LEGAL DICTIONARY

 

D

d.b.a. 
n. short for "doing business as," when a person or entity uses a business name instead of his/her/its own.

 

damages 
n. the amount of money which a plaintiff (the person suing) may be awarded in a lawsuit. There are many types of damages. Special damages are those which actually were caused by the injury and include medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. The second basic area of damages are general damages, which are presumed to be a result of the other party's actions, but are subjective both in nature and determination of value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, loss of companionship, loss of reputation (in a libel suit, for example), humiliation from scars, loss of anticipated business and other harm. The third major form of damage is exemplary (or punitive) damages, which combines punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff. On occasion punitive damages can be greater than the actual damages, as, for example, in a sexual harassment case or fraudulent schemes. Although often asked for, they are seldom awarded. Nominal damages are those given when the actual harm is minor and an award is warranted under the circumstances. Liquidated damages are those pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract.

 

dangerous 
adj. unsafe, hazardous, fraught with risk. It can be negligence for which a lawsuit can be brought if damage results from creating or leaving unguarded, a dangerous condition which can cause harm to others, a dangerous instrumentality (any device which can cause harm, including explosives and poisonous substances) or dangerous weapon which is inherently hazardous to anyone handling it or within the weapon's range.

 

dangerous weapon 
n. any gun, knife, sword, crossbow, slingshot or other weapon which can cause bodily harm to people (even though used for target shooting). If a person is harmed by such a weapon that is left unguarded, improperly used, or causes harm even to a person who plays with it without permission, the victim or his/her survivors can sue for negligence and possibly win a judgment.

 

date rape 
n. forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted the acts by verbal refusals, denials or pleas to stop, and/or physical resistance. The fact that the parties knew each other or that the woman willingly accompanied the man are not legal defenses to a charge of rape.

 

day in court 
n. popular term for everyone's opportunity to bring a lawsuit or use the court system if he/she thinks he/she has a gripe which can be resolved in court. 

 

de facto 
adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.

 

de facto corporation 
n. a company which operates as if it were a corporation although it has not completed the legal steps to become incorporated or has been dissolved or suspended but continues to function. The court temporarily treats the corporation as if it were legal in order to avoid unfairness to people who thought the corporation was legal. 

 

de jure 
adj. Latin for "lawful," as distinguished from de facto (actual).

 

de jure corporation 
n. a corporation in good standing under the law, as compared to a de facto corporation which is acting while not fulfilling legal requirements.

 

de minimis 
adj. (dee-minnie-miss) Latin for "of minimum importance" or "trifling." Essentially it refers to something or a difference that is so little, small, minuscule or tiny that the law does not refer to it and will not consider it.

 

de novo 
adj. Latin for "anew," which means starting over, as in a trial de novo. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, de novo.

 

deadly weapon 
n. any weapon which can kill. This includes not only weapons which are intended to do harm like a gun or knife, but also blunt instruments like clubs, an automobile or any object which actually causes death. This becomes important when trying to prove criminal charges brought for assault with a deadly weapon.

 

dealer 
n. anyone who buys goods or property for the purpose of selling as a business. It is important to distinguish a dealer from someone who occasionally buys and occasionally sells, since dealers may need to obtain business licenses, register with the sales tax authorities, and may not defer capital gains taxes by buying other property.

 

death penalty 
n. the sentence of execution for murder and some other capital crimes. 

 

death row 
n. nickname for that portion of a prison in which prisoners are housed who are under death sentences and are awaiting appeals and/or potential execution. 

 

debenture 
n. a form of bond certificate issued by a corporation to show funds invested, repayment of which is guaranteed by the overall capital value of the company under certain specific terms. Thus, it is more secure than shares of stock or general bonds.

 

debt 
n. 1) a sum of money due to another. 2) obligation to deliver particular goods or perform certain acts according to an agreement, such as returning a favor. 3) a cause of action in a lawsuit for a particular amount owed.

 

debtor 
n. 1) a person or entity that owes an amount of money or favor to another. 2) in bankruptcy, the party whose affairs are the subject of the proceedings is called the "debtor."

 

deceased 
1) adj. dead. 2) n. the person who has died, as used in the handling of his/her estate, probate of will and other proceedings after death, or in reference to the victim of a homicide (as: "The deceased had been shot three times") In probate law the more genteel word is the "decedent".

 

decedent 
n. the person who has died, sometimes referred to as the "deceased".

 

deceit 
n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.

 

deception 
n. the act of misleading another through intentionally false statements or fraudulent actions. 

 

decide 
v. for a judge, arbitrator, court of appeals or other magistrate or tribunal to reach a determination (decision) by choosing what is right and wrong according to the law as he/she sees it.

 

decision 
n. judgment, decree or determination of findings of fact and/or of law by a judge, arbitrator, court, governmental agency or other official tribunal (court).

 

declarant 
n. the person making a statement, usually written and signed by that person, under "penalty of perjury" pursuant to the laws of the state in which the statement, called a declaration, is made. The declaration is more commonly used than the affidavit, which is similar to a declaration but requires taking an oath to swear to the truth attested to (certified in writing) by a notary public. In theory, a declarant who knowingly does not tell the truth would be subject to the criminal charge of perjury. Such violations are seldom pursued.

 

declaration 
n. 1) any statement made, particularly in writing. 2) a written statement made "under penalty of perjury" and signed by the declarant, which is the modern substitute for the more cumbersome affidavit, which requires swearing to its truth before a notary public.

 

declaration of mailing 
n. a form stating that a particular document has been mailed to a particular person or persons (such as opposing attorneys or the clerk of the court) and declaring the truth of that fact "under penalty of perjury", and signed by the person in the law office responsible for mailing it. This is almost always required to be attached to filed documents so that the court is assured it has been sent to the other party.

 

declaration of trust 
n. the document signed by a trustor (settlor) creating a trust into which assets are placed, a trustee is appointed to manage the trust (who may be the party who created the trust), the powers and duties of management of the principal and profits of the trust are stated, and distribution of profits and principal is spelled out.

 

declaratory judgment 
n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion", it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it.

 

declaratory relief 
n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.

 

decree 
n. in general, synonymous with judgment. However, in some areas of the law, the term decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law and in equity (court rulings ordering or prohibiting certain acts). Thus, there may be references to a final or interlocutory decree of divorce, final decree of distribution of a dead person's estate, etc.

 

decriminalization 
n. the repeal or amendment of statutes which made certain acts criminal, so that those acts no longer are crimes subject to prosecution.

 

dedication 
n. the giving of land by a private person or entity to the government, typically for a street, park or school site, as part of and a condition of a real estate development. The city (or other public body) must accept the dedication before it is complete. In many cases there are "dedicated" streets on old subdivision maps which were never officially accepted and, in effect, belong to no one. The adjoining property owners can sue for a judgment to give them the title to the unclaimed (unowned) street or property by a quiet title action or request abandonment by the government which did not accept the street or other property.

 

deduction 
n. an expenditure which an income tax payer may subtract from gross (total) income to determine taxable income. This is not the same as an exemption, which is for one's marital status, blindness and number of dependents (e.g. children), which, added together, reduce the tax owed.

 

deed 
1) n. the written document which transfers title (ownership) or an interest in real property to another person. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed by the grantor, who must then acknowledge before a notary public that he/she/it executed the deed. To complete the transfer (conveyance) the deed must be recorded in the office of the Recorder of Deeds. There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title. This is not to be confused with a deed of trust, which is a form of mortgage. 2) v. to transfer title by a written deed.

 

deed of trust 
n. a document which pledges real property to secure a loan, used instead of a mortgage. The property is deeded by the title holder (trustor) to a trustee (often a title or escrow company) which holds the title in trust for the beneficiary (the lender of the money). When the loan is fully paid, the trustor requests the trustee to return the title by reconveyance. If the loan becomes delinquent the beneficiary can file a notice of default and, if the loan is not brought current, can demand that the trustee begin foreclosure on the property so that the beneficiary may either be paid or obtain title.

 

defalcation 
v. from Latin for "deduction," withholding or misappropriating funds held for another, particularly by a public official, or failing to make a proper accounting.

 

defamation 
n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one's occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.

 

default 
1) n. failure to respond to a summons and complaint served on a party in the time required by law. If a legal answer or other response is not filed, the suing party (plaintiff) can request a default be entered in the record, which terminates the rights of the defaulting party to defend the case. 2) the failure to make a payment when due, which can lead to a notice of default and the start of foreclosure proceedings if the debt is secured by a mortgage or deed of trust. 3) v. to fail to file an answer or other response to a summons and complaint, or fail to make a payment when due.

 

default judgment 
n. if a defendant in a lawsuit fails to respond to a complaint in the time set by law, then the plaintiff (suer) can request that the default (failure) be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment. If the complaint was for a specific amount of money owed on a note, other money due, or a specific contract price (or if the amount due is easy to calculate) then the clerk of the court can enter a default judgment. If proof of damages or other relief is necessary, a hearing will be held in which the judge determines terms of the default judgment. In either case the defendant cannot speak for himself/herself. A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.

 

defeasance 
n. an antiquated word for a document which terminates the effect of an existing writing such as a deed, bond or contract if some event occurs.

 

defect 
n. an imperfection, quite often so great that the machinery or written document cannot be used. A car that will not run or has faulty brakes has a defect, and so does a deed in which a party who signed the deed to give over property did not have title to the property described. There are also minor defects, like scratches that only lessen value but do not make an object useless.

 

defective 
adj. not being capable of fulfilling its function, ranging from a deed of land to a piece of equipment.

 

defective title 
n. an apparent title to real property which fails because a claimed prior holder of the title did not have title, or there is a faulty description of the property or some other "cloud" over it, which may or may not be apparent from reading the deed.

 

defendant 
n. 1) the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution. In some types of cases (such as divorce) a defendant may be called a respondent. 

