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Legal Terms Glossary to promote a better understanding of legal
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A
A-B TRUST: see bypass trust.
ACTUAL MALICE: To
win a defamation suit, public officials or prominent
people, such as political candidates or movie stars,
must prove that the offender made a false statement with
actual malice. This means the statement was made with
knowledge that it was false or with serious doubts about
whether it was true.
ADJOURNMENT IN
CONTEMPLATION OF DISMISSAL: See pre-trial diversion.
ADMINISTRATOR: Person appointed to oversee the handling of an estate
when there is no will.
ADVANCE DIRECTIVE: see living will.
AFFIDAVIT: A
written statement made under oath.
AGE OF MAJORITY: The age when a person acquires all the rights and
responsibilities of being an adult. In most states, the
age is 18.
ALIMONY: Also
called maintenance or spousal support. In a divorce or
separation, the money paid by one spouse to the other in
order to fulfill the financial obligation that comes
with marriage.
ALTERNATIVE DISPUTE
RESOLUTION: Methods for resolving problems without
going to court.
AMICUS CURIAE: Latin for "friend of the court." Refers to a party that
is allowed to provide information (usually in the form
of a legal brief) to a court even though the party is
not directly involved in the case at hand.
ANNULMENT: A legal
decree that states that a marriage was never valid. Has
the legal effect of wiping out a marriage as though it
never existed.
ANSWER: In a civil
case, the defendant’s written response to the
plaintiff’s complaint. It must be filed within a
specified period of time, and it either admits to or
(more typically) denies the factual or legal basis for
liability.
APPEAL: A request
to a supervisory court, usually composed of a panel of
judges, to overturn the legal ruling of a lower court.
ARBITRATION: A
method of alternative dispute resolution in which the
disputing parties agree to abide by the decision of an
arbitrator.
ARRAIGNMENT: The
initial appearance before a judge in a criminal case. At
an arraignment, the charges against the defendant are
read, a lawyer is appointed if the defendant cannot
afford one, and the defendant’s plea is entered.
ARTICLES OF
INCORPORATION: A document that must be filed with a
state in order to incorporate. Among the things it
typically must include are the name and address of the
corporation, its general purpose and the number and type
of shares of stock to be issued.
ASSIGNMENT: The
transfer of legal rights, such as the time left on a
lease, from one person to another.
ASSUMPTION OF RISK: A defense raised in personal injury lawsuits. Asserts
that the plaintiff knew that a particular activity was
dangerous and thus bears all responsibility for any
injury that resulted.
ASYLUM SEEKER: A
foreigner, already in the U.S. or at the border, who
seeks refuge, claiming an inability or unwillingness to
return to the home country because of a well-founded
fear of persecution.
AT-WILL EMPLOYMENT: An employment relationship where the employer has the
right to fire a worker for any cause at any
time–usually without any notice.
B
BAD FAITH: Dishonesty or fraud in a transaction, such as entering
into an agreement with no intention of ever living up to
its terms, or knowingly misrepresenting the quality of
something that is being bought or sold.
BAIL: The money a
defendant pays as a guarantee that he or she will show
up in court at a later date. For most serious crimes, a
judge sets bail during the arraignment.
BAIL SCHEDULE: The
list that sets the amount of bail a defendant is
required to pay based on what the charge is. A judge may
be able to reduce the amount.
BAILMENT: A legal
relationship created when a person gives property to
someone else for safekeeping. To create a bailment the
other party must knowingly have exclusive control over
the property. The receiver must use reasonable care to
protect the property.
BANKRUPTCY: Insolvency; a process governed by federal law to help
when people cannot or will not pay their debts.
BENCH TRIAL: Also
called court trial. A trial held before a judge and
without a jury.
BENEFICIARY: Person named in a will or insurance policy to receive
money or property; person who receives benefits from a
trust.
BEYOND A REASONABLE
DOUBT: The highest level of proof required to win a
case. Necessary to get a guilty verdict in criminal
cases.
BIFURCATION: Splitting a trial into two parts: a liability phase and
a penalty phase. In some cases, a new jury may be
empanelled to deliberate for the penalty phase.
BILL OF RIGHTS: The first ten amendments to the U.S. Constitution.
BINDER: An outline
of the basic terms of a proposed sales contract between
a buyer and a seller.
BOARD OF DIRECTORS: The group of people elected by a corporation’s
shareholders to make major business decisions for the
company.
BOND: A document
with which one party promises to pay another within a
specified amount of time. Bonds are used for many
things, including borrowing money or guaranteeing
payment of money.
BOOKING: Part of
the process of being arrested in which the details of
who a person is and why he or she was arrested are
recorded into the police records.
BRIEF: A written
document that outlines a party’s legal arguments in a
case.
BURDEN OF PROOF: The duty of a party in a lawsuit to persuade the judge
or the jury that enough facts exist to prove the
allegations of the case. Different levels of proof are
required depending on the type of case.
BUY-SELL AGREEMENT: An agreement among business partners that specifies how
shares in the business are to be transferred in the case
of a co-owner’s death.
BY-LAWS: A
corporation’s rules and regulations. They typically
specify the number and respective duties of directors
and officers and govern how the business is run.
BYPASS TRUST: Also
called a marital life estate or an A-B trust. A trust
designed to help couples with combined assets over
$600,000 save money on estate taxes. A bypass trust
allows each member of a couple to use the $600,000
estate tax exemption.
C
CAPITAL GAIN: The
profit made from the sale of a capital asset, such as
real estate, a house, jewelry or stocks and bonds.
CAPITAL LOSS: The
loss that results from the sale of a capital asset, such
as real estate, a house, jewelry or stocks and bonds.
Also the loss that results from an unpaid, non-business
(personal) loan.
CASE LAW: Also
known as common law. The law created by judges when
deciding individual disputes or cases.
CASE OF FIRST
IMPRESSION: A novel legal question that comes before
a court.
CAVEAT EMPTOR: Latin for "buyer beware." This rule generally applies to
all sales between individuals. It gives the buyer full
responsibility for determining the quality of the goods
in question. The seller generally has no duty to offer
warranties or to disclose defects in the goods.
