Latin for “with even stronger reason,” which applies to a situation in which if one thing is true then it can be inferred that a second thing is even more certainly true.
A priori assumption
Latin, an assumption that is true without further proof or need to prove it. It is assumed the sun will come up tomorrow. However, it has a negative side: an a priori assumption made without question on the basis that no analysis or study is necessary, can be mental laziness when the reality is not so certain.
Abbreviation for “also known as” when someone uses different initials, a nickname, a maiden or married name.
Latin for “from the beginning”, “from the start,” as “it was legal ab initio.”This term is used by lawyers intent upon getting their money’s worth from a liberal arts education by uttering such statements as “The judge was against me ab initio.”
A trust that allows couples to reduce or avoid estate taxes. Each spouse puts his or her property in an AB trust. When the first spouse dies, his or her half of the property goes to the beneficiaries named in the trust — commonly, the grown children of the couple — with the crucial condition that the surviving spouse has the right to use the property for life and is entitled to any income it generates. The surviving spouse may even be allowed to spend principal in certain circumstances. When the surviving spouse dies, the property passes to the trust beneficiaries. It is not considered part of the second spouse’s estate for estate tax purposes. Using this kind of trust keeps the second spouse’s taxable estate half the size it would be if the property were left directly to the spouse. This type of trust is also known as a bypass or credit shelter trust.
v. to intentionally and permanently give up, surrender, leave, desert or relinquish all interest or ownership in property, a home or other premises, a right of way, and even a spouse, family, or children. The word is often used in situations to determine whether a tenant has left his/her apartment and the property inside and does not intend to come back. Thus, a landlord can take over an apparently abandoned residence, but must store anything a tenant leaves behind and give notice to the tenant before selling the possessions which are left. To abandon children can mean to have no contact and give no support for a year or more.
n. property left behind (often by a tenant) intentionally and permanently when it appears that the former owner (or tenant) does not intend to come back, pick it up, or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long period of time, or patent rights of an inventor who does not apply for a patent and lets others use his invention without protest. One may have abandoned the property of contract rights by not doing what is required by the contract. However, an easement and other land rights are not abandoned property just because of non-use.
n. the act of intentionally and permanently giving up, surrendering, deserting or relinquishing property, premises, a right of way, a ship, contract rights, a spouse and/or children. of a child: A parent’s failure to provide any financial assistance to or communicate with his or her child over a period of time. When this happens, a court may deem the child abandoned by that parent and order that person’s parental rights terminated. Abandonment also describes situations in which a child is physically abandoned — for example, left on a doorstep, delivered to a hospital or put in a trash can. Physically abandoned children are usually placed in orphanages and made available for adoption. of a spouse: means intent at permanent separation, and with children a lengthy period of neither contact nor any support. of trademark: A situation in which the owner of a trademark or service mark does not use the mark for an extended period of time, fails to protest the unauthorized use of the mark by others or lets others use the mark without adequate supervision. If a trademark is abandoned, the owner loses her exclusive rights to the mark. In maritime law abandonment has a special meaning: when an owner surrenders a ship and its contents to a trustee for the benefit of claimants, particularly after a wreck. If one invents something and does not get a patent but allows others to use the invention or dedicates it to public use, the right to patent is probably abandoned. Confusion arises over abandonment of water rights, mining rights, or rights of way, since mere non-use is not sufficient to show abandonment.
A reduction. 1) After a death, abatement occurs if the deceased person didn’t leave enough property to fulfill all the bequests made in the will and meet other expenses. Gifts left in the will are cut back in order to pay taxes, satisfy debts or take care of other gifts that are given priority under law or by the will itself; 2) the removal of a problem which is against public or private policy, or endangers others, including nuisances such as weeds that might catch fire on an otherwise empty lot; 3) an equal reduction of benefits to beneficiaries (heirs) when an estate is not large enough to pay each beneficiary in full. A reduction in some amount that is owed, usually granted by the person to whom the debt is owed,
n. the criminal taking away of a person by persuasion (convincing someone-particularly a minor or a woman-he/she is better off leaving with the persuader), by fraud (telling the person he/she is needed, or that the mother or father wants him/her to come with the abductor), or by open force or violence. Originally abduction applied only to protect women and children as victims. Currently in most states it can also apply to an adult male. In fact, in some states like New York abduction meant the unlawful taking or detention of any female for purposes of “marriage, concubinage or prostitution.” Kidnapping is more limited, requiring force, threat of force upon an adult or the taking of children.
v. to help someone commit a crime, including helping them escape from police or plan the crime.
1) n. when the owner- ship of property has not been determined. Examples include title to real property in the estate of a person who has died and there is no obvious party to receive title or there appears to be no legal owner of the property, a shipwreck while it is being determined who has the right to salvage the ship and its cargo, or a bankrupt person’s property before the bankruptcy court has decided what property is available to creditors or alleged heirs. 2) legal jargon for “undetermined.”
v. to annul or repeal a law or pass legislation that contradicts the prior law. Abrogate also applies to revoking or withdrawing conditions of a contract.
v. 1) traditionally to leave a jurisdiction (where the court, a process server or law enforcement can find one) to avoid being served with legal papers or being arrested. 2) a surprise leaving with funds or goods that have been stolen, as in “he absconded with the loot.”
n. when the Supreme Court refuses to exercise its federal constitutional jurisdiction or declines to consider a question of state law arising from a case being appealed from a state court.
n. in general, a summary of a record or document, such as an abstract of judgment or abstract of title to real property.
Abstract of judgment
n. a written summary of a judgment which states how much money the losing party owes to the person who won the lawsuit (judgment creditor), the rate of interest to be paid on the judgment amount, court costs, and any specific orders that the losing party (judgment debtor) must obey, which abstract is acknowledged and stamped so that it can be recorded at the county recorder. The purpose of an abstract of judgment is to create a public record and create a lien or claim if necessary on any real estate owned or later acquired by the loser located in the county in which the abstract of judgment is recorded. If the loser does not pay the judgment voluntarily then the winner can force a sheriff’s sale of any property to collect. There are several problems: a) to find the county where the loser owns real estate; b) the probability that there are secured loans, tax liens and/or other judgments that come ahead of the judgment lien; c) the possibility that the loser/debtor may go bankrupt and avoid paying the debt.
