TBD | Glossary | "Civil Rights Glossary"

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ABATEMENT

generally, a lessening or reduction; also, either a termination or a temporary suspension of a lawsuit. An ABATEMENT OF LEGACY means that the legacy to a beneficiary is either reduced or completely eliminated because of debts that must first be paid out of the decedent's estate. An ABATEMENT OF TAXES is a tax rebate or decrease.

See nuisance [ABATEMENT OF A NUISANCE].

ABEYANCE

an undetermined or incomplete state of affairs; in property law, the condition of a freehold or estate in fee when there is no existing person in whom the estate vests.

AB INITIO

Lat.: from the beginning.

Commonly used in referring to the time when an action (or instrument; or interest in property) becomes legally valid.

ABJURE

retract, recant, or repudiate

ABRIDGE

to shorten, condense; diminish

ABROGATE

to annul, repeal, put an end to; to make a law void by legislative repeal

ABUSE OF DISCRETION

on appeal, the characterization by a reviewing court of a lower court or administrative agency decision or ruling as arbitrary and unreasonable, leading the reviewing court to overturn the decision. See discretion

ABUSE OF PROCESS

improper use of a legal process; for example, serving a summons to frighten the recipient or to prompt a response from him or her, where no suit has been filed, or filing a lawsuit for an improper purpose.

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.

ACTION

a judicial proceeding whereby one party prosecutes another for a wrong done, or from protection of a right or prevention of a wrong; at common law, to be distinguished from an action in equity which could not be brought before the law courts but only before a court of equity.

See collusive action; derivative action; penal action.

ADMINISTRATIVE AGENCY

a government body responsible for control and supervision of a particular activity or area of public interest. For example, the Federal Communications Commission (FCC), in addition to its other duties, administers the laws regulating access to communication facilities such as television and radio airwaves. Administrative agencies are also called REGULATORY AGENCIES.

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.

ADMINISTRATIVE LAW JUDGE

the presiding officer at an administrative hearing, whose power is essentially one of recommendation. In the federal system, he or she can administer oaths, issue subpoenas, rule on evidence, take depositions and make or recommend decisions, which can be appealed first to the federal agency for which he or she hears cases and then to a court of law.

AD HOC

Lat.: for this, for this particular purpose. An ad hoc committee is one commissioned for a special purpose; an ad hoc attorney is one designated for a particular client in a special situation.

ADJUDICATION

the determination of a controversy and pronouncement of judgment.

ADMISSIBLE EVIDENCE

evidence that may be introduced in court to aid the trier of fact - ie, the judge or jury - in deciding the merits of a case. Each jurisdiction has established rules of evidence to determine what evidence is admissible. A judge may exclude otherwise admissible evidence when he or she determines that its probative value is outweighed by such factors as undue consumption of time, prejudice, confusion of issues or a danger that the jury will be misled. A lurid, gory photograph, for example, depicting the scene of the crime, the weapon used or the injury to the victim may have very high probative value as to several issues in a criminal trial, but since it may cause undue prejudice in the minds of the jurors, it will be excluded if there is any other way to prove the necessary facts.

ADVERSE INFERENCE

unfavorable deduction that may be drawn by the fact-finder from the failure of a party to produce a normally expected witness or other evidence. It may be presumed that the failure to produce was because the testimony or other evidence would have been harmul to that party.

ADVOCATE

a legal advocate is an attorney. An INMATE ADVOCATE is a person who advances issues common to prisoners such as being provided with proper health care, educational programs or job training skills. It may also be a person who is not admitted to practice law but provides general legal assistance to a prisoner in such circumstances as an internal prison disciplinary hearing. In such a role they may be known as "COUNSEL SUBSTITUTE"

AFFIANT

a person who makes and signs a written statement under oath (affidavit).

AFFIDAVIT

a written statement made under oath before an officer of the court, a notary public or other person legally authorized to certify the statement.

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.'

AFFIRMATION

a person's indication that one affirms the truth of one's statement. An affirmation serves the same purpose as an oath, in which a person swears to God the truth of the statement made. When persons object to making an oath on religious or ethical grounds, an affirmation is commonly accepted in place of an oath. A person who makes an affirmation is subject to the same penalties for perjury as a person who makes an oath.

A FORTIORI

Lat.: with stronger reason. An inference that because a certain conclusion or fact is true, then the same reasoning makes it even more certain that a second conclusion is true.

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.

AGENT

One who is authorized by another person to act in that person's behalf. The acts of an agent are binding on his principal.

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.

ALLEGATION

in a pleading, an assertion of fact; a statement of the issue that the contributing party expects to prove.

see averment

ALTERNATIVE DISPUTE RESOLUTION

alternatives to the slow and costly process of litigation. Includes arbitration, conciliation, mediation, and summary proceedings. Some of these processes, such as mediation and arbitration, are being used by court systems to attempt to resolve disputes before trial.

AMEND

to alter. One amends a statute by changing (but not abolishing) an established law. One amends a pleading by adding to or substracting from an already existing pleading.

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.

AMICUS CURIAE

Lat.: friend of the court

A qualified person who is not a party to the action but gives information to the court on a question of law. The function of an amicus curiae is to call attention to some information that might escape the court’s attention.

An AMICUS CURAIE BRIEF (or AMICUS BRIEF) is one submitted by someone not a party to the lawsuit, to give the court information needed to make a proper decision, or to urge a particular result on behalf of the public interest or of a private interest of third parties who will be indirectly affected by the resolution of the dispute. Thus, a court might permit a group of retarded citizens to participate in a proceeding brought by a prisoner rights group to challenge a statute authorizing the expenditure of funds for the construction of prisons and mental health facilities, since invalidation of the statute would adversely affect the interests of retarded citizens.

ANCILLARY JURISDICTION

the jurisdiction under which a federal court is permitted to decide an entire controversy (including matters which it would not have authority to consider were they raised independently) if the controversy contains other issues that the law specifically authorizes federal courts to decide. Thus, when the court has jurisdiction of the principal action, it may also hear any ancillary proceeding, regardless of any other factor that would normally determine jurisdiction.

Compare pendent jurisdiction.

ANSWER

the defendant’s principal pleading in response to the plaintiff’s complaint. It must contain a denial of all the allegations the defendant wishes to dispute, as well as any affirmative defenses by the defendant and any counterclaim against the plaintiff.

APPARENT AUTHORITY

a reference to the doctrine that a principal is responsible for the acts of his or her agent where the principal by words or conduct suggests to a third person that the agent may act in the principal's behalf, and where the third person believes in the authority of the agent.

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.

APPEAL

a request to a higher court to review and reverse the decision of a lower court. On appeal, no new evidence is introduced; the higher court is limited to considering whether the lower court erred on a question of law or gave a decision plainly contrary to the evidence presented during trial. Unless special permission is granted by the higher court to hear an interlocutory appeal, an appeal cannot be made until the lower court renders a final judgment.

NOTICE OF APPEAL: document filed with the appellate court giving notice of an intention to appeal. It must be served on the opposing party and must comply with specified deadlines for filing.

TRIAL DE NOVO: historically, the appeal as it existed in equity allowed a trial de novo on law and facts, while processing at law allowed only a review on the record produced in the lower court for errors of law. Today this distinction largely has merged into one system. Equitable proceedings still, however, require a trial de novo more often than legal proceedings, unless it has been specifically proscribed by statute. For example, appeals from probate court decrees often are by trial de novo.

APPEARANCE

the required coming into court of a plaintiff or defendant in an action either by himself or herself (PRO SE) or through an attorney. An apperance involves a voluntay submission to the jurisdiction of the court.

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.'

COMPULSORY APPEARANCE: an apperance compelled by service of process.

GENERAL APPEARANCE: a party's apperance at a proceeding for any reason other than for questioning the court's jurisdiction.

SPECIAL APPEARANCE: an apperance for the sole purpose of questioning the jurisdiction of the court over the defendant and the authority of the court to compel his apperance for any other purpose.

EXAMPLE:

A seller agrees to provide a buyer with certain goods. one clause in the contract states that, if the goods are defective, the buyer can only sue in the seller's home state. The goods turn out to be defective, but the buyer files suit in a court in the buyer's hoe state. The seller makes a special apperance in the court only for the purpose of challenging that court's jurisdiction based on the clause in the contract. by such an apperance, the seller does not acknowledge the court's right to entertain the buyer's suit against him.

VOLUNTARY APPEARANCE: an appearance by one who has not been required to appear by service of process.

APPELLANT

the party to a lawsuit who appeals the decision to a higher court. See plaintiff [PLAINTIFF IN ERROR].

Compare appellee.

APPELLATE [APPEALS] COURT

a court having authority to review the law applied by a lower court in the same case. In most instances, the trial court first decides a lawsuit, with review of its decision then available in an appellate court.

APPELLEE

the party prevailing in the lower court who argues, on appeal, against setting aside the lower court's judgment. In some state courts this party is referred to as the respondent. See defendant [DEFENDANT IN ERROR].

Compare appellant.

ARBITER

Lat.: referee. A person (other than a judicial officer) appointed by the court to decide a controversy according to the law. Unlike an arbitrator, the arbiter needs the court's confirmation of his decision for it to be final.

ARBITRATION

submitting a controversy to an impartial person, the arbitrator, chosen by the two parties in the dispute to determine an equitable settlement. Where the parties agree to be bound by the determination of the arbitrator, the process is called BINDING ARBITRATION.

In labor law, arbitration has become an important means of settling disputes, and the majority of labor contracts provide for arbitration of disputes over the meaning of contract clauses.

COMPULSORY ARBITRATION: in which the parties are forced to agree, is generally not provided for in federal law. The states, however, have increasingly provided for compulsory arbitration in areas beyond the control of federal law, such as police and firefighters' contracts.

NONBINDING ARBITRATION: process where the parties are free to follow the arbitrator's findings or disregard them and proceed to court. The arbitrator's decision is not final.

ARBITRATOR

an impartial person chosen by the parties to solve a dispute between them, who is empowered to make a final determination concerning the issue(s) in controversy, who is bound only by his or her own discretion, and from whose decision there is no appeal. The decision of the arbitrator (the counterpart of the court's order or judgment) is called the AWARD. A court order enforcing an arbitrator's award is called CONFIRMATION.

Compare arbiter; conciliator; mediator.

ARGUMENT

a course of reasoning intended to establish a position and to induce belief

ATTORNEY-CLIENT PRIVILEGE

privilege that confidential communications between an attorney and a client in the course of the professional relationship cannot be disclosed without the consent of the client. It is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. Such communications may take the form of oral or written statements or may be actions and gestures. Communications made to an attorney while seeking to obtain representation, even though the attorney did not ultimately represent the client, are nonetheless privileged. The privilege protects discussions of past crimes but does not extend to the client’s proposed commission of future crimes. If third parties (generally including relatives and friends but excluding law clerks, stenographers, or interpreters) are present, the privilege may be destroyed. The privilege extends indefinitely, and does not terminate when the attorney/client relationship ends or when either party dies. Communications between a corporate general counsel and corporate employees have been found to be protected. Finally, the privilege to prohibit disclosure belongs to the client, and as such may be waived by the client.

ACCOUNTANT-CLIENT PRIVILEGE Available in about one-third of the states rendering confidential all communications to an accountant. Such communications are not otherwise privileged. If the accountant is also an attorney, the attorney-client privilege may not apply if the accountant-attorney was acting in the capacity of an accountant. If, however, a client communicates to an accountant designated by the client’s attorney in confidence for the purpose of obtaining legal advice from the lawyer, it is then privileged. See privileged communications.

ATTORNEY GENERAL

the chief law enforcement officer of the federal government or of a state government

AUTHORITY

the permission or power delegated to another. This may be express or implied. See de facto [DE FACTO AUTHORITY]. If express, it is usually embraced in a document called a power of attorney. IMPLIED AUTHORITY stems from a relationship such as that of principal and agent. if the agent does not have EXPRESS AUTHORITY by some writing, he or she nonetheless will have apparent authority. If the authority is given to the agent for a consideration, it is said to be an AUTHORITY COUPLED WITH AN INTEREST. Where not to infer an authority would result in an injustice, the law will imply an authority so as not to mislead another. In this circumstance the law speaks of an AUTHORITY BY ESTOPPEL. Where the principal intended the agent to have the right to act on the principal's behalf, the authority is called an ACTUAL AUTHORITY.

The term may also refer to the jurisdiction of a court such as "within the court's authority." It is also used to denote judicial or legislative precedent.

AWARD

The decision of the arbitrator (the counterpart of a court's order or judgment) is called the AWARD.

B

BAD FAITH

breach of faith; willful failure to respond to plain, well-understood statutory or contractual obligations; dishonesty in fact in the conduct or transaction concerned.

BAILIFF

1. a court attendant;

2. a person to whom some care, guardianship or jurisdiction is entrusted:

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.

BAR

1. in procedure, a barrier to the relitigating of an issue. A bar operates to deny a party the right or privilege of rechallenging issues in subsequent litigation. The prevailing party in a lawsuit can use his or her favorable decision to bar retrial of the action.

See collateral [COLLATERAL ESTOPPEL]; res judicata.

2. a particular position in the courtroom; hence, the defendant standing before the judge is sometimes called the prisoner AT BAR. The complete body of attorneys is called the bar because they are the persons privileged to enter beyond the bar that separates the general courtroom audience form the judge's bench. The CASE AT BAR refers to the particular action before the court.

BENCH

1. the court; the judges composing the court collectively;

2. the place where the trial judge sits

compare Bar

BEQUEST

a gift of personal property by will. A devise ordinarily passes real estate, and a bequest passes personal property.

see legacy CONDITIONAL BEQUEST: a bequest that depends upon the occurrence or nonoccurrence of a particular event.

EXECUTORY BEQUEST: a bequest of personalty or money that does not take effect until the happening of some future event, upon which it is contingent

RESIDUARY BEQUEST: a bequest consisting of the remainder of an estate after the payment of debts and of general legacies and other specific gifts

SPECIFIC BEQUEST: a bequest of particular items, or of a part of a testator's estate that can be distinguished from all others of the same kind, which may be satisfied only by delivery of the particular thing (given by the will) and not merely by a corresponding amount in value or similar property.

BINDING

obligatory

BINDING AGREEMENT: a conclusive agreement

BINDING ARBITRATION: see [BINDING ARBITRATION].

BINDING INSTRUCTION: an instruction that directs the jury how to determine an issue in the case if certain conditions stated in that instruction are shown to exist.

BONA FIDE OCCUPATIONAL QUALIFICATION

[BFOQ] Statutory provision that permits discriminatory practices in employment if a person’s religion, sex, or national origin is a bona fide qualification reasonably necessary to the normal operation of that particular business or enterprise. It is also permissible for an educational institution with a particular religious orientation to hire only employees of that religion. Courts have placed the burden of proof of establishing a BFOQ on the defendant and the exception provided by the BFOQ has been narrowly interpreted. In this manner it is more difficult to justify a BFOQ than to defend against a constitutionally based claim of sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The BFOQ exception would only be permitted if, in the example of a woman working at a job requiring the frequent lifting of substantial amounts of weights, the defendant proved by a preponderance of the evidence that all or substantially all females would be unable to perform safely and efficiently the duties involved in the job. Sex has been found to be a BOQ in terms of community standards of morality where, for example, a man works as an attendant in a men’s washroom and a woman works as a fitter in a lingerie establishment.

BRIBERY

the voluntary giving of something of value to influence the performance of an official duty.

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.

COMMERCIAL BRIBERY includes the breach of duty by an employee in accepting secret compensation from another in exchange for the exercise of some discretion conferred upon the employee by his employer, as in the approval of a contract.

BRIEF

a written argument concentrating upon legal points and authorities (ie, precedents) used by the lawyer to convey to the court (trial or appellate) the essential facts of his or her client's case, a statement of the questions of law involved, the law that should be applied and the application that he or she desires made of that law by the court. The brief is submitted in connection with an application, motion, trial or appeal.

compare memorandum [MEMORANDUM OF LAW].

BURDEN OF PROOF

1. the duty of a party to substantiate an allegation or issue, either to avoid dismissal of that issue early in the trial or to convince the court of the truth of that claim and hence to prevail in a civil or criminal suit.

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.

2. the duty of a plaintiff, at the beginning of a trial, to make a prima facie showing of each fact necessary to establish the existence of a cause of action; referred to as the DUTY OF PRODUCING EVIDENCE (also BURDEN OF EVIDENCE or PRODUCTION BURDEN).

3. the obligation to plead each element of a cause of action or AFFIRMATIVE DEFENSE (see defense) or suffer a dismissal; referred to as the PLEADING BURDEN.

C

CALUMNY

slander, defamation; false prosecution or accusation.

CASE

an action, cause, suit, or controversy, at law or in equity.

ACTION IN CASE see trespass [TRESPASS ON THE CASE].

CAUSE OF ACTION

a claim in law and fact sufficient to form the basis of a valid lawsuit, as a BREACH OF CONTRACT. A RIGHT OF ACTION is the legal right to sue; a cause of action is the composite of facts that gives rise to a right of action.

CERTIORARI

Lat.: to be informed of. A means of gaining appellate review; a common law writ, issued by a superior court to a lower court, commanding the latter to certify and return to the former a particular case record so that the higher court may inspect the proceedings for irregularities or errors.

CF

Abbreviation for the Latin word confer meaning “compare.”

CHALLENGE

In general, to call one out to answer for something; an objection or exception calling into question the existence of a right, the validity or sufficiency of an instrument, or the capability of a person for a specific function. Also, an objection by a party (or lawyer) to the inclusion of a particular prospective juror as a member of the jury that is to hear that party’s cause or trial, with the result that the prospective juror is disqualified from the case.

See voir dire.

CHALLENGE FOR CAUSE a challenge based upon a particular reason (such as bias) specified by law or procedure as a reason that a party (or his lawyer) may use to disqualify a prospective juror.

CHALLEGE TO JURY ARRAY a formal objection to the entire panel of grand or petit jurors. The basis of such a challenge is that something has been done or omitted to the prejudice of the substantial rights of the challenging party.

GENERAL CHALLENGE a type of challenge for cause based on grounds from which, if shown to exist, the disqualification of the juror follows as a legal conclusion. Known as a CHALLENGE FOR PRINCIPAL CAUSE at common law.

PEREMPTORY CHALLENGE a right given to attorneys at trial to dismiss a prospective juror for no particular reason; the number of times an attorney can invoke this right is usually limited. If a specific reason exists why a particular juror may not fairly decide a matter, the juror may be CHALLENGED FOR CAUSE. This conserves the peremptory challenges. Even the government can use these challenges.

CHANCERY

the jurisprudence that is exercised in a court of equity; synonymous with equity or equitable jurisdiction.

CIRCUIT COURT

one of several courts in a given jurisdiction; a part of a system of federal courts extending over one or more counties or districts; formerly applied to the U.S. courts of appeals.

Compare district court.

CIRCUMSTANTIAL EVIDENCE

indirect evidence; secondary facts by which a principal fact may be reasonably inferred.

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

CITATION

1. A reference to a legal authority – for example, a citation to a statute or case;

2. A writ similar to a summons, in that it commands the appearance of a party in a proceeding. The object of a citation is to give the court proper jurisdiction and to notify the defendant that a suit has been filed.

CLAIM

1. the assertion of a right to money or property;

2. in pleading, the facts giving rise to a right enforceable in the courts, which must show the existence of a right, an injury and damages. One who makes a claim is a claimant.

CLASS ACTION

a suit brought by one or more members of a large group of persons on behalf of all members of the group. If the court permits the class action, all members must receive notice of the action and must be given an opportunity to exclude themselves. Members who do not exclude themselves are bound by the judgment, whether favorable or not.

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.

