the injury lawsuit be filed within one year male and female are young and there from the date of injury—or in some is little or no difference in age between instances, from the date when it should them, are punished less severely than reasonably have been discovered—but when the victim is significantly younger some allow two years. Similarly, claims than the perpetrator. When the victim based on a written contract must be is not only below the age of consent, filed in court within four years from but also a child (as defined by state the date the contract was broken in law), the offense may be rape or child some states and five years in others. molestation. Statute of limitations rules apply to statutory share See: elective share cases filed in all courts, including federal court. statutory subject matter A requirement for utility patent rights. To qualify, statutory damages Predetermined pay­ an invention must fit into at least one ments established by law to compensate of five categories: compositions of for certain injuries. Statutory damages matter (compounds such as a drug or are sometimes made available because glue); articles of manufacture (simple it is too difficult to calculate actual devices such as screwdrivers and rakes); damages. machines (devices with moving parts, statutory offer of settlement A written such as an auto engine); processes (a offer of a specific sum of money made method of doing something such as an by a defendant to a plaintiff, which will implant procedure); and new and useful settle the lawsuit if accepted within a improvements of any of the above short time. The offer may be filed with categories. the court. If the eventual judgment stay A court order that suspends or for the plaintiff is less than the offer, stops certain proceedings. (See also: the plaintiff will not be able to claim automatic stay) the court costs usually awarded to the prevailing party. stayaway order A court order prohibiting one party from coming near or con­ statutory rape Sexual intercourse with a tacting another. Most common in person who has not yet reached the age divorce actions and cases of stalking.

405 stay of execution stay of execution A court-ordered delay inherited it. The basis of the new owner in carrying out the death penalty. is “stepped up” to the market value of the property at the time of death. The stepchild A child born to or legally stepped-up basis means that when the adopted by your spouse before your property is eventually sold, there will be marriage whom you have not legally less taxable capital gain. adopted. If you adopt the child, your parent-child relationship is the same as stipulation 1) An agreement between the if the child were biologically related to parties to a lawsuit. For example, if the you. parties enter into a stipulation of facts, neither party will have to prove those stepparent The spouse of a parent, who facts: The stipulation will be presented becomes the stepparent of that parent’s to the jury, who will be told to accept child upon marriage. Stepparents them as undisputed evidence in the are not legal parents of their spouse’s case. 2) A representation or statement, children unless they complete a step­ typically by a party to a contract. parent adoption, which requires the consent of the other legal parent or the stirpes A term used in wills that refers to termination of that parent’s rights. (See distribution of property to descendants also: stepparent adoption) of a common ancestor or branch of a family. (See also: per stirpes) stepparent adoption The formal, legal adoption of a child by a stepparent stock 1) A proportional ownership who is married to a legal parent or in interest of a corporation’s capital, a marriage-equivalent relationship like represented by shares (equal units of a domestic partnership or civil union. ownership). 2) Inventory (goods) of a Most states have special provisions business meant for sale. making stepparent adoptions relatively stock certificate A printed document easy if the child’s noncustodial parent proving ownership of shares of a gives consent, is dead or missing, or has corporation. A certificate states the abandoned the child. name of the corporation, the state and stepped-up basis An increased basis date of incorporation, the number (value that is used to determine taxable of shares of stock that the certificate profit or loss when property is sold) represents, the registered number of the given to inherited property that went certificate, the name of the shareholder, up in value after the deceased person and the date of issuance. The certificate acquired it but before the new owner

406 strict liability

is signed by authorized officers of the categories of assets, typically from three corporation. to 39 years. stock dividend See: dividend straw man 1) A person to whom title to property or a business is transferred stockholder See: shareholder (sometimes known as a “front”) for stockholder’s derivative action See: the sole purpose of concealing the derivative action true owner—for example, a person is listed as the owner of a bar in order to stock in trade The inventory held by a conceal a criminal who cannot obtain a business for sale. liquor license. 2) A fallacious argument stock option The right to purchase stock intended to distract. in the future at a price set at the time street A roadway in an urban area, the option is granted (by sale or as owned and maintained by the muni­ compensation by the corporation). To cipality for public use. A private road actually obtain the shares of stock the cannot be a street. owner of the option must exercise the option by paying the agreed upon price strict construction Interpreting a legal and requesting issuance of the shares. provision (usually a constitutional protection) narrowly. Strict construc- stop and frisk A law enforcement officer’s tionists often look only at the literal brief detention, questioning, and search meaning of the words in question, or for a concealed weapon when the officer at their historical meaning at the time has reason to believe that the detainee the law was written. Also referred to has committed or is about to commit as “strict interpretation” or “original a crime. Any further search requires intent,” ­because a person who follows either a search warrant or probable the doctrine of strict construction of cause to believe the suspect will commit the Constitution tries to ascertain the or has committed a crime (including intent of the framers at the time the carrying a concealed weapon, which document was written by considering itself is a crime). what the language they used meant at straight-line depreciation A method of that time. deducting the cost of a business asset by strict liability Automatic responsibility deductions in equal annual amounts. for damages due to manufacture or The period of time is specified by the use of equipment or materials that Internal Revenue Code for different are inherently dangerous, such as

407 strict scrutiny

explosives, animals, poisonous snakes, structure anything built on land, from a or assault weapons. A person injured shed to a high rise. by such equipment or materials does sua sponte (sooh-uh spahn-tay) Latin for not have to prove the manufacturer “of one’s own accord,” most commonly or operator was negligent in order to used to describe a decision by a judge recover money damages. that neither party to a lawsuit has strict scrutiny A legal standard to requested. determine the constitutionality of subchapter S corporation See: S a statute, used when the statute corporation implicates a fundamental right or relates to a suspect classification under the equal protection clause (such as “There is no country (like the United race). To determine if a statute passes States) in the world in which the doing the test, a court considers whether of justice is burdened by such heavy overhead the government has a compelling charges or in which so great a force is main­ interest in creating the law, whether tained for a given amount of litigation.” the statute is “narrowly tailored” to —Elihu Root meet the government’s objectives, and whether there are less restrictive means of accomplishing the same thing. (See subcontractor A person or business also: rational basis) that contracts with an independent strike 1) An organized work stoppage contractor to perform some portion of by employees, intended to pressure the work or services on a project which the employer to meet the employees’ the independent contractor has agreed demands (for example, for higher to perform. In building construction, pay, better benefits, or safer working subcontractors may include such trades conditions). 2) For the judge to order as plumbing, electrical, roofing, cement that all or part of a party’s pleading be work, and plastering. removed or disregarded, typically after sublease A rental agreement or lease a motion by the opposing party. 3) For between a tenant and a new tenant the judge to order evidence deleted (called a subtenant or sublessee) who from the court record and instruct will either share the rental or take over the jury to disregard it. Typically, this from the first tenant. The sublessee order is made regarding testimony by a pays rent directly to the tenant. The witness in court. tenant is still completely responsible

408 subprime loan

to the landlord for the rent and for jaywalking outside the crosswalk when any damage, including that caused by struck by the defendant’s car. Frank the sublessee. Most landlords prohibit tells the witness to help his client by subleases unless they have given prior saying the accident occurred in the written consent. (Compare: assign) crosswalk and the witness so testifies in court. Frank is guilty of subornation of submit To finish presenting evidence or the witness’s perjury. an argument in a hearing or trial and give the matter over to the judge for a subpena (subpoena) A court order issued decision. at the request of a party requiring a witness to testify, produce specified subordination The process by which a evidence, or both. A subpena can creditor holding a priority debt agrees be used to obtain testimony from a to accept a lower priority for the witness at both depositions (testimony collection of its debt in a deference to under oath taken outside of court) and a new debt. (See also: subordination at trial. Failure to comply with the agreement) subpena can be punished as contempt subordination agreement A written of court. contract in which a lender who has subpena duces tecum A type of subpena, secured a loan by a mortgage or deed usually issued at the request of a party, of trust agrees with the property by which a court orders a witness owner to subordinate its loan (accept to produce certain documents at a a lower priority for the collection of deposition or trial. its debt), thus giving the new loan priority in any foreclosure or payoff. subpoena See: subpena The agreement must be acknowledged subprime loan A loan to a borrower who by a notary so that it can be recorded does not qualify for a loan at the best in the official county records.S ( ee also: market rates (the prime rate) because subordination) of a weak credit history, inadequate subornation of perjury The crime of assets to secure the loan, or an income encouraging, inducing, or assisting too low to guarantee payments. These another in the commission of perjury, loans are offered at a higher interest which is knowingly telling an untruth rate because of the increased risk to under oath. Example: Lawyer Frank is the lender. Not all lenders engage in interviewing a witness in an accident subprime lending and the rates and case who says that Frank’s client was

409 subprime mortgage

terms of the loans vary from institution bonds, limited partnership interest, to institution. investment, or periodical magazine or newspaper. subprime mortgage See: subprime loan subscribing witness A person who signs subrogation A taking on of the legal a document indicating that they have rights of someone whose debts or witnessed a signature. For example, a expenses have been paid. For example, person who witnesses the signing of a subrogation occurs when an insurance will is a subscribing witness. company that has paid off its injured claimant takes the legal rights the subsidiary A corporation or other claimant has against a third party that limited liability entity that operates caused the injury, and sues that third under the legal authority of a larger party. “parent” corporation. Typically, a parent corporation owns a controlling subrogee The insurance company that interest in the shares of a subsidiary assumes the legal right to collect the corporation, giving the parent the votes claim of an injured claimant (the necessary to control who is appointed subrogor) against the third party that to the subsidiary’s board of directors. caused the injury, in return for paying the other’s expenses in advance. (See substantial performance When a party also: subrogation) to a contract, through no fault of that party, performs in a manner that varies subrogor An injured claimant who, slightly from the contract’s obligations. after being compensated by an In cases of substantial performance, a insurance company (the subrogee), court may determine that it would be gives the insurance company the right unfair to deny compensation. (See also: to collect a claim against the third specific performance) party that caused the injury. (See also: subrogation) substantive law Statutory or written law that governs the rights and obligations subscribe 1) To sign at the end of a of everyone within its jurisdiction. It document. The courts have been defines crimes and punishments, as flexible in recognizing signatures well as civil rights and responsibilities. elsewhere on a contract or will, on (Compare: procedural law) the theory that a document should be found valid if possible. 2) To order substituted service A method for the and agree to pay for an issue of stock, formal delivery of court papers that

410 successive sentences

takes the place of personal service. one party dies or, in the case of a public Personal service means that the papers official, when that public official is are placed directly into the hands of replaced or removed from office. the person to be served. Substituted subtenant See: sublease service, on the other hand, may be accomplished by leaving the documents success billing A method for lawyers with a designated agent, with another to bill clients that is based on how adult in the recipient’s home, with the lawyer solves the client’s problem, the recipient’s manager at work, or instead of the number of hours the by posting a notice in a prominent lawyer spends working on it. For place and then using certified mail to example, if a lawyer represents a send copies of the documents to the company that’s being sued, they might recipient. agree that the client will pay a certain fee if the lawyer settles the case for substitution Putting one person or thing an amount that the client’s insurance in the place of another. For example, a policy will cover. substitution of parties takes place when a new party is named to take the place succession The passing of property or of a party who has died or is otherwise legal rights after death. The word unable to continue as a party. Or, one commonly refers to the distribution attorney might substitute into a case of property under a state’s intestate to replace the attorney of record if, succession laws, which determine who for example, the client fired the first inherits property when someone dies attorney. without a valid will. When used in connection with real estate, the word substitution of attorney A document in refers to the passing of property by which a party to a lawsuit states that will or inheritance, as opposed to gift, his or her attorney is being replaced grant, or purchase. by another attorney or by the party acting in propria persona. (See also: successive sentences In criminal law, substitution) when a defendant has been convicted of more than one crime, the judge’s ruling substitution of parties A replacement of that the sentences for each conviction one of the parties in a lawsuit because will be served one after the other, rather of events that prevent the party from than at the same time (concurrent continuing with the trial. For example, sentences). substitution of parties may occur when

411 successor trustee successor trustee The person or institu- instrument (like a promissory note) at tion who takes over the management of the time the document is written. For living trust property when the original example, “I agree to pay you $500 for trustee has died or become incapaci- painting my living room.” tated. summary adjudication A court order suffering The pain, hurt, inconvenience, ruling that certain factual issues are embarrassment, and inability to already determined prior to trial, based perform normal activities as a result of on a motion by one of the parties, injury, for which a person injured by supported by evidence, contending that another’s negligence or wrongdoing these issues are settled and need not be may recover general damages. Usually in tried. For example, in a car accident the combination “pain and suffering.” case there might be overwhelming and uncontradicted evidence of the sufficient cause See: good cause defendant’s carelessness, but conflicting suicide The intentional killing of oneself. evidence as to the extent of the plaintiff’s injuries. The plaintiff might suicide clause Standard clause in life ask for summary adjudication on the insurance policies that limits payments issue of carelessness, but go to trial on made to survivors of a policyholder who the question of injuries. If there is any commits suicide within a certain period question as to whether there is conflict after purchasing the policy. on the facts on an issue, the summary sui generis (soo-ee jen-ris) Latin for of adjudication must be denied regarding its own kind, and used to describe a that matter. form of legal protection that exists summary judgment A final decision by outside typical legal protections— a judge, upon a party’s motion, that that is, something that is unique or resolves a lawsuit before there is a trial. different. In intellectual property The party making the motion marshals law, for example, ship hull designs all the evidence in its favor, compares it have achieved a unique category of to the other side’s evidence, and argues protection and are “sui generis” within that there are no “triable issues of fact.” copyright law. Summary judgment is awarded if the suit See: lawsuit undisputed facts and the law make it clear that it would be impossible for the sum certain An amount that is directly opposing party to prevail if the matter stated in a contract or negotiable were to proceed to trial.

