LEGAL DICTIONARY

 

S

said 
adj. a reference back to a thing that was previously mentioned or identified, popular in legal documents, as "the said driver drove the automobile in a negligent manner."

 

sale 
n. transfer of something (and title to it) in return for money (or other thing of value) on terms agreed upon between buyer and seller. The price paid may be based on a posted cost, established by negotiation between seller and buyer, or by auction with potential buyers bidding until the highest bid is accepted by the seller or his agent (auctioneer).

 

salvage 
1) v. to save goods. 2) n. payment to a person or group which saves cargo from a shipwreck. 

 

sanction 
n. 1) a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court. If a fine, the sanction may be paid to the court or to the opposing party to compensate the other side for inconvenience or added legal work due to the rule violation.

 

satisfaction 
n. receiving payment or performance of what is due. 

 

satisfaction of judgment 
n. a document signed by a judgment creditor (the party owed the money for the judgment) stating that the full amount due on the judgment has been paid. The judgment creditor (the party who paid the judgment) is entitled to demand that the judgment creditor (the party to whom the money judgment is owed) sign the satisfaction of judgment, file it with the court clerk, acknowledge it before a notary public, and record the document with the Recorder of Deeds if there is an abstract of judgment (a document showing the amount of the judgment which is a lien on any real property belonging to the defendant) on record.

 

satisfaction of mortgage 
n. a document signed by a lender acknowledging that a mortgage has been fully paid. It must be recorded with the Recorder of Deeds to clear the title to the real property owned by the person who paid off the debt. 

 

save harmless 
v. 1) also called hold harmless, to indemnify (protect) another from harm or cost. 2) to agree to guarantee that any debt, lawsuit or claim which may arise as a result of a contract or contract performance will be paid or taken care of by the party making the guarantee. Example: the seller of a business agrees to "save harmless" the buyer from any unknown debts of the business.

 

savings and loan 
n. a banking and lending institution, chartered by the government. Savings and loans only make loans secured by real property from deposits, upon which they pay interest slightly higher than that paid by most banks.

 

scienter 
n. Latin for "having knowledge." In criminal law, it refers to knowledge by a defendant that his/her acts were illegal or his/her statements were lies and thus fraudulent.

 

scintilla 
n. Latin for "spark." Scintilla is commonly used in reference to evidence, in the context that there must be a "scintilla of evidence" (at least a faint spark) upon which to base a judgment.

 

scope of employment 
n. actions of an employee which further the business of the employer and are not personal business, which becomes the test as to whether an employer is liable for damages due to such actions under the doctrine of respondeat superior (make the master answer). Example: Mathew drives a truck delivering groceries for Super Market. If Mathew negligently runs the truck into James while making deliveries or on the way back from a delivery, then Super Market is liable since the accident was in the scope of employment. If Mathew goes outside the delivery route to have lunch with his girlfriend and on the way hits James then there is a strong inference he was outside the scope of employment.

 

scrivener 
n. a person who writes a document for another, usually for a fee. If a lawyer merely writes out the terms of a lease or contract exactly as requested by the client, without giving legal advice, then the lawyer is just a scrivener and is probably not responsible for legal errors (unless they were so obvious as to warrant comment). A non-lawyer may act as a scrivener without getting in trouble for practicing law without a license.

 

seal 
n. a device which creates an impression upon paper or melted wax, used by government agencies, corporations and notaries public to show that the document is validly executed, acknowledged or witnessed, since the seal is unique to the sealer. Corporate seals state the name, date and Place of incorporation. Notaries increasingly use a rubber stamp instead of a seal since their print is easier to microfilm for official recording than is a faint embossed impression. Contracts used to be "sealed," but that is rare today.

 

sealed verdict 
n. the decision of a jury when there is a delay in announcing the result, such as waiting for the judge, the parties and the attorneys to come back to court. The verdict is kept in a sealed envelope until handed to the judge when court reconvenes.

 

sealing of records 
n. trial records and decisions which a judge orders kept secret. Usually these are the criminal records of under-age offenders which cannot be examined without a special court order or only by those connected with law enforcement. On occasion records in civil trials are sealed on the motion of a party claiming the need to protect inventions, business secrets or national security. Sometimes sealing is stipulated as part of a settlement to keep the terms from public scrutiny.

 

search 
v. 1) to examine another's premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional to conduct a search without a "search warrant" issued by a judge or without facts which give the officer "probable cause" to believe evidence of a specific crime is on the premises and there is not enough time to obtain a search warrant. 2) to trace the records of ownership of real property in what is commonly called a "title search."

 

search and seizure 
n. examination of a person's premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, a blood-soaked blanket).

 

search warrant 
n. a written order by a judge which permits a law enforcement officer to search a specific place and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," "evidence of bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor).

 

second degree murder 
n. a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility. Second degree murder is different from first degree murder, which is a premeditated, intentional killing or results from a vicious crime such as arson, rape or armed robbery.

 

secondary boycott 
n. an organized refusal to purchase the products of, do business with or perform services for (such as deliver goods) a company which is doing business with another company where the employees are on strike or in a labor dispute.

 

secret rebate 
n. a kickback of money by a business to a "preferred" customer, not offered to the public or by a subcontractor to a contractor not shown on a job estimate. Both are illegal as unfair business practices and may result in criminal penalties or refusal of a court to enforce a contract (written or oral) in which there is such a secret rebate.

 

secured transaction 
n. any loan or credit in which property is pledged as security in the event payment is not made. 

 

securities 
n. generic term for shares of stock, bonds and debentures issued by corporations and governments to evidence ownership and terms of payment of dividends or final pay-off. They are called securities because the assets and/or the profits of the corporation or the credit of the government stand as security for payment. However, unlike secured transactions in which specific property is pledged, securities are only as good as the future profitability of the corporation or the management of the governmental agency. Most securities are traded on various stock or bond markets.

 

security deposit 
n. a payment required by a landlord from a tenant to cover the expenses of any repairs of damages to the premises greater than normal "wear and tear." The security deposit must be returned within a short time after the tenant vacates, less the cost of repairing any unusual damage. Unfortunately for tenants, these damages are usually subject to the judgment of the landlord, who may desire to paint and refinish on the tenant's money, which results in many small claims suits.

 

security interest 
n. generic term for the property rights of a lender or creditor whose right to collect a debt is secured by property. 

 

sedition 
n. the crime of advocacy of insurrection against the government or support for an enemy of the nation during time of war, by speeches, publications and organization. Sedition usually involves actually conspiring to disrupt the legal operation of the government and is beyond expression of an opinion or protesting government policy. Sedition is a lesser crime than "treason," which requires actual betrayal of the government, or "espionage." Espionage involves spying on the government, trading military secrets to another country (even a friendly nation), or sabotaging governmental facilities, equipment or suppliers of the government, like an aircraft factory.

 

seduction 
n. the use of charm, salesmanship, promises, gifts and flattery to induce another person to have sexual intercourse outside marriage, without any use of force or intimidation. However, just as adultery lingers in the criminal codes so does seduction.

 

seisin 
(sees-in) n. an old term for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple (full title to real property).

 

seized 
(seised) n. 1) having ownership, commonly used in wills as "I give all the property of which I die seized as follows:…." 2) having taken possession of evidence for use in a criminal prosecution. 3) having taken property or a person by force.

 

seizure 
n. the taking by law enforcement officers of potential evidence in a criminal case. The constitutional limitations on seizure are the same as for search. Thus, evidence seized without a search warrant or without "probable cause" to believe a crime has been committed and without time to get a search warrant, cannot be admitted in court, nor can evidence traced through the illegal seizure.

 

self-dealing 
n. in the stock market, using secret "inside" information gained by being an official of a corporation (or from such an officer) to buy or sell stock (or real property wanted by the corporation) before the information becomes public (like a merger, poor profit report, striking oil). Self-dealing can also apply to general partners of a limited partnership who do not inform limited partners of business opportunities which should belong to the partnership. Self-dealing can result in a lawsuit for fraud by shareholders.

 

self-defense 
n. the use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor, if the defender has reason to believe he/she/they is/are in danger. Self-defense is a common defense by a person accused of assault, battery or homicide. The force used in self-defense may be sufficient for protection from apparent harm (not just an empty verbal threat) or to halt any danger from attack, but cannot be an excuse to continue the attack or use excessive force. Examples: an unarmed man punches Jose, who hits the attacker with a stick. That is legitimate self-defense, but Jose cannot chase the attacker and shoot him or beat him senseless. If the attacker has a gun or a butcher knife and is verbally threatening, Jose is probably warranted in shooting him. Basically, appropriate self-defense is judged on all the circumstances. Reasonable force can also be used to protect property from theft or destruction. Self-defense cannot include killing or great bodily harm to defend property, unless personal danger is also involved, as is the case in most burglaries, muggings or vandalism.

 

self-executing 
adj. immediately effective without further action, legislation or legal steps. Some statutes are self-executing, as are some legal rights (such as when a person holds property as security and title passes automatically when payments are not made). Most judgments in lawsuits are not self-executing and are only documents giving the winning party the right to try to collect.

 

self-help 
n. 1) obtaining relief or enforcing one's rights without resorting to legal action, such as repossessing a car when payments have not been made, retrieving borrowed or stolen goods, demanding and receiving payment or abating a nuisance (such as digging a ditch to divert flooding from another's property). Self-help is legal as long as it does not "break the public peace" or violate some other law (although brief trespass is common). 2) the maximizing of one's opportunities.

 

self-incrimination 
n. making statements or producing evidence which tends to prove that one is guilty of a crime. 

 

self-serving 
adj. referring to a question asked of a party to a lawsuit or a statement by that person that serves no purpose and provides no evidence, but only argues or reinforces the legal position of that party. Example: Question asked by a lawyer of his own client: "Are you the sort of person who would never do anything dishonest?" Such a question may be objected to as "self-serving" by the opposing lawyer and will be disallowed by the judge, unless there is some evidentiary value. Some people add self-serving comments to their testimony, such as "I never tell lies," which can be stricken from the record as a self-serving declaration.

 

sell 
v. to transfer possession and ownership of goods or other property for money or something of equivalent value. 

