n. a judge's order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. The supposed intent is to prevent prejudice due to pre-trial publicity which would influence potential jurors. A gag order has the secondary purpose of preventing the lawyers from trying the case in the press and on television, and thus creating a public mood (which could get ugly) in favor of one party or the other. Based on the "freedom of the press" provision. the court cannot constitutionally restrict the media from printing or broadcasting information about the case, so the only way is to put a gag on the participants under the court's control.
v. to obtain a court order directing a party holding funds (such as a bank) or about to pay wages (such as an employer) to an alleged debtor to set that money aside until the court determines (decides) how much the debtor owes to the creditor. Garnishing funds is also a warning to the party holding the funds (garnishee) not to pay them, and to inform the court as to how much money is being held. If the garnishee (such as a bank or employer) should mistakenly give the money to the account owner or employee, the garnishee will be liable to pay the creditor what he/she/it has coming.
n. a person or entity, quite often a bank or employer, which receives a court order not to release funds held for or owed to a customer or employee, pending further order of the court.
n. the entire process of petitioning for and getting a court order directing a person or entity (garnishee) to hold funds they owe to someone who allegedly is in debt to another person, often after a judgment has been rendered. Usually the actual amounts owed have not been figured out or are to be paid by installments directly or through the law enforcement officer.
n. unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and expectations due to attitudes based on the sex of an employee or group of employees. Gender bias can be a legitimate basis for a lawsuit under anti-discrimination statutes.
n. an attorney's representation of a client in court for all purposes connected with a pending lawsuit or prosecution. After "appearing" in court, the attorney is then responsible for all future appearances in court unless officially relieved by court order or substitution of another attorney. A lawyer may be leery of making a general appearance unless all details of representation (such as the amount and payment of his/her fees) have been worked out with the client. This is distinguished from a special appearance, which is only for a particular purpose or court session and does not make the attorney responsible for future conduct of the case.
n. the chief attorney for a corporation, who is paid usually full time for legal services. Attorneys who work only for one business are "house counsel."
n. monetary recovery (money won) in a lawsuit for injuries suffered (such as pain, suffering, inability to perform certain functions) or breach of contract for which there is no exact money value which can be calculated. They are distinguished from special damages, which are for specific costs, and from punitive (exemplary) damages for punishment and to set an example when malice, intent or gross negligence was a factor.
n. a statement in an answer to a lawsuit or claim by a defendant in a lawsuit, in which the defendant denies everything alleged in the complaint without specifically denying any allegation. It reads: "Defendant denies each and every allegation contained in the complaint on file herein," or similar inclusive language.
n. usually one of the owners and operators of a partnership, which is a joint business entered into for profit, in which responsibility for management, profits and, most importantly, the liability for debts is shared by the general partners. Anyone entering into a general partnership (the most common business organization involving more than one owner) must remember that each general partner is liable for all the debts of the partnership. Furthermore, any partner alone can bind the partnership on contracts.
n. a plan of a city, county or area which establishes zones for different types of development, uses, traffic patterns and future development.
adj., adv. referring to gifts made through trusts by a grandparent to a grandchild, skipping one's child (the grandchild's parent).
n. the voluntary transfer of property (including money) to another person completely free of payment or strings while both the giver and the recipient are still alive. Large gifts are subject to the gift tax.
gift in contemplation of death
n. (called a gift causa mortis by lawyers), a gift of personal property (not real estate) by a person expecting to die soon due to ill health or age. Treating the gift as made in contemplation of death has the benefit of including the gift in the value of the estate, rather than making the gift subject to a separate gift tax charged the giver. If the giver gets over an apparently mortal illness, the gift is treated like any other gift for tax purposes.
n. a tax on large gifts.
v. slang for putting up the bail money to get an accused defendant out of jail after an arrest or pending trial or appeal.
n. a legally sufficient reason for a ruling or other action by a judge. The language is commonly: "There being good cause shown, the court orders…."
n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.
good samaritan rule
n. from a Biblical story, if a volunteer comes to the aid of an injured or ill person who is a stranger, the person giving the aid owes the stranger a duty of being reasonably careful. In some circumstances negligence could result in a claim of negligent care if the injuries or illness were made worse by the volunteer's negligence.
n. ownership of real property which is totally free of claims against it and therefore can be sold, transferred or put up as security (placing a mortgage or deed of trust on the property).
n. items held for sale in the regular course of business, as in a retail store.
n. the benefit of a business having a good reputation under its name and regular patronage. Goodwill is not tangible like equipment, right to lease the premises or inventory of goods. It becomes important when a business is sold, since there can be an allocation in the sales price for the value of the goodwill, which is always a subjective estimate. Included in goodwill upon sale may be the right to do business without competition by the seller in the area and/or for a specified period of time. Sellers like the allocation to goodwill to be high since it is not subject to capital gains tax, while buyers prefer it to be low, because it cannot be depreciated for tax purposes like tangible assets. Goodwill also may be overestimated by a proud seller and believed by an unknowing buyer.
n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.
n. a time stated in a contract in which a late payment or performance may be made without penalty. Often after the grace period ends without payment or performance by the person who is supposed to pay, the contract is suspended. Example: if a person does not pay his/her insurance payment (premium) by the stated deadline, he/she usually has a few days extra to pay before the absolute deadline. If the person does not pay by then, the insurance company cancels the contract, i.e. your insurance
n. a jury in each county who serves for a term of a year and is usually selected from a list of nominees offered by the judges in the county.
n. the crime of theft of another's property (including money) over a certain value, as distinguished from petty (or petit) larceny in which the value is below the grand larceny limit.
n. See also: grand larceny
v. to transfer real property from a title holder (grantor) or holders to another (grantee) with or without payment. However, there is an important difference between the types of deeds used. A grant deed warrants (guarantees) that the grantor (seller) has full right and title to the property, while a quitclaim deed only grants whatever the grantor owns (which may be nothing) and guarantees nothing.
n. the document which transfers title to real property or a real property interest from one party (grantor) to another (grantee). It must describe the property by legal description of boundaries and/or parcel numbers, be signed by all people transferring the property, and be acknowledged before a notary public. Importantly, a grant deed warrants that the grantor actually owned the title to transfer, which a quitclaim deed would not, since it only transfers what the grantor owned, if anything.
n. the party who receives title to real property (buyer, recipient, donee) from the seller (grantor) by a document called a grant deed or quitclaim deed.
n. the party who transfers title in real property (seller, giver) to another (buyer, recipient, donee) by grant deed or quitclaim deed.
n. a set of books and/or computerized lists found in the office of every Recorder of Deeds which lists all recorded transfers of title by deed (as well as liens, mortgages, deeds of trust and other documents affecting title). Each yearly index is usually alphabetized by the last names of grantors (the party transferring title) and grantee (the recipients of title). The listing includes the date of transfer, and cross-references to the book and page or document number where a copy of the document was recorded and can be examined. This is a key instrument in tracking a chain of title.
adj. or adv. voluntary or free.
n. Latin for "to weigh down," the basic gist of every claim (cause of action) or charge in a complaint filed to begin a lawsuit. Example: in an accident case, the gravamen may be the negligence of the defendant, and in a contract case, it may be the breach of the defendant.
n. in calculating income tax, the income of an individual or business from all sources before deducting allowable expenses, which will result in net income.
n. carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil. If one has borrowed or contracted to take care of another's property, then gross negligence is the failure to actively take the care as one would of his/her own property. If gross negligence is found by the trier of fact (judge or jury), it can result in the award of punitive damages on top of general and special damages.
