Transfer of something (and title to it) in return for money on terms which are 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).
A) Payment to a person or group which saves cargo from a shipwreck. B) To save goods.
A financial penalty which is 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.
Full payment or performance of what is due.
Satisfaction of judgment
A document which is signed by a judgment creditor 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
A document which is 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.
A) 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. B ) It is also called hold harmless, to indemnify (protect) another from harm or cost.
Savings and loan
A banking and lending institution, which is 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.
In Latin, it is used 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.
In Latin, it is used for "spark." Scintilla is commonly used in reference to evidence, in the context that there must be a "scintilla of evidence" upon which to base a judgment.
Scope of employment
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 respondent superior (make the master answer).
A person who writes a document for another, usually for a fee is called scrivener. 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.
A device which is used to create 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.
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
Trial records and decisions which a judge orders which is 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.
A) To trace the records of ownership of real property in what is commonly called a "title search." B) 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.
Search and seizure
Examination of a person's premises 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).
A written order which is made 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
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.
An organized refusal to purchase the products of, do business with or perform services for a company which is doing business with another company where the employees are on strike or in a labor dispute.
A return 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.
Any loan or credit in which property is pledged as security in the event payment is not made.
Generic term which is used 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.
A payment which is 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.
Generic term which is used for the property rights of a lender or creditor whose right to collect a debt is secured by property.
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 is called sedition. 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.
The use of attraction, 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.
(sees-in) An old term which is used for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple.
(seised) A) Having taken possession of evidence for use in a criminal prosecution. B) Having taken property or a person by use of force. C) Having ownership, commonly used in Wills.
The taking of something 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.
In the stock market, using secret "inside" information which is gained by being an official of a corporation (or from such an officer) to buy or sell stock 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.
Reasonable force which is used 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. 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.
The act which is 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.
A) The maximizing of one's opportunities. B) 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).
Act of making statements or producing evidence which tends to prove that one is guilty of a crime.
A question which is 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.
To transfer possession and ownership of goods or other property for money or something of equivalent value.
One who sells goods or other property to a buyer.
The first security interest (lien or claim) which is placed upon property at a time before other liens, which are called "junior" liens.
A) To impose a punishment on a person who is convicted of a crime. B) The punishment which is 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. 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.
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.
An agreement between two married people who have agreed to live apart for an unspecified period of time, perhaps forever is called separation agreement. 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.
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.
The act of a judge issuing an order that a jury or witness be sequestered (kept apart from outside contacts during trial).
(sear-ee-ah-tim) In Latin, it is used for "one after another" as in a series. Thus, issues or facts are discussed seriatim (or "ad seriatim"), meaning one by one in order.
An employee of an employer or one who works for a master. A servant is differentiated 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.
A) The domestic activities of a wife, including the marital relationship are legally considered "services" for which a deprived husband may sue a person who has caused injury to his wife. B) The official delivery of legal documents ("service of process") such as a summons, complaint, order to show cause, 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. C) 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).
Service by fax
Delivery of legal documents which is 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
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
Serving a summons or other legal document in a lawsuit on a defendant by publishing the document sin 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
The delivery of copies of legal documents such as summons, complaint, order to show cause, 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.
Work which is done for pay.
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.
A) The term of Court of appeals which can cover several months. B) A meeting (or "sitting") of a court for a particular period of time. "Session" technically means one day's business.
To schedule, as to "set a case for trial."
To annul. quash or negate a Court order or judgment by another court order.
(offset) A claim which is made by a defendant in a lawsuit that the plaintiff 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.
The action of a Court, clerk or commissioner in scheduling a trial or hearing.
To resolve a civil suit 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.
The resolution of a civil suit (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 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.
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.
An agreement 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.
Responsibility of one party for the entire debt 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.
A) Extra pay which is offered and made to a person to encourage him/her to resign, retire or settle a potential claim for discharge. B) A separation 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 may save the trouble of hearing the other questions.
Generic term for all persons who are convicted of crimes involving sex, including rape, molestation, sexual harassment and pornography production or distribution.
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.
A) In some statutes, "shall" is a direction but does not mean mandatory, depending on the context. B) An imperative command as in "you shall not kill."
A) A portion of ownership interest in a company, represented by a stock certificate stating the number of shares of an issue of the corporation's stock. B) A portion of a benefit from a trust, estate, claim or business usually in equal division (or a specifically stated fraction) with others.
Share and share alike
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.
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.
An employment agreement which is made 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
A lawsuit which is made by a corporation's shareholders, theoretically on behalf of the corporation, to protect and benefit all shareholders against the corporation for improper management.
A meeting, usually annual, of all shareholders of a company (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.
Actions by an advocate by 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.
The top law enforcement officer for a country 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.
Statutes which are 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
The result of the plaintiff in a civil suit 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.
A civil suit which is estimated by the parties 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."
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.
Show cause order
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.
A) A discussion between the judge and attorneys at the bench off the record and outside the hearing of the jurors or spectators. B) 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. C) 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.
