EXAMPLE: Nick desperately needs information from Sam to aid Nick in preparing for a lucrative business deal. Sam refuses to provide that information because of its confidential nature. Nick files a lawsuit against Sam so he can acquire the information by claiming that he needs it in connection with the lawsuit. Nick has thus participated in an abuse of process because he used service of summons, which is a legal process, to institute a lawsuit, for the sole purpose of acquiring information not otherwise lawfully available to him.

EXAMPLE: The Environmental Protection Agency was created by Congress to protect the quality of the nation's air, water, and land. Pursuant to that goal, the agency monitors air pollution in cities, sewage treatment plants, chemical landfills, etc. The Federal Trade Commission regulates commercial practices and takes action against deceptive advertising and monopolistic activity. There are many federal and state administrative agencies that enforce federal and state policies in particular areas of governmental regulation.

EXAMPLE: as part of the defendant's sentence, the judge intends to include a large dollar amount for restitution to the victim. Rather than conduct a trial to determine the defendant's ability to pay the fine, the judge permits the defendant to file an affidavit outlining his financial situation. The affidavit also includes the defendant's name, address, age and other technicalities required by law, and an acknolwedgment of the truthfulness of the statements made. A legally authorized person is required to administer an oath to the signer (called the affiant) and witness his signature.'

EXAMPLE: Dan is accused of aiding in a bank robbery in which all of the participants were over six feet tall. One suspect has already been cleared by police because he is only five feet six inches. Since Dan is only five feet two inches, a fortiori he could not have participated in the robbery and will also be cleared.

EXAMPLE: Kim, an artist, instructs Lorenzo to sell her paintings to various art galleries and to private parties. Lorenzo is considered Kim's agent, regardless of whom he sells to, since he will have apparent authority to act on her behalf.

EXAMPLE: Lily sues a manufacturing company for injuries resulting from a defect in one of their products. After she files her papers with the court, she discovers new facts which indicate that the company was negligent in developing the product. Lily seeks to amend her pleading to include these new facts, and, as is generally the case, she is permitted to amend.

EXAMPLE: A business organization that sells athletic equipment used Tim, a local sports star, to advertise and promote their products. His actions made it seem that he was part of the business, and the business did nothing to qualify that image. A manufacturer contracted with Tim to supply the businesss with various types of equipment under their belief that Tim was a part of that business. Although the business may not want that equipment, they are forced to purchase it. Tim's apparent authority as agent of the business organization was due to the organizaation's acquiescense, and this false impression obliges them to act in accordance with the contract.

EXAMPLE: Suze is arrested for possessing more than 25 grams of marijuana. Once she employs an attorney, the attorney files a notice of apperance with the court stating that he or she is Suze's attorney and will represent her in the forthcoming trial.'

EXAMPLE:

a steward who has charge of lands, goods and chattels to get the best benefit for the owner;

a person appointed by private persons to collect rents and manage their estate; or

a court-appointed guardian of an incompetent.

EXAMPLE: Franco wants to build a shopping center in town, but for years his requests for building permits have been turned down. Another company is then granted the permits after one request. When Franco inquires why that company is treated differently, he is informed that they "make sure" their requests are granted. Franco understands that to mean he needs to pay money to town council members. If Franco pays the money, he is guilty of bribery even though payment is the only means to secure permits.

EXAMPLE: Jean files a lawsuit claiming that Don fraudulently induced her to buy a vacuum cleaner. Don replies that he has never met Jean and that he has never sold vacuum cleaners in Jean's section of town. Jean has a burden of proof to show facts that Don sold her a vacuum cleaner and did so by fraudulent means.

EXAMPLE: There are no eyewitnesses to place Julio at the site of the car accident, but there is a variety of circumstantial evidence to suggest that Julio was involved. The prints at the scene of the accident match the tires on his car, the color of several scratches on the other person's car is the same as the color of Julio's car, and his car is dented precisely where the other driver said it would be. That evidence could be used to implicate Julio in the collission.