1) v. to pledge or agree to be responsible for another's debt or contractual performance if that other person does not pay or perform. Usually, the party receiving the guarantee will first try to collect or obtain performance from the debtor before trying to collect from the one making the guarantee (guarantor). 2) the promise to pay another's debt or fulfill contract obligations if that party fails to pay or perform. 3) n. occasionally, the person to whom the guarantee is made. 4) a promise to make a product good if it has some defect.
n. a person or entity that agrees to be responsible for another's debt or performance under a contract if the other fails to pay or perform.
v. and n. an older spelling of guarantee, which the renowned Oxford etymologist Dr. Walter Skeat called a "better spelling" (1882).
n. a person who has been appointed by a judge to take care of a minor child or incompetent adult (both called "ward") personally and/or manage that person's affairs. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian. In the case of a minor, the guardianship remains under court supervision until the child reaches majority at 18. Naming someone in a will as guardian of one's child in case of the death of the parent is merely a nomination. The judge does not have to honor that request, although he/she usually does. Sadly, often a parent must petition to become the guardian of his/her child's "estate" if the child inherits or receives a gift of substantial assets, including the situation in which a parent gives his/her own child an interest in real property or stocks. Therefore, that type of gift should be avoided and a trust created instead. While the term "guardian" may refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs, this is more often called a "conservator" under a conservatorship.
guardian ad litem
n. a person appointed by the court only to take legal action on behalf of a minor or an adult not able to handle his/her own affairs. Duties may include filing a lawsuit for an injured child, defending a lawsuit or filing a claim against an estate. Usually a parent will file a petition to be appointed the guardian ad litem of a child hurt in an accident at the same time the lawsuit is filed.
n. 1) in general, a person paying to stay in a hotel for a short time. 2) a person staying at another's residence without charge, called a "social guest." An important distinction is that a non-paying guest is not owed the duty of being provided a safe boarding space, as is a paying customer. Thus if a social guest trips on a slippery rug, he/she has no right to sue for negligence, but a paying guest might.
adj. having been convicted of a crime or having admitted the commission of a crime by pleading "guilty" (saying you did it). A defendant may also be found guilty by a judge after a plea of "no contest," or in Latin nolo contendere. The term "guilty" is also sometimes applied to persons against whom a judgment has been found in a lawsuit for a civil wrong, such as negligence or some intentional act like assault or fraud, but that is a confusing misuse of the word since it should only apply to a criminal charge.
(hay-bee-us core-puss) n. Latin for "you have the body," it is a writ (court order) which directs the law enforcement officials (prison administrators, police) who have custody of a prisoner to appear in court with the prisoner to help the judge determine whether the prisoner is lawfully in prison or jail. The writ is obtained by petition to a judge in the district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been summarily terminated without cause. Historically called "the great writ," the renowned scholar of the Common Law, William Blackstone, called it the "most celebrated writ in English law." It may also be used as a means to contest child custody and deportation proceedings in court.
adj. referring to a residence that is safe and can be occupied in reasonable comfort. Although standards vary by region, the premises should be closed in against the weather, provide running water, access to decent toilets and bathing facilities, heating, and electricity. Particularly in multi-dwelling buildings freedom from noxious smells, noise and garbage are included in the standard. This can become important in landlord-tenant disputes or government actions to force a landlord to make the premises livable (abatement of deficiencies). Example: if the roof begins to leak, the water goes off, the electricity shorts out or the toilet breaks, the landlord has a duty to make repairs when requested or the tenant may order the repairs and deduct the cost from the rent.
n. under the statutes, a person who has been convicted of either two or three felonies (or of numerous misdemeanors), a fact which may increase punishment for any further criminal convictions.
1) adj. sharing one parent only. 2) n. a half brother or half sister. "Half blood" should not be confused with "half breed," which was a pejorative expression for a person born of parents of two races.
(either harris or huh-rass) v. systematic and/or continual unwanted and annoying pestering, which often includes threats and demands. This can include lewd or offensive remarks, sexual advances, threatening telephone calls from collection agencies, hassling by police officers or bringing criminal charges without cause.
(either harris-meant or huh-rass-meant) n. the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. The purposes may vary, including racial prejudice, personal malice, an attempt to force someone to quit a job or grant sexual favors, apply illegal pressure to collect a bill or merely gain sadistic pleasure from making someone anxious or fearful. Such activities may be the basis for a lawsuit if due to discrimination based on race or sex, a violation on the statutory limitations on collection agencies, involve revenge by an ex-spouse, or be shown to be a form of blackmail. The victim may file a petition for a "stay away" (restraining) order, intended to prevent contact by the offensive party. A systematic pattern of harassment by an employee against another worker may subject the employer to a lawsuit for failure to protect the worker.
n. an error by a judge in the conduct of a trial which an appellate court finds is not sufficient for it to reverse or modify the lower court's judgment at trial. Harmless error would include: a technical error which has no bearing on the outcome of the trial, an error that was corrected (such as allowing testimony and then ordering it stricken and admonishing the jury to ignore it), the issue affected by the error was found in the appellant's favor (such as hearsay evidence on premeditation, but the jury found no premeditation), and the appeals court's view that even though there were errors the appealing party could not have won in trial in any event. This last gives the appeals court broad latitude to rule that errors were not significant. It is frustrating to appealing parties and their attorneys for the appeals court to rule that there were indeed several errors, and then say: "However, they appear to be harmless."
head of household
n. 1) in income tax law, the person filing a tax return who manages the household which has dependents such as children and/or other dependent relatives living in the home, but does not file on a joint return with a spouse. The calculation of taxes is somewhat more favorable to a head of household than to a person filing singly. 2) anyone who manages the affairs of the family living in a household, who need not be the husband/father or wife/mother, but could be a grandparent, uncle, aunt, son or daughter. 3) "head of family."
n. the summary of the key legal points determined by an appeals court, which appears just above each decision in published reports of cases. Headnotes are useful for a quick scan of the judgment, but they are the editor's remarks and not the court's.
n. any proceeding before a judge or other magistrate (such as a hearing officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact or both issues of fact and law. While technically a trial with a judge sitting without a jury fits the definition, a hearing usually refers to brief sessions involving a specific question at some time prior to the trial itself, or such specialized proceedings as administrative hearings. In criminal law, a "preliminary hearing" is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.
n. 1) second-hand evidence in which the witness is not telling what he/she knows personally, but what others have said to him/her. 2) a common objection made by the opposing lawyer to testimony when it appears the witness has violated the hearsay rule. 3) scuttlebutt or gossip.
n. the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine (ask questions on) him or her. However, as significant as the hearsay rule itself are the exceptions to the rule which allow hearsay testimony such as: a) a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court (called an "admission against interest"); b) business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept; c) official government records which can be shown to be properly kept; d) a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness's memory about the event; e) a "learned treatise" which means historical works, scientific books, published art works, maps and charts; f) judgments in other cases; g) a spontaneous excited or startled utterance ("oh, God, the bus hit the little girl"); h) contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous; i) a statement which explains a person's state of mind at the time of an event; j) a statement which explains a person's future intentions ("I plan to….") if that person's state of mind is in question; k) prior testimony, such as in deposition (taken under oath outside of court), or at a hearing, if the witness is not available (including being dead); l) a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial (this differs from an admission against interest, which is admissible in trial if it differs from testimony at trial); m) a dying declaration by a person believing he/she is dying; n) a statement made about one's mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead ("my back hurts horribly," and then dies); o) a statement about one's own will when the person is not available; p) other exceptions based on a judge's discretion that the hearsay testimony in the circumstances must be reliable.
heat of passion
n. in a criminal case, when the accused was in an uncontrollable rage at the time of commission of the alleged crime. If so, it may reduce the charge, indictment or judgment down from murder to manslaughter, since the passion precluded the defendant having premeditation or being fully mentally capable of knowing what he/she was doing.
n. one who acquires property upon the death of another, based on the rules of descent and distribution, namely, being the child, descendant or other closest relative of the dear departed. It also has come to mean anyone who "takes" (receives something) by the terms of the will. An heir cannot be determined until the moment of death of the person leaving the property, since a supposed beneficiary (heir apparent) might die first. A presumptive heir is someone who would receive benefits unless a child was later born to the current owner of the property the presumptive heir hopes to get someday. A legally adopted child gains the chance to be an heir upon adoption as if he/she were the natural child of the adoptive parent or parents and is called an adoptive heir. A collateral heir is a relative who is not a direct descendant, but a brother, sister, uncle, aunt, cousin, nephew, niece or a parent. It is noteworthy that a spouse is not an heir unless specifically mentioned in the will. He/She may, however, receive an inheritance through marital property or community property laws. A child not mentioned in a will can claim to be a pretermitted heir, i.e. inadvertently or accidentally omitted from the will, and can claim he/she would (should) have received as an heir.