CLEAR & CONVINCING

as a standard of proof, the amount of evidence that is beyond mere preponderance but is not “beyond reasonable doubt”, which will convince the trier of fact (fact finder) as to the facts sought to be established.

CLERK

an assistant or a subordinate.

COURT CLERK: an officer whose duties include keeping records, issuing process and entering judgment.

LAW CLERK: an assistant to a lawyer or a judge, whose primary job is to aid in the research and writing of briefs or opinions and the handling of cases.

COERCION

any form of compulsion or constraint that compels or induces a person to act otherwise than freely. it may be physical force but is more often used to describe any pressure that is brought to bear on another's free will. In testamentary law, if undue influence is exerted upon the testator, the coercion will vitiate the effect of the instrument. In criminal law, improper conduct that coerces the defendant into making any incriminatory statement will void the confession.

See criminal coercion; duress.

COGENT

appealing forcibly to the mind or reason; compelling; convincing. The word is frequently used to describe the quality of a particular legal argument. It is derived from the Latin cogo, cogere, which means "to bind, drive, or compress into a mass."

COGNIZABLE

within the jurisdiction of the court. An interest is cognizable in a court of law when that court has the power to decide the controversy.

COLLATERAL ATTACK

a challenge to the integrity of a prior judgment, brought in a special proceeding intended for that express purpose. A direct attack, on the other hand, is an attempt to impeach a judgment within the same action in which the judgment was rendered, through an appeal, request for new trial, etc. Lack of proper jurisdiction and constitutional infirmities in the original judgment are often grounds for collateral attack. Habeas corpus is a “collateral attack” remedy.

COLLATERAL ESTOPPEL

the doctrine recognizing that the determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings against each other; also known as issue preclusion. In a subsequent action between the parties on a different claim, the judgment is conclusive as to the issues raised in the subsequent action, if these issues were actually litigated and determined in the prior action. The constitutional prohibition against double jeopardy includes within it the right of the defendant (but not the state) to plead "collateral estoppel" and thereby preclude proof of some essential element of the state's case found in the defendant's favor at an earlier trial.

See estoppel. See also bar; merger; res judicata.

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.

COLOR OF LAW

the semblance of legal right. An action under color of law has the apparent authority of law but is actually contrary to law.

COMITY

a rule of courtesy by which one court defers to the concomitant jurisdiction of another; most often used in reference to the long-standing public policy against federal court interference with state criminal proceedings.

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.

COMMERCE CLAUSE

Art. I, Sec. 8. Cl. 3 of the Constitution providing “... Congress shall have Power... to regulate Commerce with foreign Nations, and among the several States, and the Indian Tribes....” Federal regulations regarding business such as the Occupational Safety and Health Act have their roots in the commerce clause. See interstate commerce.

COMMON LAW

the system of jurisprudence, which originated in England and was later applied in the United States, that is based on judicial precedent (court decisions or case law) rather than legislative enactment (statutes) and is therefore derived from principles rather than rules.

In the absence of statutory law regarding a particular subject, the judge-made rules of common law are the law on that subject. Thus the traditional phrase "at common law" refers to the state of the law in a particular field prior to the enactment of legislation in that field.

COMPETENT SUBSTANTIAL EVIDENCE

We have used the term "competent substantial evidence" advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Becker v. Merrill, 155 Fla. 379, 20 So. 2d 912; Laney v. Board of Public Instruction, 153 Fla. 728, 15 So. 2d 748. In employing the adjective "competent" to modify the word "substantial," we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. Jenkins v. Curry, 154 Fla. 617, 18 So. 2d 521. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the "substantial" evidence should also be "competent." Schwartz, American Administrative Law, p. 88; The Substantial Evidence Rule by Malcolm Parsons, Fla. Law Review, Vol. IV, No. 4, p. 481; United States Casualty Company v. Maryland Casualty Company, Fla. 1951, 55 So. 2d 741; Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126.

COMPLAINANT

the party who initiates the complaint in an action or proceeding; practically synonymous with petitioner and plaintiff. The appropriate term to use is determined by the nature of the proceeding and the court in which it is instituted.

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.

Compare accused; defendant; respondent

COMPLAINT

1. In a civil action, the first pleading of the plaintiff setting out the facts on which the claim is based; the purpose is to give notice to the adversary of the nature and basis of the claim asserted;

2. In criminal law, the preliminary charge or accusation made by one person against another to the appropriate court or officer, usually a magistrate. However, court proceedings, such as a trial, cannot be instituted until an indictment or information has been handed down against the defendant.

CONCEALMENT

an act making more difficult the discovery of that which one is legally obligated to reveal or not to withhold, such as the failure of a bankrupt to a schedule all his or her assets, or the failure of an applicant for an insurance policy to disclose information relevant to the insurer’s decision to insure the risk.

ACTIVE CONCEALMENT concealing by words or deeds that which one has a duty to reveal.

PASSIVE CONCEALMENT maintaining silence when a duty to speak exists

CONCILIATION

amicable agreement between parties that resolves a dispute. usually arrived at with the assistance of a conciliator (similar to a mediator) but it is the parties themselves who resolve the dispute. Compare arbitration where an arbitrator renders a decision that binds the parties.

CONDITION

1. A prerequisite or requirement;

2. A possible future event, which will trigger the duty to perform a legal obligation or will cause a real property interest to arise, vest or be extinguished.

CONCURRENT CONDITION a condition precedent that exists only when parties to a contract are obligated to perform at the same time

CONDITION PRECEDENT an act or event that must occur before a duty of immediate performance of a promise arises, or before a real property interest will arise or vest.

CONDITION SUBSEQUENT a fact that will extinguish a duty to make compensation for BREACH OF CONTRACT after the breach has occurred, or whose occurrence will result in the extinguishment of an interest in real property

CONFRONTATION CLAUSE

under the Sixth Amendment of the Constitution, the accused in a criminal prosecution is entitled "to be confronted with the witnesses against him." This right entitles the accused to be present at the trial, and to hear and cross-examine all witnesses against him or her. Evidence that is not subject to confrontation, such as the confession of a codefendant who is not subject to cross-examination, may not be used against the accused.

CONSENT

voluntary agreement; an act of reason, not based on fraud, duress or mistake. Consent is implied in every agreement.

CONSENT JUDGMENT

recorded agreement of parties to a lawsuit concerning the form the judgment should take. Such a contract cannot be nullified without consent of the parties, except for fraud or mistake. Consent judgments have the same force as any other judgment. Because the agreement of the parties waives exception to irregularities before agreement, appeal from a consent judgment is limited to attack for mistake, fraud or lack of jurisdiction.

CONSENT DECREE the counterpart of a consent judgment issued in a court of equity; only as binding as any other equitable remedy. For instance, in antitrust cases, the court can modify a consent decree according to changed circumstances.

CONSENT ORDER any court order to which the opposing party agrees; in antitrust law, an agreement between the Federal Trade Commission and a party being investigated; the party consents to cease activities that could be subject of antitrust action and the FTC refrains from initiating suit.

CONSOLIDATED APPEAL

If two or more persons are entitled to appeal from a judgment or order of a district court, and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties of the several appeals.

CONSTITUTION

the fundamental principles of law by which a government is created and a country is administered. In Western democratic theory, a mandate from the people in their sovereign capacity, concerning how they shall be governed. Distinguished from a statute, which is a rule decided by legislative representatives and is subject to limitations of the constitution.

CONSTRUCTION

an interpretation of something not totally clear. To determine construction of a statute or constitution is to decide the meaning of an ambiguous part of it.

LIBERAL [EQUITABLE] CONSTRUCTION a liberal construction expands the meaning of a statute or provision to give broad effect to its purposes so as to encompass circumstances clearly within the spirit if not the letter of the statute. Statutes which are intended to be remedial in purpose are generally accorded a liberal construction so as to meet the evils which the statute was intended to remedy

STRICT [LITERAL] CONSTRUCTION a conservative or literal interpretation of statutes, stressing rigid adherence to terms specified.

CONSTRUCTIVE DISCHARGE

A constructive discharge occurs where working conditions are so intolerable that a reasonable person would have felt compelled to resign.

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.

CONSTRUCTIVE KNOWLEDGE

not actual, but accepted in law as a substitute for whatever is otherwise required. Thus, anything the law finds to exist constructively will be treated by the law as though it were actually so.

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.

CONTEMPT

an act or omission tending to interfere with orderly administration of justice, or to impair the dignity of the court or respect for its authority.

DIRECT CONTEMPT takes place openly and in the presence of the court.

CONSTRUCTIVE CONTEMPT occurs outside the court; an example is failure to comply with court orders.

CIVIL CONTEMPT consists of failure to do something ordered by the court for the benefit of another party to the proceedings (sometimes calleed RELIEF TO LITIGANTS);

CRIMINAL CONTEMPT includes acts disrespectful of the court or its processes that obstruct administration of justice.

EXAMPLE:

A judge orders a litigant to disclose several important documents to his adversary. The litigant refuses because he feels that the documents will give away trade secrets. The court has certain formulas and designs deleted, and orders that the documents be relinquished. If the litigant still refuses, he can be held in contempt of court, resulting in a jail sentence and/or a fine. The nature of the sanction is within the trial judge's discretion. As a general legal proposition, an order of a court must be obeyed or appealed. It may not be disregarded.

CONTRACT

a promise, for the breach of which the law provides a remedy, or the performance of which the law recognizees as a duty; a transaction involving two or more individuals whereby each has reciprocal rights to demand performance of what is promised.

ADHESION CONTRACT see adhesion contract

ALEATORY CONTRACT see aleatory [ALEATORY CONTRACT]

BILATERAL CONTRACT one in which there are mutual promises between two parties, each being both a promisor and a promisee

CONDITIONAL CONTRACT a contract whose performance depends upon a future event; e.g., a contract to purchase a car if it passes a motor vehicle inspection.

EXAMPLE:

Glen wants to purchase a large tract of land from seller to build a manufacturing plant but is unsure whether he can get a loan from the bank to finance the construction costs. Therefore, he signs a conditional contract with the seller that he will purchase the land only if he obtains a construction loan from the bank.

CONTRACT OF ADHESION see adhesion contract

CONTRACT OF HAZARD see sale [SALE IN GROSS]

CONTRACT UNDER SEAL see SPECIAL CONTRACT (below). See also sealed instrument; specialty.

COST-PLUS CONTRACT one providing that the contractor receives payment of his or her total costs, plus a stated percentage or profit

FORMAL CONTRACT see sealed instrument

FREEDOM OF CONTRACT see freedom of contract

IMPLIED CONTRACT see QUASI [IMPLIED] CONTRACT (below)

INSTALLMENT CONTRACT see installment contract

OPTION CONTRACT see option contract

ORAL CONTRACT one that is not in writing or that is not signed by the parties

OUTPUT CONTRACT one whereby a party promises to deliver his or her entire output to another and the other promises to accept the entire output supplied.

QUASI CONTRACT see quasi [QUASI CONTRACT]

REQUIREMENTS CONTRACT one whereby a party agrees to purchase all his or her requirements of a particular product from another, and the other agrees to supply the need.

SEVERABLE CONTRACT see severable contract

SIMPLE CONTRACTsee sealed instrument [SIMPLE CONTRACT]

SPECIAL CONTRACT a contract under seal; a specialty. See sealed instrument. See also adhesion contract; breach (of contract); privity [PRIVITY OF CONTRACT]; retail installment contract; tender; usurious contract; yellow dog contract.

UNILATERAL CONTRACT agreement whereby one makes a promise to do, or refrain from doing, something in return from an actual performance by the other, rather than a mere promise of performance.

CONTRACTOR

1. a party to a contract;

2. one who contracts to do work for another. An independent contractor makes an agreement to do a specific piece of work, retaining control of the means and method of doing the job; neither party has the right to terminate the contract at will. A GENERAL BUILDING CONTRACTOR contracts directly with the owner of the property upon which the construction occurs, as distinguished from a SUBCONTRACTOR, who would deal only with one of the general contractors.

CONTUMACY

willful disobedience to the summons or orders of a court; overt defiance of authority. Contumacious conduct may result in a finding of contempt of court.

COUNSEL

1. attorney, lawyer, legal adviser;
2. the advice or aid given with respect to a legal matter;
3. In criminal law, the term may refer to the advising or encouraging of another to commit a crime.

COUNT

a distinct statement of plaintiff’s cause of action. In indictments, a count, like a charge, is an allegation of a distinct offense. A complaint or indictment may contain one or more counts.

COUNTERCLAIM

a counterdemand by defendant against the plaintiff; it is not a mere answer or denial of plaintiff’s allegation, but asserts an independent cause of action in favor of defendant.

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.

In federal practice, a COMPULSORY COUNTERCLAIM arises out of the subject matter of the opposing party’s claims, and unless the defendant makes such a counterclaim in the suit that has been brought against him or her, he or she may be barred from ever raising that claim again. A PERMISSIVE COUNTERCLAIM is any other counterclaim and may be made by the defendant in the action that has been brought against him or her or in a subsequent suit. See setoff. Compare cross-claim.

COURT

the branch of government responsible for the resolution of disputes arising under the laws of government. A court system is usually divided into various parts that specialize in hearing different types of cases. Trial courts receive evidence and make initial determinations of fact and law that may then be reviewed by appellate courts. Trial courts are usually divided into CIVIL COURTS, which hear disputes arising under the common law and civil statutes, CRIMINAL COURTS, which hear prosecutions under the criminal laws, MATRIMONIAL COURTS, which hear divorce proceedings, and SURROGATE'S COURTS, which hear proceedings regarding the estates of deceased and incompetent persons. Federal courts hear cases arising under federal laws. All states have a separate court system to decide cases arising under state laws.

See court of claims; court of equity; court of law; de facto [DE FACTO COURT]; district court; drug court; federal courts; inferior court; international court of justice; juvenile courts; kangaroo court; moot court; open court; probate [PROBATE COURT]; small claims court; supreme court; tax court; term of court; territorial court; trial court.

COURT OF EQUITY

a court having jurisdiction in cases where an adequate and complete remedy cannot be had at law. Courts of equity in common law developed their own principles and unique remedies (eg, injunction, specific performance). Actions were brought either equitably in chancery or legally at law. Today, courts that are guided primarily by equitable doctrine are still said to be courts of equity. Thus, a bankruptcy court is a court of equity. Courts of equity, which arose independent of courts of law in England, have merged with the latter in most jurisdictions of the United States.

See equity.

COURT OF LAW

a tribunal with jurisdiction over cases at law, the term applies to courts that administer justice according to federal or state law or common law, as distinguished from courts that follow the principles of equity and are called chancery courts. Law courts and equity courts, however, are generally no longer distinguished, and a court of law is any tribunal administering the law.

CROSS-CLAIM

a claim litigated by codefendants or coplaintiffs against each other, and not against a party on the opposite side of the litigation. Compare counterclaim.

CROSS EXAMINATION

the questioning of a witness, by a party or lawyer other than the one who called the witness, concerning matters bout which the witness has testified during DIRECT EXAMINATION. The purpose is to discredit or clarify testimony already given so as to neutralize damaging testimony or present facts in a light more favorable to the party against whom the direct testimony was offered.

DIRECT EXAMINATION: the initial questioning of a witness by the party who called the witness. The purpose is to present testimony containing the factual argument the party is making.

REDIRECT EXAMINATION: the questioning of a witness by a party who called the witness, which occurs after that witness has been subjected to cross-examination. The purpose of redirect examination is to rebut or to clarify any damaging testimony elicited on cross-examination.

COURT REPORTER

Persons certified to operate tape-recording devices or to use shorthand or stenographic means to record that which is said in court or at a deposition. The recording is later turned into a transcript and forms the official record of the proceeding. Contemporaneous transcripts made by computer systems and that are viewable by persons in the courtroom are known as REAL TIME or LIVE VIEW transcripts.

CURTILAGE

in common law the land around the dwelling house.

D

DAMAGES

monetary compensation that the law awards to one who has been injured by the action of another; monetary recompense for a legal wrong such as a breach of contract or a tortious act. There are various measures used for calculating damages, including diminution of value and cost of completion. Compare specific performance.

ACTUAL [COMPENSATORY; GENERAL] DAMAGES: losses directly referrable to the breach or tortious act; losses that can readily be proven to have been sustained, and for which the injured party should be compensated as a matter of right.

COMPENSATORY DAMAGES: see ACTUAL DAMAGES above

CONSEQUENTIAL [SPECIAL] DAMAGES: indirect loss or injury. In contract law, consequential damages are recoverable if it was reasonably foreseeable at the time of contract that the injury would probably result if the contract were broken. The availability of award of such damages depends upon the defaulting party's actual or constructive knowledge of conditions that make likely some special injury upon default. Special damages should be distinguished from ACTUAL [GENERAL] DAMAGES, which are presumed directly caused by the injury. Because special damages do not necessarily flow from the injury, they must be specially pleaded and proven. The distinction between special and general damages is not absolute but, rather, is relative and depends upon the circumstances of each case. For instance, in an action for failure to provide widgets as agreed in a contract, the general damages would be the price paid under the contract. Any claim for damages to business reputation for reliability would be special damages. In an action for the tort of interference with a business relationship, however, damage to the business reputation would be the general damages. Under the UCC, in order for a buyer to recover consequential damages resulting from a seller's breach, the damages must not have been avoidable by cover.

EXAMPLE:

Crystal Lighting contracts with a construction company to install unique light fixtures throughout a new building. On the basis of that contract, Crystal also contracts with one of its suppliers to have several hundred fixtures delivered to Crystal. Since this is not a normal order for Crystal, Crystal explains what all the fixtures are for. The supplier then breaches his contract. Ordinary light fixtures do not fit in the building design. Any damages in the contract between Crystal and the construction company that result from the breach are the direct foreseeable result of the supplier's breach. As such, those damages are called consequential damages.'

DOUBLE [TREBLE] DAMAGES: twice [or three tiems] the amount of damages that a court or jury would normally award, recoverable for certain kinds of injuries pursuant to a statute authorizing the double [or treble] recovery. These damages are intended in certain instances as punishment for improper behavior. Treble damages is a statutory remedy most often awarded in antitrust violations.

EXEMPLARY [PUNITIVE] DAMAGES: compensation in excess of actual damages that is a form of punishment to the wrongdoer and reparation to the injured. Exemplary damages are awarded only in rare instances of malicious and willful misconduct.

EXAMPLE:

Several corporations are found guilty of fixing the price of milk over a nine-year period. In addition to assessing a fine on the corporations, a judge awards an additional amount as punitive damages. Since all purchases of milk were affected by the price-fixing, the judge might order that the amount of the punitive damages be repaid to consumers by a coupon offering.

EXPECTATION DAMAGES: a measure of the money damages available to plaintiff in an action for breach of contract, based on the value of the benefit he would have received from the contract if the defendant had not breached, but had completed performance as agreed. The amount is generally the monetary value of full performance of the contract to the plaintiff minus costs plaintiff avoided by not performing his own part of the contract.

GENERAL DAMAGES: see ACTUAL DAMAGES above

INCIDENTAL DAMAGES: losses reasonably incident to conduct giving rise to a claim for actual damages. A buyer's incidental damages would include expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected while the seller's incidental damages would include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with return or resale of the goods.

LIQUIDATED DAMAGES: see liquidated damages.

NOMINAL DAMAGES: a trivial sum awarded as recognition that a legal injury was sustained, though slight. Nominal damages will be awarded for a breach of contract or for an intentional tort to vindicate the plaintiffs claim where no recoverable loss can be established.

PUNITIVE DAMAGES: see EXEMPLARY [PUNITIVE] DAMAGES above.

SPECIAL DAMAGES see CONSEQUENTIAL [SPECIAL] DAMAGES above.