Compare direct evidence

EXAMPLE: In accordance with securities law, a corporation files a registration statement with the Securities and Exchange Commission concerning a stock sale. After investors buy several million shares of stock and a few years pass, the corporation files for bankruptcy. At that point, a few of the investors realize the statement was false and misleading. Those investors, on behalf of all investors of the corporation, file a class action lawsuit seeking to recover the money they originally paid for the stock.

EXAMPLE: Damien is charged with robbing six persons at a poker game and his defense in the first trial involving the alleged robbery of only one of the victims is that he wasn't there [ALIBI], and if he is acquitted at that trial due to the jury's specific acceptance of his alibi, the state will be estopped to relitigate the alibi question with respect to the other related robberies.

EXAMPLE: Jack kidnaps a young girl and takes her across state lines, a crime that violates both federal and state laws. Although Jack could be prosecuted by both jurisdictions or either of them, under principles of comity the federal prosecutor allows the state to proceed first, because of the anger of the community and their desire to try Jack in a local setting.

EXAMPLE: John Doe files an employment discrimination complaint with the FCHR. At that stage he is referred to as the "Complainant". John Doe later files suit at DOAH. Where he becomes a "Petitioner". Ultimately, John Doe withdraws his DOAH suit in exchange for going to federal court. Now that he's in the judicial branch, John Doe is known as the "Plaintiff" in his case.

EXAMPLE: In this case, John Doe claims that he lost wages and benefits because Company ABC “constructively discharged” John Doe from his job. Put another way, John Doe claims that he left his job because the hostile work environment made his working conditions intolerable.

EXAMPLE: John Doe charges ABC Co. with sexual harassment in his discrimination complaint. In the hearing, DOAH found that Mr. Doe's direct manager sexually harassed him. That finding rendered ABC Co. "constructively knowledgeable" of sexual harassment in the workplace; and, thus, liable.

EXAMPLE: A retail store owner sues a manufacturer for a shipment of defective clocks. Regardless of the validity of that suit, the manufacturer could counterclaim against the store owner if, for example, the owner owed the manufacturer money for past shipments. Both the storeowner’s and the manufacturer’s claims would then be decided by the courts.

EXAMPLE: A state legislature passes a taxing measure that will have a widespread effect on corporations doing interstate business within that state. A payment of the tax with a subsequent refund if the tax is found invalid would result in administrative difficulties. Therefore, one of the affected corporations asks a court for a declaratory judgment on the validity of the tax.

EXAMPLE: Nursing homes were established throughout a particular state under the authority of a newly enacted state law. Now, two years later, portions of the law are found to be unconstitutional. Instead of closing all the homes that were set up, the state permits them to continue to operate under its de facto authority until the law is amended and legal.

EXAMPLE: A carpenter files a suit against a homeowner, claiming that the homeowner failed to pay the carpenter for work performed six months ago. Under the state’s court rules, the homeowner has twenty days to file an answer to the carpenter’s claim. If the homeowner fails to do so within twenty days, the court will enter a default judgment against him declaring that the homeowner must pay the carpenter what is claimed.

EXAMPLE: a new corporation is set up exactly according to both state and federal incorporation laws. The corporation is therefore a de jure (ie, legal) corporation.

EXAMPLE: Cy is arrested for possession of one marijuana cigarette. Although marijuana possession has not been decriminalized in the state where Cy is arrested, the prosecutor decides not to prosecute Cy for the possession since it is only a de minimis infraction

EXAMPLE: A state statute gives a defendant convicted in a municipal court the right to appeal that conviction de novo in a higher court. That right means that the defendant will have a new trial in which the facts and issues will be reviewed anew.

EXAMPLE: Sandor claims that the issue of his liability for damage on his sidewalk resulting in injury to another was settled in a previous case. The judge reminds Sandor that the previous case concerned the city’s obligation to keep the sidewalks in good repair and the city’s liability for injury to a person. The part of the case addressed to a private citizen’s liability was not necessary to the decision and hence was only dictum and is not binding on this judge.

EXAMPLE:

Direct Evidence: Susan testified that she looked out into her hallway at 4 A.M. and observed her neighbor Mae hitting her husband with a hammer.