n. the person who is expected to receive a share of the estate of a family member if he/she lives longer, or is not specifically disinherited by will.
n. feminine heir, often used to denote a woman who has received a large amount upon the death of a rich relative, as in the "department store heiress."
heirs of the body
n. descendants of one's bloodline, such as children or grandchildren until such time as there are no direct descendants. If the bloodline runs out, the property will "revert" to the nearest relative traced back to the original owner.
v. decided or ruled, as "the court held that the contract was valid."
n. any kind of property which can be inherited. This is old-fashioned language still found in some wills and deeds.
n. an item of value which does not show on the books of a business, often excluded for some improper purpose such as escaping taxation or hiding it from a bankruptcy trustee. However, there may be a legitimate business reason for not including all assets on a profit and loss statement.
n. any public street, road, turnpike or canal which any member of the public has the right to use, provided he/she/it follows the laws governing its use, such as having a driver's license if operating a vehicle. Thus, the use is really a privilege and not an absolute right.
hit and run
n. the crime of a driver of a vehicle who is involved in a collision with another vehicle, property or human being, who knowingly fails to stop to give his/her name, license number and other information as required by statute to the injured party, a witness or law enforcement officers. If there is only property damage and no other person is present, leaving the information attached to the damaged property may be sufficient, provided the person causing the accident makes a report to the police. It is not a violation of the constitutional protection against self-incrimination to be required to stop and give this information since it is a report and not an admission of guilt. Some hit and run cases are difficult to determine, such as the driver leaves the accident scene to go a block to his/her house or the neighborhood repair garage, and then walks back to the scene.
n. in income tax, a loss from a business activity engaged in more for enjoyment than for profit, which can be deducted against annual income only.
n. a promise to pay any costs or claims which may result from an agreement. Quite often this is part of a settlement agreement, in which one party is concerned that there might be unknown lawsuits or claims stemming from the situation, so the other party agrees to cover them.
n. a general term for anyone in possession of property, but usually referring to anyone holding a promissory note, check, bond or other paper, either handed to the holder (delivery) or signed over by endorsement, for which he/she/it is entitled to receive payment as stated in the document.
holder in due course
n. one holding a check or promissory note, received for value (he/she paid for it) in good faith and with no suspicion that it might be no good, claimed by another, overdue or previously dishonored (a bank had refused to pay since the account was overdrawn). Such a holder is entitled to payment by the maker of the check or note.
1) n. any ruling or decision of a court. 2) n. any real property to which one has title. 3) n. investment in a business. 4) v. keeping in one's possession.
n. a company, usually a corporation, which is created to own the stock of other corporations, thereby often controlling the management and policies of all of them.
n. the situation when a tenant of real estate continues to occupy the premises without the owner's agreement after the original lease or rental agreement between the owner (landlord) and the tenant has expired. The tenant is responsible for payment of the monthly rental at the existing rate and terms, which the landlord may accept without admitting the legality of the occupancy. A holdover tenant is subject to a notice to quit (get out) and, if he/she does not leave, to a lawsuit for unlawful detainer.
1) n. the house and lot of a homeowner which the head of the household (usually either spouse) can declare in writing to be the principal dwelling of the family, record that declaration of homestead with the Recorder of Deeds and thereby exempt part of its value from judgment creditors. A similar exemption is available in bankruptcy without filing a declaration of homestead. 2) v. jargon for filing a declaration of homestead, as in "he homesteaded the property."
adv. legalese for a lawyer or client suffering discrimination by a local judge who seems to favor local parties and/or attorneys over those from out of town.
n. the killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter, but not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting accident or automobile wreck without a violation of law like reckless driving, or legal (government) execution. Suicide is a homicide, but in most cases there is no one to prosecute if the suicide is successful. Assisting or attempting suicide can be a crime.
n. lawyer lingo for a fundamental and well-accepted legal principle that does not require any further explanation, since a hornbook is a primer of basics.
n. occupancy of a piece of real property coupled with a claim of ownership (which may be implied by actions, such as putting in a fence) over anyone, including the holder of recorded title. It may be an element of gaining title through long-term adverse possession or claiming real estate which has no known owner.
n. technically an "adverse witness" in a trial who is found by the judge to be hostile (adverse) to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his/her client. When the attorney calling the witness finds that the answers are contrary to the legal position of his/her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be "hostile" or "adverse." If the judge declares the witness to be hostile (i.e. adverse), the attorney may ask "leading" questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition.
n. when a law enforcement officer is so close behind the alleged criminal that he/she may continue the chase into another jurisdiction without stopping or seeking a warrant for an arrest in the other county or state. It is equivalent to fresh pursuit.
n. the putting together, blending or mixing of various properties in order to achieve equal division among beneficiaries or heirs. There may be cash, securities, personal belongings, and even real estate which are part of the residue of an estate to be given to "my children, share and share alike." To make such distribution possible, all of the items are put in the hotchpot and then divided.
n. any attorney who works only for a particular business.
n. a family living together, all of whom need not be related.
n. slang for a hopelessly deadlocked jury in a criminal case, in which neither side is able to prevail. Usually it means there is no unanimous verdict. If the jury is hung the trial judge will declare a mistrial. A new trial from scratch, with a new jury panel, is required. The prosecutor can decide not to re-try the case, particularly if a majority of the jury favored acquittal.
v. from Greek for "pledge," a generic term for using property to secure payment of a loan, which includes mortgages, pledges and putting up collateral, while the borrower retains possession.
prep. abbreviation for id est, which is Latin for "that is" or "that is to say." It is used to expand or explain a general term as in "his children (i.e. Matthew, Mark, Luke and Joan)." It should not be confused with "e.g.," which means "for example."
1) adj. in violation of statute, regulation or ordinance, which may be criminal or merely not in conformity. Thus, an armed robbery is illegal, and so is an access road which is narrower than the county allows, but the violation is not criminal. 2) status of a person residing in a country of which he/she is not a citizen and who has no official permission to be there.
n. a non-citizen who has entered the country without government permission or stayed beyond the termination date of a visa.
n. an agreement to do something that is so indefinite one cannot tell what is to be done or the performance is optional (usually because it is just a gesture and not a true agreement). Therefore, the other party need not perform or pay since he/she got nothing in what he/she may have thought was a contract.
adj. a commonly heard objection to introducing evidence in a trial on the ground that it had nothing substantial to do with the case or any issue in the case. It can also apply to any matter (such as an argument or complaint) in a lawsuit which has no bearing on the issues to be decided in a trial. The public is often surprised at what is immaterial, such as references to a person's character or bad deeds in other situations.
adv. 1) at once. 2) in orders of the court or in contracts it means "as soon as can be done" without excuse.
n. exemption from penalties, payments or legal requirements, granted by authorities or statutes. Generally there are three types of immunity at law: a) a promise not to prosecute for a crime in exchange for information or testimony in a criminal matter, granted by the prosecutors, a judge, a grand jury or an investigating legislative committee; b) public officials' protection from liability for their decisions (like a city manager or member of a public hospital board); c) governmental (or sovereign) immunity, which protects government agencies from lawsuits unless the government agreed to be sued; d) diplomatic immunity which excuses foreign ambassadors from most criminal laws.
v. to select and install a jury.
n. the act of selecting a jury from the list of potential jurors, called the "panel" or "venire." The steps are 1) drawing names at random from a large number of jurors called; 2) seating 12 tentative jurors (or fewer where agreed to); 3) hearing individual juror requests for being excused, to be determined by the judge; 4) questions from judge and lawyers for both sides, called "voir dire"; 5) challenges of tentative jurors either for cause (decided by the judge) or peremptory (no reason given) by the lawyers; 6) swearing in the jurors who survive this process.