Abstract of title
A short history of a piece of land that lists any transfers in ownership, as well as any liabilities attached to it, such as mortgages.The written report on a title search which shows the history of every change of ownership on a piece of real estate, and any claims against the property, such as easements on the property, loans against it, deeds of trust, mortgages, liens, judgments, and real property taxes. Some abstracts only go back in history to the last change in title. In some places the abstract of title is prepared by a title company, and in other places by an individual who is called an abstractor. Most buyers and all lenders require the title report with an abstract. The information in the abstract is up to the moment, comes from the local county recorder’s office, and usually requires an expert search.
Abstract of trust
A condensed version of a living trust document, which leaves out details of what is in the trust and the identity of the beneficiaries. You can show an abstract of trust to a financial organization or other institution to prove that you have established a valid living trust, without revealing specifics that you want to keep private. In some states, this document is called a “certification of trust.”
Misuse of the bankruptcy remedy. This term is typically applied to bankruptcy filings, because the debtor appears to have enough disposable income to fund a repayment plan. of discretion: A polite way of saying a trial judge has made such a bad mistake (“clearly against reason and evidence” or against established law) during a trial or on ruling on a motion that a person did not get a fair trial. A court of appeals will use a finding of this abuse as a reason to reverse the trial court judgment. Examples of “abuse of discretion” or judges’ mistakes include not allowing an important witness to testify, making improper comments that might influence a jury, showing bias, or making rulings on evidence that deny a person a chance to tell his or her side of the matter. This does not mean a trial or the judge has to be perfect, but it does mean that the judge’s actions were so far out of bounds that someone truly did not get a fair trial. Sometimes the appeals courts admit the judge was wrong, but not wrong enough to have influenced the outcome of the trial, often to the annoyance of the losing party. In criminal cases abuse of discretion can include sentences that are grossly too harsh. In a divorce action, it includes awarding alimony way beyond the established formula or the spouse’s or life partner’s realistic ability to pay. of process: the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.
v. when two parcels of real property touch each other.
n. 1) speeding up the time when there is vesting (absolute ownership) of an interest in an estate, when the interest in front of it is terminated earlier than expected; 2) in a contract or promissory note, when the payment of debt is moved up to the present time due to some event like non-payment of an installment or sale of the property which secures the debt.
n. a provision in a contract or promissory note that if some specified event (like not making payments on time) occurs then the entire amount is due or other requirements are due now, pronto. This clause is most often found in promissory notes with installment payments for purchase of real property and requires that if the property is sold then the entire amount of the note is due immediately (the so-called “due on sale clause”). Some states prohibit “due on sale” and always allow the new property owner to assume the debt.
v. to receive something with approval and intention to keep it. This use often arises on the question of accepting a payment which is late or not complete or accepting the “service” (delivery) of legal papers.
n. 1) receiving something from another with the intent to keep it, and showing that this was based on a previous agreement. 2) agreeing verbally or in writing to the terms of a contract, which is one of the requirements to show there was a contract (an offer and an acceptance of that offer). A written offer can be accepted only in writing. 3) receiving goods with the intention of paying for them if a sale has been agreed to. 4) agreement to pay a bill of exchange, which can be an “absolute acceptance” (to pay as the bill is written) or “conditional acceptance” (to pay only when some condition actually occurs such as the shipment or delivery of certain goods). “Acceptance” is most often used in the factual determination of whether a contract was entered into. of service: n. agreement by a defendant (or his/her attorney) in a legal action to accept a complaint or other petition (like divorce papers) without having the sheriff or process server show up at the door. The agreement of “acceptance of service” must be in writing or there is no proof that it happened. In most jurisdictions there is a form entitled “receipt and acknowledgment of acceptance of service” or similar language which must be signed, dated and sent back to the attorney who sent the complaint or petition. Attorneys must be careful that they have legal authority from a client to act on his/her behalf, because a client may deny later that he/she gave authority to accept service.
n. 1) in real estate the right and ability to get to the property. 2) when a husband has the opportunity to make love to his wife, it is said he has access. This rather vulgar use of “access” has been important because if a husband “had access” to his wife during the time when she became pregnant, it is presumed he is the father. Modern use of blood tests and DNA studies may show the father to be someone other than the husband whether the husband “had access” or not.
Someone who intentionally helps another person commit a felony by giving advice before the crime or helping to conceal the evidence or the perpetrator. An accessory is usually not physically present during the crime. For example, hiding a robber who is being sought by the police might make you an “accessory after the fact” to a robbery. Compare accomplice.
n. 1) a favor done without compensation (pay or consideration), such as a signature guaranteeing payment of a debt, sometimes called an accommodation endorsement. Such accommodation is not the smartest business practice, since the holder of the note can go after the accommodator rather than the debtor and will do so if the accommodator has lots of money or is easier to locate than the debtor. 2) giving in to an adversary on a point to make a deal work.
An immediate family member of someone who immigrates to the United States. In most cases, a person who is eligible to receive some type of visa or green card can also obtain green cards or similar visas for accompanying relatives. Accompanying relatives include spouses and unmarried children under the age of 21.
Someone who helps another person (known as the principal) commit a crime. Unlike an accessory, an accomplice is usually present when the crime is committed. An accomplice is guilty of the same offense and usually receives the same sentence as the principal. For instance, the driver of the getaway car for a burglary is an accomplice and will be guilty of the burglary even though he may not have entered the building.