Circumstantial Evidence: Susan testified that at 4 A.M. she was awakened by screams and banging noises from the adjoining apartment and the next morning found the injured body of Mae's husband in the hallway. Additional inferences need to be drawn to link Mae to the crime of assaulting her husband.

EXAMPLE: Alina gets into an accident when her rear wheels stop for no reason, causing the car to skid into a highway divider. In her lawsuit against the car manufacturer, Alina uses the discovery procedure to obtain memos and test run results that the manufacturer used in designing the car. Without discovery, Alina may not be able to acquire that information.

EXAMPLE: Ray is charged with destroying government property. After a long trial, a jury finds Ray not guilty. Immediately after the trial, new evidence is discovered that unquestionably links Ray to the destruction. Under principles of double jeopardy, the prosecutor cannot retry Ray for the crime even with the new evidence.

EXAMPLE: Police in a municipality devise a scheme to produce a confession from Randy, who was accused of murder. The grail judge permits the prosecution to use the confession, and Randy is convicted. On appeal, a judge could find that the scheme violates procedural due process of law, based on the nature of the police scheme and the general nature of the American judicial system, which looks to produce convictions based on evidence acquired from sources other than the accused. In essence, due process is that level of process which is deemed fair based on a balancing of all interests.

EXAMPLE: Plastics Company has been disposing of its waste products in an adjacent river for over a decade. Environmentalists finally determine that some of the liquid waste contains a deadly carcinogen. A court enjoins (ie, forbids) Plastics from using the river for disposal based on the environmentalists’ proofs.

EXAMPLE: Women and men who perform equal tasks in their jobs for the state receive unequal pay. In a lawsuit seeking equal pay, the fact that a question based on gender is raised forces the state to demonstrate a compelling government interest to justify the distinction.

EXAMPLE: Nelson convinces an associate to sign what appears to be a valid contract which gives the associate the right to buy certain items from Nelson. When the contract turns out to harm Nelson more than the associate, Nelson tries to deny the validity of the instrument. A court will find that Nelson is estopped (ie prevented) from raising the claim since it was Nelson who initiated the offer.

EXAMPLE: Application to install wiretaps on telephones are always made ex parte, i.e., without notice to the person whose phone is sought to be electronically surveilled. Otherwise, the person will know his or her phone is wiretapped and avoid incriminating conversations. Because the application is ex parte, requireements not usually insisted on must be met to protect privacy, and the person who is recorded may challenge the sufficiency of the application at a later opportunity.

EXAMPLE: Loni obtains a court order requiring a company to give her all relevant information concerning a certain product that she claims injured her. At trial, a judge finds her evidence insufficient and dismisses her claim. Afterwards, Loni finds other documents in the company's possession that she never received but that would have proved her case. The extrinsic fraud committed upon her gives rise to both a suit against the company for the fraud and a right for Loni to have a new trial with the new documents.

EXAMPLE: The United States Supreme Court decides that the constitution does not protect a person’s privacy from a certain police tactic. Under the doctrine of federalism, though, a state court may nonetheless interpret its state constitution as prohibiting the same police conduct. The federal and state judicial systems are sufficiently separate so that a state court can afford greater protection to its citizens than the federal courts by a more liberal interpretation of its own constitution and laws. The state courts must observe any minimum federal rights, however, under the Supremacy Clause to the United States Constitution.

EXAMPLE: Elon sued his employer for wrongful termination. The court found that Elon did fall under the provisions of the state’s whistleblower statute because his firing was a direct result of his complaint regarding the company’s failure to provide safety harnesses to its employees.

EXAMPLE: A truck lightly hits the rear end of a car, but, because of the vehicle’s construction, the car bursts into flames and the driver is seriously injured. The driver, who is from another state, wants to have the case heard in his home state. The car company asks the court to invoke the forum non conveniens doctrine and have the case transferred to the state where the accident occurred. That request is granted because the witnesses to the accident, as well as the actual scene, are both in the other state, and it would be more inconvenient to have that information brought to the driver’s home state than to have the driver go to the state where the accident occurred.

