In a lawsuit, money awarded to one party based on injury or loss caused by the other. There are many different types or categories of damages that occasionally overlap, including: compensatory damages: Damages that cover actual injury or economic loss. Compensatory damages are intended to put the injured party in the position he was in prior to the injury. Compensatory damages typically include medical expenses, lost wages and the repair or replacement of property. Also called “actual damages.” general damages: Damages intended to cover injuries for which an exact dollar amount cannot be calculated. General damages are usually composed of pain and suffering, but can also include compensation for a shortened life expectancy, loss of the companionship of a loved one and, in defamation cases (libel and slander), loss of reputation. nominal damages: A term used when a judge or jury finds in favor of one party to a lawsuit–often because a law requires them to do so–but concludes that no real harm was done and therefore awards a very small amount of money. For example, if one neighbor sues another for libel based on untrue things the second neighbor said about the first, a jury might conclude that although libel technically occurred, no serious damage was done to the first neighbor’s reputation and consequentially award nominal damages of $1.00. punitive damages: Sometimes called exemplary damages, awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct. special damages: Damages that cover the winning party’s out-of-pocket costs. For example, in a vehicle accident, special damages typically include medical expenses, car repair costs, rental car fees and lost wages. Often called “specials.” statutory damages: Damages required by statutory law. For example, in many states if a landlord doesn’t return a tenant’s security deposit in a timely fashion or give a reason why it is being withheld, the state statutes give the judge authority to order the landlord to pay damages of double or triple the amount of the deposit. treble damages: Lawyerspeak for triple damages. To penalize lawbreakers, statutes occasionally give judges the power to award the winning party in a civil lawsuit the amount it lost as a result of the other party’s illegal conduct, plus damages of three times that amount. A cash compensation ordered by a court to offset losses or suffering caused by another’s fault or negligence.
n. short for “doing business as,” when a person or entity uses a business name instead of his/her/its own. All states have requirements for filing a certificate of “doing business under a fictitious name” either with the County Clerk, the state Secretary of State or some other official to inform the public as to the real person or entity behind a business name. It is not necessary if the business includes the name of the true owner and is not to be confused with the use of a corporation name, since that is registered with the state.
Latin for “in fact.” Often used in place of “actual” to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.
De facto corporation
n. a company which operates as if it were a corporation although it has not completed the legal steps to become incorporated (has not filed its articles, for example) or has been dissolved or suspended but continues to function. The court temporarily treats the corporation as if it were legal in order to avoid unfairness to people who thought the corporation was legal.
Latin for “lawful,” as distinguished from de facto (actual).
De jure corporation
n. a corporation in good standing under the law, as compared to a de facto corporation which is acting while not fulfilling legal requirements.
Latin for “of minimum importance” or “trifling.” Essentially it refers to something or a difference that is so little, small, minuscule or tiny that the law does not refer to it and will not consider it.
Latin for “anew,” which means starting over, as in a trial de novo. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, de novo.
n. anyone who buys goods or property for the purpose of selling as a business. It is important to distinguish a dealer from someone who occasionally buys and occasionally sells, since dealers may need to obtain business licenses, register with the sales tax authorities, and may not defer capital gains taxes by buying other property.
Taxes levied at death, based on the value of property left behind. Federal death taxes are called estate taxes. Some states levy inheritance taxes on people who inherit property.
A type of bond (an interest-bearing document that serves as evidence of a debt) that does not require security in the form of a mortgage or lien on a specific piece of property. Repayment of a debenture is guaranteed only by the general credit of the issuer. For example, a corporation may issue a secured bond that gives the bondholder a lien on the corporation’s factory. But if it issues a debenture, the loan is not secured by any property at all. When a corporation issues debentures, the holders are considered creditors of the corporation and are entitled to payment before shareholders if the business folds.
A card issued by a bank that combines the functions of an ATM card and checks. A debit card can be used to withdraw cash at a bank like an ATM card, and it can also be used at stores to pay for goods and services in place of a check. Unlike a credit card, a debit card automatically withdraws money from your checking account at the time of the transaction. Debit cards are regulated by the Electronic Funds Transfer Act.
n. 1) a sum of money due to another. 2) obligation to deliver particular goods or perform certain acts according to an agreement, such as returning a favor. 3) a cause of action in a lawsuit for a particular amount owed.