 

defense 
n. 1) a general term for the effort of an attorney representing a defendant during trial and in pre-trial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) a response to a complaint, called an affirmative defense, to counter, defeat or remove all or a part of the contentions of the plaintiff.

 

defense attorney 
n. 1) the attorney representing the defendant in a lawsuit or criminal prosecution. 2) a lawyer who regularly represents defendants who have insurance and who is chosen by the insurance company. 3) a lawyer who regularly represents criminal defendants. Attorneys who regularly represent clients in actions for damages are often called "plaintiff's attorneys".

 

deficiency judgment 
n. a judgment for an amount not covered by the value of security put up for a loan or installment payments. The right to a deficiency judgment is often written into a lease or installment contract on a vehicle. There is a danger that the sale of a repossessed vehicle will be at a wholesale price or to a friend at an auction, leaving the debtor holding the bag for the difference between the sale price and remainder due on the lease or contract.

 

deficit 
n. a shortage, less than is due, or in the case of a business or government budget, more expenditures than income.

 

defraud 
v. to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another.

 

degree of kinship 
n. the level of relationship between two persons related by blood, such as parent to child, one sibling to another, grandparent to grandchild or uncle to nephew, first cousins, etc., calculated as one degree for each step from a common ancestor. This may become important when determining the heirs of an estate when there is no will.

 

delegate 
1) v. to assign authority to another. 2) n. a person chosen to attend a convention, conference or meeting on behalf of an organization, constituency, interest group or business.

 

deleterious 
adj. harmful. 

 

deliberate 
1) adj. (dee-lib-er-et) done with care and intention or premeditated. 2) v. (dee-lib-er-ate) to consider the facts, the laws and/or other matters, particularly by members of a jury, a panel of judges or by any group including a legislature.

 

deliberation 
n. the act of considering, discussing and, hopefully, reaching a conclusion, such as a jury's discussions, voting and decision-making.

 

delinquent 
1) adj. not paid in full amount or on time. 2) n. short for an underage violator of the law as in juvenile delinquent. 

 

deliver 
v. to actually hand an object, money or document to another.

 

delivery 
n. the actual handing to another of an object, money or document (such as a deed) to complete a transaction. The delivery of a deed transfers title (provided it is then recorded), and the delivery of goods makes a sale complete and final if payment has been made. Symbolic or constructive delivery (depositing something with an agent or third person) falls short of completion unless agreed to by the parties.

 

demand 
1) v. to claim as a need, requirement or entitlement, as in to demand payment or performance under a contract. In a lawsuit for payment of a debt or performance of an act, the party suing (plaintiff) should allege that he/she/it demanded payment or performance. 2) n. a claim, such as an unqualified request for payment or other action. 3) the amount requested by a plaintiff (usually in writing) during negotiations to settle a lawsuit. 4) adj. referring to a note payable at any time a request to pay is made.

 

demand note 
n. a promissory note which is payable any time the holder of the note makes a request. This is different from a note due at a specific time, upon occurrence of an event, or by installments.

 

demise 
1) v. an old-fashioned expression meaning to lease or transfer (convey) real property for years or life, but not beyond that. 2) n. the deed that conveys real property only for years or life. 3) n. death. 4) n. failure.

 

demonstrative evidence 
n. actual objects, pictures, models and other devices which are supposedly intended to clarify the facts for the judge and jury: how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime. Many of these are not supposed to be actual evidence, but "aids" to understanding. A model of a knee or a photograph of an accident scene obviously helps, but color photos of an operation in progress or a bullet-riddled body can excite the passions of a jury. The borderline balance between legitimate aids and evidence intended to inflame a juror's emotions is in the hands of the trial judge.

 

demurrer 
n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint.

 

denial 
n. a statement in the defendant's answer to a complaint in a lawsuit that an allegation (claim of fact) is not true. If a defendant denies all allegations it is called a general denial. In answering, the defendant is limited to admitting, denying or denying on the basis he/she/it has no information to affirm or deny. The defendant may also state affirmative defenses.

 

dependent 
1) n. a person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce his/her income taxes. 2) adj. requiring an event to occur, as the fulfillment of a contract is dependent on the expert being available.

 

depletion 
n. when a natural resource (particularly oil) is being used up. The annual amount of depletion may, ironically, provide a tax deduction for the company exploiting the resource because if the resource they are exploiting runs out, they will no longer be able to make money from it.

 

deponent 
n. a person testifying (stating answers in response to questions) at a deposition. 

 

deportation 
n. the act of expelling a foreigner from a country, usually because he/she has a criminal record, committed a crime, lied on his/her entry documents, is in the country illegally or his/her presence is deemed to be against the best interests of the nation. Deportation is usually to the country of origin.

 

depose 
v. 1) to ask questions of a witness or a party to a lawsuit at a deposition (testimony outside of the courtroom before trial). 2) to testify at a deposition. 

 

deposition 
n. the taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery (investigation), set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpena must be served on him/her if he/she is reluctant to testify. The testimony is taken down by the court reporter, who will prepare a transcript if requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available.

 

depreciate 
v. in accounting, to reduce the value of an asset each year theoretically on the basis that the assets (such as equipment, vehicles or structures) will eventually become obsolete, worn out and of little value.

 

depreciation 
n. the actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a business deduction for income tax reduction, spread out over the expected useful life of the asset or at a higher rate in the early years of use.

 

depreciation reserve 
n. a business fund in which the probable replacement cost of equipment is accumulated each year over the life of the asset, so it can be replaced readily when it becomes obsolete and totally depreciated.

 

derelict 
n. something or someone who is abandoned, such as a ship left to drift at sea or a homeless person ignored by family and society.

 

dereliction 
n. 1) abandoning possession, which is sometimes used in the phrase "dereliction of duty." It includes abandoning a ship, which then becomes a "derelict" which salvagers can board. 2) an old expression for increase of land due to gradual lowering of a tide line (which means the land is building up).

 

derivative action 
n. a lawsuit brought by a corporation shareholder against the directors, management and/or other shareholders of the corporation, for a failure by management. In effect, the suing shareholder claims to be acting on behalf of the corporation, because the directors and management are failing to exercise their authority for the benefit of the company and all of its shareholders. This type of suit often arises when there is fraud, mismanagement, self-dealing and/or dishonesty which are being ignored by officers and the board of directors of a corporation.

 

descent 
n. the rules of inheritance established by law in cases in which there is no will naming the persons to receive the possessions of a person who has died. Depending on which relatives survive, the estate may go all or in part to the surviving spouse, and down the line from a parent to children (or if none survive, to grandchildren), or up to surviving parents, or collaterally to brothers and sisters. If there are no survivors among those relatives, then aunts, uncles, cousins, nieces and nephews may inherit, depending on their degree of kinship (closeness of family relationship).

 

descent and distribution 
n. the system of laws which determine who will inherit and divide the possessions of a person who has died without a will (intestate). 

 

desert 
v. to intentionally abandon a person or thing. 

 

desertion 
n. the act of abandoning, particularly leaving one's spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues.

 

determinable 
adj. defining something which may be terminated upon the occurrence of a particular event, used primarily to describe an interest in real property, such as a fee simple determinable, in which property is deeded to another, but may revert to the giver or go to a third person if, as examples, the receiver (grantee) marries, divorces or no longer lives in the house.

 

devise 
1) v. an old-fashioned word for giving real property by a will, as distinguished from words for giving personal property. 2) n. the gift of real property by will.

 

devisee 
n. a person who receives a gift of real property by a will. The distinction between gifts of real property and personal property is actually blurred, so terms like beneficiary or legatee cover those receiving any gift by a will.

 

devolution 
n. 1) the transfer of title to real property by the automatic operation of law. 2) n. the transfer of rights, powers or an office (public or private) from one person or government to another.

 

devolve 
v. when property is automatically transferred from one party to another by operation of law, without any act required of either past or present owner. The most common example is passing of title to the natural heir of a person upon his/her death. 2) passing of authority to a vice president on the death of a president. 3) to give a territory sovereign rights to run itself.

 

dicta 
n. the plural of dictum. 

 

dictum 
n. Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)".

 

diligence 
n. reasonable care or attention to a matter, which is good enough to avoid a claim of negligence, or is a fair attempt (as in due diligence in a process server's attempt to locate someone).

 

diminished capacity 
n. essentially a psychological term which has found its way into criminal trials. A contention of diminished capacity means that although the accused was not insane, due to emotional distress, physical condition or other factors he/she could not fully comprehend the nature of the criminal act he/she is accused of committing, particularly murder or attempted murder. It is raised by the defense in attempts to remove the element of premeditation or criminal intent and thus obtain a conviction for a lesser crime, such as manslaughter instead of murder. While the theory has some legitimacy, at times juries have been overly impressed by psychiatric testimony.

 

diminution in value 
n. in the event of a breach of contract, the decrease in value of property due to the failure to construct something exactly as specified in the contract.

 

direct and proximate cause 
n. the immediate reason of damage caused by an act or omission (negligence); the negligence must have caused the damages, without intervention of another party, and cannot be remote in time or place. Example (in a complaint): "Defendant's negligent acts (speeding and losing control of his vehicle) directly and proximately caused plaintiff's injuries".

 

direct evidence 
n. real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.

 

direct examination 
n. the first questioning of a witness during a trial or deposition (testimony out of court), as distinguished from cross-examination by opposing attorneys and redirect examination when the witness is again questioned by the original attorney.

 

directed verdict 
n. a verdict by a jury based on the specific direction by a trial judge that they must bring in that verdict because one of the parties has not proved his/her/its case as a matter of law (failed to present credible testimony on some key element of the claim or of the defense). A judge in a criminal case may direct a verdict of acquittal on the basis that the prosecution has not proved its case, but the judge may not direct a verdict of guilty, since that would deprive the accused of the constitutional right to a jury trial.