TREBLE DAMAGES: see DOUBLE [TREBLE] DAMAGES above.

DECLARATORY JUDGMENT

a judgment of the court to establish the rights of the parties or express the opinion of the court on a question of law, without ordering anything to be done or granting any remedy.

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.

Compare advisory opinion; injunction. See controversy; justiciability.

DECREE

1. the judicial decision in a litigated cause rendered by a court of equity;

2. the determination of a cause in courts of admiralty and probate. It is accurate to use the word judgment for a decision of a court of law, and decree from a court of equity, although the former term now includes both.

CONSENT DECREE an agreement of the parties made under sanction of the court, not the result of a judicial determination, but merely agreement to be bound by certain stipulated facts.

DECREE NISI in English law, a provisional decree of divorce, which becomes absolute only after a specified interval, usually six months, during which parties have the opportunity to show cause why the decree should not become absolute.

FINAL DECREE one that ultimately disposes of every matter of contention between the parties and constitutes a bar to another action on the same subject matter between the same parties.

INTERLOCUTORY DECREE one made upon some point arising during the progress of the suit that does not determine finally the merits of the entire suit.

DE FACTO

Lat.: in fact. By virtue of the deed or accomplishment; actually. Used to refer to a situation in which a condition or institution is operating as though it were official or pursuant to law, but that is not legally authorized. Such situations may arise where, for example, an authorizing law is declared invalid, or because required legal formalities have not been satisfied.

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.

The de facto acts of a person or entity may for some purposes regarded as legally binding. Compare de jure.

DE FACTO AUTHORITY: authority exercised in fact.

DE FACTO BOARD OF DIRECTORS: the board which in fact is in charge of the affairs of a company and is recognized as such and is performing the legitimate functions and duties of a board.

DE FACTO CORPORATION: one which has inadvertently failed to comply with the provisions of the laws relating to the creation of a corporation but has made a good faith effort to do so and has in good faith exercised the franchise of a corporation. See also corporation [DE FACTO CORPORATION].

DE FACTO COURT: one established and exercising judicial functions under the authority of an apparently valid statute. If the statute is subsequently declared invalid, the court exists in fact though not in law. See de jure.

DE FACTO INCUMBENT: one who was elected in an election which is later declared void.

DE FACTO JUDGE: one acting under color of right, and who exercises the judicial functions he assumed while the appointment is contested.

DE FACTO JURY: a jury selected in pursuance of a void law.

DE FACTO OFFICER: one whose title is not good in law, but who in fact possesses an office and discharges his duties.

DE FACTO SEGREGATION: segregation which results without purposeful action by government officials; real or actual segregation which results from social, psychological, or economic conditions.

DE FACTO TRUSTEE: one who assumes an office or position under color of right or title and who exercises the duties of the office.

DEFAULT

failure to discharge a duty. The term is often used in the context of mortgages to describe failure of the mortgagor to pay installments when due, and in the context of judicial proceedings to describe failure of one of the parties to take procedural steps to prevent entry of a judgment against him (called a default judgment).

See delict.

DEFAULT JUDGMENT

1. a judgment against defendant who has failed to respond to plaintiff's action or to appear at the trial or hearing.

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.

2. judgment given without the defendant being heard in his own defense.

Compare confession of judgment; ex parte.

DEFENSE

a denial, answer or plea disputing the validity of plaintiff's case, or making some further contention that renders the defendant not liable upon the facts alleged by the plaintiff.

AFFIRMATIVE DEFENSE: one that serves as a basis for proving some new fact, whereby defendant does not simply deny a charge but offers new evidence to avoid judgment against him or her.

EQUITABLE DEFENSE: a defense that is recognized by courts of equity acting solely upon rules of equity. Such defenses can now be asserted in courts of law as well.

DE JURE

Lat.: by right; lawful; legitimate.

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.

Generally used in contrast to de facto; de jure connotes “as a matter of law,” whereas de facto connotes “as a matter of practice not founded upon law.”

DE MINIMIS

Lat.: trifling. Of insufficient significance to warrant judicial attention.

DE MINIMIS NON CURAT LEX: Lat.: the law does not care for small things; the law does not bother with trifles.

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

DEMUR

To present a demurrer. More broadly, to take an exception to a point of law or an allegation of facts on the basis that even if it is so it does not advance the interests of the party making the statement.

DEMURRER

Formal allegation that facts as stated in the pleadings, even if true, are not legally sufficient for the case to proceed further. It does not admit anything but tests whether the complaint is sufficient to state a cause of action. In modern procedure, a motion to dismiss for failure to state a claim upon which relief may be granted replaces the demurrer. Compare summary judgment.

DE NOVO

Lat.: anew. A second time, as though the first had never taken place.

see plenary

DE NOVO HEARING a new hearing, in which the judgment of the first hearing is suspended and the case proceeds as if it had originated in the reviewing tribunal.

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.

DEPOSITION

a method of pretrial discovery that consists of a stenographically transcribed statement of a witness under oath, in response to an attorney's questions, with opportunity for the opposing party or his or her attorney to be present and to cross-examine. Such a statement is the most common form of discovery and may be taken of any witness (whether or not a party to the action). When taken in the form described, it is called an oral deposition. Depositions may also be taken upon written interrogatories, where the questions are read to the witness by the officer who is taking the deposition.

DICTUM

A statement in a judicial opinion not necessary for the decision of the case. Dictum differs from the holding in that it does not establish a rule binding on the courts in subsequent cases.

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.

CONSIDERED DICTUM: refers to a discussion of a point of law that, although it is dictum, is nevertheless so well developed that it is later incorporated into an opinion of a court as though it were authority

DICTA: plural form of dictum.

DILIGENCE

Attention to the matter at hand.

DUE DILIGENCE or REASONABLE DILIGENCE is that level of attention required by the circumstances in order to avoid liability in negligence.

DIRECT EVIDENCE

proof based upon the witness's own observations that do not require any additional inferences to be drawn.

Compare circumstantial evidence

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.

DISCOVERY

modern pretrial procedure by which one party gains information held by the adverse party, concerning the case; the disclosure by the adverse party of facts, deeds and documents that are exclusively within his or her possession or knowledge and that are necessary to support the other party's position. Common types of discovery are depositions, interrogatories, production of documents and requests for admissions.

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.

DISCRETION

the freedom of a public officer to make choices, within the limits of his or her authority, among possible courses of action.

ABUSE OF DISCRETION: see abuse of discretion

DISCRETIONARY ACCOUNT: in the securities trade, one in which the customer gives the broker or a third party complete or partial discretion to buy and sell securities. Such discretion typically extends to selection, price, timing, and amount purchased.

JUDICIAL DISCRETION: the reasonable use of judicial power, ie, the court's freedom to decide within the bounds of law and fact.

EXAMPLE:

Jason, a juvenile, is charged with an assault upon another teenager. In Jason's state, the law provides the juvenile judge with the judicial discretion to have the case heard in the juvenile court or to transfer the case to an adult court. Previous cases and the law itself establish certain standards to use in determining whether a transfer is appropriate, but the judge has the discretion to decide which court shall hear the matter. The decision, though, may be appealed to a higher court.

LEGAL DISCRETION: the use of one of several equally satisfactory provisions of law.

PROSECUTORIAL DISCRETION: the wide range of alternatives for a prosecutor in criminal cases, including decision to prosecute, particular charges to be brought, bargaining, mode of trial conduct, recommendations for sentencing, parole, etc.

DISCRIMINATION

the unequal treatment of parties who are similarly situated. Federal law prohibits discrimination on the basis of race, sex, nationality, religiion, and age in matters of employment, housing, education, voting rights, and access to public facilities. Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016

DISMISSAL

a cancellation. Dismissal of a motion is a denial of the motion. Dismissal of a complaint or a related count terminates proceedings on the claim asserted in the complaint. Dismissal of an appeal places the parties in the condition as if there had been no appeal, confirming the judgment of the lower court.

DISMISSAL WITH PREJUDICE: usually an adjudication upon the merits that operates as a bar to future action by preventing plaintiff from making further attempts at a claim based upon the same facts.

EXAMPLE:

Jorge brings a lawsuit against a company, claiming that it never refunded his money for an item he returned.

The company shows the judge a check made payable to Jorge and cashed by him, with a large notation on the check that it was payment for the return of the item. Jorge then tries to make an additional claim that the company owes him more money for other reasons. The judge will usually dismiss with prejudice Jorge's claim for the refund price alone and instruct him to file a separate claim if he is seeking for more money. The "with prejudice" aspect of the court's decision means that Jorge can never again sue on the same claim unless he successfully appeals the decision.

DISMISSAL WITHOUT PREJUDICE: such a dismissal is not on the merits and does not bar a subsequent suit on the same cause of action, nor affect any right or remedy of the parties.

DISPOSITION

1. the giving up of anything; often used in reference to a testamentary proceeding, as in the "disposition of the estate";

2. courts "dispose of" cases, ie, determine the rights of the parties or otherwise terminate the proceedings;

3. In criminal law, the sentence of the defendant is the disposition.

DISQUALIFICATION

the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. For instance, a judge may be disqualified from hearing a particular case because of having previously represented one of the parties involved.

DISTRICT COURT

1. a court, established by the US Constitution, having territorial jurisdiction over a district that may include a whole state or part of it. A district court has original jurisdiction, exclusive of courts of the individual states, over all offenses against laws of the United States, and is a court of general jurisdiction for suits between litigants of different states.

See diversity of citizenship; federal question jurisdiction.

2. an inferior court in several states having limited jurisdiction to try certain minor cases.

DIVERSITY OF CITIZENSHIP

the circumstances that grants to federal courts original jurisdiction over cases and controversies between citizens of different states or between a citizen of a state and an alien, subject to a minimum jurisdictional amount (the value in controversy) of $75,000.

DOCKET

1. a list of cases on a court's calendar;

2. in procedure, a formal record of the proceedings in the court whose decision is being appealed.

DOCUMENT

any writing, recording, computer tape, blueprint, X-ray, photograph, or other physical object upon which information is set forth by means of letters, numbers, or other symbols.

DOUBLE JEOPARDY

prosecution or punishment twice for the same offense, which is prohibited by the US Constitution and by many state constitutions.

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.

see collateral [COLLATERAL ESTOPPEL]

DUE PROCESS

a phrase introduced into American jurisprudence in the Fifth and Fourteenth Amendments to the U.S. Constitution; the principle that the government may not deprive an individual of life, liberty or property unless certain rules and procedures required by law are followed. The phrase does not have a fixed meaning, but embodies society’s fundamental notions of legal fairness. Specifically, the constitutional safeguard of SUBSTANTIVE DUE PROCESS requires that all legislation, state or federal, must be reasonably related to a legitimate government objective. The concept of PROCEDURAL DUE PROCESS guarantees procedural fairness where the government attempts to deprive one of his or her property or liberty; this requires notice and a fair hearing prior to a deprivation of life, liberty or property.

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.

E

EN BANC

Fr.: by the full court. Many appellate courts sit in divisions of three or more judges from among a larger number on the full court. Sometimes either on the court's motion or at the request of a litigant the court will consider a case by the full court rather than by only a part of it. A matter reconsidered by the whole court after a part of it has rendered its decision is called a REHEARING EN BANC, sometimes spelled "en bank".

ENJOIN

To command or instruct with authority; to suspend or restrain. One may be enjoined or commanded by a court either to do a specific act or to refrain from doing a certain act. See injunction.

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.

EQUAL PROTECTION

Constitutional guarantee embodied in the Fourteenth Amendment to the US Constitution, which states in relevant part that “No State shall... deny to any person within its jurisdiction the equal protection of the laws.” The essential purpose of this constitutional doctrine is to ensure that the laws and the government treat all persons alike, unless there is some substantial reason why certain persons or classes of persons should be treated differently.

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.

EQUITABLE

according to natural right or natural justice; marked by due consideration for what is fair and impartial, unhampered by technical rules the law may have devised that limit recovery or defense.

see equity

EQUITABLE ESTOPPEL

Old Fr: the country, the neighborhood. An estoppel that arises out of a person's statement of fact, or out of his or her silence, acts or omissions, rather than from a deed or record or written contract; also called an estoppel in pais

EQUITY

generally, justice or fairness. Historically, equity refers to a separate body of law developed in England in reaction to the inability of the common law courts, in their strict adherence to rigid writs and forms of action, to consider or provide a remedy for every injury. The king therefore established the court of chancery, to do justice between parties in cases where the common law would give inadequate redress. The principles of the jurisprudence is that equity will find a way to achieve a lawful result when legal procedure is inadequate. Equity and law courts are now merged in most jurisdictions, though equity jurisprudence and equitable doctrines are still independently viable.

Equity also refers to the value of property minus liens or other encumbrances. For example, one's equity in a home with a mortgage is the value of th eproperty beyond the amount of the mortgage debt.

In accounting, equity refers to the ownership interest in a company as determined by subtracting liabilities from assets. See balance sheet. For incorporated business enterprises, equity is owned by the common and preferred shareholders. If the corporation is publicly held, the shares will be traded on a stock exchange or over-the-counter market which together comprise the EQUITY MARKET.

ERRONEOUS

involving a mistake; signifies a deviation from the requirements of the law, but it does not connote a lack of legal authority, and is thus distinguished from illegal. If, while having the power to act, one commits error in the exercise of that power, he acts erroneously.

ERRONEOUS JUDGMENT one rendered according to practice of court, but contrary to law, upon a mistaken view of law, or upon erroneous application of legal principles.

ESTABLISHMENT CLAUSE

Provision in the First Amendment of the US Constitution prohibiting enactment of laws pertaining to “the establishment of religion.” It has been said that the establishment clause means that neither a state nor the federal government may set up a church; neither may pass laws that aid one religion, aid all religions or prefer one religion over another. In the words of Jefferson, the clause was intended to erect a “wall of separation between church and state.”

ESTOPPEL

a restraint; a bar; arises where a person has done some act that the policy of the law will not permit him or her to deny, or where circumstances are such that the law will not permit a certain argument because it would lead to an unjust result. In the context of contract law, for example, one is estopped from denying existence of a binding contract where he or she has done something intending that another rely on his or her conduct, and the result of the reliance is detrimental to that other person. Compare waiver.

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.

AUTHORITY BY ESTOPPEL: see authority [AUTHORITY BY ESTOPPEL]

COLLATERAL ESTOPPEL:see collateral estoppel

DIRECT ESTOPPEL: the prohibition of the relitigation of an issue by two parties who have perviously litigeted the issue and had it decided by the courts. See collateral estoppel; res judicata

ESTOPPEL BY DEED: a bar that precludes a party from denying the truth and legitimacy of the conveyance represented by a deed he or she has given. it may be invoked only in a suit on the deed or concerning a right arising out of it.

ESTOPPEL BY JUDGMENT: see judgment [ESTOPPEL BY JUDGMENT]

ESTOPPEL BY LACHES: see laches [ESTOPPEL BY LACHES]

ESTOPPEL IN PAIS: Old Fr: the country, the neighborhood. An estoppel that arises out of a person's statement of fact, or out of his or her silence, acts or omissions, rather than from a deed or record or written contract; also called an equitable estoppel.

MUTUALITY OF ESTOPPEL: the doctrine that prohibits one party from raising an issue or a matter which the other party is prohibited from raising

PROMISSORY ESTOPPEL: see promissory estoppel

ET AL.

and others; abbreviation of et alii.

ET SEQ.

Lat.: and the following; abbreviation of et sequentes or et sequential.

Most commonly used in denominating page reference numbers: page 13 et seq.

EVIDENCE

all the means by which any alleged matter of fact, the truth of which is submitted to investigation at judicial trial, is established or disproved. Evidence includes the testimony of witnesses, introduction of records, documents, exhibits or any other relevant matter offered for the purpose of inducing the trier of fact's (fact finder's) belief in the party's contention.

See best evidence rule; circumstantial evidence; conclusive evidence; corroborating evidence; demonstrative evidence; direct evidence; documentary evidence; extrinsic evidence; hearsay; illegally obtained evidence; incompetent evidence; indirect evidence; indispensable evidence; insufficient evidence; intrinsic evidence; mere evidence rule; newly discovered evidence; parol evidence rule; preponderance of the evidence; presumptive evidence; real evidence; rebuttal evidence; reputation evidence; suppression of evidence; traditionary evidence; weight of the evidence;

EXCEPTION

An item that ought to be included in a category but that is eliminated. Exceptions arise in numerous contexts in law:

1. Statutory exceptions are intended to restrain the enacting clause or to exclude something that would otherwise be within it, or to modify it in some manner

2. An exception to a court’s ruling is an objection to such ruling or the act of calling to the attention of a court an error made by the same or a different court

3. Exception is also used generally to mean the withholding from conveyance of some estate or interest in the land conveyed

EXCUSABLE NEGLECT

The failure to perform a required act, usually procedural in nature, because of unusual circumstances. The party failing to perform the act is usually given the opportunity by the court to cure his or her neglect.

EXECUTIVE BRANCH

the branch of government charged with execution and enforcement of laws and policies and the administration of public affairs; the executive.

EXHIBITS

an item of real evidence that has been presented to the court

EXIGENT CIRCUMSTANCES

emergency situations or conditions that the law recognizes as excusing compliance with some procedural requirement or recognition of another's property or other interests. Term is most commonly used to refer to the variety of contexts in which a valid search and seizure may be conducted without a warrant. If the police action must be taken on a "now or never" basis to preserve evidence, it may be reasonable to permit a seizure without obtaining prior judicial approval. Exigent circumstances may be found when substantial risk of harm to others or the police would exist if police were to delay a search until a warrant could be obtained. The mobility of a motor vehicle has been held in itself to create an exigent circumstance. In every instance where a search or arrest warrant has been dispensed with on grounds of exigency, probable cause must be present to justify the intrusion.

EX OFFICIO

Lat.: from the office; by virtue of his office; officially.

EX OFFICIO MEMBER one who is a member of a board, committee or other body by virtue of his or her title to a certain office, and who does not require further appointment

EX OFFICIO SERVICES services imposed by law on a public officer by virtue of his office

EX PARTE

Lat.: in behalf of or on the application of one party; by or for one party. An ex parte judicial proceeding is one brought for the benefit of one party only, without notice to or challenge by an adverse party. Therefore, in an ex parte proceeding the adverse party and his or her evidence are excluded. For this reason, such proceedings are not favored, and any relief obtained ex parte is subject to speedy review.

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.

EXPERT WITNESS

a witness having special knowledge, skill or experience in the subject about which he is to testify. Testimony given by such a witness, in his capacity as such, constitutes EXPERT EVIDENCE or EXPERT TESTIMONY.

EXPRESS

to set forth an agreement in words, written or spoken, that unambiguously signify intent. As distinguished from implied, the term refers to something that is not left to inference from conduct or circumstances.

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

Lat.: the expression of one thing is the exclusion of another. In construing statutes under this maxim, mention of one thing within the statute is said to imply the exclusion of another thing not mentioned. The maxim is an aid to construction and is applicable where the contrast between what is expressed and what is omitted enforces the inference that what is omitted must have been intended to have contrary treatment. Thus a statute granting certain rights to “police, fire, and sanitation employees” would be interpreted to exclude other public employees not enumerated in the legislation.

EX REL.

Lat.: upon relation or report; abbreviation of ex relatione. Legal proceedings that are initiated ex rel. are brought in the name of the state but on the information and at the instigation of a private individual with a private interest in the outcome. The real party in interest is called the RELATOR. The action will be captioned “State of X [or United States] ex rel. Y versus Z.”

EXTENSION

an increase in the date of expiration or due date for a term or obligation.

In a lease, an extension represents continuation of an existing arrangement on the same terms, whereas a renewal may involve new terms in a different lease instrument.