A person who works in the in-house collections department of an original creditor or a collection agency to track down debtors and get them to pay what they owe. Debt collectors can be relentless, often using scare tactics, humiliation and repeated phone calls to extract payments or promises to pay.
A person or entity (such as a corporation) who owes money. A person who owes money, goods or services to another, the latter being referred to as the creditor.
Debtor in possession
n. in bankruptcy proceedings when a debtor has filed for the right to submit a plan for reorganization or refinancing, and the debtor is allowed to continue to manage his/her/its business without an appointed trustee, that debtor is called a “debtor in possession.”
1) adj. dead. 2) n. the person who has died, as used in the handling of his/her estate, probate of will and other proceedings after death, or in reference to the victim of a homicide (as: “The deceased had been shot three times.”) In probate law the more genteel word is the “decedent.”
A person who has died, also called “deceased.”
n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.
n. the act of misleading another through intentionally false statements or fraudulent actions.
v. for a judge, arbitrator, court of appeals or other magistrate or tribunal to reach a determination (decision) by choosing what is right and wrong according to the law as he/she sees it.
The outcome of a proceeding before a judge, arbitrator, government agency or other legal tribunal. “Decision” is a general term often used interchangeably with the terms judgment or “opinion.” To be precise, however, a judgment is the written form of the court’s decision in the clerk’s minutes or notes, and an opinion is a written document setting out the reasons for reaching the decision.
n. the person making a statement, usually written and signed by that person, under “penalty of perjury” pursuant to the laws of the state in which the statement, called a declaration, is made. The declaration is more commonly used than the affidavit, which is similar to a declaration but requires taking an oath to swear to the truth attested to (certified in writing) by a notary public. In theory, a declarant who knowingly does not tell the truth would be subject to the criminal charge of perjury. Such violations are seldom pursued.
n. 1) any statement made, particularly in writing. 2) a written statement made “under penalty of perjury” and signed by the declarant, which is the modern substitute for the more cumbersome affidavit, which requires swearing to its truth before a notary public.
Declaration of mailing
n. a form stating that a particular document has been mailed to a particular person or persons (such as opposing attorneys or the clerk of the court) and declaring the truth of that fact “under penalty of perjury,” and signed by the person in the law office responsible for mailing it. This is almost always required to be attached to filed documents so that the court is assured it has been sent to the other party.
Declaration of trust
n. the document signed by a trustor (settlor) creating a trust into which assets are placed, a trustee is appointed to manage the trust (who may be the party who created the trust), the powers and duties of management of the principal and profits of the trust are stated, and distribution of profits and principal is spelled out.
Declaration under penalty of perjury
A signed statement, sworn to be true by the signer, that will make the signer guilty of the crime of perjury if the statement is shown to be materially false — that is, the lie is relevant and significant to the case.
A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Unlike most court cases, where the plaintiff asks for damages or other court orders, the plaintiff in a declaratory judgment case simply wants the court to resolve an uncertainty so that it can avoid serious legal trouble in the future. Courts are usually reluctant to hear declaratory judgment cases, preferring to wait until there has been a measurable loss. But especially in cases involving important constitutional rights, courts will step in to clarify the legal landscape. For example, many cities regulate the right to assemble by requiring permits to hold a parade. A disappointed applicant who thinks the decision-making process is unconstitutional might hold his parade anyway and challenge the ordinance after he’s cited; or he might ask a court beforehand to rule on the constitutionality of the law. By going to court, the applicant may avoid a messy confrontation with the city — and perhaps a citation, as well.
n. a judge’s determination (called a “declaratory judgment”) of the parties’ rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.
n. in general, synonymous with judgment. However, in some areas of the law, the term decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law and in equity (court rulings ordering or prohibiting certain acts). Thus, there may be references to a final or interlocutory decree of divorce, final decree of distribution of a dead person’s estate, etc.