 

director 
n. a member of the governing board of a corporation or association elected or re-elected at annual meetings of the shareholders or members. As a group the directors are responsible for the policy making, but not day-to-day operation, which is handled by officers and other managers. In some cases, a director may also be an officer, but need not be a shareholder.Often lay people dealing with corporations confuse directors with officers. Officers are employees hired by the board of directors to manage the business.

 

disability 
n. 1) a condition which prevents one from performing all usual physical or mental functions. This usually means a permanent state, like blindness, but in some cases is temporary. In recent times society and the law have dictated that people with disabilities should be accommodated and encouraged to operate to their maximum potential and have the right to participate in societal and governmental activity without impediments. 2) a legal impediment, including being a minor who cannot make a contract, or being insane or incompetent.

 

disbar 
v. to remove an attorney from the list of practicing attorneys for improper conduct. This penalty is usually invoked by the State Bar Association (if so empowered) and will automatically prohibit the attorney from practicing law before the courts in that state or from giving advice for a fee to clients. The causes of permanent disbarment include conviction of a felony involving "moral turpitude", forgery, fraud, a history of dishonesty, consistent lack of attention to clients, abandoning several clients, alcoholism or drug abuse which affect the attorney's ability to practice, theft of funds, or any pattern of violation of the professional code of ethics. Singular incidents (other than felony conviction) will generally result in reprimand, suspension and/or a requirement that the lawyer correct his/her conduct.

 

disbarment 
n. the ultimate discipline of an attorney, which is taking away his/her license to practice law, often for life. Disbarment only comes after investigation and opportunities for the attorney to explain his/her improper conduct. Sometimes an attorney may be reinstated upon a showing of rehabilitation and/or cure.

 

discharge 
v. 1) to perform one's duties. 2) to dismiss someone from a job. 3) to pay one's debts or obligations. 4) in bankruptcy, to issue an order of the court that all debts (with certain statutory exceptions) are forgiven and need not be paid.

 

discharge in bankruptcy 
n. an order given by the bankruptcy judge, at the conclusion of all legal steps in processing a bankrupt person's assets and debts, which forgives those remaining debts which cannot be paid, with certain exceptions. Debts for fraudulent or illegal actions, alimony and child support and taxes are not dischargeable and remain owed (but often not collectible if the bankrupt person has nothing). A discharge in bankruptcy is bad news for unsecured creditors.

 

disclaimer 
n. 1) denial or renunciation by someone of his/her title to property. 2) denial of responsibility for another's claim, such as an insurance company's refusal to admit coverage under an insurance policy. 3) statement of non-responsibility, as is made when dissolving a partnership or business.

 

discount 
n. the payment of less than the full amount due on a promissory note or price for goods or services. Usually a discount is by agreement and includes the common situation in which a holder of a long-term promissory note or material goods will sell it/them for less than face value in order to get cash now-the difference is the discount. 

 

discovery 
n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

 

discretion 
n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: a) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; b) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; c) a Governor may have discretion to grant a pardon; or d) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.

 

discrimination 
n. unequal treatment of persons, for a reason which has nothing to do with legal rights or ability. Laws prohibit discrimination in employment, availability of housing, rates of pay, right to promotion, educational opportunity, civil rights, and use of facilities based on race, nationality, creed, color, age, sex or sexual orientation. The rights to protest discrimination or enforce one's rights to equal treatment are provided in various laws, which allow for private lawsuits with the right to damages.

 

disfigure 
v. to cause permanent change in a person's body, particularly by leaving visible scars which affect a person's appearance. In lawsuits or claims due to injuries caused by another's negligence or intentional actions, such scarring can add considerably to general damages.

 

dishonor 
v. to refuse to pay the face amount of a cheque or the amount due on a promissory note 

 

disinherit 
v. to intentionally take actions to guarantee that a person who would normally inherit upon a party's death (wife, child or closest relative) would get nothing. Usually this is done by a provision in a will or codicil (amendment) to a will which states that a specific person is not to take anything," "no descendant of my hated brother shall take anything on account of my death"). It is not enough to merely ignore or not mention a child in a will since he/she may become a "pretermitted heir" (a child apparently forgotten).

 

disinheritance 
n. the act of disinheriting. 

 

disjunctive allegations 
n. the attempt to claim in a civil lawsuit that one thing "or" another occurred, and in criminal charges that the accused committed one crime "or" another. Such complaints are disallowed because the defendant is entitled to know what he/she must defend.

 

dismiss 
v. the ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff's lawsuit is terminated (thrown out) at that point without further evidence or testimony. This judgment may be made before, during or at the end of a trial, when the judge becomes convinced that the plaintiff has not and cannot prove his/her/its case. This can be based on the complaint failing to allege a cause of action, on a motion for summary judgment, plaintiff's opening statement of what will be proved, or on some development in the evidence by either side which bars judgment for the plaintiff. The judge may dismiss on his own or upon motion by the defendant. The plaintiff may voluntarily dismiss a cause of action before or during trial if the case is settled, if it is not provable or trial strategy dictates getting rid of a weak claim. A defendant may be "dismissed" from a lawsuit, meaning the suit is dropped against that party.

 

dismissal 
n. 1) the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) a judge's ruling that a lawsuit or criminal charge is terminated. 3) an appeals court's act of dismissing an appeal, letting the lower court decision stand. 4) the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing the suit again if the defendant does not follow through on the terms of the settlement.

 

disorderly conduct 
n. 1) actions that disturb others. 2) minor criminal offenses, such as public drunkenness, loitering, disturbing the peace, and loud threats or parties.

 

disorderly house 
n. 1) polite term for house of prostitution. 2) place of illegal gambling. 

 

disposing mind and memory 
n. the mental ability to understand in general what one possesses and the persons who are the "natural objects of bounty" (wife and/or children), at the time of making a will.

 

disposition 
n. the court's final determination of a lawsuit or criminal charge 

 

dispossess 
v. to eject someone from real property, either legally or by self-help

 

dissent 
n. 1) the opinion of a judge of a court of appeals, including the Supreme Court, which disagrees with the majority opinion. Sometimes a dissent may eventually prevail as the law or society evolves. 2) stated disagreement with prevailing thought.

 

dissolution 
n. modern, gentler sounding, term for divorce and symbolic of the no-fault, non-confrontational approach to dissolving a marriage.

 

dissolution of corporation 
n. termination of a corporation, either a) voluntarily by resolution, paying debts, distributing assets and filing dissolution documents or b) by state suspension for not paying corporate taxes or some other action of the government.

 

distinguish 
v. to argue that the rule in one appeals court decision does not apply to a particular case although there is an apparent similarity (i.e. it is "distinguished").

 

distress 
1) n. the self-help taking of another's possessions in order to force payment of a claim, which is generally illegal without a court order. 2) adj. at lowest price due to negative circumstances.

 

distribute 
v. 1) the dividing up of those assets of an estate or trust when someone has died according to the terms of the deceased's will or trust, or in absence of a will, according to the laws of descent and distribution. 2) division of profits or assets of a corporation or business.

 

distribution 
n. the act of dividing up the assets of an estate or trust, or paying out profits or assets of a corporation or business according to the ownership percentages.

 

disturbing the peace 
n. upsetting the quiet and good order particularly through loud noise, by fighting or other unsocial behavior which frightens or upsets people. It is a misdemeanor, punishable by fine or brief term in jail.

 

diversion 
n. in criminal procedure, a system for giving a chance for a first- time criminal defendant in lesser crimes to make restitution for damage due to the crime, obtain treatment for alcohol or drug problems and/or counselling for antisocial or mentally unstable conduct. If the defendant cooperates and the diversion results in progress, the charges eventually may be dismissed. Usually diversion may not be granted for a second offense.

 

divestiture 
n. the court-ordered or voluntary giving up of a possession or right, to prevent monopoly or other restraint of trade.

 

divestment 
n. the act of stripping one's investment from an entity. 

 

dividend 
n. a portion of profit, usually based on the number of shares of stock in a corporation and the rate of distribution approved by the board of directors or management, that is paid to shareholders for each share they own. Dividends are not always paid in money, but can be paid in shares of stock, known as a stock dividend.

 

divorce 
1) n. the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution) by one party. The substantive issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees.

 

dna 
n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the famous "double helix") in the nucleus of each living cell, the combination of which determines each individual's hereditary characteristics. In law, the importance is the discovery that each person's DNA is different and is found in each living cell, so blood, hair, skin or any part of the body can be used to identify and distinguish an individual from all other people. DNA testing can result in proof of one's involvement or lack of involvement in a crime scene. While recent DNA tests have proved a convicted killer on death row did not commit a crime and resulted in his release, current debate concerns whether DNA evidence is scientifically certain enough to be admitted in trials. The trend is strongly in favor of admission.

 

docket 
1) n. the cases on a court calendar. 2) n. brief notes, usually written by the court clerk, stating what action was taken that day in court. 3) v. to write down the name of a case to be put on calendar or make notes on action in court.

 

document 
n. a popular generic word among lawyers for any paper with writing on it. Technically it could include a piece of wood with a will or message scratched on it. 

 

documentary evidence 
n. any document (paper) which is presented and allowed as evidence in a trial or hearing, as distinguished from oral testimony. However, the opposing attorney may object to its being admitted. In the first place, it must be proved by other evidence from a witness that the paper is genuine (called "laying a foundation"), as well as pass muster over the usual objections such as relevancy.

 

doing business 
v. carrying on the normal activities of a corporation on a regular basis or with substantial contacts-not just an occasional shipment. This is important to determine if an out-of-state corporation is "doing business" in a state so that it can be served with a complaint, is subject to certain state taxes and/or must register as a "foreign" corporation operating within the state.

 

domestic partners 
n. unmarried couples, living together in long-standing relationships, who may be entitled to some of the same benefits as married people, such as job-related health plans.

 

domestic relations 
n. a polite term for the legal field of divorce, dissolution, annulment, child custody, child support and alimony.