EXAMPLE: Loni obtains a court order requiring a company to give her all relevant information concerning a certain product that she claims injured her. At trial, a judge finds her evidence insufficient and dismisses her claim. Afterwards, Loni finds other documents in the company's possession that she never received but that would have proved her case. The extrinsic fraud committed upon her gives rise to both a suit against the company for the fraud and a right for Loni to have a new trial with the new documents.

EXAMPLE: Motions submitted before a judge, which in essence ask the judge to do something, must be supported by a showing of good cause. On a motion to exclude or suppress evidence for trial, good cause must be shown by example of illegal police conduct in the seizing of the evidence. For the motion to be granted, the judge must be convinced the conduct occurred and is enough to justify exclusion.

EXAMPLE: Dion purchases securities for 60 percent of their face value from an associate. The associate had obtained the securities fraudulently, and the real owner then sued Dion for their return. Dion is protected from the owner's claims if he acted in good faith and is thus a bona fide purchaser. The owner states that Dion could not have acted in good faith since he purchased them at such a low cost in comparison with their face value. But that fact alone does not preclude Dion's good faith defense, since the low price can be justified by the associate's dire need for quick cash.

In property law, a good faith purchaser of land pays value for the land and has no knowledge or notice of any facts that would cause an ordinary, prudent person to make inquiry concerning the validity of the conveyance.

EXAMPLE: A complaint if filed against Bruno alleging that he seriously hurt someone in a barroom brawl and then fled the scene. The gravamen of the complaint is that Bruno seriously hurt someone.

EXAMPLE: The confession of two codefendants are improperly introduced at Vic’s trial. An appellate court may find that the violation was merely harmless error and does not require a new trial for Vic if the confessions had little or no effect upon the jury’s determination of Vic’s guilt.

FINAL HEARING: is sometimes used to describe that stage of proceedings relating to the determination of a suit upon its merits, as distinguished from those of preliminary questions.

see also fair hearing.

EXAMPLE: Defendant Doug is on trial for robbing Victim Vinnie, Witness Walt wants to testify that Bartender Bart told Walt that Doug had admitted to Bart the commission of the robbery. Walt's testimony would be hearsay if it were offered to prove the truth of the matter (Doug confessed) since Doug did not tell Walt. (Note, however, that if Bart himself were to testify it would not be hearsay since he heard the confession and may be cross-examined about the circumstances). If Walt's testimony were offered for a purpose other than the truth of the confession (such as to establish that Bart was an extremely close friend of Doug and that Doug confided in Bart his closest secrets), some courts would allow the testimony.

EXAMPLE: At Zack's trial for robbery, the prosecution wants to introduce evidence that Zack and his wife argue frequently. That evidence is considered immaterial nad is not allowed at the trial.

EXAMPLE: Ben asserts his privilege against self-incrimination when the grand jury asks probing questions about his activities. If the grand jury gives Ben immunity from criminal prosecution for anything to which he testifies before the grand jury, Ben can no longer use the privilege. The privilege is only available when Ben is subject to prosecution for what he says, a fear that the immunity eliminates.

EXAMPLE: Federal law prohibits discrimination based on race. May, a black woman, is refused a job because of her race. Even if she gets another job and although no physical injury resulted to her, she has been injured in the eyes of the law and can pursue a monetary remedy or an award of the job she was refused.

EXAMPLE: Fran wins a suppression motion to exclude certain evidence against her in an upcoming trial. Before the trial begins, the prosecutor seeks leave from the judge to file an interlocutory appeal from the suppression order, rather than wait until the trial is concluded before appealing the judge's ruling on Fran's motion. If the prosecutor's request is granted, Fran's trial will not proceed until an appellate court rules on the motions.

EXAMPLE: The Pope family sues Durable Paperboard Company for using chemicals that contain carcinogens in phone repair products. Two other companies use the same chemicals and fear that a decision adverse to Durable will result in many lawsuits against them based on the same claim. The companies therefore seek to intervene in the suit between the family and Durable.

