Pain and suffering
The physical and mental distress which is suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression and embarrassment from scarring, all of which are part of the "general damages" recoverable by someone injured by another's negligence or intentional attack. The monitory value of damages for pain and suffering is subjective, as distinguished from medical bills, future medical costs and lost wages which can be calculated, called "special damages."
A substitute for alimony in cases in which the couple were not married but lived together for a long period and then cancelled their relationship. The key issue is whether there was an agreement that one partner would support the other in return for the second making a home and performing other domestic duties beyond sexual pleasures. Written palimony contracts are rare, but the courts have found "implied" contracts, when a woman has given up her career, managed the household or assisted in the man's business for a lengthy period of time. The line between a mutual "affair" and a relationship warranting palimony is a difficult one which must be decided on a case by case basis. Palimony suits may be avoided by contracts written prior to or during the relationship.
A) A pimp, who procures customers for a prostitute or lures a woman into prostitution, all for his own profit. B) Catering to special interests without any principles, such as a politician who says to whatever group he/she is addressing just what they want to hear to win their support, contributions or favors. C) To solicit customers for a prostitute.
A) Some politicians catering to special interests. B) A person who panders or solicits for a prostitute.
The list of person who are selected to appear for jury duty.
A person who criminally writes and cashes "bad" checks on accounts he/she either does not have or which have no money in them.
A) An equal level. B) The face value of a stock or bond, which is printed on the certificate, which is the amount the original purchaser paid the issuing corporation. However, most common stocks are issued as "no-par value," and the value reflects the current market for the stock. Preferred stocks state a par value upon which the dividends are calculated, and the par value of bonds establishes the final pay-off amount upon maturity, usually many years in the future.
A non-lawyer who performs routine tasks requiring some knowledge of the law and procedures and who is employed by a law office or works free-lance as an independent for various lawyers. Usually paralegals have taken a prescribed series of courses in law and legal processes, which is much less demanding than those required for a licensed attorney. Paralegals are increasingly popular, often handling much of the paperwork in probates of estates, divorce actions, bankruptcies, investigations, analyzing depositions, preparing and answering interrogatories and procedural motions and other specialized jobs.
A right to real property which prevails over any other person's claim of title.
A) A package. B) A defined piece of real estate, usually resulting from the division of a large area of land. It can range in size from a small lot to a gigantic ranch.
The executive power of a Governor or President to forgive a person convicted of a crime. Thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime for which the pardon was given. A pardon strikes the conviction from the books as if it had never occurred, and the convicted person is treated as innocent. Sometimes pardons are given to an older rehabilitated person long after the sentence has been served to clear his/her record. However, a pardon can also terminate a sentence and free a prisoner when the chief executive is convinced there is doubt about the guilt or fairness of the trial, the party is rehabilitated and has performed worthy public service, or there are humanitarian reasons such as terminal illness. A pardon is different from "a commutation of sentence" which cuts short the term; "a reprieve," which is a temporary halt to punishment, particularly the death penalty, pend- ing appeal or determination of whether the penalty should be reduced; "amnesty," which is a blanket "forgetting" of possible criminal charges due to a change in public circumstances (such as the end of a war or the draft system); or a "reduction in sentence," which shortens a sentence and can be granted by a judge or an executive.
(paa-rens pat-tree-eye) In Latin it is similar for "father of his country," the term for the doctrine that the government is the ultimate guardian of all people under a disability, especially children, whose care is only "entrusted" to their parents. Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is eitheen years old, and a judge may change custody, child support or other rulings affecting the child's well-being, no matter what the parents may have agreed or the court previously decided.
The lawful and natural father or mother of a person or child. The word can include an adoptive parent as a replacement for a natural parent but does not mean grandparent or ancestor.
A crime which is consisting of acts or omissions of a parent (including a step-parent, adoptive parent or someone who, in practical terms, serves in a parent's role) which endangers the health and life of a child or fails to take steps necessary for the proper raising of a child. The neglect can include leaving a child alone when he or she needs protection; failure to provide food, clothing, medical attention or education to a child; or placing the child in dangerous or harmful circumstances, including exposing the child to a violent, abusive or sexually predatory person.
A geographic area which is served by a church originally measured by whether people living in the area could walk to the church.
The humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning. Parodies have been challenged as copyright infringements on the original works, particularly since some have reaped terrific profits. Recent decisions favor the parodies and say they have an originality of their own and, thus, are not infringements.
Parol evidence rule
If there is evidence in writing, the terms of the contract cannot be changed by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.
A) A promise by a prisoner of war that if released he will not take up arms again. B) The release of a convicted criminal accused after he/she has completed part of his/her prison sentence, based on the concept that during the period of parole, the released criminal can prove he/she is rehabilitated and can "make good" in society. A parole generally has a specific period and terms such as reporting to a parole officer, not associating with other ex-convicts, and staying out of trouble. Violation of the terms may result in revocation of parole and a return to prison to complete his/her sentence.
Not complete or entire.
The failure to fulfill a term of a contract which is so minimal that it does not cause the contract to fail or justify breach by the other contracting party. A partial breach can be remedied (made up) by a small reduction in payment or other adjustment. Example: a landlord promises to rent an apartment furnished, and when the tenants move in some furnishings are not there. The landlord may lower the rent temporarily until he/she can bring in the missing or expected items.
The result of an injury which permanently reduces a person's ability to function, but still permits some working or other activity. In worker's compensation cases an injured worker is often awarded a percentage rating of permanent partial disability, which will entitle him/her to a money settlement. The percentage payoff is often based on a physician's evaluation of what part of the person's normal functioning is gone.
In a criminal trial, the result when the jury finds the accused guilty of one or more charges but not guilty (or deadlocks) on one or more other charges.
To invest and then receive a part or share, as in business profits, payments on a promissory note, title to land, or as one of the beneficiaries of the estate of a person who has died.
A lawsuit which one co-owner of real property can file to get a Court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. Partition cases are common when co-owners differ on whether to sell, keep or divide the property.
A) One of the co-owners and investors in a "partnership" which is an on-going business enterprise entered into for profit. A "general partner" is responsible for the debts, contracts and actions of all the partners in the business, is an equal in management decisions unless there is an agreement establishing management duties and rights, and shares in the profits and losses based on the percentage of the investment (either in money or effort) in the partnership. A "limited partner" does not share responsibility for debts beyond his/her investment, cannot share in management, and shares in profits based on a written agreement. A "silent partner" is no different from any partner except he/she is not visible to the public and has no part in day-to-day management. B) Slang for "domestic partner," usually two people living together, either homosexual or heterosexual, sharing lives and possessions, but not married.