 

domestic violence 
n. the continuing crime and problem of the physical beating of a wife, girlfriend or children, usually by the woman's male partner (although it can also be female violence against a male). It is now recognized as an antisocial mental illness. Sometimes a woman's dependence, low self-esteem and fear of leaving cause her to endure this conduct or fail to protect a child. Prosecutors and police often face the problem that a battered woman will not press charges or testify due to fear, intimidation and misplaced "love". Increasingly domestic violence is attracting the sympathetic attention of law enforcement, the courts and community services, including shelters and protection for those in danger.

 

domicile 
n. the place where a person has his/her permanent principal home to which he/she returns or intends to return. 

 

dominant estate 
n. in real estate law, the property retained when the owner splits off and conveys part of the property to another party but retains some rights such as an easement for access (a driveway) or utilities. The property sold off upon which there is the easement is called the servient estate. These are also called dominant tenement and servient tenement, respectively.

 

dominant tenement 
n. See also: dominant estate 

 

donation 
n. gift. If made to a qualified non-profit charitable, religious, educational or public service organization, it may be deductible as a contribution in calculating income tax.

 

donative intent 
n. conscious desire to make a gift, as distinguished from giving something for nothing by mistake or under pressure.

 

donee 
n. a person or entity receiving an outright gift or donation. 

 

donor 
n. a person or entity making a gift or donation. 

 

double jeopardy 
n. placing someone on trial a second time for an offense for which he/she has been previously acquitted, even when new incriminating evidence has been unearthed.

 

double taxation 
n. taxation of the same property for the same purpose twice in one year. This is generally prohibited if it occurs through such circumstances as transfer of property which has been taxed once and then the tax is imposed on a new owner. However, if all property in a jurisdiction is taxed twice in the same year, it is legal since it is not discriminatory or unfair.

 

dower 
n. an old English common law right of a widow to one-third of her late husband's estate. 

 

dowry 
n. from the days when a groom expected to profit from a marriage, the money and personal property which a bride brings to her new husband which becomes his alone.

 

draft 
1) n. a bill of exchange or check in which one party (including a bank) is directed by the party drafting (writing) the bill or check to take money from the drafter's (writer's) bank account and pay it to another person or entity. 2) v. to prepare and sign a bill of exchange or check. 3) n. a less than final document, which is ready for discussion, rewriting and/or editing, such as a book, a proposal, or a legislative bill.

 

draw 
v. 1) to prepare any document. 2) specifically to have prepared and signed a bill of exchange or check. 

 

drawee 
n. the party who is to be paid on a bill of exchange or check. 

 

drawer 
n. the person who signs a bill of exchange. 

 

driving under the influence (dui) 
n. commonly called "drunk driving," it refers to operating a motor vehicle while one's blood alcohol content is above the legal limit set by statute, which supposedly is the level at which a person cannot drive safely.

 

drop dead date 
n. a provision in a contract or a court order which sets the last date an event must take place (such as payment) or otherwise certain consequences will automatically follow, such as cancelling the contract, taking property or entering a judgment.

 

due 
n. and adj. owed as of a specific date. A popular legal redundancy is that a debt is "due, owing and unpaid." Unpaid does not necessarily mean that a debt is due.

 

due and owing 
adj. See also: due 

 

due care 
n. the conduct that a reasonable man or woman will exercise in a particular situation, in looking out for the safety of others. If one uses due care then an injured party cannot prove negligence. This is one of those nebulous standards by which negligence is tested. Each juror has to determine what a "reasonable" man or woman would do.

 

due process of law 
n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness.

 

duress 
n. the use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find the document null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime.

 

duty 
n. 1) a legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that there was a duty by defendant to plaintiff. This can be a duty of care in a negligence case or a duty to perform in a contract case. 2) a tax on imports.

 

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

 

dying declaration 
n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances. Although hearsay since the dead person cannot testify in person, it is admissible on the theory that a dying person has no reason not to tell the truth.

 

E

earnest payment 
n. a deposit paid to demonstrate commitment and to bind a contract, with the remainder due at a particular time. If the contract is breached by failure to pay, then the earnest payment is kept by the recipient as pre-determined (liquidated) or committed damages.

 

easement 
n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property (often redundantly stated "access and egress," since entry and exit are over the same path), for utility or sewer lines both under and above ground, entry to make repairs on a fence or slide area, drive cattle across and other uses.

 

egress 
n. way of departure. A word usually used in conjunction with "access" or "ingress."

 

ejectment 
n. a lawsuit brought to remove a party who is occupying real property. This is not the same as an unlawful detainer (eviction) suit against a non-paying or unsatisfactory tenant. It is against someone who has tried to claim title to the property. 

 

ejusdem generis 
(eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

 

election of remedies 
n. an outmoded requirement that if a plaintiff (party filing suit) asks for two remedies based on legal theories which are inconsistent (a judge can grant only one or the other), the plaintiff must decide which one is the most provable and which one he/she really wants to pursue, usually just before the trial begins. Example: suing someone for both breach of contract and for fraud (a secret plan not to fulfill the contract when it was made). Fraud might bring punitive damages, but proof of fraud might be more difficult than of breach of contract. Increasingly, the courts have dispensed with the election of remedies as unfair to the plaintiff since the evidence has not been fully presented.

 

election under the will 
n. statutes which give a widow a particular percentage of the late husband's estate (such as dower), the surviving wife may elect to take that percentage instead of any lesser amount (or assets with unacceptable conditions such as an estate which will be cancelled if she remarries) left to her under his will.

 

eleemosynary 
(eh-luh-moss-uh-nary) adj. charitable, as applied to a purpose or institution.

 

element 
n. 1) an essential requirement to a cause of action (the right to bring a lawsuit to enforce a particular right). Each cause of action (negligence, breach of contract, trespass, assault, etc.) is made up of a basic set of elements which must be alleged and proved. Each charge of a criminal offense requires allegation and proof of its elements. 2) essential requirement of a zoning general plan.

 

emancipation 
n. freeing a minor child from the control of parents and allowing the minor to live on his/her own or under the control of others. It usually applies to adolescents who leave the parents' household by agreement or demand. Emancipation may also end the responsibility of a parent for the acts of a child, including debts, negligence or criminal acts. Sometimes it is one of the events which cuts off the obligation of a divorced parent to pay child support.

 

embezzlement 
n. the crime of stealing the funds or property of an employer, company or government or misappropriating money or assets held in trust.

 

embezzler 
n. a person who commits the crime of embezzlement by fraudulently taking funds or property of an employer or trust. 

 

emblements 
n. crops to which a tenant who cultivated the land is entitled by agreement with the owner. If the tenant dies before harvest the crop will become the property of his/her estate. 

 

emergency 
n. a sudden, unforeseen happening which requires action to correct or to protect lives and/or property.

 

eminent domain 
n. the power of a governmental entity to take private real estate for public use, with or without the permission of the owner.

 

emolument 
n. salary, wages and benefits paid for employment or an office held.

 

emotional distress 
n. an increasingly popular basis for a claim of damages in lawsuits for injury due to the negligence or intentional acts of another. 

 

employee 
n. a person who is hired for a wage, salary, fee or payment to perform work for an employer. The employee is called an agent and the employer is called the principal. This is important to determine if one is acting as employee when injured (for worker's compensation) or when he/she causes damage to another, thereby making the employer liable for damages to the injured party.

 

employer 
n. a person or entity which hires the services of another called a principal. 

 

employment 
n. the hiring of a person for compensation. It is important to determine if acts occurred in the "scope of employment" to establish the possible responsibility of the employer to the employee for injuries on the job or to the public for acts of the employee.

 

en banc 
(on bonk) French for "in the bench," it signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one, three or four judge panel. The larger number sit in judgment when the court feels there is a particularly significant issue at stake or when requested by one or both parties to the case and agreed to by the court.

 

enabling clause 
n. a provision in a new statute which empowers a particular public official (Governor, State Treasurer) to put it into effect, including making expenditures.

 

enclosure 
(inclosure)n. land bounded by a fence, wall, hedge, ditch or other physical evidence of boundary. Unfortunately, too often these creations are not included among the actual legally described boundaries and cause legal problems

 

encroach 
v. to build a structure which is in whole or in part across the property line of another's real property. This may occur due to incorrect surveys, guesses or miscalculations by builders and/or owners when erecting a building. The solutions vary from giving the encroaching party an easement or lease (for a price, usually) for the lifetime of the building, or if the structure is small, actually moving it onto the owner's own property.

 

encroachment 
n. the act of building a structure which is in whole or in part on a neighbor's property. 

 

encumbrance 
(incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes. While the owner has title, any encumbrance is usually on record and must be paid for at some point.

 

endorse (indorse) 
v. 1) to sign one's name to the back of a check, bill of exchange or other negotiable instrument with the intention of making it cashable or transferable. 2) to pledge support to a program, proposal or candidate.

 

endorsement 
(indorsement)n. 1) the act of the owner or payee signing his/her name to the back of a check, bill of exchange or other negotiable instrument so as to make it payable to another or cashable by any person. An endorsement may be made after a specific direction "for deposit only", called a qualified endorsement, or with no qualifying language, thereby making it payable to the holder, called a blank endorsement. There are also other forms of endorsement which may give credit or restrict the use of the check. 2) the act of pledging or committing support to a program, proposal or candidate.

 

endowment 
n. the creation of a fund, often by gift or bequest from a dead person's estate, for the maintenance of a public institution, particularly a college, university or scholarship.

 

enjoin 
v. for a court to order that someone either do a specific act, cease a course of conduct or be prohibited from committing a certain act. To obtain such an order, called an injunction, a private party or public agency has to file a petition for a writ of injunction, serve it on the party he/she/it hopes to be enjoined, allowing time for a written response. Then a court hearing is held in which the judge will consider evidence, both written and oral, listen to the arguments and then either grant the writ or deny it. If granted the court will issue a final or permanent injunction. A preliminary injunction or temporary injunction is an order made by the court while the matter is being processed and considered, based on the petition and any accompanying declarations, either of which is intended to keep matters in status quo (as they are) or prevent possible irreparable harm (like cutting trees, poisoning a stream or moving out of the country with a child or money) until a final decision is made.

