A legal document that allows you to set out written wishes for your medical care and to name a person to make sure those wishes are carried out.
The opposite side in a lawsuit. Sometimes when there are numerous parties in one lawsuit, they may be adverse to each other on some issues and in agreement on other matters.
Someone who signs an affidavit and swears to its truth before a notary public or another person authorized to take oaths, such as a county clerk.
Any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a county clerk) that the statements in the document are true. In many states, a declaration under penalty of perjury, which does not require taking an oath, is the equivalent of an affidavit.
When a defendant in a civil lawsuit files a response, usually called an “answer,” the answer will state the defendant’s denials of the claims made. In addition, the defendant may state affirmative defenses that excuse or justify the behavior on which the lawsuit is based. For example, an affirmative defense of “unclean hands” argues that the person bringing the lawsuit has acted badly in a way that should preclude any finding against the defendant.
The relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. The principal is responsible for the acts of the agent, and the agent’s acts bind the principal.
A person authorized to act for and under the direction of another person when dealing with third parties. The person who appoints an agent is called the principal. An agent can enter into binding agreements on the principal’s behalf and may even create liability for the principal if the agent causes harm while carrying out his or her duties. Also called an attorney-in-fact.
Agreed Statement of Facts
A statement of facts, agreed to by the parties to a lawsuit (at trial or on appeal) and submitted to the court in writing.
A meeting of the minds. An agreement is made when two people reach an understanding about a particular issue, including their obligations, duties, and rights. While agreement is sometimes used to mean a contract — a legally binding oral or written agreement — it is actually a broader term, including understandings that might not rise to the level of a legally binding contract.
Alternative Dispute Resolution (ADR)
A catchall term that describes a variety of methods that parties can use to resolve disputes outside of court, including negotiation, conciliation, mediation, collaborative practice, and the many types of arbitration. The common denominator of all ADR methods is that they are faster, less formalistic, less expensive, and often less adversarial than a court trial.
A second (or third, or fourth, etc.) version of a complaint submitted by the plaintiff or petitioner. A party may amend a complaint to correct facts, add new claims, substitute discovered names for persons sued as “Doe” defendants, or revise a cause of action after the court has found the complaint inadequate.
American Bar Association (ABA)
A voluntary professional association of U.S. lawyers founded in 1878. The ABA’s activities and mission include providing law school accreditation, continuing legal education classes, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.
American Civil Liberties Union
A national membership organization that takes legal action to defend and preserve the individual rights and liberties of people as set forth in the U.S. Constitution.
Americans with Disabilities Act (ADA)
A federal law that prohibits discrimination against people with physical or mental disabilities in employment, public services, transportation, and places of public accommodation, such as restaurants, hotels, and theaters. The law also requires employers to make reasonable accommodations to allow employees with disabilities to do their jobs.
Latin for “friend of the court,” a person or organization that is not a party to a lawsuit but that has a strong interest in the case and wants to participate, usually by filing a brief in support of one party’s position. Amicus curiae must be invited by the court or obtain permission from the court before participating.
A pardon extended to a group or class of individuals by the government, usually before any trial or conviction. Amnesties often follow wars — for example, the amnesty granted to Confederate officials and soldiers after the Civil War or to those who violated the Selective Service Act by evading the draft during the Vietnam War.
The beneficiary of an annuity.
A purchased policy that pays a fixed amount of benefits every year — although most annuities actually pay monthly — for the life of the person who is entitled to those benefits. In a simple life annuity, when the person receiving the annuity dies, the benefits stop; there is no final lump sum payment and no provision to pay benefits to a spouse or other survivor. A continuous annuity pays monthly installments for the life of the retired worker, and also provides a smaller continuing annuity for the worker’s spouse or other survivor after the worker’s death. A joint and survivor annuity pays monthly benefits as long as the retired worker is alive, and then continues to pay the worker’s spouse for life.
A defendant’s written response to a plaintiff’s initial court filing (called a complaint or petition). An answer normally denies some or all of the facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff (called counterclaims) or providing justification for the defendant’s behavior (called affirmative defenses). Normally a defendant has 30 days in which to file an answer after being served with the plaintiff’s complaint. In some courts, an answer is called a “response.”
A written petition to a higher court to modify or reverse a decision of a lower court (either a trial court or intermediate level appellate court). An appeal begins when the loser at trial (called the appellant) files a notice of appeal within strict time limits (often 30 days from the date of judgment). The appellant and the appellee (the winner at trial) submit written arguments and often make oral arguments explaining why the lower court’s decision should be upheld or overturned.
A party to a lawsuit who appeals to a higher court in an effort to have a losing decision modified or reversed.
A higher court that reviews the decision of a lower court when a losing party files an appeal.
A party to a lawsuit who wins in the trial court — or sometimes on a first appeal — only to have the other party (called the appellant) file for an appeal. An appellee files a written brief responding to the appeal, and often makes an oral argument before the appellate court, asking that the lower court’s judgment be upheld. In some courts, an appellee is called a respondent
An out-of-court procedure for resolving disputes in which one or more people — the arbitrator(s) — hear evidence and make a decision. Arbitration is like a trial in some ways, but typically proceeds much more quickly and with less formality.
A persuasive presentation summarizing the law and facts regarding an issue.
Generally, any property that has value, whether monetary or sentimental. As used by the IRS, the term means any property with a value and useful life of at least one year that is used in a trade or business — for example, machinery, buildings, vehicles, equipment, patents, and money held by or owed to a business.
To transfer to another person (the assignee) all or some of the rights and responsibilities that another person (the assignor) holds under a contract. For example, a tenant may assign his lease to another person, who then has the right to live in the rental and the obligation to honor all terms of the lease. Also, to assert or point out, as in, “The appellant assigned as errors three of the judge’s rulings.”
In a professional organization, a junior professional; for example, in a law firm, a lawyer with less experience than a partner.
Assumption of Risk
1) An affirmative defense in a negligence case, in which the defendant claims that the situation (taking a ski-lift, climbing a steep cliff) was so inherently or obviously hazardous that the injured plaintiff must have known of the risk, but took the chance of being injured. 2) The act of contracting to take over a risk, such as buying the right to a shipment and accepting the danger that it could be damaged or prove unprofitable.
An employment arrangement in which the employee may quit at any time, and the employer may fire the employee for any reason that is not illegal. For example, an employer may fire an at-will employee for poor performance, to cut costs, or because the employer simply doesn’t like the employee, but may not fire an at-will employee for discriminatory reasons, to retaliate against the employee for reporting harassment, or because the employee exercised a legal right.
To state and confirm that something is true or genuine. For example, witnesses to a will attest that the will maker signed the document and declared it to be his or her will.
The payment made to a lawyer for legal services. These fees may take several forms: hourly, per job or service — for example, $350 to draft a will, contingency (the lawyer collects a percentage of any money she wins for her client and nothing if there is no recovery), or retainer (usually a down payment as part of an hourly or per job fee agreement). Attorney fees must usually be paid by the client who hires a lawyer, though occasionally a law or contract will require the losing party of a lawsuit to pay the winner’s court costs and attorney fees. For example, a contract might contain a provision that says the loser of any lawsuit between the parties to the contract will pay the winner’s attorney fees. Many laws designed to protect consumers also provide for attorney fees — for example, most state laws that require landlords to provide habitable housing also specify that a tenant who sues and wins using that law may collect attorney fees. And in family law cases — divorce, custody and child support — judges often have the power to order the more affluent spouse to pay the other spouse’s attorney fees, even where there is no clear victor.
Attorney of Record
The attorney who has appeared in court or signed pleadings or other forms on behalf of a client. This attorney will remain the attorney of record on a case until the client dismisses the attorney, the court allows the attorney to withdraw, or the case is closed.
Attorney Work Product
Written materials, charts, notes of conversations and investigations, and other materials related to the preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in court or otherwise revealed to the other side.
Attorney Work Product Privilege
A rule that protects materials prepared by a lawyer in preparation for trial from being seen and used by the adversary during discovery or trial.
A rule that keeps communications between an attorney and client confidential and protects everything said between attorney and client from being discovered by the opposing party during pretrial investigation, or used as evidence in a trial. The same type of privilege exists between physician and patient, clergy and parishioner, and spouses.
Something on a piece of property that attracts children but also endangers their safety. For example, unfenced swimming pools, open pits, farm equipment, and abandoned refrigerators have all qualified as attractive nuisances. Landowners have a duty to keep their property free of attractive nuisances.
To offer testimony that tells the judge what an item of evidence is and its connection to the case. The purpose of authentication is usually to establish that the evidence can be admitted for purposes of making a decision in the case.
An injunction that goes into effect automatically when a debtor files for bankruptcy. The automatic stay prohibits most creditor collection activities, such as filing or continuing lawsuits, making written requests for payment, or notifying credit reporting agencies of an unpaid debt.
1) The written decision of an arbitrator or commissioner (or any non-judicial arbiter) setting out the arbitrator’s award. 2) The amount awarded in a money judgment to a party to a lawsuit, arbitration, or administrative claim. Example: “Plaintiff is awarded $27,000.”
The intentional refusal to fulfill a legal or contractual obligation, misleading another, or entering into an agreement without intending to or having the means to complete it. Most contracts come with an implied promise to act in good faith.
1) A court official, usually a peace officer or deputy sheriff, who keeps order in the courtroom and handles errands for the judge and clerk. 2) In some jurisdictions, a person appointed by the court to handle the affairs of an incompetent person or to be a keeper of goods or money pending further order of the court.
A person appointed by the court to oversee a bankruptcy case. In a Chapter 7 case, the trustee’s role is to gather the debtor’s nonexempt property, sell it, and distribute the proceeds to creditors. In a Chapter 13 case, the trustee’s role is to receive the debtor’s monthly payments and distribute them to creditors. Businesses can file for Chapter 11 bankruptcy.
A trial decided by a judge (sitting on the “bench”), without a jury.
A person or organization legally entitled to receive benefits through a legal device, such as a will, trust, or life insurance policy.
A trial that is divided into stages: one stage to establish guilt or liability, and the other stage to establish damages or punishment.
A temporary insurance contract that provides insurance coverage while the permanent policy is being prepared.
Blood Alcohol Content (BAC)
The amount of alcohol in a person’s blood, expressed as a percentage. Blood-alcohol content (BAC) determines whether a person is legally intoxicated, especially for purposes of drunk driving laws. As of 2011, all states have adopted .08% as the legal limit for intoxication. Also called blood-alcohol concentration or blood-alcohol level.
A reference guide considered by legal professionals to be the authority on legal citation. The book’s complete title is The Bluebook: A Uniform System of Citation. The Bluebook is published by the Harvard Law Review Association in collaboration with the editors of the Yale Law Journal, the Columbia Law Review, and the University of Pennsylvania Law Review.
Bona Fide Occupational Qualification (BFOQ)
An employer’s job requirement that discriminates against a protected class but is not considered illegal because it is reasonably necessary to the operation of a business.
(1) A written agreement purchased from a bonding company that guarantees a person will properly carry out a specific act, such as managing funds, showing up in court, providing good title to a piece of real estate, or completing a construction project. If the person who purchased the bond fails at his or her task, the bonding company will pay the aggrieved party an amount up to the value of the bond. The bonding company often requires collateral (by placing a lien on the purchaser’s real estate), and if it has to pay out on the bond, it will sell the collateral to cover its loss. (2) An interest-bearing document issued by a government or company as evidence of a debt. A bond provides predetermined payments at a set date to the bond holder. Bonds may be “registered” bonds, which provide payment to the bond holder whose name is recorded with the issuer and appears on the bond certificate, or “bearer” bonds, which provide payments to whomever holds the bond in-hand.
Breach Of Contract
A legal claim that one party failed to perform as required under a valid agreement (written or oral) with the other party. For example you might say, “The roofer breached our contract by using substandard supplies when he repaired my roof.”
Breach Of Warranty
Violation of an agreement between a seller and a buyer as to the condition, quality, or title of the item sold. It can apply to title of real property or goods, or to an assurance about quality of an item sold. The warranty need not be expressed, but may be implied from the circumstances at the time of sale. The party making the warranty is liable to the party to whom the guarantee was made.
A document used to submit a legal contention or argument to a court. A brief typically sets out the facts of the case and a party’s legal arguments. These arguments must be supported by legal authority and precedent, such as statutes, regulations, and previous court decisions. Don’t be fooled by the name — briefs are usually anything but brief, as pointed out by writer Franz Kafka, who defined a lawyer as “a person who writes a 10,000-word decision and calls it a brief.”
Burden Of Proof
A party’s job of convincing the decision maker in a trial that the party’s version of the facts is true. In a civil trial, it means that the plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff’s version is true — that is, over 50% of the believable evidence is in the plaintiff’s favor. (That said, the burden of proof may shift to the defendant if the defendant raises a factual issue in defense to the plaintiff’s claims.) In a criminal case, because a person’s liberty is at stake, the government has a harder job, and must convince the judge or jury beyond a reasonable doubt that the defendant is guilty.
A person who enters commercial premises for the purpose of doing business. A business is liable to a business invitee for injury caused by dangerous conditions of the premises, such as wet floors.
Attention, prudence, having responsibility for. Care is the opposite of negligence and a person exercising reasonable care cannot be liable for injuries that occur as a result of that person’s actions.
1) Negligent. 2) The opposite of careful. A careless act can result in the careless person being responsible for damages caused to others by the carelessness.
Any business that transports property or people by any means of conveyance (truck, auto, taxi, bus, airplane, railroad, ship) for a charge. There are two types of carriers: common carrier (in the regular business of providing transport) and a private carrier (a party not in the business, but agrees to make a delivery or carry a passenger in a specific instance).
1) A cause of action, lawsuit, or the right to sue (as in, “Do I have a case?”). 2) A written decision of a court that is reported in official “reporters” and can be cited as precedent for other cases.
The law based on judicial opinions (including decisions that interpret statutes), as opposed to law based on statutes, regulations, or other sources. Also refers to the collection of reported judicial decisions within a particular jurisdiction dealing with a specific issue or topic.
Cash Surrender Value
The amount of cash available upon voluntary termination of an insurance policy before the insurance benefits become payable.
A check issued by a bank on its own account, not on a depositor’s account. The bank receives money from the purchaser in the amount of the cashier’s check, then issues the check and guarantees its payment.
1) An accident or event which could not have been foreseen or avoided, such as a shipwreck, fire, or earthquake. 2) The liability or loss resulting from such an accident or event.