 

seller 
n. one who sells goods or other property to a buyer (purchaser). 

 

senior lien 
n. the first security interest (lien or claim) placed upon property at a time before other liens, which are called "junior" liens.

 

sentence 
1) n. the punishment given to a person convicted of a crime. A sentence is ordered by the judge, based on the verdict of the jury (or the judge's decision if there is no jury) within the possible punishments set by law. Popularly, "sentence" refers to the jail or prison time ordered after conviction, as in "his sentence was 10 years in prison." Technically, a sentence includes all fines, community service, restitution or other punishment, or terms of probation. Defendants who are first offenders without a felony record may be entitled to a probation or pre-sentence report by a probation officer based on background information and circumstances of the crime, often resulting in a recommendation as to probation and amount of punishment. Under some circumstances the defendant may receive a "suspended sentence," which means the punishment is not imposed if the defendant does not get into other trouble for the period he/she would have spent in jail or prison; "concurrent sentences," in which the prison time for more than one crime is served at the same time and only lasts as long as the longest term; "consecutive sentences," in which the terms for several crimes are served one after another; and "indeterminate" sentences, in which the actual release date is not set and will be based on review of prison conduct. 2) v. to impose a punishment on a person convicted of a crime.

 

separation 
n. married persons living apart, either informally by one leaving the home or agreeing to "separate" while sharing a residence without sexual relations, or formally by obtaining a "legal separation" or negotiating a "separation agreement" setting out the terms of separate living.

 

separation agreement 
n. an agreement between two married people who have agreed to live apart for an unspecified period of time, perhaps forever. The agreement generally covers any alimony (money paid for spousal support), child support, custody arrangements if there are children, payment of bills and management of separate bank accounts. A separation agreement may determine division of property if the separation appears permanent. It cannot be enforced by court order unless one party files a petition for legal separation or files a lawsuit for specific performance of a contract. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.

 

sequester 
v. to keep separate or apart. In so-called "high-profile" criminal prosecutions (involving major crimes, events or persons given wide publicity) the jury is sometimes "sequestered" in a hotel without access to news media, the general public or their families except under supervision, in order to prevent the jury from being "tainted" by information or opinions about the trial outside of the evidence in the courtroom. A witness may be sequestered from hearing the testimony of other witnesses, commonly called being "excluded," until after he/she has testified, supposedly to prevent that witness from being influenced by other evidence or tailoring his/her testimony to fit the stories of others.

 

sequestration 
n. the act of a judge issuing an order that a jury or witness be sequestered (kept apart from outside contacts during trial). 

 

seriatim 
(sear-ee-ah-tim) prep. Latin for "one after another" as in a series. Thus, issues or facts are discussed seriatim (or "ad seriatim"), meaning one by one in order.

 

servant 
n. an employee of an employer, technically one who works for a master. A servant is distinguished from an "independent contractor" who operates his/her own business even though spending much time on the work of a particular person or entity. The servant has established hours or piece work, is under the direction of the employer even as to details, cannot work for competitors and acts for the benefit of the employer rather than for himself/herself.

 

service 
n. 1) paid work by another person, either by contract or as an employee. "Personal services" is work that is either unique (such as an artist or actor) or based on a person's particular relationship to employer (such as a butler, or a driver). 2) the domestic activities of a wife, including the marital relationship (consortium), are legally considered "services" for which a deprived husband may sue a person who has caused injury to his wife. 3) the official delivery of legal documents ("service of process") such as a summons, subpena, complaint, order to show cause (order to appear to show reasons why a judge should not make a particular order), writ (court order), or notice to quit the premises, as well as delivery by mail or in person of documents to opposing attorneys or parties, such as answers, motions, points and authorities, demands and responses.

 

service by fax 
n. delivery of legal documents required by statute to be "served" by transmitting through telecopier phone (FAX), followed by mailing an original ("hard copy"). Increasingly, the courts recognize this as legitimate service since it is instantaneous.

 

service by mail 
n. mailing legal pleadings to opposing attorneys or parties, while filing the original with the court clerk with a declaration stating that the copy was mailed to a particular person at a specific address. Once a party has responded by filing an answer, subsequent pleadings (except orders to show cause and orders of examination) can be served upon his/her/its attorney by mail.

 

service by publication 
n. serving a summons or other legal document in a lawsuit on a defendant by publishing the document in an advertisement in a newspaper of general circulation. Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, unknown (as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence" (trying hard). Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address or to give notice to people who might have a right to object to a "quiet title" action to clear title to real property.

 

service of process 
n. the delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called "substituted service" can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office or with a designated "agent for acceptance of service", or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.

 

services 
n. work performed for pay. 

 

servient estate 
n. real property which has an easement or other use imposed upon it in favor of another property (called the "dominant estate"), such as right of way or use for access to an adjoining property or utility lines. The property giving usage is the servient estate, and the property holding usage of the easement is the dominant estate.

 

session 
n. 1) a meeting (or "sitting") of a court for a particular period of time. "Session" technically means one day's business (as in "today's session"). 2) the term of an appeals court covering several months.

 

set 
v. to schedule, as to "set a case for trial."

 

set aside 
v. to annul or negate a court order or judgment by another court order. Example: a court dismisses a complaint believing the case had been settled. Upon being informed by a lawyer's motion that the lawsuit was not settled, the judge will issue an order to "set aside" the original dismissal.

 

setoff 
(offset) n. a claim by a defendant in a lawsuit that the plaintiff (party filing the original suit) owes the defendant money which should be subtracted from the amount of damages claimed by plaintiff. By claiming a setoff the defendant does not necessarily deny the plaintiff's original demand, but he/she claims the right to prove the plaintiff owes him/her an amount of money from some other transaction and that the amount should be deducted from the plaintiff's claim.

 

setting 
n. the action of a court, clerk or commissioner in scheduling a trial or hearing.

 

settle 
v. to resolve a lawsuit without a final court judgment by negotiation between the parties, usually with the assistance of attorneys and/or insurance adjusters, and sometimes prodding by a judge. Most legal disputes are settled prior to trial.

 

settlement 
n. the resolution of a lawsuit (or of a legal dispute prior to filing a complaint or petition) without going forward to a final court judgment. Most settlements are achieved by negotiation in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company's insured defendant) and the parties agree to terms of settlement. A settlement is sometimes reached based upon a final offer just prior to trial (proverbially "on the courthouse steps") or even after trial has begun. A settlement reached just before trial or after a trial or hearing has begun is often "read into the record" and approved by the court so that it can be enforced as a judgment if the terms of the settlement are not complied with. Most lawsuits result in settlement.

 

settlor 
n. the person who creates a trust by a written trust declaration, called a "Trustor" and sometimes referred to as the "Donor." The settlor usually transfers the original assets into the trust.

 

severable contract 
n. an agreement which is made up of several separate contracts between the same parties, such as series of sales, shipments or different pieces of equipment. Therefore, breach of one of the separate (severable) contracts is not a breach of the remainder of the overall contract and is not an excuse for the other party to refuse to honor any divisable part of the contract which has not been breached.

 

several liability 
n. referring to responsibility of one party for the entire debt (as in "joint and several") or judgment when those who jointly agreed to pay the debt or are jointly ordered to pay a judgment do not do so. A person who is stuck with "several liability" because the others do not pay their part may sue the other joint debtors for contribution toward the payment he/she has made.

 

severance 
n. 1) a separating by court order, such as separate trials for criminal defendants who were charged with the same crime, or trying the negligence aspect of a lawsuit before a trial on the damages. Such division of issues in a trial is sometimes also called "bifurcation." Severance is granted when a joint trial might be unfair or reaching a decision on one issue (such as negligence) may save the trouble of hearing the other questions. 2) extra pay offered and made to a person to encourage him/her to resign, retire or settle a potential claim for discharge.

 

sex offender 
n. generic term for all persons convicted of crimes involving sex, including rape, molestation, sexual harassment and pornography production or distribution.

 

sexual harassment 
n. unwanted sexual approaches (including touching, feeling, groping) and/or repeated unpleasant, degrading and/or sexist remarks directed toward an employee with the implied suggestion that the target's employment status, promotion or favorable treatment depend upon a positive response and/or "cooperation." Sexual harassment is a private nuisance, unfair labor practice which may be the basis for a lawsuit against the individual who made the advances and against the employer who did not take steps to halt the harassment.

 

shall 
v. 1) an imperative command as in "you shall not kill." 2) in some statutes, "shall" is a direction but does not mean mandatory, depending on the context.

 

share 
n. 1) a portion of a benefit from a trust, estate, claim or business usually in equal division (or a specifically stated fraction) with others ("to my three daughters, in equal shares"). 2) a portion of ownership interest in a corporation, represented by a stock certificate stating the number of shares of an issue of the corporation's stock.

 

share and share alike 
adj. referring to the equal division of a benefit from an estate, trust or gift, which includes the right of the survivors to divide the portion of any beneficiary who dies before receiving the gift.

 

shareholder 
n. the owner of one or more shares of stock in a corporation, commonly also called a "stockholder." The benefits of being a shareholder include receiving dividends for each share as determined by the board of directors, the right to vote (except for certain preferred shares) for members of the board of directors, to bring a derivative action (lawsuit) if the corporation is poorly managed, and to participate in the division of value of assets upon dissolution and winding up of the corporation, if there is any value. A shareholder should have his/her name registered with the corporation, but may hold a stock certificate which has been signed over to him/her. Before registration the new shareholder may not be able to cast votes represented by the shares.

 

shareholders' agreement 
n. an employment agreement among the shareholders of a small corporation permitting a shareholder to take a management position with the corporation without any claim of conflict of interest or self-dealing against the shareholder/manager. Such agreements are common when there are only three or four shareholders. 

 

shareholders' derivative action 
n. a lawsuit by a corporation's shareholders, theoretically on behalf of the corporation, to protect and benefit all shareholders against the corporation for improper management.

 

shareholders' meeting 
n. a meeting, usually annual, of all shareholders of a corporation (although in large corporations only a small percentage attend) to elect the board of directors and hear reports on the company's business situation. In larger corporations top management people hold the proxies signed over to them by many of the shareholders to vote for them.