CERTIORARI: Latin
that means "to be informed of." Refers to the order a
court issues so that it can review the decision and
proceedings in a lower court and determine whether there
were any irregularities. When such an order is made, it
is said that the court has granted certiorari.
CHAPTER 7 BANKRUPTCY: A type of bankruptcy in which a person’s assets are
liquidated (collected and sold) and the proceeds are
distributed to the creditors.
CHAPTER 13 BANKRUPTCY: A type of bankruptcy in which a person keeps his assets
and pays creditors according to an approved plan.
CHALLENGE FOR CAUSE: Ask that a potential juror be rejected if it is revealed
that for some reason he or she is unable or unwilling to
set aside preconceptions and pay attention only to the
evidence.
CHANGE OF VENUE: A
change in the location of a trial, usually granted to
avoid prejudice against one of the parties.
CHARGING LIEN: Entitles a lawyer who has sued someone on a client’s
behalf the right to be paid from the proceeds of the
lawsuit, if there are any, before the client receives
those proceeds.
CHILD ABUSE: Defined by state statutes. Usually occurs when a parent
purposefully harms a child.
CHILD NEGLECT: Defined by state statutes. Usually arises from a
parent’s passive indifference to a child’s well-being,
such as failing to feed a child or leaving a child alone
for an extended time.
CHILDREN’S TRUST: A trust set up as part of a will or outside of a will to
provide funds for a child.
CIRCUMSTANTIAL
EVIDENCE: Indirect evidence that implies something
occurred but doesn’t directly prove it. If a man accused
of embezzling money from his company had made several
big-ticket purchases in cash around the time of the
alleged embezzlement, that would be circumstantial
evidence that he had stolen the money.
CLASS ACTION SUIT: A lawsuit in which one or more parties file a complaint
on behalf of themselves and all other people who are
"similarly situated" (suffering from the same problem).
Often used when a large number of people have comparable
claims.
CLEAR AND CONVINCING
EVIDENCE: The level of proof sometimes required in a
civil case for the plaintiff to prevail. Is more than a
preponderance of the evidence but less than beyond a
reasonable doubt.
CLOSING: In a real
estate transaction, this is the final exchange in which
the deed is delivered to the buyer, the title is
transferred, and the agreed-on costs are paid.
CODICIL: A
supplement to a will.
COHABITATION
AGREEMENT: Also called a living-together contract. A
document that spells out the terms of a relationship and
often addresses financial issues and how property will
be divided if the relationship ends.
COLLATERAL: An
asset that a borrower agrees to give up if he or she
fails to repay a loan.
COLLECTIVE BARGAINING
AGREEMENT: The contract that spells out the terms of
employment between a labor union and an employer.
COMITY: A code of
etiquette that governs the interactions of courts in
different states, localities and foreign countries.
Courts generally agree to defer scheduling a trial if
the same issues are being tried in a court in another
jurisdiction. In addition, courts in this country agree
to recognize and enforce the valid legal contracts and
court orders of other countries.
COMMON LAW: Also
known as case law. The law created by judges when
deciding individual disputes or cases.
COMMON-LAW MARRIAGE: In some states, a couple is considered married if they
meet certain requirements, such as living together as
husband and wife for a specific length of time. Such a
couple has all the rights and obligations of a
traditionally married couple.
COMMUNITY PROPERTY: Property acquired by a couple during their marriage.
Refers to the system in some states for dividing the
couple’s property in a divorce or upon the death of one
spouse. In this system, everything a husband and wife
acquire once they are married is owned equally
(fifty-fifty) by both of them, regardless of who
provided the money to purchase the asset or whose name
the asset is held in.
COMPARATIVE
NEGLIGENCE: Also called comparative fault. A system
that allows a party to recover some portion of the
damages caused by another party’s negligence even if the
original person was also partially negligent and
responsible for causing the injury. Not all states
follow this system.
COMPENSATORY DAMAGES: Money awarded to reimburse actual costs, such as medical
bills and lost wages. Also awarded for things that are
harder to measure, such as pain and suffering.
COMPLAINT: In a
civil action, the document that initiates a lawsuit. The
complaint outlines the alleged facts of the case and the
basis for which a legal remedy is sought. In a criminal
action, a complaint is the preliminary charge filed by
the complaining party, usually with the police or a
court.
CONCURRENT SENTENCES: Criminal sentences that can be served at the same time
rather than one after the other.
CONDITIONAL DISMISSAL: See adjournment in contemplation of dismissal.
CONFLICT OF INTEREST: Refers to a situation when someone, such as a lawyer or
public official, has competing professional or personal
obligations or personal or financial interests that
would make it difficult to fulfill his duties fairly.
CONSECUTIVE SENTENCES: Criminal sentences that must be served one after the
other rather than at the same time.
CONSERVATOR: Person appointed to manage the property and finances of
another. Sometimes called a guardian.
CONSIDERATION: Something of value that is given in exchange for getting
something from another person.
CONTEMPT OF COURT: An action that interferes with a judge’s ability to
administer justice or that insults the dignity of the
court. Disrespectful comments to the judge or a failure
to heed a judge’s orders could be considered contempt of
court. A person found in contempt of court can face
financial sanctions and, in some cases, jail time.
CONTINGENCY FEE: Also called a contingent fee. A fee arrangement in which
the lawyer is paid out of any damages that are awarded.
Typically, the lawyer gets between one-fourth and
one-third. If no damages are awarded, there is no fee.
CONTRACT: An
agreement between two or more parties in which an offer
is made and accepted, and each party benefits. The
agreement can be formal, informal, written, oral or just
plain understood. Some contracts are required to be in
writing in order to be enforced.
CONTRIBUTORY
NEGLIGENCE: Prevents a party from recovering for
damages if he or she contributed in any way to the
injury. Not all states follow this system.
COPYRIGHT: A
person’s right to prevent others from copying works that
he or she has written, authored or otherwise created.
CORPORATION: An
independent entity created to conduct a business. It is
owned by shareholders.
CREDITOR: A person
(or institution) to whom money is owed.
CROSS EXAMINATION: The questioning of an opposing party’s witness about
matters brought up during direct examination.