 

enjoyment 
n. 1) to exercise a right. 2) pleasure. 3) the use of funds or occupancy of property. Sometimes this is used in the phrase "quiet enjoyment" which means one is entitled to be free of noise or interference.

 

enter a judgment 
v. to officially record a judgment on the "judgment roll," which entry is normally performed by the court clerk once the exact wording of the judgment has been prepared or approved and signed by the trial judge. All times for appeal and other post-judgment actions are based on the date of the entry of judgment and not the date when the judgment is announced.

 

entity 
n. a general term for any institution, company, corporation, partnership, government agency, university or any other organization which is distinguished from individuals.

 

entrapment 
n. in criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the "criminal." Entrapment, if proved, is a defense to a criminal prosecution. The accused often claims entrapment in so-called "stings" in which undercover agents buy or sell narcotics, prostitutes' services or arrange to purchase goods believed to be stolen.

 

entry of judgment 
n. the placement of a judgment on the official roll of judgments. 

 

environmental impact report 
n. a study of all the factors which a land development or construction project would have on the environment in the area, including population, traffic, schools, fire protection, endangered species, archeological artifacts and community beauty. A report has to be submitted to the local governments before the development or project can be approved, unless the governmental body finds there is no possible impact, which finding is called a "negative declaration."

 

environmental law 
n Laws intended to protect the environment, wildlife, land and beauty, prevent pollution or over-cutting of forests, save endangered species, conserve water, develop and follow general plans and prevent damaging practices. These laws often give individuals and groups the right to bring legal actions or seek court orders to enforce the protections or demand revisions of private and public activity which may have detrimental effects on the environment.

 

equal opportunity 
1) n. a right supposedly guaranteed by law against any discrimination in employment, education, housing or credit rights due to a person's race, color, sex (or sometimes sexual orientation), religion, national origin, age or handicap. A person who believes he/she has not been granted equal opportunity or has been outright sexually harassed or discriminated against may file a lawsuit. 2) adj. a term applied to employers, lenders and landlords, who advertise that they are "equal opportunity employers," subtly suggesting all others are not, even though they are required by law to be so.

 

equal protection of the law 
n. the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts, both in procedures and in the substance of the law. It is akin to the right to due process of law, but in particular applies to equal treatment as an element of fundamental fairness.

 

equitable 
adj. 1) just, based on fairness and not legal technicalities. 2) refers to positive remedies (orders to do something, not money damages) employed by the courts to solve disputes or give relief.

 

equitable estoppel 
n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: "he who seeks equity, must do equity". 

 

equitable lien 
n. a lien on property imposed by a court in order to achieve fairness, particularly when someone has possession of property which he/she holds for another.

 

equity 
n. 1) a venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing a lien, dividing assets, or injunctive relief (ordering a person to do something) to prevent irreparable damage. The rules of equity arose in England where the strict limitations of common law would not solve all problems, so the King set up courts of chancery (equity) to provide remedies through the royal power. 2) the net value of real property, determined by subtracting the amount of unpaid debts secured by (against) the property from the appraised value of the property.

 

equity of redemption 
n. the right of a mortgagor (person owing on a loan or debt against their real property), after commencement of foreclosure proceedings, to "cure" his/her default by making delinquent payments. The mortgagor also must pay all accumulated costs as well as the delinquency to keep the property.

 

equivalent 
n., adj. equal in value, force or meaning.

 

ergo 
(air-go)conj. Latin for "therefore," often used in legal writings. Its most famous use was in Cogito, ergo sum: "I think, therefore I am" principle by French philosopher Rene Descartes (1596-1650).

 

erroneous 
adj. 1) in error, wrong. 2) not according to established law, particularly in a legal decision or court ruling.

 

error 
n. a mistake by a judge in procedure or in substantive law, during a hearing, upon petitions or motions, denial of rights, during the conduct of a trial (either granting or denying objections), on approving or denying jury instructions, on a judgment not supported by facts or applicable law or any other step in the judicial process. If a majority of an appeals court finds an error or errors which affect the result, or a denial of fundamental rights such as due process, the higher court will reverse the lower court's error in whole or in part (the entire judgment or a part of it), and remand (send it back) with instructions to the lower court. Appeals courts often find errors which have no prejudicial effect on the rights of a party and are thus harmless error.

 

errors and omissions 
n. short hand for malpractice insurance which gives physicians, attorneys, architects, accountants and other professionals coverage for claims by patients and clients for alleged professional errors and omissions which amount to negligence.

 

escalator clause 
n. a provision in a lease or other agreement in which rent, installment payments or alimony, for example, will increase from time to time when the cost of living index (or a similar gauge) goes up. Often there is a maximum amount of increase ("cap") and seldom is there a provision for reduction if the cost of living goes down or for deflation instead of inflation.

 

escape clause 
n. a provision in a contract which allows one of the parties to be relieved from (get out of) any obligation if a certain event occurs. 

 

escheat 
n. from old French eschete, which meant "that which falls to one," the forfeit of all property (including bank accounts) to the state treasury if it appears certain that there are no heirs, descendants or named beneficiaries to take the property upon the death of the last known owner.

 

escrow 
1) n. a form of account held by an "escrow agent" (an individual, escrow company or title company) into which is deposited the documents and funds in a transfer of real property, including the money, a mortgage or deed of trust, an existing promissory note secured by the real property, escrow "instructions" from both parties, an accounting of the funds and other documents necessary to complete the transaction by a date ("closing") agreed to by the buyer and seller. When the funding is complete and the deed is clear, the escrow agent will then record the deed to the buyer and deliver funds to the seller. The escrow agent or officer is an independent holder and agent for both parties who receives a fee for his/her/its services. 2) n. originally escrow meant the deed held by the escrow agent. 3) n. colloquially, the escrow agent is called an "escrow," while actually the escrow is the account and not a person. 4) v. to place the documents and funds in an escrow account, as in: "we will escrow the deal."

 

escrow agent 
n. a person or entity holding documents and funds in a transfer of real property, acting for both parties pursuant to instructions. Typically the agent is a person (commonly an attorney), escrow company or title company, depending on local practice.

 

escrow instructions 
n. the written instructions by buyer and seller of real estate given to a title company, escrow company or individual escrow in "closing" a real estate transaction. These instructions are generally prepared by the escrow holder and then approved by the parties and their agents.

 

espionage 
n. the crime of spying on the government and/or transferring government secrets on behalf of a foreign country. The other country need not be an "enemy," so espionage may not be treason, which involves aiding an enemy.

 

esquire 
n. a form of address showing that someone is an attorney. Originally in England an Esquire was a rank just above "gentleman" and below "knight." It became a title for barristers, sheriffs and judges.

 

estate 
n. 1) all that one owns in real estate and other assets. 2) commonly, all the possessions of one who has died and are subject to probate (administration supervised by the court) and distribution to heirs and beneficiaries, all the possessions which a guardian manages for a ward (young person requiring protection and administration of affairs), or assets a conservator manages for a conservatee (a person whose physical or mental lack of competence requires administration of his/her affairs). 3) an alternative term for real property interest which is used in conjunction with another defining word, like "life estate," "estate for years," or "real estate."

 

estate by entirety 
n. tenancy by the entirety. 

 

estop 
v. to halt, bar or prevent.

 

estoppel 
n. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act or judgment against the person in an identical legal case. Estoppel includes being barred by false representation or concealment (equitable estoppel), failure to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court ruling against the party on the same matter in a different case (collateral estoppel).

 

et al. 
n. abbreviation for the Latin phrase et alii meaning "and others." This is commonly used in shortening the name of a case.

 

et seq. 
(et seek) n. abbreviation for the Latin phrase et sequentes meaning "and the following." It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated.

 

et ux. 
(et uhks) n. abbreviation for the Latin words et uxor meaning "and wife." It is usually found in deeds, tax assessment rolls and other documents in the form "John Abraham et ux.," to show that the wife as well as the husband own property. The connotation that somehow the wife is merely an adjunct to her husband, as well as the modern concepts of joint tenancy, tenancy in common, community property where applicable and equal rights of the sexes have combined to make the expression a chauvinistic anachronism.

 

evasion of tax 
n. the intentional attempt to avoid paying taxes through fraudulent means, as distinguished from late payment, using legal "loopholes" or errors.

 

eviction 
n. a generic word for the act of expelling (kicking out) someone from real property either by legal action (suit for unlawful detainer), a claim of superior (actual) title to the property, or actions which prevent the tenant from continuing in possession (constructive eviction). Most frequently eviction consists of ousting a tenant who has breached the terms of a lease or rental agreement by not paying rent or a tenant who has stayed (held over) after the term of the lease has expired or only had a month-to-month tenancy.

 

evidence 
n. every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial). It also includes so-called "circumstantial evidence" which is intended to create belief by showing surrounding circumstances which logically lead to a conclusion of fact. Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence. Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence. Evidence must survive objections of opposing attorneys that it is irrelevant, immaterial or violates rules against "hearsay" (statements by a party not in court), and/or other technicalities.

 

ex delicto 
(ex dee-lick-toe)adj. Latin for a reference to something that arises out of a fault or wrong, but not out of contracts. Of only academic interest today, it identified actions which were civil wrongs (torts).

 

ex officio 
a (ex oh-fish-ee-oh)dj. Latin for "from the office," to describe someone who has a right because of an office held, such as being allowed to sit on a committee simply because one is president of the corporation.

 

ex parte 
(ex par-tay, but popularly, ex party) adj. Latin meaning "for one party," referring to motions, hearings or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance. Most jurisdictions require at least a diligent attempt to contact the other party's lawyer at the time and place of any ex parte hearing.