v. 1) to discredit the testimony of a witness by proving that he/she has not told the truth or has been inconsistent, by introducing contrary evidence, including statements made outside of the courtroom in depositions or in statements of the witness heard by another. 2) to charge a public official with a public crime for which the punishment is removal from office.
n. 1) discrediting a witness by showing that he/she is not telling the truth or does not have the knowledge to testify as he/she did. 2) the trying of a public official for charges of illegal acts committed in the performance of public duty. It is not the conviction for the alleged crime nor the removal from office. It is only the trial itself.
n. a procedural device before trial in which a party brings a third party into the lawsuit because that third party is the one who owes money to an original defendant, which money will be available to pay the original plaintiff. The theory is that two cases may be decided together and justice may be done more efficiently than having two suits in a series.
adj., adv. referring to circumstances, conduct or statements of one or both parties which substitute for explicit language to prove authority to act, warranty, promise, trust, agreement, consent or easement, among other things. Thus circumstances "imply" something rather than spell it out.
n. consent when surrounding circumstances exist which would lead a reasonable person to believe that this consent had been given, although no direct, express or explicit words of agreement had been uttered. Examples: a) a "contract" based on the fact that one person has been doing a particular thing and the other person expects him/her to continue; b) the defense in a "date rape" case in which there is a claim of assumed consent due to absence of protest or a belief that "no" really meant "yes," "maybe" or "later."
n. an agreement which is found to exist based on the circumstances when to deny a contract would be unfair and/or result in unjust enrichment to one of the parties. An implied contract is distinguished from an "express contract."
implied covenant of good faith and fair dealing
n. a general assumption of the law of contracts, that people will act in good faith and deal fairly without breaking their word, using shifty means to avoid obligations or denying what the other party obviously understood. A lawsuit (or one of the causes of action in a lawsuit) based on the breach of this covenant is often brought when the other party has been claiming technical excuses for breaching the contract or using the specific words of the contract to refuse to perform when the surrounding circumstances or apparent understanding of the parties were to the contrary. Example: an employer fires a long-time employee without cause and says it can fire at whim because the employment contract states the employment is "at will." However, the employee was encouraged to join the company on the basis of retirement plans and other conduct which led him/her to believe the job was permanent barring misconduct or financial downturn. Thus, there could be a breach of the implied covenant, since the surrounding circumstances implied that there would be career-long employment.
n. an assumption at law that products are "merchantable," meaning they work and are useable as normally expected by consumers, unless there is a warning that they are sold "as is" or second-hand without any warranty. A grant deed of real property carries the implied warranty of good title, meaning the grantor (seller) had a title (ownership) to transfer.
n. when an act cannot be performed due to nature, physical impediments or unforeseen events. It can be a legitimate basis to rescind (mutually cancel) a contract.
n. the male's inability to copulate. Impotence can be grounds for annulment of a marriage if the condition existed at the time of the marriage and grounds for divorce. It should not be confused with sterility, which means inability to produce children.
v. 1) to collect funds, in addition to installment payments, from a person who owes a debt secured by property, and place them in a special account to pay property taxes and insurance when due. This protects the lender or seller from the borrower's possible failure to keep up the insurance or a mounting tax bill which is a lien on the property. 2) to take away records, money or property, such as an automobile or building, by government action pending the outcome of a criminal prosecution. The records may be essential evidence, or the money or property may be forfeit to the state as in illegal drug cases.
n. any permanent structure on real property, or any work on the property (such as planting trees) which increases its value.
v.(1) to attach to a person responsibility (and therefore financial liability) for acts or injuries to another, because of a particular relationship, such as mother to child, guardian to ward, employer to employee or business associates. Example: a 16-year-old boy drives his father's car without a license and runs someone down. The child's negligence may be imputed to the parent 2) to attribute knowledge and/or notice to a person only because of his/her relationship to the one actually possessing the information. Example: if a partner in a business is informed of something, that knowledge is imputed to his/her partner, and the partner is expected to have the information also
(in ab-sensh-ee-ah) adj. or adv. phrase. Latin for "in absence," or more fully, in one's absence. Occasionally a criminal trial is conducted without the defendant being present when he/she walks out or escapes after the trial has begun, since the accused has thus waived the constitutional right to face one's accusers.
adj. or adv. phrase. Latin for "in chambers." This refers to a hearing or discussions with the judge in the privacy of his chambers (office rooms) or when spectators and jurors have been excluded from the courtroom.
adj. referring to discussions or hearings held in the judge's office, called his chambers. It is also called "in camera."
(in ex-tree-miss) adj. from Latin, facing imminent death.
in fee simple
adj. referring to holding clear title to real property.
in forma pauperis
(in form-ah paw-purr-iss) adj. or adv. Latin for "in the form of a pauper," referring to a party to a lawsuit who gets filing fees waived by filing a declaration of lack of funds (has no money to pay). These declarations are most often found in divorces by young marrieds or poor defendants who have been sued.
in haec verba
(in hike verb-ah)prep. Latin for "in these words," which refers to stating the exact language of an agreement in a complaint or other pleading rather than attaching a copy of the agreement as an exhibit incorporated into the pleading.
adj. referring to payment, distribution or substitution of things in lieu of money, a combination of goods and money, or money instead of an article. It is an expression often found in wills and trusts, which empowers the executor or trustee to make distribution to beneficiaries "in kind" according to his/her discretion as long as the value is equivalent to the value intended to be given to each beneficiary. This is important since it allows distribution of furniture, heirlooms, stocks and bonds, automobiles or even real property (as well as money) among the beneficiaries without selling assets to get cash.
prep. instead. "In lieu taxes" are use taxes paid instead of sales tax. A "deed in lieu of foreclosure" occurs when a debtor just deeds the property securing the loan to the lender rather than go through the foreclosure process.
(in lim-in-ay) from Latin for "at the threshold," referring to a motion before a trial begins. A motion to suppress illegally obtained evidence is such a motion.
in loco parentis
prep. (in loh-coh pah-rent-iss) Latin for "instead of a parent" or "in place of a parent," this phrase identifies a foster parent, a county custodial agency or a boarding school which is taking care of a minor, including protecting his/her rights.
in pari delicto
adv. (in pah-ree dee-lick-toe) Latin for "in equal fault," which means that two (or more) people are all at fault or are all guilty of a crime. In contract law, if the fault is more or less equal then neither party can claim breach of the contract by the other; in an accident, neither can collect damages, unless the fault is more on one than the other under the rule of "comparative negligence"; in defense of a criminal charge, one defendant will have a difficult time blaming the other for inducing him or her into the criminal acts if the proof is that both were involved.
adj. forever, as in one's right to keep the profits from the land in perpetuity.
adj. (in purr-soh-nam) from Latin for "directed toward a particular person." In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an "in personam judgment." In personam is distinguished from in rem, which applies to property or "all the world" instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.
in pro per
adj. short for in propria persona
in propria persona
adj. from Latin "for one's self," acting on one's own behalf, generally used to identify a person who is acting as his/her own attorney in a lawsuit. The popular abbreviation is "in pro per." In the filed legal documents (pleadings), the party's name, address and telephone number are written where the name, address and telephone number of the attorney would normally be stated. The words "in propria persona" or "in pro per" are typed where normally it would say "attorney for plaintiff".
prep. short for "in regard to" or concerning. Often "in re" is found near the top of lawyers' letters to identify the subject matter, as "In re Estate of Rohit Bajaj". It is also used in naming legal actions in which there is only one party, the petitioning party.
adj. from Latin "against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. Thus, if title to property is the issue, the action is "in rem." The term is important since the location of the property determines which court has jurisdiction and enforcement of a judgment must be upon the property and does not follow a person. "In rem" is different from "in personam," which is directed toward a particular person.
in terrorem clause
(in tehr-roar-em)n. from Latin for "in fear," a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off, instead of getting the full gift provided in the will. The clause is intended to discourage beneficiaries from causing a legal ruckus after the will writer is gone. However, if the will is challenged and found to be invalid (due to lack of mental capacity, undue influence or failure to have it properly executed), then such a clause also fails. So a prospective challenger takes his/her chances. The courts have ruled that merely putting in a claim for moneys due from the estate is not a legal challenge to the will itself and is permissible without losing the gift.