412 supplemental summary probate A relatively simple sunset law A law that automatically probate proceeding available for “small terminates the agency or program estates,” as that term is defined by state it establishes unless the legislature law. Every state’s definition is different, expressly renews it. For example, a state and many are complicated, but a few law creating and funding a new drug states include estates worth $100,000 rehabilitation program within state or more. Some states allow summary prisons may provide that the program probate whenever the value of property will shut down in two years unless it in the estate doesn’t exceed what is is reviewed and approved by the state needed to pay a family allowance and legislature. certain creditors. sunshine laws Statutes that provide summation The final argument of public access to government agency an attorney at the close of a trial in meetings and records. which he or she attempts to convince superior court The main county trial the judge or jury of the virtues of court in many states, mostly in the the client’s case. (See also: closing West. (See also: state court) argument) supernumerary witness A witness beyond the required number of Jimmy Carter is the only U.S. President witnesses. For example, the third who served a single full four-year term witness where only two are needed to and never had the opportunity to appoint a witness the signing of a will. Supreme Court justice. supersedeas (soo-per-seed-es) Latin for “you shall desist,” an order (writ) by summons A form prepared by the an appeals court commanding a lower plaintiff and issued by a court that court not to enforce or proceed with informs the defendant that he or she a judgment or sentence pending the has been sued. The summons requires decision on the appeal or until further that the defendant file a response with order of the appeals court. the court—or in many small claims superseding cause See: intervening cause courts, simply appear in person on an appointed day—within a given time supervening cause See: intervening cause period or risk losing the case under the supplemental Completing or making terms of a default judgment. an addition to, particularly to a

413 supplemental needs trust

document—for example, a supple­ to refer the reader to an earlier cited mental complaint, supplemental claim, authority. or supplemental proceeding. supremacy clause Provision under Article supplemental needs trust See: special IV, Section 2 of the U.S. Constitution, needs trust providing that federal law is superior to and overrides state law when they Supplemental Register A secondary conflict. list of trademarks and service marks maintained by the U.S. Patent and Supreme Court America’s highest court, Trademark Office. The Supplemental which has the final power to decide Register provides limited trademark cases based on federal statutes or the rights and benefits and consists of U.S. Constitution, cases in which marks that do not qualify for the the U.S. government is a party, or in Principal Register, usually because they certain lawsuits between parties in are nondistinctive and consumers do different states. The U.S. Supreme not associate these terms with a specific Court has nine justices—one of source. (In trademark terminology, they whom is the Chief Justice—who are lack secondary meaning.) Descriptive appointed for life by the president and marks, surnames, and marks consisting must be confirmed by the U.S. senate. primarily of geographical terms are Most states also have a supreme court, commonly placed on the Supplemental which is the final arbiter of the state’s Register. (See also: secondary meaning, constitution and state laws. However, Principal Register) in several states, the highest state court uses a different name. suppression of evidence 1) A judge’s order that certain evidence may surcharge An additional charge of money not be admitted at trial because it made because it was omitted in the was obtained illegally, such as an original calculation or as a penalty, involuntary confession or drugs such as for paying a bill late. discovered in an illegal search. 2) For surety A person who agrees to be a prosecutor in a criminal case to responsible for another’s debt or improperly hide or withhold evidence obligation, such as a bonding company that he or she is legally required to that posts a bond for a building provide to the defense. contractor. Unlike a guarantor (who is supra (soo-prah) Latin for “above.” In liable to creditors only if the debtor fails legal briefs and decisions, it is used to perform) a surety is directly liable.

414 suspect classification surplusage Language in a legal document property. Police cannot use specialized that is irrelevant or has no legal effect heat-scanning surveillance devices to and therefore can be ignored. obtain evidence of criminal activity inside a home. Law enforcement surrebuttal In written or oral legal argu­ officials acquired additional surveillance ment, the moving party’s response to capability following enactment of The the responding party’s rebuttal to the Patriot Act. initial argument. surviving spouse A widow or widower. surrender value The amount of money an insurance policyholder would get surviving spouse’s trust When a couple from selling the policy back to the creates a bypass (AB) trust, the insurance company Only some kinds revocable trust of the surviving spouse of life insurance policies, such as whole after one spouse has died. life policies, have a surrender value. survivor A person who outlives another. Term life insurance has no surrender The term is often used in wills and trust value. (See also: avails) documents. For example a will might surrogate 1) A person acting on behalf leave property “to my sons, Arnold of another or a substitute, including and Zeke, or the survivor.” If only one a woman who gives birth to a baby son is alive at the time the property is of a mother who is unable to carry distributed, it would all go to him. the child. 2) A judge in some states survivors benefits An amount of money responsible only for probates, estates, available to a deceased worker’s and adoptions. surviving spouse and minor or disabled surrogate court See: probate court children, if the deceased worker qualified for Social Security retirement surveillance The act of observing or disability benefits. persons or groups either with notice or their knowledge (overt surveillance) survivorship See: right of survivorship or without their knowledge (covert suspect classification In constitutional surveillance). Intrusive surveillance by law, a group that meets certain quali- private citizens may give rise to claims fications that make the group likely of invasion of privacy. Police officers, subjects of discrimination. Suspect clas- as long as they are in a place they have sifications include those based on race, a right to be, can use virtually any national origin, and alienage. type of surveillance device to observe

415 suspended sentence suspended sentence A criminal sentence to a witness that he or she will tell the that is not enforced unless the defendant truth, which is done by a notary public, fails to meet conditions imposed by the a court clerk, a court reporter, or any­ judge (such as a requirement to make one authorized by law to administer restitution to victims or perform certain oaths. 3) To install into office by services) or commits another crime. administering an oath. suspension of deportation An immigra- swearing match A case that turns on the tion remedy that is no longer avail- word of one witness versus another. The able (with rare exceptions), it allowed outcome of a swearing match usually undocumented immigrants placed into depends on whom the jury finds most deportation proceedings to request trustworthy. permanent resident status on the basis sweat equity An ownership interest in of 1) continuous physical presence in property that results from the hard the United States for at least seven labor a person puts into improving it. years; 2) good moral character during For example, Jenny gave her brother this period; and 3) that the applicant’s James a share of her new business in departure from the U.S. would cause exchange for the hundreds of hours he “extreme hardship” to the applicant or worked to help her start it up. any qualifying U.S. citizen or lawful permanent resident relatives, includ- swift witness See: zealous witness ing spouse, parents, or children. The swindle To cheat through trick, device, nearest remedy available now is called false statements, or other fraudulent “cancellation of removal.” methods with the intent to acquire sustain To agree with or rule in favor of a money or property from another to party in court. For example, if a judge which the swindler is not entitled. (See agrees with an attorney’s objection to also: fraud, theft) a question at trial, the judge will say syndicate A joint venture among indi- “objection sustained.” viduals or corporations to accomplish swear 1) To declare under oath that one a particular business goal, such as the will tell the truth, (sometimes “the purchase, development, and sale of real truth, the whole truth, and nothing but estate, followed by division of the prof- the truth”). Failure to tell the truth, its. A syndicate is similar to a partner- and to do so knowingly, is the crime ship, but it has a specific objective or of perjury. 2) To administer an oath purpose after the completion of which it will dissolve.

416 T

tainted evidence In a criminal trial, courts by the Fourteenth Amendment. information that was obtained by illegal (See also: self-incrimination) means, including evidence that would tangible employment action An actual not have been discovered but for an change that has an actual adverse effect illegal search or seizure. This evidence is on the job or working conditions, such called “the fruit of the poisonous tree,” as a firing, demotion, or suspension. and is usually not admissible in court. When an employee claims to have been take To gain or obtain possession. For discriminated against or harassed by example, when beneficiary is named in a supervisor, a tangible employment a will to receive a gift, that person takes action supports the employee’s case the gift under the will. In criminal law, (and may be required to be proved). stealing is an unlawful taking. tangible personal property Personal taking See: eminent domain property that can be felt or touched. Examples include furniture, cars, taking against the will The choice of a jewelry, and artwork. In contrast, cash surviving spouse to not accept whatever and checking accounts are not tangible was left to him or her in the deceased personal property. The law is unsettled spouse’s will and to instead claim the as to whether computer data is tangible share of the estate that is allowed by personal property. (Compare: intangible state law. (See also: elective share) property) taking the Fifth A popular phrase that target witness A witness whom the grand refers to a witness’s refusal to testify on jury seeks to indict, or a witness who the ground that the testimony might has specific information sought by the incriminate the witness in a crime. grand jury. The principle is based on the Fifth Amendment to the U.S. Constitution, tax A governmental assessment upon which provides that “No person … property value, transactions (transfers shall be compelled to be a witness and sales), licenses granting a right, and against himself,” and is applied to state income. A tax levied directly on income

417 taxable income

or property is a direct tax. A tax levied to Tax Costs” and asks the judge to on the price of goods or services is an deny or reduce claimed costs. indirect tax. The government uses tax tax court A federal court which hears revenues to finance public services and taxpayers’ appeals from decisions of goods, such as building highways and the Internal Revenue Service. Tax schools. courts hear taxpayer appeals “de novo” taxable income An individual’s or (as a trial rather than an appeal), business’s gross income minus all and taxpayers do not have to pay the allowable deductions, adjustments, and amount claimed by the IRS before exemptions. their case is heard by the tax court. Tax court decisions may be appealed to the tax attorney A lawyer who specializes Federal District Court of Appeals. in taxes and has a special degree in tax law or certification from a state bar tax deduction See: deduction association. tax-deferred exchange See: 1031 tax auditor An IRS employee who exchange analyzes tax returns for correctness. tax evasion The intentional and fraudu- tax basis See: basis lent attempt to escape payment of taxes in whole or in part. If proved to tax bracket The percentage rate at which be intentional and not just an error or an individual’s or business’s last dollar ­difference of opinion, tax evasion can of income is taxed. In a graduated tax be a federal crime. Evasion is distin- system like that of the United States, guished from attempts to use inter- this rate is the highest rate the person pretation of tax laws or imaginative or business pays, because the the first accounting to reduce the amount of dollars of income are taxed at a lower payable tax. rate than subsequent dollars. For example, the first $20,000 of annual tax examiner See: tax auditor income might be taxed at 15%, and tax-exempt income Income that is the next $40,000 at 18%. Also called specifically made exempt from taxation marginal tax rate. by Congress, such as certain Social tax costs A motion to contest a claim for Security benefits, tax-exempt interest, court costs submitted by a prevailing welfare benefits, nontaxable life party in a lawsuit. It is called a “Motion insurance proceeds, and nontaxable pension income.

418 temporary restraining order tax fraud A willful act done with the temporary injunction See: preliminary intent to cheat in the assessment or injunction payment of any tax liability. Examples temporary insanity In a criminal case, include keeping two sets of books or a defense by the accused that he or using a false Social Secutiry number. she was briefly insane at the time the tax lien notice An IRS announcement crime was committed and therefore was of a tax debt recorded at a government incapable of knowing the nature of the record’s office in the county where the alleged criminal act. debtor resides or the business is located. tax loss carryover See: carryover “The income tax has made more liars out taxpayer bill of rights Federal tax laws of the American people than golf has.” that restrict IRS conduct and establish —Will Rogers taxpayer rights in dealing with the IRS. taxpayer identification number (TIN) Temporary Protected Status (TPS) The A number assigned by the IRS or the U.S. government may grant Temporary SSA to be used for tax administration. Protected Status (TPS) to persons Taxpayer identification numbers include already in the United States who came Social Security numbers, employer from certain countries experiencing identification numbers, and individual conditions of war or natural disasters. taxpayer identification numbers. TPS allows a person to live and work tax registration certificate See: business in the United States for a specific time license period, but it does not lead to U.S. permanent residence (a green card). tax return The form taxpayers must file with the taxing authority which temporary restraining order (TRO) An details the taxpayer’s income, expenses, order that tells one person to stop exemptions, deductions, and harassing or harming another, issued calculation of taxes. after the person being harassed appears before a judge or submits appropriate tax sale An auction sale of a taxpayer’s paperwork. A few days or weeks after property conducted by the federal the TRO is issued, the court holds government to collect unpaid taxes. a second hearing where the person tax withholding See: withholding being restrained can argue to the judge

419 tenancy

and the court can decide whether to tenancy but is only for married couples make the TRO permanent by issuing and, in a few states, same-sex couples an injunction. In domestic violence who have registered with the state. It situations, the police tend to be more is available in about half the states. willing to intervene if there’s a TRO in Both spouses have the right to enjoy place and the abused spouse can show the entire property. Neither one can the other spouse is violating it. unilaterally end the tenancy, and creditors of one spouse cannot force tenancy The right to occupy real a sale of the property to collect on property for a specific term, such as a debt. When one dies, the survivor under a one-year lease, for a series of automatically gets title to the entire periods until cancelled, (such as month- property without a probate court to-month rental agreement), or at will proceeding. Also called “tenancy by the (which may be terminated at any time). entireties.” (Compare: joint tenancy) tenancy at sufferance A description tenancy in common A way two or more of the nature of the tenancy that is people can own property together, in created after a lease has expired, but unequal shares. Each has an undivided before the landlord has demanded that interest in the property, an equal right the tenant quit (vacate) the premises. to use the property, and the right to During a tenancy at sufferance the leave his or her interest upon death to tenant is bound by the terms of the chosen beneficiaries instead of to the lease (including payment of rent) that other owners (as is required with joint existed before it expired. Also known as tenancy). In some states, two people are a “holdover tenancy.” presumed to own property as tenants tenancy at will A tenancy that is created in common unless they’ve agreed when the landlord allows the tenant otherwise in writing. to occupy the premises, but no formal tenant 1) Anyone, including a corpora- terms of the tenancy exist. A tenancy tion, who occupies or possesses land by at will may be terminated by proper right or title. 2) A person or corpora- notice from either landlord or tenant. tion who rents real property, with or tenancy by the entireties See: tenancy by without a house or structure, from the the entirety owner landlord. tenancy by the entirety A special kind tenants in common See: tenancy in of ownership that’s similar to joint common

420 term tender 1) To present to another person tenement 1) A term found in older an unconditional offer to enter into deeds or in antiquated deed language, a contract; a request for bids. 2) To referring to any structure on real present payment to another. property. 2) Old run-down urban apartment buildings with several floors reached by stairways. Hoagy Carmichael, songwriter, singer and actor, who wrote “Stardust” and tentative trust See: Totten trust other popular songs, was a lawyer. 1031 exchange A method of selling business or investment property but deferring payment of capital gains tender back rule A legal principle requir­ taxes by reinvesting the proceeds of the ing a party who seeks to invalidate sale in another business or investment a contract to return whatever that property. party received under the contract’s terms. For example, a former employee tenure 1) The right to occupy or hold who receives a severance package property, sometimes only for a set in exchange for agreeing not to sue period of time. 2) The right to hold a former employer for wrongful a position indefinitely, absent serious termination must tender back the misconduct or inability to perform the money if he or she decides to sue and duties of the position. For example, claim that the release is invalid. There federal judges have lifetime tenure, is an exception to the tender back rule and professors who are granted tenure for age discrimination claims brought generally have indefinite job security. under the Age Discrimination in 3) The length of time for which a Employment Act: Those suing for age person has held a particular position. discrimination despite having signed For example, “During my tenure on the a release do not have to tender back Board of Directors, the company has the money they received for signing doubled in size.” (although they may have to reimburse term 1) In contracts or leases, a period the employer for that money if they win of time, such as one year, in which the lawsuit). a contract or lease will be in force. tender offer A public offer to purchase 2) In contracts or leases, a specified stock at a specified price per share, condition, often also called a clause, usually done to gain a controlling such as a provision that prohibits interest in a corporation. tenants from keeping pets. 3) A period

421 term life insurance

of time for which a court sits or a which time the property is transferred legislature will be in session. to the beneficiary. term life insurance No-frills life insur- testamentary trust A trust created by a ance, with neither cash surrender value will, effective only upon the death of nor loan value (an amount that can be the will maker. (Compare: living trust) used as collateral for a loan). Term life testate The circumstance of dying after insurance provides a pre-set amount of making a valid will. A person who dies coverage if the policyholder dies dur- with a will is said to have died testate. ing the period of time specified in the (Compare: intestate) policy. Policyholders usually have the option to renew at the end of the term testate succession Distribution of rights for the period of years specified in the and property through a will. (Compare: policy. Unlike whole life insurance, pre- intestate succession) miums generally increase as the insured testator Someone who makes a will. person gets older and the risk of death increases. testatrix A female will maker. However, modernly, the word testator is used for terrorem clause See: no-contest clause both men and women. testacy The condition of dying with a testify To provide oral evidence under valid will. (Compare: intestacy) oath at a trial or at a deposition. testamentary Pertaining to a will. testimony Evidence given under oath by testamentary capacity The mental a witness either at trial or in an affidavit competency to execute a will at or deposition. the time the will was signed and TFRP See: trust fund recovery penalty witnessed. Generally, the will maker must understand nature of making theft The generic term for all crimes a will, have a general idea of what he in which a person intentionally takes or she possesses, and know who his ­personal property of another without beneficiaries are. permission or consent and with the ­intent to convert it to the taker’s use testamentary disposition Leaving (including potential sale). In many property at one’s death, most often states, when the value of the property though a will. The person making taken is low (for example, less than the disposition retains ownership of $500) the crime is “petty theft” and a the property until his or her death, at