 

ex post facto 
adj. Latin for "after the fact," which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increasing the penalty for a crime after it is committed.

 

examination 
n. 1) the questioning of a witness by an attorney. Direct examination is interrogation by the attorney who called the witness, and cross-examination is questioning by the opposing attorney. A principal difference is that an attorney putting questions to his own witness cannot ask "leading" questions, which put words in the mouth of the witness or suggest the answer, while on cross-examination he/she can pose a question that seems to contain an answer or suggest language for the witness to use or agree to. 2) in bankruptcy, the questions asked of a debtor by the judge, trustee in bankruptcy, attorneys or even creditors, to determine the state of the debtor's affairs. 3) in criminal law, a preliminary examination is a hearing before a judge or other magistrate to determine whether a defendant charged with a felony should be held for trial. Usually this is held by a lower court and if there is any substantial evidence to show a felony has been committed by the defendant he/she is bound over to the appropriate court for trial, but otherwise the charge will be dismissed by the judge.

 

exception 
n. 1) a formal objection during trial ("We take exception, or simply, "exception")" to the ruling of a judge on any matter, including rulings on objections to evidence, to show to a higher court that the lawyer did not agree with the ruling. In modern practice, it is not necessary "to take exception" to a judge's adverse ruling, since it is now assumed that the attorney against whom the ruling is made objects. This also keeps the transcribed record from being cluttered with shouts of "exception." 2) in contracts, statutes or deeds, a statement that some matter is not included.

 

exception in deed 
n. a notation in a deed of title to real property which states that certain interests, such as easements or a life estate, are not included in the transfer (conveyance) of title.

 

excessive bail 
n. an amount of bail ordered posted by an accused defendant which is much more than necessary or usual to assure he/she will make court appearances, particularly in relation to minor crimes. If excessive bail is claimed, the defendant can make a motion for reduction of bail, and if it is not granted, he/she can then apply directly to a court of appeal for reduction.

 

exchange 
1) v. to trade or barter property, goods and/or services for other property, goods and/or services, unlike a sale or employment in which money is paid for the property, goods or services. 2) n. the act of making a trade or barter. An exchange of "equivalent" property, including real estate, can defer capital gains taxation until the acquired property is sold.

 

excise 
n. a tax upon manufacture, sale or for a business license or charter, as distinguished from a tax on real property, income or estates. Sometimes it is redundantly called an excise tax.

 

exclusionary rule 
n. the rule that evidence secured by illegal means and in bad faith cannot be introduced in a criminal trial. The technical term is that it is "excluded" upon a motion to suppress made by the lawyer for the accused.

 

exculpatory 
adj. applied to evidence which may justify or excuse an accused defendant's actions and which will tend to show the defendant is not guilty or has no criminal intent. 

 

excusable neglect 
n. a legitimate excuse for the failure of a party or his/her lawyer to take required action (like filing an answer to a complaint) on time. This is usually claimed to set aside a default judgment for failure to answer (or otherwise respond) in the period set by law. However, if the defendant loses the complaint or fails to call his/her attorney the courts will be less lenient. In any event, the defendant must also show he/she had some worthwhile defense.

 

execute 
v. 1) to finish, complete or perform as required, as in fulfilling one's obligations under a contract or a court order. 2) to sign and otherwise complete a document, such as acknowledging the signature if required to make the document valid. 3) to seize property under court order. 4) to put to death pursuant to a sentence rendered by a court.

 

executed 
1) adj. to have been completed. (Example: "it is an executed contract") 2) v. to have completed or fully performed. (Example: "he executed all the promises made in the contract") 3) v. completed and formally signed a document, such as a deed, contract or lease. 4) v. to have been put to death for a crime pursuant to a death sentence.

 

execution 
n. 1) the act of getting an officer of the court to take possession of the property of a losing party in a lawsuit (judgment debtor) on behalf of the winner (judgment creditor), sell it and use the proceeds to pay the judgment. The procedure is to take the judgment to the clerk of the court and have a writ of execution issued which is taken to the constable or other authorized official with instructions on what property to execute upon. In the case of real property the official must first levy (place a lien on the title), and then execute upon it (seize it). However, the judgment debtor (loser in the lawsuit) may pay the judgment and costs before sale to redeem real estate. 2) carrying out a death sentence.

 

executive clemency 
n. the power of a President in criminal cases to pardon a person convicted of a crime, commute the sentence (shorten it, often to time already served) or reduce it from death to another lesser sentence. There are many reasons for exercising this power, including real doubts about the guilt of the party, apparent excessive sentence, humanitarian reasons such as illness of an aged inmate, to clear the record of someone who has demonstrated rehabilitation or public service.

 

executive order 
n. a President's or Governor's declaration which has the force of law, usually based on existing statutory powers, and requiring no action by the state legislature.

 

executive privilege 
n. a claim by the President or another high official of the executive branch that he/she need not answer a request (including a subpena issued by a court) for confidential government or personal communications, on the ground that such revelations would hamper effective governmental operations and decision-making. The rationale is that such a demand would violate the principle of separation of powers among the executive, legislative and judicial branches.

 

executor 
n. the person appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor. The executor must insure that the person's desires expressed in the will are carried out. Practical responsibilities include gathering up and protecting the assets of the estate, obtaining information in regard to all beneficiaries named in the will and any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor's claims, making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate (which the executor can select).

 

executory 
adj. something not yet performed or done. Examples: an executory contract is one in which all or part of the required performance has not been done; an executory bequest is a gift under a will which has not been distributed to the beneficiary. 

 

executory interest 
n. an interest in property (particularly real estate) which will only pass to another in the future, or never, if certain events occur.

 

executrix 
(pl. executrices) n. Latin for female executor. However, the term executor is now unisex.

 

exemplary damages 
n. often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. Examples of acts warranting exemplary damages: publishing that someone had committed murders when the publisher knew it was not true but hated the person; an ex-husband trashes his former wife's property; a stockbroker buys and sells a widow's stocks to generate commissions resulting in her losing all her capital (money). These damages are awarded both as a punishment and to set a public example. They reward the plaintiff for the horrible nature of what she/he went through or suffered. Although often requested, exemplary damages are seldom awarded. There have been major awards in egregious (remarkable or outstanding) cases, such as fraud schemes, sexual harassment or other intentional and vicious actions even when the provable actual damages were not extensive

 

exemption 
n. 1) in income taxation, a credit given for each dependent, blindness or other disability, and senior citizens, which result in a downward calculation in tax levels. These are not to be confused with deductions, which reduce gross income upon which taxes are paid. 2) a right to be excluded from, such as not being subject to attachment of one's wages if one is in a low-income bracket.

 

exhibit 
n. 1) a document or object (including a photograph) introduced as evidence during a trial. These are subject to objections by opposing attorneys just like any evidence. 2) a copy of a paper attached to a pleading (any legal paper filed in a lawsuit), declaration, affidavit or other document, which is referred to and incorporated into the main document.

 

expectancy 
n. a possibility of future enjoyment of something one counts on receiving, usually referring to real property or the estate of a deceased person, such as a remainder, reversion, or distribution after the death of someone who has use for life.

 

expense 
n. in business accounting and business taxation, any current cost of operation, such as rent, utilities and payroll, as distinguished from capital expenditure for long-term property and equipment.

 

expert testimony 
n. opinions stated during trial or deposition (testimony under oath before trial) by a specialist qualified as an expert on a subject relevant to a lawsuit or a criminal case 

 

expert witness 
n. a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects. Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.

 

express 
adj. direct, unambiguous, distinct language, particularly in a contract, which does not require thought, guessing, inference or implication to determine the meaning.

 

express contract 
n. a contract in which all elements are specifically stated (offer, acceptance, consideration), and the terms are stated, as compared to an "implied" contract in which the existence of the contract is assumed by the circumstances.

 

expropriation 
n. a taking of property or rights by governmental authority such as eminent domain, possibly including an emergency situation, such as taking a person's truck or bulldozer to build a levee during a flood. In such a case just compensation eventually must be paid to the owner, who can make a claim against the taker.

 

extension 
n. granting of a specific amount of extra time to make a payment, file a legal document after the date due or continue a lease after the original expiration of the term

 

extenuating circumstances 
n. surrounding factors (sometimes called mitigation) which make a crime appear less serious, less aggravated or without criminal intent, and thus warranting a more lenient punishment or lesser charge (manslaughter rather than murder, for example).

 

extinguishment 
n. the cancellation or destruction of a right, quite often because the time for enforcement has passed.

 

extortion 
n. obtaining money or property by threat to a victim's property or loved ones, intimidation, or false claim of a right.

 

extradition 
n. the surrender by one country of a person charged with a crime in another country. International extradition is more difficult and is governed in many cases by treaty. While most countries will extradite persons charged with serious crimes, some will not, others refuse to extradite for certain crimes, set up legal roadblocks.

 

extrajudicial 
adj. referring to actions outside the judicial (court) system, such as an extralegal confession, which, if brought in as evidence, may be recognized by the judge during a trial.

 

extraordinary fees 
n. attorneys' fees claimed, usually in the administration of a dead person's estate, for work beyond the normal, including filing collection suits, preparing tax returns or requiring unusual effort beneficial to the estate. This claim is in addition to the usual statutory or court-approved legal fees. The attorney must submit proof of time, effort and benefit to justify the claim, and the final determination is at the judge's discretion.

 

extreme cruelty 
n. an archaic requirement to show infliction of physical or mental harm by one of the parties to his/her spouse to support a judgment of divorce or an unequal division of the couple's property. 

 

extrinsic fraud 
n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from "intrinsic fraud," which is the fraud that is the subject of a lawsuit.

 

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

 

F

face amount 
n. the original amount due on a promissory note or insurance policy as stated therein, without calculating interest.

 

face value 
n. in shares of stock, the original cost of the stock shown on the certificate, or "par value."

 

fact 
n. an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury).