n. the repeal or amendment of statutes which made certain acts criminal, so that those acts no longer are crimes subject to prosecution. Many states have decriminalized certain sexual practices between consenting adults, “loitering” (hanging out without any criminal activity), or outmoded racist laws against miscegenation (marriage or cohabitation between people of different races). Currently, there is a considerable movement toward decriminalization of the use of some narcotics (particularly marijuana) by adults, on various grounds, including individual rights and contention that decriminalization would take the profit out of the drug trade by making drugs available through clinics and other legal sources.
n. the giving of land by a private person or entity to the government, typically for a street, park or school site, as part of and a condition of a real estate development. The local county or city (or other public body) must accept the dedication before it is complete. In many cases there are “dedicated” streets on old subdivision maps which were never officially accepted and, in effect, belong to no one. The adjoining property owners can sue for a judgment to give them the title to the unclaimed (unowned) street or property by a quiet title action or request abandonment by the government which did not accept the street or other property.
An outdated legal procedure that permitted a party to take and record the testimony of a witness before trial, but only when that testimony might otherwise be lost. For example, a party to a lawsuit might use the procedure to obtain the testimony of a witness who was terminally ill and might not be able to testify at the trial. Nowadays, the Federal Rules of Civil Procedure routinely permit the taking of testimony before trial if that testimony might otherwise be lost.
Something that is taken away or subtracted. Under an insurance policy, for example, the deductible is the maximum amount that an insured person must pay toward his own losses before he can recover from the insurer. For example, Julie’s car insurance policy has a $500 deductible. One day she forgets to set her parking brake and the car rolls backwards into a telephone pole, sustaining $2,500 in damage. Julie’s insurance company deducts $500 from the total amount and issues a check to the auto body shop for $2,000.
In tax law, an amount that you can subtract from the total amount of income on which you owe tax. Examples of federal income tax deductions include mortgage interest, charitable contributions, and certain state taxes.
A document that transfers ownership of real estate
Deed in lieu (of foreclosure)
A means of escaping an overly burdensome mortgage. If a homeowner can’t make the mortgage payments and can’t find a buyer for the house, many lenders will accept ownership of the property in place of the money owed on the mortgage. Even if the lender won’t agree to accept the property, the homeowner can prepare a quitclaim deed that unilaterally transfers the homeowner’s property rights to the lender.
Deed of trust
n. a document which pledges real property to secure a loan, used instead of a mortgage in Alaska, Arizona, California, Colorado, Georgia, Idaho, Illinois, Mississippi, Missouri, Montana, North Carolina, Texas, Virginia and West Virginia. The property is deeded by the title holder (trustor) to a trustee (often a title or escrow company) which holds the title in trust for the beneficiary (the lender of the money). When the loan is fully paid, the trustor requests the trustee to return the title by reconveyance. If the loan becomes delinquent the beneficiary can file a notice of default and, if the loan is not brought current, can demand that the trustee begin foreclosure on the property so that the beneficiary may either be paid or obtain title.
A link from one website to another that bypasses the second website’s home page and takes the user directly to an internal page on the site. For example, a deep link from Yahoo might take the user directly to a news article on a news site instead of linking to the home page of the site.
Withholding or misappropriating funds held for another, particularly by a public official, or failing to make a proper accounting.
A false statement that injures someone’s reputation and exposes him to public contempt, hatred, ridicule, or condemnation. If the false statement is published in print or through broadcast media, such as radio or TV, it is called libel. If it is only spoken, it is called slander.
A failure to perform a legal duty. For example, a default on a mortgage or car loan happens when you fail to make the loan payments on time, fail to maintain adequate insurance or violate some other provision of the agreement. Default on a student loan occurs when you fail to repay a loan according to the terms you agreed to when you signed the promissory note, and the holder of your loan concludes that you do not intend to repay.
At trial, a decision awarded to the plaintiff when a defendant fails to contest the case. To appeal a default judgment, a defendant must first file a motion in the court that issued it to have the default vacated (set aside).