 

sharp practice 
n. actions by a lawyer using misleading statements to opposing counsel or the court, denial of oral stipulations (agreements between attorneys) previously made, threats, improper use of process or tricky and/or dishonorable means barely within the law. A consistent pattern of sharp practice may lead to discipline by the state bar association or by the courts.

 

sheriff 
n. the top law enforcement officer for a county like United States, usually elected and responsible for police protection outside of incorporated cities, management of the county jail, providing bailiffs for protection of the courts, and such civil activities as serving summonses, subpenas and writs, conducting judgment sales, and fulfilling various functions ordered by the courts.

 

shield laws 
n. statutes enacted which declare that communications between news reporters and informants are confidential and privileged and thus cannot be testified to in court. This is similar to the doctor-patient, lawyer-client or priest-parishioner privilege. The concept is to allow a journalist to perform his/her function of gathering news without being ordered to reveal his/her sources and notes of conversations.

 

shifting the burden of proof 
n. the result of the plaintiff in a lawsuit meeting its burden of proof in the case, in effect placing the burden with the defendant, at which time it presents a defense. There may be shifts of burden of proof on specific factual issues during a trial, which may impact the opposing parties and their need to produce evidence.

 

short cause 
n. a lawsuit which is estimated by the parties (usually their attorneys) and the trial setting judge to take no more than one day. Thus, a short cause may be called on the "short cause" calendar and get priority on the calendar since it can be fitted into the court's schedule and will not tie up a courtroom for a long period. Short causes may be treated differently from "long cause" cases, such as not requiring a settlement conference or having the cases tried by "pro tem" judges. However, if a supposed "short cause" lasts beyond one day the judge is authorized to declare a mistrial and the case will be reset later as a "long cause."

 

shortening time 
n. an order of the court in response to the motion of a party to a lawsuit which allows setting a motion or other legal matter at a time shorter than provided by law or court rules. Shortening time is usually granted when the time for trial or some other court action is approaching and a hearing must be heard promptly by the judge. Example: the local rules require that a party give the other side 10 days' notice before a hearing. A hearing on adding a witness to the expert list would be useless unless heard in five days, since the trial is set to be called in nine days. The court may shorten the time to schedule the hearing to five days, provided the notice is served within 24 hours.

 

show cause order 
n. an order of the court, also called an order to show cause or OSC, directing a party to a lawsuit to appear on a certain date to show cause why the judge should not issue a specific order or make a certain finding.

 

sidebar 
n. 1) physically, an area in front of or next to the judge's bench (the raised desk in front of the judge) away from the witness stand and the jury box, where lawyers are called to speak confidentially with the judge out of earshot of the jury. 2) a discussion between the judge and attorneys at the bench off the record and outside the hearing of the jurors or spectators. 3) in journalism, a brief story on a sidelight to a news story, such as a biographical sketch about a figure in the news or an anecdote related to the main story, and sometimes enclosed within a box.

 

sign 
v. 1) to write one's signature on a document. 2) to communicate by sign language. 

 

silent partner 
n. a non-legal term for an investor who puts money into a business, takes no part in management and is often unknown to customers. A "limited partner," who is prohibited from taking part in management and has no liability for debts beyond his/her investment, is a true silent partner. However, without a limited partnership agreement, a silent partner is responsible for the debts of the partnership as a general partner.

 

similarly situated 
adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a "class action," brought for the benefit of the party filing the suit as well as all those "similarly situated." To be similarly situated, the defendants, basic facts and legal issues must be the same, and separate lawsuits would be impractical or burdensome.

 

simple trust 
n. a trust which requires that all income be distributed each year and not accumulated. 

 

simultaneous death act 
n. if a husband and wife or siblings die in an accident in which they died at the same moment or it cannot be determined who died first, it is presumed that each died before the other for determining inheritance.

 

sine qua non 
(see-nay kwah nahn) prep. Latin for "without which it could not be," an indispensable action or condition.

 

situs 
n. Latin for "location," be it where the crime or accident took place or where the building stands.

 

slander 
n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements, such as an untrue accusation of having committed a crime, having a loathsome disease or being unable to perform one's occupation, are treated as slander per se since the harm and malice are obvious and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.

 

sodomy 
n. anal copulation by a man inserting his penis in the anus either of another man or a woman. If accomplished by force, without consent or with someone incapable of consent, sodomy is a felony in the same way that rape is. Traditionally sodomy was called "a crime against nature." Sodomy does not include oral copulation or sexual acts with animals (bestiality).

 

sole proprietorship 
n. a business owned by one person, as distinguished from a partnership or corporation.

 

solicitation 
n. the crime of encouraging or inducing another to commit a crime or join in the commission of a crime. Solicitation may refer to a prostitute's (or her pimp's) offer of sexual acts for pay. 

 

solicitor 
n. an English attorney who may perform all legal services except appear in court. Under the British system, the litigator or trial attorney takes special training in trial work and is called a "barrister." Occasionally a solicitor becomes a barrister, which is called "taking the silk".

 

solitary confinement 
n. the placement of a prisoner in a prison in a cell away from other prisoners, usually as a form of internal penal discipline, but occasionally to protect the convict from other prisoners or to prevent the prisoner from causing trouble. Long-term solitary confinement may be found to be unconstitutional as "cruel and unusual punishment".

 

solvency 
n. 1) having sufficient funds or other assets to pay debts. 2) having more assets than liabilities (debts). The contrast is "insolvency," which may be a basis for filing a petition in bankruptcy.

 

sound mind and memory 
n. having an understanding of one's actions and reasonable knowledge of one's family, possessions and surroundings. This is a phrase often included in the introductory paragraph of a will in which the testator (writer of the will) declares that he/she is "of sound mind and memory". The general test is whether the person making the will understood: a) the meaning and effect of the will, b) what the person owned (more or less), and c) the "natural objects of his/her bounty", meaning the immediate family and any other particularly close relatives or friends to whom he/she might leave things.

 

sounds in 
adj. referring to the underlying legal basis for a lawsuit or one of several causes of action in a suit, such as contract or tort (civil wrong). The phrasing might be: "Plaintiff's first cause of action against Defendant sounds in tort, and his second cause of action sounds in contract".

 

speaking demurrer 
n. an attempt to introduce evidence during a hearing on a demurrer. A demurrer is a legal opposition to a complaint in a lawsuit (or to an answer), which says, in effect, that even if the factual claims (allegations) are true, there are legal flaws or failures in the lawsuit. Therefore, since the factual allegations are admitted for the sake of argument, introducing evidence is improper, and an attorney making a "speaking demurrer" will be halted, often in mid-argument.

 

special 
adj. referring to a particular purpose, person or happening. In law these include hearings, proceedings, administrator, master, orders and so forth.

 

special administrator 
n. a person appointed by the court in a probate proceeding (management of the estate of a deceased person) to take charge of the assets and/or investigate the status of the estate and report to the court, usually when there is a dispute between beneficiaries (those who may receive from the estate) and the executor or administrator.

 

special appearance 
n. the representation by an attorney of a person in court for: a) only that particular session of the court; b) on behalf of the client's regular attorney of record; c) as a favor for an unrepresented person; or d) pending a decision as to whether the attorney agrees to handle the person's case. A special appearance is different from a "general appearance" in which the attorney is committed to represent the client in all future matters, hearings and trial of the case unless he/she is allowed to withdraw or is substituted "out of" the case by the client. Quite often an attorney will make a "special appearance" to protect the interests of a potential client but before a fee has been paid or arranged.

 

special circumstances 
n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which statutes allow or require imposition of a more severe punishment. "Special circumstances" in murder cases may well result in the imposition of the death penalty for murder or life sentence without possibility of parole. Such circumstances may include: rape, kidnapping or maiming prior to the killing, multiple deaths, killing a police officer or prison guard, or actions showing wanton disregard for life, such as throwing a bomb into a restaurant.

 

special damages 
n. damages claimed and/or awarded in a lawsuit which were out-of-pocket costs directly as the result of the breach of contract, negligence or other wrongful act by the defendant. Special damages can include medical bills, repairs and replacement of property, loss of wages and other damages which are not speculative or subjective. They are distinguished from general damages, in which there is no evidence of a specific amount.

 

special master 
n. a person appointed by the court to carry out an order of the court, such as selling property or mediating child custody cases. A "special" master differs from a "master" in that he/she takes positive action rather than just investigating and reporting to the judge.

 

special verdict 
n. the jury's decisions or findings of fact with the application of the law to those facts left up to the judge, who will then render the final verdict. This type of limited verdict is used when the legal issues to be applied are complex or require difficult computation.

 

specific bequest 
n. the gift in a will of a certain article to a certain person or persons. Example: "I give my diamond engagement ring to my niece, Sonia."

 

specific devise 
n. the gift in a will of a certain piece of real estate to a certain person or persons. 

 

specific finding 
n. a decision on a fact made by a jury in its verdict and which the judge has requested the jury to determine as part of its deliberations. Often the judge gives a jury a list of decisions on findings of fact to be made to help the jurors focus on the issues. 

 

specific legacy 
n. a gift in a will of a certain article or property to a certain person or persons. 

 

specific performance 
n. the right of a party to a contract to demand that the defendant (the party who it is claimed breached the contract) be ordered in the judgment to perform the contract. Specific performance may be ordered instead of (or in addition to) a judgment for money if the contract can still be performed and money cannot sufficiently reward the plaintiff. Example: when a defendant was to deliver some unique item such as an art-work and did not, a judge may order the defendant to actually deliver the art-work.

 

speculative damages 
n. possible financial loss or expenses claimed by a plaintiff (person filing a lawsuit) which are contingent upon a future occurrence, purely conjectural or highly improbable. Speculative damages should not be awarded, and jury instructions should so state. Examples: a) plaintiff believes that ten years hence, as he ages, he may begin to feel pain from a healed fracture although no physician has testified that this is likely to happen; b) plaintiff claims that defendant's failure to deliver products for sale may hurt plaintiff's reputation with future customers.

 

spendthrift clause 
n. a provision in a trust or will that states that if a prospective beneficiary has pledged to turn over a gift he/she hopes to receive to a third party, the trustee or executor shall not honor such a pledge. The purpose is to prevent a "spendthrift" beneficiary from using a potential gift as security for credit on a speculative investment.