Financial loss or loss of property arising from a sudden, unexpected, or unusual event such as a storm, flood, fire, shipwreck, or earthquake. Casualty loss qualifies for a tax deduction benefit.
1) To make something happen. 2) The reason something happens. In order to hold someone responsible for harm to another person, the one must have caused the injury to the other.
Cause of Action
A specific legal claim — such as for negligence, breach of contract, or medical malpractice — for which a plaintiff seeks compensation. Each cause of action is divided into discrete elements, all of which must be proved to present a winning case. A complaint often states multiple causes of action, and each cause of action is made up of certain required elements — for example, a cause of action for breach of contract must show offer, acceptance, transfer of something of value, and breach of the agreement.
Certificate of Title
Generally, the title document for a motor vehicle issued by the state in which it is registered, describing the vehicle by type and engine number, as well the name and address of the registered owner and any lienholder (financial institution that loaned money to finance purchase of the car). In some states this document is pink and is commonly called a “”pink slip.”
A check issued and guaranteed by a bank, certifying that the maker of the check has enough money in his or her account to cover the amount to be paid. The bank sets aside the funds so that the check will remain good even if other checks are written on the particular account.
A copy of a document issued by a court or government agency guaranteed to be a true and exact copy of the original. Many agencies and institutions require certified copies of legal documents before permitting certain transactions. For example, a certified copy of a death certificate is required before a bank will release the funds in a deceased person’s payable-on-death account to the person who has inherited them.
Latin for “to be fully informed.” In cases in which there is no appeal as a matter of right, certiorari is a writ (order) by the appeals court to a lower court to send all the documents in a case so that the appeals court can review the decision. Certiorari is most commonly used by the United States Supreme Court, which grants certiorari when at least four Justices believe that the case involves a sufficiently significant federal issue.
When selecting a jury, the right of each party to request that a potential juror be excused. There may be a “challenge for cause” on the basis the juror had admitted prejudice or shows some obvious conflict of interest (for example, the juror used to work for the defendant) which the judge must resolve. More common is the “”peremptory challenge,”” which is a request that a juror be excused without stating a reason. Each side is normally allowed a limited number of peremptory challenges.
Challenge for Cause
A party’s request that the judge dismiss a potential juror from serving on a jury by providing a valid legal reason why he shouldn’t serve. Potential bias is a common reason potential jurors are challenged for cause — for example, the potential juror is a relative of a party or one of the lawyers, or admits to a prejudice against one party’s race or religion. Judges can also dismiss a potential juror for cause.
A fancy word for a judge’s office. It’s usually close to the courtroom so that the judge can enter the court from behind the bench and not encounter people on the way. Trial court judges often schedule pretrial settlement conferences and other informal or sensitive meetings in chambers.
A person who testifies in court on behalf of another as to that person’s positive character traits and the person’s reputation in the community. Such testimony is often offered when the person’s honesty or morality is an issue, as in some criminal cases and in civil cases involving accusations of fraud.
1) The name used for the principal trial court in many states. 2) In the federal system, the term may refer to courts within the 13 circuits. Eleven of these circuits cover different geographic areas of the country — for example, the United States Court of Appeal for the Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The remaining circuits are the District of Columbia, and the Federal Circuit, (which hears patent, customs, and other specialized cases based on subject matter). The term derives from an age before mechanized transit, when judges and lawyers rode the circuit of their territory to hold court in various places.
A police-issued order to appear in court to defend against a charge. Failure to appear can result in a warrant for the citee’s arrest, but often a person may consent to the penalty in writing and forgo an appearance in court. 2) A court-issued writ that commands a person to appear in court to do something demanded in the writ or to show cause for not doing so. 3) A reference to a legal authority, such as a case or statute.
(1) To make reference to a legal authority, such as a statute or the decision in another case, to make a legal point in argument. (2) To give notice of being charged with a minor crime and a date for appearance in court to answer the charge rather than being arrested (usually given by a police officer).
A noncriminal lawsuit, usually involving private property rights. For example, lawsuits involving breach of contract, probate, divorce, negligence, and copyright violations are just a few of the many hundreds of varieties of civil lawsuits.
A legal obligation that arises to a private party, usually for payment of damages or other court-enforcement of a lawsuit.
Civil Penalties (Civil Fines)
Fines or other financial payments imposed by a state or federal agency for violation of laws or regulations. Examples include fines for late payment of taxes, or penalties for failing to obtain a building permit.
The rules set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) laws that establish the format under which civil lawsuits are filed, pursued, and tried. Civil procedure refers only to form and procedure, and not to the substantive law that gives people the right to sue or defend a lawsuit.
Rights guaranteed by the Bill of Rights, the 13th and 14th, 15th and 19th Amendments to the Constitution. Civil rights include civil liberties (such as the freedom of speech, press, assembly, and religion), as well as due process, the right to vote, equal and fair treatment by law enforcement and the courts, and the opportunity to enjoy the benefits of a democratic society, such as equal access to public schools, recreation, transportation, public facilities, and housing.
A group that shares common attributes. In legal terms, this might be a group of people with the same level of rights (such as heirs who are equally related to the deceased), or who’ve suffered from the same discrimination or other injury. Whether a person is part of a class is often crucial in determining who can sue on the person’s behalf or collect a share of a class action judgment.
A lawsuit in which a large number of people with similar legal claims join together in a group (the class) to sue someone, usually a company or organization. Common class actions involve cases in which a product has injured many people, or a group of people has suffered discrimination at the hands of an organization.
Clear and Convincing Evidence
The burden of proof placed on a party in certain types of civil cases, such as cases involving fraud. Clear and convincing is a higher standard than “preponderance of the evidence,” the standard typical in most civil cases, but not as high as “beyond a reasonable doubt,” the burden placed on the prosecution in criminal cases.
1) An official or employee who handles the business of a court or a system of courts, maintains files of each case, and issues routine documents. Almost every county has a clerk of the courts or county clerk who fulfills those functions, and most courtrooms have a clerk to keep records and assist the judge in the management of the court. 2) A young lawyer who helps a judge or a senior attorney research and draft documents.
A speech made at trial after all the evidence has been presented by each party. The closing argument reviews and summarizes the evidence, and forcefully explains why the verdict should be granted in favor of the arguing party. In trials before a judge (without a jury), it is common for both parties to waive closing argument on the theory that the judge has almost surely already arrived at a decision.
A systematic collection of written laws gathered together, often grouped by subject matter. A state may have separate codes such as a civil code, corporation’s code, evidence code, penal code, and so forth.
Code of Federal Regulations (C.F.R.)
A set of publications containing regulations issued by federal agencies and organized by subject.
One of two or more defendants charged with the same crime or sued in the same claim. Also called joint defendant.
1) A form of insurance in which a person insures property for less than its full value and agrees to be responsible for the difference. Essentially the owner and the insurance company share the risk. 2) Insurance held jointly by two or more insurers.
Property that someone promises or gives to a creditor to guarantee payment of a debt — thus creating what’s called a secured debt. If the borrower defaults on the loan, the creditor may seize the property and sell it to cover the debt.
Collision Insurance Coverage
A component of car insurance that pays for damages to the insured vehicle that result from a collision with another vehicle or object. Collision insurance generally covers the amount of damage over and above an amount the insured person must pay, called the deductible amount.
Commencement of Action
The formal procedure by which a legal proceeding is initiated. Civil law suits commence when the party suing files a written complaint or petition with the court. Criminal proceedings are typically commenced by a prosecutor filing a petition with the court or seeking an indictment from a grand jury.
An individual, a company, or a public utility (like municipal buses) that is in the regular business of transporting people or freight, and must do so as long as the approved charge or fare is paid.
A rule of law applied in negligence cases in which responsibility and damages are based on the proportional fault of every party directly involved. Compare: contributory negligence
Money damages recovered as compensation for economic loss, such as lost wages.
A person or entity that begins a lawsuit by filing a complaint. Usually called the plaintiff or petitioner.
Papers filed in court by an injured party to begin a lawsuit by setting out facts and legal claims (usually called causes of action). The person filing the complaint is called the plaintiff and the other party is called the defendant. In some states and in some types of legal actions, such as divorce, complaints are called petitions and the person filing is called the petitioner. The plaintiff’s complaint must be served on the defendant, who then has the opportunity to respond by filing an answer. A complaint filing must be accompanied by a filing fee payable to the court clerk, unless the party asks a judge to waive the fee based on inability to pay.
Comprehensive Insurance Coverage
An element of car insurance that pays for damages to your vehicle caused by anything other than a collision, including vandalism, theft, and natural disasters. Like collision insurance, comprehensive coverage usually only pays up to the fair market value of your car (minus any deductible).
An agreement between opposing parties to settle a dispute or reach a settlement in which each gives some ground rather than continue the dispute or go to trial.
Conclusion of Fact
In a trial, the final result of an analysis of the facts presented in evidence, made by the trier of fact (a jury or judge). When a judge is the trier of fact, he or she will present orally in open court or in a written judgment the conclusions of fact supporting the decision.
Conclusion of Law
A judge’s final decision on a question of law which has been raised in a trial or a court hearing, particularly those issues which are vital to reaching a judgment. These may be presented orally by the judge in open court, but are often contained in a written judgment, such as an award of damages or denial of a petition.
Under an agreement, a situation in which one party must fulfill a condition at the same time that the other party fulfills a mutual condition.
An event or state of affairs that must occur before something else will be required to occur. In a contract, a condition precedent is an event that must take place before the parties must perform the agreement.
An event or state of affairs that, if it happens, defeats or modifies an existing arrangement or discharges an existing duty. In a contract, a condition subsequent can often terminate the duty of one party to perform under the agreement.
Conflict of Interest
1) A real or apparent conflict between one’s professional or official duties and one’s private interests. 2) A situation where one duty conflicts with another — for example, if an attorney were to represent both parties in a divorce proceeding.
Conflict of Laws
A conflict of the laws of two jurisdictions (such as two countries, two different states, or state and federal law) when both are applicable to a legal dispute.
An exact copy of a document filed with a court. To conform a copy, the court clerk will stamp the document with the filing date and add any handwritten notations to the document that exist on the original, including dates and the judge’s signature. A conformed copy may or may not be certified — this is, guaranteed by a court or government agency to be a true and exact copy of the original.
Damage or injury that does not directly and immediately result from a wrongful act, but is a consequence of the initial act. To be awarded consequential damages in a lawsuit, the damages must be a foreseeable result of the initial act.
Someone appointed by a judge to oversee the affairs of an incapacitated person. A conservator who manages financial affairs is often called a “conservator of the estate.” One who takes care of personal matters, such as health care and living arrangements, is known as a “conservator of the person.” Sometimes, one conservator is appointed to handle all these tasks. Depending on where you live, a conservator may also be called a guardian, committee, or curator.
A benefit or right for which the parties to a contract must bargain. In order to be valid, a contract must be founded on an exchange of one form of consideration for another. Consideration may be a promise to perform a certain act — for example, a promise to fix a leaky roof in return for a payment of $1,000 — or a promise not to do something, such as build a second story on a house that will block the neighbor’s view (in return for money or something else). Whatever its particulars, consideration must be something of value to the people who are making the contract, even if the value is very low. Acts which are illegal or so immoral that they are against established public policy cannot serve as consideration. Examples include prostitution, gambling where it’s outlawed, hiring someone to break a skater’s knee, or paying someone to breach another agreement (back out of a promise).
1) A group of separate individuals or companies that come together to undertake an enterprise or transaction that is beyond the means of any one member. For example, a group of local businesses might form a consortium to fund and construct a new office complex. 2) The duties and rights associated with marriage. Consortium includes all the tangible and intangible benefits that one spouse derives from the other, including material support, companionship, affection, guidance, and sexual relations. The term may arise in a lawsuit if a spouse brings a claim against a third party for “loss of consortium” after the other spouse is injured or killed.
A method of paying a lawyer for legal representation by which, instead of an hourly or per job fee, the lawyer receives a percentage of the money her client obtains after settling or winning the case. Often contingency fee agreements — which are most commonly used in personal injury cases — award the successful lawyer between 20% and 50% of the amount recovered. Lawyers representing defendants charged with crimes may not charge contingency fees. In most states, contingency fee agreements must be in writing.
A doctrine of common law that if a person’s own negligence contributes to causing an accident in which that person is injured, the injured party can’t collect any damages (money) from another party who caused the accident. Because this doctrine often ended in unfair results (where a person only slightly negligent was prohibited from recovering damages from a person who was much more so), most states now use a comparative negligence test instead, in which the relative percentages of negligence by each person are used to determine how much the injured person recovers.
A disagreement, argument, or quarrel. See also: actual controversy
A defendant’s court papers that seek to reverse the thrust of the lawsuit by claiming that, despite the plaintiff having brought the lawsuit in the first place, the plaintiff is actually wholly or partly at fault concerning the same set of circumstances. The counterclaim goes on to allege that the plaintiff thus owes the defendant money damages or other relief. A counterclaim is commonly but not always based on the same events that form the basis of the plaintiff’s complaint. For example, a defendant in an auto accident lawsuit might file a counterclaim alleging that it was really the plaintiff who caused the accident — or could claim that, as long as they’re in court, the plaintiff should pay for having chopped down the defendant’s tree the previous week.
The rejection of an offer to enter into a contract that simultaneously makes a different offer, changing the terms of the original offer in some way. For example, if a buyer offers $5000 for a used car, and the seller replies that he wants $5500, the seller has rejected the buyer’s offer of $5000 and has made a counteroffer to sell at $5500. The legal significance of a counteroffer is that it completely voids the original offer.
The fees charged for the use of a court, including the initial filing fee, fees for serving the summons, complaint, and other court papers, fees to pay a court reporter to transcribe depositions (pretrial interviews of witnesses) and in-court testimony, and, if a jury is involved, to pay the daily stipend of jurors. Often costs to photocopy court papers and exhibits are also included. Court costs must be paid by both the plaintiff and the defendant as the case progresses. In many types of cases, however, the losing party is held responsible for both parties’ costs.
The person who records every word that is said during official court proceedings (hearings and trials) and depositions, and who prepares a written transcript of those proceedings upon the request of the judge or a party.
1) A written claim filed in federal bankruptcy court by a person or entity owed money by a debtor who has filed for bankruptcy. 2) A written claim filed in probate court by a person or entity owed money by a person who has died. State law sets a deadline, usually a few months, for filing a claim in probate court. If the executor or administrator in charge of the probate denies the claim, the creditor can request a court hearing.