CUSTODIAN: Under
the Uniform Transfers to Minors Act, the person
appointed to manage and dispense funds for a child
without constricting court supervision and accounting
requirements.
D
DAMAGES: The
financial compensation awarded to someone who suffered
an injury or was harmed by someone else’s wrongful act.
DEBTOR: Person who
owes money.
DECISION: The
judgment rendered by a court after a consideration of
the facts and legal issues before it.
DEED: A written
legal document that describes a piece of property and
outlines its boundaries. The seller of a property
transfers ownership by delivering the deed to the buyer
in exchange for an agreed upon sum of money.
DEFAMATION: The
publication of a statement that injures a person’s
reputation. Libel and slander are defamation.
DEFAULT: The
failure to fulfill a legal obligation, such as
neglecting to pay back a loan on schedule.
DEFAULT JUDGMENT: A ruling entered against a defendant who fails to answer
a summons in a lawsuit.
DEFENDANT: In
criminal cases, the person accused of the crime. In
civil matters, the person or organization that is being
sued.
DEFINED BENEFIT PLAN: A type of retirement plan that specifies how much in
benefits it will pay out to a retiree.
DEFINED CONTRIBUTION
PLAN: Also called an individual account plan. A type
of retirement plan in which the employer pays a
specified amount of money each year, which is then
divided among the individual accounts of each
participating employee. Profit-sharing, employee stock
ownership and 401(k) plans are all defined contribution
plans.
DEPOSITION: Part
of the pre-trial discovery (fact-finding) process in
which a witness testifies under oath. A deposition is
held out of court with no judge present, but the answers
often can be used as evidence in the trial.
DIRECT EVIDENCE: Evidence that stands on its own to prove an alleged
fact, such as testimony of a witness who says she saw a
defendant pointing a gun at a victim during a robbery.
DIRECT EXAMINATION: The initial questioning of a witness by the party that
called the witness.
DIRECTED VERDICT: A judge’s order to a jury to return a specified verdict,
usually because one of the parties failed to prove its
case.
DISBURSEMENTS: Legal expenses that a lawyer passes on to a client, such
as for photocopying, overnight mail and messenger
services.
DISCOVERY: Part of
the pre-trial litigation process during which each party
requests relevant information and documents from the
other side in an attempt to "discover" pertinent facts.
DISMISSAL WITH
PREJUDICE: When a case is dismissed for good reason
and the plaintiff is barred from bringing an action on
the same claim.
DISMISSAL WITHOUT
PREJUDICE: When a case is dismissed but the
plaintiff is allowed to bring a new suit on the same
claim.
DOUBLE JEOPARDY: Being tried twice for the same offense.
DUE PROCESS: The
idea that laws and legal proceedings must be fair. The
Constitution guarantees that the government cannot take
away a person’s basic rights to "life, liberty or
property, without due process of law." Courts have
issued numerous rulings about what this means in
particular cases.
DUTY TO WARN: The
legal obligation to warn people of a danger. Typically,
manufacturers of hazardous products have a duty to warn
customers of a product’s potential dangers and to advise
users of any precautions they should take.
E
EASEMENT: Gives
one party the right to go onto another party’s property.
Utilities often get easements that allow them to run
pipes or phone lines beneath private property.
ELECTIVE SHARE: Refers to probate laws that allow a spouse to take a
certain portion of an estate when the other spouse dies,
regardless of what was written in the spouse’s will.
EMANCIPATION: When
a minor has achieved independence from his or her
parents, often by getting married before reaching age 18
or by becoming fully self-supporting.
EN BANC: French
for "by the full court." When all the members of an
appellate court hear an argument, they are sitting en
banc.
ENCUMBRANCE: Any
claim or restriction on a property’s title.
EQUAL ACCESS ACT: A law passed by Congress in 1984. It requires public
schools to allow students who to meet before and after
classes for religious purposes, including prayer, if
they want to do so. If all extracurricular activities
are prohibited by a school, it can also nix the prayer
meetings. Otherwise, it has to allow them.
EQUAL PROTECTION
CLAUSE: Portion of the Fourteenth Amendment to the
U.S. Constitution that prohibits discrimination by state
government institutions. The clause grants all people
"equal protection of the laws," which means that the
states must apply the law equally and cannot give
preference to one person or class of persons over
another.
EQUITABLE
DISTRIBUTION: In a divorce, one of the ways in which
property is divided. In states with equitable
distribution systems, property acquired during a
marriage is jointly owned by both spouses. Equitable
distribution does not necessarily mean equal
distribution, and ownership does not automatically split
fifty-fifty. Rather, the distribution must be fair and
just (equitable).
ESCROW: Money or
documents, such as a deed or title, held by a third
party until the conditions of an agreement are met. For
instance, pending the completion of a real estate
transaction, the deed to the property will be held "in
escrow."
ESCROW ACCOUNT: A
special account in which a lawyer or escrow agent
deposits money or documents that do not belong to him or
his firm.
ESCROW AGENT: In
some states, this person conducts real estate closings
and collects the money due the parties.
ESTABLISHMENT CLAUSE: Portion of the First Amendment to the U.S. Constituion
that prohibits government from "establishing" a
religion.
ESTATE: All the
property a person owns.
EVIDENCE: The
various things presented in court to prove an alleged
fact. Includes testimony, documents, photographs, maps
and video tapes.
EXECUTOR: Person
named in a will to oversee and manage an estate.
EXEMPT EMPLOYEES: Workers not entitled to overtime, generally workers in
executive, administrative or professional positions.
EXEMPT PROPERTY: In a bankruptcy, the possessions that a person is
allowed to keep.
EXIGENT CIRCUMSTANCES: Emergency conditions.
EX PARTE: Latin
that means "by or for one party." Refers to situations
in which only one party (and not the adversary) appears
before a judge. Such meetings are often forbidden.
EXPERT WITNESS: A
witness with a specialized knowledge of a subject who is
allowed to discuss an event in court even though he or
she was not present. For example, an arson expert could
testify about the probable cause of a suspicious fire.
EXPRESS WARRANTY: An assertion or promise concerning goods or services.