 

spontaneous exclamation 
n. a sudden statement caused by the speaker having seen a surprising, startling or shocking event (such as an accident or a death), or having suffered an injury. Even though the person who made the spontaneous exclamation is not available (such as he/she is dead or missing), a person who heard the exclamation may testify about it as an exception to the rule against "hearsay" evidence. The reason is that such an exclamation lacks planning and is assumed to have the ring of truth to it.

 

spousal support 
n. payment for support of an ex-spouse (or a spouse while a divorce is pending) ordered by the court. More commonly called alimony. 

 

springing interest 
n. a future right to title to real property created by a deed or will. Example: "I give title to my daughter Mary for her lifetime, and, on her death, title to my grandson Jose." Jose has a springing interest in the property.

 

stakeholder 
n. a person having in his/her possession (holding) money or property in which he/she has no interest, right or title, awaiting the outcome of a dispute between two or more claimants to the money or property. The stakeholder has a duty to deliver to the owner or owners the money or assets once the right to legal possession is established by judgment or agreement.

 

standard of care 
n. the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ.

 

standing 
n. the right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in court if there is an actual controversy. 

 

star chamber proceedings 
n. any judicial or quasi-judicial action, trial or hearing which so grossly violates standards of "due process" that a party appearing in the proceedings (hearing or trial) is denied a fair hearing. The term comes from a large room with a ceiling decorated with stars in which secret hearings of the privy council and judges met to determine punishment for disobedience of the proclamations of King Henry VIII of Great Britain (1509-1547). The high-handed, unfair, predetermined judgments, which sent the accused to the Tower of London or to the chopping block, made "star chamber" synonymous with unfairness and illegality from the bench.

 

stare decisis 
(stah-ree duh-sigh-sis) n. Latin for "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law").

 

state 
n. the state government and any of its departments, agencies or components (such as a city, board).

 

state of domicile 
n. the state in which a person has his/her permanent residence or intends to make his/her residence, as compared to where the person is living temporarily. Domicile depends on intent, location of a home where a person regularly sleeps and some conduct. A corporation's state of domicile is the state where the corporation is incorporated.

 

status conference 
n. a pre-trial meeting of attorneys before a judge to inform the court as to how the case is proceeding, what discovery has been conducted (depositions, interrogatories, production of documents), any settlement negotiations, probable length of trial and other matters relevant to moving the case toward trial. Court rules usually require the filing of a status conference statement prior to the conference.

 

statute 
n. law enacted by the state legislature. Local statutes or laws are usually called "ordinances". Regulations, rulings, opinions, executive orders and proclamations are not statutes.

 

statute of frauds 
n. law which requires that certain documents be in writing, such as real property titles and transfers (conveyances), leases for more than a year, wills and some types of contracts. The original statute was enacted in England in 1677 to prevent fraudulent title claims.

 

statute of limitations 
n. a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is forever dead (barred). The types of cases and statute of limitations periods are broken down among: personal injury from negligence or intentional wrongdoing, property damage from negligence or intentional wrongdoing, breach of an oral contract, breach of a written contract, professional malpractice, libel, slander, fraud, trespass, a claim against a governmental entity (usually a short time), and some other variations. In some instances a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or on reasonable reliance on a trusted person (a fiduciary or confidential adviser who has hidden his/her own misuse of someone else's funds or failure to pay). A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations on bringing criminal charges, but homicide generally has no time limitation on prosecution.

 

statutory offer of settlement 
n. a written offer of a specific sum of money made by a defendant to a plaintiff, which will settle the lawsuit if accepted within a short time. The offer may be filed with the court, and if the eventual judgment for the plaintiff is less than the offer, the plaintiff will not be able to claim the court costs usually awarded to the prevailing party.

 

statutory rape 
n. sexual intercourse with a female below the legal age of consent but above the age of a child, even if the female gave her consent, did not resist and/or mutually participated.

 

stay 
n. a court-ordered short-term delay in judicial proceedings to give a losing defendant time to arrange for payment of the judgment or move out of the premises in an unlawful detainer case. 

 

stay away order 
n. a court order that a person may not come near and/or contact another. 

 

stay of execution 
n. a court-ordered delay in inflicting the death penalty. 

 

stipulation 
n. an agreement, usually on a procedural matter, between the attorneys for the two sides in a legal action. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court.

 

stock 
1) n. inventory (goods) of a business meant for sale (as distinguished from equipment and facilities). 2) share in the ownership of a corporation (called "shares of stock" or simply "shares"). 3) cattle. 4) v. to keep goods ready for sale in a business.

 

stock certificate 
n. printed document which states the name, incorporation place, date of incorporation, the registered number of the certificate, the number of shares of stock in a corporation the certificate represents, the name of the shareholder, the date of issuance and the number of shares authorized in the particular issue of stock, signed by the president and secretary of the corporation (or with facsimile signatures). On the reverse side of the certificate is a form for transfer of the certificate to another person. After transfer the new owner should register the change of ownership with the corporation.

 

stock in trade 
n. the inventory of merchandise held for sale. 

 

stock option 
n. the right to purchase stock in the future at a price set at the time the option is granted (by sale or as compensation by the corporation). To actually obtain the shares of stock the owner of the option must "exercise" the option by paying the agreed upon price and requesting issuance of the shares.

 

stockholder 
n. shareholder in a corporation. 

 

stockholders' derivative action 
n. See also: derivative action shareholders' derivative action 

 

stop and frisk 
n. a law enforcement officer's search for a weapon confined to a suspect's outer clothing when either a bulge in the clothing or the outline of the weapon is visible. The search is commonly called a "pat down," and any further search requires either a search warrant or "probable cause" to believe the suspect will commit or has committed a crime (including carrying a concealed weapon, which itself is a crime). The limited right to "stop and frisk" is intended to halt the practice of random searches of people in hopes of finding evidence of criminal activity or merely for purposes of intimidation, particularly of minorities.

 

straw man 
n. 1) a person to whom title to property or a business interest is transferred for the sole purpose of concealing the true owner and/or the business machinations of the parties. Thus, the straw man has no real interest or participation but is merely a passive stand-in for a real participant who secretly controls activities. Sometimes a straw man is involved when the actual owner is not permitted to act, such as a person with a criminal record holding a liquor license. 2) an argument which is intended to distract the other side from the real issues or waste the opponent's time and effort, sometimes called a "red herring" (for the belief that drawing a fish across a trail will mislead hunting dogs).

 

street 
n. a roadway in an urban area, owned and maintained by the municipality for public use. A private road cannot be a street.

 

strict construction 
(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

 

strict liability 
n. automatic responsibility (without having to prove negligence) for damages due to possession and/or use of equipment, materials or possessions which are inherently dangerous, such as explosives, wild animals, poisonous snakes or assault weapons. This is analogous to the doctrine of res ipsa loquitur in which control, ownership and damages are sufficient to hold the owner liable.

 

strike 
1) v. to remove a statement from the record of the court proceedings by order of the judge due to impropriety of a question, answer or comment to which there has been an objection. Often after a judge has stricken some comment or testimony (an answer made before an objection has stopped the witness), he/she admonishes (warns) the jury not to consider the stricken language, but the jury has a hard time forgetting since "a bell once rung cannot be unrung." 2) v. to order that language in a pleading (a complaint or an answer, for example) shall be removed or no longer be of any effect, usually after a motion by the opposing party and argument, on the basis that the language (which may be an entire cause of action) is not proper pleading, does not state a cause of action (a valid claim under the law) or is not in proper form. 3) n. the organized refusal of workers to remain on the job, usually accompanied by demands for a union contract, higher wages, better conditions or other employee desires, and possibly including a picket line to give voice to workers' demands and discourage or intimidate other workers and customers from entering the business, factory or store.

 

structure 
n. anything built by man/woman, from a shed to a highrise or a bridge.

 

sua sponte 
(sooh-uh spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case. These include an order transferring a case to another judge due to a conflict of interest or the judge's determination that his/her court does not have jurisdiction over the case.

 

subcontractor 
n. a person or business which has a contract (as an "independent contractor" and not an employee) with a contractor to provide some portion of the work or services on a project which the contractor has agreed to perform. In building construction, subcontractors may include such trades as plumbing, electrical, roofing, cement work and plastering. If a subcontractor is not paid for his/her work, he/she has the right to enforce a "mechanic's lien" on the real property upon which the work was done to collect.

 

subject to 
adj. referring to the acquisition of title to real property upon which there is an existing mortgage or deed of trust when the new owner agrees to take title with the responsibility to continue to make the payments on the promissory note secured by the mortgage or deed of trust. Thus, the new owner (grantee) buys the property "subject to" secured debt. However, should the new owner fail to pay, the original debtor will be liable for the payment, but the holder of the mortgage or beneficiary of the deed of trust may foreclose and the buyer could thus lose title. This differs from the new title holder "assuming" the mortgage or deed of trust by a written transfer of the obligation. Such a transfer must be approved by the lender, since the new owner's credit may or may not be as strong as the original owner/borrower's.

 

sublease 
n. the lease to another of all or a portion of premises by a tenant who has leased the premises from the owner. A sublease may be prohibited by the original lease, or require written permission from the owner. In any event, the original tenant (lessee) is still responsible for paying the rent to the owner (landlord/lessor) through the term of the original lease and sublease.

 

submitted 
n. the conclusion of all evidence and argument in a hearing or trial, leaving the decision in the hands of the judge. Typically the judge will ask the attorneys after final arguments: "Is it submitted?" If so, no further argument is permitted.

 

subordination 
n. allowing a debt or claim which has priority to take second position behind another debt, particularly a new loan. A property owner with a loan secured by the property who applies for another loan to make additions or repairs usually must get a subordination of the original loan so the new obligation is in first place. A declaration of homestead must always be subordinated to a loan.

 

subordination agreement 
n. a written contract in which a lender who has secured a loan by a mortgage or deed of trust agrees with the property owner to subordinate the first loan to a new loan (thus giving the new loan priority in any foreclosure or payoff). The agreement must be acknowledged by a notary so it can be recorded in the official county records. 