EXAMPLE: Latonya's will declared that any part of her estate not specifically distributed to someone else be divided among her issue. Her children tried to claim the full amount of this residual property, but, as the childern were reminded by the court in a lawsuit against them, "issue" refers to all descendants, including children, grand-children and other more remote descendants.

EXAMPLE: Kristen claims that on the day of the accident the roads were very slick as a result of a torrential downpour. However, the victim of the accident brings in several weather maps and reports showing that for seven days prior to and including the day of the accident, there was not a single raindrop. A court can take judicial notice of the maps and reports.

EXAMPLE: A governor is required by law to extradite a person sought by another state when that state institutes proper legal proceedings. Still, the governor may decide not to extradite if, for example, he or she sees an obvious life-threatening situation should the person be returned to the state seeking him or her. In such instances, a court will usually deem the failure to extradite as a nonjusticiable controversy and will take no action to force the governor to extradite.

EXAMPLE: Believing that he had good title to property, Kareem constructs an office building and fully rents it out. George watches Kareem construct the building and waits an additional ten years before asserting an ownership interest in the property. A court might apply the doctrine of laches and bar George's claim for two reasons. George was aware of the construction and took no action until the building was completed, a point at which Kareem had invested a considerable amount of money. Also, George took an inordinate amount of time to raise his claim.

EXAMPLE: a judge schedules a pre-trial hearing to decide what evidence will be allowed at trial. Each party is given an opportunity to make arguments, and the judge decides not to allow a statement by one of the plaintiff’s witnesses. At trial, the plaintiff attempts to argue for the introduction of the statement. Because of the pre-trial decision, the judge applies the law of the case doctrine and refuses to allow the introduction of the statement

EXAMPLE: the domicile of the owner is presumed to be the situs of personal property for taxing purposes regardless of where it is actually located.

EXAMPLE: Safety Corporation and Fire Prevention, Inc., enter into a long-term contract whereby Fire Prevention supplies Safety with all the sprinkler systems Safety needs. Instead of leaving a damage figure to a court decision if either party should breach the agreement, the parties include a liquidated damages clause in the contract. That clause provides both a dollar figure and a formula for calculating damages with the higher of the two figures constituting the maximum damages either party could charge.

EXAMPLE: Franz hopes to get re-elected and accepts a bribe to fund his campaign from the Widgets Corporation in exchange for the promise of providing them future government contracts. Franz has committed malfeasance.

EXAMPLE: A state legislature passes a law that provides that, upon request, a person has the right to see any information the government has on file for that person. Kathy files such a request with the State's Attorney General and is refused access to her information. Unless the refusing party can show some compelling need for secrecy, a court will issue a writ of mandamus to the holder of the records, directing the release of the information.

see ministerial act

EXAMPLE: A contract between Natick, Inc., and a recording company called for 12 separate shipments of blank CDs. The first three shipments were defective and were returned to Natick. The recording company was falling behind in its production schedule when the fourth shipment arrived and that shipment was also defective. The fourt defective shipments constitute a material breach of the contract and permit the recording company to cancel the contract and perhaps to institute a lawsuit against Natick as well.

EXAMPLE: Sara and Henry wish to obtain a divorce. Hoping to avoid undue litigation and emotional trauma, they secure the help of a professional divorce mediator, who attempts a mediation of their affairs.

EXAMPLE: Tina files a lawsuit against Private University, claiming that the university has denied her admission because of her race. Before the case reaches the trial court Private admits Tina as a student. Because of the school’s actions, the case between Tina and Private is rendered moot. Tina can no longer claim that race was a factor in denying her admission, since she has been admitted.

EXAMPLE: Geneva possesses telephone recordings of a contractor offering a bribe to secure a construction grant. When Mack, another contractor, sues to have the grant overturned because of the possibility of a bribe, he requests that Geneva give him the recordings. If Geneva destroys or otherwise loses the recordings after they are requested, she will be charged with obstruction of justice.