The legal procedures and rights available to creditors for collecting debts and judgments.
Sometimes called a cross-claim, legal paperwork that a defendant files to initiate his or her own lawsuit against the original plaintiff, a codefendant, or someone who is not yet a party to the lawsuit. A cross-complaint must concern the same events that gave rise to the original lawsuit. For example, a defendant accused of causing an injury when she failed to stop at a red light might cross-complain against the mechanic who recently repaired her car, claiming that his negligence resulted in the brakes failing and that, therefore, the accident was his fault. In some states where the defendant wishes to make a legal claim against the original plaintiff and no third party is claimed to be involved, a counterclaim, not a cross-complaint, should be used.
At trial, the opportunity to question any witness who testifies on behalf of any other party to the lawsuit (in civil cases) or for the prosecution or other codefendants (in criminal cases). The opportunity to cross-examine usually occurs as soon as a witness completes his or her initial testimony, called direct testimony. Cross-examiners attempt to get the witness to say something helpful to their side, or to cast doubt on the witness’s testimony by eliciting something that reduces the witness’s credibility — for example, that the witness’s eyesight is so poor that she may not have seen an event clearly. When a witness’s direct testimony ends up being hostile to the party that called the witness, sometimes that party’s lawyer is allowed to cross-examine his own witness.
Sufficiently responsible for criminal acts or negligence to be at fault and liable for the conduct.
1) In a lawsuit, the harm caused to a party who is injured. 2) In a lawsuit, the money awarded to one party based on injury or loss caused by the other. For either definition, there are many different types or categories of damages.
Insurance or pension money payable to a deceased person’s designated beneficiary.
A person who has died, also called the deceased.
The outcome of a proceeding before a judge, arbitrator, government agency, or other legal tribunal. Decision is a general term often used interchangeably with the terms judgment or opinion. But to be precise, a judgment is the written form of the Courts decision in the Clerks minutes or notes, and an opinion is a document setting out the reasons for reaching the decision.
A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Courts are usually reluctant to hear declaratory judgment cases, preferring to wait until there has been a measurable loss. But especially in cases involving important constitutional rights, courts will step in to clarify the legal landscape. For example, many cities regulate the right to assemble by requiring permits to hold a parade. A disappointed applicant who thinks the decision-making process is unconstitutional might hold his parade anyway and challenge the ordinance after hes cited; or he might ask a court beforehand to rule on the constitutionality of the law. By going to court, the applicant may avoid a messy confrontation with the city — and perhaps a citation, as well.
Something that is taken away or subtracted. Under an insurance policy, for example, the deductible is the maximum amount that an insured person must pay toward his own losses before he can recover from the insurer. For example, Julie’s car insurance policy has a $500 deductible. One day she forgets to set her parking brake and the car rolls backwards into a telephone pole, sustaining $2,500 in damage. Julie’s insurance company deducts $500 from the total amount and issues a check to the auto body shop for $2,000.
1) Failure to file an answer or other response to a summons or complaint in a lawsuit. After a certain period has passed, the plaintiff may ask the court for a default judgment, which means the defendant who failed to respond loses the case. A defendant who has a legally sufficient reason for failing to respond (for example, the defendant never received the summons) may file a motion asking the court to overturn the default judgment and allow the defendant to defend the lawsuit. 2) Failure to pay a debt or meet other obligations of a loan agreement. For example, a debtor may default on a car loan by failing to make required monthly payments or by failing to carry adequate insurance as required by the loan agreement.
At trial, a decision awarded to the plaintiff when a defendant fails to contest the case or comply with required procedural steps. For instance, the defendant may fail to respond to the plaintiff’s complaint within the required time, or simply neglect to show up in court. To appeal a default judgment, a defendant must first file a motion in the court that issued it, asking to have the default vacated (set aside).
An imperfection in a product, machinery, process, or written document that makes the item unusable or harmful, such as faulty brakes in a car, or invalid, such as a deed signed by someone who does not have title to the property. A defect may also be minor, such as scratches on a car door that lessens value or use of the item, but does not make it dangerous or useless.
Incapable of fulfilling its function, due to an error or flaw.
1) A general term for the effort of an attorney representing a defendant during trial and in pretrial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) A response to a complaint, called an affirmative defense, to counter, defeat, or remove all or a part of the contentions of the plaintiff.
A claim or an assertion of a legal right or a right to compensation.
Correspondence from one party to a dispute to the other, stating the drafting party’s version of the facts of the dispute and making a claim for compensation or other action to resolve it. Often drafted by an attorney, a demand letter is generally an opening gambit in an effort to settle a legal claim.
Objects, pictures, models, and other devices used in a trial or hearing to demonstrate or explain facts that the party is trying to prove.
A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge will then be held to determine the validity of the demurrer. Some parts of a lawsuit may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, the judge will usually sustain the demurrer (state it is valid), but “with leave to amend” in order to correct the original complaint. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.
A statement by a defendant that an allegation (claim of fact) is not true. When a defendant in a civil lawsuit files an answer to a plaintiff’s complaint, the defendant is limited to three choices: admitting, denying, or denying the allegations on the basis that he or she has no information to affirm or deny them. If a defendant denies all of the allegations, it is called a general denial. The defendant’s answer may also include affirmative defenses.
1) A person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce income taxes. 2) Requiring an event to occur, as the fulfillment of a contract for delivery of goods is dependent on the goods being available.
Someone whose deposition is being taken.
To question a witness or a party to a lawsuit at a deposition (testimony under oath taken outside of the courtroom before trial).
The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial. A deposition is part of pretrial discovery. The testimony is recorded by the court reporter, who will prepare a transcript that can be used for pretrial preparation or in trial to contradict or refresh the memory of the witness, or be read into the record if the witness is not available.
The actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a business deduction for income tax reduction, spread out over the expected useful life of the asset (straight line) or at a higher rate in the early years of use (accelerated).
A remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it. Dictum is an abbreviation of the Latin phrase “obiter dictum,” which means a remark by the way, or an aside.
Reasonable care or attention to a matter.
An impaired mental condition, caused by disease, trauma, or intoxication but short of insanity that can reduce the criminal responsibility of a defendant. Not all states allow defendants to offer this plea in response to criminal charges.
Diminution in Value
A way of assessing damages after a breach of a contract, which measures the difference between the value of the property as it was contractually promised and the value of the property as it currently exists or was constructed.
Direct and Proximate Cause
The immediate reason that something happened that caused harm to another person. The words are often used together, as in “The defendant’s negligent act in running the red light was the direct and proximate cause of the plaintiff’s injuries.”
Real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.
At trial, the initial questioning of a party or witness by the side that called him or her to testify. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your opponent’s version. Good direct examination seeks to prove all facts necessary to satisfy the plaintiff’s legal claims or causes of action — for example, that the defendant breached a valid contract and, as a result, the plaintiff suffered a loss.
A ruling by a judge, typically made after the plaintiff has presented all of its evidence but before the defendant puts on its case that awards judgment to the defendant. A directed verdict is usually made because the judge concludes the plaintiff has failed to offer the minimum amount of evidence to prove the case even if there were no opposition. In other words, the judge is saying that, as a matter of law, no reasonable jury could decide in the plaintiff’s favor. In a criminal case, a directed verdict is a judgment of acquittal for the defendant.
1) For purposes of antidiscrimination law, a physical or mental impairment that substantially limits one or more major life activities. 2) A legal impediment to taking a certain action, such as being a minor who cannot legally enter into a contract.
Money available from Social Security to benefit those younger than 65 who qualify because of their work and earning record and who meet the program’s medical guidelines defining disability. The benefits are roughly equal to those available in Social Security retirement benefits.
1) A contractual provision in which one party renounces or refuses a right or a responsibility. 2) A formal statement by a patent or trademark owner that it does not claim certain intellectual property rights. 3) An irrevocable refusal to accept property that has been left by will, trust, or other method, sometimes used in estate planning to reduce overall taxes paid by a family.
The making known of a fact that had previously been hidden; a revelation. For example, in many states you must disclose major physical defects in a house you are selling, such as a leaky roof or potential flooding problem; and in all states, you must disclose the presence of lead-based paint hazards in buildings constructed before 1978.
A formal investigation — governed by court rules — that is conducted before trial by both parties. Discovery allows each party to question the other parties, and sometimes witnesses. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury; depositions, at which one party to a lawsuit has the opportunity to ask oral questions of the other party or witnesses under oath while a written transcript is made by a court reporter; and requests to produce documents, by which one party can force the other to produce physical evidence. Parties may also ask each other to admit or deny key facts in the case. Discovery allows parties to assess the strength or weakness of an opponent’s case, in order to support settlement talks and also to be sure that the parties have as much knowledge as possible for trial. Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.
The power of a judge, public official, or private party to make decisions based on his or her opinion within general legal guidelines. Discretion is often granted under a contract, trust, or will. Examples: 1) A judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial. 2) A trustee or executor of an estate may have discretion to divide assets among the beneficiaries. 3) A district attorney may have discretion to charge a crime as a misdemeanor or felony. 4) A governor may have discretion to grant a pardon. 5) A planning commission may use its discretion when deciding whether or not to grant a variance to a zoning ordinance.
(1) In a court setting, a judge may dismiss or throw out all or a portion of a plaintiff’s lawsuit without further evidence or testimony upon being persuaded that the plaintiff has not and cannot prove the case. This judgment may be made before or at any time during the trial. The judge may independently decide to dismiss or may do so in response to a motion by the defendant. Also, the plaintiff may voluntarily dismiss an action before or during trial if the case is settled, if it is not provable, or if trial strategy dictates getting rid of a weak claim. A defendant may also be dismissed from a lawsuit, meaning the suit is dropped against that party. (2) To discharge or let an employee go.
Dismissal with Prejudice
When a lawsuit is dismissed with prejudice, the court is saying that it has made a final determination on the merits of the case, and that the plaintiff is therefore forbidden from filing another lawsuit based on the same grounds. See also: dismiss, dismissal without prejudice
Dismissal without Prejudice
When a case is dismissed without prejudice, it leaves the plaintiff free to bring another suit based on the same grounds, for example if the defendant doesn’t follow through on the terms of a settlement.
1) The court’s final determination of a lawsuit or criminal charge. 2) The act of transferring care, possession, or ownership to another, such as by deed or will.
A stated disagreement with prevailing thought. Also, the opinion of a judge of a court of appeals, including the U. S. Supreme Court, that disagrees with the majority opinion.
The opinion of a judge who does not agree with the majority opinion
To differentiate the ruling in one case from another even though both may have similarities of fact.
1) in the federal court system, a trial court for federal cases in a court district, which is all or a portion of a state. Thus, if you file suit in federal court, your case will normally be heard in federal district court. 2) A local court in some states. States may also group their appellate courts into districts — for example, The First District Court of Appeal.
The power of the federal courts to decide civil disputes between citizens of different states, provided the amount the plaintiff seeks in damages exceeds an amount set by Congress (currently $75,000). The so-called citizens may include companies incorporated or doing business in different states or a citizen of a foreign country. However, note that the federal courts traditionally refuse to exercise their diversity jurisdiction over cases involving domestic relations and probate.
Dram Shop Rule
A law that makes a business that sells alcoholic drinks or a host who serves liquor to an obviously intoxicated person strictly liable to anyone injured by the drunken patron or guest.
Care or attention to a matter that is sufficient enough to avoid a claim of negligence, though not necessarily exhaustive.
Durable Power Of Attorney
A power of attorney that remains in effect if the person who made the document — called the principal — becomes incapacitated. If a power of attorney is not specifically made durable, it automatically expires if the principal becomes incapacitated.
1) A legal relationship, created by law or contract, in which a person or business owes something to another. The breach of this obligation can result in liability. 2) A tax on imported goods.
Duty Of Care
The duty of a person or business to act toward others and the public with vigilance, caution, and prudence. Someone whose actions breach the duty of care is considered negligent, and may be sued for resulting damages.
Compensation for services rendered, such as wages, commissions, and tips.
A legal rule that a person who causes injury is at fault for all the consequences whether foreseen or not. It is derived from a situation in which a light blow to the head killed an individual, even though it could not have been predicted that such a blow would cause death.
Suffering in response to an experience caused by the negligence or intentional acts of another; a basis for a claim of damages in a lawsuit brought for such an injury. Originally damages for emotional distress were awardable only in conjunction with damages for actual physical harm, but recently some courts have recognized a right to an award of money damages for emotional distress without physical injury or contact. In sexual harassment and defamation claims, emotional distress can sometimes be the only harmful result. Professional testimony by a therapist or psychiatrist may be required to validate the existence and depth of the distress and place a dollar value upon it.
French for “on the bench,” used to indicate that all of the judges on an appeals court panel are participating in a case. Courts generally hear cases en banc when a significant issue is at stake or at the request of the parties.
Any claim or lien on real estate. Examples include mortgages, deeds of trust, tax liens, mechanic’s liens, easements, and water or timber rights. Documents showing encumbrances are usually recorded in the local land records office (commonly called the county recorder or registry of deeds).
Enter a Judgment
To officially record a judgment on the “judgment roll” after the judge has approved and signed it. This task is the responsibility of the court clerk.
Entry of Judgment
Placement of a judgment on the official roll of judgments.
Fair; based on principles of justice.
When a court awards a nonmonetary judgment, such as an order to do something (mandamus or specific performance) or refrain from doing something (injunction), when monetary damages are not sufficient to repair the injury.
Errors and Omissions
Shorthand for malpractice insurance, which gives physicians, attorneys, architects, accountants, and other professionals coverage for claims by patients and clients for alleged professional errors and omissions that amount to negligence.
The holding of funds or documents by a neutral third party prior to closing a sale. For example, buyers and sellers of real estate commonly hire an escrow agent to facilitate the transfer. Business sales also sometimes involve escrow arrangements.
A form of address showing that someone is an attorney, usually written Albert Pettifog, Esquire, or simply Esq.
Generally, all the property a person owns at death.
Abbreviation for the Latin phrase “et alia,” meaning “and others.” This is commonly used in shortening the name of a court case, so that instead of listing all the plaintiffs or defendants, one of them will be listed followed by the term “et al.”