422 three-day notice

misdemeanor; but it is “grand theft” third-party trust A special needs trust and a felony for larger amounts. Theft is funded exclusively with property given synonymous with “larceny.” Although by people other than the beneficiary. robbery (taking by force), burglary (Compare: self-settled trust) (taking after entering unlawfully), 30-day notice In a month-to-month and embezzlement (stealing from an tenancy or tenancy at will, the notice employer) are all commonly thought from a landlord to a tenant to leave the of as theft, they are distinguished by premises within 30 days; or the notice the means and methods used, and are by a landlord advising of a change in separately designated as specific types of tenancy terms (such as a rent increase) crimes in criminal charges and statutory that will take effect in 30 days; or the punishments. (See also: larceny, robbery, notice from a tenant to a landlord that burglary, embezzlement) the tenant intends to leave in 30 days. third degree instruction See: dynamite The landlord’s notice does not need to charge state a reason for the landlord’s action, although it must typically meet specific third party A person who is not a party state (and sometimes rent control) rules to a contract or a transaction, but who as to preparing and serving notice. The has an involvement. The third party landlord’s service of the notice and the normally has no legal rights in the tenant’s failure to vacate at the end of matter, unless the contract was made 30 days provides the basis for a lawsuit specifically for the third party’s benefit. for an unlawful detainer or eviction (See also: third-party beneficiary) lawsuit and a court judgment ordering third-party beneficiary A person who is the tenant to leave. not a party to a contract, but has legal three-day notice A notice from a rights to enforce the contract or share landlord to a tenant to pay delinquent in proceeds because the contract was rent within three days or quit (leave specifically intended for that person’s or vacate) the premises. State laws benefit. For example, a grandparent typically set specific rules for preparing contracts to buy a car for a grandchild. and serving three-day notices. A If the seller refuses to go through with landlord may file an eviction lawsuit the deal after receiving payment, the for unpaid rent against a tenant who grandchild may sue, even though not fails to pay or vacate within three days. a party to the contract. (Compare: While the three-day notice period incidental beneficiary) is common, it does not apply in all

423 341 meeting

states or in all circumstances, such as imprisonment, for a repeat offender’s property covered by local rent control third felony conviction. ordinances. tidelands 1) Land between the high and 341 meeting See: meeting of creditors low tides that is uncovered each day by tidal action. It belongs to the owner of 341 notice A notice sent to the debtor the land that fronts on the sea at that and creditors in a bankruptcy case, point. 2) Land that is submerged below which announces the date, time, the low-tide point of the sea but is still and location of the first meeting of the territory of a state or nation. creditors. The 341 notice is sent along with the notice of bankruptcy filing and information about important “The constitution is what the judges say deadlines by which creditors have to it is.” take certain actions to preserve their —Chief Justice Charles Evans rights in the case. Hughes (before he was appointed to the Supreme Court) 342 notice A notice the court clerk is re- quired to give debtors in a bankruptcy case, pursuant to Section 342 of the TILA See: Truth in Lending Act Bankruptcy Code, to inform them of their obligations and the consequences time is of the essence A phrase often of not being completely honest in their used in contracts to emphasize that any bankruptcy case. delays will be grounds for termination. three-of-five test A rebuttable IRS timely Within the time required by presumption that a business venture statute, court rules, or contract. For that does not make a profit in three out example, if a notice of appeal must be of five consecutive years of operation filed within 60 days of the entry of is a hobby and not a business for tax judgment, a notice filed on the 61st day purposes. Not meeting this test has would not be timely. significant tax consequences because time served At the time a criminal businesses can take advantage of defendant is sentenced, the amount of many tax benefits and advantages that time the defendant has already spent hobbies do not get. in jail awaiting trial or a plea of guilty. three strikes A state statute requiring When a judge sentences a defendant to a harsher sentence, especially life “time served,” the sentence is the same

424 title search

as the time the defendant has spent in title insurance Insurance issued by a jail, and the defendant is set free. title insurance company that protects a property buyer against loss if it is later title Ownership of real estate or personal discovered that title is imperfect—that property. With real estate, title is is, that someone else has a claim to the evidenced by a deed (or sometimes, property or that the description on the another document) recorded in the deed is erroneous. (See also: title search) county land records office. title report The written analysis of a real Title VII A federal law (Title VII of the estate title search, including a property Civil Rights Act of 1964) that prohibits description, names of titleholders employment discrimination based on and how title is held (joint tenancy, race, color, religion, sex (including for example), tax rate, encumbrances pregnancy), national origin, and genetic (mortgages, liens, deeds of trust, information. recorded judgments), and real estate Title X The name of a federal law (“Title taxes due. A title report is needed Ten,” the Residential Lead-Based Paint before a lender will agree to finance Hazard Reduction Act) passed in 1992, purchase of the property. A title report aimed at helping residential landlords is prepared by a title company, an evaluate the risk of lead poisoning in abstracter, an attorney, or an escrow each housing situation. Among other company, depending on local practice. things, Title X requires landlords title search A search of the local public to disclose the presence of known land records, usually made by a title lead paint hazards to prospective insurance company before a purchase and current tenants, to give them an of a parcel of real estate, to see whether informational booklet, and to warn the current owner of the real estate again if renovations will disturb lead actually has good title to the land. The paint. Home sellers must also disclose search should turn up any easements, known hazards. (See also: lead based mortgages, tax liens, or other liens on hazard) the property. If the title search reveals a title abstract See: abstract of title problem (“cloud on the title”), such as a break in the chain of title, inaccurate title company A company that performs property description in a previous deed, title searches and issues title insurance or some old secured loan which has not when real estate is sold. (See also: been released, the problem will have escrow) to be cleared up before the sale can go

425 TOD

through. (See also: chain of title, title either entirely or up to a certain dollar insurance, title report) amount. (See also: exempt property) TOD Abbreviation for “transfer on tort An injury to one person for which death.” the person who caused the injury is legally responsible. A tort can be TOD deed See: transfer-on-death deed intentional—for example, an angry toll 1) To stop or suspend the operation punch in the nose—but is far more of a statute. Most often, this term likely to result from carelessness (called is used in reference to statutes of “negligence”), such as riding your limitations, which set the time limits bicycle on the sidewalk and colliding for bringing a lawsuit or criminal with a pedestrian. While the injury prosecution on particular types of legal that forms the basis of a tort is usually claims. For example, the statute of physical, this is not a requirement— limitations for filing a lawsuit may be libel, slander, and the “intentional tolled if the plaintiff didn’t realize he or infliction of mental distress” are on she had been injured by the defendant’s a good-sized list of torts not based actions until after the time period to on a physical injury. A tort is a civil sue had run out. 2) A fee charged to use wrong, as opposed to a criminal wrong. something, such as a bridge, turnpike, (Compare: crime) or ferry. tort claims act A federal or state law tontine An agreement in which investors that waives the government’s sovereign receive annuity payments, with the immunity under certain conditions, special provision that when one allowing lawsuits by people who claim participant dies, his or her share goes to they have been harmed by negligent the others (increasing the payments to or intentional torts (wrongful acts) by the survivors). Generally, the last to die a government agency or its employees. receives the remaining funds. They are Before the enactment of tort claims illegal in the United States. acts, governmental bodies could not be sued without the specific permission of tools of the trade The items a person the government. The federal version is needs to pursue his or her occupation. the Federal Tort Claims Act. Many state laws provide that tools of the trade are exempt property—that is, tortfeasor A person who commits a tort they may not be seized by creditors or (civil wrong), either intentionally or by the trustee in a bankruptcy case— through negligence.

426 trade fixture tortious Constituting a tort (civil wrong), appears in a residence or workplace. referring to an act that is a tort. Some molds produce toxins (a substance that prevents other molds tortious interference Causing harm by from growing nearby), and some people intentionally 1) disrupting a contractual are sensitive to them, but the majority relationship, for example by prevent- of molds are merely unsightly and ing one party from delivering goods on destructive to property and do not time, or 2) harming a business relation- cause health problems. ship or activity, for example, by spread- ing lies about a competitor to one of its toxic tort A personal injury caused by clients. exposure to a toxic substance, such as asbestos or hazardous waste. Victims can sue for medical expenses, lost “I cannot agree that it should be the wages, and pain and suffering. declared public policy of Illinois that a cat visiting a neighbor’s yard or crossing the trade dress Various design elements highway is a public nuisance.” used to promote a product or service. —Adlai E. Stevenson, vetoing a bill For example, trade dress includes the requiring that cats be restrained unique shape of a bottle, the color from leaving their owners’ property. of a pill, or the decorative elements within a chain restaurant. Trade dress can be protected under trademark law Totten trust A bank account that’s held if it is distinctive and a showing can in trust for a beneficiary, who inherits be made that the average consumer any money in the account when the would likely be confused as to product ­account holder dies. Probate proceed- origin if another product had a similar ings are not necessary to transfer the appearance. money. A Totten trust works just like a trade fixture A piece of equipment placed payable-on-death bank account. on or attached to commercial real to wit A term that means “that is to say” estate, which is used in the tenant’s or “namely.” Example: “The passengers trade or business. Trade fixtures differ in the vehicle, to wit: Arlene Jones, from other fixtures in that they may Betty Bumgartner, and Sherry Younger, be removed from the real estate (even were uninjured.” if attached) at the end of the tenancy, while ordinary fixtures attached to the toxic mold A popular phrase often used real estate become part of it. incorrectly to refer to any mold that

427 trademark trademark A word, phrase, logo, graphic occur until a mark has been used in symbol, or other device that is used commerce. to identify the source of a product trademark search An investigation to or service and to distinguish it from discover any potential conflicts between competitors. Some examples of a proposed trademark and existing trademarks are Ford (cars and trucks), ones, and preferably done before a new Betty Crocker (food products), and trademark is used in commerce. A Microsoft (software). For all practical trademark search reduces the possibility purposes, a service mark is the same as of inadvertently infringing a mark a trademark—except that trademarks belonging to someone else. A business promote products while service marks can conduct a preliminary search promote services. Some familiar service using the U.S. Patent and Trademark marks include McDonald’s (food Office’s online trademark database. The services), FedEx (delivery services), and most thorough trademark searches are Fidelity (financial services). accomplished by professional search trademark owner The person or entity firms. who retains legal control over all (or trade name The formal or official name some) of the rights granted under trade­ of a business—that is, the name the mark law, usually the first business to business uses on its letterhead and use a distinctive trademark on goods bank account. A trade name may or services in commerce. Federal serve as a company’s trademark if it is registration is not a prerequisite of used to market the company’s goods trademark ownership but it offers the or services. For example, “Dell” is the trademark owner certain benefits. S( ee trade name for Dell, Inc. It is also a also: trademark registration) trademark used by the company for trademark registration A grant by personal computers, servers, software, a state or the federal government and certain computer-related services. indicating that a trademark has met (Compare: trademark) certain statutory requirements. Federal trade secret Any formula, pattern, trademark registration makes it easier device, or compilation of information for the owner to protect against would- that is used in business, that is not be copiers and puts the rest of the generally known, and that gives the country on notice that the mark is owner an opportunity to obtain an already taken. Registration will not advantage over competitors who do not

428 transsexual

know it. A trade secret must also be the quickly, outside of probate. In most subject of efforts that are reasonable states, securities can be registered in under the circumstances to maintain its TOD form. In some states, you can secrecy. register vehicles in this way or create transfer-on-death deeds for real estate. transaction An event associated with the transfer of an amount of money (debit transfer-on-death deed A real estate deed or credit) in the operation of a business. that takes effect at death and allows a property owner to leave property transcript The official written record of in a way that avoids probate court all proceedings in a trial, hearing, or proceedings after death. It is allowed deposition, taken down by the court in only some states. Sometimes called a reporter. In most appeals a copy of the beneficiary deed. trial transcript is required so that the court of appeals can review the entire transferred intent Intent to commit a proceedings in the trial court. criminal or civil wrong against one person that instead harms a different transfer To move ownership or person. In this situation, the intent possession of an asset (or an interest in necessary to convict or find the an asset) from one party to another. wrongdoer liable transfers from the The term encompasses all methods for intended act to the committed act. disposing of an asset, including by gift, For example, someone who intends to sale, release, lease, and so on. shoot and kill one person, but misses transfer agent The person or company and kills a bystander may be convicted that handles the paperwork when of murder; the perpetrator had the shares of a corporation’s stock are necessary criminal intent even though transferred to a new owner. he or she didn’t intend to kill the bystander. transfer in contemplation of death A gift made by a person who believes that transgender The state of a person’s gender he or she will soon die. Also called gift identity (self-identification as male or causa mortis. Recovery of health may female) not matching their assigned sex void the gift. at birth. (See also: transsexual) transfer-on-death (TOD) Refers to transsexual A person who identifies the right to name a beneficiary in a with a sex different from the physical document of title which allows the or genetic sex with which the person beneficiary to receive the property was born. Often, transsexuals undergo

429 treason

surgery to bring their physical sex into under Article II, Section 2 of the conformity with their experienced Constitution. Presidents sometimes get gender identity. around this requirement by entering into “Executive Agreements” with treason The crime of betraying one’s leaders of other countries; these are country. Treason requires overt acts mutual understandings rather than and includes attempts to make war enforceable treaties. against the state, sharing govenment secrets with other countries, espionage, or materially supporting the enemies of Judgment at Nuremberg. (1961) Nazi one’s country. war crimes trial with an Academy treasury bill A promissory note issued Award winning screenplay. The star-studded cast includes Spencer Tracy, Burt Lancaster, in multiples of $10,000 by the U.S. Maximilian Schell (who also won an Oscar), Treasury with a maturity date of not Marlene Dietrich, Judy Garland, Richard more than one year. (See also: treasury Widmark, and Montgomery Clift. bond, treasury note) treasury bond A long-term bond issued by the U.S. Treasury. (See also: treasury treble damages Tripling the amount bill, treasury note) of actual damages to be paid to a prevailing party in a lawsuit. Treble treasury note A promissory note issued damages are sometimes provided by law by the U.S. Treasury for a period of in order to punish intentional or willful one to five years. S( ee also: treasury bill, behavior of the losing party. treasury bond) trespass The act of entering someone’s treasury stock Stock of a private corpora- property without permission or tion that was issued and then bought authority. (Although it usually refers back or otherwise reacquired by the to real estate, trespass can apply to corporation. personal property as well.) Trespassing treatise A legal reference book, usually can be a tort (a civil wrong, which covering an entire legal subject. the property owner can sue over) and can be a crime if it’s done willfully. treaty A pact between nations that, Examples of trespass include erecting a if entered into by the United States fence on another’s property or dumping through its Executive Branch, must be debris on another’s real estate. approved by two-thirds of the Senate