EXAMPLE: A motorist sees an accident on the highway late at night but fails to call anyone, although he possessed a working cell phone. As a result of that omission, one of the victims of the accident dies. Although common standards may view the motorist as somewhat responsible for the death, the motorist cannot be found liable in a court of law since he has no legal duty to report the accident. If he had been involved in the accident, he would have had a legal duty to summon help and his omission in that instance would be the subject of civil and possibly criminal action.

EXAMPLE: The Constitution of the United States provides that the Supreme Court has original jurisdiction in all cases affecting ambassadors. Notwithstanding any issue of diplomatic immunity, if an ambassador from France were sued, the Supreme Court, rather than some lower court, would hear the case.

EXAMPLE: Sheila is charged with robbery. At her trial, Tomas, Sheila's boyfriend, admits to the crime, which results in a "not guilty" verdict for Sheila. Because of a procedural technicality, Tomas cannot be tried for the robbery. But if the prosecution can prove that Tomas lied about committing the crime, he could then be prosecuted for perjury.

EXAMPLE: The prosecutor introduces very prejudicial evidence at Roy’s trial. The judge fails to instruct the jury to limit their consideration of that evidence, despite the obvious need for such an instruction. Roy is convicted and the case is appealed. Even though Roy’s attorney did not object to the introduction at the time it occurred – a procedure that would normally be required before a new trial could be granted – the appellate court may apply the plain error rule and grant Roy a new trial.

EXAMPLE: Burton writes a check to a car repair establishment that the bank refuses to cash. The law in Burton's state establishes a presumption that he knowlingly intended to write a bad check if (1) there is no account in Burton's name at the bank named on the check or (2) the shop was refused payment for lack of funds within thirty days of the date on the check and Burton did not pay the amount owed within ten days of being informed of the bank's refusal to honor the check.

compare inference

EXAMPLE: Sylvain is caught with untaxed cigarettes. In the state where he is caught, untaxed cigarettes are designated prima facie contraband and are immediately subject to forfeiture to the state.

EXAMPLE: All citizens of a county are required to be available for jury duty. Doctors are privileged to avoid this requirement, because of their constant need to attend to their patients.

EXAMPLE: Joaquin discusses with his attorney a past wrong he is alleged to have committed. If the attorney is asked to discuss this without Joaquin’s permission, she will not be permitted to do so since the communication was privileged.

COLLATERAL PROCEEDING: any proceeding not instituted for the express purpose of annulling, correcting, or modifying a judgment. Instead, a collateral proceeding will attempt to change or affect the result of the judgment while alloweing the judgment to remain intact.

see collateral estoppel

EXAMPLE: Tamara files a lawsuit against a company, but the company never responds. before entering a default judgment against the company, the judge demands proof that the company was served with notice of the suit. Without such proof, the judge cannot be sure that the company knows there is a suit against it.

EXAMPLE: Two parties stipulate [agree] on the facts of the situation in which they ar einvolved. The judge is then asked to only rule on the question of law that those facts present.

EXAMPLE: A court rule provides that a judge must inform a person convicted of a crime of his or her right to an attorney to pursue an appeal if he or she so desires. Since all comments by the judge are transcribed, a record is produced that will eliminate any question whether the person was informed of his or her rights.

EXAMPLE: Zhang Wei has been before a judge several times on criminal charges and has been acquitted each time. After each trial, the judge makes certain disparaging comments indicating to the press that he believes Zhang Wei is guilty. When Zhang Wei comes before the judge again, Zhang Wei seeks a recusal based on the earlier comments. Zhang Wei contends that the comments indicate prejudice on the judge's part and will prevent his getting a fair trial.

EXAMPLE: Carlos ordered 200 items at a set price from a company that happens to be the only manufacturer of the item. Although his order has been produced, the company refuses to deliver unless Carlos pays a price increase. Carlos seeks relief from a court, which in this instance should be to order delivery since the item cannot be purchased elsewhere.

EXAMPLE: Arthi leaves a shipment of goods in a warehouse and prepays storage costs for three months. At the end of that time, she goes to pick up the goods, but the warehouse refuses to release them until she pays for the storage. Arthi sues for replevin to obtain the goods.