The many types of information presented to a judge or jury designed to convince them of the truth or falsity of key facts. Evidence typically includes testimony of witnesses, documents, photographs, items of damaged property, government records, videos, and laboratory reports. Strict rules limit what can be properly admitted as evidence, but dozens of exceptions often mean that creative lawyers find a way to introduce such testimony or other items into evidence.
(1) Constituting evidence or having the quality of evidence. For example, someone’s statement at the scene of a car wreck that one of the drivers was speeding has evidentiary value because it says something about how the accident happened. (2) Something that relates to the evidence in a particular case. For example, if a judge holds a hearing to decide whether or not a particular piece of evidence can be admitted at trial, that hearing might be called an evidentiary hearing.
Latin meaning “for one party,” referring to motions, hearings, or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing, or an emergency request for a continuance.
1) The questioning of a witness by an attorney (or other party if the other party is self-represented). Direct examination is interrogation by the attorney who called the witness, and cross-examination is questioning by the opposing attorney. 2) In bankruptcy, the questions asked of a debtor by the judge, trustee in bankruptcy, attorneys, or creditors, to determine the state of the debtor’s affairs. 3) In criminal law, a preliminary examination is a hearing to determine whether a defendant charged with a felony should be held for trial.
1) A flowery way a lawyer might tell a judge that the lawyer disagrees with the judge’s ruling, often said after the judge rules against a lawyer who has objected to the admission of evidence. In modern practice, it is not necessary “to take exception” to a judge’s adverse ruling, because it is assumed that the attorney against whom the ruling is made objects. 2) In contracts, statutes, and deeds, a statement that something is not included, as in “Landlord rents to Tenant the first floor, with the exception of the storage room.”
A provision in a lease that absolves the landlord in advance from responsibility for all damages, injuries, or losses occurring on the property, including those caused by the landlord’s actions. Most states have laws that void exculpatory clauses in rental agreements, which means that a court will not enforce them.
A legitimate excuse for the failure of a party or his or her lawyer to take required action on time (like filing an answer to a complaint). This is usually claimed to set aside a default judgment for failure to answer or otherwise respond within the required time period. Illness, press of business by the lawyer (but not necessarily the defendant), or an understandable oversight by the lawyer’s staff (“just blame the secretary”) are common excuses which the courts will often accept.
1) To finish, carry out, or perform as required, as in fulfilling one’s obligations under a contract, plan, or court order. 2) To complete and otherwise make valid a document, such as a will, deed, or contract, for example by signing it and having it notarized. 3) To put someone to death pursuant to a court-rendered sentence (capital punishment). 4) To murder or assassinate.
1) A document or object (including a photograph) introduced as evidence during a trial. 2) a copy of a paper attached to a pleading (any legal paper filed in a lawsuit), declaration, affidavit, or other document, which is referred to and incorporated into the main document.
An opinion stated during a trial or deposition (testimony under oath before trial) by an expert witness on a subject relevant to a lawsuit or a criminal case.
A person who is a specialist in a subject who is asked present his or her expert opinion in a trial or deposition without having been a witness to any occurrence relating to the lawsuit or criminal case. Expert witnesses are paid for their services.
1) In consumer or commercial transactions, a guarantee about the quality of goods or services made by a seller, such as, “This item is guaranteed against defects in construction for one year.” Most express warranties come directly from the manufacturer or are included in the sales contract. 2) An assurance or promise made by a contracting party.
The granting of a specific amount of extra time to make a payment, file a legal document after the date due, or continue a lease after the original expiration of the term.
Fair Market Value
The amount for which property would sell on the open market. This is distinguished from “replacement value,” which is the cost of duplicating the property.
A branch of the United States government with power derived directly from the U.S. Constitution. Federal courts decide cases involving the U.S. Constitution, federal law — for example, patents, labor law, federal taxes, and federal crimes, such as robbing a federally chartered bank. Federal courts may also decide cases where the parties are from different states and are involved in a dispute for $75,000 or more.
Federal Tort Claims Act
A statute that allows recovery for damages caused by a federal employee if the injury occurred in the scope of the employee’s job. It also establishes regulations and procedures for making such claims in federal courts.
A person or company that has the power and obligation to act for another under circumstances which require total trust, good faith, and honesty. Fiduciaries can include trustees, business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stock brokers, title companies, or anyone who undertakes to assist someone who places complete confidence and trust in that person or company.
A fee charged by a public official to accept a document for processing. For example, you must usually pay a filing fee to submit pleadings to the court in a civil matter, or to put a deed on file in the public record.
The final determination of a court case, put in writing by the judge who presided over the case.
The determination by the trier of fact (judge or jury) of a factual question submitted to it for decision. Often referred to as a finding of fact. A finding of fact is distinguished from a conclusion of law, which is determined by the judge as the sole legal expert.
Any material, such as evidence or testimony, suitable for use in court or other legal matters.
A likelihood of injury or damage that a reasonable person should be able to anticipate in a given set of circumstances. Foreseeable risk is a common affirmative defense put up by defendants in lawsuits for negligence, essentially claiming that the plaintiff should have thought twice before taking a risky action. Signs that warn “use at your own risk” do not bar lawsuits over injuries or damages from risks that weren’t foreseeable.
Preprinted sets of questions that one party in a lawsuit asks an opposing party during the discovery process. Form interrogatories cover the issues commonly encountered in the kind of lawsuit at hand. For example, there are form interrogatories designed for contract disputes, landlord-tenant cases, personal injury cases, and others. Form interrogatories are often supplemented by specific questions written by the lawyers about the specific issues in the particular case.
Forum Non Conveniens
Latin for an inconvenient court. The idea that a court may change the venue of a lawsuit if that is more convenient for the parties. However, because strict written rules of jurisdiction and venue are used to decide where a case can and cannot be properly filed, this term has largely lost any real meaning.
A court-ordered procedure for taking money or property from someone to satisfy a debt. For example, a debtor’s wages might be garnished to pay child support, back taxes, or a lawsuit judgment.
The first time an attorney appears in court on behalf of a client; after making a general appearance, the attorney is then responsible for all future appearances in court unless officially relieved by court order or substitution of another attorney.
Monetary recovery in a lawsuit for injuries suffered or breach of contract for which there is no exact dollar value that can be calculated. General damages can include, for example, pain and suffering, compensation for a shortened life expectancy, and loss of the companionship of a loved one.
An answer to a lawsuit or claim, in which the defendant denies everything alleged in the complaint without specifically denying any allegation.
General Power of Attorney
A broad power of attorney document that gives the named agent power to handle all matters permitted by law on behalf of the person (called “the principal”) who executed the document.
A legally sufficient reason for a ruling or other action by a judge.
Honest intent to fulfill a promise to act or to act without taking an unfair advantage over another person. Absence of intent to defraud someone.
A contract provision (also known as a choice of law) that determines which states laws should be followed in the event of a dispute.
A group of people chosen at random that sits on a regular basis to hear evidence brought by a prosecutor. The prosecutor presents evidence against a person that he or she thinks will justify an indictment (formal charges) and a trial. Grand juries, unlike petit juries, meet in secret, need not reach unanimous decisions, and do not decide on a person’s guilt or evidence (they only decide whether the person should stand trial).
The total income of an individual or business from all sources, before subtracting adjustments, exemptions, or deductions allowed by tax law.
A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, and can affect the amount of damages.
A single insurance policy, such as life or health insurance, under which individuals in a group — for example, employees (and sometimes their dependents) — are covered, as long as they remain part of the group.
An adult who has been appointed by a court to control and care for a minor or the minor’s property. Someone who looks after a child’s property is usually called a “guardian of the estate.” An adult who has legal authority to make personal decisions for the child, including responsibility for his physical, medical, and educational needs, is often called a “guardian of the person.” Sometimes just one person will be named to take care of all these tasks. An individual appointed by a court to look after an incapacitated adult may also be known as a guardian, but is more frequently called a conservator.
Guardian Ad Litem
A person, not necessarily a lawyer, who is appointed by a court to represent and protect the interests of a child or an incapacitated adult during a lawsuit. For example, a minor who is a party to a lawsuit must have a guardian ad litem (often a parent) to act in the minor’s behalf with regard to decisions like whether or not to take a settlement offer. A guardian ad litem (GAL) may also be appointed to represent a child whose parents are locked in a contentious battle for custody.
Guardian of The Estate
Someone appointed by a court to care for the property and finances of a minor child or an incapacitated adult. A guardian of the estate may also be called a property guardian, financial guardian, or conservator of the estate.
A legal relationship created by a court between a guardian and a ward–either a minor child or an incapacitated adult (although the latter relationship is more commonly called a conservatorship). The guardian has a legal right and duty to care for the ward. This may involve making personal decisions on the ward’s behalf, managing the ward’s property, or both.
A law in only a few states that prevents a nonpaying automobile passenger from suing the driver when the passenger is hurt as a result of the simple negligence of the driver. In general, the social passenger can sue the driver only if the driver’s actions constitute gross, or extreme, negligence. Examples might include drunk driving, playing “chicken,” driving a car knowing that the brakes are faulty, or continuing to drive recklessly after the passenger has asked the driver to stop or asked to be let out.
In employment law, offensive, unwelcome conduct based on the victim’s protected characteristic, that is so severe or pervasive that it affects the terms and conditions of the victim’s employment. Harassment may take the form of words, actions, gestures, demands, or visual displays, such as photographs or cartoons. Sometimes, harassment is used more generally to refer to repeated irritating or bothersome behavior, such as persistent telephone calls from a debt collector.
An error by a judge in the conduct of a trial that an appellate court finds was not damaging enough to the appealing party’s right to a fair trial to justify reversing the judgment. Harmless errors include technical errors that have no bearing on the outcome of the trial, and an error that was corrected (such as mistakenly allowing testimony to be heard, but then ordering it stricken and admonishing the jury to ignore it). In general, the more overwhelming the evidence against the appealing party (appellant), the harder it will be to convince the appellate court that any errors were harmful. In such situations, courts rule that even in the absence of the errors, the appellant could not have won.
A type of insurance, found for example in homeowners’ and business policies that protects against physical damage to the property caused by unexpected and sudden events such as fires, storms, and vandalism.
Head of Household
1) For purposes of federal income taxes, a filing category for someone who is unmarried or legally separated from a spouse and who provides a home for at least one dependent for more than half of the year. The tax rate for someone filing as head of household is lower than it would be for someone filing as a single person. 2) The primary breadwinner in a family.
Health Care Directive
A legal document that allows you to set out written wishes for your medical care, name a person to make sure those wishes are carried out, or both.
Health Care Proxy
A person named in a health care directive to make medical decisions for the person who signed the document, called the principal. A health care proxy may go by many other names, including agent, attorney-in-fact, or patient advocate.
Any proceeding before a judge or other qualified hearing officer without a jury, in which evidence and argument is presented to determine some issue of fact or both issues of fact and law. The term usually refers to a brief court session that resolves a specific question before a full trial takes place, or to such specialized proceedings as administrative hearings. In criminal law, a “preliminary hearing” is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.
A rule of evidence that prohibits the use of out-of-court statements that are offered as proof of the subject of the statement. These statements are not admitted as evidence because person who made the statement isn’t in court for the other party to cross-examine. For example, if Cathy, an eyewitness to an accident, later tells Betsy that the pickup ran the light, Betsy would not be allowed to recount Cathy’s remarks. Out-of-court statements that aren’t offered to prove the truth of the statement are admissible, however. Suppose Tom is called to testify, “On January 1, Bob said the Steelers stink.” If the party calling Tom wants to prove that Bob was alive on January 1, Tom’s testimony would be admitted, because the other side could question Tom about whether the conversation really took place on that date. Whether the Steelers are a poor team is beside the point. Even statements that are hearsay may be admitted if they fall within one of the many exceptions to the rule. In general, hearsay will be admitted if the circumstances of the statement indicate a high probability that the statement is true. For example, a statement uttered spontaneously and under duress — such as a victim’s remarks immediately following an accident — could be admitted because the judge might find that the person had little time to plan to say anything other than the truth.
Someone who has a right, under state law, to inherit a deceased person’s property (which means the closest family members). The term is often used in a broader sense, to include anyone who receives property from the estate of a deceased person.
Hit and Run Statute
A law that requires motorists who get in an accident to stay at the scene of the accident to exchange information with the other motorists or to give a report to the police.
In a contract, a promise by one party not to hold the other party responsible if the other party carries out the contract in a way that causes damage to the first party. For example, many leases include a hold harmless clause in which the tenant agrees not to sue the landlord if the tenant is injured due to the landlord’s failure to maintain the premises. In most states, these clauses are illegal in residential tenancies, but may be upheld in commercial settings.
A witness who testifies against the party who has called the person to testify. The examiner may ask a hostile witness leading questions, as in cross-examination. Also called an adverse witness.
In common parlance, the rights all people have just by virtue of being human. As defined by the United Nations’ Office of the High Commissioner on Human Rights, these rights are those that are “inherent to all human beings, whatever [their] nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status.” Human rights recognized by the United Nations include the rights to life, liberty, and the security of person; the right to be free of slavery; the right to be free of torture and other cruel, inhuman, or degrading treatment or punishment; the right to recognition as a person under the law; the right to fair process and hearing; the right to privacy; the right to a family; the right to freedom of religion, expression, and association; and the right to an education.
A jury unable to come to a final decision, resulting in a mistrial. Judges do their best to avoid hung juries, typically sending juries back into deliberations with an assurance (sometimes known as a “dynamite charge”) that they will be able to reach a decision if they try harder. If a mistrial is declared, the case is tried again unless the parties settle the case (in a civil case) or the prosecution dismisses the charges or offers a plea bargain (in a criminal case).
To select a jury and assign the jury to decide a court case.
1) To discredit, for example, to show that a witness is not believable — perhaps because the witness made statements that are inconsistent with present testimony, or has a reputation for not being a truthful person. 2) The process of charging a public official, such as the U.S. president or a federal judge, with a crime or misconduct, which results in a trial by the senate to determine whether the official should be removed from office.
Consent when surrounding circumstances exist that would lead a reasonable person to believe that this consent had been given, although no direct, express, or explicit words of agreement had been uttered. For example, implied consent to a contract can be inferred when one person has been performing on the contract, and the other person has accepted the first person’s performance without objecting or complaining.
A guarantee that is not written down or explicitly spoken.
Latin for “in chambers.” A legal proceeding is in camera when a hearing is held before the judge in private chambers or when the public is excluded from the courtroom. Proceedings are often held in camera to protect victims and witnesses from public exposure, especially if the victim or witness is a child.