Accord and satisfaction
An agreement to settle a contract dispute by accepting less than what’s due. This procedure is often used by creditors who want to cut their losses by collecting as much money as they can from debtors who cannot pay the full amount.
n. a statement between a creditor or the person to whom money is owed and a debtor (the person who owes) that a particular amount is owed to the seller as of a certain date. Often the account stated is a bill, invoice or a summary of invoices, signed by the customer or sent to the customer who pays part or all of it without protest. This is important when a frustrated businessman sues for “account stated” which sets both the debtor’s liability and the exact amount the debtor must pay, which is less complicated than claiming a debt is due and payable. An account stated may carry a longer statute of limitations (time to file suit) than some other forms of debt depending on the state.
n. 1) in real estate, the increase of the actual land on a stream, lake or sea by the action of water which deposits soil upon the shoreline. Accretion is Mother Nature’s little gift to a landowner. 2) in estates, when a beneficiary of the person who died gets more of the estate than he/she was meant to because another beneficiary or heir dies or rejects the gift. Example: if a brother and sister were supposed to divide a share of Dad’s estate, but brother doesn’t want it, then sister’s share grows by accretion. 3) in trusts, accretion occurs when a beneficiary gets a surprising increase in benefits due to an unexpected event.
v. 1) growing or adding to, such as interest on a debt or investment which continues to accumulate. 2) the coming into being of the right to bring a lawsuit. For example, the right to sue on a contract only accrues when the contract is breached (not on mere suspicion that it might be breached) or when the other party repudiates the contract (anticipatory breach).
A trust in which the income is retained and not paid out to beneficiaries until certain conditions are met. For example, if Uncle Pierre creates a trust for Nick’s benefit but stipulates that Nick will not get a penny until he gets a Ph.D. in French; Nick is the beneficiary of an accumulation trust.
v. 1) generally to admit something, whether bad, good or indifferent. 2) to verify to a notary public or other officer (such as a County Clerk) that the signer executed (wrote, signed) the document like a deed, lease, or power of attorney, to make it certified as legal and suitable for recording.
The biological father of a child born to an unmarried couple who has been established as the father either by his admission or by an agreement between him and the child’s mother. An acknowledged father must pay child support.
A statement you make in front of a notary public or other person who is authorized to administer oaths stating that a document bearing your signature was actually signed by you.
A decision by a judge or jury that a defendant in a criminal case is not guilty of a crime. An acquittal is not a finding of innocence; it is simply a conclusion that the prosecution has not proved its case beyond a reasonable doubt.
1) n. in general, any action by a person. 2) n. a statutory plan passed by Congress or any legislature which is a “bill” until enacted and becomes law. 3) v. for a court to make a decision and rule on a motion or petition, as in “the court will act on your motion for a new trial.” A bill which has passed through the various legislative steps required for it and which has become law.
Act of God
An extraordinary and unexpected natural event, such as a hurricane, tornado, earthquake or even the sudden death of a person. An act of God may be a defense against liability for injuries or damages. Under the law of contracts, an act of God often serves as a valid excuse if one of the parties to the contract is unable to fulfill his or her duties — for instance, completing a construction project on time.
Another term for a lawsuit. For example, a plaintiff might say, “I began this negligence action last fall after the defendant, Ms. Adams, struck me while I was crossing the street at Elm and Main.”
adj. when enough facts or circumstances exist to meet the legal requirements to file a legitimate lawsuit. If the facts required to prove a case cannot be alleged in the complaint, the case is not “actionable” and the client and his/her attorney should not file a suit. Of course, whether many cases are actionable is a matter of judgment and interpretation of the facts and/or law, resulting in many lawsuits that clog the courts. Incidentally, if a case is filed which is clearly not actionable, it may result in a lawsuit against the filer of the original suit for malicious prosecution by the defendant after he/she has won the original suit.
n. a true legal dispute which leads to a genuine lawsuit rather than merely a “cooked up” legal action filed to get a court to give the equivalent of an advisory opinion. Federal courts, including the U.S. Supreme Court, will only consider an “actual controversy”, on appeal, since they will not give advisory (informal) opinions or make judgments on “friendly suits” filed to test the potential outcome.
n. having been informed directly of something or having seen it occur, as distinguished from constructive notice (e.g. a notice was mailed but not received, published in a newspaper, or placed in official records).
Latin for a “guilty act.” The actus reus is the act which, in combination with a certain mental state, such as intent or recklessness, constitutes a crime. For example, the crime of theft requires physically taking something (the actus reus) coupled with the intent to permanently deprive the owner of the object (the mental state, or mens rea).
Latin shorthand meaning “for this purpose only.” Thus, an ad hoc committee is formed for a specific purpose, usually appointed to solve a particular problem. An ad hoc attorney is one hired to handle one problem only and often is a specialist in a particular area or considered especially able to argue a key point.
Latin meaning “for the purposes of the legal action only.” Most often the term applies to a parent who files a lawsuit for his or her minor child as “guardian at litem” (guardian just for the purposes of the lawsuit) or for a person who is incompetent. Either at the time the lawsuit is filed or shortly thereafter, the parent petitions the court to allow him/her to be guardian ad litem, which is brought ex parte (without a noticed hearing) and is almost always granted. A person acting ad litem has the responsibility to pursue the lawsuit and to account for the money recovered for damages. If a child in such a lawsuit reaches majority (18 in most states) while the suit is pending, the ad litem guardianship terminates and the “new” adult can run his/her own lawsuit. Some courts require an order terminating the guardianship ad litem upon proof of coming of age.
Latin for “one after another”.
Latin for “based on value,” which applies to property taxes based on a percentage of the county’s assessment of the property’s value. The assessed value is the standard basis for local real property taxes, although some place “caps” (maximums) on the percentage of value (as under Proposition 13 in California) or “parcel taxes” which establish a flat rate per parcel.
n. an addition to a completed written document. Most commonly this is a proposed change or explanation (such as a list of goods to be included) in a contract, or some point that has been the subject of negotiation after the contract was originally proposed by one party. Real property sales agreements often have addenda (plural of addendum) as the buyer and seller negotiate fine points (how payments will be made, what appliances will be included, date of transfer of title, the terms of financing by the seller and the like). Although often they are not, addenda should be signed separately and attached to the original agreement so that there will be no confusion as to what is included or intended. Unsigned addenda could be confused with rough drafts or unaccepted proposals or included fraudulently.
v. to revoke a gift made in a will by destroying, selling or giving away the gift item during the lifetime of the testator (writer of the will).