A) To communicate by sign language. B) To write one's signature on a document.
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.
With the same problems and circumstances, referring to the people who are 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.
A trust which requires that all income be distributed each year and not accumulated.
Simultaneous death act
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) In Latin, it is similar for "without which it could not be," an indispensable action or condition.
In Latin, it is similar for "location," be it where the crime or accident took place or where the building stands.
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 which are spoken over the air on television or radio are treated as libel and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.
Anal copulation by a man inserting his penis in the anus either of another man or a woman. If accomplished by use of force, without consent or with someone incapable of consent, sodomy is a crime 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).
A business which is owned by one person, as differentiated from a partnership or corporation.
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.
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".
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".
A) Having more assets than liabilities (debts). The contrast is "insolvency," which may be a basis for filing a petition in bankruptcy. B) Having sufficient funds or other assets to pay debts.
Sound mind and memory
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.
The underlying legal basis for a lawsuit or one of several causes of action in a suit, such as contract or tort. The phrasing might be: "Plaintiff's first cause of action against Defendant sounds in tort, and his second cause of action sounds in contract".
An attempt which is made to introduce evidence during a hearing on a demurrer. A demurrer is a legal opposition to a complaint in a lawsuit, 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.
A particular purpose, person or happening. In law these include hearings, proceedings, administrator, master, orders and so forth.
A person who is appointed by the Court in a probate proceeding 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.
The representation which is made by an attorney of a person in Court for: a) on behalf of the client's regular attorney of record; b) only that particular session of the court. 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.
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.
Damages which are 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.
A person who is appointed by the Court to carry out an order of the court, such as selling property or mediating child custody cases. A "special" master distinguishes from a "master" in that he/she takes positive action rather than just investigating and reporting to the judge.
Decisions of the jury or findings of fact with the application of the law to those facts which are 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.
The gift in a Will of a certain article to a certain person or persons.
The gift in a Will of a certain piece of real estate to a certain person or persons.
A decision on a fact which is 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.
A gift in a Will of a certain article or property to a certain person or persons.
The right of a party to a contract which is used to demand that the defendant should 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 goods and did not, a judge may order the defendant to actually deliver the goods.
Possible financial loss or expenses which are claimed by a plaintiff which are contingent upon a future occurrence, purely conjectural or highly improbable. Speculative damages should not be awarded, and jury instructions should so state. Example: 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.
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.
A sudden statement which is caused by the speaker having seen a surprising, startling or shocking event, 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.
Payment for support of an ex-spouse which is ordered by the Court. More commonly called alimony.
A future right to title to real property which is created by a deed or will. Example: "I give title to my daughter Reena for her lifetime, and, on her death, title to my grandson Ram." Ram has a springing interest in the property.
A person who has his/her possession over 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
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.
The right which is used 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
Any judicial or quasi-judicial action, trial or hearing which so grossly violates standards of "due process" that a party appearing in the proceedings 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.
(stah-ree duh-sigh-sis) In Latin, it is used 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").
The state government and any of its departments, agencies or components (such as a city, board).
State of domicile
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.
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, 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.
Law which is 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
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.
Statute of limitations
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 eighteen (except for a claim against a governmental agency).
Statutory offer of settlement
A written offer of a specific sum of money which is 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.
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 is called statutory rape.
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
A court order that a person may not come near and/or contact another.
Stay of execution
A Court-ordered which is issued for delay in inflicting the death penalty.
An agreement, usually on a procedural matter, between the attorneys for the two sides in a legal action is termed as stipulation. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court.
A) To keep goods ready for sale in a business. B) Inventory of a business which is meant for sale (as differentiated from equipment and facilities). C) Share in the ownership of a corporation (called "shares of stock" or simply "shares"). D) Cattle.
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. 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
The inventory of merchandise which is held for sale.
The right which is exercised 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.
Shareholder in a company.
Stockholders' derivative action
See also: derivative action shareholders' derivative action
Stop and frisk
Search of a law enforcement officer for a weapon which is 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.
A) 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). B) 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.
A roadway or path in an urban area, which is owned and maintained by the municipality for public use. A private road cannot be a street.
(narrow construction) Interpreting the Constitution which is 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.
Automatic responsibility 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.
A) To order that language in a pleading 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. B) 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 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." C) 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.
Anything which is built by man/woman, from a shed to a highrise or a bridge.
(sooh-uh spahn-tay) In Latin, it is used 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.
A person who 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.
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 distinguishes 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.
The lease to another of all or a portion of premises by a tenant who has taken the premises on lease 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.
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.
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 which is 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.
A written agreement 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. The agreement must be acknowledged by a notary so it can be recorded in the official county records.
Subornation of perjury
The crime of inducing, encouraging, or assisting another in the commission of perjury, which is knowingly telling an untruth under oath.
(suh-pea-nah) An order of the Court to witness to appear at a particular time and place to testify and/or produce documents which are 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 which is 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 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.
The original spelling of subpena, which is still commonly used.
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.
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.
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 who is 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.