Discussions or hearings held in the judge’s office, called his or her chambers.
From Latin for “at the threshold,” referring to a request made to the judge before a trial begins, such as a request to exclude evidence.
1) Lacking the physical or mental abilities to manage one’s own personal care, property, or finances. 2) Lacking the ability, due to illness or injury, to perform one’s job.
To guarantee against a loss or damage that another might suffer.
An agreement to compensate another party for loss or damage.
An agreement to do something or to allow something to happen, made with complete knowledge of all relevant facts, such as the risks involved or any available alternatives. For example, a patient may give informed consent to medical treatment only after the health care professional has disclosed all possible risks involved in accepting or rejecting the treatment. A health care provider or facility may be held responsible for an injury caused by an undisclosed risk. In another context, a person accused of committing a crime cannot give up his constitutional rights — for example, to remain silent or to talk with an attorney — unless and until he has been informed of those rights, usually via the well-known Miranda warnings.
A contract in which the insured pays a fee to the insurance company, and in exchange, the insurance company agrees to pay the beneficiary of the policy a given amount if specific events occur. For example, life insurance pays a beneficiary on the death of the insured, auto insurance pays the beneficiary if the insured gets into an auto accident, and health insurance pays for health care if the insured gets sick. There are many, many kinds of insurance including: life insurance, auto insurance, health insurance, mortgage insurance, unemployment insurance, accident insurance, burial insurance, cargo insurance, fire insurance, title insurance.
The person or entity who is covered by an insurance policy.
The person or entity (usually an insurance company) that agrees to pay for losses suffered by the insured.
A deliberate act that causes harm to another, for which the victim may sue the wrongdoer for damages. Acts of domestic violence, such as assault and battery, are intentional torts (as well as crimes).
Provisional and not intended to by final. This usually refers to court orders which are temporary.
A court case between two parties who both claim the right to money from a third party, when the third party agrees the money is owed but doesn’t know to whom. The debtor deposits the funds with the court (“interpleads”), asks the court to be dismissed from the lawsuit, and lets the court decide who gets the money.
Vigorous questioning, usually by the police of a suspect in custody. Other than providing their names and addresses, suspects are not obligated to answer the questions, which must be preceded by Miranda warnings. When suspects refuse to answer, their silence generally cannot be used by the prosecution to help prove that they are guilty of a crime. If the suspect has asked for a lawyer, the police must cease questioning. If they continue to question, they usually cannot use the answers against the suspect at trial.
Written questions sent by one party to another as part of the pretrial investigation process, called “discovery.” Interrogatories must be answered in writing under oath or under penalty of perjury within a specified time (such as 30 days). Lawyers can write their own sets of questions, or can use form interrogatories designed for the most common types of lawsuits.
An event that occurs after a party’s improper or dangerous action and before the damage that could otherwise have been caused by the dangerous act, thereby breaking the chain of causation between the original act and the harm to the injured person. The result is that the person who started the chain of events may no longer be considered responsible for damages to the injured person since the original action is no longer the proximate cause.
The condition of dying without a valid will. The probate court appoints an administrator to distribute the deceased person’s property according to state law.
The joining together of several lawsuits or several parties all in one lawsuit because the legal issues and the factual situation are the same for all plaintiffs and defendants, or because a party is necessary to the resolution of the case. Joinder may be mandatory if a person necessary to a fair result was not included in the original lawsuit, or it may be permissive if joining the cases together is only a matter of convenience or economy.
When two or more persons are both responsible for a debt, claim, or judgment. It can be important to the person making the claim, as well as to a person who is sued, who can demand that anyone with joint liability for the alleged debt or claim for damages be joined in (brought into) the lawsuit with them.
Two or more persons whose collective negligence in a single accident or event causes damages to another person. Joint tortfeasors may be held jointly and severally liable for damages, meaning that any of them can be responsible to pay the entire amount, no matter what proportion of responsibility each has.
A federal law which covers injuries to crewmen at sea, gives jurisdiction to the federal courts, and sets up various rules for conduct of these cases under maritime law.
A final court ruling resolving the key questions in a lawsuit and determining the rights and obligations of the parties. For example, after a trial involving a vehicle accident, a court will issue a judgment stating which party was at fault and how much money that party must pay the other.
Judgment Notwithstanding the Verdict (JNOV)
Reversal of a jury’s verdict by a judge when the judge believes that there were insufficient facts on which to base the jury’s verdict, or that the verdict did not correctly apply the law. This procedure is similar to a situation in which a judge orders a jury to arrive at a particular verdict, called a directed verdict.
A condition of having little money and/or property that a creditor who wins a lawsuit could take. A person might be judgment proof because he or she has no property and no steady income. Even a person who owns property might be judgment proof if all of the property is exempt and, therefore, can’t be taken by creditors.
A judge’s power to make decisions based on fairness or a weighing of the facts and circumstances, particularly in cases where a party requesting relief or a benefit has no automatic or clear cut legal right to it.
The court’s authority to accept matters of common knowledge or indisputable fact without anyone having to present evidence on the point. For example, a court might take judicial notice of the fact that ice melts in the sun.
The authority of a court to hear and decide a case. To make a legally valid decision in a case, a court must have both “subject matter jurisdiction” (power to hear the type of case in question, which is granted by the state legislatures and Congress) and “personal jurisdiction” (power to make a decision affecting the parties involved in the lawsuit, which a court gets as a result of the parties’ actions). For example, a state court’s subject matter jurisdiction includes the civil and criminal laws passed by its own state, but doesn’t include patent disputes or immigration violations, which Congress allows to be heard only in federal courts. And no court can hear or decide a case unless the parties agree to be there or live in the state (or federal district) where the court sits, or have enough contacts with the state or district that it’s fair to make them answer to that court. (Doing business in a state, owning property there, or driving on its highways will usually be enough to allow the court to hear your case.) The term “jurisdiction” is also commonly used to define the amount of money a court has the power to award. For example, small claims courts have jurisdiction only to hear cases up to a relatively low monetary amount — depending on the state, typically in the range of $2,000 to $10,000. If a court doesn’t have personal jurisdiction over all the parties and the subject matter involved, it “lacks jurisdiction,” which means it doesn’t have the power to render a decision.
A direction or explanation that a judge gives to a jury about the law that applies to a case.
The process by which a jury is chosen for a particular trial. In brief, a panel of potential jurors is called, they’re questioned by the judge and attorneys, some may be dismissed for cause (such as bias), others based on peremptory challenges (in which the attorneys don’t need to state a cause), and finally the jury is chosen and impaneled.
A hidden flaw, weakness, or imperfection that cannot be discovered by reasonable inspection. It may refer to real property (a hidden defect in the title to land) or personal property (a defect in the steering mechanism of a car). Discovery of a latent defect generally entitles the purchaser to a refund or a non-defective replacement.
A witness who is not an expert. Lay witnesses may not offer opinions, unless they are based on firsthand knowledge or help to clarify testimony.
A question asked of a witness who is under oath, which suggests the answer. An improper leading question would be “Didn’t the defendant appear to you to be going too fast in the limited visibility?” The proper question would be: “How fast do you estimate the defendant was going?” followed by “What was the visibility?” and “How far could you see?” Leading questions are not allowed on direct examination (questioning by the side that called the witness), but are allowed on cross-examination (questioning by adverse parties) or when a party’s own witness has been declared a “hostile witness” by the judge.
A cause that produces a direct effect, and without which the effect would not have occurred.
Statutes adopted in some states to make it easier for a buyer of a new vehicle to sue for damages or replacement if the dealer or manufacturer cannot make it run properly after a reasonable number of attempts to fix the car.
Letters Of Administration
The document a probate court issues to the person appointed as administrator (personal representative) of the estate of someone who died without a will. The letters authorize the administrator to settle the deceased person’s estate according to the state’s intestate succession laws. Banks, brokerages, and government agencies often require a certified copy of the letters before accepting the administrator’s authority to collect the deceased person’s assets.
1) In law, the state of being liable — that is, legally accountable for an act or omission. 2) In business, money owed by a business to others, such as payroll taxes, a court judgment, an account payable, or a loan debt.
Liability Insurance Coverage
Insurance that provides compensation to third parties who are injured or whose property is damaged due to the fault of the insurance holder. You may have liability insurance for your car or your home, or to cover actions you take in the course of your profession. Liability policies are sometimes called “third-party policies.”
A creditor’s legal claim against particular property owned by a debtor as security for a debt. Liens the debtor agrees to, called security interests, include mortgages, home equity loans, car loans, and personal loans for which the debtor pledges property as collateral. Nonconsensual liens are liens placed on property without the debtor’s consent, and include tax liens, judgment liens (liens a creditor obtains by suing and getting a court judgment against the debtor), and mechanics’ liens (liens filed by a contractor who worked on the debtor’s house but didn’t get paid).
The process of bringing and pursuing (litigating) a lawsuit.
A law that gives a court jurisdiction over a nonresident company or individual who has had sufficient contacts with the jurisdiction to warrant being subject to its laws.
1) The value placed on injury or damages due to an accident caused by another’s negligence, breach of contract, or other wrongdoing. The amount of monetary damages can be determined in a lawsuit. 2) When expenses are greater than profits, the difference between the amount of money spent and the income.
Loss of Consortium
A type of legal claim made by a spouse when the other spouse has been injured to a point of being unable to provide the benefits of a family relationship, including intimacy, affection, company, and sexual relations.
Loss of Use
The inability to use an automobile, premises, or some equipment due to damage caused by the negligence or wrongdoing of another. This concept may entitle claimants to damages. For example, during the period of non-occupancy while a burned building is restored, the regular occupant has lost its use and may be entitled to compensation for the days he or she must live or work elsewhere.
Major Life Activity
Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Under the Americans with Disabilities Act, an individual is considered to have a disability if he or she has an impairment that substantially limits a major life activity.
Make One Whole
To award an amount of damages sufficient to put the injured party back into the position that party was in before the injury.
The delivery of substandard care or services by a lawyer, doctor, dentist, accountant, or other professional. Generally, malpractice occurs when a professional fails to provide the quality of care that should reasonably be expected in the circumstances, with the result that a patient or client is harmed. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. In the area of legal malpractice, the claimant must prove two things to show harm: first, that the lawyer failed to meet the standard of professional competence; and second, that if the lawyer had handled the work properly, you would have won the original case.
1) Any mandatory order or requirement under statute, regulation, or by a public agency. 2) An order from an appellate court to a lower court (usually the original trial court in the case) directing the lower court to enforce a court order or to comply with the appellate court’s ruling.
A tort that causes injury to many people. For example, if toxic emissions from a factory cause injury to a whole community, it may be a mass tort.
Memorandum of Points And Authorities
A document that cites (refers to) legal authorities such as statutes and court cases, and explains how those authorities support the position advocated by the party who wrote the memorandum. Often written to support a motion.
A type of suffering that can be compensated in a personal injury case, generally meaning significant mental suffering that may include fright, feelings of distress, anxiety, depression, trauma, or grief.
Mitigation of Damages
The requirement that someone injured by another’s negligence or breach of contract must take reasonable steps to reduce the damages, injury, or cost, and to prevent them from getting worse. If a tenant breaks a lease and moves out without legal justification, a landlord must try to rerent the property reasonably quickly and keep his or losses to a minimum — that, is to mitigate damages. In another context, a person claiming to have been injured by another motorist should seek medical help and not let the problem worsen.
A formal request that a judge enter a particular order or ruling in a lawsuit. An oral motion may be made during trial — for example, to strike the testimony of a witness or admit an exhibit. Often, motions are made in writing, accompanied by a written statement explaining the legal reasons why the court should grant the motion. The other party has an opportunity to file a written response, and then the court decides whether to grant or deny the motion. The court may hold a hearing where each party can argue its side, or may decide the issue without a hearing.
The party in a lawsuit or other legal proceeding who makes a motion (application for a court order or judgment).
Failure to exercise the care toward others that a reasonable or prudent person would use in the same circumstances, or taking action that such a reasonable person would not, resulting in unintentional harm to another. Negligence forms a common basis for civil litigation, with plaintiffs suing for damages based on a variety of injuries, from physical or property damage to business errors and miscalculations. The injured party (plaintiff) must prove: 1) that the allegedly negligent defendant had a duty to the injured party or to the general public, 2) that the defendant’s action (or failure to act) was not what a reasonably prudent person would have done, and 3) that the damages were directly (“proximately”) caused by the negligence. An added factor in the formula for determining negligence is whether the damages were “reasonably foreseeable” at the time of the alleged carelessness.
Latin for “I choose not to.”
Information that one person gives to another, alerting the other party of the first party’s intentions. Notice of a lawsuit or petition for a court order begins with personal service on the defendants (delivery of notice to the person) of the complaint or petition, together with a summons or order to appear (or file an answer) in court. In a non-court setting, notice can simply be a written statement of intentions, as when a landlord terminates a tenancy by serving a termination notice on the tenant.
Something that interferes with the use of property by being irritating, offensive, obstructive, or dangerous. Nuisances include a wide range of conditions, everything from a chemical plant’s noxious odors to a neighbor’s dog barking. The former would be a public nuisance, one affecting many people, while the other would be a private nuisance, limited to making your life difficult. Lawsuits may be brought to abate (remove or reduce) a nuisance.
An attorney’s formal statement protesting something that has occurred in court and seeking the judge’s immediate ruling. Often, lawyers object to questions posed to a witness by an opposing attorney because the inquiries do not meet legal standards. For example, the question may be irrelevant, immaterial, call for a conclusion (seeking opinion, not facts), argumentative, assuming facts not in evidence, or compound (two or more questions asked together). The trial attorney must be alert to object before an answer is given.
An attorney who is affiliated with a law firm, but not employed as a partner or associate. This designation often identifies a semiretired partner, an attorney who occasionally uses the office for a few clients, or one who only consults on certain matters.
An element required in the creation of an enforceable contract. An offer is a proposal to enter into an agreement and must express the intent of the person making the offer to form a contract, must contain the essential terms — including the price and subject matter of the contract — and must be communicated by the person making the offer. A legally valid acceptance of the offer will create a binding contract.
In a promissory note, a requirement that the amount due must be paid when the person or company to whom the funds are owed demands payment (rather than upon a certain date or in installments). Such a note is called a demand note.