The failure of a bequest of property in a will. The gift fails (is “adeemed”) because the person who made the will no longer owns the property when he or she dies. Often this happens because the property has been sold, destroyed or given away to someone other than the beneficiary named in the will. A bequest may also be adeemed when the will maker, while still living, gives the property to the intended beneficiary (called “ademption by satisfaction”). When a bequest is adeemed, the beneficiary named in the will is out of luck; he or she doesn’t get cash or a different item of property to replace the one that was described in the will. For example, Mark writes in his will, “I leave to Rob the family vehicle,” but then trades in his car in for a jet ski. When Mark dies, Rob will receive nothing. Frustrated beneficiaries may challenge an ademption in court, especially if the property was not clearly identified in the first place.
n. a remedy (money or performance) awarded by a court or through private action (including compromise) which affords “complete” satisfaction, and is “practical, efficient and appropriate” in the circumstances. In part this depends on what relief (like an order granting one an easement over a neighbor’s property or an order keeping the drunken husband away from the complaining wife) a party is seeking. A court is a bit self-congratulatory and subjectively judgmental when it announces that the remedy granted is “adequate” when it has done the best it can in the circumstances.
n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained.
v. the final closing of a meeting, such as a convention, a meeting of the board of directors, or any official gathering. It should not be confused with a recess, meaning the meeting will break and then continue at a later time.
n. the act of giving a judicial ruling such as a judgment or decree. The term is used particularly in bankruptcy proceedings, in which the order declaring a debtor bankrupt is called an adjudication.
Adjustable rate mortgage (ARM)
A mortgage loan with an interest rate that fluctuates in accordance with a designated market indicator — such as the weekly average of one-year U.S. Treasury Bills — over the life of the loan. To avoid constant and drastic fluctuations, ARMs typically limit how often and by how much the interest rate can vary.
n. in accounting, the original cost of an asset adjusted for costs of improvements, depreciation, damage and other events which may have affected its value during the period of ownership. This is important in calculating capital gains for income tax purposes since the adjusted basis is generally higher than the original price and will lower capital gains taxes.
n. an employee (usually a non-lawyer) of an insurance company or an adjustment firm employed by an insurance company to negotiate an early settlement of a claim for damages against a person, a business or public body (like a city). Some insurance companies try to make the attorney deal with the adjuster, which is cheaper than sending the case to defense attorneys. Adjusters also represent the company in approving settlements.
Adjustment of status
The procedure for applying for a green card while living in the United States, by submitting an application and later attending an interview at a local USCIS office. Adjustment of status is available only to certain people. Not only do you have to be eligible for a green card in the first place, you must also, in most cases, be staying in the U.S. legally, with a visa or other status.
Administration (of an estate)
The court-supervised distribution of the probate estate of a deceased person. If there is a will that names an executor, that person manages the distribution. If not, the court appoints someone, who is generally known as the administrator. In some states, the person is called the “personal representative” in either instance.
The trustee’s fee, the debtor’s attorney fees, and other costs of bringing a bankruptcy case that a debtor must pay in full in a Chapter 13 repayment plan. Administrative costs are typically 10% of the debtor’s total payments under the plan.
A person appointed by a probate court to handle the distribution of property of someone who has died without a will, or with a will that fails to name someone to carry out this task. Administrator ad litem: A person appointed by a probate court to represent an estate during a lawsuit. (Ad litem is Latin for “during the litigation.”) An administrator ad litem is appointed only if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests. For example, Jerry’s will leaves most of his property to his brother, Jeff, and also names Jeff as executor of the will. But Jerry’s sister, Janine, feels that Jerry made the will under improper pressure from Jeff, and brings a lawsuit to challenge it. The court appoints an administrator ad litem to represent Jerry’s estate while the lawsuit is in progress. Also known as administrator ad prosequendum, meaning administrator “during the prosecution.” Administrator ad prosequendum: See administrator ad litem. Administrator cum testamento annexo: See administrator with will annexed.Administrator de bonis non (DBN):Latin for “administrator of goods not administered.” This term refers to the person appointed by a probate court to finish probate proceedings when the executor or previous administrator can’t finish the job.Administrator de bonis non cum testamento annexo (DBNCTA):A baffling title for an administrator appointed by a probate court to take over probate proceedings when the named executor dies, leaving the job unfinished. Administrator pendente lite:Latin for “administrator pending litigation.” This term refers to the person appointed by a court to begin probate proceedings during a lawsuit that challenges the will. The administrator pendente lite takes an inventory of the deceased person’s property and handles the business affairs of the estate until the dispute is settled. Also called a special administrator. Administrator with will annexed:An administrator who takes the place of an executor under a will. The administrator steps in either when a will fails to nominate an executor or the named executor is unable to serve. Also called administrator cum testamento annexo or CTA, the Latin version of “with the will annexed.”
An outdated term for a female administrator — the person appointed by a court to handle probate on behalf of someone who died without a will. Now, whether male or female, this person is called the administrator.
n. concerning activities which occur at sea, including on small boats and ships in navigable bays. Admiralty law (maritime law) includes accidents and injuries at sea, maritime contracts and commerce, alleged violations of rules of the sea over shipping lanes and rights-of-way, and mutiny and other crimes on shipboard. Jurisdiction over all these matters rests in the federal courts, which do not use juries in admiralty cases. There are other special rules in processing maritime cases, which are often handled by admiralty law specialists. Lawyers appearing in admiralty cases are called “proctors.”
The evidence that a trial judge or jury may consider, because the rules of evidence deem it reliable. See evidence, inadmissible evidence.