A clause in a deed, lease, will or other legal document that completely or partially negates the document if a certain condition occurs or fails to occur. Defeasance also means the act of rendering something null and void. For example, a will may provide that a gift of property is defeasable — that is, it will be void — if the beneficiary fails to marry before the willmaker’s death.
n. an imperfection, quite often so great that the machinery or written document cannot be used. A car that will not run or has faulty brakes has a defect, and so does a deed in which a party who signed the deed to give over property did not have title to the property described. There are also minor defects, like scratches that only lessen value but do not make an object useless.
adj. not being capable of fulfilling its function, ranging from a deed of land to a piece of equipment.
n. an apparent title to real property which fails because a claimed prior holder of the title did not have title, or there is a faulty description of the property or some other “cloud” over it, which may or may not be apparent from reading the deed.
The person against whom a lawsuit is filed. In certain states, and in certain types of lawsuits, the defendant is called the respondent. Compare plaintiff, petitioner.
n. 1) a general term for the effort of an attorney representing a defendant during trial and in pre-trial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) a response to a complaint, called an affirmative defense, to counter, defeat or remove all or a part of the contentions of the plaintiff.
n. 1) the attorney representing the defendant in a lawsuit or criminal prosecution. 2) a lawyer who regularly represents defendants who have insurance and who is chosen by the insurance company. 3) a lawyer who regularly represents criminal defendants. Attorneys who regularly represent clients in actions for damages are often called “plaintiff’s attorneys.”
n. a judgment for an amount not covered by the value of security put up for a loan or installment payments. In most states the party owed money can only get a deficiency judgment if he/she chooses to file a suit for judicial foreclosure instead of just foreclosing on real property. However, some states allow a lawsuit for a deficiency after foreclosure on the mortgage or deed of trust. The right to a deficiency judgment is often written into a lease or installment contract on a vehicle. There is a danger that the sale of a repossessed vehicle will be at a wholesale price or to a friend at a sheriff’s sale or auction, leaving the debtor holding the bag for the difference between the sale price and remainder due on the lease or contract.
n. a shortage, less than is due, or in the case of a business or government budget, more expenditures than income. Unbalanced budgets with a planned year-end deficit are prohibited at every level of government except the federal.
Defined benefit plan
A type of pension plan that pays a definite, pre-determined amount of money when the worker retires or becomes disabled. The amount received is based on length of service with a particular employer. Most often, the monthly benefit is a fixed amount of money for each year of service. Payments under a defined benefit plan may also be calculated as a percentage of salary over the years.
Defined contribution plan
A type of pension plan that does not guarantee any particular pension amount upon retirement. Instead, the employer pays into the pension fund a certain amount every month, or every year, for each employee. The employer usually pays a fixed percentage of an employee’s wages or salary, although sometimes the amount is a fraction of the company’s profits, with the size of each employee’s pension share depending on the amount of wage or salary. Upon retirement, each employee’s pension is determined by how much was contributed to the fund on behalf of that employee over the years, plus whatever earnings that money has accumulated as part of the investments of the entire pension fund.
v. to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another.
Degree of kinship
n. the level of relationship between two persons related by blood, such as parent to child, one sibling to another, grandparent to grandchild or uncle to nephew, first cousins, etc., calculated as one degree for each step from a common ancestor. This may become important when determining the heirs of an estate when there is no will.
n. an exchange of property to put off capital gain taxes, in which the funds are placed in a binding trust for up to 180 days while the seller acquires an “exchanged” (another similar) property.It is sometimes called a “Starker” after the man who first used this method.
1) v. to assign authority to another. 2) n. a person chosen to attend a convention, conference or meeting on behalf of an organization, constituency, interest group or business.
1) adj. done with care and intention or premeditated. 2) v. to consider the facts, the laws and/or other matters, particularly by members of a jury, a panel of judges or by any group including a legislature.
n. the act of considering, discussing and, hopefully, reaching a conclusion, such as a jury’s discussions, voting and decision-making.
1) adj. not paid in full amount or on time. 2) n. short for an underage violator of the law as in juvenile delinquent.
v. to actually hand an object, money or document to another.
n. the actual handing to another of an object, money or document (such as a deed) to complete a transaction. The delivery of a deed transfers title (provided it is then recorded), and the delivery of goods makes a sale complete and final if payment has been made. Symbolic or constructive delivery (depositing something with an agent or third person) falls short of completion unless agreed to by the parties.