A statement made by an attorney or self-represented party at the beginning of a trial before evidence is introduced. The opening statement outlines the party’s legal position and previews the evidence that will be introduced later. The purpose of an opening statement is to familiarize the jury with what it will hear — and why it will hear it — not to present an argument as to why the speaker’s side should win; that comes after all evidence is presented as part of the closing argument.
A court’s written explanation of a judgment, usually including a summary of the facts, an explanation of the law on the issue, and the court’s analysis for applying the law to those facts and coming to a conclusion. The opinions of appellate courts (courts that review the decisions of trial courts, the highest appellate court being the Supreme Court) are frequently published and create rules for future litigants to follow. Appellate judges who disagree with a majority opinion may file dissenting opinions.
A decision issued by a court. It can be a simple command–for example, ordering a recalcitrant witness to answer a proper question–or it can be a complicated and reasoned decision made after a hearing, directing that a party either do or refrain from some act. For example, following a hearing, the court may order that evidence gathered by the police not be introduced at trial; or a judge may issue a temporary restraining order. This term usually does not describe the final decision in a case, which most often is called a judgment.
A law adopted by a town or city council, county board of supervisors, or other municipal governing board. Typically, local governments issue ordinances establishing zoning and parking rules, and regulating noise, garbage removal, and the operation of parks and other areas within the locality’s borders.
An expense paid from an individual’s own funds.
1) A trial judge’s decision to reject a party’s objection–often, to a question for a witness or the admission of evidence. By overruling the objection, the judge allows the question or evidence in court. 2) An appellate court’s decision that a prior appellate decision was incorrect, and is therefore no longer a valid precedent on the legal issue in question.
Pain and Suffering
The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured person (the plaintiff) can seek compensation in the form of cold, hard cash. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work — although sometimes these amounts are considered to arrive at a logical figure.
Medical care designed to keep a patient comfortable and pain-free while also providing psychological and spiritual support. Rather than focusing on curing an illness, palliative care emphasizes quality of life for both the patient and the patient’s family members. Used negatively, it may mean the provision of only perfunctory medical care when an illness could be cured.
The list of people selected to appear for jury duty.
A person who does legal work but is not licensed to practice law or give legal advice. Paralegals employed by a law office often handle the routine tasks and paperwork of a law practice. Independent paralegals (those who work directly with the public, not for lawyers) assist their customers by providing forms, helping people fill them out correctly, and filing them with the proper court.
The result of an injury that permanently reduces a worker’s ability to function, but still permits the worker to do some gainful activity.
1) A person, business, or other legal entity that files a lawsuit (the plaintiff or petitioner) or defends against one (the defendant or respondent). 2) A person or other legal entity that enters into an agreement.
An obvious flaw in a product or a document (such as leaving out the property description in a deed).
An evaluation of someone’s work by a group of people in the same profession or field. A peer-reviewed or “refereed” journal, for example, publishes submissions that have been read and selected by an editorial board of experts in the field. Hospitals, schools, and other institutions often have peer-review boards or committees who evaluate the work of their colleagues, sometimes in response to allegations of poor performance or malpractice.
Latin for “per day,” per diem refers to payment of a set amount for each day’s expenses for an employee or agent. Typically, a per diem is available only for travel away from home. For example, someone who goes on an overnight business trip for an employer might receive a per diem of $50 to cover meals and incidentals on the trip.
The right to dismiss or excuse a potential juror during jury selection without having to give a reason. Each party to a lawsuit gets a set number of peremptory challenges.
To take all required steps to achieve a legal result. For example a mechanic’s lien is perfected by filing a lawsuit and obtaining a judgment.
The crime of intentionally lying after being duly sworn to tell the truth by a notary public, court clerk, or other official. This false statement may be made in testimony in court, administrative hearings, depositions, or answers to interrogatories, as well as by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, or tax return) known to contain false information.
A physical or mental disability that indefinitely impairs a worker’s ability to perform the duties or normal activities that the worker performed before the accident or serious illness.
Physical or mental damage that will indefinitely restrict the employment or other normal activities of an individual. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.
Personal Injury Recovery
The amount that comes from a lawsuit or insurance settlement to compensate someone for physical and mental suffering, including injury to body, injury to reputation, or both.
All property other than land and buildings attached to land. Cars, bank accounts, wages, securities, a small business, furniture, insurance policies, jewelry, patents, pets, and season baseball tickets are all examples of personal property. Personal property may also be called personal effects, movable property, goods and chattel.
An alternative term for the executor or administrator of an estate, commonly used in states that have adopted a law called the Uniform Probate Code.
A method for the formal delivery of court papers in which the papers are placed directly into the hands of the person to be served. Compare:
1) A formal request for something, submitted to an authority such as a court or a government agency. For example, the party who loses a court case might petition to appeal. 2) Making a formal request of a court or presenting a written request to an organization’s governing body signed by one or more members.
1) A person who signs a petition. 2) Sometimes a synonym for plaintiff, used almost universally in some states and in others for certain types of lawsuits, most commonly divorce and other family law cases. 3) Someone who sponsors an immigrant or nonimmigrant for a green card or visa.
The person, corporation, or other legal entity that initiates a lawsuit seeking damages, enforcement of a contract, or a court determination of rights. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff.
1) In civil lawsuits and petitions, the filing of any document (pleading) or the act of making an assertion or allegation in a legal proceeding. 2) In criminal law, the entry of plea of a defendant in response to each charge of criminal conduct.
Any legal document filed in a lawsuit, including the complaint, petition, answer, demurrer, motion, declaration, and memorandum of points and authorities (written argument citing precedents and statutes).
Points and Authorities
The legal and factual basis for an argument in a lawsuit. A party who wants the judge to rule a particular way on a motion often must submit a memorandum of points and authorities, in which the party argues that the facts, statutes, and relevant precedents support that party’s position.
A special needs trust operated by a nonprofit organization for the benefit of several beneficiaries. Assets are jointly managed and invested. SSI does not consider pooled trust funds donated by a third party for a beneficiary to be a resource available to the beneficiary.
The phrase represents the faulty logic of assuming that one thing was caused by another merely because it followed that prior event in time. From the Latin phrase post hoc ergo propter hoc, which means “after this, therefore because of this.”
Interest on a court judgment that a creditor can collect from the time the judgment is entered in the court clerk’s record until it is paid.
Power Of Attorney
A document that gives another person legal authority to act on your behalf. If you create such a document, you are called the principal, and the person to whom you give this authority is called your agent or attorney-in-fact. If you make a durable power of attorney, the document will continue in effect even if you become incapacitated.
To formally request judicial judgment, relief, or damages at the end of a pleading.
An opinion of a federal or state court of appeals establishing a legal principle or rule that must be followed by lower courts when faced with similar legal issues. For example, once the California Supreme Court decided that employers may fire an employee who fails a drug test because of his use of medical marijuana, all lower courts in California must follow this rule.
1) The principle that a federal law supercedes a state law (and a state law supercedes a local law) where both governments have made laws on the same subject and the laws conflict. 2) The right of purchasing before others (for example, a preemptive right).
Preponderance of The Evidence
The burden of proof required in a civil (non-criminal) action to convince the court that a given proposition is true. The plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff’s version is true — that is, over 50% of the believable evidence is in the plaintiff’s favor.
A rule of law that permits a court to assume a fact is true until such time as there is a preponderance of evidence which disproves or outweighs the presumption. A presumption shifts the burden to the opposing party to prove that the assumption is untrue.
The winner in a lawsuit.
Latin for “at first look” or “on its face.” A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. The defendant must refute the case in some way to have a chance of prevailing at trial. For example, if you can show that someone intentionally touched you in a harmful or offensive way and caused some injury to you, you have established a prima facie case of battery. However, this does not mean that you automatically win your case. The defendant would win if he could show that you consented to the harmful or offensive touching
A business that transports goods or services for a fee but is under no obligation to do business with the general public.
An activity or thing that interferes with the use of property by an individual (or a few individuals) by being irritating, offensive, or obstructive. Nuisances can include everything from noise and illegal gambling to posting indecent signs and misdirecting water on to other property. Conditions that affect an entire community are a public nuisance. Lawsuits may be brought to abate (remove or reduce) a nuisance.
A special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group, or a class of people.
Short for pro bono publico, Latin “for the public good,” legal work performed by lawyers without pay, often to help those without financial resources to pay for services, or to support social causes such as environmental, youth, battered women, or other educational organizations or charities.
Latin for “as a matter of form.” In the courts, a ruling made as a formality, intended to move matters along.
Pro Hac Vice
Latin meaning “for this one particular occasion.” The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried.
A term derived from the Latin “in propria persona,” meaning “for one’s self,” used in some states to describe a person who handles his or her own case, without a lawyer. In other states, the term pro se is used. When a non-lawyer files his or her own legal papers, that party is expected to write “in pro per” under his or her name in the heading on the first page.
From Latin for “in proportion,” refers to a share to be received or an amount to be paid based on the fractional share of ownership, responsibility, or time used. For example, a buyer of rental property will pay his or her pro rata share of the property taxes for that portion of the year in which he or she holds title.
A Latin phrase meaning “for oneself” or “on one’s own behalf.” This phrase describes a party to a lawsuit who represents himself or herself, without a lawyer. It is used in some states in place of in pro per (or in propria persona) and has the same meaning.
(Latin for “for so much” or “to that extent.” Often used to refer to partial payment on a claim (for example, the debt is pro tanto discharged).
Temporarily or for the time being. A judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as a substitute for a regular judge.
The court-supervised process following a person’s death that includes proving the authenticity of the deceased person’s will; appointing someone to handle the deceased person’s affairs; identifying and inventorying the deceased person’s property; paying debts and taxes; identifying heirs, and; distributing the deceased person’s property according to the will or, if there is no will, according to state law.
A specialized court or division of a state trial court that considers cases concerning the distribution of deceased persons’ property and the appointment of guardians for children or adults who need care and supervision. Called “surrogate’s court” in New York and several other states, this court normally examines the authenticity of a will or, if a person dies without a will (intestate), figures out who inherits under state law. It then oversees a procedure to pay the deceased person’s debts and to distribute the assets to the proper inheritors.
Property of a deceased person that goes through probate court proceedings before being distributed to those who inherit it.
Tending to prove something. Courts can exclude evidence that is not probative (does not prove anything).
The term used to describe the weight of evidence submitted to prove something. Courts may exclude evidence when its probative value is outweighed by the prejudice the evidence may cause. For example, a prosecutor in a criminal case may wish to introduce the previous criminal conduct of a defendant to show a propensity to commit the crime at issue, but that must be weighed against the right of the accused to be tried on the facts of the present case.
Law that establishes the rules of the court and the methods used to ensure the rights of individuals in the court system. In particular, laws that provide how the busines of the court is to be conducted.
1) A method or act that furthers a legal process. Procedures include filing complaints, serving documents, setting hearings, and conducting trials. 2) The established rule or series of steps that governs a civil lawsuit or criminal prosecution.
1) The ordinary process of a lawsuit or criminal prosecution, from the first filing to the final decision. 2) A procedure through which one seeks redress from a court or agency. 3) A filing, hearing, or other step that is part of a larger action. 4) A particular matter that arises and is dealt with in a bankruptcy case.
1) The legal means by which a person is given notice of a legal proceeding or required to appear in court. 2) Proceedings in a legal matter.
A person who delivers papers informing another person or business of a pending lawsuit or requirement to appear in court.
The responsibility of manufacturers, distributors, and sellers of products to the public, to deliver products free of defects that harm someone and to make good on that responsibility if the products are defective. Defective products might include faulty auto brakes, contaminated baby food, exploding bottles of beer, flammable children’s pajamas, or products that lack proper label warnings. A key feature of product liability law is that a person who suffers harm need not prove negligence, because the negligence is presumed and the result is strict liability (absolute responsibility) on the seller, distributor, and manufacturer.
A kind of civil lawsuit against the maker of a product, which claims that a person or group of people were injured or damaged by a product that was defective or not suitable for the use it was advertised for. Products liability lawsuits are often class actions.
To offer evidence for admission at trial.
A legal principle that prevents a person who made a promise from reneging when someone else has reasonably relied on the promise and will suffer a loss if the promise is broken.
Factual evidence that helps to establish that an event occurred or a statement is true. When someone is accused of a crime, the government must prove every element, or aspect, of the crime, such as who physically committed the act and whether that person did so with the intent to commit the crime. Unless all elements of the charged crime are proved, the prosecution will not prevail. In civil cases, too, the plaintiff must prove every aspect of the complaint.
A person or entity who has an interest in the subject matter of a lawsuit and, therefore, can join in the lawsuit or may be brought into the suit by one of the parties to the legal action. A proper party is distinguished from a “necessary party” who the court will order joined (brought into) the suit. Example: Marianne and Issac both use the road on Allen’s property to reach their vacation cabins. Marianne brings a lawsuit to establish the right to use the road. Issac could join the lawsuit as a proper party.
Injury to real or personal property through another’s negligence, willful destruction, or by an act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home, or any other possession.
A group of people protected by law from discrimination or harassment based on their membership in the group. For example, under federal law, race, national origin, sex, and age are examples of protected classes.
In a legal proceeding, to present evidence or logic that makes a fact seem certain.
Prudent Person Rule
The requirement that a trustee, a city or county treasurer, an investment manager of pension funds, or any fiduciary (a trusted agent) must invest funds with discretion, care, and intelligence. Investments that are generally within the prudent person rule include solid “blue chip” securities, secured loans, federally guaranteed mortgages, treasury certificates, and other conservative investments providing a reasonable return. Some states have statutes that list the types of investments allowable under this rule.
An activity or thing that affects the health, safety, or morals of a community. It is distinguished from a private nuisance, which harms only a neighbor or a few individuals. For example, a factory that spews out clouds of noxious fumes is a public nuisance, but playing drums at three in the morning is a private nuisance bothering only the immediate neighbors.
Any information, minutes, files, accounts, or other records which a governmental body is required to maintain, and which must be accessible to scrutiny by the public.
A witness who helps lay a foundation for admission of evidence under the business exception to the hearsay rule by explaining how a business keeps its records.
Latin for “as much as he deserved.” A principle used to award the reasonable value of services performed by the victim of a broken contract.
To annul or set aside. A motion to quash asks the judge for an order setting aside or nullifying an action, such as quashing a service of summons when the wrong person was served.