1) An out-of-court statement by your adversary that you offer into evidence as an exception to hearsay rule. 2) One side’s statement that certain facts are true in response to a request from the other side during discovery. against interest: n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. Another party can quote in court an admission against interest even though it is only hearsay. of evidence: a judge’s acceptance of evidence in a trial. of guilt: a statement by someone accused of a crime that he/she committed the offense. If the admission is made outside court to a police officer it may be introduced as evidence if the defendant was given the proper warnings as to his/her rights (“Miranda warning”) before talking.
A court procedure by which an adult becomes the legal parent of someone who is not his or her biological child. Adoption creates a parent-child relationship recognized for all legal purposes — including child support obligations, inheritance rights and custody.
In most situations, any person 18 years of age or older.
Consensual sexual relations by a married person with someone other than his or her spouse. In many states, adultery is technically a crime, though people are rarely prosecuted for it. In states that have retained fault grounds for divorce, adultery is always sufficient grounds for a divorce. In addition, some states alter the distribution of property between divorcing spouses in cases of adultery, giving less to the “cheating” spouse.
n. a payment which is made before it is legally due, such as before shipment is made, a sale is completed, a book is completed by the author, or a note is due to be paid.
In the immigration context, advance parole may be granted to a person who is already in the United States but needs to leave temporarily, without a visa. With advance parole, the applicant’s pending immigration application will not be cancelled while he or she is gone.
n. a gift made by a person to one of his or her children or heirs (a presumptive heir since an heir is only determined on the date of death) in anticipation of a gift from the still-living parent’s potential estate as an advance on one’s inheritance. A person making an advancement should leave a written statement about the advancement or get a signed receipt. Such gifts made shortly before death are more readily treated as an advancement than one made several years earlier.
adj. clearly contrary, such as an adverse party being the one suing you. An adverse interest in real property is a claim against the property, such as an easement.
n. a right or concern that is contrary to the interest or claim of another.
n. the opposite side in a lawsuit. Sometimes when there are numerous parties and cross-complaints, parties may be adverse to each other on some issues and in agreement on other matters. Two beneficiaries of a person who has died may join together to claim a will was valid, but fight each other over the assets of the dead person’s estate if the court rules the will was legal.
A means by which one can legally take another’s property without paying for it. The requirements for adversely possessing property vary between states, but usually include continuous and open use for a period of five or more years and paying taxes on the property in question.
n. a witness in a trial who is found by the judge to be adverse to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his/her client. When the attorney calling the witness finds that answers are contrary to the legal position of his/her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be “adverse” or “hostile.” If the judge declares the witness to be adverse (i.e. hostile) then the attorney may ask “leading” questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition.
n. an opinion stated by a judge or a court upon the request of a legislative body or government agency. An advisory opinion has no force of law but is given as a matter of courtesy. A private citizen cannot get an advisory ruling from a court and can only get rulings in an actual lawsuit. State attorneys general also give advisory opinions at the request of government officials. These opinions are often cited as the probable correct law on the subject but are not binding.
n. 1) any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a County Clerk), that the statements in the document are true. 2) in many states a declaration under penalty of perjury, which does not require the oath-taking before a notary, is the equivalent of an affidavit.
v. what an appeals court does if it agrees with and confirms a lower court’s decision.
Positive or constructive action rather than inaction. Affirmative action programs and regulations attempt to compensate for discriminatory practices that have in the past denied fair consideration to members of minority groups. For example, an all-white government office may take steps to hire people of color. Or, a mostly-male college program may seek to balance its admissions by giving preference to female applicants. Affirmative action programs are controversial in the present political climate — many have recently been eradicated or have come under attack — and the subject is likely to be hotly debated for many years to come.
An explanation for a defendant’s actions that excuses or justifies his behavior. For example, acting in self-defense is a common affirmative defense to a charge of battery or homicide. Other affirmative defenses include insanity, duress and intoxication.
v. 1) to attach something to real estate in a permanent way, including planting trees and shrubs, constructing a building, or adding to existing improvements. The key is that affixed items are permanent and cannot be picked up and moved away like a washing machine. 2) to sign or seal, as affix a signature or a seal.
n. 1) personal or real property acquired by a debtor after he/she has agreed that all his/her property secures a debt. Thus, the new property also becomes security for the debt. This includes improvements to real property which is security on a deed of trust or mortgage and personal property pledged in a security agreement. 2) in bankruptcy, property acquired by the bankrupt person after he/she has filed papers to be declared bankrupt. This after-acquired property is not included in the assets which may be used to pay any debts which existed at the time of bankruptcy filing.
n. title to property acquired after the owner attempts to sell or transfer the title to another person before he/she actually got legal title. When the title is acquired by the seller in this paper shuffle, title automatically goes to the person to whom it was sold, passing through the person who acquired title “like a dose of salts” on its way to the new purchaser.
n. evidence found by a losing party after a trial has been completed and judgment (or criminal conviction) given, also called newly-discovered evidence. If the evidence absolutely could not have been discovered at the time of trial, it may be considered on a motion for a new trial.
Age Discrimination in Employment Act (ADEA)
A federal law that prohibits arbitrary discrimination against workers over the age of 40 in any employment decision, especially firing. The ADEA also provides that no worker can be forced to retire.
Age of majority
Adulthood in the eyes of the law. After reaching the age of majority, a person is permitted to vote, make a valid will, enter into binding contracts, enlist in the armed forces and purchase alcohol. Also, parents may stop making child support payments when a child reaches the age of majority. In most states the age of majority is 18, but this varies depending on the activity. For example, in some states people are allowed to vote when they reach the age of eighteen, but can’t purchase alcohol until they’re 21.
A person authorized to act for and under the direction of another person when dealing with third parties. The person who appoints an agent is called the principal. An agent can enter into binding agreements on the principal’s behalf and may even create liability for the principal if the agent causes harm while carrying out his or her duties. See also attorney-in-fact.
To make more serious or severe.