(in toe-toe)adj. Latin for "completely" or "in total," referring to the entire thing, as in "the goods were destroyed in toto," or "the case was dismissed in toto."
adj. 1) not being able to perform any gainful employment due to congenital disability, illness (including mental), physical injury, advanced age or intellectual deficiency. This is significant in claims for worker's compensation, or in disability insurance. 2) lacking the ability to understand one's actions in making a will, executing some other document or entering into an agreement. A challenge to the validity of a will often turns on a claim that the person (now dead and unable to testify) lacked the capacity to understand what he/she owned, who were the "natural objects of his/her bounty" (close relatives primarily), that no one was able to dominate the testator's (will writer's) judgment so as to exert "undue influence." Mental weakness may show lack of capacity to make a will, as can fear, intimidation or persistent drunkenness. Example: an old lady is kept well supplied with whiskey for several months by her greedy sisters, who finally convince her to change the will from benefitting her children to benefitting them when she is drunk and fearful they will cut off her supply. A court would probably find she had lacked capacity to decide to make the latest version of the will.
n. sexual intercourse between close blood relatives, including brothers and sisters, parents and children, grandparents and grandchildren, or aunts or uncles with nephews or nieces. However, it is often co-existent with sexual abuse since usually the younger person is a victim of the predatory sexual activities of an older relative.
adj. or adv. referring to something which has begun but has not been completed, either an activity or some object which is incomplete. It may define a potential crime like a conspiracy which has been started but not perfected or finished (buying the explosives, but not yet blowing up the bank safe), a right contingent on an event (receiving property if one outlives the grantor of the property) or a decision or idea which has been only partially considered, such as a contract which has not been formalized.
n. someone who obtains a benefit as the result of the main purpose of the trust. Example: the co-owner of property with a named beneficiary may benefit from moneys provided to improve the building they jointly own, or a grandchild might benefit from his/her parent receiving a gift which could be used by the entire family, or which he/she may inherit from the parent.
n. money, goods or other economic benefit received. Under income tax laws, income can be "active" through one's efforts or work (including management) or "passive" from rentals, stock dividends, investments and interest on deposits in which there is neither physical effort nor management. For tax purposes, income does not include gifts and inheritances received. Taxes are collected based on income by the government.
n. a tax on an individual's net income, after deductions for various expenses and payments such as charitable gifts, calculated on a formula which takes into consideration whether it is paid jointly by a married couple, the number of dependents of the taxpayers, special breaks for disabilities and other factors.
n. the state of a marriage in which the spouses no longer have the mutual desire to live together and/or stay married, and is thus a ground for divorce (dissolution) even though one spouse may disagree.
adj. 1) inconsistent. 2) unmatching. 3) unable to live together as husband and wife due to irreconcilable differences. In no-fault divorce states, if one of the spouses desires to end the marriage, that fact proves incompatibility, and a divorce (dissolution) will be granted even though the other spouse does not want a divorce. The term also has the general meaning that two people do not get along with each other.
n. the condition of lacking the ability to handle one's affairs due to mental or physical incapacity. Before a condition of incompetency is officially declared by a court, a hearing must be held with the person who is involved interviewed by a court investigator; the person must be present and/or represented by an attorney.
adj. 1) referring to a person who is not able to manage his/her affairs due to mental deficiency (low I.Q., deterioration, illness or psychosis) or sometimes physical disability. Being incompetent can be the basis for appointment of a guardian or conservator (after a hearing in which the party who may be found to be incompetent has been interviewed by a court investigator and is present and/or represented by an attorney) to handle his/her person and/or affairs (often called "estate"). 2) in criminal law, the inability to understand the nature of a trial. In these cases the defendant is usually institutionalized until such time as he/she regains sanity and can be tried. 3) a generalized reference to evidence which cannot be introduced because it violates various rules against being allowed, particularly because it has no bearing on the case. It may be irrelevant (not sufficiently significant) or immaterial (does not matter to the issues).
n. testimony, documents or things which one side attempts to present as evidence during trial, which the court finds (usually after objection by the opposition) are not admissible because they are irrelevant or immaterial to the issues in the lawsuit. Thus, trial lawyers often object with: "incompetent, irrelevant and immaterial," figuring that covers the waterfront of most objections.
n. evidence introduced to prove a fact in a trial which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint which shows someone had been present in a room, or a blood test which scientifically proves that a person is not the parent of a child.
v. 1) to obtain an official charter or articles of incorporation from the state for an organization, which may be a profit-making business, a professional business such as a law office or medical office or a non-profit entity which operates for charitable, social, religious, civic or other public service purposes. The process includes having one or more incorporators, choose a name not currently used by (nor confusingly similar to) any corporation, prepare articles, determine who will be responsible for accepting service of process, decide on the stock structure, adopt a set of bylaws, file the articles of incorporation, and hold a first meeting of incorporators to launch the enterprise. Other steps follow such as electing a board of directors, selecting officers, issuing stock according to law and, if there is going to be a stock offering to the public, following the regulations of the SEBI. 2) to include into a unit.
incorporate by reference
v. to include language from another document or elsewhere in a document by reference rather than repeat it. Typical language: "Plaintiff incorporates by reference all of the allegations contained in the First and Second Causes of Action hereinabove stated."
n. the act of incorporating an organization.
adj. referring to a thing which is not physical, such as a right. This is distinguished from tangible.
v. to make a statement in which one admits that he/she has committed a crime or gives information that another named person has committed a crime.
n. See also: encumbrance
n. the crime of displaying one's genitalia to one or more other people in a public place, usually with the apparent intent to shock the unsuspecting viewer and give the exposer a sexual charge.
adj. cannot be altered or voided, usually in reference to an interest in real property.
v. to guarantee against any loss which another might suffer. Example: two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless.
n. the act of making someone "whole" (give equal to what they have lost) or protected from (insured against) any losses which have occurred or will occur.
n. a type of real property deed in which two parties agree to continuing mutual obligations. One party may agree to maintain the property, while the other agrees to make periodic payments. 2) a contract binding one person to work for another. 3) v. to bind a person to work for another.
n. a person or business which performs services for another person or entity under a contract between them, with the terms spelled out such as duties, pay, the amount and type of work and other matters. An independent contractor is distinguished from an employee, who works regularly for an employer. The exact nature of the independent contractor's relationship with the party hiring him/her/it has become vital since an independent contractor pays his/her/its own income taxes without payroll deduction, has no retirement or health plan rights, and often is not entitled to worker's compensation coverage. An independent contractor must be able to determine when and where work is performed, be able to work for others, provide own equipment and other factors which are indicative of true independence.
n. the prison term imposed after conviction for a crime which does not state a specific period of time or release date, but just a range of time, such as "five-to-ten years." It is one side of a continuing debate as to whether it is better to make sentences absolute (subject to reduction for good behavior) without reference to potential rehabilitation, modification or review in the future.
n. (in-dish-yah) from Latin for "signs," circumstances which tend to show or indicate that something is probable. It is used in the form of "indicia of title," or "indicia of partnership," particularly when the "signs" are items like letters, certificates or other things that one would not have unless the facts were as the possessor claimed.
n. a crime (offense) for which a Grand Jury rules that there is enough evidence to charge a defendant with a felony. These crimes include murder, manslaughter, rape, kidnapping, grand theft, robbery, burglary, arson, conspiracy, fraud and other major crimes, as well as attempts to commit them.
n. a charge of a felony (serious crime) voted by a Grand Jury based upon a proposed charge, witnesses' testimony and other evidence presented by the public prosecutor.. To bring an indictment the Grand Jury will not find guilt, but only the probability that a crime was committed, that the accused person did it and that he/she should be tried. If the judge finds there is enough evidence, he/she will order the case sent to the appropriate court for trial.