In procedure, an extension of time within which a pleading or process must be filed or completed under the rules governing the courts of the particular jurisdiction.

EXTRAJUDICIAL

beyond a court’s jurisdiction; not directly connected with a court or its proceedings; e.g., a confession or an identification made outside of court.

EXTRINSIC FRAUD

fraud that prevents a party from knowing about his or her rights or defenses or from having a fair opportunity to present or litigate them at a trial. It is a ground for equitable relief from a judgment.

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.

F

FACT FINDER

in a judicial or administrative proceeding, the person or group responsible for determining the facts relevant to resolving a controversy. It is the role of a jury in a jury trial, in a nonjury trial the judge sits both as a fact finder and as a trier of law; in administrative proceedings it may be a hearing officer or a hearing body. The term TRIER OF FACT generally denotes the same role.

FEDERAL COURT

the United States courts (distinguished from the courts of the individual states), including district courts (general courts of original jurisdiction, which are the federal trial courts), courts of appeals (formerly circuit courts of appeals, which are principally appellate review courts), and the Supreme Court (the only court created directly by the constitution, and the court of last resort in the federal system). Other specialized courts in the federal system are court of claims (hears suits involving allowable claims against the United States government), COURT OF CUSTOMS AND PATENT APPEALS (reviews customs court decisions), and CUSTOMS COURT (reviews decision of the customs collectors).

FEDERAL QUESTION JURISDICTION

one kind of original jurisdiction that allows federal courts to hear cases wherein the application of something in the Constitution, laws or treaties of the United States is being disputed.

FEDERAL TORT CLAIMS ACT

an act passed in 1946 that confers exclusive jurisdiction on United States district courts to hear claims against the United States for money damages, for injury or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant under the laws of the place where the act or omission occurred. The act is a broad waiver of sovereign immunity, although there are a number of qualifications on the waiver. Some state governments have enacted similar legislation.

see Tort Claims Act.

FEDERALISM

A system of government wherein power is constitutionally divided between a central government and local governments.

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.

FILING

the depositing of documents with the court or with other public officials to become preserved as part of the official record. Often specific deadlines are imposed by which time the documents must be filed. Failure to meet the deadline may result in the imposition of late fees or may result in the document being excluded from consideration. Court documents must be served on the opposing party.

see service. See also return [FILING].

FINDING

the decision of a court on issues of fact. The decision’s purpose is to answer questions raised by the pleadings or charges. It is designed to facilitate review by disclosing the grounds on which the judgment rests. Findings of fact are made by a jury in an action at law, or, if there is no jury, they are made by the judge.

FINDING OF FACT factual determinations made by the trier of fact (court or jury), or an administrative body, based upon the evidence which has been presented to it. If the case is presented to a jury, the jury makes the finding of facts, such as “Was the accident the fault of the driver?” Otherwise, the judge or administrative officer will make the findings of fact. When the jury returns a general verdict (“we find for the plaintiff” or “not guilty”), the factual basis of the jury’s verdict will not be known and may not easily be ascertained unless there was only one issue of fact in the case. When the jury returns a special verdict, it answers specific factual questions which have been presented to it, such as “Did the accident occur on July 5th?” As a general proposition, an appellate court can only set aside a finding of fact made below if it determines that the finding is clearly erroneous, ie, that reasonable people could not possibly make such a finding.

FINDING OF LAW a determination of the court as to the application of a rule of law to particular facts. Also referred to as a CONCLUSION OF LAW

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.

FIRST IMPRESSION (CASE OF)

First discussion or consideration. A case is one of first impression when it presents a question of law that has never before been considered by any court, and thus is not influenced by the doctrine of stare decisis.

FISCAL

Pertaining to the public finance and financial transactions; belonging to the public treasury (called the FISC).

FISC the treasury of a political entity

FISCAL YEAR any twelve-month period used by a business as its accounting period

FORMA PAUPERIS

Lat.: in the manner of a pauper. In pleadings, in forma pauperis grants the right to sue without assuming the burden of costs or formalities of pleading. A Criminal defendant granted permission to proceed in forma pauperis may be entitled to court-appointed counsel.

FORUM

a court; a place where disputes are heard and decided according to law and justice; a place of jurisdiction; a place where remedies afforded by the law are pursued.

FORUM NON CONVENIENS

Lat.: an inconvenient court. Under this doctrine a court, though it has jurisdiction of a case, may decline to exercise it where there is no legitimate reason for the case to be brought there, or where presentation in that court will create a hardship on the defendants or on relevant witnesses because of the court’s distance from them. The court will not dismiss the case under the doctrine unless the plaintiff has another forum open to him.

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.

FRAUD

intentional deception resulting in injury to another. Fraud usually consists of a misrepresentation, concealment or nondisclosure of a material fact, or at least misleading conduct, devices or contrivance.

BADGES OF FRAUD see badges of fraud

CONSTRUCTIVE [LEGAL] FRAUD comprises all acts, omissions and concealments involving breach of equitable or legal duty, or trust and resulting in damage to another. It is thus fraud that is presumed from the circumstances, without the need for any actual proof of intent to defraud.

EXTRINSIC [COLLATERAL] FRAUD fraud that prevents a party from knowing about his or her rights or defenses or from having a fair opportunity to present or litigate them at a trial. It is a ground for equitable relief from a judgment.

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.

FRAUD IN FACT [POSITIVE FRAUD] actual fraud; deceit; concealing something or making a false representation with an evil intent [scienter] when it causes injury to another. It is used in contrast to CONSTRUCTIVE FRAUD, which does not require evil intent.

FRAUD IN LAW fraud that is presumed from circumstances, where the one who commits it need not have any evil intent to commit a fraud; it is a CONSTRUCTIVE FRAUD or legal fraud.

FRAUD IN THE FACTUM generally arises from a disparity between the instrument executed and the one intended to be executed, as for example when a blind or illiterate person executes a deed when it has been read falsely to him or her after he or she asked to have it read.

FRAUD IN THE INDUCEMENT intentional fraud that causes one to execute an instrument, or make an agreement, or render a judgment. The misrepresentation does not mislead one as to the paper being signed but rather misleads as to the facts upon which the decision to sign is based.

FRAUD IN THE COURT occurs where it can be demonstrated, clearly and convincingly, that a party has deliberately set in motion some unconsionable scheme calculated to interfere with the judicial system's ability to impartially decide a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense. Unlike common law fraud on a party, fraud on the court does not require reliance.

INTRINSIC FRAUD fraudulent representation that is considered in rendering a judgment

LEGAL FRAUD see CONSTRUCTIVE [LEGAL] FRAUD (above).

FREE EXERCISE CLAUSE

A provision in the First Amendment to the United States Constitution providing that “Congress shall make no laws... prohibiting the free exercise” of religion. The “free exercise clause” guarantees against government compulsion in religious matters, while the establishment clause insures that the government will maintain neutrality towards religion.

FRIVOLOUS

clearly insufficient as a matter of law; presenting no debatable question. A claim is frivolous if it is insufficient because unsupported by the facts or because the law recognizes no remedy for the claim.

FULL FAITH AND CREDIT

The federal constitutional requirement that the public acts, records, and judicial proceedings of one state be respected by each of the other states. Thus, if a judgment is conclusive in the state where it was pronounced, it is equally beyond dispute everywhere in the courts of the United States. The judgment is entitled to full faith and credit when the second court’s inquiry discloses that the same questions were properly before the first court and were fully and fairly litigated and finally decided there.

EXAMPLE:

Following a long trial, a company is found negligent in manufacturing a product that caused Ayad substantial hair loss. The manufacturer’s assets in that state are insufficient to cover the full amount of the judgment. Ayad can take that judgment to another state where the manufacturer has assets, sue upon that judgment, and by applying the full faith and credit principle, obtain another judgment, and collect whatever he is still owed.

FUNDAMENTAL RIGHT

a right that is considered by a court to be expressed, explicitly or implicitly, in the constitution of that state or the United States Constitution, and which is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.

Examples of fundamental rights include a parent’s right to raise his or her own child without governmental intrusion, the right to interstate travel, or the right to become a candidate for election to public office.

A court must review laws infringing upon fundamental rights under a standard of strict scrutiny. To withstand strict scrutiny, a law must be necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest. Alternatively, if a court determines the right not to be a fundamental right, the rational basis test applies. See privacy, right of.

G

GOOD CAUSE

substantial or legally sufficient reason for doing something. For example, if a statute provides for granting a new trial upon a showing of good cause, such good cause might include the existence of fraud, lack of notice to the parties or newly discovered evidence.

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.

GOOD FAITH

total absence of intention to seek unfair advantage or to defraud another party; an honest intention to fulfill one's obligations; observance of reasonable standards of fair dealing.

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.

GRANT

to give, allow or transfer something to another, with or without compensation; especially, a gift of land made by one having authority over it. The one giving the gift or making the transfer is the GRANTOR. The recipient is the GRANTEE. Compare convey.

Also, generally, to yield or concede, as in to grant a request.

LAND GRANT a governmental grant to another level of government, a corporation, or an individual, without compensation. Many of the first colleges in the United States were established as land-grant colleges, with the land being donated to the schools by federal or state governments.

GRAVAMEN

the essence of a complaint, charge, cause of action, etc.

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.

H

HARASSMENT

1. prosecution brought without reasonable expectation of obtaining a valid conviction;

2. unnecessarily oppressive exercise of authority;

3. conduct motivated by a malicious or discriminatory purpose

SEXUAL HARASSMENT refers to any policy or practice pursuant to which employees are subject to physical or verbal harassment by their superiors or are denied employment or promotion on the basis of their gender

HARM

see injury; irreparable injury [damage; harm].

HARMLESS ERROR

error that is not sufficiently prejudicial to the losing party in a lawsuit to warrant the appellate court’s modifying the lower court’s decision. A conclusion that an error is harmless reflects the reviewing court’s determination that the lower court’s decision would have been the same with or without the purported error.

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.

Compare plain error.

HEARING

a proceeding where evidence is taken to determine an issue of fact and to reach a decision on the basis of that evidence; describes whatever takes place before magistrates sitting without jury. Thus a hearing, such as an administrative hearing, may take place outside the judicial process, before officials who have been granted judicial authority expressly for the purpose of conducting such hearings.

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.

HEARSAY

a rule that declares not admissible as evidence any statement other than that by a witness while testifying at the hearing and offered into evidence to prove the truth of the matter stated. The hearsay statement may be oral or written and includes nonverbal conduct intended as a substitute for words (such as a nodding of the head). If, for example, a witness' statement as to what he or she heard another person say is elicited to prove the truth of what that other person said, it is hearsay. If, however, it is elicited to merely show that the words were spoken, it is not hearsay. The witness' answer will be admissible only to show that the other person spoke certain words and not to show the truth of what the other person said. The reason for the hearsay rule is that the credibility of the witness is the key ingredient in weighing the truth of his or her statement; so when that statement is made out of court, without benefit of cross-examination and without the witness' demenor being subject to assessment by the trier of fact (judge or jury), there is generally no adequate basis for determining whether the out-of-court statement is true.

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.

Hearsay is prohibited due to the constitutional guarantee of confrontation (see confrontation clause); however, there are many exceptions to the hearsay rule of exclusion based on a combination of trustworthiness and necessity. Thus, official written statements, such as payroll records, where the declarant's statements are based on firsthand knowledge and where the officer is under an official duty to make the report (and hence has no motive to falsify) are admissible under the BUSINESS RECORDS EXCEPTION. Another common exception is made for DYING DECLARATIONS. Under this rule a statement made by a person with knowledge or hopeless expectation of his or her impending death is admissible through another who overheard that statement where the declarant is unavailable because he or she died. Originally it was strongly believed that a dying person would tell the truth; thus the witness' testimony as to what the dying declarant said became admissible both on the grounds of trustworthiness and necessity. Today, with more skepticism about the effect of religiosity of truth-telling, necessity remains as a major factor in determining admissibility. The question of the witness' credibility is subject to demeanor examination and cross-examination for bias, memory, etc. Some jurisdictions permit any admission by a party to be offered by his or her adversary in a civil proceeding through any competent witness as another broad exception to the hearsay rule.

See and compare admission by a party-opponent; declaration against interest; evidence.

HIPAA

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT [HIPAA]

1996 federal law providing safeguards to protect confidential medical information.

It also protects health insurance coverage for workers and their families when they change or lose their jobs.

It also helps the healthcare industry control administrative costs.

Most importantly, the HIPAA privacy rule or PHI (Protected Health Information) protects patient record confidentiality including any information held by a covered entity which concerns health status, provision of health care, or payment for health care that can be linked to an individual (other than for facilitating treatment or payment). Any other disclosure of PHI (Protected Health Information) requires the covered entity to obtain written authorization from the individual for the disclosure.

HIPAA remains largely intact although the ACA expanded support for administrative technology.

HOLDING

1. In commercial and property law, property to which one has legal title and of which one is in possession. The term may be used to refer specifically to ownership of stocks or shares of corporations.

2. In procedure, any ruling of the court, including rulings upon the admissibility of evidence or other questions presented during trial. Compare dictum.

HOSTILE WORKPLACE

Workplace harassment that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. It can involve unwelcome conduct that is based on race, color, religion, sex (including pregnancy), sexual orientation, national origin, age, or disability.

Offensive conduct may include offensive jokes, slurs, name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Any person affected by the harassment, not just the person at whom the harassment was directed, may be entitled to relief under state law or federal anti-discrimination laws.

See discrimination; harassment [sexual harassment]

I

ID (Idem)

Lat.: the same; abbreviation for idem. Used in citations to avoid repetition of author's name and title when a reference immediately follows another to the same item.

IMMATERIAL

not material; irrelevant, nothing to do with the case; not significant.

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.

IMMUNITY

right of exemption from a duty or penalty; benefit granted in exception to the general rule. Immunity from prosecution may be granted a witness to compel answers he or she might otherwise withhold because of the constitutional privilege to avoid self-incrimination.

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.

OFFICIAL IMMUNITY: the immunity of a public official from liability to anyone injured by actions in the exercise of official authority or duty.

See self-incrimination, privilege against [TRANSACTIONAL AND USE IMMUNITIES]; sovereign immunity.

IMPLIED

not explicitly written or stated; determined by deduction from known facts.

IMPUTE

To assign legal responsibility for the act of another, because of the relationship between those made liable and the actor, rather than because of participation in or knowledge of the act. See vicarious liability.

INDIGENT

1. generally, a person who is poor, financially destitute;

2. in a legal context, a person found by a court to be unable to hire a lawyer or otherwise meet the expense of defending a criminal matter, at which point defense counsel is appointed by the court. See in forma pauperis; public defender.

INFERENCE

a process of reasoning by which a proposition is derived as a logical consequence from given facts.

INFERIOR COURT

a court whose decision is subject to review by another court, which is referred to as a SUPERIOR COURT.

INFRA

Lat.: below; following; beneath. in text the term refers to a discussion or a citation appearing subsequently; the opposite of supra ("above").

INFRINGEMENT

Breach; violation; unauthorized distribution; See patent infringement. See copyright; trademark; plagiarism.

IN HAEC VERBA

Lat.: in these words.

INHERENT POWER

Those powers an authority such as a court or a government must have in order to achieve the purposes for which it was created.

INHERENT CONSTITUTIONAL POWERS the federal government possesses all those inherent and implied powers that, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. These powers include the ability to conduct foreign affairs, to exclude and deport aliens, to protect persons in federal custody or employment, to protect federal elections, and to protect federally created or federally guaranteed rights.

INITIATIVE

a process by which a small percentage of voters may propose legislation and compel officials to submit the proposed legislation to voters. It involves the power of the people to propose bills and laws and to enact or reject them at the polls, independent of legislative assembly. In contrast, referendum is the right of the people to have submitted for their approval or rejection an act passed by the legislature.

Referendum is a process by which a small percentage of voters may delay effective legislation and compel officials to submit it for voter approval or rejection.

Initiative is a form of direct legislation by the people consisting of two parts:

petition; and
election.

An initiative does not become effective until passed by voters and its availability does not remedy the denial of the right to referendum.

INJUNCTION

a judicial remedy awarded to restrain a particular activity; first used by courts of equity to prevent conduct contrary to equity and good conscience.

The injunction is a preventive measure to guard against future injuries, rather than one that affords a remedy for past injuries.

FINAL INJUNCTIONS: see PERMANENT [FINAL] INJUNCTIONS (below).

INTERLOCUTORY INJUNCTIONS: see TEMPORARY [INTERLOCUTORY] INJUNCTIONS (below).

MANDATORY INJUNCTION: one requiring positive action, rather than one forbidding a party to act.

EXAMPLE:

a landlord refuses to supply his tenants with heat during the winter months. Regardless of the reasons for the landlord's action, a court might issue a mandatory injunction forcing the landlord to supply heat.'

PERMANENT INJUNCTION: one issued upon completion of a trial in which the injunction has been actively sought.

TEMPORARY [INTERLOCUTORY] INJUNCTION: one that will expire at a particular time, and that is typically used to maintain the status quo or preserve the subject matter of the litigation during trial.

INJURY

wrong or damage done to another, either in his or her person, rights, reputation or property. LEGAL INJURY is any damage that results from a violation of a legal right and that the law will recognize as deserving of redress.

Compare damnum absque injuria; depreciation; fault. See also damages; relief; remedy.

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.

IN LIMINE

Lat.: at the beginning or the threshhold. see motion in limine

IN PARI MATERIA

Lat.: on like subject matter.

Statutes or document provisions that relate to the same person or subject. In the construction or interpretation of a statute of instrument, the various provisions of the statute or instrument and all other acts or instruments on the same subject or having the same purpose are to be read together as one law or agreement, giving equal importance to each.

IN RE

Lat.: in the matter of. Usually signifies a legal proceeding with no opponent, but rather judicial disposition of a thing, or res, such as the estate of a decedent.

INTER ALIA

Lat.: among other things

INTERLOCUTORY

provisional; temporary. An order or judgment that does not determine the issues but directs further proceeding preliminary to a final order or decree. Until final decree, an interlocutory judgment is subject to change by the court to meet the needs of the case and is often not appealable except by leave of court.

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.

INTERROGATORY

in civil action, a pretrial discovery tool in which one party's written questions are served on the adversary, who must serve written replies under oath. Interrogatories can only be served on parties to the action, and while not as flexible as depositions, which include opportunity of cross-examination, they are regarded as a good and inexpensive means of establishing important facts held by the adversary.

INTERVENTION

a proceeding permitting a person to enter a lawsuit already in progress; in civil law, admission of a person not an original party to the suit, to protect a right or interest allegedly affected by the proceeding. The INTERVENOR may wish to join the plaintiff or the defendant or demand something adverse to both. A person generally can become an intervenor only by proving he or she has an interest in the subject matter of the original litigation. The purpose of intervention is to prevent delay and unnecessary duplication of lawsuits; it may be denied, however, if it interferes excessively with the rights of original parties to conduct the suit on their own terms.

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.

INTRINSIC FRAUD

fraudulent representation that is considered in rendering a judgment

INVIDIOUS

causing resentment or ill will; discriminatory

IPSO FACTO

Lat.: by the fact itself; in and of itself

IRREPARABLE HARM

a type of injury for which no remedy at law (damages) suffices, and that thus requires a court of equity to intervene, often by issuing an injunction to prevent the conduct or conditions that are causing or threatening the injury. In fact, showing of imminent irreparable injury is ordinarily prerequisite to a request for an injunction.

ISSUE

1. as a verb, to put into circulation, as to a buyer.

2. in corporation law, a STOCK ISSUE is the process by which a corporation authorizes, executes and delivers shares of stock for sale to the public. The term also describes the shares offered by the corporation at a particlar time.