A business enterprise which is entered into for profit which is owned by more than one person, each of whom is a "partner." A partnership may be created by a formal written agreement, but may be based on an oral agreement or just a handshake. Each partner invests a certain amount (money, assets and/or effort) which establishes an agreed-upon percentage of ownership, is responsible for all the debts and contracts of the partnership even though another partner created the debt or entered into the contract, has a share in management decisions, and shares in profits and losses according to the percentage of the total investment. Often a partnership agreement may provide for certain division of management, shares of investment, profit and/or rights to buy out a partner upon leaving the partnership or death. Each partner owes the other partners a duty of full disclosure of information which affects the business and cannot commandeer for himself/herself business opportunities which rightfully belong to the partnership. A "limited partnership" limits the responsibility for debts beyond the investment to the managing "general partners." The investing "limited partners" cannot participate in management and are limited to specific percentages of profit. A partnership differs from a "joint venture," which involves more than one investor for only a specific short-term project and prompt division of profits.
A) A person or entity which is involved in an agreement. B) A common reference by lawyers to people or entities involved in lawsuits, transactions, contracts or accidents, as in "both parties knew what was expected," "he is a party to the contract," "he was not a party to the criminal conspiracy." C) One of the participants in a lawsuit or other legal proceeding who has an interest in the outcome. Parties include plaintiff (person filing suit), defendant (person sued or charged with a crime), petitioner (files a petition asking for a court ruling), respondent (usually in opposition to a petition or an appeal), cross-complainant (a defendant who sues someone else in the same lawsuit), or cross-defendant (a person sued by a cross-complainant).
Party of the first part
A written contract to identify one of the people entering into the agreement. The agreement would read "Manu (hereinafter called The Party of the First Part)." Better practice is to identify the parties by a short form of their name or as Buyer, Seller, Owner, Trustee or some other useful identification. Name use aids in following and understanding the contract and avoids confusion with "the party of the second part," which identifies another party to the agreement.
Party of the second part
A party to a written contract, as distinguished from "the party of the first part."
A wall which is shared by two adjoining premises which is on the property line, such as in townhouses, condominiums, row houses or two units in a duplex. Both owners are responsible for maintaining structural integrity of the wall, even if the wall is entirely on the property of one of the parties.
A rider who has paid a fare on a bus, train, airline, taxi, ship, ferry, automobile or other carrier in the business of transporting people for a fee. A passenger is owed a duty of care by such a carrier and has a right to sue for damages for injuries suffered while being transported without proof of negligence. One tricky issue is whether a person who has entered the depot, station or airport, but not yet purchased a ticket or has not boarded, is entitled to the rights of a passenger to recover for damages. A passenger without payment of fare who is injured must prove the driver's negligence in a suit for damages.
See also: heat of passion
To being inactive. A "passive trustee" is one who has no responsibilities other than to hold title or wait for an event which would activate the trust. "Passive income" for tax purposes includes any income in which there is no effort or active management, and is treated differently for some purposes. It may include stock dividends, trust profits, rents with no management involvement and interest on bank accounts.
A) Obvious. Used in such expressions as a "patent defect" in an appliance. B) An exclusive right to the benefits of an invention or improvement which is granted by the Patent Office, for a specific period of time, on the basis that it is novel, "non-obvious" (a form which anyone in the field of expertise could identify), and useful. There are three types of patents: a) "design patent" which is a new, original and ornamental design for a manufactured article; b) "utility patent" which includes a process, a machine (mechanism with moving parts), manufactured products, and compounds or mixtures (such as chemical formulas) and c) "plant patent" which is a new variety of a cultivated asexually reproduced plant. Patent law specialists can make a search of patents to determine if the proposed invention is truly unique, and if apparently so, can file an application, including detailed drawing and specifications. While awaiting issuance of the patent, products or designs should be marked "patent pending" or "pat. pending." Upon receiving the patent the product can be marked with the word "patent" and the number designated by the Patent Office. The rights can be transferred provided the assignment is signed and notarized to create a record or "licensed" for use. Manufacture of a product upon which there is an existing patent is "patent infringement" which can result in a lawsuit against the infringer with substantial damages granted. C) A nearly obsolete expression for a grant of public land by the government to an individual.
An obvious inconsistency in the language of a written document.
An obvious flaw in a product or a document.
The manufacture and/or use of an invention or improvement for which someone else owns a patent which is issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. The infringing party will be liable to the owner of the patent for all profits made from the use of the invention, as well as any harm which can be shown by the inventor, whether the infringement was intentional or not.
The term is printed on a product to inform others that an application for a patent has been filed with the Patent Office, but the patent has not yet been granted.
A lawsuit, usually by a mother, to prove that a named person is the father of her child. Evidence of paternity may include blood tests, testimony about sexual relations between the woman and the alleged father, evidence of relationship of the couple during the time the woman became pregnant, admissions of fatherhood, comparison of child in looks, eye and hair color, race and, increasingly, DNA evidence. In addition to the desire to give the child a known natural father, proof of paternity will lead to the right to child support, birthing expenses and the child's inheritance from his father. The threat of a paternity suit against a man married to another may lead to a prompt and quiet settlement.
To pledge an item of personal property as security for a loan, with the property left with the pawnbroker. The interest rates are on the high side, the amount of the loan is well below the value of the pledged property, and the broker has the right to sell the item without further notice if the loan is not paid.
To give money owed.
A) A debt which is due. A debt may be owed, but not yet payable until a certain date or event. B) A debt which is due. "Payables" are all the liabilities (debts) of a business.
Payable on demand
A debt on a promissory note or bill of exchange which must be paid when demanded by the payee (party to whom the debt is owed).
The one whose name is mentioned on a cheque or promissory note to receive payment.
Payment in due course
The giving of funds to the holder of a promissory note or bill of exchange when due, without any knowledge that the document had been acquired by fraud or that the holder did not have valid title. The true owner of the bill or note cannot also demand payment, but must look to the recipient of the funds.
Payment in full
The giving of all funds which is due to another. This language is often inserted on the back of a check above the place for endorsement to prove that the payee accepts the payment as complete.
(payer) The party who must make payment on a promissory note.
A bond which is required as part of a Court order to guarantee that a person will stay away from another person he/she has threatened or bothered. The bond will be forfeit (given up) if the order is violated, but that is no consolation to a person injured, molested or murdered by the violator.
Holding property without any adverse claim to possession or title by another.
Misappropriation of public (government) funds or property.
Money, as in "pecuniary loss."
An obsession with children as sex objects. Overt acts, including taking sexually explicit photographs, molesting children and exposing one's genitalia to children, are all crimes. The problem with these crimes is that pedophilia is also treated as a mental illness, and the pedophile is often released only to repeat the crimes or escalate the activity to the level of murder.
A person who stealthily peeks into windows, holes in restroom walls or other openings with the purpose of getting a sexual acts from seeing women or girls undressed or couples making love. The term comes from the legendary Tom who was the one person who peeked when Lady Godiva rode her horse naked through the streets of Coventry to protest taxes. Being a peeping tom is treated as a crime based on sexual deviancy. It forms the basis for a lawsuit by the victim on the basis of invasion of privacy.