Statements such as "This air conditioner will cool a
five-room house," or "We will repair any problems in the
first year" are express warranties.
F
FAIR USE: The use
of a portion of copyrighted material in a way that does
not infringe the owner’s rights. The use of a portion of
material for educational purposes, literary criticism or
news reporting is often considered a fair use.
FAULT AUTO INSURANCE
SYSTEM: Refers to a system in which the party that
bears the blame (fault) for an accident is liable for
any damages.
FELONY: Serious
crime punishable by incarceration for a year or more.
Includes rape, murder, robbery, burglary, and arson.
FIDUCIARY DUTY: An
obligation to act in the best interest of another party.
For instance, a corporation’s board member has a
fiduciary duty to the shareholders, a trustee has a
fiduciary duty to the trust’s beneficiaries, and an
attorney has a fiduciary duty to a client.
FIXTURES: All
things that are attached to property, such as ceiling
lights, awnings, window shades and doorknobs. Fixtures
are automatically included in a sale, unless
specifically mentioned in the contract as going to the
seller.
FORECLOSURE: When
a borrower cannot repay a loan and the lender seeks to
sell the property.
FORESEEABILITY: A
key issue in determining a person’s liability. If a
defendant could not reasonably have foreseen that
someone might be hurt by his or her actions, then there
may be no liability.
FRANCHISE: A
business relationship in which an owner (the franchisor)
licenses others (the franchisees) to operate outlets
using business concepts, property, trademarks and
tradenames owned by the franchisor.
G
GARNISHMENT: Also
known as wage execution. A court-ordered method of debt
collection in which a portion of a person’s salary is
paid to a creditor. Often used to collect child support
payments.
GENERAL PARTNER: One of two kinds of partners in a limited partnership. A
general partner has the right to participate in the
management of the partnership and has unlimited personal
liability for its debts.
GOOD FAITH: Honestly and without deception. An agreement might be
declared invalid if one of the parties entered with the
intention of defrauding the other.
GRAND JURY: A
group of citizens convened in a criminal case to
consider the prosecutor’s evidence and determine whether
probable cause exists to prosecute a suspect for a
felony.
GRANTOR: The
person who sets up a trust.
GREEN CARD: An
immigrant visa. Allows an alien to become a lawful
permanent resident of the U.S. and to work legally,
travel abroad and return, bring in a spouse and children
and become eligible for citizenship.
GROSS NEGLIGENCE: Failure to use even the slightest amount of care in a
way that shows recklessness or willful disregard for the
safety of others.
GROUNDS FOR DIVORCE: The legal reason (or reasons) a divorce is granted.
There are two kinds of grounds: fault and no-fault.
GUARDIAN: Person
assigned by the court to take care of minor children or
incompetent adults. Sometimes called a conservator.
GUARDIAN AD LITEM: Latin for "guardian at law." The person appointed by the
court to look out for the best interests of the child
during the course of legal proceedings.
H
HABEAS CORPUS: Latin phrase meaning "you have the body." Prisoners
often seek release by filing a petition for a writ of
habeas corpus. A writ of habeas corpus is a judicial
mandate to a prison official ordering that an inmate be
brought to the court so it can be determined whether or
not that person is imprisoned lawfully.
HEALTH CARE PROXY: Someone designated to make a broad range of decisions
for a person who is not able to give informed consent.
HEARSAY: Secondhand information that a witness only heard about
from someone else and did not see or hear himself.
Hearsay is not admitted in court because it’s not
trustworthy, though there are many exceptions.
HEIRS: Persons who
are entitled by law to inherit the property of the
deceased if there is no will specifying how it’s
divided.
HOLOGRAPHIC WILL: An unwitnessed handwritten will. A few states allow such
documents to be admitted to probate, but most courts are
very reluctant to accept them.
HOSTILE ENVIRONMENT
SEXUAL HARASSMENT: Where a person is subject to
unwelcome sexual advances, requests for sexual favors,
or other verbal or physical conduct of a sexual nature
to such an extent that it alters the conditions of the
person’s employment and creates an abusive working
environment.
HUNG JURY: A jury
that is unable to reach a verdict.
I
IMMIGRANT VISA: See green card.
IMMUNITY: Exemption from a legal duty, penalty or prosecution.
IMPAIRMENT: When a
person’s faculties are diminished so that his or her
ability to see, hear, walk, talk and judge distances is
below the normal level as set by the state. Typically,
impairment is caused by drug or alcohol use, but can
also be caused by mental illness. Even if a person’s
alcohol level is lower than the legal intoxication
level, he can still be convicted if the state can show
his abilities were impaired.
IMPLIED CONSENT LAWS: (also called express consent) Laws adopted by all states
that apply to testing for alcohol in the blood, breath
or urine (most states have such laws that apply to
testing for the use of drugs). The principle underlying
these laws is that any licensed driver who operates a
vehicle has consented to submit to approved tests to
show intoxication.
IMPLIED WARRANTY: A guarantee imposed by law in a sale. Even though the
seller may not make any explicit promises, the buyer
still gets some protection.
IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE: Warranty that
exists when a seller should know that a buyer is relying
on the seller’s expertise.
IMPLIED WARRANTY OF
HABITABILITY: Law that exists in most states which
governs residential rentals and asserts that regardless
of what a lease says, the landlord must provide premises
that are safe and liveable (habitable) at some basic
level. Problems with essential building services and
cleanliness are often breaches of the implied warranty
and the landlord will be required to correct them.
IMPLIED WARRANTY OF
MERCHANTABILITY: Warranty that guarantees that goods
are reasonably fit for their ordinary purpose.
IN CAMERA: Latin
for "in chambers." Refers to a hearing or inspection of
documents that takes places in private, often in a
judge’s chambers.
INDICTMENT: A
formal accusation of a felony, issued by a grand jury
after considering evidence presented by a prosecutor.
INDIGENT: Lacking
in funds; poor.
INFORMATION: A
formal accusation of a crime, issued by a prosecutor. An
alternative to an indictment.