Circumstances that increase the seriousness or outrageousness of a given crime, and that in turn increase the wrongdoer’s penalty or punishment. For example, the crime of aggravated assault is a physical attack made worse because it is committed with a dangerous weapon, results in severe bodily injury or is made in conjunction with another serious crime. Aggravated assault is usually considered a felony, punishable by a prison sentence.
A meeting of the minds. An agreement is made when two people reach an understanding about a particular issue, including their obligations, duties and rights. While agreement is sometimes used to mean contract — a legally binding oral or written agreement — it is actually a broader term, including understandings that might not rise to the level of a legally binding contract.
Alien registration receipt card (ARC)
The official name used in immigration law for a green card.
The money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Except in marriages of long duration (ten years or more) or in the case of an ailing spouse, alimony usually lasts for a set period, with the expectation that the recipient spouse will become self-supporting. Alimony is also called “spousal support” or “maintenance.”
adj. a definite fractional share, usually applied when dividing and distributing a dead person’s estate or trust assets.
A statement by a party in a pleading describing what that party’s position is and what that party intends to prove.
n. an increase in one’s land from soil deposited on the shoreline by natural action of a stream, river, bay or ocean.
n. a corporation, organization or other entity set up to provide a legal shield for the person actually controlling the operation.
A person, organization or institution that receives property through a will, trust or insurance policy when the first named beneficiary is unable or refuses to take the property. For example, in his will Jake leaves his collection of sheet music to his daughter, Mia, and names the local symphony as alternate beneficiary. When Jake dies, Mia decides that the symphony can make better use of the sheet music than she can, so she refuses (disclaims) the gift, and the manuscripts pass directly to the symphony. In insurance law, the alternate beneficiary, usually the person who receives the insurance proceeds because the initial or primary beneficiary has died, is called the secondary or contingent beneficiary.
Alternative dispute resolution (ADR)
A catchall term that describes a number of methods used to resolve disputes out of court, including negotiation, conciliation, mediation and the many types of arbitration. The common denominator of all ADR methods is that they are faster, less formalistic, cheaper and often less adversarial than a court trial. In recent years the term Alternative Dispute Resolution has begun to lose favor in some circles and ADR has come to mean Appropriate Dispute Resolution. The point of this semantic change is to emphasize that ADR methods stand on their own as effective ways to resolve disputes and should not be seen simply as alternatives to a court action.
Americans With Disabilities Act (ADA)
A federal law that prohibits discrimination against people with physical or mental disabilities in employment, public services and places of public accommodation, such as restaurants, hotels and theaters.
Latin for “friend of the court.” This term describes a person or organization that is not a party to a lawsuit as plaintiff or defendant but that has a strong interest in the case and wants to get its two cents in. For example, the ACLU often submits materials to support a person who claims a violation of civil rights even though that person is represented by a lawyer.
A probate proceeding conducted in a different state from the one the deceased person resided in at the time of death. Usually, ancillary probate proceedings are necessary if the deceased person owned real estate in another state.
A term commonly used to refer to annual meetings of shareholders or directors of a corporation. Shareholders normally meet to elect directors or to consider major structural changes to the corporation, such as amending the articles of incorporation or merging or dissolving the corporation. Directors meet to consider or ratify important business decisions, such as borrowing money, buying real property or hiring key employees.
A purchased policy that pays a fixed amount of benefits every year — although most annuities actually pay monthly — for the life of the person who is entitled to those benefits. In a simple life annuity, when the person receiving the annuity dies, the benefits stop; there is no final lump sum payment and no provision to pay benefits to a spouse or other survivor. A continuous annuity pays monthly installments for the life of the retired worker, and also provides a smaller continuing annuity for the worker’s spouse or other survivor after the worker’s death. A joint and survivor annuity pays monthly benefits as long as the retired worker is alive, and then continues to pay the worker’s spouse for life.
A court procedure that dissolves a marriage and treats it as if it never happened. Annulments are rare since the advent of no-fault divorce but may be obtained in most states for one of the following reasons: misrepresentation, concealment (for example, of an addiction or criminal record), misunderstanding and refusal to consummate the marriage.
A defendant’s written response to a plaintiff’s initial court filing (called a complaint or petition). An answer normally denies some or all facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff (called counterclaims). Normally a defendant has 30 days in which to file an answer after being served with the plaintiff’s complaint. In some courts, an answer is simply called a “response.”
Antenuptial (prenuptial) agreement
n. a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved.
In patent law, a situation in which an invention is “anticipated” by being too similar to an earlier invention to be considered novel. Because novelty is a requirement for a patent, anticipated inventions are not patentable. Anticipation can occur when a prior invention or printed publication matches all of the primary characteristics of the invention, or it can happen when the invention is displayed or offered for sale more than a year prior to filing a patent application. For example, a bird owner invents a device to keep her bird from picking at its tail feathers. She applies for a patent, but her application is rejected on the ground that the same device was in use 3500 years ago in Egypt. In patent-speak, the inventor’s creation has been anticipated by previous developments (the prior art.)
n. when a party to a contract repudiates (reneges on) his/her obligations under that contract before fully performing those obligations. This can be by word (“I won’t deliver the rest of the goods” or “I can’t make any more payments”) or by action (not showing up with goods or stopping payments). The result is that the other party does not have to perform his/her obligations and cannot be liable for not doing so. This is often a defense to a lawsuit for payment or performance on a contract. One cannot repudiate his obligations and demand that the other person perform.
n. acts adopted by Congress to outlaw or restrict business practices considered to be monopolistic or which restrain interstate commerce. The Sherman Antitrust Act of 1890 declared illegal “every contract, combination…or conspiracy in restraint of trade or commerce” between states or foreign countries. The Clayton Antitrust Act of 1914, amended by the Robinson-Patman Act of 1936, prohibits discrimination among customers through pricing and disallows mergers, acquisitions or takeovers of one firm by another if the effect will “substantially lessen competition.” Interstate commerce includes commerce within a state which affects the flow of that commerce, thus making it pretty broad. There are also some state laws against restraint of trade. The Antitrust Division of the U.S. Department of Justice enforces for the federal government, but private lawsuits to halt antitrust activities have become increasingly popular, particularly since attorney’s fees are awarded to the winning party. This is a legal specialty which has kept some industries relatively honest and made some lawyers wealthy.