An equal. A "jury of one's peers," to which accused are constitutionally entitled, means an impartial group of citizens from the judicial district (e.g. county) in which the defendant lives. It does not mean a jury ethnically, educationally, economically or sexually the same as the defendant.
An examination and evaluation of the performance of a professional or technician by a board or committee made up of people in the same occupation. This may arise in determining whether a person has been legitimately discharged, denied promotion or penalized by an employer, or is found to have failed to meet minimum standards of performance and is thus liable in a lawsuit claiming damages due to negligence.
Criminality, as in defining "penal code", or "penal institution" (a prison or penitentiary confining convicted felons).
A) An amount which is agreed in advance if payment or performance is not made on time, such as a "late payment" on a promissory note or lease, or a financial penalty for each day a building contractor fails to complete a job. B) In criminal law, a fine or forfeiture of property ordered by the judge after conviction for a crime.
(pen-den-tay lee-tay) adj. Awaiting the litigation. It is applied to Court orders (such as temporary child support) which are in effect until the case is tried, or rights which cannot be enforced until the lawsuit is over.
A prison in which convicts are held for commission of major crimes.
In Latin for "by means of" or simply, "by" as in "per day" (by day) or "per capita" (by head).
In Latin for "by head," meaning to be determined by the number of people. To find the per capita cost, the total number of persons are added up and the bill, tax or benefits are divided equally among those persons.
In Latin it is for "by the Court," defining a decision of court of appeals as a whole in which no judge is identified as the specific author.
In Latin, it is for "per day," it is short for payment of daily expenses and/or fees of an employee or an agent.
(purr say) In Latin it is used for "by itself," meaning inherently. Thus, a published writing which falsely accuses another of having a sexually transmitted disease or being a convicted felon is "libel per se," without further explanation of the meaning of the statement.
(purr stir-peas) adj. In Latin it is for "by roots," by representation. The term is commonly used in wills and trusts to describe the distribution when a beneficiary dies before the person whose estate is being divided. Example: "I leave Rs 1,00,000 to my daughter, and if she shall predecease me, to her children, per stirpes." Thus, if the daughter dies before her parent, then the Rs 10,00,000 will be divided among her children equally. A way to make this more clear is to substitute for per stirpes: "to her children, by right of representation, share and share alike," which is clear to the non-lawyer. If there is no provision for distribution to children of a predeceased child, then the gift will become part of the residue (what is left after specific gifts), and then the grandchildren may not share if there are surviving children of the giver.
Absolute, final and not entitled to delay or reconsideration. The term is applied to writs, juror challenges or a date set for hearing.
The right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is differed from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on law, the number of parties to a case, and whether it is a civil or criminal trial.
Peremptory writ of mandate
(or mandamus) A final order of a Court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. This is distinguished from an alternative writ of mandate (mandamus), which orders the governmental agency, court or officials to obey the order or show cause at a hearing why it should not. The usual practice is for anyone desiring such an order to file a petition for the alternative writ. If the officials do not comply with the order and fail to convince the court that the writ of mandate should be denied, then the court will issue the peremptory writ. In some emergency situations or when there is no conceivable reason for the government not to follow the law, then the peremptory writ will be issued after a notice of hearing without the alternative writ.
(with stress on the second syllable) A) To complete; to take all required steps to achieve a result, such as obtaining a lien or other security by legal action or completing and filing all documents to present a case to a court of appeals. A mechanic's lien for labor and/or materials used to improve real property is "perfected" by filing a lawsuit and obtaining a judgment that the lien attaches to the property. B) To make perfect.
Completion of all necessary legal steps to achieve a result, such as perfected title to property.
A) To comply with requirements of a Court order. B) To fulfill one's obligations under a contract.
Fulfillment of one's obligations which are required by contract. Specific performance of a contract may be demanded in a lawsuit. Partial performance is short of full performance spelled out in the contract, but if the contract provided for a series of acts or deliveries with payment for each of the series, there may be partial recovery for what has been performed or delivered even if there is not full performance.
A person who intentionally lies while under an oath administered by a notary public, Court clerk or other official, and thus commits the crime of perjury. A perjurer may commit perjury in oral testimony or by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, tax return) knowing the document contains false information.
The crime of intentionally lying after being duly sworn by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.
An injury which impairs the physical and/or mental ability of a person to perform his/her normal work or non-occupational activities supposedly for the remainder of his/her life. Under worker's compensation laws, once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability is also one basis for awarding general damages in a lawsuit for injury suffered due to the negligence or intentional attack of another.
A final order of a Court for refraining a person or entity from certain activities permanently or take certain actions until completed. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or petition asking for the "permanent" injunction.
Physical or mental damage which will restrict the employment and/or other activities of a person for the remainder of his/her life. In a civil suit to recover damages caused by the negligence or intentional wrongful of another, a permanent injury can be a major element in an award of general damages.
A) Tolerant or allowing of others' behavior, suggesting contrary to others' standards. B) Any act which is allowed by Court order, legal procedure, or agreement.
A) A license or other document which is given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts. These can include building a structure, using a building, driving on the highway, conducting a retail business, and dozens of other activities. The purpose of permits is supposedly to guarantee that laws and regulations have been obeyed, but they also are a source of public revenue. B) To allow by silence, agreement or giving a license.
A) A human being. B) A corporation which is treated as having the rights and obligations of a person. Counties and cities can be treated as a person in the same manner as a corporation. However, corporations, counties and cities cannot have the emotions of humans such as malice, and therefore are not liable for punitive damages unless there is a statute authorizing the award of punitive damages.
Things which include clothes, cosmetics and items of adornment. This is not the same as "personalty" which means all tangible property which is not real property, money or investments.
Same as "personalty."
Delivering a summons, complaint, notice to quit tenancy or other legal document which must be served by handing it directly to the person which name is mentioned in the document. Personal service is differed from "constructive service," which includes posting the notice and then mailing a copy or publishing a summons on a person the court has found is hiding to avoid service, and from "substituted service," which is giving the document to someone else (another resident, a secretary or receptionist, or other responsible adult) at the address.
The talents of a person which are unusual, special or unique and cannot be performed exactly the same by another. These can include the talents of an artist, an actor, a writer or professional services. The value of personal services is greater than general labor, so woodcarving is personal service and carpentry is not. Therefore, if an actor contracts to perform in a movie and fails to show, he/she will be liable for damages based on the difficulty to replace him. An artist who contracts to paint a picture cannot send a substitute, since he/she was retained for his/her unique ability and product.
Movable assets (things, including animals) which are not real property, money or investments.
Old-fashioned name for the jury sitting to hear a lawsuit or criminal prosecution, called "petit" (small) to distinguish it from a "grand" jury, which has other duties.
A) A written request which is made to a Court for an order of the Court. It is differed from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of a case, reduction of bail in criminal cases, a decree of distribution of an estate, appointment of a guardian, and a host of other matters arising in legal actions. B) A general term for a writing signed by a number of people asking for a particular result from a private governing body (such as a homeowners association, a political party, or a club). C) In public law, a writing signed by a number of people which is required to place a proposition or ordinance on the ballot, nominate a person for public office, or demand a recall election. Such petitions for official action must be signed by a specified number of registered voters. D) To make a formal request of a Court; to present a written request to an organization's governing body signed by one or more members. E) A suit for divorce in which the parties are called petitioner and respondent.