INFORMED CONSENT: Except in the case of an emergency, a doctor must obtain
a patient’s agreement (informed consent) to any course
of treatment. Doctors are required to tell the patient
anything that would substantially affect the patient’s
decision. Such information typically includes the nature
and purpose of the treatment, its risks and consequences
and alternative courses of treatment.
INFRACTIONS: Sometimes called violations. Minor offenses, often
traffic tickets, which are punishable only by a fine.
INFRINGEMENT: Unauthorized use, typically of a patent or copyright.
INTERLOCUTORY ORDER: Temporary order issued during the course of litigation.
Typically cannot be appealed because it is not final.
INTERROGATORIES: Part of the pre-trial discovery (fact-finding) process
in which a witness provides written answers to written
questions under oath. The answers often can be used as
evidence in the trial.
INTESTATE: To die
without a will.
IRREVOCABLE LIVING
TRUST: A trust created during the maker’s lifetime
that does not allow the maker to change it.
J
JOINT AND SURVIVOR
ANNUITY: A form of pension fund payment in which the
retired participant gets a check every month. If and
when the participant dies, the spouse continues to get a
monthly check equal to one-half of the benefit for the
rest of his or her life.
JOINT CUSTODY: When both parents share custody of a child after a
divorce. There are two kinds of custody: legal custody
and physical custody. Either or both may be joint.
JOINT PROPERTY: Sometimes called joint tenancy. Property that names a
co-owner on its deed or title. Co-owners retain
ownership of the property upon the death of a co-owner.
A co-owner in a joint property arrangement cannot give
away his or her share of the property.
JUDGMENT: A
court’s official decision on the matters before it.
JUDGMENT NON OBSTANTE
VEREDICTO: Known also as a judgment notwithstanding
the verdict. A decision by a trial judge to rule in
favor of a losing party even though the jury’s verdict
was in favor of the other side. Usually done when the
facts or law do not support the jury’s verdict.
JURISDICTION: A
court’s authority to rule on the questions of law at
issue in a dispute, typically determined by geographic
location and type of case.
JURY CHARGE: The
judge’s instructions to the jurors on the law that
applies in a case and definitions of the relevant legal
concepts. These instructions may be complex and are
often pivotal in a jury’s discussions.
JUST CAUSE: A
legitimate reason. Often used in the employment context
to refer to the reasons why someone was fired.
K
L
LEGAL CUSTODY: In
a divorce, one of two types of child custody. A parent
who has legal custody has the right to be involved in
all the decision making typically involved with being a
parent, such as religious upbringing, education and
medical decisions. Legal custody can be either sole or
joint. Compare with physical custody.
LEGATEE: Also
known as a beneficiary. Person named in a will to
receive property.
LEMON LAWS: Laws
that require manufacturers to repair defective cars. If
the repairs are not made within a reasonable amount of
time and number of attempts, the manufacturer is
required to refund the purchase price, less a reasonable
amount for the use of the car.
LESSER INCLUDED
OFFENSES: Charges that contain elements of the most
serious charge against a defendant. For instance, a
person charged with first-degree murder (which requires
premeditation) could be convicted of second-degree
murder (a killing done without premeditation) or
manslaughter (a killing done in the heat of passion)
LIABILITY: Any
legal responsibility, duty or obligation.
LIBEL: Defamatory
(false and injurious) written statements or materials,
including movies or photographs.
LIEN: A claim
against someone’s property. A lien is instituted in
order to secure payment from the property owner in the
event that the property is sold. A mortgage is a common
lien.
LIMITED LIABILITY
COMPANY: A business structure that is a hybrid of a
partnership and a corporation. Its owners are shielded
from personal liability and all profits and losses pass
directly to the owners without taxation of the entity
itself.
LIMITED PARTNER: One of two kinds of partners in a limited partnership.
Is personally liable for the debts of the partnership
only to the extent of his or her investment in it and
has little to no voice in its management.
LIMITED PARTNERSHIP: A partnership with two kinds of partners: limited
partners, who provide financial backing and have little
role in management and no personal liability, and
general partners, who are responsible for managing the
entity and have unlimited personal liability for its
debts.
LIQUIDATED DAMAGES: The amount of money specified in a contract to be
awarded in the event that the agreement is violated.
LIVING-TOGETHER
CONTRACT: See cohabitation agreement.
LIVING TRUST: A
trust created during the maker’s lifetime. Some living
trusts are set up so that they can be changed during the
maker’s lifetime. These are called "revocable." Others,
known as "irrevocable," are set up so that they can’t be
touched.
LIVING WILL: Also
known as a medical directive or advance directive. A
written document that states a person’s wishes regarding
life-support or other medical treatment in certain
circumstances, usually when death is imminent.
M
MAINTENANCE: See
alimony. In a divorce or separation, the money paid by
one spouse to the other in order to fulfill the
financial obligation that comes with marriage.
MALPRACTICE: Improper or negligent behavior by a professional, such
as a doctor or a lawyer. The failure of a professional
to follow the accepted standards of practice of his or
her profession.
MANDATORY SENTENCE: A criminal sentence set by a legislature that
establishes the minimum length of prison time for
specified crimes and thus limits the amount of
discretion a judge has when sentencing a defendant.
MARITAL LIFE ESTATE: See bypass trust.
MEDIATION: A
method of alternative dispute resolution in which a
neutral third party helps resolve a dispute. The
mediator does not have the power to impose a decision on
the parties. If a satisfactory resolution cannot be
reached, the parties can pursue a lawsuit.
MEDICAL DIRECTIVE: See living will.
MINOR: A person
who does not have the legal rights of an adult. A minor
is usually defined as someone who has not yet reached
the age of majority. In most states, a person reaches
majority and acquires all of the rights and
responsibilities of an adult when he or she turns 18.
MIRANDA WARNING: The statement recited to individuals taken into police
custody. It warns of their right to remain silent and to
have an attorney.
MISDEMEANOR: Crime
that is punishable by less than one year in jail, such
as minor theft and simple assault that does not result
in substantial bodily injury.
MITIGATING FACTORS: Information about a defendant or the circumstances of a
crime that might tend to lessen the sentence or the
crime with which the person is charged.