 

fact finder (finder of fact) 
n. in a trial of a lawsuit or criminal prosecution, the jury or judge (if there is no jury) who decides if facts have been proven. Occasionally a judge may appoint a "special master" to investigate and report on the existence of certain facts.

 

factor 
n. 1) a salesman who sells in his/her own name on behalf of others, taking a commission for services. 2) something that contributes to the result.

 

failure of consideration 
n. not delivering goods or services when promised in a contract. When goods a party had bargained for have become damaged or worthless, failure of consideration (to deliver promised goods) makes the expectant recipient justified to withhold payment, demand performance or take legal action.

 

failure of issue 
n. when someone dies leaving no children or other direct descendants. 

 

fair comment 
n. a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment. 

 

fair market value 
n. the amount for which property would sell on the open market if put up for sale. This is distinguished from "replacement value," which is the cost of duplicating the property. Real estate appraisers will use "comparable" sales of similar property in the area to determine market value, adding or deducting amounts based on differences in quality and size of the property.

 

fair use 
n. the non-competitive right to use of copyrighted material without giving the author the right to compensation or to sue for infringement of copyright. With the growing use of copy machines, teachers and businesses copy articles, pages of texts, charts and excerpts for classroom use, advice to employees or to assist in research without violating the copyright.

 

false arrest 
n. physically detaining someone without the legal right to do so. Quite often this involves private security people or other owners or employees of retail establishments who hold someone without having seen a crime committed in their presence or pretend that they are police officers. While they may be entitled to make a "citizen's arrest" they had better be sure that they have a person who has committed a crime, and they must call law enforcement officers to take over at the first opportunity. Other common false arrest situations include an arrest by a police officer of the wrong person or without probable cause to believe a crime has been committed and/or without a warrant. Only when the arresting party knowingly holds someone who has not committed a crime, is the false arrest itself a crime. However, probable false arrest can be the basis of a lawsuit for damages, including mental distress and embarrassment.

 

false imprisonment 
n. depriving someone of freedom of movement by holding a person in a confined space or by physical restraint including being locked in a car, driven about without opportunity to get out, being tied to a chair or locked in a closet. It may be the follow-up to a false arrest (holding someone in the office of a department store, for example), but more often it resembles a kidnapping with no belief or claim of a legal right to hold the person. Therefore, false imprisonment is often a crime and if proved is almost always the basis of a lawsuit for damages.

 

false pretenses 
n. the crime of knowingly making untrue statements for the purpose of obtaining money or property fraudulently. This can range from claiming zircons are diamonds and turning back the odometer on a car, to falsely stating that a mine has been producing gold when it has not. It is one form of theft.

 

family 
n. 1) husband, wife and children. 2) all blood relations. 3) all who live in the same household including servants and relatives, with some person or persons directing this economic and social unit.

 

family purpose doctrine 
n. a rule of law that the registered owner of an automobile is responsible for damages to anyone injured when the auto is driven by a member of the family with or without the owner's permission. The theory of this liability is that the vehicle is owned for family purposes. 

 

fee 
n. 1) absolute title in land, from old French, fief, for "payment," since lands were originally given by lords to those who served them. The word "fee" can be modified to show that the title was "conditional" on some occurrence or could be terminated ("determinable") upon a future event. 2) a charge for services

 

fee simple 
n. absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of "fee," but is used to show the fee (absolute title) is not a "conditional fee," or "determinable fee," or "fee tail".

 

fee tail 
n. an old feudal expression for a title to real property which can only be passed to one's heirs "of his body" or certain heirs who are blood relatives. If the blood line ran out (no children) then the title would revert to the descendants of the lord who originally gave the land to the title-holding family. Thus, it could not be transferred to anyone outside the family. The intention was to keep lands within a family line and not subdivided. In 16th century England, trusts were established to get around this "restraint on alienation" so the land could be held in trust for another person to use. Fee tail is of historic and academic interest only.

 

felon 
n. a person who has been convicted of a felony, which is a crime punishable by death or a term in prison.

 

felonious 
adj. referring to an act done with criminal intent. The term is used to distinguish between a wrong which was not malicious, and an intentional crime, as in "felonious assault," which is an attack meant to do real harm.

 

felony 
n. 1) a crime sufficiently serious to be punishable by death or a term in prison, as distinguished from a misdemeanor which is only punishable by confinement to local jail and/or a fine.

 

felony murder doctrine 
n. a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the holdup men or women is killed, his/her fellow robbers can be charged with murder.

 

fictitious defendants 
n. when a party suing (plaintiff) is not sure if he/she knows if there are unknown persons involved in the incident or the business being sued, there are named fictitious persons, usually designated Doe I, Doe II, and so forth, or "Green and Red Company," with an allegation in the complaint that if and when the true names are discovered they will be inserted in the complaint by amendment. Naming fictitious defendants stops the statute of limitations (the time in which a party has to file a lawsuit) from running out even though the true name is not yet known. Sometimes during the investigation or discovery (taking depositions or asking written questions under oath) new information about a potential defendant is found and the real name substituted. Then that person is served with a summons and complaint. If no substitution of a real name for a Doe has been made by the time of trial, usually the fictitious defendants are then dismissed from the case since they never existed in the first place, and the case continues against the named defendants.

 

fiduciary 
1) n. from the Latin fiducia, meaning "trust," a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stockbrokers, title companies or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid "self-dealing" or "conflicts of interests" in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another.

 

fiduciary relationship 
n. where one person places complete confidence in another in regard to a particular transaction or one's general affairs or business. The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.

 

fighting words 
n. words intentionally directed toward another person which are so nasty and full of malice as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically (hit, stab, shoot, etc.). While such words are not an excuse or defense for a retaliatory assault and battery, if they are threatening they can form the basis for a lawsuit for assault.

 

file 
1) v. to deposit with the clerk of the court a written complaint or petition which is the opening step in a lawsuit and subsequent documents, including an answer, demurrer, motions, petitions and orders. All of these are placed in a case file which has a specific number assigned to it which must be stated on every document. The term is used: "When are you going to file the complaint," or "The answer will be filed tomorrow." 2) n. the master folder of a lawsuit kept by the clerk of the court, including all legal pleadings (documents) filed by both sides. Each document in the file must have a stamp showing the date it was received and the name of the clerk who received it. Any document which is filed must be served on the opposing attorney, usually by mail, except that the first paper filed (summons complaint, petition, motion) must be served on all defendants personally (hand delivered by a process server). 3) n. the record an attorney keeps on a case, containing all papers deposited with the clerk, as well as all correspondence and notes on the case.

 

final decree 
n. another name for a final judgment. 

 

final judgment 
n. the written determination of a lawsuit by the judge who presided at trial (or heard a successful motion to dismiss or a stipulation for judgment), which renders (makes) rulings on all issues and completes the case unless it is appealed to a higher court. It is also called a final decree or final decision

 

final settlement 
n. an agreement reached by the parties to a lawsuit, usually in writing and/or read into the record in court, settling all issues. Usually there are elements of compromise, waiver of any right to reopen or appeal the matter even if there is information found later which would change matters (such as recurrence of a problem with an injury), mutual release of any further claim by each party, a statement that neither side is admitting fault, and some action or payment by one or both sides. In short, the case is over, provided the parties do what they are supposed to do according to the final settlement's terms. With the glut of cases crowding court calendars and overwhelming the system and delays in getting to trial (due to three factors: increased criminal case load, increased litigious nature of society and an insufficient number of judges), judges encourage attempts to settle, including mandatory settlement conferences with judges or experienced settlement attorneys present.

 

finding 
n. the determination of a factual question vital (contributing) to a decision in a case by the trier of fact (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact. A finding of fact is distinguished from a conclusion of law which is determined by the judge as the sole legal expert. Findings of fact and conclusions of law, need not be made if waived or not requested by the trial attorneys, leaving just the bare judgment in the case.

 

findings of fact 
n. See also: finding 

 

firm offer 
n. in contract law, an offer (usually in writing) which states it may not be withdrawn, revoked or amended for a specific period of time. If the offer is accepted without a change during that period, there is a firm, enforceable contract.

 

first degree murder 
n. it is generally a killing which is deliberate and premeditated (planned, after lying in wait, by poison or as part of a scheme), in conjunction with felonies such as rape, burglary, or involving multiple deaths, the killing of certain types of people (such as a child, a police officer, a prison guard, a fellow prisoner), or certain weapons, particularly a gun. It is distinguished from second degree murder in which premeditation is usually absent, and from manslaughter, which lacks premeditation and suggests that at most there was intent to harm rather than to kill.

 

first impression 
adj. referring to a legal issue which has never been decided by an appeals court and, therefore, there is no precedent for the court to follow. To reach a decision the court must use its own logic, analogies from prior rulings by appeals courts and refer to commentaries and articles by legal scholars. In such cases the trial judge usually asks for legal briefs by attorneys for both sides to assist him/her.

 

fixture 
n. a piece of equipment which has been attached to real estate in such a way as to be part of the premises and its removal would do harm to the building or land. Thus, a fixture is transformed from a movable asset to an integral part of the real property. Essentially a question of fact, it often arises when a tenant has installed a lighting fixture, a heater, window box or other item which is bolted, nailed, screwed or wired into the wall, ceiling or floor. Trade fixtures are those which a merchant would normally use to operate the business and display goods and may be removed at the merchant's expense for any necessary repair.

 

flight 
n. running away or hiding by a person officially accused of a crime with the apparent intent of avoiding arrest or prosecution. 

 

floating easement 
n. an easement (a right to use another's property for a particular purpose) which allows access and/or egress but does not spell out the exact dimensions and location of the easement. 

 

fob 
1) adj. short for free on board, meaning shipped to a specific place without cost.

 

for value received 
prep. a phrase used in a promissory note, a bill of exchange or a deed to show that some consideration (value) has been given without stating what that payment was.

 

forbearance 
n. an intentional delay in collecting a debt or demanding performance on a contract, usually for a specific period of time. Forbearance is often consideration for a promise by the debtor to pay an added amount.