3. in the law of real property, the noun issue means descendants.

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.

4. in legal practice, a point of fact or law disputed between parties to the litigation, generally an assertion by one side and a denial by the other.

J

JOINDER

uniting of several causes of action or parties in a single suit. In federal practice, a party may join as many claims as he or she has against the opposing party. Compare class action; impleader; misjoinder.

COMPULSORY JOINDER: mandatory joining of a person needed in an action for a just adjudication of the controversy. All related claims against another must be joined, or the claimant faces the possibility of being barred from litigating claims separately on the grounds that such action constitutes multiplicity of suits. A defendant must raise related claims as compulsory counterclaims.

JOINDER OF ACTIONS OR CLAIMS: the joinder of two or more claims or actions in a single suit.

see PERMISSIVE JOINDER

JOINDER OF ISSUE: the act by which an issue is formally fashioned and structured for the purpose of its consideration and determination by a court. Under the code system of pleading, an issue is joined when one side asserts a set of facts and the other side denies it. In criminal law joinder of issue occurs when the defendant pleads "not guilty" in response to an indictment filed against him or her.

JOINDER OF PARTIES: the naming of a person or entity as a party to a lawsuit.

see COMPULSORY JOINDER (above and PERMISSSIVE JOINDER (below)

MISJOINDER: the improper joinder of a party or a claim. In civil cases, the remedy is to remove the improper party or claim from the suit. In criminal cases, the remedy is a separate trial of the misjoinder offenses or defendants. This remedy is also available to criminal defendants if the misjoinder prejudices any of the defendants.

see misjoinder

PERMISSIVE JOINDER: the joining of persons, so that in a single lawsuit a plaintiff may raise all his or her unrelated claims against another party with the court severing claims that ought not be tried together. A defendant may plead in his or her answer any PERMISSIVE COUNTERCLAIMS against the plaintiff.

JUDGMENT

the determination of a court of competent jurisdiction upon matters submitted to it; a final determination of the rights of the parties to a lawsuit. See recall a judgment; warrant [WARRANT TO SATISFY JUDGMENT].

Legal circles favor the spelling as judgment instead of judgement.

COGNOVIT JUDGMENT: see confession of judgment.

CONFESSION OF JUDGMENT: see confession of judgment.

DEFAULT JUDGMENT: a judgment entered on behalf of a plaintiff when the defendant defaults, or fails to appear in the proceeding.

See default judgment.

ERRONEOUS JUDGMENT: see erroneous [ERRONEOUS JUDGMENT].

ESTOPPEL BY JUDGMENT: estoppel brought about the judgment of a court because a similar question or fact in dispute has been determined by a court of competent jurisdiction between the same parties or their privies.

FINAL JUDGMENT: a conclusive determination of the rights of the parties, disposing of the entire controversy before the court, or of some separable portion of the dispute, so that immediately after the judgment, or an appeal therefrom, the enforcement of that judgment can be made. The term also refers to the sentence imposed in a criminal case. See final decision.

JUDGMENT BY DEFAULT: see default; default judgment.

JUDGMENT IN PERSONAM: see PERSONAL JUDGMENT (below)

JUDGMENT IN REM: one pronounced upon the status of a particular subject matter, property or thing, as opposed to one pronounced upon persons.

JUDGEMENT N.O.V: see n.o.v.

JUDGMENT OF CONVICTION: the sentence in a criminal case formally entered in the clerk's records.

JUDGMENT OF DISMISSAL: an order that finally disposes of a matter without a trial of the issues involved on their merits. See dismissal.

JUDGMENT ON THE MERITS: a binding judgment determined by analysis and adjudication of the factual issues presented, rather than by existence of a technical or procedural defect that requires on party to prevail.

EXAMPLE:

Robin files a lawsuit but inadvertently names the wrong parties as defendants. When her case comes to trial, it may be dismissed as against the people she wanted to sue because they were not named. That dismissal would not be a judgment on the merits. Since the court's action in doing so is necessitated by a procedural error committed by Robin.

JUDGMENT ON THE PLEADINGS see SUMMARY JUDGMENT (below)

PERSONAL JUDGMENT: a judgment rendered against an individual or an entity such as a corporation for the payment of money damages. To be distinguished from a JUDGMENT IN REM (above). See in personam; personal judgment.

SUMMARY JUDGMENT: a pre-verdict judgment rendered by the court on the basis of the pleadings because no material issue of fact exists and one party or the other is entitled to judgment as a matter of law. Either party may move for summary judgment at any time after all pleadings have been filed.

See summary judgment.

JUDICIAL

of, by, or appropriate to a court or judge

JUDICIAL ECONOMY

The most efficient use of judicial resources; often used as the rationale underlying doctrines in civil procedure such as permissive joinder or res judicata, and sometimes offered as the justification for a judge’s decision in a particular case.

JUDICIAL ESTOPPEL

an equitable remedy with which the Court may invoke, at its discretion, to prevent the perversions of the judicial process and protect its integrity by prohibiting parties from deliberately changing positions according to the exigencies of the moment. The doctrine of judicial estoppel rests on the principle that absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.

JUDICIAL IMMUNITY

the immunity of a judge from civil liability for any acts performed in the judge's official capacity. The immunity is absolute provided only that the judge is acting within his or her jurisdiction. The scope of the judge's jurisdiction must be construed broadly to protect the court's independence; therefore, the judge will not be deprived of immunity because the action taken was in error, was done maliciously, or was in excess of the judge's authority; rather, the judge will be subject to liabilty only when the action taken was in clear absence of all jurisdiction. Where the relief sought is injunctive or declaratory and not money damages, immunity is not provided under the Civil Rights Act of 1964 and state courts may be sued for such relief.

JUDICIAL NOTICE

the court's recognition of facts that can be confirmed by consulting sources of unquestioned accuracy, thus removing the burden of producing evidence to prove these facts. A court can admit facts that are common knowledge to an average, well-informed citizen.

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.

JUDICIAL REVIEW

the review by a court of law of some act, or failure to act, by a government official or entity, or by some other legally appointed person or organized body; the review of the decision of a trial court by an appellate court.

In a constitutional law context, judicial review expresses the concept first articulated in Marbury v Madison, 5 US (1 Cranch) 137 (1803) that it is "the province and the duty of the judicial department to say what the law is." Under this doctrine the US Supreme Court and the highest courts of every state have assumed the power and responsibility to decide the constitutionality of the acts of the legislative and executive branches of their respective jurisdictions.

JURISDICTION

1. power to hear and determine a case; may be established and described with reference to a particular subject or to parties in a particular category. In addition to power to adjudicate, a valid exercise of jurisdiction requires fair notice and opportunity for affected parties to be heard.

2. the geographic or political entity govened by a particular legal system or body of laws. The word "jurisdiction" is also used to refer to particular legal systems, as in "the law varies in different jurisdictions", and in the sense of territory (coupled with authority to reach conduct within the territory), as in "within the jurisdiction of X state".

APPELLATE JURISDICTION: the power vested in a superior tribunal to correct legal errors of inferior tribunals and to revise their judgments accordingly.

CONCURRENT JURISDICTION: equal jurisdiction; jurisdiction exercisable by different courts at the same time, over the same subject matter and within the same territory, so that litigants may, in the first intance, resort to either court.

DIVERSITY JURISDICTION: jurisdiction that federal courts have when the opposing parties are from different states

IN PERSONAM JURISDICTION: jurisdiction over the person of the defendant; necessary where the action is in personam.

SUBJECT MATTER JURISDICTION: the competency of the court to hear and determine a particular category of cases.

see ancillary jurisdiction; federal question jurisdiction; limited jurisdiction; original jurisdiction; pendent jurisdiction; territorial jurisdiction; territorial jurisdiction; title jurisdiction.

JURISDICTIONAL AMOUNT

the minimum value a lawsuit must have for certain courts to have jurisdiction to hear the case. The method of determining the jurisdictional amount may vary with the nature of the case; it may be the amount of damages claimed, money demanded, the value of property in disputed ownerhip, or the value of a claimed right. In some classes of federal cases, for example, a minimum amount of $10,000 must be in controversy to confer jurisdiction on the federal courts.

JURISPRUDENCE

1. the science of law; the study of the structure of legal systems, such as equity, and of the principles underlying that system;

2. a collective term denoting the course of judicial decision, ie, case law, as opposed to legislation;

3. sometimes a synonym for law.

JUROR

1. A person sworn as member of a jury;

2. Person selected for jury duty, but not yet chosen for a particular case.

JUSTICIABLE

Capable of being tried in a court of law or equity; Feasible for a court to carry out and enforce its decision, as opposed to having jurisdiction – the authority to hear a case. A court can have jurisdiction, but at the same time have a nonjusticiable issue before it.

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.

JUSTICIABLE CONTROVERSY a real controversy appropriate for judicial determination, as distinguished from a hypothetical dispute; a dispute that involves legal relations of parties how have real adverse interests, and upon whom judgment may effectively operate through a conclusive decree.

K

KANGAROO COURT

a court that has no legal authority and that disregards all the rights normally afforded to persons; its conclusions are not legally binding. This is a slang term referring to a court that is biased against a party and thus renders an unfair verdict or judgment.

L

LACHES

a doctrine providing a party an EQUITABLE DEFENSE (see defense) where long-neglected rights are sought to be enforced against him or her. Laches signifies an undue lapse of time in enforcing a right of action, and negligence in failing to act more promptly. It recognizes that on account of the delay the defendant's ability to defend may be unfairly impaired because witnesses or evidence may have become unavailable or been lost. The doctrine also recognizes that if the delay has led the adverse party to change his or her position as to the property or right in question, it is inequitable to allow the negligent delaying party to be preferred in his or her legal right. The consequent barring of the negligent party's action is a kind of equitable estoppel known as ESTOPPEL BY LACHES.

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.

LAW OF THE CASE

doctrine whereby courts will refuse to consider matters of law that have already been adjudicated by motion or appeal in the same cause; reflects the courts’ unwillingness to reopen issues already finally determined in a suit.

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

Compare collateral [COLLATERAL ESTOPPEL]; double jeopardy.

LAY WITNESS

any witness not testifying as an expert witness and who is thereby generally precluded from testifying in the form of an opinion. However, under federal rules a "lay witness" is able to testify in the form of an opinion or inference if the testimony is (a) rationally based on the perceptions of the witness, and (b) helpful to a clear understanding of his or her testimony or the determination of a fact in issue. The witness may be a LAY EXPERT WITNESS, meaning a person whose expertise or special competence derives from experience in a field of endeavor rather than from studies or diplomas.

LEAVE

permission obtained from a court to take some action that, without such permission, would not be allowable. This permission in some instances may come before or after the expiration of the period in which the action was to be taken. For instance, a trustee may need "leave of court" in order to spend trust corpus for the support of the trust beneficiary; an attorney will need "leave of court" in order to file papers after the time allowed for filing the papers has elapsed.

LEGAL FICTION

A fact presumed in law, regardless of its truth, for the purpose of justice or convenience.

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.

The term legal fiction commonly occurs in cases where adherence to the fiction is perceived as working an injustice. Thus, when the personal property has never been in the state where the owner is domiciled and it would clearly be unfair to tax the property, the court will dispense with the situs presumption as a mere legal fiction.

LEGISLATION

the act of giving or enacting laws; the power to make laws; the act of legislating; preparation and enactment of laws; the making of laws by express decree; the exercise of sovereign power.

LIQUIDATED DAMAGES

a stipulated contractual amount that the parties agree is a reasonable estimation of the damages owing to one in the event of a breach by the other.

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.

LITIGATION

a judicial contest aiming to determine and enforce legal rights.

See also action; case; suit; vexatious litigation.

M

MAGISTRATE

1. a public civil officer, invested with some part of the legislative, executive or judicial power.

2. in a narrower sense, the term includes only inferior judicial officers, such as justices of the peace.

UNITED STATES [FEDERAL] MAGISTRATE: appointed by US District Court judges, magistrates have powers that include the ability to hear and determine specified pretrial motions pending before a district court, to conduct hearings, including evidentiary hearings, and to submit proposed findings of facts and recommendations for disposition.

MALFEASANCE

The doing of an illegal and unlawful act; wrongdoing, especially a violation of the public trust by a public official.

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.

Compare misfeasance; nonfeasance.

MALICE

the state of mind that accompanies the intentional doing of a wrongful act without justification and in wanton or willful disregard of the plain likelihood that harm will result.

With respect to slander and libel, malice is the mental state that accompanies a false statement when the maker knows it to be false or when the maker recklessly disregards the truth or falsity of it. Tort liability may also attend the malicious disclosure of true but private facts.

In malicious prosecution, there is intent to institute a prosecution for a purpose other than bringing an offender to justice.

MANDAMUS

Lat.: we command. An extraordinary writ, issued from a court to an official, compelling performance of an act that the law recognizes as an absolute duty, as distinct from acts that may be at the official's discretion.

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

MANDATE

a judicial command;

1. an official mode of communicating the judgment of the appellate court to the lower court;

2. a bailment of something for the performance of some gratuitous service with respect to it by the bailee.

MANIFEST INJUSTICE

a plain error that impacts substantial rights and impairs the fundamental fairness of a proceeding.

MARSHAL

1. an officer of the peace, appointed by authority of a city or borough, to answer calls within the general duties of a constable or sheriff,

2. an officer in each federal district who performs the same duties as sheriffs do for states.

MASTER AND SERVANT

the relationship that develops from an express or implied employment contract between a master, or employer, and a servant, or employee. See agent; respondeat superior; servant.

MATERIAL

necessary, meaningful, pertinent to a given matter. In contract law, a material breach excuses further performance by the aggrieved party and can give rise to an action for breach of contract.

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.

MEDIATION

a method of settling disputes outside of a court setting; the imposition of a neutral THIRD PARTY (see party) to act as a link between the parties; similar to arbitration and conciliation. See also alternative dispute resolution. Compare negotiation.

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.

MEMORANDUM

1. an informal record;

2. a brief note, in writing, of some transaction;

3. an outline of an intended instrument;

4. an instrument written in concise summary

MEMORANDUM OF LAW: an argument by an advocate in support of his or her position; like a brief but less formal.

OFFICE MEMORANDUM: informal discussion of the merits of a matter pending in a lawyer's office; usually written by a law clerk or junior associate for a senior associate or partner.

MERIT

the various elements that qualify plaintiff's right to the relief sought, or defendant's right to prevail in his defense.

MESNE

intermediate; between two extremes.

MESNE LORD in English law, a lord who held lands under authority of the King and who then gave others inferior in class to himself the right to use those lands, and thus became a lord to those grantees. See feoffment; servitudes MESNE PROFITS profits obtained from the land by one without legal right to the land and who thus curtails the rights of the owner

MINISTERIAL ACT

an act performed according to explicit directions (often embodied in a statute) by a subordinate official, allowing no judgment or discretion on the part of that official.

see mandamus

MINUTES

a transcription or other written record of judicial proceedings. While the minutes kept by the judge are neither a memorial of the judgment nor a legally required record, they are legal evidence of the judgment, and as such they may serve as the foundation of the correction of errors.

compare transcript

MISCARRIAGE OF JUSTICE

Damage to the rights of one party to an action that results from errors made by the court during trial and that is sufficiently substantial to require reversal. Where the appellate court is seriously doubtful that without committed errors the result in the case would have been the same, the errors may require a reversal on the grounds of a miscarriage of justice.

See plain error.

MISCONDUCT

corrupt misbehavior by an officer in the exercise of the duties of the office or while acting under color of the office; includes any act or omission in breach of a duty of public concern by one who has accepted public office.

See bribery

MISTRIAL

a trial that has been terminated and declared void prior to the jury's returning a verdict (or the judge's declaring his or her verdict in a nonjury trial) because of some extraordinary circumstance (such as death or illness of a necessary juror or of an attorney), or because of some fundamental error prejudicial to the defendant that cannot be cured by appropriate instructions on to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation), or most commonly because of the jury's inability to reach a verdict because it is hopelessly deadlocked in its deliberations (hung jury). Mistrial does not result in a judgment for any party, but merely indicates a failure of trial.

Compare double jeopardy.

MOOT

A case that seeks to determine an abstract question that does not rest upon existing facts or rights, or that seeks a judgment in a pretended controversy, or one that seeks a decision about a right before it has actually been asserted or contested, or a judgment upon some matter that, when rendered for any cause, cannot have any practical effect upon the existing controversy. See advisory opinion.

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.

MOTION

an application to the court requesting an order in favor of the applicant. Motions are generally made in reference to a pending action and may be addressed to a matter within the discretion of the judge, or may concern a point of law. Motions may be made orally or, more formally, in writing.

MOTION FOR JUDGMENT: a motion admitting an agreed-upon statement of facts that leaves the dominant issue in the case as one of a matter of law, thereby relegating the issue for a determination by the court rather than by a jury.

See judgment [JUDGMENT NOT-WITHSTANDING THE VERDICT]; summary judgment.

MOTION IN ARREST OF JUDGMENT: application made by defendant to withhold judgment after verdict. The motion, like a demurrer, must point out some fatal defect arising as a matter of law from the record.

MOTION IN ERROR: same as a writ of error, except no notice to opponent is required, because both parties are before the court when a motion in error is made.

MOTION IN LIMINE: a motion used to exclude reference to anticipated evidence claimed to be objectionable until the admissibility of the questionable evidence can be determined either before or during the trial by presenting the court, out of the presence of the jury, offers and objections to the evidence. The motion seeks to avoid injection into trial of irrelevant, inadmissible, or prejudicial evidence at any point, including the voir dire examinations, opening statements, and direct and cross-examinations, and therefore prevents mistrials based on evidentiary irregularities.

MOTION TO SET ASIDE JUDGMENT: exactly like MOTION IN ARREST OF JUDGMENT (above), except that while a motion to arrest must be made during term of court which renders judgment, a motion to set aside judgment can be made at any time within the applicable statute of limitations. Both motions must be based on a legal defect appearing on the face of the record.

MOTION IN LIMINE

a motion used to exclude reference to anticipated evidence claimed to be objectionable until the admissibility of the questionable evidence can be determined either before or during the trial by presenting the court, out of the presence of the jury, offers and objections to the evidence. The motion seeks to avoid injection into trial of irrelevant, inadmissible, or prejudicial evidence at any point, including the voir dire examinations, opening statements, and direct and cross-examinations, and therefore prevents mistrials based on evidentiary irregularities.

MOVANT

the moving party; application for an order by way of motion before the court.

N

NEGATIVE PREGNANT

in pleading, a denial that implies an affirmation of a substantial fact and hence is beneficial to the opponent. Thus, when only a qualification or modification is denied while the fact itself remains undenied, the denial is pregnant with an affirmation of that fact.

LITERAL DENIAL if the complaint alleges that the defendant was at the bar on July 5th and the defendant denies that he was at the bar on July 5th, this would be an admission that he may have been at the bar on July 3rd or July 7th (or any other date).

CONJUNCTIVE DENIAL if the complaint alleges that the defendant injured the plaintiff by kicking and slapping and punching and the defendant denies that he was kicking and slapping and punching, this would constitute an admission that he was guilty but in a combination less than all three. Instead, the defendant should have responded in the disjunctive by denying that he was kicking or slapping or punching.

NOTARY PUBLIC

a public officer authorized to administer oaths, to attest to and certify certain types of documents, to take depositions, and to perform certain acts in commercial matters. The seal of a notary public authenticates a document. In some jurisdictions an attorney admitted to practice within the jurisdiction can act as a notary public. In many jurisdictions private persons can apply for and receive authority to act as notaries to witness documents. Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016

NOTICE

information concerning a fact actually communicated to a person by an authorized person, or actually derived by him or her from a proper source. Notice to a defendant of a lawsuit that has been instituted against him or her or of an action in which he or she may have an interest to defend is accomplished by service of process on him or her.