430 trust trial The examination of facts and law decision for correctness. A trial de presided over by a judge, magistrate, novo is common on appeals from small or other person with authority to hear claims court judgments. the matter (such as a lawyer appointed tribunal Any court, judicial body, or to hear the case). Trials begin with board which has judicial or quasi- the selection of a jury (unless the case judicial functions (such as a public will be heard without one), followed utilities board that sets rates or a by opening statements by each side if planning commission that can allow they choose to give them. (The defense variances from zoning regulations). may also give an opening statement just before it presents its case.) The plaintiff trier of fact The jury responsible for (in a civil case) or the prosecution (in deciding factual issues in a trial, if there a criminal case) presents its side, then is a jury. If there is no jury the judge the defense puts on its case. Sometimes is the trier of fact as well as the trier the plaintiff or prosecution presents of the law. In administrative hearings, more evidence, called rebuttal evidence, an administrative law judge, a board, as does the defense. Following closing commission, or referee may be the trier arguments, the jury (if there is one) is of fact. instructed by the judge on the law they triple net lease See: net lease must apply when deciding whether the plaintiff or prosecution adequately TRO See: temporary restraining order proved their case. The trial ends when true bill The name for the decision by a the jury reaches a verdict, or when they grand jury that the evidence presented fail to do so and the judge declares a to it, contained in the prosecutor’s mistrial. indict­ment, justifies charging the trial court The court that has original defendant with a crime. This decision jurisdiction and holds the original trial results in the indictment being sent to where all the evidence is first received the trial court. (See also: grand jury, and considered. (Compare: appellate indictment) court) trust An arrangement under which one trial de novo A trial held on appeal, person, a trustee, manages property for in which the appeals court holds a a beneficiary. The person who creates trial as if no prior trial had been held, the trust is called the settlor, trustor, considering the evidence anew rather or grantor. There are many kinds of than reviewing the lower court’s trusts, some created during the settlor’s

431 trust administration

lifetime and some at death. Trusts trustee The person (or business) who are used for, among other things, manages assets held in trust, under the avoiding probate court proceedings, terms of the trust document. A trustee’s saving on estate tax, providing quality purpose is to invest trust assets and management of assets, and keeping distribute trust income or principal to money out of the hands of spendthrift beneficiaries as directed in the trust beneficiaries. S( ee also: living trust, document. With a simple probate- testamentary trust) avoidance living trust, the person who creates the trust is also the original trust administration The trustee’s trustee. (See also: successor trustee) management of trust property according to the trust’s terms and for trustee in bankruptcy See: bankruptcy the benefit of the beneficiaries. trustee trust corpus Latin for “the body” of trustee powers The provisions in a trust the trust. This term refers to all the document defining what the trustee property transferred to a trust. For may and may not do. example, if a trust is established (funded) trust fund The principal, or corpus, of a with $250,000, that money is the trust. corpus. Also called the trust res. trust fund recovery penalty (TFRP) A trust declaration See: declaration of trust penalty from the IRS for not paying trust deed The most common instrument “trust fund” taxes, which are taxes a of financing real estate purchases in company withholds from an employee’s California and some other states (most paycheck, including Social Security states use mortgages). The trust deed and Medicare taxes and federal income transfers the title to the property to a (withholding) taxes. This penalty can trustee—often a title company—who be assessed against any owner, officer, holds it as security for a loan. When the or company employee whose job is loan is paid off, the title is transferred related to accounts payable, payroll, or (reconveyed) to the borrower. The the financial operations of the business. trustee will not become involved in trust fund taxes Taxes a company with­ the arrangement unless the borrower holds from an employee’s paycheck, defaults on the loan. At that point, the including Social Security and Medicare trustee can generally sell the property taxes and federal income (withholding) in a nonjudicial foreclosure and pay the taxes. A trust fund recovery penalty lender from the proceeds.

432 “Twinkie” defense

can be assessed when a business doesn’t amount, and due dates of all payments pay these taxes to the Internal Revenue necessary to pay off the loan. Service. turncoat witness A witness who was trust instrument See: declaration of trust expected to be a friendly witness, but who becomes a hostile witness during trust merger Under a trust, the situation the course of the trial. that occurs when the sole trustee and the sole beneficiary are the same person turn state’s evidence The decision by or institution. Then, there’s no longer a person charged with a crime, or the separation between the trustee’s suspected of a crime, to cooperate with legal ownership of trust property from the prosecution and testify against the beneficiary’s interest. The trust another participant in the criminal “merges” and ceases to exist. activity. In exchange for giving information or testifying, the person trustor See: settlor who has “turned” gets some sort of trust protector A person or company lenient treatment, such as a reduced with the job of keeping an eye on a charge, a plea bargain to a lesser charge, trustee and making sure the trust’s or a promise that the prosecution will purposes are fulfilled. The trust recommend a light sentence. protector’s powers, which are set out “Twinkie” defense Slang for a claim by in the document that creates the trust, criminal defendants that at the time of may include helping the trustee with the crime, they were suffering from a legal, investment, and tax matters. The mental impairment (short of insanity) trust protector may also have authority caused by intoxication, disease, or to settle disputes among trustees or trauma, which prevented them from beneficiaries and may be able to appoint having the mental state required to a new trustee if the original one isn’t hold them responsible for the crime. following the terms of the trust. The phrase arose from the defense trust res See: trust corpus argued successfully by Dan White, charged with murdering San Francisco Truth in Lending Act (TILA) A federal Mayor George Moscone and Supervisor law that requires lenders to disclose Harvey Milk. White claimed that the true cost of credit transactions the sugar high resulting from eating by providing certain information to “Twinkie” cupcakes made it impossible borrowers, including the terms of a for him to form the intent necessary loan, interest rates, and the number,

433 typosquatting

for a murder conviction. White was example, a typosquatter might purchase convicted of manslaughter instead domain names such as www.lnadsend. of murder. (See also: manslaughter, com and www.landswnd.com and then insanity) demand money for referring customers under the Land’s End affiliate program. typosquatting The process of acquiring Typosquatting is a variation of misspellings of a domain name in cybersquatting, an illegal practice in the hopes of catching and exploiting which a domain name is acquired in traffic intended for another website. For bad faith.

434 U

UBO Short for unincorporated business unbundled legal services The provision organization. (See: Massachusetts trust) of legal services by an attorney who does not represent the client or take UCC See: uniform commercial code over the entire case, but performs UCC-1 Form See: UCC financing specific services such as appearing at statement one hearing, preparing a legal brief, or negotiating a settlement after the UCC Financing Statement A standardized client has prepared the case as a self- form that a lender files with a state represented party. Most common in agency (usually a Secretary of State) to divorce cases. secure an interest in personal property that the borrower used as collateral for unclean hands See: clean hands doctrine a loan. Also called a UCC-1 Form. unconscionability See: unconscionable UCCJEA See: Uniform Child Custody unconscionable When one party to a Jurisdiction and Enforcement Act contract takes advantage of the other ultimate fact In a trial, a fact that is due to unequal bargaining positions, essential to the case. perhaps because of the disadvantaged party’s recent trauma, physical infirmity, ultrahazardous activity An action or ignorance, inability to read, or inability process that is so inherently dangerous to understand the language. A contract that there is strict liability for the will be terminated as unconscionable person or entity conducting the activity. if the unfairness is so severe that it is Examples: working with high explosives shocking to the average person. or conducting a professional auto race on public streets. unconstitutional In opposition to the constitution. Used to describe to a ultra vires (uhl-trah vey-rehz) Latin for statute, governmental conduct, court “beyond powers.” It refers to conduct decision, or private contract that by a corporation or its officers that violates one or more provisions of the exceeds the powers granted by law.

435 uncontested divorce

constitution. Can be used in reference public does not buy all the shares or to the federal constitution or a state bonds. 3) To guarantee by investment constitution. in a business or project. uncontested divorce A divorce in which underwriter Another term for an insurer the parties are able to agree on how to who assumes the risk of another’s loss divide their property and share custody and compensates for the loss under the of their children, and join together in terms of an insurance policy. filing the appropriate paperwork to have the divorce granted. (See also: default divorce) “Ignorance of the law excuses no man.” —John Selden undercapitalization A situation in which a company does not have enough cash available to carry on its business. undisclosed principal A person whose undersecured debt A debt secured by identity is hidden either because an collateral that is worth less than the agent refuses to disclose the identity, or debtor owes. A $500,000 mortgage on a because the agent deliberately misleads house worth $450,000 is undersecured, third parties into believing that the for example. agent is the principal. In either case, the third party does not know how to under the influence Phrase used to pursue the real principal in the event of describe a person who is intoxicated, a dispute. affected by the use of alcohol or drugs, or a combin­ation of both. (See also: undivided interest Ownership right driving under the influence) to use and possess property that is shared by two or more co-owners. No underwater Slang for a situation in individual co-owner has an exclusive which a homeowner owes more on the right to any portion of the property. mortgage than the current value of the (See also: joint tenants, tenants in property. common, tenants by the entirety) underwrite 1) To agree to pay an obliga- undocumented immigrant A foreign- tion which may arise from an insurance born person who lacks a right to be policy. 2) To guarantee purchase of all in the United States, having either shares of stock or bonds being issued by entered without inspection (and not a corporation, including an agreement subsequently obtained any right to to purchase by the underwriter if the

436 unified estate and gift tax

remain) or stayed beyond the expiration pressure because of illness or emotional date of a visa or other status. state, and is taken advantage of by someone he or she depends on for undue burden In the field of reproductive guidance—for example, a lawyer or rights, having the purpose or effect of family member. Undue influence is a placing a substantial obstacle in the ground for challenging the validity of path of a woman seeking an abortion a will or other document in court. (See of a fetus that is not yet viable. Laws also: will contest) that impose an undue burden on a fundamental right are unconstitutional unearned income Income from invest­ under current Supreme Court cases. ments, such as interest, dividends, or capital gains, or any other income that undue hardship 1) An action to accom- isn’t compensation for services. modate an employee or applicant with a disability that would require significant unemployment insurance (UI) A joint difficulty or expense when considered state and federal program that provides in light of factors such as an employer’s some wage replacement for up to 26 size, financial resources, and the nature weeks to employees who have lost their and structure of its operation. An jobs through no fault of their own. employer need not provide an accom- Most employees who are laid off or modation that would impose an undue fired may collect unemployment, unless hardship. (See: reasonable accommoda- they were fired for willful misconduct. tion) 2) The circumstances in which unfair competition Any commercial a debtor may discharge a student loan behavior or activity that is legally unjust in bankruptcy. For example, a debtor or deceptive. It includes such diverse who has no income and little chance activities as trademark infringement, of earning enough in the future to pay false advertising, and theft of trade off the loan may be able to show that secrets but can include any illegal dirty ­repayment would be an undue hard- tricks within the marketplace. If a court ship. finds that an activity constitutes unfair undue influence Improper influence competition, it will prevent that activity over someone who is making financial from occurring in the future and may decisions, commonly about making award money damages to the person or gifts, leaving property at death, or company harmed by the activity. signing a contract. Typically, it occurs unified estate and gift tax See: estate tax, when the person is susceptible to gift tax

437 Uniform Anatomical Gift Act

Uniform Anatomical Gift Act A uniform choosing, called a custodian. The gift is law adopted by every state that governs made during the donor’s lifetime, not organ and body donations. It covers at death. The custodianship ends, and such matters as how anatomical gifts the property goes to the beneficiary can be made and offers a suggested outright, at an age set by state law, form for making donations. It also usually 18 or 21. (Compare: Uniform provides a list of relatives who can Transfers to Minors Act) authorize organ donation in the absence uniform law A law written by legal of donation arrangements made before scholars and adopted (often with death. States are free to adopt the act modifications) by individual states. as written or to modify it through the state’s legislative process. Uniform Premarital Agreement Act A law crafted by national lawmakers Uniform Child Custody Jurisdiction to promote consistency in prenuptial and Enforcement Act A law in every agreements from state to state. The state that determines which court UPAA governs such matters as what has jurisdiction over custody matters a premarital agreement can include involving children—in other words, and what will render an agreement where a custody action can be brought unenforceable. The UPAA has been if the children have lived in different adopted in some form by most states. places in the period just before the custody action begins. Uniform Principal and Interest Act A uniform statute, adopted by most states, Uniform Commercial Code A set of laws that in its most recent version allows that govern commercial transactions some trustees to make adjustments (such as sales, warranties, negotiable that were not formerly allowed. For instruments, loans secured by personal example, a trustee could distribute property, and other commercial matters) principal to income beneficiaries if it that has been adopted in some form in were necessary to carry out the purpose every state. of the trust. Uniform Gifts to Minors Act (UGMA) A Uniform Probate Code A standard uniform law, adopted by many states, comprehensive set of laws, adopted in that allows an adult to give money or whole or in part by various states, that securities to a child but have the assets regulate the administration of estates, managed by someone of the donor’s including wills and trusts.

438 unilateral contract

Uniform Prudent Investor Act A uniform that provides a method for transferring statute that sets out guidelines for property to minors and arranging for trustees to follow when investing trust an adult to manage it until the child is assets. old enough to receive it. Uniform Resource Locator (URL) The address of a specific location on the “The law embodies the story of a nation’s Web. URLs commonly contain a development through many centuries, domain name and a description of the and it cannot be dealt with as if it contained material sought. For example, http:// only the axioms and corollaries of a book of www.nolo.com/patents.html is the numbers.” URL for an article on patents on Nolo’s —Justice Oliver Wendell Holmes, Jr. website. Uniform Simultaneous Death Act A Uniformed Services Employment and standard set of laws, enacted by some Reemployment Rights Act (USERRA) U.S. states, to deal with inheritance in A federal law that guarantees certain the case that two people die simultane- employment rights to employees who ously. The Act says that if two (or more) serve in the Army, Navy, Marine Corps, people die within 120 hours of each Air Force, Coast Guard, Reserves, other, each is considered to have prede- Army or Air National Guard, or the ceased the other unless a will or other Commissioned Corps of the Public document specifies otherwise. Health Service. USERRA prohibits Uniform Transfer-on-Death Securities discrimination against these employees, Registration Act A statute that allows requires employers to reinstate them people to name a beneficiary to inherit to the position they would have held if stocks or bonds without probate. This not for serving in the military, requires is called registering the securities in employers to restore their benefits beneficiary or transfer-on-death form. on return from military service, and The owner of the securities can register prohibits employers from firing them, them with a broker using a simple except for cause, for up to one year after form that names a person to receive the they return from military service. property after the owner’s death. Every unilateral contract An agreement to pay state but Texas has adopted the statute. in exchange for performance, if the Uniform Transfers to Minors Act (UTMA) potential performer chooses to act. An A statute, adopted by almost all states, example would be if you promise to