 

subornation of perjury 
n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath.

 

subpena 
(suh-pea-nah) n. an order of the court for a witness to appear at a particular time and place to testify and/or produce documents in the control of the witness (if a "subpena duces tecum"). A subpena is used to obtain testimony from a witness at both depositions (testimony under oath taken outside of court) and at trial. Subpenas are usually issued automatically by the court clerk but must be served personally on the party being summoned. Failure to appear as required by the subpena can be punished as contempt of court if it appears the absence was intentional or without cause.

 

subpena duces tecum 
(suh-pea-nah dooh-chess-take-uhm or dooh-kess-take-uhm): a court order requiring a witness to bring documents in the possession or under the control of the witness to a certain place at a certain time. This subpena must be served personally on the person subpenaed. It is the common way to obtain potentially useful evidence, such as documents and business records, in the possession of a third party. A subpena duces tecum must specify the documents or types of documents (e.g. "profit and loss statements of ABC Corporation for years 1987 through 1995, all correspondence in regard to the contract between ABC Corporation and XYZ Corporation") or it will be subject to an objection that the request is "too broad and burdensome." To obtain documents from the opposing party, a "Request for Production of Documents" is more commonly used. Failure to respond to a subpena duces tecum may subject the party served with the subpena to punishment for contempt of court for disobeying a court order.

 

subpoena 
n. the original spelling of subpena, still commonly used.

 

subrogation 
n. assuming the legal rights of a person for whom expenses or a debt has been paid. Typically, subrogation occurs when an insurance company which pays its insured client for injuries and losses then sues the party which the injured person contends caused the damages to him/her.

 

subrogee 
n. the person or entity that assumes the legal right to attempt to collect a claim of another (subrogor) in return for paying the other's expenses or debts which the other claims against a third party. A subrogee is usually the insurance company which has insured the party whose expenses were paid. Thus, the subrogee insurance company may file a lawsuit against a party which caused the damages to its insured which the subrogee paid.

 

subrogor 
n. a person or entity that transfers his/her/its legal right to collect a claim to another (subrogee) in return for payment of the subrogor's expenses or debts which he/she/it claims. Thus, a person injured in an accident (subrogor) is paid by his/her/its own insurance company (subrogee) for the damages, and then the insurance company sues the party who apparently caused the damages.

 

subscribe 
v. 1) to sign at the end of a document. The courts have been flexible in recognizing signatures elsewhere on a contract or will, on the theory that a document should be found valid if possible. 2) to order and agree to pay for an issue of stock, bonds, limited partnership interest, investment or periodical magazine or newspaper.

 

substantial performance 
n. in the law of contracts, fulfillment of the obligations agreed to in a contract, with only slight variances from the exact terms and/or unimportant omissions or minor defects. A simple test is whether the omission, variance or defect can be easily compensated for with money. Examples: a) the contract is for supplying 144 pumps for Rs 14,400, and only 140 were delivered; b) the real property was supposed to be 8 acres and only contained 7 acres. This constitutes substantial performance unless the loss of one acre is crucial to the value of the property (e.g. reduced the number of lots able to be subdivided).

 

substantive law 
n. law which establishes principles and creates and defines rights limitations under which society is governed, as differentiated from "procedural law," which sets the rules and methods employed to obtain one's rights and, in particular, how the courts are conducted.

 

substitute in 
v. to take over a case from another lawyer, which must be confirmed by a written statement filed with the court.

 

substituted service 
n. accomplishing service (delivery) of legal documents required to be served personally by leaving the documents with an adult resident of the home of the person to be served, with an employee with management duties at the office of an individual, with such an employee at corporate headquarters, with a designated "agent for acceptance of service", or in some cases (like a notice to quit the premises) by posting in a prominent place followed by mailing copies by certified mail to the person to be served.

 

substitution 
n. putting one person in place of another, in particular replacement of the attorney of record in a lawsuit with another attorney (or the party acting in propria persona).

 

substitution of attorney 
n. a document in which the party to a lawsuit states that his/her attorney of record is being substituted for by another attorney or by the party acting for himself/herself (in propria persona). Normally the departing attorney and the replacement attorney will both sign the document, agreeing to the substitution, but only the new attorney need agree, since a party may replace counsel at any time.

 

succession 
n. the statutory rules of inheritance of a dead person's estate when the property is not given by the terms of a will, also called laws of "descent and distribution."

 

successive sentences 
n. in criminal law, the imposition of the penalty for each of several crimes, one after the other, as compared to "concurrent sentences" (at the same time). Example: Anthony has been found guilty of manslaughter, assault with a deadly weapon and armed robbery, for which the maximum sentences are 15 years, 10 years and 10 years, respectively. By imposing successive sentences, the judge adds the terms together and sentences convict to 35 years. Had the judge made the sentences concurrent, the maximum total would be 15 years.

 

suffering 
n. the pain, hurt, inconvenience, embarrassment and/or inability to perform normal activities as a result of injury, usually in the combination "pain and suffering," for which a person injured by another's negligence or wrongdoing may recover "general damages" (a money amount not based on specific calculation like medical bills but as compensation for the suffering which is subjective and based on the empathy of the trier of the facts - jury or judge sitting without a jury).

 

sui generis 
(sooh-ee jen-ur-iss) n. Latin for "one of a kind," unique.

 

suicide 
n. the intentional killing of oneself. Ironically, its a crime, but if successful there is no one to punish. However, attempted suicide can be a punishable crime (seldom charged against one surviving the attempt). "Assisted suicide" is usually treated as a crime, as a form of homicide (second degree murder or manslaughter), even when done as a kindness to a loved one who is terminally ill and in great pain.

 

suit 
n. generic term for any filing of a complaint (or petition) asking for legal redress by judicial action, often called a "lawsuit." In common parlance a suit asking for a court order for action rather than a money judgment is often called a "petition," but technically it is a "suit in equity".

 

sum certain 
n. a specific amount stated in a contract or negotiable instrument (like a promissory note) at the time the document is written. A sum certain does not require future calculation or the awaiting of future happenings. 

 

summary adjudication of issues 
n. a court order ruling that certain factual issues are already determined prior to trial. This summary adjudication is based upon a motion by one of the parties contending that these issues are settled and need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact by the opposing party and other discovery, as well as a legal argument (points and authorities). The other party may respond by counter-declarations and legal arguments attempting to show that these issues were "triable issues of fact." If there is any question as to whether there is conflict on the facts on an issue, the summary adjudication must be denied regarding that matter. The theory behind this summary process is to reduce the number of factual questions which will require evidence at trial and eliminate one or more causes of action in the complaint or conversely find a judgment for plaintiff. The motion for summary adjudication of issues often accompanies the broader motion for summary judgment, which can result in judgment on the entire complaint or some causes of action before the trial starts. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom such a motion is made.

 

summary judgment 
n. a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are "triable issues of fact." If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action. The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made.

 

summation 
n. the final argument of an attorney at the close of a trial in which he/she attempts to convince the judge and/or jury of the virtues of the client's case. 

 

summons 
n. a document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff's attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of summons and complaint is to be filled out and signed by the process server. A copy of the summons must be served on each defendant at the same time as the complaint to start the time running for the defendant to answer. Certain writs and orders to show cause are served instead of a summons since they contain the same information along with special orders of the court. After service to the defendants, the original summons, along with the "return of service" proving the summons and complaint were served, is filed with the court to show that each defendant was served. A summons differs from a subpena, which is an order to a witness to appear.

 

supersedeas 
(sooh-purr-said-ee-uhs) Latin for "you shall desist," an order (writ) by an appeals court commanding a lower court not to enforce or proceed with a judgment or sentence pending the decision on the appeal or until further order of the appeals court.

 

superseding cause 
n. the same as an "intervening cause" or "supervening cause," which is an event which occurs after the initial act leading to an accident and substantially causes the accident. The superseding cause relieves from responsibility (liability) the party whose act started the series of events which led to the accident, since the original negligence is no longer the proximate cause

 

supplemental 
adj. referring to anything that is added to complete something, particularly a document, such as a supplemental declaration, supplemental complaint, supplemental answer, supplemental claim.

 

suppression of evidence 
n. 1) a judge's determination not to allow evidence to be admitted in a criminal trial because it was illegally obtained or was discovered due to an illegal search. 2) the improper hiding of evidence by a prosecutor who is constitutionally required to reveal to the defense all evidence. Such suppression is a violation and may result in dismissal, mistrial or reversal on appeal, as well as contempt of court for the prosecutor.

 

supra 
(sooh-prah) Latin for "above," in legal briefs and decisions it refers to the citation of a court decision which has been previously mentioned.

 

supreme court 
n. the highest court in the Country, which has the ultimate power to decide constitutional questions and other appeals based on the jurisdiction granted by the Constitution, including cases based on statutes, between citizens of different states, and when the government is a party. The Chief Justice is appointed by the President.

 

surcharge 
n. an additional charge of money made because it was omitted in the original calculation or as a penalty, such as for being late in making a payment.

 

surety 
n. a guarantor of payment or performance if another fails to pay or perform, such as a bonding company which posts a bond for a guardian, an administrator or a building contractor. Most surety agreements require that a person looking to the surety (asking for payment) must first attempt to collect or obtain performance from the responsible person or entity.

 

surplusage 
n. a term used in analyzing legal documents and pleadings to refer to wording or statements which have no legal effect and, therefore, can be ignored.

 

surrebutal 
n. in written or oral legal argument, the response to the other party's response (rebuttal) to the initial argument. In written briefs most courts will not allow more than a single surrebutal. The rule is usually the same for oral argument. However, occasionally the parties joust back and forth until the judge stops the debate.

 

surrender 
v. 1) to turn over possession of real property, either voluntarily or upon demand, by tenant to landlord. 2) to give oneself up to law enforcement officials.

 

surrogate 
n. a person acting on behalf of another or a substitute, including a woman who gives birth to a baby of a mother who is unable to carry the child.

 

survivor 
n. a person who outlives another, as in "to my sons, Amit and Anand or the survivor." The survivor is determined at the time the asset or property is received, so if both sons are alive they are both survivors.