ACTUAL NOTICE direct positive knowledge of fact in question or information sufficient to put a prudent person on inquiry as to such fact. "Actual notice" embraces those things of which one has express information and which reasonably diligent inquiry would have disclosed.

AVERMENT OF NOTICE a statement in the pleadings declaring that a party to an action has received proper notice thereof

CONSTRUCTIVE NOTICE notice presumed by law to have been acquired; often accomplished by posting of notices or by mailing of notification to the defendant if he or she cannot be personally served with process.

EXAMPLE:

Neil sues Quincy for a debt incurred when Neil painted his house. One requirement of filing the suit is that Neil personally notify Quincy of the court action. After several unsuccessful attempts to meet Quincy and physically hand him a copy of the complaint, Neil satisfies the notice requirement by sending a copy to Quincy's business and hoeme addresses and by tacking a copy on Quincy's door. Quincy is considered to have received constructive notice of the action whether or not he actually learned of it.

IMPLIED NOTICE notice that may be inferred from facts that a reasonable person had means of knowing but failed to inquire further. A person has no right to avoid information and then say that he or she had no notice. "Implied notice" is distinguished from CONSTRUCTIVE NOTICE (above), in that the latter rests upon strictly legal presumptions whereas the former is a form of ACTUAL NOTICE (above) arising from inferences of fact.

EXAMPLE:

Ronit plans to buy an apartment complex from Maru. Upon touring the property, Ronit observes that all the apartments are occupied. Upon purchasing the property, he is shocked to find out that the tenants have long-term leases. His failure to follow up on the information that the units were occupied will prevent any claim that he had no notice that existing tenants came with the property.

INDIRECT NOTICE see IMPLIED NOTICE (above)

INQUIRY NOTICE with respect to one who claims to have been a bona fide purchaser without notice of adverse claims to the purchased property, information from whatever source derived that would create in an ordinary mind apprehension about the actual state of ownership of the property and that would prompt a person of average prudence to make inquiry.

JUDICIAL NOTICE see judicial notice

LEGAL NOTICE such notice as the law requires to be given. Legal notice may be notice that the law implies because of knowledge of the actual facts (see ACTUAL NOTICE, above), because of specific avoidance of the available knowledge (see IMPLIED NOTICE, above), or because of the presumption that knowledge has been acquired (see CONSTRUCTIVE NOTICE). Refers also to the act of advertising by publication in a legal or general circulation newspaper. Publication includes such notices as the proposal formation or settlement of a class action suit, or a person's legal change of name.

NOTICE BY PUBLICATION method of bringing a lawsuit to the attention of parties who may have an interest therein by publishing notification of it in a newspaper of general circulation; permissible only where specifically allowed by statute and generally limited to actions involving land, estates or status

PERSONAL NOTICE communication of notice orally or in writing, according to the circumstances, directly to the person affected or to be charged.

RACE NOTICE see recording acts

NUGATORY

void; invalid; for example, judicial proceedings in courts that lack jurisdiction.

Compare voidable.

NUNC PRO TUNC

Lat.: now for then.

NUNC PRO TUNC ORDER an order used by the courts to correct the record usually after a proceeding has been concluded. It supplements a prior judgment or order in any matter over which the court originally had jurisdiction.

O

OATH

a declaration of the truth of a statement.

See affidavit; affirmation. See also perjury.

OBITER DICTA

Passing or incidental statements. Statements made or decisions reached in a court opinion that were not necessary to disposition of the case; plural of obiter dictum. See dictum.

OBJECTION

a procedure whereby a party asserts that a particular witness, line of questioning, piece of evidence, or other matter is improper and should not be continued, and asks the court to rule on its impropriety or illegality. A timely objection on the record, stating the grounds thereof, must be made to evidence rulings admitting or excluding evidence if the ruling is to be challenged later on appeal. This is necessary to preserve the point on appeal. As to other rulings or orders entered by a trial court, the failure to object will not prejudice a party's right to challenge on appeal the action taken if he or she had no opportunity to object. See also challenge; motion [MOTION IN LIMINE].

OBSTRUCTION OF JUSTICE

The impeding of those who seek justice in a court, or of those who have duties or powers of administering justice therein; includes attempting to influence, intimidate or impede any juror, witness or officer in any court regarding the discharge of his duty.

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.

Statutes addressing this subject may reach beyond interference with the judicial process and also proscribe interference with police officers and other such administrative officials.

See embracery; misprision of felony.

OFFICER

1. a person invested with the authority of a particular position or office; may be public or private in that the occupied office may or may not be invested with a public trust.

2. corporate personnel appointed by the directors and charged with the duty of managing the day-to-day affairs of the corporation.

see de facto [DEFACTO OFFICER]

OMISSION

a failure to do something; something left undone; the neglect to perform what the law requires. Omission will not give rise to liability unless there is a duty to act.

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.

compare actus reus

OPINION

the reason given for a court's judgment, finding or conclusion, as opposed to the decision, which is the judgment itself. When the court is composed of more than one judge or justice, and more than one opinion has been written in a given case, the opinion that expresses the view of the majority of the judges presiding, and thus announces the decision of the court, is referred to as the MAJORITY OPINION.

CONCURRING OPINION: a view basically in accord with the majority opinion, but written to express a somewhat different perception of the issues, to illuminate a particular judge's reasoning or to expound a principle that he or she holds in high esteem. An opinion that concurs "in the result only" is one that rejects the reasoning and conclusions concerning the law or the facts on the basis of which the majority reached its decision, and that expresses a different view that has coincidentally led the judge or justice to recommend the same disposition as was agreed upon by the majority.

DISSENTING OPINION: a view that disagrees with the disposition made of the case by the court, with the facts or law on the basis of which the court arrived at its decision, or the principles of law announced by the court in deciding the case. Opinions may also be written that express a dissent "in part".

EXPERT OPINION: see expert witness.

LAY OPINION: see lay witness.

MAJORITY OPINION: one that is joined by a majority of the court. Generally known as "the opinion".

PER CURIAM OPINION: an opinion "by the court", which expresses its decision in the case without identifying the author.

PLURALITY OPINION: one agreed to by less than a majority of the court but the result of which is agreed to by the majority. A plurality opinion carries less weight under stare decisis than does a MAJORITY OPINION (above).

Opinion also refers to the conclusions reached by a witness that are drawn from his or her observations of the facts.

ORAL ARGUMENT

legal arguments given in court proceedings by attorneys in order to persuade the court to decide a legal issue in favor of their client.

ORDER

1. a direction of the court on a matter incident to the main proceeding that adjudicates a preliminary point or directs some step in the proceeding. If an order closes the matter and precludes future hearing and investigation, it is a FINAL ORDER; but an order that does not completely dispose of the subject matter of the controversy and settle the rights of the parties is not final. A final order is an appealable order.

See interlocutory.

2. In the securities trade, an instruction to buy or sell a specified security under specified conditions. The most common type of order is a MARKET ORDER which is specified as to volume with price determined by the market level at the time of sale. Instructions can include a limit as to price to be paid or received (LIMIT ORDER) and a limit as to the time the bid or offer is available. If the order is for the day only, it is a DAY ORDER; if it is GOOD UNTIL CANCELED, it is a standing order called a GTC.

ORDER PAPER: see order paper.

ORIGINAL JURISDICTION

authority to consider and decide cases in the first instance, as distinguished from APPELLATE JURISDICTION (see jurisdiction), which is the authority to review a decision or judgment of an inferior tribunal.

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.

OVERRULE

1. to overturn or make void the holding (decision) of a prior case; generally accomplished in a different and subsequent case, when a court renders a decision that is substantially opposite the decision made in the prior case. A decision can be overruled only by the same court or a higher court within the same jurisdiction. The overruling of a decision generally destroys its value as precedent. Compare reversal.

2. to deny a motion, objection or other point raised to the court.

P

PANEL

the list of persons who have been summoned for jury duty and from whom a jury may be chosen. To IMPANEL a jury means to summon and select a jury.

Panel also refers to the group of appellate judges who will hear an appeal. Typically, intermediate appellate courts consist of several judges who sit in panels of three.

PARTY

1. in a judicial proceeding, a litigant (plaintiff or defendant); a person directly interested in the subject matter of a case; one who would assert a claim, make a defense, control proceedings, examine witnesses or appeal from the judgment.

2. a person or entity that enters into a contract, lease, deed, etc.

AGGRIEVED PARTY: see aggrieved party

INDISPENSABLE PARTY: one whose involvement in the subject matter of a controversy is such that his or her interest will be affected, or adjudication of the issues as well as the fashioning of an effective remedy. A suit cannot in equity and good conscience proceed without one who is regarded as an indispensable party.

EXAMPLE:

Ball Corporation is the largest maker of a chemically based ceiling tile, although other smaller companies also produce the product. The tiles were installed in school buildings, and the chemical in them has had an adverse effect on the children. it could not be determined which company's tiles had been used, but only the smaller companies are named in a suit by the children. Ball is never mentioned. The other companies want Ball named as an indispensable party because, by numbers alone, it is most likely that Ball's tiles were used in schools. Ball also wants to be named because it fears that a judgment against the other companies will be used against it, even thoug hit did not have an opportunity to participate in the litigation, and because otherwise a favorable outcome for the other companies would not prevent Ball from being sued later for the same thing.

NECESSARY PARTY: one whose interests will be affected by the suit or without whom complete relief cannot be granted, but who will not be joined if doing so would deprive the court of jurisdiction in the case.

NOMINAL PARTY: party appearing on the record not because he or she has any real interest in the case, but because technical rules of pleading require his or her presence in the record.

POLITICAL PARTY: a group of people united in pursuit of common political goals, specifically including the election of their members to public office.

PREVAILING PARTY: see prevailing party

PROPER PARTY: one who has an interest in the subject matter of the litigation, but without whom a substantial decree may nevertheless issue, though such decree will not settle all questions in the controversy with respect to such party.

REAL PARTY IN INTEREST: see real party in interest.

SECONDARY PARTY: see secondary party.

THIRD PARTY: someone other than the parties directly involved in the action or transaction; an outsider with no legal interest in the matter.

PAUPER

indigent; one who is unable to provide his or her own support and is otherwise without financial resources. Under the Equal Protection Clause to the United States Constitution, indigents and paupers may be excused from paying certain costs and other legal fees so that they may have equal accesss to the courts.

See in forma pauperis; indigent.

PECUNIARY

consisting of money or that which can be valued in money. A PECUNIARY LOSS is a loss of money or one that can be translated into economic loss.

PENDENT JURISDICTION

federal court doctrine whereby a plaintiff, notwithstanding the limitations of federal question jurisdiction, may rely upon both federal and nonfederal grounds for the relief sought in a complaint. Thus, where the plaintiff joins a federal claim with a state law claim based on closely related or identical conduct of the defendant, the federal courts have jurisdiction to hear and determine the state law claims as well as those arising under federal law. See abstention; jurisdiction [PENDENT JURISDICTION].

Compare ancillary jurisdiction.

PER CURIAM

Lat.: by the court. See opinion [PER CURIAM OPINION].

PER DIEM

Lat.: by the day

1. pay for a day’s services
2. Government and private business travel allowances are often allocated on a per diem basis

PEREMPTORY

Absolute, final, not admitting of question or appeal. A peremptory trial date may be established by the court on its own motion or at the request of a party to insure timely disposition of the case. In selection of a jury each side has a right to a fixed number of PEREMPTORY CHALLENGES to the seating of potential jurors, which means that counsel may reject a certain number of potential jurors for any reason, or for no reason.

See challenge [PEREMPTORY CHALLENGE]; peremptory writ.

PERJURY

criminal offense of making false statements under oath. In common law, only a willful and corrupt sworn statement made without sincere belief in its truth, and made in a judicial proceeding regarding a material matter, was perjury. Today, statutes have broadened the offense so that in some jurisdictions any false swearing in a legal instrument or legal setting is perjury. See also subornation of perjury.

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.

PETITION

in equity procedure, the functional equivalent of a complaint at law. It is a written application addressed to a court or judge, stating facts and circumstances relied upon as a cause for judicial action, and containing a prayer (formal request) for relief.

PETITIONER

one who presents a petition to a court or other body either to institute an equity proceeding or to take an appeal from a judgment. The adverse party is called the respondent.

PLAIN ERROR

rule applicable to appellate courts that requires the reversal of a conviction and the award of a new trial where an obvious error in the trial proceedings affecting the fundamental right of the accused to a fair trial was not objected to at the time it occurred and went uncorrected by the trial court.

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.

Compare harmless error; miscarriage of justice.

PLAINTIFF IN ERROR

one who appeals from a judgment against him or her in a lower court, whether he or she was plaintiff or defendant in that court.

PLEADINGS

statements, in logical and legal form, of the facts that constitute plaintiff's cause of action and defendant's ground of defense. Pleadings are other allegations by the parties affirming or denying certain matters of fact, or other statements in support or derogation of certain principles of law, which are intended to describe to the court or jury the real matter in dispute.

AFFIRMATIVE PLEADINGS: any defensive pleadings that affirmatively allege the existence of facts, rather than merely deny the existence of the facts alleged by the plaintiff. For instance, if a plaintiff alleges the nonpayment of a promissory note, the defendant may deny that the note exists, or he may affirmatively plead that the note has been paid.

AMENDED PLEADINGS: pleadings submitted to the court later in time than the original pleadings and which correct the original pleadings or arguments therein, such as by the addition of a cause of action or a defense

CODE PLEADINGS: see code pleading

DEFECTIVE PLEADING: see defective pleading

PLEADINGS IN THE ALTERNATIVE: see alternative pleading

RESPONSIVE PLEADINGS: answers that either admit or deny the allegations contained in the complaint, and thus respond to them, rather than raise grounds upon which the complaint should be dismissed, such as the expiration of the Statute of Limitations.

SUPPLEMENTAL PLEADINGS: pleadings that assert a claim or a defense based upon events occurring after the filing of the original pleading which they supplement.

PLENARY

full or unqualified.

In judicial proceedings, denotes a complete, formally pleaded suit wherein a petition or complaint is filed by one or more persons against one or more other persons who file an answer or a response.

A PLENARY ACTION is one in which a full trial (or PLENARY HEARING) is had on the merits of a complaint following full discovery, as distinguished from a summary proceeding.

See de novo.

PRECEDENT

previously decided case recognized as authority for the disposition of future cases. In common law, precedents were regarded as the major source of law. A precedent may involve a novel question of common law or it may involve an interpretation of a statute. To the extent that future cases rely upon the precedent or distinguish it from themselves without disapproving of it, the case will serve as a precedent for future cases under the doctrine of stare decisis.

PREJUDICE

bias; a leaning toward one party in a lawsuit; a prejudging of a case.

see dismissal [DISMISSAL WITH PREJUDICE; DISMISSAL WITHOUT PREJUDICE].

PREPONDERANCE OF EVIDENCE

general standard of proof in civil cases. The phrase refers to the degree of proof that will lead the trier of fact (see fact finder) to find that the existence of the fact in issue is more probable than not.

see clear and convincing evidence

PRESUMPTION

an assumption of fact resulting from a rule of law that requires such a fact to be assumed from another fact or set of facts. The term indicates that the law accords to a given evidentiary fact heavy enough weight to require the production of contrary evidence to overcome the assumption thereby established. This rule of evidence thus has the effect of shifting either the burden of proof or the burden of producing evidence.

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

PRETRIAL CONFERENCE

in civil procedure, a conference held after the pleadings have been filed and before the trial begins, for the purpose of bringing the parties together to outline discovery proceedings, and define the issues to be tried. Courts often use the pretrial conference as an opportunity to encourage settlement.

In criminal procedure, a pretrial conference is also used to review evidentiary issues prior to trial, but because of the privilege against self-incrimination and the presumption of innocence, it is not as comprehensive or useful to the parties as in civil cases.

PREVAILING PARTY

the party in a lawsuit who has successfully obtained a judgment in his or her own favor. Federal law allows for the awarding of attorney’s fees to the prevailing party, other than the United States, in proceedings in vindication of civil rights.

Courts have broadened the interpretation of “prevailing party” in such a context to include preliminary relief or relief obtained as the result of a consent decree, or settlement, and the party need only prevail on the merits of some of the claims. The plaintiff’s lawsuit must be found to be causally linked to the achievement of relief obtained, and the defendant must not have acted gratuitously in response to a frivolous or legally insignificant claim.

PRIMA FACIE

Lat.: at first view, on its face. Not requiring further support to establish existence, validity, credibility.

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.

PRINCIPAL

most important.

1. in criminal law, one who commits an offense, or an accomplice actually or constructively present during commission of the offense.

2. in commercial law, the amount received in loan, or the amount upon which interest is charged;

3. in the law of agency, one who has permitted or engaged another to act for his or her benefit, in accordance with his or her direction and subject to his or her control.

4. chief, superintendent. compare principle.

DISCLOSED PRINCIPAL one whose identity is known to the party dealing with the agent

PARTIALLY DISCLOSED PRINCIPAL one whose identity is not known, but whose existence is known, to the party with whom the agent deals

UNDISCLOSED PRINCIPAL one of whose existence the party dealing with the agent is unaware - i.e., the third party does not know he or she is dealing with an agent.

EXAMPLE:

Tara buys property for Sphinx Mall Company. Sphinx desires to be an undisclosed principal because it believes that land prices would skyrocket if sellers knew the identiy of the real purchaser.

PRIVILEGE

1. a particular benefit enjoyed by a person, company or class beyond the advantages of other citizens;

2. an exceptional exemption, or an immunity held beyond the course of the law;

3. an exemption from some burden or attendance, with which certain persons are indulged, from a supposition of the law that the public offices or duties require so much time and care that, without this indulgence, their duties could not be performed to the advantage that the public good demands. See executive privilege; informer's privilege; privileged communication.

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.

PRIVILEGED COMMUNICATIONS

Communication that occurs in a setting of legal or other recognized professional confidentiality. Designating a communication as privileged allows the speakers to resist legal process to disclose its contents. When communications are termed privileged, a breach by one party of the concurrent confidentiality can result in a civil suit in tort by the other party to the communication. Communications that are privileged may include:

(1) communications in the sanctity of the marital relationship;
(2) communications between physicians and their patients;
(3) communications of psychological counselors and their clients;
(4) priest-and-penitent communications;
(5) communications between attorney and client; and
(6) in some jurisdictions, communications between journalists and their sources.

See attorney-client privilege, journalist’s privilege; marital communications privileges; physician-patient privilege (including PSYCHOTHERAPIST-PATIENT PRIVILEGE); priest-penitent privilege; rape crisis counselor privilege. See also informer’s privilege; self-incrimination; privilege against.

ATTORNEY-CLIENT PRIVILEGE an evidentiary privilege protecting the confidential communications between a client and his or her attorney from disclosure to any other party; can be waived by the client but not by the attorney

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.

PRIVY

a person connected with another or having mutual interest with him or her in the same action or thing, by contract or otherwise

PRO BONO PUBLICO

Lat.: for the public good or welfare. When an attorney takes a case without compensation to advance a social cause, or to fill a perceived social need to offer legal representation to the poor, the attorney represents the party pro bono publico. The phrase pro bono is sometimes used.

PROCEEDING

1. the succession of events in the process of judicial action;

2. the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them; the mode of deciding them, of opposing and of executing judgments.

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 allowing the judgment to remain intact.

see collateral estoppel

INFORMAL PROCEEDING: see informal proceeding SUMMARY PROCEEDING: see summary proceeding

PROCESS SERVICE

delivery of a pleading, notice or other paper in a suit, to the opposite party, to charge that party with receipt of it and subject him or her to its legal effect; communication of the substance of the process to the defendant, either by actual delivery or by other methods, whereby defendant is furnished with reasonable notice of the proceedings against him or her, to afford defendant the opportunity to appear and be heard.