Question of Fact
A question that involves factual matters. In a legal proceeding, a jury (if there is one) will determine issues of fact, while only a judge can decide questions of law. For example, whether a defendant was present at the scene of a crime is a question of fact; whether mere presence meets the legal definition of a crime is a question of law.
Question of Law
An issue arising in a lawsuit or criminal prosecution which only relates to determination of what the law is, how it is applied to the facts in the case, and other purely legal points in contention. All “questions of law” arising before, during, and sometimes after a trial are to be determined solely by the judge and not by the jury.
Quid Pro Quo
Latin for “this for that.” A quid pro quo is what each person in a deal expects to get from the other. In employment law, quid pro quo sometimes refers to a type of sexual harassment in which workplace rewards are explicitly linked to the victim’s willingness to submit to unwanted sexual advances. (“If you agree to go out with me, you’ll be first in line for promotion.”)
The number of people required to be present at a meeting before a vote can be taken. A quorum is usually a majority of directors, shareholders, or members, but a different quorum may be set in the bylaws or operating agreement of the business or association.
Just, rational, appropriate, ordinary, or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities. In the law of negligence, for example, the reasonable person standard is the standard of care that a reasonably prudent person would observe under a given set of circumstances. An individual who subscribes to such standards can avoid liability for negligence.
The degree of caution and attention to possible dangers that an ordinarily prudent and rational person would use in similar circumstances. This is a subjective test of determining whether a person is negligent and therefore liable.
A legal standard used in negligence (personal injury) cases. The hypothetical reasonable person behaves in a way that is legally appropriate. Those who do not meet this standard — that is, they do not behave at least as a reasonable person would — are considered negligent and may be held liable for damages caused by their actions.
Reasonable Wear And Tear
Damage or loss to an item (such as a table) or element of a room (such as the floor) resulting from ordinary use and exposure over time. The term is commonly used in leases to limit the tenant’s responsibility to repair damage, repaint the walls, or replace items when moving out. The term is subjective, but more wear and tear can be expected the longer the occupancy or the worse the condition of the premises when the tenant moved in. This is often a source of conflict between landlord and tenant, particularly when there is a deposit for any damages beyond reasonable (sometimes called normal or ordinary) wear and tear.
An assumption of fact accepted by the court to be true unless someone proves it to be untrue. A rebuttable presumption is often drawn from prima facie evidence.
A witness who is called to rebut testimony already presented.
Behavior that is so careless that it is considered an extreme departure from the care a reasonable person would exercise in similar circumstances.
Grossly negligent without concern for injury to others.
1) To file a copy of a deed or other document concerning real estate with the land records office (often called the county recorder, registry of deeds, or something similar) for the county in which the land is located. 2) The official transcript of a trial or public hearing, including in the case of a trial all evidence introduced.
The amount of money and any other right or property awarded to or received by a plaintiff in a lawsuit.
A situation in which a judge or prosecutor is removed or voluntarily steps down from a legal case. This often happens when the judge or prosecutor has a conflict of interest — for example, a prior business relationship or close friendship with one of the parties.
The act of going over a document with a fine-toothed comb in order to find any ambiguities or areas that are not to your advantage.
The process by which the repeal or approval of an existing statute or state constitutional provision is voted upon. Many states allow for referenda which are placed on the ballot by a required number of voter signatures on a petition filed.
A rule, adopted under authority granted by a statute, issued by a municipal, county, state, or federal agency. Although not laws, they have the force of law and often include penalties for violations. Regulations are not generally published in the books that contain state statutes or federal laws, but often must be obtained from the agency. To adopt a regulation, an agency usually drafts the rule, publishes it in governmental journals intended to give public notice, holds hearings, and then adopts a final, revised regulatrion.The process is best known to industries and groups concerned with the subject matter. Federal regulations are adopted under the procedure set out in the federal Administrative Procedure Act (APA); states usually follow similar procedures.
Conducting a hearing again based on the motion of one of the parties to a lawsuit, petition, or criminal prosecution, usually by the court or agency which originally heard the matter. Rehearings are usually requested due to newly discovered evidence, an unfortunate and possibly unintended result of the original order, a change of circumstance, or a simple claim that the judge or agency was just wrong.
1) To give up a right, as releasing one from the obligation to perform under a contract, or relinquishing an interest in property. 2) To give freedom, as letting out of prison. 3) The written document that establishes or grants a release.
Having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. A common objection to testimony or physical evidence is that it is irrelevant.
The generic term for a benefit which an order or judgment of court can give a party to a lawsuit, including a money award, injunction, return of property, property title, alimony, and many others.
To send back. For example, an appeals court might reverse a lower court’s decision and send a matter back to that court for a new trial. Or a judge might remand into custody a person accused of a crime, if there appears to be a legal reason to hold the person for trial.
The means of redressing an injury or enforcing a right in a legal action. Remedies may be ordered by the court, granted by judgment after trial or hearing, by agreement between the parties, and by the automatic operation of law. Some remedies require that certain acts be performed or prohibited, others involve payment of money, and still others require a court’s declaration of the rights of the parties and an order to honor them.
To give up a claim to something; a term sometimes used in quitclaim deeds conveying property.
Latin for “it is sent back.” 1) A judge’s order reducing a judgment awarded by a jury. 2) An appellate court’s transmittal of a case back to the trial court so that the case can be retried, or an order can be entered consistent with the appellate court’s decision (such as dismissing the plaintiff’s case or awarding costs to the winning party on appeal).
1) The change of a legal case from one court to another, as from a state court to federal court or vice versa based on a motion by one of the parties stating that the other jurisdiction is more appropriate for the case. 2) An immigration legal proceeding, formerly known as “deportation,” conducted before an immigration judge to decide whether or not an immigrant will be allowed to enter or remain in the United States. Generally speaking, a person who is already in the U.S. cannot be expelled without first going through a removal hearing, while someone arriving at the border or a port of entry can be removed without a hearing or ever seeing a judge (called “summary” or “expedited” removal). Those who are deported or removed are barred from returning to the United States for at least five years unless U.S. Citizenship and Immigration Services (USCIS) grants a special waiver.
To annul an existing law by passage of a repealing statute or by public vote on a referendum. Repeal of Constitutional provisions require an amendment.
The amount you would have to pay, at the present time, to replace a particular item, taking into consideration the item’s age and condition.
A type of legal action where the owner of movable goods is given the right to recover them from someone who should not have them. Replevin is often used in disputes between buyers and sellers — for example, a seller might bring a replevin action to reclaim goods from a buyer who failed to pay for them.
When a case is appealed to a higher court, the written legal argument of the respondent (the party who won in trial court), submitted in answer to the “opening brief” of an appellant (the party who lost at trial and has appealed to the appellate court).
1) To act as the agent for another. 2) To serve — for example, as a member of a legislative body after an election. 3) To act as a client’s attorney. 4) To state something as a fact, such as “This horse is only four years old.”
Request For Admission
A discovery procedure, authorized by the Federal Rules of Civil Procedure and the court rules of most states, in which one party asks an opposing party to admit that certain facts are true. If the opponent admits the facts or fails to respond in a timely manner, the facts will be deemed true for purposes of trial. A request for admission is called a “request to admit” in many states.
Res Ipsa Loquitur
(Latin for “the thing speaks for itself”; a legal presumption that a defendant acted negligently even though there may be no direct evidence of liability. For example, a construction company is presumed to be negligent if a load of bricks under its control falls off a roof and injures a pedestrian, even though nobody witnessed the accident. The presumption arises only if 1) the thing that caused the accident was under the defendant’s control, 2) the accident could happen only as a result of a careless act, and 3) the injured plaintiff’s behavior did not contribute to the accident. Lawyers also refer to this doctrine as “res ips” or “res ipsa.”
Latin for a legal issue that has been finally decided by a court, between the same parties, and cannot be ruled on again. For example, if a court rules that John is the father of Betty’s child, John cannot raise the issue again in another court. (He could appeal the court’s ruling to a higher court, but he could not raise the paternity issue again in another lawsuit.) Sometimes called res adjudicata.
Latin for “a new thing,” used by courts to describe an issue of law or case that has not previously been decided.
To cancel a contract by mutual agreement of the parties, putting them the positions they would have occupied had the contract not existed.
1) In business, an approval of an action or determination of policy of a corporation or limited liability company by the vote of its members, managers, or board of directors. 2) In government, a statement of policy, belief, or appreciation passed by a legislative body.
Latin for “let the master answer.” A legal doctrine that holds the employer or principal responsible for the acts of its employees or agents committed within the scope of employment.
A term used instead of defendant or appellee in some states — especially for divorce and other family law cases — to identify the party who is sued and must respond to the petitioner’s complaint.
Returning property or its monetary value to the rightful owner. The losing party in a negligence or contracts case may be ordered to make restitution, such as restoring ruined landscaping. A criminal defendant may also be ordered to make restitution, such as returning stolen goods or paying the victim for harm caused. Restitution may be imposed as a condition of probation or a shorter-than-normal sentence.
A new trial (by the same court as made the decision in the first trial), granted upon the motion of the losing party, based on obvious error, bias, or newly discovered evidence.
Return of Service
Written confirmation under oath by a process server declaring that there was service of legal documents (such as a summons and complaint).
A legal mistake at the trial court level that is so significant (resulted in an improper judgment) that the judgment must be reversed by the appellate court. A reversible error is distinguished from an error which is minor or did not contribute to the judgment at the trial.
The judicial consideration of a lower court judgment by an appellate court, determining if there were legal errors sufficient to require reversal. In reviewing a lower court decision or order, appellate courts focus on errors of a legal nature and will usually not disturb factual findings.
Annulment or cancellation of a statement, document, or offer not yet accepted, or cancellation of a contract by the parties to it. For example, a person can revoke a will or revoke an offer to enter into a contract, and a government agency can revoke a license.
The probability of danger or loss, particularly of property covered by an insurance policy.
1) To decide a legal question, as when at the end of a lawsuit a court announces: “This court rules that the plaintiff is entitled to the goods and damages for delay in the sum of $10,000.” 2) A regulation issued by a court or government agency. 3) A legal principle set by a court’s written decision in an appellate case, as “the rule in the case of Murray v. Crampton is….”
Rules of Court
A set of procedural rules adopted by local, state, or federal courts that instruct parties and attorneys what the court’s mandatory procedures are about things like the time allowed to file papers, format of documents, filing procedures and fees, basis for calculating alimony and child support.
Any decision a judge makes during the course of a lawsuit.
1) To save goods. 2) Payment to a person or group that saves cargo from a shipwreck.
1) A financial penalty imposed by a judge on a party or attorney — or the act of imposing such a penalty. 2) In international law, to impose economic constraints on trade against a country that violates international law or commits human rights violations. 3) To allow or approve.
Satisfaction of Judgment
A document signed by the party who is owed money under a court judgment (called the judgment creditor) stating that the full amount due on the judgment has been paid. If the judgment creditor has a lien on real property belonging to the judgment debtor, then the judgment debtor may demand that the judgment creditor record the satisfaction of judgment with the County Recorder (or Recorder of Deeds).
Scope of Employment
The actions or activities an employee might reasonably undertake as part of his or her job. An employer is responsible for actions an employee takes within the scope of employment, which means the employer can be liable to third parties who are injured by the employee’s conduct. For example, an employer would be liable for harm to a pedestrian caused by its delivery driver while driving a route; the employer most likely would not be liable for harm the same driver caused if he or she hit a pedestrian while using the delivery van as the getaway car in a bank robbery.
Sealing of Records
The requirement that trial records and court decisions must be kept under seal, in contrast to most other court records, which are available for public review. The records most commonly sealed are criminal records of underage offenders; cases might also be sealed if they involve inventions, proprietary business information, or national security.
1) Delivering legal papers to a defendant or a plaintiff in a lawsuit. 2) Delivering written notification of the sender’s intent to invoke a legal or contractual right.
Service of Process
The delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises, and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. 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.
1) As a verb, to vacate or annul a court order or judgment. For example, the losing party in a trial might file a motion asking the judge to set aside the verdict. 2) As a noun, something (often money) that is to be used for a particular purpose. For example, funds that are earmarked for a specific program might be described as a set-aside.
A claim made by someone who allegedly owes money, that the amount should be reduced because the other person owes him or her money. This is often raised in a counterclaim filed by a defendant in a lawsuit. By claiming a setoff, the defendant does not necessarily deny the plaintiff’s original demand, but seeks to reduce the amount of money owed to the plaintiff by the amount that the plaintiff owes to the defendant.
1) The resolution of a dispute or lawsuit. 2) Payment or adjustment. For example, a debtor might settle an account by paying the full amount owed, or an insurance company might settle a property damage claim by paying the insured for the covered damage. 3) The distribution of property and wrapping up of a decedent’s affairs by the executor. 4) The transfer of real property from the seller to the buyer (and new owner); closing.
When a party is responsible for his or her own obligation (separately from another’s liability), so that the plaintiff may bring a separate action against that party without suing other responsible parties.
1) An area in front of or next to a judge’s bench (the raised desk in front of the judge) away from the witness stand and the jury box, where lawyers are called to speak confidentially with the judge out of earshot of the jury. 2) A discussion between the judge and attorneys at the bench off the record and outside the hearing of the jurors or spectators.
Sine Qua Non
Latin for “without which it could not be,” an indispensable action or condition. Example: if Charlie had not left the keys in the ignition, his ten-year-old son could not have started the car and backed it over Polly’s bike. So Charlie’s act was the sine qua non of the damage to Polly’s bike.
Latin for location. Used to refer to the site of a crime or accident or where a building stands.
Small Claims Court
A state court that resolves disputes involving relatively small amounts of money — usually between $2,000 and $10,000, depending on the state. Adversaries usually appear without lawyers — in fact, some states forbid lawyers in small claims court — and recount their side of the dispute in plain English. Evidence, including the testimony of eyewitnesses and expert witnesses, is relatively easy to present because small claims courts do not follow the formal rules of evidence that govern regular trial cases. A small claims judgment has the same force as does the judgment of any other state court, meaning that if the loser — now called the “judgment debtor” — fails to pay the judgment voluntarily, it can be collected using normal collection techniques, such as property liens and wage garnishments.
A legal principal making governmental bodies and employees immune from being sued in their own courts without governmental consent. The legislature can, and often does, carve out areas where this immunity will be waived (canceled).
Damages that compensate the plaintiff for quantifiable monetary losses such as medical bills and the cost to repair damaged property (direct losses) and lost earnings (consequential damages). Distinguished from general damages, for which there is no exact dollar value to the plaintiff’s losses.