A written request to a higher court to modify or reverse the judgment of a trial court or intermediate level appellate court. Normally, an appellate court accepts as true all the facts that the trial judge or jury found to be true, and decides only whether the judge made mistakes in understanding and applying the law. If the appellate court decides that a mistake was made that changed the outcome, it will direct the lower court to conduct a new trial, but often the mistakes are deemed “harmless” and the judgment is left alone. Some mistakes are corrected by the appellate court — such as a miscalculation of money damages — without sending the case back to the trial court. An appeal begins when the loser at trial — or in an intermediate level appellate court — files a notice of appeal, which must be done within strict time limits (often 30 days from the date of judgment). The loser (called the appellant) and the winner (called the appellee) submit written arguments (called briefs) and often make oral arguments explaining why the lower court’s decision should be upheld or overturned.
A party to a lawsuit who appeals a losing decision to a higher court in an effort to have it modified or reversed.
A higher court that reviews the decision of a lower court when a losing party files for an appeal.
A party to a lawsuit who wins in the trial court — or sometimes on a first appeal — only to have the other party (called the appellant) file for an appeal. An appellee files a written brief and often makes an oral argument before the appellate court, asking that the lower court’s judgment be upheld. In some courts, an appellee is called a respondent.
A determination of the value of something, such as a house, jewelry or stock. A professional appraiser — a qualified, disinterested expert — makes an estimate by examining the property, and looking at the initial purchase price and comparing it with recent sales of similar property. Courts commonly order appraisals in probate, condemnation, bankruptcy or foreclosure proceedings in order to determine the fair market value of property. Banks and real estate companies use appraisals to ascertain the worth of real estate for lending purposes. And insurance companies require appraisals to determine the amount of damage done to covered property before settling insurance claims.
A person who is hired to determine the current value of real estate or other property.
An increase in value. Appreciated property is property that has gone up in value since it was acquired.
A non-court procedure for resolving disputes using one or more neutral third parties — called the arbitrator or arbitration panel. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts, which usually leads to a faster, less-expensive resolution. There are many types of arbitration in common use: Binding arbitration is similar to a court proceeding in that the arbitrator has the power to impose a decision, although this is sometimes limited by agreement — for example, in “hi-lo arbitration” the parties may agree in advance to a maximum and minimum award. In non-binding arbitration, the arbitrator can recommend but not impose a decision. Many contracts — including those imposed on customers by many financial and healthcare organizations — require mandatory arbitration in the event of a dispute. This may be reasonable when the arbitrator really is neutral, but is justifiably criticized when the large company that writes the contract is able to influence the choice of the arbitrator.
Latin meaning “for the sake of argument,” used by lawyers in the context of “assuming arguendo” that the facts were as the other party contends, but the law prevents the other side from prevailing.
A persuasive presentation of the law and facts of a case or particular issue within a case to the judge or jury.
A court appearance in which the defendant is formally charged with a crime and asked to respond by pleading guilty, not guilty or nolo contendere. Other matters often handled at the arraignment are arranging for the appointment of a lawyer to represent the defendant and the setting of bail.
Overdue alimony or child support payments. In recent years, state laws have made it difficult to impossible to get rid of arrearages; they can’t be discharged in bankruptcy, and courts usually will not retroactively cancel them. A spouse or parent who falls on tough times and is unable to make payments should request a temporary modification of the payments before the arrearages build up.
A situation in which the police detain a person in a manner that, to any reasonable person, makes it clear she is not free to leave. A person can be “under arrest” even though the police have not announced it; nor are handcuffs or physical restraint necessary. Questioning an arrested person about her involvement in or knowledge of a crime must be preceded by the Miranda warnings if the police intend to use the answers against the person in a criminal case. If the arrested person chooses to remain silent, the questioning must stop.
A document issued by a judge or magistrate that authorizes the police to arrest someone. Warrants are issued when law enforcement personnel present evidence to the judge or magistrate that convinces her that it is reasonably likely that a crime has taken place and that the person to be named in the warrant is criminally responsible for that crime.
Articles of incorporation
A document filed with state authorities (usually the Secretary of State or Corporations Commissioner, depending on the state) to form a corporation. As required by the general incorporation law of the state, the Articles normally include the purpose of the corporation, its principal place of business, the names of its initial directors who will control it, and the amounts and types of stock it is authorized to issue.
A crime that occurs when one person tries to physically harm another in a way that makes the person under attack feel immediately threatened. Actual physical contact is not necessary; threatening gestures that would alarm any reasonable person can constitute an assault.
n. generally any item of property that has monetary value, including articles with only sentimental value (particularly in the estates of the dead). Assets are shown in balance sheets of businesses and inventories of probate estates. There are current assets (which includes accounts receivable), fixed assets (basic equipment and structures), and such intangibles as business good will and rights to market a product.
A person to whom a property right is transferred. For example, an assignee may take over a lease from a tenant who wants to permanently move out before the lease expires. The assignee takes control of the property and assumes all the legal rights and responsibilities of the tenant, including payment of rent. However, the original tenant remains legally responsible if the assignee fails to pay the rent.
A transfer of property rights from one person to another, called the assignee. Of copyright: The unconditional transfer of all rights contained in a copyright from the owner to another person or entity.
A group of people who have joined together for a common purpose. Unlike a corporation, an association is not a legal entity. The law may treat an association like a corporation, however, if it has been operating in a corporate manner — for example, if it has a charter and shareholders.
n. the person or entity that is insured, often found in insurance contracts.
Also called “political asylum.” This is a legal status granted to someone who has fled to the United States and submitted an application proving that he or she fears persecution if forced to return to his or her home country. Asylees can apply for a green card one year after their asylum approval.