One who signs and/or files a petition.
A term which is used for theft of a small amount of money or objects of little value. It is distinguished from grand larceny, which is theft of property of greater worth and a felony punishable by a term in prison.
The right and obligation of a physician to refuse to testify in a trial or other legal proceeding about any statement made to him/her by a patient on the basis that any communication between doctor and patient is confidential. A patient could sue the physician for damages if the doctor breaches the confidence by testifying. Of course, in most trials involving injuries the physician will testify with the plaintiff's permission.
Standing or parading near a business or government office usually with signs of protest or claims in labor disputes or public policy controversies (peace marches to pro- or anti-abortion advocates). Picketing is constitutionally guaranteed as free speech, but in some cases it may be limited by court order to prevent physical combat, blocking of entrances or threats to the public safety.
Pierce the corporate veil
To prove that a corporation exists merely as a completely controlled front (alter ego) for an individual or management group, so that in a civil suit the individual defendants can be held responsible (liable) for damages for actions of the corporation. If a corporation has issued stock and held regular meetings of shareholders and directors, it is unlikely a judge will "pierce" the veil and limit the liability to the corporation, unless there is proof that the corporation was created to accomplish a fraud on those dealing with it.
A crime of theft of little things, usually from shipments or baggage.
A person who procures a prostitute for customers or vice versa, sharing the profits of the person's activities. Supposedly he provides protection for the prostitutes, but quite often he will threaten, brutalize, rape, cheat and induce drug addiction of the prostitutes. A pimp commits the crime of pandering
A) Slang for notice of being fired or laid off from a job. B) Slang for official automobile registration certificate, due to its color.
The crime of robbery of ships or boats on the oceans. Accusation, trial and punishment of pirates may be under international agreement applicable anywhere, or under the laws of the particular nation where the accused has been captured.
Taking the writings or literary concepts of another and selling and/or publishing them as one's own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.
Plain view doctrine
The rule that a law enforcement officer may make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search.
The party who initiates a civil suit by filing a complaint with the clerk of the Court against the defendant(s) demanding damages, performance and/or Court determination of rights.
The attorney who represents a plaintiff in a civil suit. In lawyer parlance a "plaintiff's attorney" refers to a lawyer who regularly represents persons who are suing for damages, while a lawyer who is regularly chosen by an insurance company to represent its insureds is called a "defense attorney."
A) Any written answer or other response which is filed by a defendant to a complaint or petition in a civil lawsuit. B) In criminal law, the response by an accused defendant to each charge of the commission of a crime. Pleas normally are "not guilty," "guilty," "no contest" (admitting the facts, but unwilling to plead "guilty," thus resulting in the equivalent of a "guilty" verdict but without admitting the crime), or "not guilty by reason of insanity" (at the time of the criminal act). However, the accused may make a "dilatory plea" challenging the jurisdiction of the court or claiming that he/she is the wrong defendant, requiring a special hearing. He/she may admit the acts but have excuses to be considered (a "plea in abatement"), which may affect the judge's sentence. Pleas are entered orally at arraignment (first court appearance) or a continued (postponed) arraignment. If after a preliminary hearing the judge determines the defendant must face trial for a felony, he/she will have to enter a plea again before a judge of the trial court.
In criminal procedure, a negotiation between the accused and his attorney on one side and the prosecutor on the other, in which the accused agrees to plead "guilty" or "no contest" to some crimes, in return for reduction of the severity of the charges, dismissal of some of the charges, the prosecutor's willingness to recommend a particular sentence or some other benefit to the defendant. Sometimes one element of the bargain is that the defendant reveal information such as location of stolen goods, names of others participating in the crime or admission of other crimes (such as a string of burglaries). The judge must agree to the result of the plea bargain before accepting the plea. If he does not, then the bargain is cancelled. Reasons for the bargain include a desire to cut down on the number of trials, danger to the defendant of a long term in prison if convicted after trial and the ability to get information on criminal activity from the defendant. There are three dangers: a) an innocent person may be pressured into a confession and plea out of fear of a severe penalty if convicted; b) particularly vicious criminals will get lenient treatment and be back "on the street" in a short time; c) results in unequal treatment. Public antipathy to plea bargaining has led to some statutes prohibiting the practice, but informal discussions can get around the ban
Plea in abatement
See also: plea
A) In criminal law, to enter a plea of a accused in response to each charge of criminal conduct. B) In civil lawsuits and petitions, to file any document including complaints, petitions, declarations, motions and memoranda of points and authorities.
A) The act of preparing and presenting legal documents and arguments. Good pleading is an art which should be clear, logical, well-organized and comprehensive. B) Every legal document which is filed in a civil suit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included.
A) To promise to do something. B) To deposit personal property as security for a personal loan of money. If the loan is not repaid when due, the personal property pledged shall be forfeit to the lender. The property is known as collateral. To pledge is the same as to pawn.
Complete, covering all matters, full, usually referring to an order, hearing or trial.
A municipal Court which is created for handling misdemeanors (minor crimes) and traffic violations, as well as conducting arraignments (first appearances) and preliminary hearings of those accused of felonies to decide if there is cause to send the defendant to a higher court for trial. Police courts only handle criminal cases-unlike those municipal courts which also have jurisdiction over some civil cases.
The protection and welfare of the society, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement.
The determination by a Court that an issue which is raised about the conduct of public business is a "political" issue to be determined by the legislature or the executive branch and not by the courts.
Having more than one wife or husband at the same time, usually more than just two (which is "bigamy").
A lie detector device, from Greek for "many" (poly) "message" (graph) since numerous physiological responses are tested when questions are answered.
Pictures and/or writings of sexual activity which is intended solely to excite lascivious feelings of a particularly blatant and aberrational kind, such as acts involving children, animals, orgies, and all types of sexual intercourse. The printing, publication, sale and distribution of "hard core" pornography is either a felony or misdemeanor. Since determining what is pornography and what is "soft core" and "hard core" are subjective questions to judges, juries and law enforcement officials, it is difficult to define, since the law cases cannot print examples for the courts to follow.
(pahs-see coh-mitt-tah-tus) In Latin for "possible force," the power of the law enforcement officer to call upon any able- bodied adult men (and presumably women) in the county to assist him in apprehending a criminal. The assembled group is called a posse for short.
To own, occupy, have title to, physically hold or have under exclusive control. In wills there is often the phrase "of which I die possessed," in describing the estate.
A) The act of owning, occupying, holding or having under control an article, object, asset or property. "Constructive possession" involves property which is not immediately held, but which one has the right to hold and the means to get (such as a key to a storeroom or safe deposit box). "Criminal possession" is the holding of property which it is illegal to possess such as controlled narcotics, stolen goods or liquor by a juvenile. B) Any article, object, asset or property which one owns, occupies, holds or has under control.