1) n. a person so poor and needy that he/she cannot provide the necessities of life (food, clothing, decent shelter) for himself/herself. 2) n. one without sufficient income to afford a lawyer for defense in a criminal case. If the court finds a person is an indigent, the court must appoint a public defender or other attorney to represent him/her. 3) adj. referring to a person who is very poor and needy.
n. a person or entity which must be included in a lawsuit so that the court can make a final judgment or order that will conclude the controversy.
n. See also: endorsement
n. although the popular use of the word means the early years of age in law, it is under-age or minority. Historically this meant under 21 years, but statutes adopted end minority and infancy at 18. An "infant" cannot file a lawsuit without a "guardian ad litem" (one-purpose guardian) acting for him/her, cannot enter into a contract that is enforceable during his/her minority.
n. a rule of logic applied to evidence in a trial, in which a fact is "proved" by presenting other "facts" which lead to only one reasonable conclusion-that if A and B are true, then C is. The process is called "deduction" or "deductive reasoning" and is a persuasive form of circumstantial evidence.
n. an accusation or criminal charge brought by the public prosecutor without a Grand Jury indictment. This "information" must state the alleged crimes in writing and must be delivered to the defendant at the first court appearance (arraignment). If the accusation is for a felony, there must be a preliminary hearing within a short period in which the prosecution is required to present enough evidence to convince the judge holding the hearing that the crime or crimes charged were committed and the defendant is likely to have committed them. If the judge becomes convinced, the defendant must face trial, and if the judge does not, the case against the defendant is dismissed. Sometimes it is a mixed bag, in that some of the charges in the information are sufficient for trial and the case is sent (remanded) to the appropriate court, and some are dismissed.
information and belief
n. a phrase often used in legal pleadings (complaints and answers in a lawsuit), declarations under penalty of perjury, and affidavits under oath, in which the person making the statement or allegation qualifies it. In effect, he/she says: "I am only stating what I have been told, and I believe it." This makes clear about which statements he/she does not have sure-fire, personal knowledge (perhaps it is just hearsay or surmise) and protects the maker of the statement from claims of outright falsehood or perjury. The typical phraseology is: "Plaintiff is informed and believes, and upon such information and belief, alleges that defendant diverted the funds to his own use".
n. agreement to do something or to allow something to happen only after all the relevant facts are known. In contracts, an agreement may be reached only if there has been full disclosure by both parties of everything each party knows which is significant to the agreement. A patient's consent to a medical procedure must be based on his/her having been told all the possible consequences, except in emergency cases when such consent cannot be obtained. A physician or dentist who does not tell all the possible bad news as well as the good, operates at his/her peril of a lawsuit if anything goes wrong. In criminal law, a person accused or even suspected of a crime cannot give up his/her legal rights such as remaining silent or having an attorney, unless he/she has been fully informed of his/her rights.
prep. Latin for "below," this is legal shorthand to indicate that the details or citation of a case will come later on in the brief. Infra is distinguished from supra, which shows that a case has already been cited "above".
n. 1) a trespassing or illegal entering. 2) in the law of patents (protected inventions) and copyrights (protected writings or graphics), the improper use of a patent, writing, graphic or trademark without permission, without notice, and especially without contracting for payment of a royalty. Even though the infringement may be accidental (an inventor thinks he is the first to develop the widget although someone else has a patent), the party infringing is responsible to pay the original patent or copyright owner substantial damages, which can be the normal royalty or as much as the infringers' accumulated gross profits.
1) n. entrance. 2) n. the right to enter. 3) v. the act of entering. Often used in the combination "ingress and egress," which means entering and leaving, to describe one's rights to come and go under an easement over another's property.
v. to receive all or a portion of the estate of an ancestor upon his/her death, usually from a parent or other close relative pursuant to the laws of descent. Technically, one would "inherit" only if there is no will, but popularly it means any taking from the estate of a relative, including a wife or husband, by will or not.
n. whatever one receives upon the death of a relative due to the laws of descent and distribution, when there is no will. However, inheritance has come to mean anything received from the estate of a person who has died, whether by the laws of descent or as a beneficiary of a will or trust.
n. a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to a) petition for the injunction to protect his/her rights; to b) get an "order to show cause" from the judge telling the other party to show why the injunction should not be issued; c) serve (personally delivered) the order to show cause on the party whom he/she wishes to have ordered to act or be restrained ("enjoined"); partake in a hearing in which both sides attempt to convince the judge why the injunction should or should not be granted. If there is danger of immediate irreparable harm at the time the petition is filed, a judge may issue a temporary injunction which goes into effect upon it being served (deliver or have delivered) to the other party. This temporary injunction will stay in force until the hearing or sometimes until the outcome of a lawsuit is decided in which an injunction is one of the parts of the plaintiff's demands. A final and continuing injunction is called a permanent injunction. Examples of injunctions include prohibitions against cutting trees, creating nuisances, polluting a stream, or removing funds from a bank account pending determination of ownership. So-called "mandatory" injunctions which require acts to be performed, may include return of property, keeping a gate to a road unlocked, clearing off tree limbs from a right-of-way, turning on electricity or heat in an apartment building, or depositing disputed funds with the court.
n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Such an act is the use of judicial (court) authority to handle a problem and is not a judgment for money. Whether the relief will be granted is usually argued by both sides in a hearing rather than in a full-scale trial, although sometimes it is part of a lawsuit for damages and/or contract performance. Historically, the power to grant injunctive relief stems from English equity courts rather than damages from law courts.
n. any harm done to a person by the acts or omissions of another. Injury may include physical hurt as well as damage to reputation or dignity, loss of a legal right or breach of contract. If the party causing the injury was either willful (intentionally causing harm) or negligent then he/she is responsible (liable) for payment of damages for the harm caused. Theoretically, potential or continuing injury may be prevented by an order of the court upon a petition for an injunction.
adj. without guilt (not guilty). Usually the plea which an accused criminal defendant gives to the court at the time of his/her first appearance (or after a continued appearance). Such pleas often disturb the public in cases in which guilt seems obvious from the start. However, everyone is entitled to a fair trial, and the innocent plea gives defense lawyers an opportunity to investigate, find extenuating circumstances, develop reasons punishment should be lenient, and let the memories of witnesses fade.
n. from Latin innuere, "to nod toward." In law it means "an indirect hint." "Innuendo" is used in lawsuits for defamation (libel or slander), usually to show that the party suing was the person about whom the nasty statements were made or why the comments were defamatory.
n. an investigation and/or a hearing held by the coroner (a county official) when there is a violent death either by accident or homicide, the cause of death is not immediately clear, there are mysterious circumstances surrounding the death, or the deceased was a prisoner. Usually an autopsy by a qualified medical examiner from the coroner's office is a key part of the inquest. In rare cases a jury may be used to determine the cause of death.
n. mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject to uncontrollable impulsive behavior. Insanity is distinguished from low intelligence or mental deficiency due to age or injury. If a complaint is made to law enforcement, or to medical personnel that a person is evidencing psychotic behavior, he/she may be confined to a medical facility long enough to be examined by psychiatrists who submit written reports to the local court. A hearing is then held before a judge, with the person in question entitled to legal representation, to determine if she/he should be placed in an institution or special facility. The person ordered institutionalized at the hearing may request a trial to determine sanity. Particularly since the original hearings are often routine with the psychiatric findings accepted by the judge. In criminal cases, a plea of "not guilty by reason of insanity" will require a trial on the issue of the defendant's insanity (or sanity) at the time the crime was committed. In these cases the defendant usually claims "temporary insanity" (crazy then, but okay now). The traditional test of insanity in criminal cases is whether the accused knew "the difference between right and wrong," following the "M'Naughten rule" from 19th century England. A claim by a criminal defendant of his/her insanity at the time of trial requires a separate hearing to determine if a defendant is sufficiently sane to understand the nature of a trial and participate in his/her own defense. If found to be insane, the defendant will be ordered to a mental facility, and the trial will be held only if sanity returns.
n. the claim of a defendant in a criminal prosecution that he/she was insane when the crime was committed, usually only temporarily.
n. the addition of language at a place within an existing typed or written document, which is always suspect unless initialled by all parties.