At issue memorandum
A document that states that all parties to a case have been served, that the parties disagree (or are “at issue”) over one or more points to be resolved at trial, and how much time the parties estimate will be required for trial.
At will employment
The right of employers to fire employees for any reason, or for no reason at all. It also gives employees the legal right to quit their jobs at any time for any reason. Despite this legal doctine, employers may not fire employees in a way that discriminates, violates public policy or conflicts with written or implied promises they make concerning the length of employment or grounds for termination.
The act of watching someone sign a legal document, such as a will or power of attorney, and then signing your own name as a witness. When you witness a document in this way, you are attesting — that is, stating and confirming — that the person whom you watched sign the document in fact did so. Attesting to a document does not mean that you are vouching for its accuracy or truthfulness. You are only acknowledging that you watched it being signed by the person whose name is on the signature line.
n. 1) an agent or someone authorized to act for another. 2) a person who has been qualified by a state or federal court to provide legal services, including appearing in court. Each state has a bar examination which is a qualifying test to practice law. The examinations vary in difficulty, but cannot be taken until the applicant is a graduate of an accredited law school (with a three-year minimum course of study) or in seven states has fulfilled extensive other training. Passage of the bar examination qualifies the attorney for that state only and for the federal courts located in that state (and other federal courts upon request). Some states will accept attorneys from other states, but many will not grant this “reciprocity” and require at least a basic test for out-of-state attorneys. Attorneys from other states may practice in a limited way, but cannot appear (except on a single case with court permission) in state courts (but in federal courts). Graduation from law school does not make one an attorney. There are also patent attorneys who can practice in federal patent courts only and have both legal and engineering training. Most patent attorneys today are regular attorneys who specialize. An alternate word for lawyers or barrister and solicitor, used mostly in the USA.
Attorney at law (or attorney-at-law)
n. a way of saying attorney or lawyer.
The payment made to a lawyer for legal services. These fees may take several forms: 1) hourly; 2) per job or service — for example, $350 to draft a will; 3) contingency (the lawyer collects a percentage of any money she wins for her client and nothing if there is no recovery), or 4) retainer (usually a down payment as part of an hourly or per job fee agreement). Attorney fees must usually be paid by the client who hires a lawyer, though occasionally a law or contract will require the losing party of a lawsuit to pay the winner’s court costs and attorney fees. For example, a contract might contain a provision that says the loser of any lawsuit between the parties to the contract will pay the winner’s attorney fees. Many laws designed to protect consumers also provide for attorney fees — for example, most state laws that require landlords to provide habitable housing also specify that a tenant who sues and wins using that law may collect attorney fees. And in family law cases — divorce, custody and child support — judges often have the power to order the more affluent spouse to pay the other spouse’s attorney fees, even where there is no clear victor.
Head of the United States Department of Justice and chief law officer of the Federal government. The Attorney General represents the United States in legal matters, oversees federal prosecutors, and provides legal advice to the President and to heads of executive governmental departments. Each state also has an attorney general, responsible for advising the governor and state agencies and departments about legal issues, and overseeing state prosecuting attorneys.
Attorney work product privilege
A rule that protects materials prepared by a lawyer in preparation for trial from being seen and used by the adversary during discovery or trial.
A rule that keeps communications between an attorney and her client confidential and bars them from being used as evidence in a trial, or even being seen by the opposing party during discovery.
A person named in a written power of attorney document to act on behalf of the person who signs the document, called the principal. The attorney-in-fact’s power and responsibilities depend on the specific powers granted in the power of attorney document. An attorney-in-fact is an agent of the principal.
Something on a piece of property that attracts children but also endangers their safety. For example, unfenced swimming pools, open pits, farm equipment and abandoned refrigerators have all qualified as attractive nuisances.
An examination of the financial records of a person, business, or organization, typically done to correct careless or improper bookkeeping or to verify that proper records are being kept. Businesses and nonprofits often undergo an annual audit by an independent accounting firm. The IRS also conducts audits, mainly to assess taxes owed.
In general terms, an augmented estate consists of property owned by both a deceased person and his or her spouse. The concept of the augmented estate is used only in some states. Its value is calculated only if a surviving spouse declines whatever he or she was left by will and instead claims a share of the deceased spouse’s estate. (This is called taking against the will.) The amount of this “statutory share” or “elective share” depends on state law.
To offer testimony that tells the judge what an item of evidence is and its connection to the case.
In terms of copyright protection, either the person who creates the work, the person or business that pays another to create the work in an employment context or the person or business that commissions the work under a valid work for hire contract. For example, a songwriter may write a song, but if he is employed by a company to do so, the company is the author of that song for copyright purposes.
n. 1) previous decisions by courts of appeal which provide legal guidance to a court on questions in a current lawsuit, which are called “precedents.” Legal briefs (written arguments) are often called “points and authorities.” Thus, a lawyer “cites” the previously decided cases as “authorities” for his/her legal positions. 2) a common term for law enforcement, as in “I’m going to call the authorities” (i.e. police).
v. to officially empower someone to act.
An injunction automatically issued by the bankruptcy court when a debtor files for bankruptcy. The automatic stay prohibits most creditor collection activities, such as filing or continuing lawsuits, making written requests for payment, or notifying credit reporting bureaus of an unpaid debt.
Any amount available to the owner of an insurance policy other than the actual proceeds of the policy. Avails include dividend payments, interest, cash or surrender value (the money you’d get if you sold your policy back to the insurance company) and loan value (the amount of cash you can borrow against the policy).
A direct statement or declaration. Also, a statement made by a witness after the judge has ruled that his or her testimony is not admissible at trial. This statement “preserves” the testimony so that it may be considered by the court if the trial’s outcome is an appeal.
1) n. the decision of an arbitrator or commissioner (or any non-judicial arbiter) of a controversy. 2) v. to give a judgment of money to a party to a lawsuit, arbitration, or administrative claim.