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.

PERSONAL SERVICE: actual delivery to the party to be served.

SERVICE BY MAIL: may be permitted either by court rule or, under unusual circumstances, as the court may authorize.

SERVICE BY PUBLICATION: CONSTRUCTIVE SERVICE accomplished by publishing the notice in a newspaper designated by the court, and in some jurisdictions, by mailing that newspaper to the last-known address of the party.

SUBSTITUTED SERVICE: constructive service accomplished by service to a recognized representative or agent of the party to be served.

PRO HAC VICE

Lat.: for this turn; for this one particular occasion.

The allowance of that which under ordinary circumstances is not permitted. Usually the term is used to describe the permission granted an out-of-state lawyer to appear in a particular case with the same standing as a local attorney admitted to practice in the jurisdiction.

PROLIXITY

any unnecessary language or facts in pleadings or in evidence.

PRO PER

Lat.: in propria persona ("for oneself") and written in pro per.

see pro se

PRO SE

Lat.: for himself; in one's own behalf. One appears pro se in a legal action when one represents oneself without aid of counsel.

see pro per.

PROSECUTION

1. the act of pursuing a lawsuit or criminal trial;

2. the party initiating a criminal suit, ie, the state. Where the civil litigant, or the state in a criminal trial, fails to move the case towards final resolution or trial as required by the court schedule, the matter may be dismissed for WANT OF PROSECUTION or for FAILURE TO PROSECUTE.

see malicious prosecution.

PROTECTIVE ORDER

any order issued for the purpose of protecting a party from some abuse of the legal system. Under federal rules of civil procedure the court may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. The rule specifically mentions various discovery matters, including the time, place, and subject matter of discovery, and the protection of trade secrets. Under federal rules of criminal procedure the court is specifically authorized to limit discovery in criminal cases as may be appropriate.

PUBLIC OFFICIAL

any elected or appointed person holding a public office and having duties relating to the sovereign powers of government. The term does not apply to public employees having purely ministerial duties.

Q

QUASH

to annul, overthrow or vacate by judicial decision.

QUASI

Lat.: as it were, so to speak; about; almost, like.

QUASI CONTRACT

one that, unlike a true contract, is not based on the apparent intention of the parties to undertake the performances in question, but is an obligation created by law for reasons of justice and fairness. The doctrine of quasi contract is based upon the principle that a party must pay for a benefit he or she desired and received under circumstances that render it inequitable for him or her to retain it without making compensation.

see quantum meruit; unjust enrichment

EXAMPLE:

A car owner brings his car in for brake repairs. The mechanic fixes the brakes and in doing so he also fixes a separate part of the axle that has a direct relationship to the car’s ability to brake correctly. Although the axle repair was not specifically contracted for, a quasi contract is implied for which the owner must pay the mechanic.

QUASI CORPORATION

see corporation [QUASI CORPORATION]

QUASI CRIMINAL

describes a proceeding that, though not actually a criminal prosecution, is sufficiently similar in terms of the substantial sanction (civil fine, loss of employment, loss of license, suspension from school, etc.) or the stigma attached to warrant some of the special procedural safeguards of a criminal proceeding.

QUASI IN REM

describes proceedings that are not purely in rem but that are brought against the defendant personally, although the real object is to deal with particular property; refers to actions for money damages begun by attachment, garnishment or other seizure of property, where the court has no jurisdiction over the defendant but has jurisdiction over a thing belonging to the defendant or over a person who is indebted or under a duty to the defendant.

QUESTIONS OF LAW

disputed legal contentions that are traditionally left for the judge to decide. The occurrence or nonoccurrence of an event is a question of fact; its legal significance is a question of law.

EXAMPLE:

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

QUID PRO QUO

Lat.: something for something. In some legal contexts, synonymous with consideration; sometimes referred to as the quid and always indicating that which a party receives or is promised in return for something he or she promises, gives or does.

QUI TAM

Lat.: who as well. A qui tam action is a lawsuit under a statute, which gives to the plaintiff bringing the action a part of the penalty recovered and the balance to the state. The plaintiff describes himself as suing for the state as well as for himself.

QUORUM

the number of members of any body who must necessarily be present in order to transact the business of that body.

QUO WARRANTO

Lat.: by what right or authority. An ancient common law writ that was issued out of chancery on behalf of the king against one who claimed or usurped an office, franchise or liberty, to inquire by what authority he asserted such a right, in order that the legitimacy of the assertion might be determined. Formerly a criminal method of prosecution, it has long since lost its criminal character and is now a civil proceeding, expressly recognized by statute, and usually employed for trying the title to a corporate franchise or to a corporation or public office.

Quo warranto proceedings may be brought against corporations where the company has abused or failed for a long time to exercise its franchise. In the case of an official, it may be brought to cause him or her to forfeit an office for misconduct. If in these cases a quo warranto proceeding determines that a company no longer properly holds a franchise or that an officer no longer properly holds his or her office, it will oust the wrongdoer from enjoying the franchise or office. The purpose of the writ is not to prevent an improper exercise of power lawfully possessed; its purpose is to prevent an official, corporation or person acting as such from usurping a power that they do not have.

R

RATIFICATION

to sanction or affirm confirmation of the act of another regardless of whether the act was originally authorized. The process by which society approves a fundamental change in the law. Congress may, by a two-thirds vote, propose a constitutional amendment or call for a convention to propose amendments to the Constitution. Any proposed amendment must then be ratified either by the legislature or by conventions in three-fourths of the states before they become effective.

RATIONAL BASIS

A method of constitutional analysis under the equal protection clause used to determine whether a challenged law bears a reasonable relationship to the attainment of some legitimate governmental objective. See fundamental right.

REBUTTAL EVIDENCE

any evidence that refutes, counteracts or explains away evidence given by a witness or an adverse party. Rebuttal evidence is offered to contradict other evidence or to rebut a presumption of fact.

RECALL

a method of removing a public official from office by submitting to popular vote the issue of whether the official should continue in office.

In insurance law, the invalidation of an insurance policy before it becomes effective.

Under the federal Consumer Safety Act, a recall is the process by which a manufacturer is required to replace or repair potentially defective products in order to bring them into conformity with consumer product safety rules.

RECORD

1. to preserve in writing, printing, on film, tape, etc.;

2. a precise history of a suit from beginning to end, including the conclusions of law thereon, drawn by the proper officer to perpetuate the exact facts.

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.

The RECORD ON APPEAL consists of those items introduced in evidence in the lower court, as well as compilation of pleadings, motions, briefs and other papers filed in the proceeding in the inferior court.

3. in real property law, to enter in writing in a repository maintained as a public record any mortgage, sale of land or other interest affecting real property located within the jurisdiction of the government entity maintaining the public record.

see criminal record; of record; recording acts

RECUSAL

disqualification of a judge, jury or administrative officer for prejudice or interest in the subject matter. A judge may be recused as a result of objection by either party, or may voluntarily disqualify himself or herself if he or she fears that he or she may not act impartially, or that some circumstance will lead to a suspicion of bias.

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.

In most states, a judge may also be disqualified because he is related within certain degrees to a party litigant.

REDRESS

relief or remedy. It may be damages or equitable relief.

See recovery; restitution.

RED HERRING

an issue, whether legal or factual, raised in a case or law school exam that may be important generally but that has no relevant importance to the question at hand.

Also, a preliminary prospectus, concerning a future stock issue, distributed during the WAITING PERIOD – the period from the filing date to the effective date of a registration statement.

REFERENDUM

referring of legislative acts to the voters for final approval or rejection

REGULATIONS

Rules or other directives issued by administrative agencies to implement laws. These agencies must have specific authorization to issue directives and must usually adhere to prescribed procedures and conditions.

See Administrative Procedure Act [APA].

REHEARING

a retrial, a new hearing and a new consideration of the case by the court (or other body) in which the suit was originally heard, and upon the pleadings and depositions already in the case.

REINSTATE

restore to a former state, authority, station, or status from which one has been removed; as applied to insurance, to restore all benefits accruing under a policy. As applied to employment practices, if the former position no longer exists or is occupied by another with senior service, an obligation to reinstate may be satisfied by placing the person on a preferential employment list rather than by restoring the person to active employment.

RELATION BACK

the principle that an act done at a later time is deemed by law to have occurred at a prior time, often for purposes of the statute of limitations or rules of procedure permitting amendment of pleadings.

RELATOR

• The real party in interest in whose behalf certain suits are brought by the state or the Attorney General when the right to sue resides solely in that official;

• the real party in interest in an ex rel. suit; also

• a person in whose behalf certain writs are issued, such as informations in the nature of quo warranto.

Thus, a habeas corpus action is styled “United States ex rel. [defendant] vs [warden].”

RELEASE

a written document or the act of writing by which some claim, right or interest is given up to the person against whom the claim, right or interest could have been enforced.

In the law of property, the holder of a fee simple may convey to another a term of years and then subsequently release his or her reversionary interest [LEASE AND RELEASE] to the possessor of the term of years.

RELIEF

the redress or assistance awarded to a complainant, by the court, especially a court of equity, including such remedies as specific performance, injunction, rescission of a contract, etc.

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.

The term generally does not comprehend an award of money damages. Thus the term AFFIRMATIVE RELIEF is often used to indicate that the gist of relief is protection from furture harm rather than compensation for past injury.

REMAND

to send back, as for further deliberation; to send back to the tribunal (or body) from which the matter was appealed or moved. When a judgment is reversed, the appellate court usually remands the matter for a new trial to be carried out consistent with the principles announced by the appellate court in its opinion ordering the remand.

REMEDY

the means employed to enforce or redress an injury. The most common remedy at law consists of money damages.

EXTRAJUDICIAL REMEDY: see extrajudicial [EXTRAJUDICIAL REMEDY]

EXTRAORDINARY REMEDY: a remedy not usually available in an action at law or in equity, and ordinarily not employed unless the evidence clearly indicates that such a remedy is necessary to preserve the rights of the party. Examples include the appointment of a receiver, a decree of specific performance, the issuing of a writ of mandamus or writ of prohibition or of an injunction.

PROVISIONAL REMEDY: one provided pursuant to a proceeding incidental to and in connection with a regular action, invoked while the primary action is pending, to assure that the claimant's rights will be preserved or that he or she will not suffer irreparable injury. Its connection to the primary action is termed collateral. Examples include attachment, temoprary restaining orders, preliminary injunctions, appointment of receivers.

REMOVAL

1. a change in place or position, as the removal of a proceeding to another court, especially from state to federal court;

2. the process by which a public official is stripped of office for cause.

RENDER

to officially announce a decision, either orally in open court or by memorandum filed with the clerk.

REPEAL

Abrogation or annulling of a previous law by the enactment of a subsequent statute, which either expressly declares that the former law shall be revoked, or contains provisions so irreconcilable with those of the earlier law as to abrogate the earlier law by necessary implication.

Compare amend.

REPLEVIN

a legal form of action ordinarily employed only to recover possession of specific personal property unlawfully withheld from the plaintiff, plus damages for its detention. In this primarily possessory action, the issues ordinarily are limited to the plaintiff’s title to the goods.

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.

REPLY

a defensive pleading by one who has made a complaint; the sole purpose of reply is to interpose a defense to new matter pleaded in the answer. In modern practice a reply is an extraordinary pleading and is not permitted except to respond to a counterclaim or by leave of court to an answer or third-party answer.

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.

REPORTS

Official published court or administrative agency decisions that are collectively grouped by date and court of issuance into bound volumes thus comprising the case law for that jurisdiction. The reports (also known as reporters) have headnotes written by the publisher.

Some examples of reports are found in the Table of Abbreviations.

The United States Supreme Court has three reporters: United States Reports, Supreme Court Reporter, and Lawyer’s Edition Supreme Court Reports.

REPRESENTATIVE

agent; one who acts for another in a special capacity. One's status as a representative entitles the person to a number of rights including the right to discovery of trial preparation materials, and the right to bargain collectively on behalf of employees.

see personal representative; registered representative

REQUEST FOR ADMISSIONS

In civil procedure, an admission is a pretrial discovery device by which one party asks another for a positive affirmation or denial of a material fact or allegation at issue.

REQUEST FOR PRODUCTION

a formal discovery tool in which one party asks someone/something else to provide legally-pertinent information.

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).

RESCIND

to abrogate a contract, release the parties from further obligations to each other and restore the parties to the STATUS QUO ante, (see status quo) or the positions they would have occupied if the contract had never been made.

compare rescission

RESCISSION

cancellation of a contract and the return of the parties to the positions they would have occupied if the contract had not been made (see status quo [STATUS QUO ANTE]). Grounds for rescission may include original invalidity of the agreement, fraud, failure of consideration, or material breach or default. Rescission may be brought about by the mutual consent of the parties, by the conduct of the parties or by a decree by a court of equity.

See repudiation; revocation.

Compare rescind

RES JUDICATA

Lat.: a thing decided; a matter adjudged. The phrase reflects a rule by which a final judgment by a court of competent jurisdiction is conclusive upon the parties in any subsequent litigation involving the same cause of action.

see bar; merger.

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].

RESPONDEAT SUPERIOR

Lat.: let the superior reply. This doctrine is invoked when there is a master-servant relationship between two parties. The premise is that when an employer (master) is acting through the facility of an employee or agent (servant), and tort liability is incurred during the course of this agency because of some fault of the agent, then the employer or master must accept the responsibility. Implicit is the common law notion that everyone must conduct his or her affairs without injuring another, whether or not he or she employs agents or servants. See scope of employment. Compare vicarious liabilty.

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.

RESPONDENT

1. in equity, the party who answers a pleading.

2. the party against whom an appeal is prosecuted.

REVERSAL

as used in opinions, judgments and mandates, the vacating or changing to the contrary the decision of a lower court or other body.

Compare affirm; overrule; remand.

REVIEW

judicial reexamination of the proceedings of a court or other body; a reconsideration by the same court or body of its former decision; also, an appellate court’s examination of the record of a lower court or agency’s determination that is on appeal to the appellate court.

See bill of review; judicial review.

RIPENESS

Doctrine in constitutional law under which courts will not decide cases in advance of the necessity of deciding them, ie, in advance of their being ripe for decision. Compare justiciable; moot case.

RULE

prescribed guide for action or conduct, regulation or principle; includes commands to lower courts or court officials to do ministerial acts. If a standard or directive by a governmental agency is characterized as a rule, it must be promulgated in accordance with the procedures set down in the Administrative Procedure Act. A rule of a court, such as a federal rule of civil or criminal procedure, is adopted by the court itself and is subject to legislative action.

S

SANCTION

1. to approve;
2. to reward or punish;
3. a consequence of punishment for violation of accepted norms of social conduct, which may be of two kinds: those that redress civil injuries (civil sanctions) and those that punish crimes (penal sanctions).

SCIENTER

Lat.: knowledge. Previous knowledge of operative facts; frequently signifies guilty knowledge. As used in pleadings, the term signifies that the alleged crime or tort was done designedly or with guilty knowledge. The term is usually employed in relation to fraud, and means a person's knowledge that he was making false representation, with intent to deceive.

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.

see culpable; mensrea

SEAL

in commmon law, an impression on wax or other substance capable of being impressed. The purpose of a seal is to attest to the execution of an instrument. The word seal or the letters L.S. (LOCUS SIGILLI, place of the seal) have the same significance and are commonly used for the same purpose today.

A seal of a corporation is sometimes called a COMMON SEAL.

SEALING RECORDS

the sealing of criminal records, permitted in some states with respect to youthful offenders, so that such records may be examined only by court order.

SEPARATE BUT EQUAL

A doctrine under which the equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities are separate. Although the doctrine has not been per se eliminated from American jurisprudence, its application to most aspects of society has been found to violate the equal protection clause of the Fourteenth Amendment. The violation is not so much directed toward the physical aspects of separate facilities, but rather the intangible harm that results from the segregation that is a by-product of the doctrine. For example, the Supreme Court has found that the mere segregation of minority and white students in public education creates a sense of inferiority that significantly impedes the educational and mental development of minority children.

SEPARATION OF POWERS

The doctrine prohibiting one branch of government, at any level (ie, federal/state/local) from infringing/encroaching-upon/exercising the powers belonging to another branch

SEQUESTRATION

1. in equity, the act of seizing property belonging to another and holding it until profits have paid the demand for which the property was taken.

2. In common law, juries (at least in capital cases) were always sequestered, i.e., kept together throughout the trial and jury deliberations, and guarded from improper contact until they were discharged. This common law right to demand jury sequestration has been replaced in most jurisdictions with discretion in the trial court to grant sequestration in the interests of justice.

3. Sequestration of witnesses is frequently ordered by the court at the request of one of the parties to insure that in-court testimony of each witness not be colored by what another witness said.

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.

SERVANT

one who works for, and is subject to, the control of his master; a person employed to perform services for another and who in the performance of the services is subject to the other's control or right to control.

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(1) the extent of control which, by the agreement, the master may exercise over the details of the work;

(2) whether or not the one employed is engaged in a distinct occupation or business;

(3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;

(6) the length of time for which the person is employed;

(7) the method of payment, whether by the time or by the job;

(8) whether or not the work is a part of the regular business of the employer;

(9) whether or not the parties believe they are creating the relation of master and servant; and

(10) whether the principal is or is not in business. A master is in many instances liable, under the theory of respondeat superior, for the torts of his servant, but not for those of an independent contractor. See fellow servant rule; master and servant. Compare agent; contractor [INDEPENDENT CONTRACTOR]

SET ASIDE

to annul or make void. See reversal.

SETTLEMENT

conclusive resolving of a matter; especially, a compromise achieved by adverse parties in a civil suit before final judgment, whereby they agree between themselves upon their respective rights and obligations, thus eliminating the necessity of judicial resolution of the controversy.

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

SHALL

often used to denote an obligation or direction to do some act; however, it is sometimes considered to be permissive where it is necessary to give effect to the intent of the word, and to mean the same as the word "may"

SHAM PLEADING

one so clearly false that it presents no issue of fact to be determined by a trial. A complaint or answer will be stricken as sham only when it is undisputed that the alleged claim or defense is wholly unsupported by facts

SHOW CAUSE ORDER

an order, made upon the motion of one party, requiring a party to appear and show cause (demonstrate) why a certain thing should be permitted or not permitted. It requires that party to meet the prima facie case made by the applicant’s verified complaint or affidavit. An order to show cause is an accelerated method of beginning a litigation by compelling the adverse party to respond in a much shorter period of time than he or she would normally have to respond to a complaint.

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.

compare restraining order; summons.

SOVEREIGN

that which is preeminent among all others; the King; the state.

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.

SOVEREIGN IMMUNITY

immunity precluding suit against the sovereign (government) without the sovereign's consent when the sovereign is engaged in a government function.

Compare Federal Tort Claims Act

SPOILATION (OF RECORDS)

The hiding or destruction of litigation evidence. Remedies include the “spoliation inference” which tells the fact finder that an adverse inference may be drawn that the evidence concealed would have been harmful to the case of the person who concealed it; discovery sanctions; or a separate tort action. Some jurisdictions feel the tort of FRAUDULENT CONCEALMENT is sufficient to deal with issues of spoliation. Fraudulent concealment has the following elements

(1) The defendant had a legal obligation to disclose evidence in connection with existing or pending litigation;

(2) The evidence was material to the litigation;

(3) The plaintiff could not have reasonably obtained access by other means;

(4) The defendant intentionally withheld, altered, or destroyed the evidence with the purpose of disrupting the litigation; and

(5) The plaintiff was damaged in the underlying litigation by having to rely on an evidential record that did not contain the evidence the defendant concealed.