 

survivorship 
n. the right to receive full title or ownership due to having survived another person. Survivorship is particularly applied to persons owning real property or other assets, such as bank accounts or stocks, in "joint tenancy." Joint tenancy includes the right of survivorship automatically, except that joint tenancy of a bank account creates only a presumption of survivorship, which might be disproved by evidence that the joint tenancy was only for convenience.

 

suspended sentence 
n. in criminal law, a penalty applied by a judge to a defendant convicted of a crime which the judge provides will not be enforced (is suspended) if the defendant performs certain services, makes restitution to persons harmed, stays out of trouble or meets other conditions. Should the sentenced party fail to follow these requirements, then the suspended sentence may be enforced.

 

sustain 
v. in trial practice, for a judge to agree that an attorney's objection, such as to a question, is valid. Thus, an attorney asks a witness a question, and the opposing lawyer objects, saying the question is "irrelevant, immaterial and incompetent," "leading," "argumentative," or some other objection. If the judge agrees he/she will rule "sustained," meaning the objection is approved and the question cannot be asked or answered. However, if the judge finds the question proper, he/she will "overrule" the objection.

 

swear 
v. 1) to declare under oath that one will tell the truth (sometimes "the truth, the whole truth and nothing but the truth"). Failure to tell the truth and do so knowingly is the crime of perjury. 2) to administer an oath to a witness that he/she will tell the truth, which is done by a notary public, a court clerk, a court reporter or anyone authorized by law to administer oaths. 3) to install into office by administering an oath. 4) to use profanity.

 

swindle 
v. to cheat through trick, device, false statements or other fraudulent methods with the intent to acquire money or property from another to which the swindler is not entitled. Swindling is a crime as one form of theft.

 

syndicate 
n. a joint venture among individuals and/or corporations to accomplish a particular business objective, such as the purchase, development and sale of a tract of real property, followed by division of the profits. A joint venture, and thus a syndicate, is much like a partnership, but has a specific objective or purpose, after the completion of which it will dissolve.

 

T

t.r.o. 
n. legal slang for temporary restraining order. 

 

tainted evidence 
n. in a criminal trial, information which has been obtained by illegal means or has been traced through evidence acquired by illegal search and/or seizure. This evidence is called "fruit of the poisonous tree" and is not admissible in court.

 

take 
v. to gain or obtain possession, including the receipt of a legacy from an estate, getting title to real property or stealing an object.

 

tangible property 
n. physical articles (things) as distinguished from "incorporeal" assets such as rights, patents, copyrights and franchises. Commonly tangible property is called "personalty."

 

tax 
n. a governmental assessment (charge) upon property value, transactions (transfers and sales), licenses granting a right and/or income. These include central and state income taxes, taxes on real property, state and/or local sales tax based on a percentage of each retail transaction, duties on imports from foreign countries, business licenses, taxes on large gifts and a state "use" tax in lieu of sales tax imposed on certain goods bought outside of the state.

 

tax costs 
n. a motion to contest a claim for court costs submitted by a prevailing party in a lawsuit. It is called a "Motion to Tax Costs" and asks the judge to deny or reduce claimed costs. Example: a winning party claims a right to have his/her attorneys' fees and telephone bills paid by the loser, even though they are not allowable as costs under state law or the contract which was the subject of the suit. So the loser makes a "Motion to Tax Costs" to avoid paying these charges.

 

tax evasion 
n. intentional and fraudulent attempt to escape payment of taxes in whole or in part. If proved to be intentional and not just an error or difference of opinion, tax evasion can be a chargeable crime. Evasion is distinguished from attempts to use interpretation of tax laws and/or imaginative accounting to reduce the amount of payable tax.

 

tax return 
n. the form to be filed with a taxing authority by a taxpayer which details his/her/their income, expenses, exemptions, deductions and calculation of taxes which are chargeable to the taxpayer.

 

tax sale 
n. an auction sale of a taxpayer's property conducted by the government to collect unpaid taxes. 

 

temporary injunction 
n. a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. A temporary injunction differs from a "temporary restraining order" which is a short-term, stop-gap injunction issued pending a hearing, at which time a temporary injunction may be ordered to be in force until trial. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or change before the legal questions are determined. After the trial the court may issue a "permanent injunction" (making the temporary injunction a lasting rule) or "dissolve" (cancel) the temporary injunction.

 

temporary insanity 
n. in a criminal prosecution, a defense by the accused that he/she was briefly insane at the time the crime was committed and therefore was incapable of knowing the nature of his/her alleged criminal act. Temporary insanity is claimed as a defense whether or not the accused is mentally stable at the time of trial. One difficulty with a temporary insanity defense is the problem of proof, since any examination by psychiatrists had to be after the fact, so the only evidence must be the conduct of the accused immediately before or after the crime. It is similar to the defenses of "diminished capacity" to understand one's own actions, the so-called "Twinkie defense," the "abuse excuse," "heat of passion" and other claims of mental disturbance which raise the issue of criminal intent based on modern psychiatry and/or sociology. However, mental derangement at the time of an abrupt crime, such as a sudden attack or crime of passion, can be a valid defense or at least show lack of premeditation to reduce the degree of the crime.

 

tenancy 
n. the right to occupy real property permanently, for a time which may terminate upon a certain event, for a specific term, for a series of periods until cancelled (such as month-to-month), or at will (which may be terminated at any time). Some tenancy is for occupancy only as in a landlord-tenant situation, or a tenancy may also be based on ownership of title to the property.

 

tenancy at sufferance 
n. a "hold-over" tenancy after a lease has expired but before the landlord has demanded that the tenant quit (vacate) the premises. During a tenancy at sufferance the tenant is bound by the terms of the lease (including payment of rent) which existed before it expired. The only difference between a "tenancy at sufferance" and a "tenancy at will" is that the latter was created by agreement.

 

tenancy at will 
n. occupation of real property owned by another until such time as the landlord gives notice of termination of the tenancy, which may be given at any time. A tenancy at will is created by agreement between the tenant and the landlord, but it cannot be transferred by the tenant to someone else since the landlord controls the right to occupy.

 

tenancy by the entirety 
n. joint ownership of title by husband and wife, in which both have the right to the entire property, and, upon the death of one, the other has title (right of survivorship).

 

tenancy in common 
n. title to property (usually real property, but it can apply to personal property) held by two or more persons, in which each has an "undivided interest" in the property and all have an equal right to use the property, even if the percentage of interests are not equal or the living spaces are different sizes. Unlike "joint tenancy," there is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. Thus, unlike a joint tenancy interest, which passes automatically to the survivor, upon the death of a tenant in common there must be a probate of the estate of the deceased to transfer the interest (ownership) in the tenancy in common.

 

tenant 
n. a person who occupies real property owned by another based upon an agreement between the person and the landlord/owner, almost always for rental payments.

 

tender 
1) v. to present to another person an unconditional offer to enter into a contract. 2) v. to present payment to another. 3) n. delivery, except that the recipient has the choice not to accept the tender. However, the act of tender completes the responsibility of the person making the tender.

 

tenement 
n. 1) a term found in older deeds or in boiler-plate deed language which means any structure on real property. 2) old run-down urban apartment buildings with several floors reached by stairways. 

 

tentative trust 
n. a bank account deposited in the name of the depositor "in trust for" someone else, which is a tentative trust until the death of the depositor since the money can be withdrawn at any time.

 

tenure 
n. 1) in real property, the right to possess the property. 2) in employment contracts, particularly of public employees like school teachers or professors, a guaranteed right to a job (barring substantial inability to perform or some wrongful act) once a probationary period has passed.

 

term 
n. 1) in contracts or leases, a period of time, such as five years, in which a contract or lease is in force. 2) in contracts, a specified condition or proviso. 3) a period for which a court sits or a legislature is in session. 4) a word or phrase for something, as "tenancy" is one term for "occupancy."

 

testacy 
n. dying with a will (a testament). It is compared to "intestacy," which is dying without a will.

 

testamentary 
adj. pertaining to a will. 

 

testamentary capacity 
n. having the mental competency to execute a will at the time the will was signed and witnessed. To have testamentary capacity, the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other "natural objects of his/her bounty." Inherent in that capacity is the ability to resist the pressures or domination of any person who may try to use undue influence on the distribution of the testator's (will writer's) estate.

 

testamentary disposition 
n. how the terms of a will divide the testator's (will writer's) estate, including specific gifts to named beneficiaries.

 

testamentary trust 
n. a trust created by the terms of a will. Example: "The residue of my estate shall form the corpus (body) of a trust, with the executor as trustee, for my children's health and education, which shall terminate when the last child attains the age of 25, when the remaining corpus and any accumulated profits shall be divided among my then living children." A testamentary trust differs from an "inter vivos" or "living" trust, which comes into being during the lifetime of the creator of the trust (called trustor, settlor or donor), usually from the time the declaration of trust is signed.

 

testator 
n. a person who has written a will which is in effect at the time of his/her death. 

 

testatrix 
n. female form of testator, although distinguishing between genders is falling out of fashion.

 

testify 
v. to give oral evidence under oath in answer to questions posed by attorneys either at trial or at a deposition (testimony under oath outside of court), with the opportunity for opposing attorneys to cross-examine the witness in regard to answers given.

 

testimony 
n. oral evidence given under oath by a witness in answer to questions posed by attorneys at trial or at a deposition (questioning under oath outside of court). 

 

theft 
n. the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker's use (including potential sale). Theft is synonymous with "larceny." Although robbery (taking by force), burglary (taken by entering unlawfully) and embezzlement (stealing from an employer) are all commonly thought of as theft, they are distinguished by the means and methods used and are separately designated as those types of crimes in criminal charges and statutory punishments.

 

third party 
n. a person who is not a party to a contract or a transaction, but has an involvement (such as one who is a buyer from one of the parties, was present when the agreement was signed or made an offer that was rejected). The third party normally has no legal rights in the matter, unless the contract was made for the third party's benefit.

 

third-party beneficiary 
n. a person who is not a party to a contract but has legal rights to enforce the contract or share in proceeds because the contract was made for the third party's benefit. 