Possession of stolen goods
The crime of possession of goods which one knows or which any reasonable person would realize were stolen. It is generally a felony. Innocent possession is not a crime, but the goods are generally returned to the legal owner.
The intent and right of a person to occupy and/or exercise control over a particular plot of land. A possessory interest is differed from an interest in the title to property, which may not include the right to immediately occupy the property.
Possibility of a reverter
The potential that the title to a real property interest will return to the original grantor or giver or to his/her lineal descendants. Examples: A gift of property to a hospital on condition that it be used forever for health care, but if the building is no longer used for that purpose the property will revert to the family of the original grantor; the real property is given to a daughter and her children, but will revert to her brother's descendants if her line dies out without further issue.
A) To place a legal notice on a designated public place at the courthouse. B) To place a notice on the entrance or a prominent place on real property, such as a notice to quit (leave), pay rent, which requires mailing of a copy to the occupant to complete service of the notice. C) A commercial term for recording a payment. D) To mail.
In Latin it is similar for "after death," an examination of a dead body to determine cause of death, generally called an autopsy.
A cheque which is delivered now with a written date in the future, so that it cannot be encashed until that date. The danger to the recipient is that such a check is legally only a promissory note due at the later date, and if the account is closed or short when the check is presented at the bank, the payee has no rights to demand payment by the bank or claim that the delivery of a bad check was criminal.
Slang for marijuana, an illegal narcotic.
Pour over will
A Will of a person who has already executed a trust in which all property is designated to be distributed or managed upon the death of the person whose possessions are in trust, leaving all property to the trust. A pour over will is a protection which is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party's death. A pour over will often provides that if the trust is invalid in whole or in part, the distribution under the will must be made under the same terms as stated in the invalid trust.
The right, authority and ability to take some action or accomplish something, including demanding action, executing documents, contracting, taking title, transferring, exercising legal rights and many other acts.
Power of acceptance
The ability to accept an offer and thus create a binding contract. In real estate an acceptance can only be made for a period specified in the offer, and the power is terminated permanently by the making of a counter-offer.
Power of appointment
The right to leave property by Will, transfer, gift or distribution under a trust. Such a power is often found in a trust in which each of the trustors is empowered to write a will leaving his or her share (or some part) to someone. If the power of appointment is not used then it expires on the death of the person with the power.
Power of attorney
A written document which is signed by a person giving another person the power to act in conducting the signer's business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (the agent) is "attorney in fact" for the person giving the power, and usually signs documents. There are two types of power of attorney: a) general power of attorney, which covers all activities, and b) special power of attorney, which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts or executing a limited partnership agreement.
When something can be done or performed.
A) To repeat an activity in order to maintain or improve skills, as "he practices the violin every evening." B) To conduct a law business. C) Custom or habit as shown by repeated action, as in "it is the practice in the industry to confirm orders before shipping." D) The legal business, as in "law practice," or "the practice of the law."
To formally request judicial judgment, relief and/or damages at the end of a complaint or petition.
The specific request for judgment, relief and/or damages at the conclusion of a complaint or petition. A prayer would read: The plaintiff prays for a) special damages in the sum of Rs 20,000; b) general damages according to proof [proved in trial].A prayer gives the judge an idea of what is sought, and may become the basis of a judgment if the defendant defaults (fails to file an answer). Sometimes a plaintiff will inflate damages in the prayer for publicity or intimidation purposes, or because the plaintiff believes that a gigantic demand will be a better starting point in negotiations.
An advisory suggestion which does not have the force of a demand or a request which under the law must be obeyed. Thus "precatory words" in a will or trust would express a "hope that my daughter will keep the house in the family," but do not absolutely prevent her from selling it.
A) A prior reported opinion of Court of appeals which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment. The doctrine that a lower court must follow a precedent is called stare decisis B) Before, as in the term "condition precedent," which is a situation which must exist before a party to a contract has to perform.
To die before someone else, as "if my brother, Amit, should predecease me, his share of my estate I give to his son".
The right of a shareholder in a corporation to have the first opportunity to purchase a new issue of stock of that corporation in proportion to the amount of stock which is already owned by the shareholder.
In bankruptcy, the payment of a debt to one creditor rather than dividing the assets equally among all those to whom he/she/it owes money, often by making a payment to a favored creditor just before filing a petition to be declared bankrupt. Such a preference is prohibited by law, and the favored creditor must pay the money to the bankruptcy trustee. However, the court may give secured creditors a legal preference over "general" creditors in distributing available funds or assets.
A payment of a company's profits to holders of preferred shares of stock.
A class of shares of stock in a company which provides the holders priority in payment of dividends (and distribution of assets in case of dissolution of the corporation) over owners of "common" stock at a fixed rate. While the assurance of first chance at profits is a psychological and real benefit, preferred stock shareholders do not participate in higher dividends if the corporation makes large profits, and usually cannot vote for directors.
A hearing to determine if a person charged with a serious crime punishable by a term in the prison should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime. A preliminary hearing is held in the lowest local court, but only if the prosecutor has filed the charge without asking the Grand Jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court for trial. If there is no such convincing evidence, the judge will dismiss the charges.
A Court order which is made in the early stages of a lawsuit or petition which prohibits the parties from doing an act which is in dispute, thereby maintaining the status quo until there is a final judgment after trial.
Planning, plotting or deliberating before doing some acts. Premeditation is an element in first degree murder and shows intent to commit that crime.
A) In legal, premises means "all that has herein above been stated", as in a request at the end of a complaint asking for "any further order deemed proper in the premises" (an order based on what has been stated in the complaint). B) In real estate, land and the improvements on it, a building, store, shop, apartment, or other designated structure. The exact premises may be important in determining if an outbuilding (shed, garage) is insured or whether a person accused of burglary has actually entered a structure.
A) An extra payment for an act, option or priority. B) Payment for insurance coverage either in a lump sum or by installments.
It is also called an antenuptial agreement, a written contract between two person who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been "taken" by a previous spouse.
An historic generic term for any writ (Court order) which is directed to government agencies, public officials or another Court.
The method of acquiring an easement upon another's real property by continued and regular use without permission of the property owner for a period of years required by the law.
An easement upon another's real property which is acquired by continued use without permission of the owner for a period provided by the law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
A) A report to a Court by a Grand Jury, which is made on its own initiative without a request or presentation of evidence by the local prosecutor, that a "public" crime (illegal act by public officials or affecting the public good) has been committed. B) Making a demand for payment of a promissory note when it is due.
A) The judge who chairs the panel of three or more judges during hearings and supervises the proceedings of the Court. B) In those countries or other jurisdictions with several judges, the one is chosen to direct the management of the Courts, usually on an annual or other rotating basis. The presiding judge usually makes assignments of judges to specialized courts (juvenile, probate, criminal, law and motion, family law, etc.), oversees the calendar, and chairs meetings of the judges.