MOTION: A request
asking a judge to issue a ruling or order on a legal
matter.
MOTION FOR A NEW
TRIAL: Request in which a losing party asserts that
a trial was unfair due to legal errors that prejudiced
its case.
MOTION FOR DIRECTED
VERDICT: A request made by the defendant in a civil
case. Asserts that the plaintiff has raised no genuine
issue to be tried and asks the judge to rule in favor of
the defense. Typically made after the plaintiff is done
presenting his or her case.
MOTION FOR SUMMARY
JUDGMENT: A request made by the defendant in a civil
case. Asserts that the plaintiff has raised no genuine
issue to be tried and asks the judge to rule in favor of
the defense. Typically made before the trial.
MOTION TO DISMISS: In a civil case, a request to a judge by the defendant,
asserting that even if all the allegations are true, the
plaintiff is not entitled to any legal relief and thus
the case should be dismissed.
MOTION TO SUPPRESS
EVIDENCE: A request to a judge to keep out evidence
at a trial or hearing, often made when a party believes
the evidence was unlawfully obtained.
N
NAMED PLAINTIFFS: The originators of a class action suit.
NEGLIGENCE: A
failure to use the degree of care that a reasonable
person would use under the same circumstances.
NO-FAULT AUTO
INSURANCE SYSTEM: Under a no-fault system it doesn’t
matter which driver made the mistake that caused an
accident. Each individual recovers from his or her own
insurance carrier, regardless of who caused the
accident.
NO-FAULT DIVORCE: A divorce in which it it doesn’t matter who did what to
whom that caused the marriage to break down; all that
matters is that there is no reasonable prospect of
reconciliation.
NON-EXEMPT EMPLOYEES: Workers who are entitled to overtime pay after working
more than forty hours in a five day work week. Generally
includes secretaries, factory workers, clerical workers
and anyone paid by the hour.
NON-EXEMPT PROPERTY: In a bankruptcy, the possessions of a person that can be
sold.
NONIMMIGRANT VISA: Visa granted to a foreigner who does not intend to stay
in the U.S. permanently.
NOTARY PUBLIC: A
person authorized to witness the signing of documents.
NOTICE OF APPEAL: The document a person must file with the trial court in
order to pursue an appeal.
O
OFFICERS OF A
CORPORATION: Those people with day-to-day
responsibility for running the corporation, such as the
chief executive, chief financial officer and treasurer.
OPEN ADOPTION: An
adoption in which the birth mother may retain some
visitation privileges.
OWN RECOGNIZANCE: Sometimes called personal recognizance. A person who
promises to appear in court to answer criminal charges
can sometimes be released from jail without having to
pay bail. This person is said to be released on his or
her own recognizance.
P
PARENS PATRIAE: Latin for "parent of his country." Used when the
government acts on behalf of a child or mentally ill
person. Refers to the "state" as the guardian of minors
and incompetent people.
PAROLE: A system
for the supervised release of prisoners before their
terms are over. Congress has abolished parole for people
convicted of federal crimes, but most states still offer
parole.
PARTITION: A court
action to divide property. Typically taken when a
property is jointly owned and a dispute arises about how
to divide it.
PARTNERSHIP: An
association of two or more people who agree to share in
the profits and losses of a business venture.
PATENT: A document
issued to an inventor by the United States Patent and
Trademark Office. Contains a detailed description of
what the invention is and how to make or use it and
provides rights against infringers.
PENALTY PHASE: The
second part of a bifurcated trial, in which the jury
hears evidence and then votes on what penalty or damages
to impose.
PENSION PLAN: An
employer’s program for providing retirement income to
eligible employees.
PEREMPTORY CHALLENGES: Limited number of challenges each side in a trial can
use to eliminate potential jurors without stating a
reason. May not be used to keep members of a particular
race or sex off the jury.
PERJURY: A crime
in which a person knowingly makes a false statement
while under oath in court. In some jurisdictions, making
a false statement in a legal document can also be
considered perjury.
PERSONAL GUARDIAN: Person appointed to take custody of children and provide
for their care and upbringing. Distinguished from
property guardian.
PERSONAL RECOGNIZANCE: Sometimes called own recognizance. A person who promises
to appear in court to answer criminal charges can
sometimes be released from jail without having to pay
bail. This person is said to be released on his or her
personal recognizance.
PERSONAL
REPRESENTATIVE: A person who manages the legal
affairs of another, such as a power of attorney or
executor.
PETIT JURY: The
jurors empanelled to hear a civil or criminal trial.
Distinguished from a grand jury.
PETITION: A
written application to the court asking for specific
action to be taken.
PETITION FOR PROBATE: The document that summarizes a will’s provisions and
names the heirs.
PETTY OFFENSES: Minor crimes, such as traffic violations, which are
generally punishable by a fine or short jail term.
PHYSICAL CUSTODY: In a divorce, one of two types of child custody. A
parent who has physical custody lives most of the time
with the child. Compare with legal custody.
PIERCING THE CORPORATE
VEIL: A legal concept through which a corporation’s
shareholders, who generally are shielded from liability
for the corporation’s activities, can be held
responsible for certain actions.
PLAINTIFF: The
person who initiates a lawsuit.
PLEA BARGAIN: An
negotiated agreement between the defense and the
prosecution in a criminal case. Typically the defendant
agrees to plead guilty to a specified charge in exchange
for an oral promise of a lower sentence.
PLEADINGS: In a
civil case, the allegations by each party of their
claims and defenses.
POWER OF ATTORNEY: The authority to act legally for another person.
PRECEDENT: A
previously decided case that is considered binding in
the court where it was issued and in all lower courts in
the same jurisdiction.
PRELIMINARY HEARING: Legal proceeding used in some states in which a
prosecutor presents evidence to a judge in an attempt to
show that there is probable cause that a person
committed a crime. If the judge is convinced probable
cause exists to charge the person, then the prosecution
proceeds to the next phase. If not, the charges are
dropped.
PREPONDERANCE OF THE
EVIDENCE: The level of proof required to prevail in
most civil cases. The judge or jury must be persuaded
that the facts are more probably one way (the
plaintiff’s way) than another (the defendant’s).