439 unincorporated business organization

pay someone $1,000 if they bring your amount of time. (Compare: closed car from Cleveland to San Francisco. shop) Bringing the car is acceptance (and unissued stock A corporation’s shares performance) of the agreement. of stock which are authorized by its (Compare: bilateral contract) articles of incorporation, but have never unincorporated business organization been issued (sold) to anyone. (UBO) Any business that is not United States Attorney The prosecutor in incorporated. (See: corporation) charge of enforcing the federal criminal uninsured motorist clause A clause laws of the United States in a particular in an automobile insurance policy district. Each U.S. Attorney is respon­ that provides that if the owner or a sible for enforcing certain federal civil passenger suffers any injury because of statutes, such as the Civil Rights Act. the actions of a driver of another vehicle U.S. Attorneys are appointed by the who does not have liability insurance, president and the job is considered a the insurance company will pay its political plum. Typical cases brought insured’s actual damages. by the U.S. Attorney and Assistant U.S. Attorneys are immigration violations, union security agreement A contract drug importation, securities fraud, between an employer and a union and bank robberies. Any offense requiring workers to make certain committed on federal property (such as payments (called “agency fees”) to a military base or national park) may be the union as a condition of getting or ­prosecuted by the U.S. Attorney. keeping a job. Although it is illegal to require an employee to join a union, United States Citizenship and workers may be required to instead pay Immigration Services (USCIS) A agency fees if such an agreement is in branch of the Department of place. Union security agreements are Homeland Security (DHS). USCIS prohibited in right to work states. is primarily responsible for handling immigration benefits, such as union shop A business in which a applications for asylum, work permits, majority of the workers have voted green cards, and citizenship. to name a union as their certified bargaining agent. Employers may hire United States Copyright Office See: nonunion workers, but these workers Copyright Office must join the union within a specified

440 unreasonable search and seizure

United States Patent and Trademark and policy proceed payments, and Office (USPTO) An administrative how much is retained and invested for branch of the U.S. Department of savings. This information isn’t usually Commerce charged with overseeing provided with whole life policies. and imple­ment­ing the federal laws on unjust enrichment A legal principle that patents and trademarks. This includes if a person receives money or other examining, issuing, classifying, and property unfairly and at the expense of maintaining records of all patents and another—that is, by chance, mistake, trademarks issued by the United States. or without any personal effort—the United Steelworkers of America v. Weber recipient should return the property to (1979) A U.S. Supreme Court case the rightful owner. In lawsuits based in which the Court ruled that the on unjust enrichment, courts can order 1964 Civil Rights Act provisions that the property be returned (referred for affirmative action programs to to as making restitution). encourage minority hiring for jobs in unlawful See: illegal which the minorities were previously underrepresented were constitutional. unlawful assembly When three or more people meet with the intention universal life insurance A type of of carrying out an unlawful act to whole life insurance that offers some deliberately disturb the peace. additional features and advantages. Like whole life insurance, universal unlawful detainer A legal action to life insurance accumulates cash value evict a tenant that involves properly through investment of the premium terminating the tenancy before going payments. The unique feature of to court and seeking possession of the universal life insurance is that it has property, unpaid rent, and/or damages. variable premiums, benefits, and Also known as an eviction lawsuit. payment schedules, all of which are unqualified ownership Ownership tied to market interest rates and without conditions or limitations. the performance of the investment (Compare: qualified ownership) portfolio. Also, universal life policies normally provide the insured with more unreasonable search and seizure A consumer information. For example, search and seizure by a law enforcement an insured person is told how much of officer without a search warrant and the policy payment goes for insurance without probable cause to believe that company overhead expenses, reserves, evidence of a crime is present. Such a

441 unsecured debt

search or seizure is unconstitutional amusement or a minor improvement on under the Fourth Amendment (applied an existing invention. to the states by the Fourteenth Amend­ use tax A tax imposed by a state to ment), and evidence obtained from the compensate for the sales tax lost when unlawful search may not be introduced an item is purchased outside of the in court. (See also: fruit of the state, but is used within the state. For poisonous tree) example, you buy your car in a state that has no sales tax, but you live across “Wherever law ends, tyranny begins.” the border in a state that does have a sales tax. When you bring your car —John Locke home and register it in your state, the state taxing authority may bill you for the sales tax it would have collected had unsecured debt A debt that doesn’t you bought the car within the state. give the creditor the right to take a particular item of property if the debtor usufruct The right to use property—or doesn’t pay. Examples include credit income from property—that is owned card debts and medical bills. (Compare: by another. secured debt) usurious Exceeding the maximum URL See: Uniform Resource Locator interest rate on a debt that is allowed by law. use The right to enjoy the benefits of real estate or personal property (but usury Extending credit at an exorbitant primarily used in reference to real or illegally high interest rate. States estate), whether the owner of the right set their own maximum interest rates, owns the property. and courts will not enforce payment of interest on a loan if the rate is usurious. useful life The number of months or Most credit card issuers are based in years, as determined by the IRS, that states with no usury laws or caps on depreciable business equipment or credit card interest rates. property is expected to be in use. utility patent The most common type of usefulness A requirement for obtaining patent; issued for useful inventions that a utility patent. A patented invention are new (novel) and that produce results must have some functional purpose or that are not expected by those working utility. The purpose does not have to in the field of invention (nonobvious). be groundbreaking; it can be solely for

442 uxor

A utility patent lasts for 20 years from utter To speak, articulate, or issue (as in the patent application’s filing date. S( ee a forged document). also: patent, novelty, nonobvious) uxor See: et uxor UTMA See: Uniform Transfers to Minors Act

443 V

vacant succession Succession that occurs insurance company places some or all when there are no known heirs for an of the fixed premium payments into an estate to pass to. In vacant succession, investment account; some companies the estate may escheat to the state. let the insured person decide how the money is invested. The policyholder vacate 1) For a judge to set aside or bears the risk of investment losses, nullify an order or judgment that he or though there is a guaranteed minimum she finds was improper. 2) To move out benefit payment. One benefit of variable of real estate and cease occupancy. insurance is that interest and dividend vagrancy The condition, once considered income from the investment account a crime, of being without work or is not taxed until it is paid out to the permanent home and dependent on policyholder. begging. Until the 1970s police used variable universal life insurance A type vagrancy laws to charge (or threaten) of whole life insurance that provides “undesirable” persons who might be greater potential for financial gain— suspected of criminal activity. Since and brings greater risks. Like universal then courts have struck down vagrancy life insurance, variable universal life laws as unconstitutionally vague. (See insurance offers flexible premiums, also: loiter) payment schedules, and benefits. But valuable consideration See: consideration variable universal life policies are riskier because the premiums are invested in variable annuity An annuity that stocks, rather than more predictable makes payments that vary in amount, money market accounts and bonds. depending on the performance of Also called universal variable life the investments made by the annuity insurance. company. (Compare: fixed annuity) variance 1) An exception to a zoning variable life insurance A type of whole ordinance, usually granted by a local life insurance in which the amount of government. For example, if you own death benefits varies, depending on an oddly shaped lot that could not the performance of investments. The

444 verdict

accommodate a house in accordance venire See: jury panel with your city’s setback requirement, veniremen People who are summoned you could apply at the appropriate to the courthouse so that they may be office (usually the zoning or planning questioned and perhaps chosen as jurors department) for a variance allowing you for civil or criminal trials. to build closer to a boundary line. 2) In criminal cases, a discrepancy between venue The appropriate location(s), what is alleged in the charges and what according to law and court rules, the prosecution produces as proof. for a trial. In a criminal case, the If the judge or jury has nevertheless proper venue is generally the judicial convicted the defendant, an appellate district or county where the crime court may find that the discrepancy is was committed. In civil cases, venue a “fatal variance,” requiring reversal. is generally proper in the county or 3) In civil cases, the disparity between district where important events related the plaintiff’s claims (or allegations) to the case took place, such as the and the proof that the plaintiff has signing or performance of a contract produced. Modern pleading rules or the accident or other incident that allow plaintiffs to amend their claims led to a personal injury case. Typically, even during trial, to conform with the the plaintiff in a civil case may also evidence they produce. sue in the district or county where the defendant lives or does business. vehicular manslaughter A violation of traffic laws that results in a fatality. Vehicular manslaughter can be The Verdict. (1982) Broken-down charged as a misdemeanor or a felony alcoholic storefront lawyer takes on depending on the circumstances. powerful defendants in a negligence case to Drunk driving resulting in a death gain final redemption for a wasted career. Paul is most likely treated as a felony. The Newman in the lead role, backed by Charlotte death of a passenger, including a loved Rampling, Jack Warden, James Mason, Milo one or friend, can also be vehicular O’Shea, Edward Binns, and Lindsay Crouse. manslaughter. (See also: manslaughter, reckless driving) verdict A jury’s decision after a trial, vendee A buyer of goods, services, or which becomes final when accepted by something for sale. the judge. (See also: directed verdict, vendor A seller of goods, services, or special verdict) something for sale.

445 verification verification A formal declaration under Julie leaves her house in a life estate to oath or upon penalty of perjury that a her husband and then to her daughter document or pleading is true. when her husband dies, the daughter has a vested remainder in the house. vertical privity A legal relationship in corporate law that exists between vexatious litigation A lawsuit that is companies in the chain of distribution filed when there is no legal basis, and of a product. This relationship with the purpose to bother, annoy, creates responsibilities between the embarrass, and cause legal expenses companies involved, including being to the defendant. Vexatious litigation liable for defects in the product. For also includes continuing a lawsuit example, vertical privity exists between after discovery of the facts shows it has the manufacturer of a car and the absolutely no merit. Vexatious litigation dealership that sells it. Therefore, both may lead to a legal claim of malicious the dealer and the manufacturer are prosecution against the vexatious liable for defects in cars sold by the litigant. Most states allow a judge to dealership. penalize plaintiffs and attorneys for filing or continuing a frivolous legal vest To give unconditional right to title action. (See also: frivolous lawsuit) or ownership. (See also: vested) vicarious liability Responsibility for a vested An unconditional right or title. civil wrong that a supervisor bears For example, if an employee must when a subordinate or associate has work for ten years before his pension actually committed the acts that give becomes vested, then after ten years rise to the liability. For example, the of employment he has unconditional owner of a residential rental may right to that pension. During the ten be vicariously liable if the manager years prior, his right to the pension was discriminates against tenants on the unvested. basis of their religion. vested ownership Complete, uncondi- view ordinance A local law designed tional ownership. (Compare: ­conditional to protect property owners who ownership) have desirable (and valuable) views. vested remainder An unconditional right Typically, these ordinances allow to receive property at some point in the property owners to insist on the future. A vested interest may be created trimming of trees that have grown by a deed or a will. For example, if and now block the view, so that the

446 voidable

original view is restored, The property visa waiver program A program that owner must pay for the trimming. allows nationals from certain countries View ordinances generally don’t cover to come to the United States without buildings or other structures that block a visa, so long as they’re planning on views. being tourists, and to leave within 90 days. Persons coming to the United vigilante Someone who takes the law States under this program receive into his or her own hands by seizing green-colored I-94 cards. They are someone and attempting to convict and not (except in rare cases) permitted punish the supposed criminal. to extend their stay or change their Village of Euclid v. Amber Realty (1926) A statuses. For example, someone who U.S. Supreme Court case in which the enters on the visa waiver program Court ruled that zoning ordinances are cannot then ask to stay on as a student, a legitimate exercise of the states’ police but would have to leave the U.S. and powers. apply for a student visa. visa The literal meaning is a stamp placed visitation rights The right to see a child in a foreign national’s passport by an regularly, typically awarded by the official at a U.S. consulate outside of court to a parent who does not have the United States. All visas allow their primary physical custody of the child. holders to enter the United States with- viz “To wit” or “namely.” Example: in a certain period of time. Visas can be “There were several problems, viz: leaky designated as either “immigrant visas” roof, dangerous electrical system, and or “nonimmigrant visas.” ­Immigrant broken windows.” ­visas are given to people who have earned U.S. permanent residence or a void Status of a statute, contract, or “green card.” Nonimmigrant visas are ruling that is determined to be invalid given to people coming to the U.S. for and unenforceable. (See also: voidable) a temporary stay. However, immigra- voidable A contract that can become void, tion law also sometimes talks about but is not necessarily so; a contract that visas “becoming available,” which refers one party can affirm or rescind at that not to the stamp itself, but to instances party’s option. An example might be a where a limited number of visas are contract entered into by a minor that is given out each year, and people who voidable once the minor reaches the age want them must place themselves on a of majority, or alternatively, which the waiting list. minor may affirm.

447 void for vagueness void for vagueness A civil or criminal voter bill of rights A set of rules adopted statute that is so unclear or ambiguous by most states to protect the rights that a reasonable person of average of voters in an election. These rights intelligence could not determine its typically cover who can vote, how the meaning or application. A vague voting process must be conducted, criminal statute is unconstitutional on how votes will be counted, and how the basis that a defendant could not to resolve complaints about the voting defend against a charge which could process. You can usually find the not be understood. (See also: due voter bill of rights by contacting your process) Secretary of State’s office. voir dire (vwah-deer) French for “to speak the truth,” this is the questioning Texas is the only state that permits of prospective jurors by a judge and residents to cast absentee ballots attorneys in court to determine if from space. The first to vote while in orbit any juror is biased or cannot deal was astronaut David Wolf, who cast a ballot in with the issues fairly, or if there is from the Russian space station Mir in 1997. cause not to allow a juror to serve (such as knowledge of the facts or acquaintanceship with one of the voting trust A trust created to combine parties). the voting power of shareholders. The participating shareholders’ shares and volenti non fit injuria(voh- len-ti non their accompanying voting rights are fit in-joor-ee) Latin for “to a willing transferred to a trust for a designated person, no injury is done.” This period of time. A designated trustee doctrine holds that a person who votes to elect a board directors or knowingly and willingly puts himself vote on other important matters at a in a dangerous situation cannot sue for shareholders’ meeting. A voting trust is any resulting injuries. usually established by current directors voluntary bankruptcy A bankruptcy to ensure continued control, but case filed by the debtor. In contrast, an occasionally a voting trust represents a “involuntary bankruptcy” case is filed person or group trying to gain control by the debtor’s creditors. of the corporation. wage attachment See: attachment

448 W

wages Compensation that a worker killed, justify a charge of second degree receives in exchange for labor. murder. 2) Sexually immoral and unrestrained. waive To voluntarily give up a right, including not enforcing a term of a ward 1) A person (usually a minor) who contract (such as insisting on payment has a guardian appointed by the court on an exact date), or knowingly giving to care for and take responsibility for up a legal right (such as a speedy trial). that person. Such a person is a “ward (See also: waiver) of the court” (if the custody is court- ordered) or a “ward of the state.” 2) A waiver The intentional and voluntary political division of a city. (See also: giving up of a right, either by an guardian) express statement or by conduct (such as by not enforcing a right). A waiver warrant See: search warrant, arrest accomplished by conduct may be warrant interpreted as giving up the right to warranty A promise or assurance that enforce the same right in the future. may be express, implied by the circum­ For example, a landlord who never stances, or implied by law. A warranty invokes his “no pets” rule and allows might be an express or implied state­ tenants to keep dogs may not be able to ment that particular facts are true (for successfully invoke the rule at a future example, that merchandise may be used date. A waiver of a legal right in court, for particular purposes or that the seller such as the right to a jury trial, must be has clear title to real estate). A warranty expressed on the record. might be a promise to repair property wanton 1) Behavior that is grossly within a certain period of time, or a negligent and recklessly unconcerned legal obligation incident to a contract with the safety of people or property. (for example, an implied warranty that For example, speeding past a school leased residential property is habitable). while students are leaving, or firing a (See also: express warranty, extended shotgun in a crowded public park, are warranty contracts, home warranty, wanton acts that will, if someone is implied warranty of habitability,