A rule of law which permits a Court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true.
Presumption of innocence
A fundamental protection for a person accused of a crime, which requires the prosecution to prove its case against the accused beyond a reasonable doubt. This is opposite from the criminal law in many countries, where the accused is considered guilty until he/ she proves his/her innocence or the government completely fails to prove its case.
The child of a person who has written a Will in which the child is not left anything and is not mentioned at all. After the death of the parent, a pretermitted heir has the right to demand the share he/she would have received as an heir under the laws of distribution and descent. The reasoning is that the parent either inadvertently forgot the child or incorrectly believed the child was dead, and did not mean to leave him/her out. Thus, if someone wishes to disinherit a child or omit him/her from his/her will, that parent should specifically state in the will: "I leave nothing to my son, David," with or without a reason. Otherwise there may be unfair and unintended results.
See also: discovery
The winner in a civil suit. It is provided in many contracts, leases, mortgages, deeds of trust or promissory notes that the "prevailing party" shall be entitled to recovery of attorney's fees and costs if legal action must be taken to enforce the agreement. Even if the plaintiff gets much less than the claim, he/she/it is the prevailing party entitled to include attorney's fees in the collectable costs. Usually there is no prevailing party when a complaint is voluntarily dismissed prior to trial or settled before or after trial has begun.
A violation of antitrust statutes in which several competing businesses reach a secret agreement to set prices for their products to prevent real competition and keep the public from benefitting from price competition. Price fixing also includes secret setting of favorable prices between suppliers and favored manufacturers or distributors to beat the competition.
(pry-mah fay-shah) In Latin, it is similar for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment.
Prima facie case
A plaintiff's civil suit or a criminal charge which appears at first blush to be "open and shut."
The one person law enforcement officers believe most probably committed a crime being investigated. Once a person is determined to be a prime suspect, the police must take the risk that any admissions (any evidence gained from the statements) by the suspect may be excluded in trial.
"First born," the ancient rule from England (except in the Country of Kent) that the oldest son would inherit the entire estate of his parents (or nearest ancestor), and, if there was no male heir, the daughters would take (receive the property) in equal shares. The intent was to preserve larger properties from being broken up into small holdings, which might weaken the power of nobles.
A) Main person in a company. B) Employer, the person hiring and directing employees to perform his/her/its works. It is particularly important to determine who is the principal since he/she/it is responsible for the acts of agents in the "scope of employment" under the doctrine of respondent superior. C) In criminal law, the main perpetrator (organizer and active committer) of a crime, as distinguished from an "accessory" who helps the principal in some fashion. The criminal principal is usually the person who originates the idea of committing the crime and/or directly carries it out, and is more likely to be charged with a higher degree of the crime, and receive a stiffer prison sentence. D) Chief, leading, highest.
Principal place of business
Location of head office of a business where the books and records are kept and/or management works.
An attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press.
Slang for a accused's previous record of criminal charges, convictions, or other judicial disposal of criminal cases (such as probation, dismissal or acquittal). Only previous felony convictions can be introduced into evidence.
The right to be first or ahead of the rights or claims of others. In bankruptcy law, the right to collect before other creditors is given to taxing authorities, judgment holders, secured creditors, bankruptcy trustees and attorneys. The right also can apply to mortgages, deeds of trusts or liens given priority in the order they were recorded (in the "race to the courthouse").
The right to be free of unnecessary public scrutiny or to be let alone. Once a person is a "public figure" or involved in newsworthy events, the right to privacy may evaporate.
One who provides transportation or delivery of goods for money, just for the particular instance, and not as a regular business. It is differed from a "common carrier" which is in the business, such as buses, railroads, trucking companies, airlines and taxis. However, a private carrier may be liable for injuries to anyone who pays or shares the cost of transport.
Act of interference with an individual's peaceful enjoyment of one's property, which can be the basis for a lawsuit both for damages caused by the nuisance and an order (injunction) against continuing the noxious (offensive) activity or condition. Examples: fumes from a factory above the legal limit, loud noises well above the norm, or directing rain water onto another person's property.
Men's or women's genitalia, excluding a woman's breasts, usually referred to in prosecutions for "indecent exposure" or production and/or sale of pornography.
Land which is not owned by the government or dedicated to public use.
A road which is made on privately owned property, limited to the use of the owner or a group of owners who share the use and maintain the road without help from a government agency. A private road has not been given to a government entity and accepted by that entity for public use. Some private roads are used by the public, but should be closed off at least once a year to prove that an easement of use is not allowed and to prevent a prescriptive easement (taken by continued use) from arising.
A special benefit, exemption from a duty, or immunity from penalty, which is given to a particular person, a group or a class of people.
Privilege against self incrimination
A right to refuse to testify against oneself in a criminal prosecution or in any legal proceeding which might be used against the person.
Statements and conversations which are made under circumstances of assured confidentiality which must not be disclosed in court. These include communications between husband and wife, attorney and client, physician or therapist and patient, and minister or priest with anyone seeing them in their religious status. Thus, such people cannot be forced to testify or reveal the conversations to law enforcement or courts, even under threat of contempt of court, and if one should break the confidentiality he/she can be sued by the person who had confidence in him/her. The reason for the privilege is to allow people to speak with candor to spouse or professional counsellor, even though it may hinder a criminal prosecution. The extreme case is when a priest hears an admission of murder or other serious crime in the confessional and can do nothing about it. The privilege may be lost if the one who made the admission waives the privilege, or, in the case of an attorney, if the client sues the attorney claiming negligence in conduct of the case.
A contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, which requires that there be "privity" if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, a tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the land sales contract between seller and buyer since the tenant was not "in privity" with the seller.
It is abbreviation for pro bono publico, in Latin for "for the public good," legal work performed by lawyers without pay to help people with legal problems and limited or no funds, or provide legal assistance to organizations involved in social causes such as environmental, consumer, minority, youth, battered women and education organizations and charities.
A) "As a matter of form," the phrase refers to Court rulings merely intended to facilitate the legal process (to move matters along). B) An accountant's proposed financial statement for a business based on the assumption that certain events occurred, such as a 30% increase in annual sales or 8% inflation.
It is abbreviation for "propria persona," which is Latin for "for oneself," usually applied to a person who represents himself/herself in a lawsuit rather than have an attorney.
(proh rat-ah or proh ray-tah) In Latin it is for "in proportion," which is referring to a share to be received or an amount to be paid based on the fractional share of ownership, responsibility or time used. Examples: an heir who receives one-quarter of an estate may be responsible for one-quarter of the estate taxes as his/her pro rata share. A buyer of a rental property will pay his/her pro rata share of the property taxes for that portion of the year in which he/she holds title.
(proh say) prep. In Latin for "for himself." A party to a lawsuit who represents himself (acting in propria persona) is appearing in the case "pro se."
(proh tahn-toe) In Latin for "only to that extent."