PRE-SENTENCING REPORT: A report prepared by a probation department for a judge
to assist in sentencing. Typically contains information
about prior convictions and arrests, work history and
family details.
PRE-TRIAL DIVERSION: Also known as adjournment in contemplation of dismissal
or conditional dismissal. A program in which a defendant
essentially is put on probation for a set period of time
and his or her case does not go to trial during that
time. If the defendant meets the conditions set by the
court, then the charge will be dismissed.
PRIMA FACIE: Latin
for "at first view." Refers to the minimum amount of
evidence a plaintiff must have to avoid having a case
dismissed. It is said that the plaintiff must make a
prima facie case.
PRIVILEGED
COMMUNICATION: Conversation that takes places within
the context of a protected relationship, such as that
between an attorney and client, a husband and wife, a
priest and penitent, and a doctor and patient. The law
often protects against forced disclosure of such
conversations.
PRO SE: (pronounced pro say) Latin phrase that means "for
himself." A person who represents himself in court alone
without the help of a lawyer is said to appear pro se.
PROBABLE CAUSE: A
reasonable belief that a person has committed a crime.
PROBATE: The legal
process in which a court oversees the distribution of
property left in a will.
PROBATION: The
release into the community of a defendant who has been
found guilty of a crime, typically under certain
conditions, such as paying a fine, doing community
service or attending a drug treatment program. Violation
of the conditions can result in incarceration. In the
employment context, probation refers to the trial period
some new employees go through.
PROMISSORY NOTE: A
written document in which a borrower agrees (promises)
to pay back money to a lender according to specified
terms.
PROPERTY GUARDIAN: Person appointed to oversee property left to a minor in
a will. Distinguished from a personal guardian.
PROSECUTOR: The
government lawyer who investigates and tries criminal
cases. Typically known as a district attorney, state’s
attorney, or United States attorney.
PROTECTIVE ORDER: In litigation, an order that prevents the disclosure of
sensitive information except to certain individuals
under certain conditions. In a domestic dispute, an
order that prevents one party from approaching another,
often within a specified distance.
PUBLIC DEFENDER: A
lawyer who works for a state or local agency
representing clients accused of a crime who cannot
afford to pay.
PUNITIVE DAMAGES: Money awarded to a victim that is intended to punish a
defendant and stop the person or business from repeating
the type of conduct that caused an injury. Also intended
to deter others from similar conduct.
Q
QUASH: To nullify,
void or declare invalid.
QUID PRO QUO: Latin phrase that means what for what or something for
something. The concept of getting something of value in
return for giving something of value. For a contract to
be binding, it usually must involve the exchange of
something of value.
QUID PRO QUO SEXUAL
HARASSMENT: Where an employee is threatened with a
demotion (or promised a promotion) in exchange for
"sexual favors." It usually comes from a supervisor or
other person in a position of authority.
QUITCLAIM DEED: A
deed that transfers the owner’s interest to a buyer but
does not guarantee that there are no other claims
against the property.
R
REAL PROPERTY: Land and all the things that are attached to it.
Anything that is not real property is personal property
and personal property is anything that isn’t nailed
down, dug into or built onto the land. A house is real
property, but a dining room set is not.
REASONABLE CARE: The level of care a typical person would use if faced
with the same circumstances.
REASONABLE DOUBT: The level of certainty a juror must have to find a
defendant guilty of a crime.
RE-CROSS EXAMINATION: Questioning a witness about matters brought up during
re-direct examination.
RE-DIRECT EXAMINATION: Questioning a witness about matters brought up during
cross examination.
REFUGEE: A person
who applies to enter the U.S. from outside the country,
claiming an inability or unwillingness to return to (or
remain in) the home country because of a well-founded
fear of persecution.
REMAND: When an
appellate court sends a case back to a lower court for
further proceedings.
REPLEVIN: Repossession. Action taken by a creditor to seize assets
of a debtor.
RESIDUARY ESTATE: Also known as residue of the estate. Portion of the
estate left after bequests of specific items of property
are made. Often the largest portion.
RESIDUARY LEGATEE: The person or persons named in a will to receive any
residue left in an estate after the bequests of specific
items are made.
RES IPSA LOQUITUR: A Latin phrase, that means "the thing speaks for
itself." Refers to situations when it’s assumed that a
person’s injury was caused by the negligent action of
another party because the accident was the sort that
wouldn’t occur unless someone was negligent.
RETAINER: Refers
to the up front payment a client gives a lawyer to
accept a case. The client is paying to "retain" the
lawyer’s services.
RETAINING LIEN: Gives a lawyer the right to hold on to your money or
property (such as a deed) until you pay the bill.
REVOCABLE LIVING
TRUST: A trust created during the maker’s lifetime
that can be changed. Allows the creator to pass assets
on to chosen beneficiaries without going through
probate.
RIGHT AGAINST
SELF-INCRIMINATION: Granted by the Fifth Amendment.
Allows a person to refuse to answer questions that would
subject him or her to accusation of a criminal act.
RIGHT OF EMINENT
DOMAIN: The government’s right to acquire private
property for public use.
RIGHT OF SURVIVORSHIP: In a joint-tenancy, the property automatically goes to
the co-owners if one of the co-owners dies. A co-owner
in a joint tenancy cannot give away his or her share of
the property.
S
SECURITY AGREEMENT: A contract between a lender and borrower that states
that the lender can repossess the property a person has
offered as collateral if the loan is not paid as agreed.
SELF-PROVING WILL:
A will accompanied by a sworn statement from witnesses
and signed before a notary public. Many states accept
such wills in order to avoid the cumbersome process of
requiring an executor to track down the witnesses.
SEPARATION AGREEMENT: In a marital breakup, a document that outlines the terms
of the couple’s separation.
SERVICE OF PROCESS: The act of notifying the other parties that an action
has begun and informing them of the steps they should
take in order to respond.
SETTLEMENT: The
resolution or compromise by the parties in a civil
lawsuit.
SETTLEMENT AGREEMENT: In a civil lawsuit, the document that spells out the
terms of an out-of-court compromise.
SHAREHOLDER: An
owner or investor in a corporation.