449 warranty adjustment program

implied warranty of merchantability, weight of evidence The strength, value, warranty deed) and believability of evidence. (See also: preponderance of the evidence) warranty adjustment program See: secret warranty program wet reckless A reckless driving charge that is labeled as “alcohol related.” It warranty deed A kind of real estate deed is usually made as a result of a plea that contains express assurances about bargain in which a charge of drunk the legal validity of the title being driving has been reduced. A “wet transferred to the new owner. (See also: reckless” occurs when the amount of grant deed, quitclaim deed) alcohol is borderline illegal, there was warranty of fitness See: implied warranty no accident, and the defendant has no prior record. If there is a subsequent warranty of merchantability See: implied drunk driving conviction the “wet warranty reckless” is usually considered a “prior” wash sale The selling and repurchasing drunk driving conviction and can result of an asset, usually stocks or bonds, in a sentence required for a second within a very short time frame. People conviction. (See also: drunk driving, used to do this to realize a loss for tax plea bargain, DUI, DWI) purposes, but the IRS caught on and whiplash A common neck or back injury, made such losses nondeductible for often suffered in automobile accidents most taxpayers. in which the head and/or upper back is waste Damage to real estate by a tenant snapped back and forth suddenly and that lessens its value to the owner or violently. future owner. An owner can sue for whistleblogger A whistleblower who damages for waste, terminate the lease raises concerns about a company’s of a tenant committing waste, or obtain misconduct or wrongdoing on a blog. a court order against further waste. whistleblower An employee who raises watered stock Shares of stock of a concerns about misconduct or wrong­ corporation that were issued at a price doing within the company where the greater than fair market value. The person works. actual value of watered stock is less than the value carried on the books of white-collar crime A variety of non­ the corporation. violent financial crimes, generally committed by businesspeople or public

450 will contest

officials, involving commercial fraud, widow’s election See: elective share consumer fraud, swindles, insider trad- wildcard exemption An exemption that ing on the stock market, embezzlement, allows a debtor to apply a certain dollar bribery, or other dishonest schemes. amount to any type of property to make it—or more of it—exempt. “Two skillful lawyers are like two experts will A document in which the will at any game of skill or endurance, maker specifies who is to receive his or and the result is that the clearest case becomes him property at death and names an at least somewhat doubtful, and the event executor. You can also use your will quite problematical.” to name a guardian for your young —Irving Brown, Legal Recreations children. To be valid, a will must be signed by the person who made it (called the testator), dated, and whole life insurance Life insurance witnessed by two people. In some states that provides coverage for the entire the witnesses must be disinterested. A life of the policyholder, who pays the will totally in the handwriting of the same fixed premium throughout his testator, signed and dated but without or her life. The policy builds up cash witnesses (a “holographic will”), is valid reserves that may be paid out to the in about half of the states. policyholder when he or she surrenders or partially surrenders the policy or uses will contest A lawsuit challenging the cash reserves to fund low-interest the validity of a will or some of its loans. The annual increase in the cash terms after the person who made value of the policy is not taxed. If the the will has died. Will contests are policyholder surrenders the policy, a quite rare. There are just a few legal portion of the payment is not taxable. grounds for challenging a will. The Also called straight life insurance or most common are undue influence by ordinary life insurance. someone close to the deceased person, the deceased person’s lack of capacity widow A woman whose husband died (understanding) when the will was while she was married to him and who signed, improper execution (signing has not remarried. and witnessing) of the will, or fraud widower A man whose wife died while (forgery, for example). (See also: no- he was married to her and and who has contest clause) not remarried.

451 willful willful Intentional, conscious, and withdrawal In criminal law, leaving a intended to achieve a particular result. conspiracy to commit a crime before the actual crime is committed. If the willful tort A harmful act that is com- withdrawal is before any overt act, mitted in an intentional and conscious the withdrawing person may escape way. For example, if your neighbor prosecution. (See also: overt act) builds an ugly new fence and you intentionally mow it down with your withdrawal of a corporation See: truck, that’s a willful tort. But carelessly dissolution of corporation backing into the fence as you pull out withholding The practice of holding back of your driveway is not willful, though a portion of money from an employee’s it’s still a tort. (Compare: negligence) paycheck to pay Social Security, winding up 1) The process of liquidating Medicare, and income taxes. or closing down a corporation, limited with prejudice A final and binding liability company, or partner­ship. Typi- decision by a judge about a legal matter cally this involves paying off expenses that prevents further pursuit of the and creditors, settling accounts, and same matter in any court. When judges ­collecting and distributing (to share- make such a decision, they dismiss the holders and owners) whatever assets matter “with prejudice.” The parties then remain. 2) With respect to an may also agree to dismiss a claim with estate or trust, gathering assets, pay- prejudice. (See also: jurisdiction) ing debts, and distributing property to those entitled to inherit it. (See also: witness A person who testifies under personal representative) oath at a deposition or trial, providing firsthand or expert evidence. The term winding up a corporation See: also refers to someone who watches dissolution of corporation another person sign a document and wiretap Using an electronic device to then adds his or her name to confirm listen to or record another’s telephone (called “attesting”) that the signature is (or electronic) communications. genuine. wiretapping Eavesdropping on private witnesseth Legal jargon for “to take conversations by connecting listening notice of,” used in phrases such as “On equipment to a telephone line. To be this day I do hereby witnesseth the legal, wiretapping must be authorized signing of this document.” by a search warrant or court order.

452 workers’ compensation witness stand A chair at the end of the “to A, and the heirs of his body,” where judge’s bench, on the jury box side, A is the person inheriting the property. where a witness sits and gives testimony work credits To receive any kind of after being sworn to tell the truth. Social Security benefit—retirement, When called to testify, the witness disability, dependents, or survivors— “takes the stand.” Most witness stands the person on whose record the are equipped with a microphone so that benefit is to be calculated must have everyone can hear the testimony. accumulated enough work credits. A wobbler A crime that can be either a person can earn up to four work credits misdemeanor (a conviction punishable per year, and anyone who works full by a small amount of jail time, typically time, even at a very low-paying job, one year or less) or a felony (a conviction easily accumulates them. Ask the Social punishable by time in state prison). Security Administration for a copy Wobblers can be charged either way, of your Social Security Statement to and depending on the law of their see how many work credits you have state, judges may have the discretion to accumulated. reduce a felony conviction in a wobbler Worker Adjustment and Retraining case to a misdemeanor. Notification Act (WARN) A federal Woodson v. North Carolina (1976) A U.S. law that requires employers with at least Supreme Court case in which a man- 100 employees to give workers some datory death penalty for first degree advance notice of an impending plant ­murder was ruled unconstitutional closing or mass layoff that will result in because a defendant has the right to job loss or more than a 50% hours cut individual consideration of the facts in for a certain number or percentage of the case when determining the penalty. employees. (See also: mass layoff) words of art Terms used by people who workers’ compensation A program that specialize in a particular occupation provides medical care and replacement and understood by other such income to employees who are injured specialists. or become ill due to their jobs. Financial benefits may also extend to words of procreation Language in a will the survivors of workers who are killed or deed, used to transfer property to a on the job. In most circumstances, person and that person’s descendants workers’ compensation pays relatively only. Typically, the words take the form modest amounts and prevents the

453 Workers’ Compensation Acts

worker or survivors from suing the commissioned work that falls within employer for the injuries or death. certain categories and is the subject of a written agreement. When a work is made for hire, the hiring party is Erin Brockovich. (2000) Based on a true considered the author and owner, not story, this is the ultimate small law firm the person who creates the work. This versus big corporation film. Julia Roberts won status—that is, whether a work is an Academy Award for her performance as made fore hire— affects the length of Erin, an intrepid legal clerk who convinces copyright protection and termination her crusty lawyer boss (Albert Finney) to file rights. a difficult class action on behalf of sick and dying families against giant utility Pacific Gas workmen’s compensation See: workers’ & Electric, based on evidence that it knew it compensation was contaminating groundwater in a small California town. workout An arrangement negotiated between a debtor and creditor a way to take care of a debt, by paying it off or Workers’ Compensation Acts State through loan forgiveness. Workouts are statutes that 1) require employers to often created to avoid bankruptcy or purchase insurance to protect their foreclosure proceedings. workers and 2) establish the liability work permit See: Employment of employers for injuries to workers Authorization Document (EAD) while on the job or illnesses due to the employment. Workers’ compensation work product The writings, notes, is not based on the negligence of memoranda, reports on conversations the employer; benefits are granted with the client or witness, research, regardless of fault and include medical and confidential materials which an coverage, a percentage of lost wages, attorney has developed while represent­ costs of retraining, and compensation ing a client, particularly in preparation for any permanent injury. Coverage for trial. A work product may not does not include general damages for be demanded or subpenaed by the pain and suffering. opposing party because it reflects the confidential strategy, tactics, and work for hire See: work made for hire theories to be employed by the attorney. work made for hire Under copyright World Court TheI nternational Court of law, a work created by an employee Justice, a judicial tribunal established within the scope of employment, or a

454 wrongful termination in violation of public policy

by the United Nations to hear disputes real or personal property of a judgment submitted by nations and to issue debtor, in order to obtain funds to pay advisory opinions upon request of a the winning plaintiff the judgment United Nations organ, such as the amount. General Assembly or Security Council. writ of mandate (mandamus) See: The World Court has 15 judges and sits mandamus in The Hague (Netherlands). writ of prohibition An appellate court’s writ A written order from a judge written order to prohibit a lower court requiring specific action by the person from acting because it does not have or entity to whom the writ is directed. jurisdiction to do so. Writs can be directed to other, lower court judges (writ of mandamus); to wrongful death A death caused by prison officials (writ of habeas corpus); the wrongful act of another, either and others. accidentally or intentionally. A claim for wrongful death is made by a family write-off A tax-deductible expense, member of a deceased person to obtain usually referring to depreciating the compensation for having to live without cost of an asset used in business or that person. The compensation is taking a Section 179 expense for that intended to cover the earnings and the asset. emotional comfort and support the writ of attachment A court order direct- deceased person would have provided. ing a sheriff (or other law enforcement wrongful termination A legal claim officer) to seize property of a defendant that an employee has been fired for an that will satisfy a judgment against that illegal reason, such as discrimination, person. breach of contract, or in violation writ of coram nobis (kor-m-noh-bis) A of public policy. (See also: wrongful Latin term that describes a request to a termination in violation of public judge to reopen and reconsider a matter policy) that has already been decided. The wrongful termination in violation of basis for the request is a claim that the public policy A legal claim that an decision is based on a mistake of fact, employee has been illegally fired for which can now be rectified. reasons that most people would find writ of execution A court order to a morally or ethically repugnant. In sheriff to enforce a judgment, by seizing many states, for example, an employee

455 W-2 form

can sue for wrongful termination in the employer is required to submit to violation of public policy after being the government, or 3) reporting illegal fired for 1) exercising a legal right, conduct. such as voting, 2) refusing to do W-2 form An IRS form on which wages something illegal, such as submitting paid to employees are reported by false tax returns or lying on reports employers.

456 Y

yellow-dog contract An agreement in youthful offender Someone under the which an employer forbids an employee age of 18 accused of a crime, who is to join a labor union. Yellow-dog processed through a juvenile court contracts are unenforceable. and juvenile detention or prison facilities instead of regular court, Youngstown Steel v. Sawyer (1952) A jail, and prison. Courts may have the U.S. Supreme Court case in which the latitude to try some young defendants Court ruled that President Harry S. as adults, particularly those who are Truman’s seizure of strike-bound steel repeat offenders, appear to be beyond plants in order to provide materials for rehabilitation, or are involved in major the Korean War could not be based on crimes like murder, manslaughter, inherent presidential powers, but had armed robbery, rape, or aggravated to be authorized by statute. Truman assault. (See also: juvenile delinquent) immediately halted the takeover.

457 Z

zealous witness A witness who gives zoning The local laws dividing cities or testimony clearly biased toward the counties into different zones according party that called him or her to testify. to allowed uses, from single-family residential to commercial to industrial. zero tape A tape that is printed out when Mixed-use zones are also used. Zoning a voting machine is first set up at a ordinances control the size, location, polling place. It is called a zero tape and use of buildings within these because it should register zero votes for different areas and have a profound each candidate or question. effect on traffic, health, and livability.

458 The Constitution of the United States of America

We the people of the United States, in shall be determined by adding to the whole order to form a more perfect union, number of free persons, including those establish justice, insure domestic tran­ bound to service for a term of years, and quility, provide for the common defense, excluding Indians not taxed, three fifths of promote the general welfare, and secure all other persons. [The preceding provision the blessings of liberty to ourselves and was superseded by Amendment IV, our posterity, do ordain and establish Section 2.] The actual enumeration shall this Constitution for the United States of be made within three years after the first America. meeting of the Congress of the United States, and within every subsequent Article I term of ten years, in such manner as they shall by law direct. The number of Section 1. All legislative powers herein Representatives shall not exceed one for granted shall be vested in a Congress of every thirty thousand, but each state shall the United States, which shall consist of a have at least one Representative; and until Senate and House of Representatives. such enumeration shall be made, the State Section 2. TheH ouse of Representatives of New Hampshire shall be entitled to shall be composed of members chosen choose three, Massachusetts eight, Rhode every second year by the people of the Island and Providence Plantations one, several states, and the electors in each Connecticut five, New York six, New state shall have the qualifications requisite Jersey four, Pennsylvania eight, Delaware for electors of the most numerous branch one, Maryland six, Virginia ten, North of the state legislature. Carolina five, South Carolina five, and No person shall be a Representative Georgia three. who shall not have attained to the age of When vacancies happen in the repre­ twenty five years, and been seven years a sentation from any state, the executive citizen of the United States, and who shall ­authority thereof shall issue writs of not, when elected, be an inhabitant of that election to fill such vacancies. state in which he shall be chosen. The House of Representatives shall Representatives and direct taxes shall choose their speaker and other officers; be apportioned among the several states and shall have the sole power of which may be included within this union, impeachment. according to their respective numbers, which

459 U.S. Constitution

Section 3. TheS enate of the United The Senate shall choose their other States shall be composed of two Senators officers, and also a President pro tempore, from each state, chosen by the legislature in the absence of the Vice President, thereof, [The preceding provision was or when he shall exercise the office of superseded by Amendment XVII, Section President of the United States. 1.] for six years; and each Senator shall The Senate shall have the sole power have one vote. to try all impeachments. When sitting Immediately after they shall be for that purpose, they shall be on oath or assembled in consequence of the first affirmation. When the President of the election, they shall be divided as equally United States is tried, the Chief Justice as may be into three classes. The seats shall preside: and no person shall be of the Senators of the first class shall be convicted without the concurrence of two vacated at the expiration of the second thirds of the members present. year, of the second class at the expiration Judgment in cases of impeachment of the fourth year, and of the third shall not extend further than to removal class at the expiration of the sixth year, from office, and disqualification to hold so that one third may be chosen every and enjoy any office of honor, trust or second year; and if vacancies happen by profit under the United States: but the resignation, or otherwise, during the recess party convicted shall nevertheless be liable of the legislature of any state, the executive and subject to indictment, trial, judgment thereof may make temporary appointments and punishment, according to law. until the next meeting of the legislature, Section 4. The times, places and which shall then fill such vacancies. [The manner of holding elections for Senators preceding provision was superseded by and Representatives, shall be prescribed Amendment XVII, Section 2.] in each state by the legislature thereof; No person shall be a Senator who shall but the Congress may at any time by law not have attained to the age of thirty make or alter such regulations, except as years, and been nine years a citizen of the to the places of choosing Senators. United States, and who shall not, when The Congress shall assemble at least elected, be an inhabitant of that state for once in every year, and such meeting shall which he shall be chosen. be on the first Monday in December, [The The Vice President of the United States preceding provision was superseded by shall be President of the Senate, but shall Amendment XX, Section 2.] unless they have no vote, unless they be equally shall by law appoint a different day. divided.