EXAMPLE: A store owner sues Annika for failure to pay a debt. Annika files a counterclaim against the store owner claiming that the washer and dryer Annika purchased, which gave rise to the debt, have never worked properly. The store owner can reply to the counterclaim that he is not responsible for the problem or that Annika has not operated the machines correctly.

EXAMPLE: John Doe sues Company XYZ for employment discrimination. In order to win his lawsuit, Mr. Doe needs to collect [relevant] information - from a variety of sources. One such source is Company XYZ (itself); who has Mr. Doe’s personnel records. Thus, Mr. Doe sends Company XYZ an RFP; thereby asking the employer to provide his personnel records (among other things).

EXAMPLE: Two parties litigate an issue in one federal disctrict court, and the defendant loses. Under the principle of res judicata, the defendant could not then go to another federal district court and litigate the same issue a second time.

Compare collateral [COLLATERAL ESTOPPEL].

EXAMPLE: A truck driver employed by a manufacturing company causes an accident while delivering a shipment to a buyer. The doctrine of respondeat superior allows the victims to sue the company for any injuries caused by the driver. Under normal principles of tort responsibility, the driver can also be sued. Since it is unlikely that he has the money to pay a damage award, the doctrine acts to assure that the victims will be paid the full amount of the award because the company by law will be required to carry adequate insurance or have sufficient assets for such contingencies. Absent this doctrine, companies would be able to hire judgment-proof drivers and in that fashion avoid all liability for injuries caused by such drivers.

EXAMPLE: A corporation files a registration statement, containing false representations, with the Securities and Exchange Commission so that the corporation may sell stock to the public. Applicable law holds a party liable if with scienter he or she signs a statement that contains false representations. The requirement of scienter means that the party must know of the false representations and know thtat the statemnt will be used to deceive others into purchasing stock.

EXAMPLE: The prosecutor believed that defense witnesses might alter their versions of the facts if they were permitted to hear the State’s witnesses testify. To avoid that problem, he asked for the sequestration of all witnesses. The judge agreed and excluded all potential witnesses from the courtroom until they were called to testify.

EXAMPLE: A company is accused of discriminatory hiring practices by the Equal Employment Opportunity Commission (EEOC). The Commission will usually file with the company a notice of its accusations and will attempt to reach a settlement before looking to the courts. That method generally gives each party more flexibility. In certain instances, a judge may have to approve the settlement.

compare plea bargaining

EXAMPLE: A group of prisoners petitions a court to allow them greater visitation rights than their present one-visit-a-month allotment. The judge is inclined to agree with them and orders prison officials to show cause why greater visitation privileges should not be granted immediately. The officials must then provide at least some rationale for the limit, or the court will order a change, pending a trial on the petition.

EXAMPLE: A state wants to build a highway that requires the use of private property. Negotiations with the property owners fail to persuade them to sell to the state. The state can then use its sovereign power of eminent domain over all property within the state to take private property and put it to public use upon payment of just compensation.

EXAMPLE: Payne, a resident of one state, files a suit claiming that another state prevents its own citizens from voting. Since Payne is not affected by the fact that citizens of another state may not be getting the opportunity to vote, he has no standing to bring this challenge. There are procedures whereby a court has the discretionary power to allow Payne to participate in a suit if someone files it who does have standing. Payne might also have standing in the suit first referred to if the challenged state action adversely impacts on a national election that affects Payne.

EXAMPLE: A state supreme court rules that a person's privacy interests demand court protection of telephone toll records from police investigations. Several years later, the issue is brought back to the court. The prosecutor claims that other states allow the records to be used without interference in privacy and that other privacy protections can be employed if necessary. Even if some new members of the court agree with the prosecutor, the court most likely will apply stare decisis and abide by the previous decision.

EXAMPLE: An apartment dweller is found in default under his lease. He seeks a stay of execution of the eviction order until he can make new living arrangments. A stay may be granted, but not for an excessively long time.