n. someone who has a position in a business or stock brokerage, which allows him/her to be privy to confidential information (such as future changes in management, upcoming profit and loss reports, secret sales figures and merger negotiations) which will affect the value of stocks or bonds. While there is nothing wrong with being an insider, use of the confidential information unavailable to the investing public in order to profit through sale or purchase of stocks or bonds is unethical and a crime under the Securities and Exchange Act.
n. the use of confidential information about a business gained through employment in a company or a stock brokerage, to buy and/or sell stocks and bonds based on the private knowledge that the value will go up or down. The victims are the unsuspecting investing public.
n. 1) the condition of having more debts (liabilities) than total assets which might be available to pay them, even if the assets were mortgaged or sold. 2) a determination by a bankruptcy court that a person or business cannot raise the funds to pay all of his/her debts. The court will then "discharge" (forgive) some or all of the debts, leaving those creditors holding the bag and not getting what is owed them. The supposedly insolvent individual debtor, even though found to be bankrupt, is allowed certain exemptions, which permit him/her to retain a car, business equipment, personal property and often a home as long as he/she continues to make payments on a loan secured by the property.
inspection of documents
n. the right to examine and copy the opposing party's papers in a lawsuit which are relevant to the case. A demand (legal request) may be made, but the categories of documents must be stated so that the other party can know what he/she must produce. If the opposition either refuses to produce some documents or appears to hold back, the party wanting to see the documents can bring a "motion to produce" requesting a court order to produce and a penalty (sanctions) to be paid for failure to honor the demand. A party may also use a subpena duces tecum to obtain specific documents if they are known to exist. All of these procedures are part of the discovery process, intended to give both sides extensive pre-trial information. Such exchanges of documents can lead to settlement, minimize surprises at trial and keep one side from hiding material, thus preventing the other from being able to introduce relevant material at trial. However, it is well known that many law firms obfuscate, delay, pretend to misunderstand requests and fail to be forthcoming.
n. an agreement in which payments of money, delivery of goods or performance of services are to be made in a series of payments, deliveries or performances, usually on specific dates or upon certain happenings. One significance is that failure to pay an installment when due is a breach in which damages can be assessed based on the portion which has not been paid, and is an excuse for the other party not to perform further. In many installment contracts, failure to make a payment gives the seller of an article the right to repossess (take it back).
n. an explanation of the law governing a case which the judge gives orally to the jury after the attorneys have presented all the evidence and have made final arguments, but before the jury begins deliberations.
n. 1) a written legal document such as a contract, lease, deed, will or bond. 2) an object used to perform some task or action, ranging from a surgeon's scalpel to any hard thing used in an assault (a blunt instrument).
n. a finding (decision) by a trial judge or an appeals court that the prosecution in a criminal case or a plaintiff in a lawsuit has not proved the case because the attorney did not present enough convincing evidence. Insufficient evidence usually results in dismissal of the case after the prosecution or the plaintiff has completed his/her introduction of evidence or, if on appeal, reversal of the judgment by the trial court.
n. a contract (insurance policy) in which the insurer (insurance company) agrees for a fee (insurance premiums) to pay the insured party all or a portion of any loss suffered by accident or death. The losses covered by the policy may include property damage or loss from accident, fire, theft or intentional harm; medical costs and/or lost earnings due to physical injury; long-term or permanent loss of physical capacity; claims by others due to the insured's alleged negligence (e.g. public liability auto insurance); loss of a ship and/or cargo; finding a defect in title to real property; dishonest employees; or the loss of someone's life. Life insurance may be on the life of a spouse, a child, one of several business partners or an especially important manager ("key man" insurance), all of which is intended to provide for survivors or to ease the burden created by the loss of a financial contributor. So-called "mortgage" insurance is life insurance which will pay off the remaining amount due on a home loan on the death of the husband or wife.
n. 1) the person or entity who will be compensated for loss by an insurer under the terms of a contract called an insurance policy. 2) the person whose life is insured by life insurance, after whose death the benefits go to others.
n. an insurance company which agrees to pay someone who pays them for insurance for losses suffered pursuant to the terms of an insurance policy. For this benefit the customer pays the company a fee, called a premium.
n. items such as stock in a company which represent value but are not actual, tangible objects.
n. mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent". Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime.
(in-tur eh-lee-ah) prep. Latin for "among other things". This phrase is often found in legal pleadings and writings to specify one example out of many possibilities. Example: "The judge said, inter alia, that the time to file the action had passed".
(in-tur say)prep. Latin for "among themselves," meaning that, for instance, certain corporate rights are limited only to the shareholders or only to the trustees as a group.
(in-tur veye-vohs) adj. Latin for "among the living", usually referring to the transfer of property by agreement between living persons and not by a gift through a will. It can also refer to a trust (inter vivos trust) which commences during the lifetime of the person (trustor or settlor) creating the trust as distinguished from a trust created by a will (testamentary trust), which comes into existence upon the death of the writer of the will.
inter vivos trust
n. a trust created by a writing (declaration of trust) which commences at that time, while the creator (called a trustor or settlor) is alive, sometimes called a "living trust." The property is then placed in trust with a trustee (often the trustor during his/her lifetime) and distribution will take place according to the terms of the trust-possibly both during the trustor's lifetime and then upon the trustor's death. This is different from a testamentary trust, which is created by the terms of a will and places some assets from the dead person's estate in a trust to exist from the date of death and until fully distributed.
n. 1) any and all, partial or total right to property or for the use of property, including an easement to pass over a neighboring parcel of land, a possibility of acquiring title upon the happening of some event, or outright title. While most often referring to real property, one may have an interest in a business, a bank account or any article. 2) the financial amount (money) paid by someone else for the use of a person's money, as on a loan or debt, on a savings account in a bank, on a certificate of deposit, promissory note or the amount due on a judgment. Interest is usually stated in writing at the time the money is loaned. There are variable rates of interest, particularly on savings accounts which depend on funding from the Reserve or other banks and are controlled by the prevailing interest rates on those funds. Maximum interest rates on loans made by individuals are controlled by statute. To charge more than that rate is usury, the penalty for which may be the inability of a creditor to collect through the courts. The interest rates demanded by lending institutions are not so restricted. Simple interest is the annual rate charged for a loan, and compound interest includes interest upon interest during the year. 3) one's involvement in business, activities or with an individual which is sufficient to create doubt about a witness being objective-damaging his/her credibility. 4) one's involvement in business, activities or with an individual which is sufficient connection to give a person "standing" (the right based on interest in the outcome of the lawsuit or petition) to bring a lawsuit on a particular matter or act on behalf of other people.
n. a temporary order of the court pending a hearing, trial, a final order or while awaiting an act by one of the parties.
n. the act of writing between the lines of a document, usually to add something that was omitted or thought of later. The issue (debated question) is whether both parties to a document (a contract, for example) had agreed upon the addition or whether the new words were part of the document (like a will) when it was signed. Good practice is either to have all parties initial the change at the point of the writing or have the document re-typed and then signed.
adj. provisional and not intended to be final. This usually refers to court orders which are temporary.
n. a court judgment which is temporary and not intended to be final until either a) other matters come before the judge, or b) there is a specified passage of time to determine if the interlocutory decree (judgment) is "working" (becomes accepted by both parties) and should become final.
n. treaties between countries; multi-lateral agreements; some commissions covering particular subjects, such as whaling or copyrights; procedures and precedents of the International Court of Justice ("World Court") which only has jurisdiction when countries agree to appear; the United Nations Charter; and custom. However, there is no specific body of law which governs the interaction of all nations.
n. the procedure when two parties are involved in a lawsuit over the right to collect a debt from a third party, who admits the money is owed but does not know which person to pay. The debtor deposits the funds with the court ("interpleads"), asks the court to dismiss him/her/it from the lawsuit and lets the claimants fight over it in court.
n. questioning of a suspect or witness by law enforcement authorities. Once a person being questioned is arrested (is a "prime" suspect), he/she is entitled to be informed of his/her legal rights, and in no case may the interrogation violate rules of due process.