460 U.S. Constitution

Section 5. Each House shall be the tive Houses, and in going to and return- judge of the elections, returns and qualifi- ing from the same; and for any speech or cations of its own members, and a major- debate in either House, they shall not be ity of each shall constitute a quorum to questioned in any other place. do business; but a smaller number may No Senator or Representative shall, adjourn from day to day, and may be during the time for which he was elected, authorized to compel the attendance of be appointed to any civil office under the absent members, in such manner, and authority of the United States, which shall under such penalties as each House may have been created, or the emoluments provide. whereof shall have been increased during Each House may determine the rules such time; and no person holding any of its proceedings, punish its members for office under the United States, shall be disorderly behavior, and, with the concur- a member of either House during his rence of two thirds, expel a member. continuance in office. Each House shall keep a journal of Section 7. All bills for raising revenue its proceedings, and from time to time shall originate in the House of Representa- publish the same, excepting such parts as tives; but the Senate may propose or concur may in their judgment require secrecy; with amendments as on other bills. and the yeas and nays of the members Every bill which shall have passed the of either House on any question shall, at House of Representatives and the Senate, the desire of one fifth of those present, be shall, before it become a law, be presented entered on the journal. to the President of the United States: if Neither House, during the session of he approve he shall sign it, but if not he Congress, shall, without the consent of shall return it, with his objections to that the other, adjourn for more than three House in which it shall have originated, days, nor to any other place than that in who shall enter the objections at large on which the two Houses shall be sitting. their journal, and proceed to reconsider it. Section 6. The Senators and Represen- If after such reconsideration two thirds of tatives shall receive a compensation for that House shall agree to pass the bill, it their services, to be ascertained by law, shall be sent, together with the objections, and paid out of the treasury of the United to the other House, by which it shall States. They shall in all cases, except likewise be reconsidered, and if approved treason, felony and breach of the peace, by two thirds of that House, it shall be privileged from arrest during their become a law. But in all such cases the attendance at the session of their respec- votes of both Houses shall be determined

461 U.S. Constitution by yeas and nays, and the names of the To establish an uniform rule of natural- persons voting for and against the bill ization, and uniform laws on the subject shall be entered on the journal of each of bankruptcies throughout the United House respectively. If any bill shall not States; be returned by the President within ten To coin money, regulate the value days (Sundays excepted) after it shall have thereof, and of foreign coin, and fix the been presented to him, the same shall be a standard of weights and measures; law, in like manner as if he had signed it, To provide for the punishment of unless the Congress by their adjournment counterfeiting the securities and current prevent its return, in which case it shall coin of the United States; not be a law. To establish post offices and post roads; Every order, resolution, or vote to To promote the progress of science and which the concurrence of the Senate and useful arts, by securing for limited times House of Representatives may be neces- to authors and inventors the exclusive sary (except on a question of adjourn- right to their respective writings and ment) shall be presented to the President discoveries; of the United States; and before the same shall take effect, shall be approved by To constitute tribunals inferior to the him, or being disapproved by him, shall Supreme Court; be repassed by two thirds of the Senate To define and punish piracies and and House of Representatives, according felonies committed on the high seas, and to the rules and limitations prescribed in offenses against the law of nations; the case of a bill. To declare war, grant letters of marque Section 8. The Congress shall have and reprisal, and make rules concerning power to lay and collect taxes, duties, captures on land and water; imposts and excises, to pay the debts and To raise and support armies, but no provide for the common defense and appropriation of money to that use shall general welfare of the United States; but be for a longer term than two years; all duties, imposts and excises shall be To provide and maintain a navy; uniform throughout the United States; To make rules for the government and To borrow money on the credit of the regulation of the land and naval forces; United States; To provide for calling forth the militia To regulate commerce with foreign to execute the laws of the union, suppress nations, and among the several states, and insurrections and repel invasions; with the Indian tribes;

462 U.S. Constitution

To provide for organizing, arming, The privilege of the writ of habeas and disciplining, the militia, and for corpus shall not be suspended, unless governing such part of them as may be when in cases of rebellion or invasion the employed in the service of the United public safety may require it. States, reserving to the states respectively, No bill of attainder or ex post facto law the appointment of the officers, and the shall be passed. authority of training the militia according No capitation, or other direct, tax shall to the discipline prescribed by Congress; be laid, unless in proportion to the census To exercise exclusive legislation in all or enumeration herein before directed to cases whatsoever, over such District be taken. [The preceding provision was (not exceeding ten miles square) as may, modified by Amendment XVI.] by cession of particular states, and the No tax or duty shall be laid on articles acceptance of Congress, become the exported from any state. seat of the government of the United States, and to exercise like authority over No preference shall be given by any all places purchased by the consent of regulation of commerce or revenue to the the legislature of the state in which the ports of one state over those of another; same shall be, for the erection of forts, nor shall vessels bound to, or from, one magazines, arsenals, dockyards, and other state, be obliged to enter, clear, or pay needful buildings;—And duties in another. To make all laws which shall be No money shall be drawn from the necessary and proper for carrying into treasury, but in consequence of appro- execution the foregoing powers, and all priations made by law; and a regular other powers vested by this Constitution statement and account of receipts and in the government of the United States, or expenditures of all public money shall be in any department or officer thereof. published from time to time. Section 9. The migration or importa- No title of nobility shall be granted by tion of such persons as any of the states the United States: and no person holding now existing shall think proper to admit, any office of profit or trust under them, shall not be prohibited by the Congress shall, without the consent of the Congress, prior to the year one thousand eight accept of any present, emolument, office, ­hundred and eight, but a tax or duty may or title, of any kind whatever, from any be imposed on such importation, not king, prince, or foreign state. exceeding ten dollars for each person. Section 10. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal;

463 U.S. Constitution coin money; emit bills of credit; make Senators and Representatives to which the anything but gold and silver coin a State may be entitled in the Congress: but tender in payment of debts; pass any bill no Senator or Representative, or person of attainder, ex post facto law, or law holding an office of trust or profit under impairing the obligation of contracts, or the United States, shall be appointed an grant any title of nobility. elector. No state shall, without the consent of The electors shall meet in their respective the Congress, lay any imposts or duties states, and vote by ballot for two persons, of on imports or exports, except what may whom one at least shall not be an inhabitant be absolutely necessary for executing its of the same state with themselves. And they inspection laws: and the net produce of all shall make a list of all the persons voted for, duties and imposts, laid by any state on and of the number of votes for each; which imports or exports, shall be for the use of list they shall sign and certify, and transmit the treasury of the United States; and all sealed to the seat of the government of the such laws shall be subject to the revision United States, directed to the President of and control of the Congress. the Senate. The President of the Senate shall, No state shall, without the consent of in the presence of the Senate and House of Congress, lay any duty of tonnage, keep Representatives, open all the certificates, and troops, or ships of war in time of peace, the votes shall then be counted. The person enter into any agreement or compact with having the greatest number of votes shall be another state, or with a foreign power, or the President, if such number be a majority engage in war, unless actually invaded, of the whole number of electors appointed; or in such imminent danger as will not and if there be more than one who have admit of delay. such majority, and have an equal number of votes, then the House of Representatives Article II shall immediately choose by ballot one of them for President; and if no person have Section 1. The executive power shall be a majority, then from the five highest on vested in a President of the United States the list the said House shall in like manner of America. He shall hold his office dur- choose the President. But in choosing the ing the term of four years, and, together President, the votes shall be taken by States, with the Vice President, chosen for the the representation from each state having same term, be elected, as follows: Each one vote; A quorum for this purpose shall state shall appoint, in such manner as the consist of a member or members from two Legislature thereof may direct, a number thirds of the states, and a majority of all the of electors, equal to the whole number of states shall be necessary to a choice. In every

464 U.S. Constitution case, after the choice of the President, the be elected. [This clause was modified by person having the greatest number of votes Amendments XX and XXV.] of the electors shall be the Vice President. The President shall, at stated times, But if there should remain two or more who receive for his services, a compensation, have equal votes, the Senate shall choose which shall neither be increased nor from them by ballot the Vice President. [The diminished during the period for which preceding provision was superseded by he shall have been elected, and he shall Amendment XII.] not receive within that period any other The Congress may determine the time emolument from the United States, or any of choosing the electors, and the day on of them. which they shall give their votes; which Before he enter on the execution of his day shall be the same throughout the office, he shall take the following oath or United States. affirmation:—“I do solemnly swear (or No person except a natural born affirm) that I will faithfully execute the citizen, or a citizen of the United States, office of President of the United States, at the time of the adoption of this and will to the best of my ability, preserve, Constitution, shall be eligible to the office protect and defend the Constitution of the of President; neither shall any person be United States.” eligible to that office who shall not have Section 2. The President shall be attained to the age of thirty five years, and commander in chief of the Army and been fourteen Years a resident within the Navy of the United States, and of the United States. [For qualifications of the militia of the several states, when called Vice President, see Amendment XII.] into the actual service of the United In case of the removal of the President States; he may require the opinion, in from office, or of his death, resignation, or writing, of the principal officer in each inability to discharge the powers and duties of the executive departments, upon any of the said office, the same shall devolve on subject relating to the duties of their the Vice President, and the Congress may respective offices, and he shall have power by law provide for the case of removal, to grant reprieves and pardons for offenses death, resignation or inability, both of the against the United States, except in cases President and Vice President, declaring of impeachment. what officer shall then act as President, and He shall have power, by and with such officer shall act accordingly, until the the advice and consent of the Senate, to disability be removed, or a President shall make treaties, provided two thirds of the Senators present concur; and he shall

465 U.S. Constitution nominate, and by and with the advice ment for, and conviction of, treason, and consent of the Senate, shall appoint bribery, or other high crimes and misde- ambassadors, other public ministers and meanors. consuls, judges of the Supreme Court, and all other officers of the United States, Article III whose appointments are not herein Section 1. The judicial power of the otherwise provided for, and which shall United States, shall be vested in one be established by law: but the Congress Supreme Court, and in such inferior may by law vest the appointment of such courts as the Congress may from time inferior officers, as they think proper, in to time ordain and establish. The judges, the President alone, in the courts of law, both of the supreme and inferior courts, or in the heads of departments. shall hold their offices during good The President shall have power to fill behavior, and shall, at stated times, receive up all vacancies that may happen during for their services, a compensation, which the recess of the Senate, by granting shall not be diminished during their commissions which shall expire at the end continuance in office. of their next session. Section 2. The judicial power shall Section 3. He shall from time to time extend to all cases, in law and equity, give to the Congress information of the arising under this Constitution, the state of the union, and recommend to laws of the United States, and treaties their consideration such measures as he made, or which shall be made, under shall judge necessary and expedient; he their authority;—to all cases affecting may, on extraordinary occasions, convene ambassadors, other public ministers and both Houses, or either of them, and in consuls;—to all cases of admiralty and case of disagreement between them, with maritime jurisdiction;—to controversies respect to the time of adjournment, he to which the United States shall be a may adjourn them to such time as he shall party;—to controversies between two or think proper; he shall receive ambassadors more states;—between a state and citizens of and other public ministers; he shall take another state, [The preceding provision was care that the laws be faithfully executed, modified byA mendment XI.]—between and shall commission all the officers of citizens of different states,—between the United States. citizens of the same state claiming lands Section 4. The President, Vice President under grants of different states, and and all civil officers of the United States, between a state, or the citizens thereof, and shall be removed from office on impeach- foreign states, citizens or subjects.

466 U.S. Constitution

In all cases affecting ambassadors, other general laws prescribe the manner in public ministers and consuls, and those in which such acts, records and proceedings which a state shall be party, the Supreme shall be proved, and the effect thereof. Court shall have original jurisdiction. Section 2. The citizens of each state In all the other cases before mentioned, shall be entitled to all privileges and the Supreme Court shall have appellate immunities of citizens in the several states. jurisdiction, both as to law and fact, A person charged in any state with with such exceptions, and under such treason, felony, or other crime, who shall regulations as the Congress shall make. flee from justice, and be found in another The trial of all crimes, except in cases of state, shall on demand of the executive impeachment, shall be by jury; and such authority of the state from which he fled, trial shall be held in the state where the be delivered up, to be removed to the state said crimes shall have been committed; having jurisdiction of the crime. but when not committed within any state, No person held to service or labor in one the trial shall be at such place or places as state, under the laws thereof, escaping into the Congress may by law have directed. another, shall, in consequence of any law or Section 3. Treason against the United regulation therein, be discharged from such States, shall consist only in levying war service or labor, but shall be delivered up on against them, or in adhering to their claim of the party to whom such service or enemies, giving them aid and comfort. labor may be due. [The previous clause was No person shall be convicted of treason superseded by Amendment XIII.] unless on the testimony of two witnesses Section 3. New states may be admitted to the same overt act, or on confession in by the Congress into this union; but no open court. new states shall be formed or erected The Congress shall have power to within the jurisdiction of any other state; declare the punishment of treason, but no nor any state be formed by the junction attainder of treason shall work corruption of two or more states, or parts of states, of blood, or forfeiture except during the without the consent of the legislatures life of the person attainted. of the states concerned as well as of the Congress. Article IV The Congress shall have power to Section 1. Full faith and credit shall be dispose of and make all needful rules and given in each state to the public acts, regulations respecting the territory or records, and judicial proceedings of every other property belonging to the United other state. And the Congress may by States; and nothing in this Constitution

467 U.S. Constitution shall be so construed as to prejudice any Article VI claims of the United States, or of any particular state. All debts contracted and engagements entered into, before the adoption of this Section 4. TheU nited States shall Constitution, shall be as valid against the guarantee to every state in this union a United States under this Constitution, as republican form of government, and shall under the Confederation. protect each of them against invasion; and on application of the legislature, or of the This Constitution, and the laws of executive (when the legislature cannot be the United States which shall be made convened) against domestic violence. in pursuance thereof; and all treaties made, or which shall be made, under the Article V authority of the United States, shall be the supreme law of the land; and the judges The Congress, whenever two thirds of in every state shall be bound thereby, both houses shall deem it necessary, shall anything in the Constitution or laws of propose amendments to this Constitution, any State to the contrary notwithstanding. or, on the application of the legislatures of The Senators and Representatives two thirds of the several states, shall call before mentioned, and the members of the a convention for proposing amendments, several state legislatures, and all executive which, in either case, shall be valid and judicial officers, both of the United to all intents and purposes, as part of States and of the several states, shall be this Constitution, when ratified by the bound by oath or affirmation, to support legislatures of three fourths of the several this Constitution; but no religious test states, or by conventions in three fourths shall ever be required as a qualification to thereof, as the one or the other mode any office or public trust under the United of ratification may be proposed by the States. Congress; provided that no amendment which may be made prior to the year Article VII one thousand eight hundred and eight shall in any manner affect the first and The ratification of the conventions of fourth clauses in the ninth section of the nine states, shall be sufficient for the first article; and that no state, without establishment of this Constitution its consent, shall be deprived of its equal between the states so ratifying the same. suffrage in the Senate. Done in convention by the unanimous consent of the states present the seven­