SINGLE LIFE ANNUITY: A form of pension plan payment in which the retired
person receives a monthly check from the time of
retirement until death.
SLANDER: Defamatory (false and injurious) oral statements or
gestures.
SOLE PROPRIETORSHIP: A form of business organization in which an individual
is fully and personally liable for all the obligations
(including debts) of the business, is entitled to all of
its profits and exercises complete managerial control.
SPENDTHRIFT TRUST: A trust designed to keep money out of the hands of
creditors. Often established to protect someone who is
incapable of managing his or her financial affairs.
SPOUSAL RIGHT: The
entitlement of one spouse to inherit property from the
other spouse. The right varies from state to state.
SPOUSAL SUPPORT: See alimony.
STANDARD OF CARE: The degree of care a reasonable person would take to
prevent an injury to another.
STANDING: The
legal right to initiate a lawsuit. To do so, a person
must be sufficiently affected by the matter at hand, and
there must be a case or controversy that can be resolved
by legal action.
STARE DECISIS: Latin for "to stand by that which is decided." Refers to
the principle of adhering to precedent when deciding a
case.
STATIONHOUSE BAIL: Bail that some defendants accused of misdemeanors may be
allowed to pay at the police station. This allows them
to be released prior to appearing before a judge.
STATUTES OF FRAUD: Laws in most states to protect against false claims for
payment from contracts that were not agreed upon. The
specific laws vary from state to state, but most require
that certain contracts be in writing.
STATUTES OF
LIMITATIONS: Laws setting deadlines for filing
lawsuits within a certain time after events occur that
are the source of a claim.
STRICT LIABILITY: Liability even when there is no proof of negligence.
Often applicable in product liability cases against
manufacturers, who are legally responsible for injuries
caused by defects in their products, even if they were
not negligent.
SUBLET: When a
party agrees to rent a space from the main tenant for a
portion of the time remaining on the lease.
SUBPOENA: An order
compelling a person to appear to testify or produce
documents.
SUMMATION: The
closing argument in a trial.
SUMMONS: A legal
document that notifies a party that a lawsuit has been
initiated and states when and where the party must
appear to answer the charges.
T
TANGIBLE PERSONAL
PROPERTY: Anything other than real estate or money,
including furniture, cars, jewelry and china.
TENANCY IN COMMON: A type of joint ownership that allows a person to sell
his share or leave it in a will without the consent of
the other owners. If a person dies without a will, his
share goes to his heirs, not to the other owners.
TESTAMENTARY TRUST: A trust created by the provisions in a will. Typically
comes into existence after the writer of the will dies.
TESTATOR: The
person who makes a will.
TITLE: Ownership
of property.
TITLE SEARCH: A
review of the land records to determine the ownership
and description of the property.
TORT: A civil
wrong that result in an injury to a person or property.
TOTTEN TRUST: A
bank account in your name for which you name a
beneficiary. Upon the death of the named holder of the
account the money transfers automatically to the
beneficiary.
TRADEMARK: A word,
name or symbol used to identify products sold or
services provided by a business. Distinguishes the
products or services of one business from those of
others in the same field. A business using a trademark
has the right to prevent other businesses from using it
and can get money to compensate for its infringement.
TRADE NAME: The
name used to identify a business.
TRUST: Property
given to a trustee to manage for the benefit of a third
person. Generally the beneficiary gets interest and
dividends on the trust assets for a set number of years.
TRUSTEE: Person or
institution that oversees and manages a trust.
U
UNIFORM COMMERCIAL
CODE: A model statute covering things such as the
sale of goods, credit, and bank transactions. All states
have adopted and adapted the entire UCC, with the
exception of Louisiana, which only adopted parts of it.
UNIFORM RECIPROCAL
ENFORCEMENT OF SUPPORT ACT: Law that allows an order
of child support issued in one state to be enforced in
another state.
UNJUST TAKING: When the government acquires private property and fails
to compensate an owner fairly. A taking can occur even
without the actual physical seizure of property, such as
when a government regulation has substantially devalued
a property.
V
VALID CLAIM: A
grievance that can be resolved by legal action.
VERDICT: The
formal decision issued by a jury on the issues of fact
that were presented at trial.
VESTED RIGHT: An
absolute right. When a retirement plan is fully vested,
the employee has an absolute right to the entire amount
of money in the account.
VICARIOUS LIABILITY: When one person is liable for the negligent actions of
another person, even though the first person was not
directly responsible for the injury. For instance, a
parent sometimes can be vicariously liable for the
harmful acts of a child and an employer sometimes can be
vicariously liable for the acts of a worker.
VISITATION RIGHT: The right granted to a parent or other relative to visit
a child on a specified basis. Usually occurs during a
divorce proceeding.
VOID MARRIAGE: One
of two types of marriages that can be annulled. A void
marriage is one that is void and invalid from its
beginning. It is as though the marriage never existed
and it requires no formality to terminate it. For
instance, an incestuous marriage would likely be
considered void.
VOIDABLE MARRIAGE: A valid marriage that can be annulled if challenged, but
that otherwise remains legitimate. For instance, if one
of the parties was a minor at the time of marriage, the
marriage could be annulled if challenged. If it’s never
challenged, the marriage is considered valid.
VOIR DIRE: A
French phrase that means "to speak the truth." The
process of interviewing prospective jurors. Pronounced "vwa
dear."
W
WAGE EXECUTION: See garnishment.
WARRANT: An
official order authorizing a specific act, such as an
arrest or the search of someone’s home.
WARRANTY: A
promise about a product made by either a manufacturer or
a seller.
WITNESS: Person
who comes to court and swears under oath to give
truthful evidence.
WORKER’S COMPENSATION: A benefit paid to an employee who suffers a work-related
injury or illness.
WRIT: an
order issuing from a court of justice and requiring the
performance of a specified act, or giving authority and
commission to have it done.
also see: judicial order.
WRONGFUL DISCHARGE: When an employee is fired for reasons that are not
legitimate, typically either because they are unlawful
or because they violate the terms of an employment
contract.
X
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source:
http://www.courttv.com/archive/legalterms/glossary.html