A) A temporary judge. B) It is abbreviation for pro tempore, temporarily or for the time being. In law, judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as a substitute for a regular judge. When an appeals justice is not available or there is a vacancy, a lower court judge is appointed Justice Pro Tem until a new Justice is appointed. Small claims cases are often heard by an attorney serving as Judge Pro Tem.
(proh temp-oh-ray): See also: pro tem
Sufficient reason which is based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. While some cases are easy (pistols and illicit drugs in plain sight, gunshots, a suspect running from a liquor store with a clerk screaming "help"), actions "typical" of drug dealers, burglars, prostitutes, thieves, or people with guilt "written across their faces," are more difficult to categorize. "Probable cause" is often subjective, but if the police officer's belief or even hunch was correct, finding stolen goods, the hidden weapon or drugs may be claimed as self-fulfilling proof of probable cause.
A) To prove a Will in Court and proceed with administration of a deceased's estate under Court supervision. B) A general term for the entire process of administration of estates of dead persons, including those without wills, with Court supervision. The means of "avoiding" probate exist, including creating trusts in which all possessions are handled by a trustee, making lifetime gifts or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner. Even if there is a will, probate may not be necessary if the estate is small with no real estate title to be transferred or all of the estate is either jointly owned or community property. Reasons for avoiding probate are the fees set by statute and/or the court for attorneys, executors and administrators, the need to publish notices, Court hearings, paperwork, the public nature of the proceedings and delays while waiting for creditors to file claims even when the deceased owed no one. C) The appropriate Court for handling estate matters, as in "probate Court." D) The process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate Court where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the Court determines the Will is valid, the Court then "admits" the will to probate.
A chance to remain free which is given by a judge to a person convicted of a crime instead of being sent to jail or prison, provided the person can be good. Probation is only given under specific court-ordered terms, such as paying a fine, maintaining good behavior, getting mental therapy and reporting regularly to a probation officer. Violation of probation terms will usually result in the person being sent to jail for the normal term. Repeat criminals are normally not eligible for probation. Probation is not the same as "parole," which is freedom under certain restrictions given to convicts at the end of their imprisonment.
Tending to prove something. Thus, testimony which is not probative is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel.
Evidence which tends to prove something which is relative to the issues in a civil suit or criminal prosecution.
Evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed by the trial judge against prejudicing in the minds of jurors toward the opposing party or accused. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, balanced against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions.
The methods and mechanics of the legal process is called procedure. These include filing complaints, answers and demurrers; serving documents on the opposition; setting hearings, depositions, motions, petitions, interrogatories; preparing orders; giving notice to the other parties; conduct of trials; and all the rules and laws governing that process.
Any legal filing, hearing, trial and/or judgment in the ongoing conduct of a civil suit or criminal prosecution. Collectively they are called "proceedings," as in "legal proceedings."
Tthe legal means by which a person is required to appear in Court or a defendant is given notice of a legal action against him/her/it. When a complaint in a lawsuit is filed, it must be served on each defendant, together with a summons issued by the clerk of the court stating the amount of time in which the defendant has to file an answer or other legal pleading with the clerk of the court, and sent to the plaintiff. A subpena is similar to a summons but is a notice to a witness to appear at a deposition (testimony taken outside court), or at a trial. A subpena duces tecum is an order to deliver documents or other evidence either into court or to the attorney for a party to a lawsuit or criminal prosecution. An order to show cause is a court order to appear in court and give a reason why the court should not issue an order (such as paying temporary child support). The summons, complaint, subpena, subpena duces tecum and order to show cause must all be "served" on the defendant or person required to appear or produce, and this is called "service of process".
A person who delivers legal papers in lawsuits, either as a profession or as a government official.
A) Person who keeps order. B) In admiralty (maritime) law, an attorney.
The responsibility of manufacturers, distributors and sellers of products to the public, to deliver products free of defects which harm an individual or numerous persons and to make good on that responsibility if their products are defective. These can include faulty auto brakes, contaminated baby food, exploding bottles of beer, flammable children's pajamas or lack of label warnings. The key element in product liability law is that a person who suffers harm need prove only the failure of the product to make the seller, distributor and/or manufacturer reliable for damages. An injured person usually need only sue the seller and let him/her/it bring the manufacturer or distributor into the lawsuit or require contribution toward a judgment. However, all those possibly responsible should be named in the suit as defendants if they are known.
A corporation which is formed for the purpose of conducting a profession which requires a license to practice, including attorneys, physicians, dentists, certified public accountants, architects and real estate brokers.
See also: malpractice
To offer evidence in a trial.
Forbidding an act or activity. A court order forbidding an act is a writ of prohibition, an injunction or a writ of mandamus if against a public official.
A) To make a firm agreement to act, refrain from acting or make a payment or delivery. B) A firm agreement to perform an act, refrain from acting or make a payment or delivery. In contract law, if the parties exchange promises, each promise is "consideration" (a valuable item) for the other promise. Failure to fulfill a promise in a contract is a breach of the contract, for which the other party may sue for performance and/or damages.
A false statement which is treated as a promise by a Court when the listener had relied on what was told to him/her to his/her disadvantage. In order to see that justice is done a judge will preclude the maker of the statement from denying it. Thus, the legal inability of the person who made the false statement to deny it makes it an enforceable promise called "promissory estoppel," or an "equitable estoppel".
A person who puts together a business, particularly a corporation, including the financing. Usually the promoter is the principal shareholder or one of the management team and has a contract with the incorporators or makes a claim for shares of stock for his/her efforts in organization.
Stock which is issued in a newly formed corporation and given to a promoter (organizer) of the corporation in payment for his/her efforts in putting the company together and locating shareholders or other funding.
Confirmation of existence of a fact by evidence. In a trial, proof is what the trier of the fact needs to become satisfied that there is "a preponderance of the evidence" in civil (non-criminal) cases and the defendant is guilty "beyond a reasonable doubt" in criminal prosecutions. However, each alleged fact must be proved separately, as must all the facts necessary to reach a judgment for the plaintiff (the person filing a lawsuit) or for the prosecution (the "people" or "state" represented by the prosecutor). The defendants in both civil suits and criminal trials need not provide absolute "proof" of non-responsibility in a civil case or innocence (in a criminal case), since the burden is on the plaintiff or prosecution to prove their cases (or prove the person guilty).
A person or entity who has an interest (financial or protection of some legal rights) in the subject matter of a civil suit and, thus, can join in the civil suit as he/she/it wishes, or may be brought into the suit (as an unnecessary party) by one of the parties to the legal action. A proper party is differed from a "necessary party," which the court will order joined in (brought into) the suit if any judgment is to be reached.
Anything that is owned and possessed by a person or entity. Property is divided into two types: "real property," and public property. Real property which is any interest in land, real estate, growing plants or the improvements on it, and "personal property" (sometimes called "personalty"), which is everything else. "Common property" is ownership by more than one person of the same possession. "Public property" refers to ownership by a governmental body such as the state, county or city governments or their agencies. The government and the courts are obligated to protect property rights and to help clarify ownership.