 

thirty-day notice 
n. a notice by a landlord to a tenant on a month-to-month tenancy or a holdover tenant to leave the premises within 30 days. Such notice does not have to state any reason and is not based on failure to pay rent. The landlord's service of the notice and the tenant's failure to vacate at the end of 30 days provide the basis for a lawsuit for unlawful detainer (eviction) and a court judgment ordering the tenant to leave. While this is a common notice period, it does not apply in all states or all circumstances, such as local rent control ordinances.

 

three-day notice 
n. a notice to pay delinquent rent or quit (leave or vacate) the premises given by a landlord to a tenant, which gives the tenant three days to pay or get out. Service of the notice and failure of the tenant to pay or vacate within three days provide the basis for a lawsuit for unlawful detainer (eviction) for unpaid rent and a court judgment ordering the tenant to leave.

 

tide lands 
n. land between the high and low tides, which is uncovered each day by tidal action. This land belongs to the owner of the land which fronts on the sea at that point.

 

time is of the essence 
n. a phrase often used in contracts which in effect says: the specified time and dates in this agreement are vital and thus mandatory, and "we mean it." Therefore any delay-reasonable or not, slight or not-will be grounds for cancelling the agreement.

 

time served 
n. the period a criminal defendant has been in jail, often while awaiting bail or awaiting trial. Often a judge will give a defendant "credit for time served," particularly when sentencing for misdemeanors.

 

timely 
adj. within the time required by statute, court rules or contract. Example: a notice of appeal is required to be filed within 60 days of the entry of judgment, so a notice filed on the 61st day is not "timely."

 

title 
n. 1) ownership of real property or personal property, which stands against the right of anyone else to claim the property. In real property, title is evidenced by a deed, judgment of distribution from an estate or other appropriate document recorded in the public records of the county. Title to personal property is generally shown by possession, particularly when no proof or strong evidence exists showing that the property belongs to another or that it has been stolen or known to be lost by another. 2) the name for one's position in a business or organization, such as president, general manager, mayor, governor, managing director. 3) the name for a legal case, such as Orient taxi company v. Citi cab company, which is part of the "caption" of the case.

 

title abstract 
n. a history of the chain of title. 

 

title insurance 
n. a policy issued by an insurance company guaranteeing that the title to a parcel of real property is clear and properly in the name of the title owner and that the owner has the right to deed the property (convey or sell) to another. Should a problem later arise with the title (such as an inaccurate description), the insurance company will pay the damages to the new title holder or secured lender or take steps to correct the problem.

 

title report 
n. the written analysis of the status of title to real property, including a property description, names of titleholders and how title is held (joint tenancy, etc.), tax rate, encumbrances (mortgages, deeds of trusts, recorded judgments), and real property taxes due. A title report made when the report is ordered is called a "preliminary report," or a "prelim," and at time of recording an up-to-date report is issued which is the final title report. The history of the title is called an "abstract." A title report is prepared by a title company, an abstractor, an attorney or an escrow company, depending on local practice. Normally a title report's accuracy is insured by title insurance which will require the insurance company to either correct any error or pay damages resulting from a "cloud on title," encumbrance or title flaw in the title which was not reported.

 

title search 
n. the examination of county records for the property's title history by a title company, an abstractor, attorney or escrow officer to determine the "chain of title" and the current status of title, including owner, legal description, easements, property taxes due, encumbrances (mortgages or deeds of trust), long-term leases, judgments. When a title search is completed, a "preliminary report" on title will be issued by the searcher. On the recording date of any new transfer or encumbrance (such as a new secured loan), an updated "final title report" will be issued which will make it possible to obtain title insurance guaranteeing against any problems with the title. Sometimes the title search will turn up some "cloud on the title" which reveals something is wrong, such as a break in the chain of title, inaccurate property description in a previous deed or some old secured loan which has not been released. Such clouds can be a reason to cancel a contract for purchase of the real property.

 

to wit 
prep. that is to say. Example: "the passengers in the vehicle, to wit: Naveen, Riya and Teena."

 

toll 
v. 1) to delay, suspend or hold off the effect of a statute. 2) a charge to pass over land, use a toll road or turnpike, cross a bridge or take passage on a ferry.

 

tontine 
n. a rare agreement among several persons who agree that each will invest in an annuity and the last to die will receive the remaining assets and profits. 

 

tools of trade 
n. in bankruptcy law, the equipment a person requires in order to pursue his occupation, which is exempt from claims of creditors. They are also generally exempt from attachment by judgment creditors since it is important for a person to earn an income to support the family and pay creditors.

 

tort 
n. from French for "wrong," a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as well.

 

tort act 
n. a act which, under certain conditions, waives governmental immunity and allows lawsuits by people who claim they have been harmed by torts (wrongful acts), including negligence, by government agencies or their employees. These acts also establish the procedure by which such claims are made.

 

tortfeasor 
n. a person who commits a tort (civil wrong), either intentionally or through negligence.

 

tortious 
adj. referring to an act which is a tort (civil wrong). 

 

trade 
1) n. a business or occupation for profit, particularly in retail or wholesale sales or requiring special mechanical skill. 2) v. to exchange one thing for another, which includes money for goods, goods for goods and favors for goods or money.

 

trade fixture 
n. a piece of equipment on or attached to the real estate which is used in a trade or business. Trade fixtures differ from other fixtures in that they may be removed from the real estate (even if attached) at the end of the tenancy of the business, while ordinary fixtures attached to the real estate become part of the real estate. The business tenant must compensate the owner for any damages due to removal of trade fixtures or repair such damage.

 

trade name 
n. a name of a business or one of its products which, by use of the name and public reputation, identifies the product as that of the business. A trade name belongs to the first business to use it, and the identification and reputation give it value and the right to protect the trade name against its use by others. 

 

trade secret 
n. a process, method, plan, formula or other information unique to a manufacturer, which gives it an advantage over competitors. Therefore the trade secret has value and may be protected by a court-ordered injunction against use or revelation of trade secrets by an employee, former employee or someone who comes into possession of the trade secret. The employer may seek damages against such a person for revealing the secret. In addition, the owner of a trade secret involved in a lawsuit may request a "protective order" from the judge to prohibit revelation of a trade secret or a sealing of the record in the case where references to the trade secret are made. A trade secret is a business process and not a patentable invention.

 

trademark 
n. a distinctive design, picture, emblem, logo or wording (or combination) affixed to goods for sale to identify the manufacturer as the source of the product. Words that merely name the maker (but without particular lettering) or a generic name for the product are not trademarks. Use of another's trademark (or one that is confusingly similar) is infringement and the basis for a lawsuit for damages for unfair competition and/or a petition for an injunction against the use of the infringing trademark.

 

trader 
a person who deals in property as a business, making several purchases and sales within a year as distinguished from a few sales of assets held for investment. Thus a trader will lose the right to defer capital gains by "exchanging" for another property.

 

transcript 
n. the written record of all proceedings, including testimony, in a trial, hearing or deposition (out-of-court testimony under oath). 

 

transfer 
n. 1) the movement of property from one person or entity to another. 2) passage of title to property from the owner to another person. 3) a piece of paper given to allow a person or shipment to continue travel. 

 

transfer agent 
n. a person or company retained by a corporation to process transfers and registration of shares of stock (stock certificates). One difficulty is that the stock certificates do not always include the name and address of the current transfer agent, but the information can be obtained from the corporation or a stockbroker.

 

transfer in contemplation of death 
n. giving property under the belief of the giver that he/she is about to die or has a terminal illness. However, health recovery may result in cancellation of the gift. This is also called a "gift causa mortis."

 

transferred intent 
n. in both criminal and tort (civil wrong) law, when an intent to cause harm to one person results in harm to another person instead of the intended target, the law transfers the intent to the actual harm. 

 

treason 
n. the crime of betraying one's country Treason can include revealing to an antagonistic country secrets such as the design of a bomber being built by a private company for the Defense Department. Treason may include "espionage" (spying for a foreign power or doing damage to the operation of the government and its agencies, particularly those involved in security) but is separate and worse than "sedition," which involves a conspiracy to upset the operation of the government.

 

treaty 
n. a pact between nations 

 

trespass 
n. entering another person's property without permission of the owner or his/her agent and without lawful authority and causing any damage, no matter how slight. Any interference with the owner's (or a legal tenant's) use of the property is a sufficient showing of damage and is a civil wrong (tort) sufficient to form the basis for a lawsuit against the trespasser by the owner or a tenant using the property. Trespass includes erecting a fence on another's property or a roof which overhangs a neighbor's property, swinging the boom of a crane with loads of building materials over another's property, or dumping debris on another's real estate. In addition to damages, a court may grant an injunction prohibiting any further continuing, repeated or permanent trespass. Trespass for an illegal purpose is a crime.

 

trial 
n. the examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if one has been requested. Each party is entitled to an opening statement by his/her attorney (or the party if he/she is representing himself/herself), limited to an outline of what each side intends to prove (the defense may withhold the opening statement until the defense is ready to present evidence), followed by the presentation of evidence first by the plaintiff (in a civil case) or prosecution (in a criminal case), followed by the defense evidence, and then by rebuttal evidence by the plaintiff or prosecution to respond to the defense. At the conclusion of all evidence each attorney (plaintiff or prosecution first) can make a final argument which can include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case, based on "jury instructions" submitted by the attorneys and approved, rejected, modified and/or added to by the judge. Then the jury retires to the jury room, chooses a foreperson and decides the factual questions. If there is no jury, the judge will determine legal issues and decide factual questions and render (give) a judgment. A jury will judge the factual issues and decide the verdict based on the law as given in the instructions by the judge. Final verdict or judgment usually concludes the trial, although in some criminal cases a further trial will be held to determine "special circumstances" (acts which will increase the punishment) or whether the death penalty should be imposed. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge's chambers. In most criminal cases the exact punishment will be determined by the judge at a hearing held at a later time.

 

trial court 
n. the court which holds the original trial, as distinguished from a court of appeals.

 

trial de novo 
n. a form of appeal in which the appeals court holds a trial as if no prior trial had been held. A trial de novo is common on appeals from small claims court judgments. 

 

tribunal 
n. any court, judicial body or board which has quasi-judicial functions, such as a public utilities board which sets rates or a planning commission which can allow variances from zoning regulations.