Special Needs Trust
A trust designed to hold and disburse property for the benefit of an SSI recipient so that SSI and Medicaid won’t consider the trust property or disbursements to be a resource or income. To accomplish this purpose, the trust typically gives the trustee sole discretion over trust disbursements and bars the trustee from making disbursements that would impair the beneficiary’s eligibility for SSI and Medicaid. In addition, the trust must be for the beneficiary’s sole benefit and bar creditors from going after trust assets. A special needs trust funded with the beneficiary’s own property (a self-settled trust) is subject to additional restrictions. Also called a supplemental needs trust.
Possible financial loss or expenses claimed by a plaintiff that are contingent upon a future occurrence, purely conjectural, or highly improbable. These damages should not be awarded. For example, a plaintiff may claim that in ten years, as he ages, he may begin to feel pain from a healed fracture caused by a defendant (even though no doctor has testified this is likely to happen), and should therefore recover money from the defendant now.
Standard of Care
The degree of care (watchfulness, attention, caution, and prudence) that a reasonable person should exercise under the circumstances. If a person does not meet the standard of care, he or she may be liable to a third party for negligence.
The right to file a lawsuit or make a particular legal claim. Only a person or entity that has suffered actual injury has standing to seek redress in court. For example, an advocacy group may not file a lawsuit challenging the constitutionality of a statute on its own; there must be a plaintiff who has actually been harmed by the statute.
A meeting of the judge and the lawyers (or unrepresented parties) in a pending legal matter, to determine how the case is progressing. At the status conference, the judge may ask about what discovery has been conducted, whether and how the parties have tried to settle the case, and other pretrial matters. The judge may also schedule dates for pretrial motions, completion of discovery, and trial. Often, court rules require the parties to file paperwork before the conference answering questions about the issues to be discussed at the conference.
A written law passed by Congress or a state legislature and signed into law by the president or a state governor. (In fairly rare circumstances, a legislative act can become law without the approval of the head of the executive branch of government.) Statutes are often gathered into compilations called “codes,” large sets of books that can be found in many public and all law libraries and on the Internet.
Statute Of Limitations
The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim and on state law. For example, many states require that a personal injury lawsuit be filed within one year from the date of injury — or in some instances, from the date when it should reasonably have been discovered — but some allow two years. Similarly, claims based on a written contract must be filed in court within four years from the date the contract was broken in some states and five years in others. Statute of limitations rules apply to cases filed in all courts, including federal court.
Predetermined payments established by law to compensate for certain injuries. Statutory damages are sometimes made available because it is too difficult to calculate actual damages.
Statutory Offer Of Settlement
A written offer of a specific sum of money made by a defendant to a plaintiff, which will settle the lawsuit if accepted within a short time. The offer may be filed with the court. 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.
A court order that suspends or stops certain proceedings.
Automatic responsibility for damages due to manufacture or use of equipment or materials that are inherently dangerous, such as explosives, animals, poisonous snakes, or assault weapons. A person injured by such equipment or materials does not have to prove the manufacturer or operator was negligent in order to recover money damages.
1) An organized work stoppage by employees, intended to pressure the employer to meet the employees’ demands (for example, for higher pay, better benefits, or safer working conditions). 2) For the judge to order that all or part of a party’s pleading be removed or disregarded, typically after a motion by the opposing party. 3) For the judge to order evidence deleted from the court record and instruct the jury to disregard it. Typically, this order is made regarding testimony by a witness in court.
Latin for “of one’s own accord,” most commonly used to describe a decision by a judge that neither party to a lawsuit has requested.
Subpoena Duces Tecum
A type of subpoena, usually issued at the request of a party, by which a court orders a witness to produce certain documents at a deposition or trial.
A court order issued at the request of a party requiring a witness to testify, produce specified evidence, or both. A subpoena can be used to obtain testimony from a witness at both depositions (testimony under oath taken outside of court) and at trial. Failure to comply with the subpoena can be punished as contempt of court.
A taking on of the legal rights of someone whose debts or expenses have been paid. For example, subrogation occurs when an insurance company that has paid off its injured claimant takes the legal rights the claimant has against a third party that caused the injury, and sues that third party
A method for the formal delivery of court papers that takes the place of personal service. Personal service means that the papers are placed directly into the hands of the person to be served. Substituted service, on the other hand, may be accomplished by leaving the documents with a designated agent, with another adult in the recipient’s home, with the recipient’s manager at work, or by posting a notice in a prominent place and then using certified mail to send copies of the documents to the recipient.
A final decision by a judge, upon a party’s motion, that resolves a lawsuit before there is a trial. The party making the motion marshals all the evidence in its favor, compares it to the other side’s evidence, and argues that there are no “triable issues of fact.” Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail if the matter were to proceed to trial.
A form prepared by the plaintiff and issued by a court that informs the defendant that he or she has been sued. The summons requires that the defendant file a response with the court — or in many small claims courts, simply appear in person on an appointed day — within a given time period or risk losing the case under the terms of a default judgment.
Latin for “above.” In legal briefs and decisions, it is used to refer the reader to an earlier cited authority.
To agree with or rule in favor of a party in court. For example, if a judge agrees with an attorney’s objection to a question at trial, the judge will say “objection sustained.”
A motion to contest a claim for court costs submitted by a prevailing party in a lawsuit. It is called a “Motion to Tax Costs” and asks the judge to deny or reduce claimed costs.
An individual’s or business’s gross income minus all allowable deductions, adjustments, and exemptions.
1) To present to another person an unconditional offer to enter into a contract; a request for bids. 2) To present payment to another.
Term Life Insurance
No-frills life insurance, with neither cash surrender value nor loan value (an amount that can be used as collateral for a loan). Term life insurance provides a pre-set amount of coverage if the policyholder dies during the period of time specified in the policy. Policyholders usually have the option to renew at the end of the term for the period of years specified in the policy. Unlike whole life insurance, premiums generally increase as the insured person gets older and the risk of death increases.
The circumstance of dying after making a valid will. A person who dies with a will is said to have died testate.
Evidence given under oath by a witness either at trial or in an affidavit or deposition.
A person who is not a party to a contract or a transaction, but who has an involvement. The third party normally has no legal rights in the matter, unless the contract was made specifically for the third party’s benefit.
A person who is not a party to a contract, but has legal rights to enforce the contract or share in proceeds because the contract was specifically intended for that person’s benefit. For example, a grandparent contracts to buy a car for a grandchild. If the seller refuses to go through with the deal after receiving payment, the grandchild may sue, even though not a party to the contract.
An injury to one person for which the person who caused the injury is legally responsible. A tort can be intentional — for example, an angry punch in the nose — but is far more likely to result from carelessness (called “negligence”), such as riding your bicycle on the sidewalk and colliding with a pedestrian. While the injury that forms the basis of a tort is usually physical, this is not a requirement — libel, slander, and the “intentional infliction of mental distress” are on a good-sized list of torts not based on a physical injury. A tort is a civil wrong, as opposed to a criminal wrong.
A person who commits a tort (civil wrong), either intentionally or through negligence.
Constituting a tort (civil wrong), referring to an act that is a tort.
Causing harm by intentionally 1) disrupting a contractual relationship, for example by preventing one party from delivering goods on time, or 2) harming a business relationship or activity, for example, by spreading lies about a competitor to one of its clients.
A personal injury caused by exposure to a toxic substance, such as asbestos or hazardous waste. Victims can sue for medical expenses, lost wages and pain and suffering.
The official written record of all proceedings in a trial, hearing, or deposition, taken down by the court reporter. In most appeals a copy of the trial transcript is required so that the court of appeals can review the entire proceedings in the trial court.
The court that has original jurisdiction and holds the original trial where all the evidence is first received and considered.
Trier of Fact
The jury responsible for deciding factual issues in a trial, if there is a jury. If there is no jury the judge is the trier of fact as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission, or referee may be the trier of fact.
An arrangement under which one person, a trustee, manages property for a beneficiary. The person who creates the trust is called the settlor, trustor, or grantor. There are many kinds of trusts, some created during the settlor’s lifetime and some at death. Trusts are used for, among other things, avoiding probate court proceedings, saving on estate tax, providing quality management of assets, and keeping money out of the hands of improvident beneficiaries.
The person (or business) who manages assets held in trust, under the terms of the trust document. A trustee’s purpose is to invest trust assets and distribute trust income or principal to beneficiaries as directed in the trust document. With a simple probate avoidance living trust, the person who creates the trust is also the original trustee.
In a trial, a fact that is essential to the case.
1) To agree to pay an obligation which may arise from an insurance policy. 2) To guarantee purchase of all shares of stock or bonds being issued by a corporation, including an agreement to purchase by the underwriter if the public does not buy all the shares or bonds. 3) To guarantee by investment in a business or project.
Income from investments, such as interest, dividends, or capital gains, or any other income that isn’t compensation for services.
An agreement to pay in exchange for performance, if the potential performer chooses to act. An example would be if you promise to pay someone $1,000 if they bring your car from Cleveland to San Francisco. Bringing the car is acceptance (and performance) of the agreement.
Uninsured Motorist Clause
A clause in an automobile insurance policy that provides that if the owner or a passenger suffers any injury because of the actions of a driver of another vehicle who does not have liability insurance, the insurance company will pay its insured’s actual damages.
A legal principle that if a person receives money or other property unfairly and at the expense of another — that is, by chance, mistake, or without any personal effort — the recipient should return the property to the rightful owner. In lawsuits based on unjust enrichment, courts can order that the property be returned (referred to as making restitution).
1) For a judge to set aside or nullify an order or judgment that he or she finds was improper. 2) To move out of real estate and cease occupancy.
Variable Life Insurance
A type of whole life insurance in which the amount of death benefits varies, depending on the performance of investments. The insurance company places some or all of the fixed premium payments into an investment account; some companies let the insured person decide how the money is invested. The policyholder bears the risk of investment losses, though there is a guaranteed minimum benefit payment. One benefit of variable insurance is that interest and dividend income from the investment account is not taxed until it is paid out to the policyholder.
A violation of traffic laws that results in a fatality. Vehicular manslaughter can be charged as a misdemeanor or a felony depending on the circumstances. Drunk driving resulting in a death is most likely treated as a felony. The death of a passenger, including a loved one or friend, can also be vehicular manslaughter.
The appropriate location(s), according to law and court rules, for a trial. In a criminal case, the proper venue is generally the judicial district or county where the crime was committed. In civil cases, venue is generally proper in the county or district where important events related to the case took place, such as the signing or performance of a contract or the accident or other incident that led to a personal injury case. Typically, the plaintiff in a civil case may also sue in the district or county where the defendant lives or does business.
A jury’s decision after a trial, which becomes final when accepted by the judge.
Responsibility for a civil wrong that a supervisor bears when a subordinate or associate has actually committed the acts that give rise to the liability. For example, the owner of a residential rental may be vicariously liable if the manager discriminates against tenants on the basis of their religion.
French for “to speak the truth,” this is the questioning in court of prospective jurors by a judge or attorneys. The purpose is to determine if any juror is biased or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (such as knowledge of the facts or acquaintance with the parties or witnesses). When attorneys are allowed to conduct the voir dire, they often try to ask questions that will reveal individuals’ personalities and political or cultural persuasions. In cases where the facts are shocking or the evidence is difficult to view, attorneys may also use voir dire as a way to introduce the issues so that the eventual jurors are prepared for what will happen at trial.
The intentional and voluntary giving up of a right, either by an express statement or by conduct (such as by not enforcing a right). A waiver accomplished by conduct may be interpreted as giving up the right to enforce the same right in the future. For example, a landlord who never invokes his “no pets” rule and allows tenants to keep dogs may not be able to successfully invoke the rule at a future date. A waiver of a legal right in court, such as the right to a jury trial, must be expressed on the record.
1) Behavior that is grossly negligent and recklessly unconcerned with the safety of people or property. For example, speeding past a school while students are leaving, or firing a shotgun in a crowded public park, are wanton acts that will, if someone is killed, justify a charge of second degree murder. 2) Sexually immoral and unrestrained.
1) A person (usually a minor) who has a guardian appointed by the court to care for and take responsibility for that person. Such a person is a “ward of the court” (if the custody is court-ordered) or a “ward of the state.” 2) A political division of a city.
A promise or assurance that may be express, implied by the circumstances, or implied by law. A warranty might be an express or implied statement that particular facts are true (for example, that merchandise may be used for particular purposes or that the seller has clear title to real estate). A warranty might be a promise to repair property within a certain period of time, or a legal obligation incident to a contract (for example, an implied warranty that leased residential property is habitable).
Weight of Evidence
The strength, value, and believability of evidence.
Whole Life Insurance
Life insurance that provides coverage for the entire life of the policyholder, who pays the same fixed premium throughout his or her life. The policy builds up cash reserves that may be paid out to the policyholder when he or she surrenders or partially surrenders the policy or uses the cash reserves to fund low-interest loans. The annual increase in the cash value of the policy is not taxed. If the policyholder surrenders the policy, a portion of the payment is not taxable. Also called straight life insurance or ordinary life insurance.
A harmful act that is committed in an intentional and conscious way. For example, if your neighbor builds an ugly new fence and you intentionally mow it down with your truck, that’s a willful tort. But carelessly backing into the fence as you pull out of your driveway is not willful, though it’s still a tort.
A final and binding decision by a judge about a legal matter that prevents further pursuit of the same matter in any court. When judges make such a decision, they dismiss the matter “with prejudice.” The parties may also agree to dismiss a claim with prejudice.
A person who testifies under oath at a deposition or trial, providing firsthand or expert evidence. The term also refers to someone who watches another person sign a document and then adds his or her name to confirm (called “attesting”) that the signature is genuine.
The writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial. A work product may not be demanded or subpoenaed by the opposing party because it reflects the confidential strategy, tactics, and theories to be employed by the attorney.
A written order from a judge requiring specific action by the person or entity to whom the writ is directed. Writs can be directed to other, lower court judges (writ of mandamus); to prison officials (writ of habeas corpus); and others.
A death caused by the wrongful act of another, either accidentally or intentionally. A claim for wrongful death is made by a family member of a deceased person to obtain compensation for having to live without that person. The compensation is intended to cover the earnings and the emotional comfort and support the deceased person would have provided.
A legal claim that an employee has been fired for an illegal reason, such as discrimination, breach of contract, or in violation of public policy.