Injury to real or personal property through another's negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home or any other possession. The amount of recovery for property damage may be established by evidence of replacement value, cost of repairs, loss of use until repaired or replaced or, in the case of heirlooms or very personal items, by subjective testimony as to sentimental value.
An annual governmental tax on real property or personal property which is based on a tax rate.
In Latin it menas, for oneself.
A total or partial ownership.
Those rights which go with ownership of real property or a business.
The owner of anything, but particularly the owner of a business which is operated by that individual.
A) To conduct any legal action by a advocate on behalf of a client, including both civil and criminal cases, but most commonly referring to prosecution for crimes. B) In criminal law, to charge a person with a crime and thereafter pursue the case through trial on behalf of the government.
A) A common term for the government's side in a criminal case, as in "the prosecution will present five witnesses" or "the prosecution rests" (has completed its case). B) In criminal law, the government attorney who is charging and trying the case against a person accused of a crime.
Generic term for the government's attorney in a criminal case. A special prosecutor may be assigned to investigate as well as prosecute if necessary when a government official is involved directly or indirectly in the possible criminal activity.
A detailed statement by a corporation which is required when there is an issuance of stock to the general public. A prospectus includes the financial status, the officers, the plans, contingent obligations of the corporation, recent performance and other matters which would assist the potential investor or investment adviser to evaluate the stock and the prospects of the company for profit, loss or growth. Every potential purchaser of shares of a new stock shares must receive a copy of the prospectus, even though they are difficult to understand. Offerings to the public of limited partnership interests may require that a prospectus be prepared and delivered to each investor.
A person who involves in business of sexual intercourse or other sexual acts for money, generally as a regular occupation. Although usually a prostitute refers to a woman offering sexual favors to men, male prostitutes may perform homosexual acts for money or receive payment from women for sexual services. A woman prostitute who is sent on a "date" to the hotel room or residence of a male customer is commonly referred to as a "call girl".
The profession of performing sexual acts for earning money. Prostitution is a crime. Soliciting acts of prostitution is also a crime, called pandering or simply, soliciting.
The act of law enforcement officials in placing a person in a government facility or foster home in order to protect him/her from a dangerous person or situation. Most commonly a child who has been neglected or battered or is in danger from a violent person is taken in as a temporary ward and held in probation facilities or placed in a foster home until a court can decide the future placement of the child. Protective custody is sometimes used to help women threatened by a husband, boyfriend or a stalker, and also for witnesses who have been threatened with physical harm or death if they testify.
A) A written demand for payment of the amount owed on a promissory note which has not been paid when due or a check which has been dishonored (not paid by the bank). B) To complain in some public way about any act already done or about to be done, such as adoption of a regulation by a government, sending troops overseas, or use of the death penalty. C) To dispute the amount of property taxes, the assessed evaluation of property for tax purposes or an import duty.
To present evidence and/or logic that makes a fact seem true. A party must do this to convince a jury or judge sitting without a jury as to facts which are claimed and to win a lawsuit or criminal case.
A generic term for any temporary order of a Court to protect a party from irreparable damage while a lawsuit or petition is pending.
A term or condition in a contract or title document.
A happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to win in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the accused's act must have been the proximate cause of the death of a victim to prove murder or manslaughter.
A) The written authority which is given to someone to act or vote in someone's place. A proxy is commonly given to cast a stockholder's votes at a meeting of shareholders, and by board members and convention delegates. B) Someone who is authorized to serve in one's place at a meeting, particularly with the right to cast votes.
A) Any agency, interest, property, or activity which is under the authority of the government or which belongs to the people. This distinguishes public from private interests as with public and private schools, public and private utilities, public and private hospitals, public and private lands and public and private roads. B) The people of the nation, country, district or municipality which the government serves.
An government official with the responsibility to handle the affairs of someone who has died with no known or available relative, executor or friend. At times the public administrator may be instructed by a Court to assume similar duties for a living person when no conservator or guardian is available.
Public benefit corporation
A term which is used for a nonprofit community service corporation. Examples are clubs like Rotary and Lions.
A general term for an indigent, sick or severely handicapped person who must be taken care of at public expense.
A corporation which is created to perform a governmental function or to operate under government control, such as a municipal water company or hospital.
An elected or appointed public official, who is an attorney regularly assigned by the courts to defend people accused of crimes who cannot afford a private attorney. In larger countries the public defender has a large case load, numerous deputy public defenders and office staff.
A) All lands and waters which is owned by government. B) In copyright law, the right of anyone to use literature, music or other previously copyrighted materials after the copyright period has expired.
The right of the general public to use certain streets, airspace, highways or paths. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property.
In the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).
A nuisance which affects members of the public or the public at large, as distinguished from a nuisance which only does harm to a neighbor or a few private individuals.
Property which is owned by the government or one of its agencies, divisions, or entities. It can be parks, playgrounds, streets, sidewalks, schools, libraries and other property regularly used by the general public.
Any files, accounts, information, minutes, or other records which a governmental body is required to maintain and which must be accessible to scrutiny by the public. This includes the files of most legal actions. A court will take "judicial notice" of a public record (including hearsay in the record) introduced as evidence.
Public trust doctrine
The principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest. Nevertheless, there has been a great deal of use for offshore oil drilling, for landfill, and marine shoreline development, in which protection of the public interest has been dubious at best.
The only purpose for which private property can be taken by the government under its power of eminent domain. Public use includes: hospitals, government buildings, parks, water reservoirs, flood control, slum clearance schools, streets, highways, and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public.
Any organization which provides services to the general public, although it may be privately owned. Public utilities include electric, gas, telephone, water and television cable systems, as well as Taxis and bus service. They are allowed certain monopoly rights due to the practical need to service entire geographic areas with one system, but they are regulated by state, county and/or city public utility commissions.
A) Placing a legal notice in a newspaper of general publication in the country or district in which the law requires such notice to be published. B) In the law of defamation (libel and slander) publication of false information about another to at least one single person. Thus one letter can be the basis of a suit for libel, and telling one person is sufficient to show publication of slander. B) Anything which is made public by print (as in a newspaper, magazine, pamphlet, letter, telegram, computer modem or program, poster, brochure or pamphlet), orally, or by broadcast (radio, television).
To make public to at least one other person by any means.
The exaggeration of the good points of a product, a business, real property and the prospects for future rise in value, profits and growth. Since a certain amount of "puffing" can be expected of any salesman, it cannot be the basis of a lawsuit for fraud or breach of contract unless the exaggeration exceeds the reality.
It is synonymous with exemplary damages. Damages which are awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.
Commonly believed, supposed or claimed. Thus a putative father is one believed to be the father unless proved otherwise, a putative marriage is one that is accepted as legal when in reality it was not lawful. A putative will is one that appears to be the final will but a later will is found that revokes it and shows that the putative will was not the last will of the deceased.