 

trier of fact 
n. the judge or jury responsible for deciding factual issues in a trial. If there is no jury the judge is the trier of fact as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission or referee may be the trier of fact.

 

triple net lease 
n. a lease in which the lessee's (tenant's) rent includes a share of real property taxes, insurance and maintenance as well as the basic rent. A "triple-net-lease" is standard in leases of commercial property in shopping centers and malls.

 

true bill 
n. the written decision of a Grand Jury (signed by the Grand Jury foreperson) that it has heard sufficient evidence from the prosecution to believe that an accused person probably committed a crime and should be indicted. Thus, the indictment is sent to the court.

 

trust 
n. an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust). Most trusts are founded by the persons (called trustors, settlors and/or donors) who execute a written declaration of trust which establishes the trust and spells out the terms and conditions upon which it will be conducted. The declaration also names the original trustee or trustees, successor trustees or means to choose future trustees. The assets of the trust are usually given to the trust by the creators, although assets may be added by others. During the life of the trust, profits and, sometimes, a portion of the principal (called "corpus") may be distributed to the beneficiaries, and at some time in the future (such as the death of the last trustor or settlor) the remaining assets will be distributed to beneficiaries. A trust may take the place of a will and avoid probate (management of an estate with court supervision) by providing for distribution of all assets originally owned by the trustors or settlors upon their death. There are numerous types of trusts, including "revocable trusts" created to handle the trustors' assets (with the trustor acting as initial trustee), often called a "living trust" or "inter vivos trust" which only becomes irrevocable on the death of the first trustor; "irrevocable trust," which cannot be changed at any time; "charitable remainder unitrust," which provides for eventual guaranteed distribution of the corpus (assets) to charity, thus gaining a substantial tax benefit. There are also court-decreed "constructive" and "resulting" trusts over property held by someone for its owner. A "testamentary trust" can be created by a will to manage assets given to beneficiaries.

 

trust deed 
n. another name for a deed of trust, in which title is transferred to a trustee to protect the lender (beneficiary) until the loan is paid back.

 

trust fund 
n. the principal (called the corpus) of a trust, made up of its assets and, sometimes, accumulated profits.

 

trustee 
n. a person or entity who holds the assets (corpus) of a trustee for the benefit of the beneficiaries and manages the trust and its assets under the terms of the trust stated in the declaration of trust which created it. In many "living trusts" the creator of the trust (trustor, settlor) names himself/herself (or themselves) as the original trustee who will manage the trust until his/her death when it is taken over by a successor trustee. In some trusts, such as a "charitable remainder unitrust," the trustee must be independent and therefore cannot be the creator of the trust. If a trustee has title to property, he/she/it holds title only for the benefit of the trust and its beneficiaries.

 

trustor 
n. the creator of a trust (who normally places the original assets into the trust), also called a "settlor" or "donor". 

 

turn states' evidence 
v. for a person accused of a crime to decide to give the prosecutor evidence about the crime, including facts about other participants in the crime (or other crimes) in return for lenient treatment, a plea bargain and/or a recommendation of a light sentence.

 

U

ultimate fact 
n. in a trial, a conclusion of fact which is logically deduced from evidence ("evidentiary facts"). Example: the evidentiary facts were that driver Nitin Singh a) exceeded the speed limit, b) drove over the double-line, c) skidded and lost control of his car; the ultimate fact was, therefore, Nitin was negligent. It is essential to introduce the evidentiary facts during the trial in order to prove the ultimate fact. A mere statement by a witness that "Nitin was negligent" is not sufficient, since it is an opinion of the witness and is not evidence.

 

ultra vires 
(uhl-trah veye-rehz) adj. Latin for "beyond powers," in the law of corporations, referring to acts of a corporation and/or its officers outside the powers and/or authority allowed a corporation by law. Example: Directors of ABC Corporation, operate a small bank for its employees and friends, which corporate law does not permit without a bank charter, or sells shares of stock to the public before a permit is issued.

 

ultrahazardous activity 
n. an action or process which is so inherently dangerous that the person or entity conducting the activity is "strictly liable" for any injury caused by the activity. Examples: working with high explosives or conducting a professional auto race on public streets.

 

unclean hands 
n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Rakesh Sharma sues Ajay Rathore for breach of contract for failure to pay the full amount for construction of an addition to his house. Ajay proves that Rakesh had shown him faked estimates from subcontractors to justify his original bid to Ajay.

 

unconscionable 
adj. referring to a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated, on the theory that he/she was misled, lacked information or signed under duress or misunderstanding. It is similar to an "adhesion contract," in which one party has taken advantage of a person dealing from weakness.

 

unconstitutional 
adj. referring to a statute, governmental conduct, court decision or private which violate one or more provisions of the Constitution.

 

under the influence 
n. one of many phrases for being drunk on alcoholic beverages or high on drugs or a combination of alcohol and drugs. Driving a vehicle when "under the influence" of alcohol or drugs is a crime, as is "public drunkenness."

 

underwrite 
v. 1) to agree to pay an obligation which may arise from an insurance policy. 2) to guarantee purchase of all shares of stock or bonds being issued by a corporation, including an agreement to purchase by the underwriter if the public does not buy all the shares or bonds. 3) to guarantee by investment in a business or project

 

underwriter 
n. a company or person which/who underwrites an insurance policy, issue of corporate securities, business or project.

 

undisclosed principal 
n. a person who uses an agent for his/her negotiations with a third party, often when the agent pretends to be acting for himself/herself. As a result, the third party does not know he/she can look to the real principal in any dispute.

 

undivided interest 
n. title to real property held by two or more persons without specifying the interests of each party by percentage or description of a portion of the real estate. Such interests are typical between joint tenants, tenants in common and tenants by the entirety.

 

undue influence 
n. the amount of pressure which one uses to force someone to execute a will leaving assets in a particular way, to make a direct gift while alive or to sign a contract. The key element is that the influence was so great that the testator (will writer), donor (gift giver) or party to the contract had lost the ability to exercise his/her judgment and could not refuse to give in to the pressure. Evidence of such dominance of another's mind may result in invalidation of the will, gift or contract by a court if the will, gift or contract is challenged. Participation in preparation of the will, excluding other relatives being present when the testator and the attorney meet, are all evidence of undue pressure, and an imbalance or change in language which greatly favors the person exercising the influence is a factor in finding undue influence. Example: Paul Cherian constantly visits his aunt Anita George while she is ill and always urges her to leave her mansion to him instead of to her son. Paul threatens to stop visiting the old lady, who is very lonely, tells her she is ungrateful for his attention, finally brings over an attorney who does not know Anita and is present while she tells the attorney to write a new will in favor of Paul.

 

unfair competition 
n. wrongful and/or fraudulent business methods to gain an unfair advantage over competitors, including: a) untrue or misleading advertising, b) misleading customers by imitative trademark, name or package, c) falsely disparaging another's product. Unfair competition is the basis for a legal action (suit) for damages and/or an injunction to halt the deceptive practices against an unfair competitor if the practices tend to harm one's business.

 

uniform commercial code 
n. a set of statutes governing the conduct of business, sales, warranties, negotiable instruments, loans secured by personal property and other commercial matters, which has been adopted with minor variations.

 

unilateral contract 
n. an agreement to pay in exchange for performance, if the potential performer chooses to act. A "unilateral" contract is distinguished from a "bilateral" contract, which is an exchange of one promise for another. 

 

uninsured motorist clause 
n. the clause in a policy of insurance on an automobile which provides that if the owner (or a passenger) of the automobile is injured by a negligent driver of another vehicle who does not have liability insurance, then the insurance company will pay its insured's actual damages.

 

unissued stock 
n. a corporation's shares of stock which are authorized by its articles of incorporation but have never been issued (sold) to anyone. They differ from "treasury stock," which is stock that was issued and then reacquired by the corporation.

 

unjust enrichment 
n. a benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. If the money or property received rightly should have been delivered or belonged to another, then the party enriched must make restitution to the rightful owner. Usually a court will order such restitution if a lawsuit is brought by the party who should have the money or property.

 

unlawful 
adj. referring to any action which is in violation of a statute or constitution, or established legal precedents

 

unlawful assembly 
n. the act of assembling for the purpose of starting a riot or breaching the peace or when such an assembly reasonably could be expected to cause a riot or endanger the public. 

 

unlawful detainer 
n. 1) keeping possession of real property without a right, such as after a lease has expired, after being served with a notice to quit (vacate, leave) for non-payment of rent or other breach of lease, or being a "squatter" on the property. Such possession entitles the owner to file a lawsuit for "unlawful detainer," asking for possession by court order, unpaid rent and damages. 2) a legal action to evict a tenant or other occupier of real property in possession, without a legal right, to declare a breach of lease, and/or a judgment for repossession, as well as unpaid rent and other damages. Such lawsuits have priority over most legal cases and therefore will be calendared for trial promptly.

 

unreasonable search and seizure 
n. search of an individual or his/her premises (including an automobile) and/or seizure of evidence found in such a search by a law enforcement officer without a search warrant and without "probable cause" to believe evidence of a crime is present. 

 

use 
n. the right to enjoy the benefits of real property or personal property (but primarily used in reference to real property), whether the owner of the right has ownership of title or not. Under English common law "use" of property became extremely important since title to real property could not be conveyed outside a family line due to "restraints on alienation," so "use" of the property was transferred instead. This is a simplification of the way "uses" were employed, but today it is only of academic interest.

 

usurious 
adj. referring to the interest on a debt which exceeds the maximum interest rate allowed by law. 

 

usury 
n. a rate of interest on a debt which is exorbitant and in excess of the percentage allowed by law. Courts will not enforce payment of interest on a loan if the rate is usurious, so a loan may result in being interest free. Charging usury as a practice is a crime, usually only charged if a person makes a business of usury, sometimes called "loan-sharking." 

 

utter 
v. 1) to issue a forged document. 2) to speak. 

 

uxor 
n. Latin for "wife." In deeds and documents the term "et ux." is sometimes used to mean "and wife," stemming from a time when a wife was a mere legal appendage of a man and not worthy of being named.