See also concealment. Spoilation also refers to the violent seizure of real or personal property.

STANDING

the legal right to challenge in a judicial forum the conduct of another. In the federal system, litigants must satisfy constitutional standing requirements in order to create a legitimate case or controversy within the meaning of Article III of the Constitution. In construing this language, courts have held that the gist of a question of standing is whether the party seeking relief has alleged personal stake in the outcome of the controversy so as to insure that real, rather than remote or possible, adverseness exists to sharpen the presentation of issues.

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.

STARE DECISIS

Lat.: to stand by that which was decided. Rule by which common law courts are reluctant to interfere with principles announced in former decisions and therefore rely upon judicial precedent as a compelling guide to decision of cases raising issues similar to those in previous cases.

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.

STATEMENT

A declaration of fact; an allegation by a witness. See also prior inconsistent statement; registration statement.

CLOSING STATEMENT in litigation, a summation made by the attorney, at the end of the case, which sets forth that client’s case. In real estate law, a document prepared in the closing of a sale of real estate that summarizes the transaction and sets forth its financial terms

OPENING STATEMENT in litigation, a statement made by the attorney for each party after the jury has been selected and before any evidence has been presented. A defendant may reserve an opening statement until after the conclusion of the plaintiff’s case. An opening statement outlines for the jury the evidence that each party intends to present and informs the jury of the party’s theory of the case.

STATUTE

an act of the legislature, adopted under its constitutional authority, by prescribed means and in certain form, so that it becomes the law governing conduct within its scope. Statutes are enacted to prescribe conduct, define crimes, create inferior government bodies, appropriate public monies, and in general to promote the public welfare.

Compare common law; judge-made law; ordinance; police power.

see declaratory statutes; severable statute.

STATUTE OF LIMITATIONS

any law that fixes the time within which parties must take judicial action to enforce rights or else be thereafter barred from enforcing them. Equity proceedings are governed by an independent doctrine called laches.

The enactment of such laws and invocation of the doctrine of laches to bar suits in equity derives from the belief that there is a point beyond which a prospective defendant should no longer worry about a future possibility of an action against him or her, that the law disfavors "stale evidence," and that no one should be able to "sit on his (her) rights" for an unreasonable time without forfeiting claims.

STATUTORY LAW

the law created by legislatively enacted statutes

compare common law

STAY

a halt in a judicial proceeding where, by its order, the court will not take further action until the occurrence of some event.

STAY OF EXECUTIION: process whereby a judgment is precluded from being executed for a specific period.

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.

STRAW MAN

1. a colloquial expression designating arguments in briefs or opinions created solely for the purpose of refuting them. Such arguments are like straw men because they are, by nature, insubstantial.

2. in commercial and property contexts, the term may be used when a transfer is made to a third party, the straw man, simply to retransfer to the transferor or to transfer to another in order to accomplish some purpose not otherwise permitted.

STRICT CONSTRUCTION

1. Adherence to the literal meaning of the words in statutes or contracts;

2. An interpretation that confines a statute or instrument to subjects or applications obviously within its terms or purposes.

STRICT LIABILITY

in tort and criminal law, liability without a showing of fault, or the need to show fault. See ultrahazardous activity.

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.

STRICT SCRUTINY

a test to determine the constitutional validity of a statute that creates a category of persons, including classifications based upon nationality or race. Under this test, if a grouping scheme affects fundamental rights – such as the right to vote – it requires a showing that the classification is necessary to, and the least intrusive means of achieving, a compelling state interest.

SUA SPONTE

Lat.: of itself or of one's self. Without being prompted; refers especially to a court's acting of its own volition (on its own motion), without a motion being made by either of the adverse parties.

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.

SUBJECT MATTER

the thing in dispute; the nature of the cause of action; the real issue of fact or law presented for trial; also, the object of a contract.

SUBPOENA

Lat.: under penalty. A writ issued under authority of a court to compel the appearance of a witness at a judicial proceeding; disobedience may be punishable as contempt of court.

SUBPOENA AD TESTIFICANDUM: subpoena to testify. Technical name for the ordinary subpoena.

SUBPOENA DUCES TECUM: under penalty you shall bring it with you. Type of subpoena issued by a court at the request of one of the parties to a suit. A witness having under his or her control documents relevant to the controversy is enjoined to bring such items to court during the trial or at the deposition.

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.

SUI JURIS

Lat.: of his own right. Describes one who is no longer dependent, e.g., one who has reached majority, or has been removed from the care of a guardian. Compare emancipation; incompetency.

SUM CERTAIN

any amount that is fixed, settled, stated or exact. It may refer to the value of a negotiable instrument, to a price stated in a contract, or to a measure of damages. The sum must be ascertainable at the time the instrument is made and computable solely from examination of it.

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.

SUMMARY JUDGMENT

preverdict judgment of the court in response to a motion by plaintiff or defendant, rendered when the court perceives that only questions of law are in dispute, or that the court's decision must be the same regardlesss of which party's version of the facts is accepted. It is a device designed to effect a prompt disposition of controversies on their merits without resort to a lengthy trial.

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

SUMMONS

a mandate requiring the appearance of the defendant under penalty of having judgment entered against him or her for failure to appear. The object of the summons is to notify the defendant that he has been sued.

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.

SUPPRESSION OF EVIDENCE

the refusal to produce evidence or to allow evidence to be produced for use in litigation. Suppression of evidence refers most commonly to the sanction in a criminal case for an unreasonable search or seizure that violates a defendant's constitutional rights. in 1914, the US Supreme Court held that illegally seized evidence must be excluded from use in federal criminal trials. In 1961, the Court expanded the exclusionary rule to include state criminal trials.

Suppression of evidence also refers either to a party's refusal to produce evidence or to interference by a party with the production of evidence when another party seeks the evidence pursuant to the law. In civil cases, the failure to produce evidence may constitute an admission that the evidence is unfavorable to the party refusing to produce it.

SUPRA

Lat.: above; before. In a written work, refers to a part preceding that which is presently being read.

SUPREMACY CLAUSE

popularized title for Article VI, Section 2 of the United States Constitution, which is the main foundation of the federal government's power over the states, providing that the acts of the federal government are operative as supreme law throughout the union.

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.'

SUPREME COURT

the highest appellate court in most jurisdictions and in the federal court system. it is usually the appellate state court of last resort, and in the absence of a federal question, its decisions cannot be reviewed by other courts and must be respected. In some states this court is an inferior court and not the court of last resort.

In the federal court system, the United States Supreme Court is expressly provided for in the Constitution, which vests judicial power in "one Supreme Court" and such inferior courts as Congress shall establish. It consists of a Chief Justice and eight Associate Justices appointed by the President with the advice and consent of the US Senate.

SUSPENSION

temporary interruption or cessation; abeyance.

SUSTAIN

to support; to approve; to adequately maintain.

T

TESTIMONY

statement made by a witness, under oath, usually related to a legal proceeding or legislative hearing; evidence given by a competent witness under oath or affirmation, as distinguished from evidence derived from writing and other sources.

TOLL

1. to bar, defeat. To toll the statute of limitations means to suspend the limitation.

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.'

2. charge for the use of another's property

3. consideration for the use of roads, bridges, ferries or other public facilities.

TORT

a wrong; a private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society's expectations regarding interpersonal conduct, rather than by contract or other private relationship. The essential elements of a tort are existence of a legal duty owed by defendant to plaintiff, breach of that duty and a causal relation between defendant's conduct and the resulting damage to plaintiff. See also derivative tort.

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.

TORTFEASOR

one who commits a tort.

JOINT TORTFEASORS those who act together or independently to commit a tortious act, causing a single injury. See contribution; joint tortfeasors.

TRANSCRIPT

an official and certified copy of proceedings in court or at an out-of-court deposition. The transcript is usually prepared by a court reporter from shorthand notes made during the proceeding.

TRAVERSE

a common law pleading that denies the opposing party’s allegations of fact.

GENERAL TRAVERSE a blanket denial, stated in general terms, intended to cover all the allegations

SPECIAL TRAVERSEe a denial that is not absolute, but that seeks to establish a denial through the presentation of supplementary facts (or new matter) that, if accurate, would render the allegations untenable.

TRIAL COURT

court of original jurisdiction, where matters are to be litigated first and where all evidence relative to a cause is received and considered. All states differentiate between trial courts and appellate courts. The distinction is that it is the function of the trial court first to determine the facts and the law in a case, with the appellate court acting predominantly as a court of review of law, but not fact.

TRIBUNAL

an officer or body having authority to adjudicate matters.

see administrative agency; court; forum; trial court.

U

ULTRA VIRES

Lat.: beyond, in excess of powers. That which is beyond the power authorized by law.

1. an action of a corporation that is beyond the powers conferred upon it by its charter, or by the statute under which it was created.

2. acts of public officials beyond their authority. See quo warranto.

UNCLEAN HANDS

one of the equitable maxims embodying the principle that a party seeking redress in a court of equity (equitable relief) must not have done any unethical act in the transaction upon which that party maintains the action in equity, since a court of conscience will not grant relief to one guilty of unconscionable conduct, ie, to one with unclean hands.

UNCONSTITUTIONAL

conflicting with some provision of the Constitution. A statute found to be unconstitutional is considered void or as if it had never been, and consequently all rights, contracts or duties that depend on it are void. Similarly, no one can be punished for having refused obedience to the law once it is found to be unconstitutional.

V

VACATE

1. to render void; to set aside;

2. to move out; to render vacant.

VARIANCE

1. in procedure, a discrepancy between what is charged or alleged and what is proved or offered as proof. A FATAL VARIANCE is, in both civil and criminal cases, a material and substantial variance: in criminal cases, it must also tend to mislead the defendant in making his or her defense, or tend to expose the defendant to the injury of double jeopardy.

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.

2. in zoning law, an exemption from the application of a zoning ordinance or regulation permitting a use that varies from that otherwise permitted. The exception is granted by the appropriate authority in special circumstances to protect against undue hardship wrought by strict enforcement. See nonconforming use.

VENIRE

Lat.: to come. Refers to the common law process by which jurors are summoned to try a case

VENIRE DE NOVO: Lat.: to come anew. Refers to summoning a second jury for the purpose of proceeding to a second trial. Such a second trial is awarded where a verdict (by a jury) or finding (by the court) is so defective or ambiguous upon its face that no judgment can be rendered upon it. The term is sometimes used simply to denote a new trial.

VENUE

a neighborhood, a neighboring place; synonym for place of trial; refers to the possible or proper place for trial of a suit, among several places where jurisdiction could be established. Venue essentially involves the right of the party sued to have the action heard in a particular judicial district, for reasons of convenience. In a criminal trial where publicity surrounding the crime would virtually preclude fair trial, the court will direct a CHANGE OF VENUE, or removal of the proceedings to a different district or county.

see forum non conviens.

VERDICT

the opinion rendered by a jury, or a judge where there is no jury, on a question of fact. A verdict differs from a judgment in that a verdict is not a judicial determination, but rather a finding of fact that the trial court may accept or reject and utilize in formulating its judgment.

COMPROMISE VERDICT: a verdict resulting from improper surrender of one juror's opinion to another on a material issue.

DIRECTED VERDICT: see directed verdict

FALSE VERDICT: a manifestly unjust verdict; one not true to the evidence, arrived at by any process (such as a coin flip or a quotient verdict) that departs from the legitimate methods by which jurors may reach a decision. When such a verdict is rendered, the court can enter a judgment n.o.v ("notwithstanding the verdict").

GENERAL VERDICT: ordinary verdict declaring simply which party prevails, without any special findings of fact.

PARTIAL VERDICT: in criminal law, a finding that the defendant is guilty of certain charges but innocent of others.

QUOTIENT VERDICT: improper and unacceptable kind of compromise verdict resulting from an agreement by the jurors that their verdict will be an award of damages in an amount to be determined by the addition of all jurors' computations of damages and its division by the number of jurors.

SPECIAL VERDICT: one rendered on certain specific factual issues posed by the court. The special verdict requires the jury to make a specific finding on each ultimate fact put in issue by the pleadings rather than a general finding for one party or the other. The court will then apply the law to those found facts

VERIFICATION

confirmation of correctness or authenticity of pleading or other paper affidavit, oath or deposition; an affidavit attached to a statement insuring the truth of that statement.

VERIFIED

sworn to or affirmed before a

• notary public,

• designated representative of the Commission, or

• other person duly authorized by law to administer oaths and take acknowledgements

...OR...

• supported by an unsworn declaration in writing under penalty of perjury.

VEXATIOUS LITIGATION

civil action shown to have been instituted maliciously and without probable cause, and that may be protected against by injunction.

See litigious, malicious prosecution.

VICARIOUS LIABILITY

liability imputed to one person for the actions of another, where the law contemplates that the other should be held responsible for a wrong in fact committed by somone else. Sometimes this doctrine is called IMPUTED LIABILITY.

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.

compare strict liability

VITIATE

to void; to render a nullity; to impair

VOID

empty, having no legal force, incapable of being ratified

VOIR DIRE

Fr.: to speak the truth.

1. A VOIR DIRE EXAMINATION by the court or by the attorneys of prospective jurors is to determine their qualification for jury service, to determine if there is cause to challenge (i.e., to excuse) particular jurors, and to provide information about the jurors so that the parties can exercise their statutory peremptory challenges (objections to particular jurors without need to state cause).

EXAMPLE:

A doctor is on trial for performing an abortion. In a voir dire examination of potential jurors by counsel or the court, it is revealed that a prospective juror has strong religious beliefs concerning abortions that would bias any possibility of a fair and independent judgment. That juror will most likely not be used at the doctor’s trial.

2. A voir dire examination during the trial refers to a hearing by the court out of the presence of the jury upon some issue of fact or law that requires an initial determination by the court or upon which the court must rule as a matter of law alone.

W

WAIVER

an intentional and voluntary surrender of some known right, which generally may either result from an express agreement or be inferred from circumstances.

See informed consent.

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.

EXECUTORY WAIVER: one that affects a still unperformed duty of the other party to a contract.

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 detrimental 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.

WANTON

grossly negligent or careless; with a reckless disregard of consequences.

WARRANT

a written order from a competent authority directing the doing of a certain act, especially one directing the arrest of a person or persons, issued by a court, body or official. See also bench warrant; search warrant.

The word warrant is also used in commercial and property law to refer to a particular kind of guarantee or assurance about the quality and validity of what is being conveyed or sold.

ARREST WARRANT: an order of a court directing the sheriff or other officer to seize a particular person to answer a complaint or otherwise appear before the court. if a defendant fails to appear as required in court, the judge will issue a bench warrant for arrest. For less serious offenses, it is common to issue a summons in lieu of an arrest warrant. An arrest warrant is constitutionally required to enter a person's home to effect an arrest except in exigent circumstances such as hot (fresh) pursuit. See arrest; search and seizure. Compare warrantless arrest.

BENCH WARRANT: see bench warrant

GENERAL WARRANT: see search warrant [GENERAL WARRANTS].

SEARCH WARRANT: an order that certain premises or property be searched for particularized items which if found are to be seized and used as evidence in a criminal trial or destroyed as contraband. See search and seizure; search warrant.

STOCK WARRANT: a certificate that gives the holder the right to purchase shares of stock for a specified price and within a specified time. Unlike subscription rights, stock warrants offer the holder the right to purchase shares of a different kind from those already held. Thus a holder of common stock may purchase preferred stock. Stock warrants usually originate as a bonus with new issues of bonds, notes or preferred stock where they sserve as an inducement to the buyer. Warrants so offered come attached to the new security and usually cannot be separated for a short period; once separated, the warrants can be traded like any other security.

WARRANT TO SATISFY JUDGMENT: an authorization issued by the judgment creditor's attorney to the clerk of the court directing the clerk to enter a satisfaction of the judgment in the official court records.

WEIGHT OF THE EVIDENCE

a phrase that indicates the relative value of the totality of evidence presented on one side of a judicial dispute, compared to the evidence presented on the other side; refers to the persuasiveness of the testimony of the witnesses.

WILLFUL

intentional, as distinguished from accidental. In a criminal statute, the term signifies an act done with a bad purpose and without justifiable excuse.

WITNESS

1. one who gives evidence in a cause before a court and who attests or swears to facts or gives testimony under oath;

2. to observe the execution of, as that of an instrument, or to sign one's name to it to authenticate it (attest it).

ADVERSE [HOSTILE] WITNESS: one whose relationship to the opposing party is such that his or her testimony may be prejudiced against that party.

CHARACTER WITNESS: a witness who testifies at another person's trial, vouching for that person's high moral character and standing in the community, but who does not have knowledge of the validity of the charges against that person.

EXAMPLE:

The preacher testified as a character witness at Brian's rial, giving many examples of Brian's service to the elderly and poor. Looking only at the charitable work Brian had done, the preacher could not believe Brian would burglarize a house.

EXPERT WITNESS: see expert witness.

HOSTILE WITNESS: see ADVERSE [HOSTILE] WITNESS.

LAY WITNESS: see lay witness.

MATERIAL WITNESS: one who can give testimony that might have a bearing upon the outcome of a cause and that no one else is able to give. In criminal law, the term refers particularly to a witness about whom there is reasonable expectation that he or she can give testimony bearing upon the defendant's guilt or innocence.

WORK PRODUCT

work done by an attorney in the process of representing his or her client that is ordinarily not subject to discovery. It encompasses writings, statements or testimony that would substantially reflect or invade an attorney’s legal impressions or legal theories about a pending/anticipated litigation, including the attorney’s strategy and opinions.

EXAMPLE:

Ivan is charged with tax evasion. He hires an attorney to prepare the case, and the attorney hires an accountant to compute Ivan’s income. Because the attorney hires the accountant, the accountant is working for the attorney, not for Ivan. The accountant’s report is the work product of the attorney and therefore cannot be obtained by the Internal Revenue Service.

If Ivan hires the accountant and then presents the accountant’s report to the attorney, the report would not be considered a privileged work product and would be discoverable by the IRS.

WRIT

a legal order issued by the authority and in the name of the state to compel a person to do something therein mentioned. It is issued by a court or other competent tribunal, and is directed to the sheriff or other officer authorized to execute it. In every case the writ itself contains directions for doing what is required.

see peremptory writ; prerogative writ.

WRIT OF ERROR

An early common law writ issued by the appellate court, directing the trial judge to send up the record in the case. The appellate court reviews only alleged errors of law. It is similar to a writ of certiorari, except that a writ of error is a writ of right and lies only where jurisdiction is exercised according to the course of the common law.

WRIT OF PROHIBITION

a prerogative writ issued by a superior court that prevents an inferior court or tribunal from exceedings it jurisdiction or usurping jurisdiction it has not been given by law. It is an extraordinary writ because it issues only when the party seeking it is without other means of redress for the wrong about to be inflicted by the act of the inferior tribunal. Sometimes it is referred to simply as PROHIBITION.

X

a mark that may be used as signature by one who is unable to write his or her name. The mark may be placed wherever the signature could be placed and does not have to be attested unless so required by statute. A name may accompany a mark, and the mark will be sufficient even if the name is invalid due to an incorrect spelling or other error.

Y

YELLOW DOG CONTRACT

an employment contract expressly prohibiting the named employee from joining labor unions under pain of dismissal. Most state constitutions guarantee the right to union affiliation and to collective bargaining. Federal and state statutes now generally declare that such contracts will not form the basis for legal or equitable remedies.

Z

ZONE OF EMPLOYMENT

that physical area within which injuries to an employee are compensable by workers’ compensation laws; it denotes the place of employment and surrounding areas (including the means of entrance and exit) that are under control of the employer

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