468 U.S. Constitution teenth day of September in the year of our South Carolina: J. Rutledge, Charles Lord one thousand seven hundred and Cotesworth Pinckney, Charles Pinckney, eighty seven and of the independence of Pierce Butler the United States of America the twelfth. Georgia: William Few, Abr Baldwin In witness whereof we have hereunto New Hampshire: John Langdon, subscribed our Names, Nicholas Gilman G. Washington—Presidt and deputy Massachusetts: Nathaniel Gorham, from Virginia Rufus King Delaware: Geo: Read, Gunning Connecticut: Wm. Saml. Johnson, Bedford jun, John Dickinson, Richard Roger Sherman Bassett, Jaco: Broom New York: Alexander Hamilton Maryland: James McHenry, Dan of St New Jersey: Wil: Livingston, David Thos. Jenifer, Danl. Carroll Brearly, Wm. Paterson, Jona: Dayton Virginia: John Blair, James Madison Jr. Pennsylvania: B Franklin, Thomas North Carolina: Wm. Blount, Richd. Mifflin, Robt. Morris, Geo. Clymer, Thos. Dobbs Spaight, Hu Williamson FitzSimons, Jared Ingersoll, James Wilson, Gouv Morris

469 Amendments to the Constitution of the United States

[The first ten amendments known as the seizures, shall not be violated, and no Bill of Rights were passed by Congress warrants shall issue, but upon probable on September 25, 1789 and ratified by cause, supported by oath or affirmation, sufficient states on December 15, 1791.] and particularly describing the place to be searched, and the persons or things to be Amendment I (1791) seized. Congress shall make no law respecting an Amendment V (1791) establishment of religion, or prohibiting the free exercise thereof; or abridging the No person shall be held to answer for freedom of speech, or of the press; or the a capital, or otherwise infamous crime, right of the people peaceably to assemble, unless on a presentment or indictment and to petition the government for a of a grand jury, except in cases arising in redress of grievances. the land or naval forces, or in the militia, when in actual service in time of war or Amendment II (1791) public danger; nor shall any person be subject for the same offense to be twice A well regulated militia, being necessary put in jeopardy of life or limb; nor shall to the security of a free state, the right of be compelled in any criminal case to be a the people to keep and bear arms, shall witness against himself, nor be deprived not be infringed. of life, liberty, or property, without due Amendment III (1791) process of law; nor shall private property be taken for public use, without just No soldier shall, in time of peace be compensation. quartered in any house, without the consent of the owner, nor in time of war, Amendment VI (1791) but in a manner to be prescribed by law. In all criminal prosecutions, the accused Amendment IV (1791) shall enjoy the right to a speedy and public trial, by an impartial jury of the The right of the people to be secure state and district wherein the crime shall in their persons, houses, papers, and have been committed, which district shall effects, against unreasonable searches and

470 U.S. Constitution have been previously ascertained by law, Amendment XI (1798) and to be informed of the nature and cause of the accusation; to be confronted The judicial power of the United States with the witnesses against him; to shall not be construed to extend to any have compulsory process for obtaining suit in law or equity, commenced or witnesses in his favor, and to have the prosecuted against one of the United assistance of counsel for his defense. States by citizens of another state, or by citizens or subjects of any foreign state. Amendment VII (1791) Amendment XII (1804) In suits at common law, where the value in controversy shall exceed twenty The electors shall meet in their respective dollars, the right of trial by jury shall be states and vote by ballot for President preserved, and no fact tried by a jury, shall and Vice President, one of whom, at be otherwise reexamined in any court of least, shall not be an inhabitant of the the United States, than according to the same state with themselves; they shall rules of the common law. name in their ballots the person voted for as President, and in distinct ballots Amendment VIII (1791) the person voted for as Vice President, and they shall make distinct lists of all Excessive bail shall not be required, nor persons voted for as President, and of all excessive fines imposed, nor cruel and persons voted for as Vice President, and of unusual punishments inflicted. the number of votes for each, which lists they shall sign and certify, and transmit Amendment IX (1791) sealed to the seat of the government of the The enumeration in the Constitution, of United States, directed to the President certain rights, shall not be construed to of the Senate;—The President of the deny or disparage others retained by the Senate shall, in the presence of the Senate people. and House of Representatives, open all the certificates and the votes shall then Amendment X (1791) be counted;—The person having the greatest number of votes for President, The powers not delegated to the United shall be the President, if such number be States by the Constitution, nor prohibited a majority of the whole number of electors by it to the states, are reserved to the states appointed; and if no person have such respectively, or to the people. majority, then from the persons having the highest numbers not exceeding three

471 U.S. Constitution on the list of those voted for as President, crime whereof the party shall have been the House of Representatives shall choose duly convicted, shall exist within the immediately, by ballot, the President. But United States, or any place subject to their in choosing the President, the votes shall jurisdiction. be taken by states, the representation from Section 2. Congress shall have power each state having one vote; a quorum for to enforce this article by appropriate this purpose shall consist of a member or legislation. members from two‑thirds of the states, and a majority of all the states shall be Amendment XIV (1868) necessary to a choice. And if the House of Section 1. All persons born or naturalized Representatives shall not choose a President in the United States, and subject to the whenever the right of choice shall devolve jurisdiction thereof, are citizens of the upon them, before the fourth day of March United States and of the state wherein next following, then the Vice President they reside. No state shall make or enforce shall act as President, as in the case of the any law which shall abridge the privileges death or other constitutional disability of or immunities of citizens of the United the President. [The preceding provision was States; nor shall any state deprive any superseded by Amendment XX, Section 3.] person of life, liberty, or property, without The person having the greatest number of due process of law; nor deny to any person votes as Vice President, shall be the Vice within its jurisdiction the equal protection President, if such number be a majority of of the laws. the whole number of electors appointed, and if no person have a majority, then Section 2. Representatives shall be from the two highest numbers on the list, apportioned among the several states the Senate shall choose the Vice President; according to their respective numbers, a quorum for the purpose shall consist counting the whole number of persons in of two‑thirds of the whole number of each state, excluding Indians not taxed. Senators, and a majority of the whole But when the right to vote at any election number shall be necessary to a choice. But for the choice of electors for President no person constitutionally ineligible to the and Vice President of the United States, office ofP resident shall be eligible to that of Representatives in Congress, the executive Vice President of the United States. and judicial officers of a state, or the members of the legislature thereof, is Amendment XIII (1865) denied to any of the male inhabitants of such state, being twenty‑one years of age, Section 1. Neither slavery nor involuntary [See Amendment XXVI.] and citizens of servitude, except as a punishment for

472 U.S. Constitution the United States, or in any way abridged, debts, obligations and claims shall be held except for participation in rebellion, or illegal and void. other crime, the basis of representation Section 5. The Congress shall have therein shall be reduced in the proportion power to enforce, by appropriate legisla- which the number of such male citizens tion, the provisions of this article. shall bear to the whole number of male citizens twenty‑one years of age in such Amendment XV (1870) state. Section 1. The right of citizens of the Section 3. No person shall be a Senator United States to vote shall not be denied or Representative in Congress, or elector or abridged by the United States or by any of President and Vice President, or hold state on account of race, color, or previous any office, civil or military, under the condition of servitude. United States, or under any state, who, Section 2. The Congress shall have having previously taken an oath, as a power to enforce this article by appropri- member of Congress, or as an officer of ate legislation. the United States, or as a member of any state legislature, or as an executive or Amendment XVI (1913) judicial officer of any state, to support the Constitution of the United States, shall The Congress shall have power to lay and have engaged in insurrection or rebellion collect taxes on incomes, from whatever against the same, or given aid or comfort source derived, without apportionment to the enemies thereof. But Congress may among the several states, and without by a vote of two‑thirds of each House, regard to any census of enumeration. remove such disability. Section 4. The validity of the public Amendment XVII (1913) debt of the United States, authorized by The Senate of the United States shall be law, including debts incurred for payment composed of two Senators from each of pensions and bounties for services in state, elected by the people thereof, for suppressing insurrection or rebellion, six years; and each Senator shall have one shall not be questioned. But neither the vote. The electors in each state shall have United States nor any state shall assume the qualifications requisite for electors of or pay any debt or obligation incurred in the most numerous branch of the state aid of insurrection or rebellion against the legislatures. United States, or any claim for the loss When vacancies happen in the repre- or emancipation of any slave; but all such sentation of any state in the Senate, the

473 U.S. Constitution executive authority of such state shall issue Amendment XIX (1920) writs of election to fill such vacancies: Provided, That the legislature of any state The right of citizens of the United States may empower the executive thereof to to vote shall not be denied or abridged make temporary appointments until the by the United States or by any state on people fill the vacancies by election as the account of sex. legislature may direct. Congress shall have power to enforce This amendment shall not be so this article by appropriate legislation. construed as to affect the election or term of any Senator chosen before it becomes Amendment XX (1933) valid as part of the Constitution. Section 1. The terms of the President and Vice President shall end at noon on Amendment XVIII (1919) the 20th day of January, and the terms Section 1. After one year from the of Senators and Representatives at noon ratification of this article the manufacture, on the 3d day of January, of the years in sale, or transportation of intoxicating which such terms would have ended if liquors within, the importation thereof this article had not been ratified; and the into, or the exportation thereof from the terms of their successors shall then begin. United States and all territory subject Section 2. The Congress shall assemble to the jurisdiction thereof for beverage at least once in every year, and such purposes is hereby prohibited. meeting shall begin at noon on the 3d Section 2. The Congress and the day of January, unless they shall by law several states shall have concurrent power appoint a different day. to enforce this article by appropriate Section 3. If, at the time fixed for the legislation. beginning of the term of the President, Section 3. This article shall be inopera- the President elect shall have died, tive unless it shall have been ratified as an the Vice President elect shall become amendment to the Constitution by the President. If a President shall not have legislatures of the several states, as provid- been chosen before the time fixed for the ed in the Constitution, within seven years beginning of his term, or if the President from the date of the submission hereof to elect shall have failed to qualify, then the the states by the Congress. Vice President elect shall act as President until a President shall have qualified; and [Repealed by Amendment XXI, the Congress may by law provide for the Section 1.] case wherein neither a President elect nor

474 U.S. Constitution a Vice President elect shall have qualified, liquors, in violation of the laws thereof, is declaring who shall then act as President, hereby prohibited. or the manner in which one who is to Section 3. This article shall be inopera- act shall be selected, and such person tive unless it shall have been ratified as an shall act accordingly until a President or amendment to the Constitution by con- Vice President shall have qualified. S[ ee ventions in the several states, as provided Amendment XXV.] in the Constitution, within seven years Section 4. The Congress may by law from the date of the submission hereof to provide for the case of the death of any the states by the Congress. of the persons from whom the House of Representatives may choose a President Amendment XXII (1951) whenever the right of choice shall have Section 1. No person shall be elected devolved upon them, and for the case to the office of the President more than of the death of any of the persons from twice, and no person who has held the whom the Senate may choose a Vice ­office of President, or acted as President, President whenever the right of choice for more than two years of a term to shall have devolved upon them. which some other person was elected Pres- Section 5. Sections 1 and 2 shall ident shall be elected to the office of the take effect on the 15th day of October President more than once. But this article following the ratification of this article. shall not apply to any person holding the Section 6. This article shall be inopera- office of President when this article was tive unless it shall have been ratified as an proposed by the Congress, and shall not amendment to the Constitution by the prevent any person who may be holding legislatures of three‑fourths of the several the office ofP resident, or acting as Presi- states within seven years from the date of dent, during the term within which this its submission. article becomes operative from holding the office of President or acting as Presi- Amendment XXI (1933) dent during the remainder of such term. Section 1. The eighteenth article of Section 2. This article shall be inopera- amendment to the Constitution of the tive unless it shall have been ratified as United States is hereby repealed. an amendment to the Constitution by the legislatures of three‑fourths of the Section 2. The transportation or several states within seven years from the importation into any state, territory, date of its submission to the states by the or possession of the United States for ­C o n g r e s s . delivery or use therein of intoxicating

475 U.S. Constitution

Amendment XXIII (1961) Section 2. The Congress shall have power to enforce this article by Section 1. The District constituting the appropriate legislation. seat of government of the United States shall appoint in such manner as the Amendment XXV (1967) Congress may direct: Section 1. In case of the removal of the A number of electors of President and President from office or of his death Vice President equal to the whole number or resignation, the Vice President shall of Senators and Representatives in become President. Congress to which the District would be entitled if it were a state, but in no event Section 2. Whenever there is a vacancy more than the least populous state; they in the office of the Vice President, the shall be in addition to those appointed by President shall nominate a Vice President the states, but they shall be considered, for who shall take office upon confirmation the purposes of the election of President by a majority vote of both Houses of and Vice President, to be electors Congress. appointed by a state; and they shall meet Section 3. Whenever the President in the District and perform such duties transmits to the President pro tempore of as provided by the twelfth article of the Senate and the Speaker of the House amendment. of Representatives his written declaration Section 2. The Congress shall that he is unable to discharge the powers have power to enforce this article by and duties of his office, and until he appropriate legislation. transmits to them a written declaration to the contrary, such powers and duties shall Amendment XXIV (1964) be discharged by the Vice President as Acting President. Section 1. The right of citizens of the Section 4. Whenever the Vice President United States to vote in any primary and a majority of either the principal or other election for President or Vice officers of the executive departments or President, for electors for President or Vice of such other body as Congress may by President, or for Senator or Representative law provide, transmit to the President pro in Congress, shall not be denied or tempore of the Senate and the Speaker abridged by the United States or any state of the House of Representatives their by reason of failure to pay any poll tax or written declaration that the President other tax.

476 U.S. Constitution is unable to discharge the powers and determines by two‑thirds vote of both duties of his office, the Vice President Houses that the President is unable to shall immediately assume the powers and discharge the powers and duties of his duties of the office as Acting President. office, the Vice President shall continue Thereafter, when theP resident transmits to discharge the same as Acting President; to the President pro tempore of the otherwise, the President shall resume the Senate and the Speaker of the House of powers and duties of his office. Representatives his written declaration that no inability exists, he shall resume the Amendment XXVI (1971) powers and duties of his office unless the Section 1. The right of citizens of the Vice President and a majority of either United States, who are 18 years of age the principal officers of the executive or older, to vote, shall not be denied or department or of such other body as abridged by the United States or any state Congress may by law provide, transmit on account of age. within four days to the President pro Section 2. The Congress shall have tempore of the Senate and the Speaker the power to enforce this article by of the House of Representatives their appropriate legislation. written declaration that the President is unable to discharge the powers and Amendment XXVII duties of his office. Thereupon Congress (Passed September 25, 1789; shall decide the issue, assembling within ratified May 7, 1992) forty‑eight hours for that purpose if not in session. If the Congress, within No law, varying the compensation twenty‑one days after receipt of the latter for the services of the Senators and written declaration, or, if Congress is Representatives, shall take effect, until not in session, within twenty‑one days an election of Representatives shall have after Congress is required to assemble, intervened.

477

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