 

forced sale 
n. a sale of goods seized by the police to satisfy (pay) a judgment. 

 

forcible entry 
n. the crime of taking possession of a house or other structure or land by the use of physical force or serious threats against the occupants. This can include breaking windows or doors or using terror to gain entry, as well as forcing the occupants out by threat or violence after having come in peacefully.

 

foreclosure 
n. the system by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), requires sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, when the debtor fails to make payment. After the payments on the promissory note (which is evidence of the loan) have become delinquent for several months, the lender can have a notice of default served on the debtor (borrower) stating the amount due and the amount necessary to "cure" the default. If the delinquency and costs of foreclosure are not paid within a specified period, then the lender (or the trustee using deeds of trust) will set a foreclosure date, after which the property may be sold at public sale. Up to the time of foreclosure the defaulting borrower can pay all delinquencies and costs (which are then greater due to foreclosure costs) and "redeem" the property. Upon sale of the property the amount due is paid to the creditor (lender or owner of the judgment) and the remainder of the money received from the sale, if any, is paid to the lender. There is also judicial foreclosure in which the lender can bring suit for foreclosure against the defaulting borrower for the delinquency and force a sale.

 

foreclosure sale 
n. the actual forced sale of real property at a public auction after foreclosure on that property as security under a mortgage or deed of trust for a loan that is substantially delinquent. The lender who has not been paid may bid for the property, using his/her/its own unpaid note toward payment, which can result in a bargain purchase.

 

forensic 
1) adj. from Latin forensis for "belonging to the forum," ancient Rome's site for public debate and currently meaning pertaining to the courts. Thus, forensic testimony or forensic medicine are used to assist the court or the attorneys in legal matters, including trials.

 

forensic medicine 
n. research, reports and testimony in court by experts in medical science to assist in determining a legal question. Cause of death is a common issue determined by pathologists who may be coroners or medical examiners.

 

forensic testimony 
n. any testimony of expert scientific, engineering, economic or other specialized nature used to assist the court and the lawyers in a lawsuit or prosecution.

 

forensics 
n. public speaking or argumentation. 

 

foreseeability 
n. reasonable anticipation of the possible results of an action, such as what may happen if one is negligent or consequential damages resulting from breach of a contract.

 

foreseeable risk 
n. a danger which a reasonable person should anticipate as the result from his/her actions. Foreseeable risk is a common affirmative defense put up as a response by defendants in lawsuits for negligence. A mother is severely injured while accompanying her child on a roller coaster when the car jumps the track and comes loose. While there is potential risk, she had the right to anticipate that the roller coaster was properly maintained and did not assume the risk that it would come apart. Signs that warn "use at your own risk" do not bar lawsuits for risks that are not foreseeable.

 

forfeit 
v. to lose property or rights involuntarily as a penalty for violation of law. Example: the government can take automobiles or houses which are used for illegal drug trafficking or manufacture. A drug pusher may forfeit his/her car (property) if caught carrying drugs in it and found guilty. 

 

forfeiture 
n. loss of property due to a violation of law. 

 

forger 
n. a person who commits the crime of forgery, by making false documents or signatures.

 

forgery 
n. 1) the crime of creating a false document, altering a document, or writing a false signature for the illegal benefit of the person making the forgery. This includes improperly filling in a blank document, like an automobile purchase contract, over a buyer's signature, with the terms different from those agreed. It does not include such innocent representation as a staff member autographing photos of politicians or movie stars. While similar to forgery, counterfeiting refers to the creation of phoney money, stock certificates or bonds which are negotiable for cash. 2) a document or signature falsely created or altered.

 

fornication 
n. sexual intercourse between a man and woman who are not married to each other. This usage comes from Latin fornicari, meaning vaulted, which became the nickname for brothel, because prostitutes operated in a vaulted underground cavern in Rome. Fornication is still a misdemeanor, as is adultery (sexual intercourse by a married person with someone not his/her spouse), but is virtually never prosecuted.

 

forthwith 
adv. a term found in contracts, court orders and statutes, meaning as soon as it can be reasonably done. It implies immediacy, with no excuses for delay.

 

forum 
n. a court which has jurisdiction to hold a trial of a particular lawsuit or petition. 

 

forum non conveniens 
(for-uhm nahn cahn-vee-nee-ehns) n. Latin for a forum which is not convenient. This doctrine is employed when the court chosen by the plaintiff (the party suing) is inconvenient for witnesses or poses an undue hardship on the defendants, who must petition the court for an order transferring the case to a more convenient court.

 

foster child 
n. a child without parental support and protection, placed with a person or family to be cared for, usually by local welfare services or by court order. The foster parent(s) do not have custody, nor is there an adoption, but they are expected to treat the foster child as they would their own in regard to food, housing, clothing and education. Most foster parents are paid by the local government or a state agency.

 

four corners of an instrument 
n. the term for studying an entire document to understand its meaning, without reference to anything outside of the document ("extrinsic evidence"), such as the circumstances surrounding its writing or the history of the party signing it. If possible a document should be construed based on what lies within its four corners, unless such examination cannot solve an ambiguity in its language.

 

franchise 
1) n. a right granted by the government to a person or corporation, such as a taxi permit, bus route, an airline's use of a public airport, business license or corporate existence. 2) n. the right to vote in a public election. 3) v. to grant (for a periodic fee or share of profits) the right to operate a business or sell goods or services under a brand or chain name. Well-known franchise operations include McDonald's, Holiday Inns, and Amway Distributors. 4) n. the right one has to operate a store or sell goods or services under a franchise agreement.

 

franchise tax 
n. a state tax on corporations or businesses. 

 

fraud 
n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud. Quite often there are several persons involved in a scheme to commit fraud and each and all may be liable for the total damages. Inherent in fraud is an unjust advantage over another which injures that person or entity. It includes failing to point out a known mistake in a contract or other writing (such as a deed), or not revealing a fact which he/she has a duty to communicate, such as a survey which shows there are only 10 acres of land being purchased and not 20 as originally understood. Constructive fraud can be proved by a showing of breach of legal duty (like using the trust funds held for another in an investment in one's own business) without direct proof of fraud or fraudulent intent. Extrinsic fraud occurs when deceit is employed to keep someone from exercising a right, such as a fair trial, by hiding evidence or misleading the opposing party in a lawsuit. Since fraud is intended to employ dishonesty to deprive another of money, property or a right, it can also be a crime for which the fraudulent person(s) can be charged, tried and convicted.

 

fraud in the inducement 
n. the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act. Example: "there will be tax advantages to you if you let me take title to your property".

 

fraudulent conveyance 
n. the transfer (conveyance) of title to real property for the express purpose of putting it beyond the reach of a known creditor. In such a case the creditor may bring a lawsuit to void the transfer. However, if the transfer was made without knowledge of the claim (or before a debt has matured), for other legitimate reasons, and/or in the normal course of business, then the creditor's attempt to obtain a judgment setting aside the conveyance will probably fail.

 

free and clear 
adj. referring to the ownership of real property upon which there is no lien, encumbrance, recorded judgment or the right of anyone to make a claim against the property. The term is used in contracts for sale of real property and deeds, to state that the title has no claim against it.

 

free on board (fob) 
adj. referring to purchased goods shipped without transportation charge to a specific place. 

 

freehold 
n. any interest in real property which is a life estate or of uncertain or undetermined duration (having no stated end), as distinguished from a leasehold which may have declining value toward the end of a long-term lease (such as the 99-year variety).

 

fresh pursuit 
n. immediate chase of a suspected criminal by a law enforcement officer, in which situation the officer may arrest the suspect without a warrant.

 

friendly suit 
n. a lawsuit filed in order to obtain a court order when the parties to the suit agree on the expected outcome. Such a legal action will be dismissed if it is an attempt to get an advisory opinion, is collusive (deceitfully planned) to get a judgment to set a legal precedent or where there is no real controversy. However, such suits are allowed in situations in which the statutes require a court ruling to achieve a "reasonable result," such as reforming (correcting) a trust or agreement in which there was an error.

 

frisk 
v. quickly patting down the clothes of a possible criminal suspect to determine if there is a concealed weapon. This police action is generally considered legal (constitutional) without a search warrant. Generally it is preferred that women officers frisk women and men officers frisk men. 

 

frivolous 
adj. referring to a legal move in a lawsuit clearly intended merely to harass, delay or embarrass the opposition. Frivolous acts can include filing the lawsuit itself, a baseless motion for a legal ruling, an answer of a defendant to a complaint which does not deny, contest, prove or controvert anything, or an appeal which contains not a single arguable basis (by any stretch of the imagination) for the appeal. A frivolous lawsuit, motion or appeal can result in a successful claim by the other party for payment by the frivolous suer of their attorneys' fees for defending the case. Judges are reluctant to find an action frivolous, based on the desire not to discourage people from using the courts to resolve disputes.

 

fruit of the poisonous tree 
n. in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it.

 

frustration of purpose 
n. sometimes called commercial frustration, when unexpected events arise which make a contract impossible to be performed, entitling the frustrated party to rescind the contract without paying damages.

 

fugitive from justice 
n. a person convicted or accused of a crime who hides from law enforcement. 

 

full disclosure 
n. the need in business transactions to tell the "whole truth" about any matter which the other party should know in deciding to buy or contract. In real estate salesthere is a full disclosure form which must be filled out and signed under penalty of perjury for knowingly falsifying or concealing any significant fact.

 

fungible things 
n. sometimes merely called "fungibles," goods which are interchangeable, often sold or delivered in bulk, since any one of them is as good as another. Grain or gravel are fungibles, as are securities which are identical.

 

future interest 
n. a right to receive either real property or personal property some time in the future, either upon a particular date or upon the occurrence of an event. Typical examples are getting title upon the death of the person having present use, outliving another beneficiary, reaching maturity (age 18) or upon marriage.