EXAMPLE: Adrienne harbors wild animals on her estate. A child accidentally enters the estate and is harmed by one of these animals. Adrienne will usually be held strictly liable for the injury regardless of the fact that the child did not belong there or that the child scared the animal. Society imposes that cost on Adrienne merely for keeping the animals.

EXAMPLE: A party files a lawsuit and the opponent replies, so that both parties are prepared to litigate the issue. If the judge realizes for some reason that he has no jurisdiction over the case, he will on his own initiative dismiss the case. His action is taken sua sponte.

EXAMPLE: Several years ago. Wynn was a marketing consultant to a large firm. The firm is being sued by a company that claims the firm gave it false information. Wynn is not personally being sued, but is issued a subpoena duces tecum to testify at the trial and bring with him any papers relevant to the firm's relationship with the company.

EXAMPLE: A long-term contract includes a very technical formula for determining the cost of wheat. The formula allows for fluctuations in the market place, weather, demand and other factors. Although the price can therefore vary each time a price is paid, the fact that there is a formula means that the contract includes a sum certain.

EXAMPLE: Dale erects a structure on his property that almost completely blocks the sun from the pool area that his neighbor just built, and the neighbor sues Dale to remove the structure. Dale and the neighbor agree on that set of facts. The only question is whether Dale may do as he wants, which in his instance is a question of law. Both parties, therefore, seek a summary judgment supporting their respective positions.

see directed verdict

EXAMPLE: Nico sues a landscaper for installing a defective sprinkler systems. His attorney prepares a summons notifying the landscaper of the court action. The clerk of the court stamps the summons, and it is then isued.

See process; service. Compare subpoena.

EXAMPLE: The United States Supreme Court rules that no person can be arrested in his or her home without an arrest warrant issued by a judge. Regardless of the procedures the various states used before the supreme Court decision, the Supremacy Clause mandates that the Supreme Court's decision govern future police practice.'

EXAMPLE: State law provides that a person has 45 days to file an appeal from a conviction and that a judge must inform the person of that limit. At the end of Randolph's trial, the judge fails to inform him of the limit. When he is informed five months later, it is technically too late to file. A court may toll the 45-day limit until Randolph is informed of its existence, which in this case would be five months after the conviction. If an appeal is then not filed within 45 days, the opportunity will not be granted again.'

EXAMPLE: Chandler places a large object on a railroad track to see what happens when it is hit by an oncoming train. The train derails in a set of circumstances that would not have occurred if there had been no object on the track. Chandler has committed an intentional tort agains the railroad and its passengers. He committed a crime as well.

EXAMPLE: Neerja files a lawsuit against a package delivery service for damaging a package they delivered to her. At the trial, she offers proof to show that she never received the package. The difference between her original claim and the claim that she offers to prove constitutes a fatal variance, and Neerja’s case will probably be dismissed.

EXAMPLE: Mekhi drives a truck for Speedy Delivery Service. While pulling out of a driveway, he hits a pedestrian. Speedy will be vicariously liable for the pedestrian's injuries under the doctrine of respondeat superior.

EXAMPLE: Taye agrees to drive the getaway car in a robbery. Donna, who enters the bank, kills a teller during the robbery. In most states, Taye is vicariously liable for the killing.

EXAMPLE: Spencer enteres into a plea bargain with the prosecutor in the hope that he will receive a lighter sentence. Since the plea representes an admission of guilt and a waiver of the right to a jury trial, the judge must be sure that Spencer realizes the consequences of his actions. Therefore, the judge will inform Spencer that he has a right to have a trial and that there is no guarantee that a plea will necessarily result in any different sentence than from a trial. Without these precautions, the judge cannot be sure that Spencer's waiver is knowing and intelligent.

IMPLIED WAIVER: the waiver of substantial rights based upon the conduct of the waiving party. For an implied waiver to occcur, the party alleging the waiver must have acted in deterimental reliance on the conduct constituting the waiver, and the conduct relied upon must demonstrate a clear, decisive, and unequivocal prupose to waive the legal rights involved.

compare estoppel.