n. a set of written questions to a party to a lawsuit asked by the opposing party as part of the pre-trial discovery process. These questions must be answered in writing under oath or under penalty of perjury within a specified time. Normal practice is for the lawyers to prepare the questions and for the answering party to have help from his/her/its attorney in understanding the meaning (sometimes hidden) of the questions and to avoid wording in his/her answers which could be interpreted against the party answering. Objections as to relevancy or clarity may be raised either at the time the interrogatories are answered or when they are used in trial.
n. commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the government.
v. to obtain the court's permission to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit. Such intervention will be allowed only if the party wanting to enter into the case has some right or interest in the suit and will not unduly prejudice the ability of the original parties to the lawsuit to conduct their case.
n. an event which occurs between the original improper or dangerous action and the damage itself. Thus, the "causal connection" between the wrong and damages is broken by the intervening cause. This is a "but for" situation, in which the intervention becomes the real reason harm resulted. The result is that the person who started the chain of events is no longer responsible and will not be found liable for damages to the injured person.
n. the procedure under which a third party may join an on-going lawsuit, providing the facts and the law issues apply to the intervenor as much as to one of the existing contestants. The determination to allow intervention is made by a judge after a petition to intervene and a hearing on the issue. Intervention must take place fairly early in the lawsuit, shortly after a complaint and answer have been filed and not just before trial since that could prejudice one or both parties who have prepared for trial on the basis of the original litigants. Intervention is not to be confused with joinder, which involves requiring all parties who have similar claims to join in the same lawsuit to prevent needless repetitious trials based on the same facts and legal questions, called multiplicity of actions.
n. the condition of having died without a valid will. In such a case if the dead party has property it will be distributed according to statutes, primarily by the law of descent and distribution and others dealing with marital property and community property. In probate the administration of the estate of a person without a will is handled by an administrator (usually a close relative, the spouse, a close associate) or a public administrator if there is no one willing to act, since there is no executor named in a will.
adj. referring to a situation where a person dies without leaving a valid will. This usually is voiced as "he died intestate," "intestate estate," or "intestate succession".
n. the distribution when a person dies without leaving a valid will and the spouse and heirs will take (receive the possessions) by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse.
n. 1) the condition of being drunk as the result of drinking alcoholic beverages and/or use of narcotics. In the eyes of the law this definition may differ depending on the situation to which it is applied. 2) as it applies to drunk driving, the standard of intoxication between .08 and .10 alcohol in the bloodstream, or a combination of alcohol and narcotics which would produce the same effect even though the amount of alcohol is below the minimum. 3) as it applies to public drunkenness the standard is subjective, meaning the person must be unable to care for himself, be dangerous to himself or others, be causing a disturbance or refuse to leave or move along when requested. 4) a defense in a criminal case in which the claim is made by the defendant that he/she was too intoxicated to form an intent to commit the crime or to know what he/she was doing, where the amount of intoxication is subjective but higher than for drunk driving. There is also the question if the intoxication was an intentional aforethought to the crime ("I wanted to get drunk so I had the nerve to kill her"). Unintentional intoxication can show lack of capacity to form an intent and thus reduce the possible level of conviction and punishment, as from voluntary (intentional) manslaughter down to involuntary (unintentional but through a wrongful act) manslaughter. However, in vehicular manslaughter, the intoxication is an element in the crime, whether getting drunk was intentional or not, since criminal intent was not a factor.
n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. This is distinguished from extrinsic fraud (collateral fraud) which was a deceptive means to keeping one from enforcing his/her legal rights.
v. result in. Commonly used in legal terminology in the phrase: "to inure to the benefit of John".
invasion of privacy
n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. However, public personages are not protected in most situations, since they have placed themselves already within the public eye, and their activities (even personal and sometimes intimate) are considered newsworthy, i.e. of legitimate public interest. However, an otherwise non-public individual has a right to privacy from: a) intrusion on one's solitude or into one's private affairs; b) public disclosure of embarrassing private information; c) publicity which puts him/her in a false light to the public; d) appropriation of one's name or picture for personal or commercial advantage. Lawsuits have arisen from magazine articles on obscure geniuses, use of a wife's name on a hospital insurance form to obtain insurance payment for delivery of a mistress's baby, unauthorized use of a girl's photo to advertise a photographer, and "tabloid" journalism treatment of people as freaks.
n. the taking of property by a government agency which so greatly damages the use of a parcel of real property that it is the equivalent of condemnation of the entire property. Thus the owner claims he/she is entitled to payment for the loss of the property (in whole or in part) under the constitutional right to compensation for condemnation of property under the government's eminent domain right.
v. to put money into a business or buy property or securities for the purpose of eventually obtaining a profit. This is distinguished from a gift or a loan made merely to accommodate a friend or taking a complete gamble.
n. the money put into use for profit, or the property or business interest purchased for profit.
n. a person who comes onto another's property, premises or business establishment upon invitation. The invitation may be direct and express or "implied," as when a shop is open and the public is expected to enter to inspect, purchase or otherwise do business on the premises. It may be legally important, because an invitee is entitled to assume safe conditions on the property or premises, so the owner or proprietor might be liable for any injury suffered by the invitee while on the property due to an unsafe condition which is not obvious to the invitee (a latent defect) and not due to the invitee's own negligence. An invitee is distinguished from a trespasser who cuts across the owner's vacant lot, or a burglar who falls through a faulty skylight. Examples of failures unexpected by an invitee: a person falls through a covered-over well, faulty stairs, weak floors, slippery floors on rainy days, spills of jam which are not promptly cleaned up although known to the management, lack of adequate security guards to protect against muggers, and various careless acts of retail employees.
adj. or adv. without intent, will or choice. Participation in a crime is involuntary if forced by immediate threat to life or health of oneself or one's loved ones and will result in dismissal or acquittal.
(ip-sah dicks-it) v. Latin for "he himself said it," meaning the only proof we have of the fact is that this person said it.
(ip-soh fact-toe)prep. Latin for "by the fact itself". A simple example: "a blind person, ipso facto, is not entitled to a driver's license".
n. the usual basis for granting a divorce (dissolution). If one party says the marriage is irretrievable and refuses to reconcile then such differences are proved to exist.
adj. not important, pertinent, or germane to the matter at hand or to any issue before the court. This is the most common objection raised by attorneys to questions asked or to answers given during testimony in a trial. The objection is made as soon as an alert attorney believes the opposition is going into matters which are not concerned with the facts or outside the issues of the lawsuit. It is often stated in the trio: "Irrelevant, immaterial and incompetent" to cover the bases. The judge must then rule on the relevancy of the question. If the question has been answered before the lawyer could say "objection," the judge may order that answer stricken from the record. Blotting it from a jury's memory or conscience, though, is impossible.
irreparable damage or injury
n. the type of harm which no monetary compensation can cure or put conditions back the way they were, such as cutting down shade trees, polluting a stream, not giving a child needed medication, not supporting an excavation which may cause collapse of a building, tearing down a structure, or a host of other actions or omissions. The phrase must be used to claim that a judge should order an injunction, writ, temporary restraining order or other judicial assistance, generally known as equitable relief. Such relief is a court order of positive action, such as prohibiting pollution or requiring the shoring up of a defective wall.
1) n. a person's children or other lineal descendants such as grandchildren and great-grandchildren. It does not mean all heirs, but only the direct bloodline. Occasionally, there is a problem in determining whether a writer of a will or deed meant issue to include descendants beyond his or her immediate children. While a child or children are alive, issue refers only to them, but if they are deceased then it will apply to the next living generation unless there is language in the document which shows it specifically does not apply to them. 2) n. any matter of dispute in a legal controversy or lawsuit, very commonly used in such phrases as "the legal issues are," "the factual issues are," "this is an issue which the judge must decide," or "please, counsel, let us know what issues you have agreed upon." 3) v. to send out, promulgate, publish or make the original distribution, such as a corporation selling and distributing shares of stock to its initial investors. 4) n. the shares of stock or bonds of a corporation which have been sold and distributed.