1) v. to claim as a need, requirement or entitlement, as in to demand payment or performance under a contract. In a lawsuit for payment of a debt or performance of an act, the party suing (plaintiff) should allege that he/she/it demanded payment or performance. 2) n. a claim, such as an unqualified request for payment or other action. 3) the amount requested by a plaintiff (usually in writing) during negotiations to settle a lawsuit. 4) adj. referring to a note payable at any time a request to pay is made.
n. a promissory note which is payable any time the holder of the note makes a request. This is different from a note due at a specific time, upon occurrence of an event, or by installments.
1) v. an old-fashioned expression meaning to lease or transfer (convey) real property for years or life, but not beyond that. 2) n. the deed that conveys real property only for years or life. 3) n. death. 4) n. failure.
n. actual objects, pictures, models and other devices which are supposedly intended to clarify the facts for the judge and jury: how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime. Many of these are not supposed to be actual evidence, but “aids” to understanding. A model of a knee or a photograph of an accident scene obviously helps, but color photos of an operation in progress or a bullet-riddled body can excite the passions of a jury. The borderline balance between legitimate aids and evidence intended to inflame a juror’s emotions is in the hands of the trial judge.
A request made to a court, asking it to dismiss a lawsuit on the grounds that no legal claim is asserted. For example, you might file a demurrer if your neighbor sued you for parking on the street in front of her house. Your parking habits may annoy your neighbor, but the curb is public property and parking there doesn’t cause any harm recognized by the law. After a demurrer is filed, the judge holds a hearing at which both sides can make their arguments about the matter. The judge may dismiss all or part of the lawsuit, or may allow the party who filed the lawsuit to amend its complaint. In some states and in federal court, the term demurrer has been replaced by “motion to dismiss for failure to state a claim” (called a “12(b)(6) motion” in federal court) or similar term.
n. a statement in the defendant’s answer to a complaint in a lawsuit that an allegation (claim of fact) is not true. If a defendant denies all allegations it is called a general denial. In answering, the defendant is limited to admitting, denying or denying on the basis he/she/it has no information to affirm or deny. The defendant may also state affirmative defenses.
1) n. a person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce his/her income taxes. 2) adj. requiring an event to occur, as the fulfillment of a contract is dependent on the expert being available.
A type of Social Security benefit available to spouses and minor or disabled children of retired or disabled workers who qualify for either retirement or disability benefits under the program’s rigorous qualification guidelines.
n. when a natural resource (particularly oil) is being used up. The annual amount of depletion may, ironically, provide a tax deduction for the company exploiting the resource because if the resource they are exploiting runs out, they will no longer be able to make money from it.
Someone whose deposition is being taken.
An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney’s office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on (impeach) a witness’s contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place — for example, if he or she has died — the deposition may be read to the jury in place of live testimony.
v. in accounting, to reduce the value of an asset each year theoretically on the basis that the assets (such as equipment, vehicles or structures) will eventually become obsolete, worn out and of little value.
n. the actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a business deduction for income tax reduction, spread out over the expected useful life of the asset (straight line) or at a higher rate in the early years of use (accelerated).
n. a business fund in which the probable replacement cost of equipment is accumulated each year over the life of the asset, so it can be replaced readily when it becomes obsolete and totally depreciated.
n. something or someone who is abandoned, such as a ship left to drift at sea or a homeless person ignored by family and society.
n. 1) abandoning possession, which is sometimes used in the phrase “dereliction of duty.” It includes abandoning a ship, which then becomes a “derelict” which salvagers can board. 2) an old expression for increase of land due to gradual lowering of a tide line (which means the land is building up).
n. a lawsuit brought by a corporation shareholder against the directors, management and/or other shareholders of the corporation, for a failure by management. In effect, the suing shareholder claims to be acting on behalf of the corporation, because the directors and management are failing to exercise their authority for the benefit of the company and all of its shareholders. This type of suit often arises when there is fraud, mismanagement, self-dealing and/or dishonesty which are being ignored by officers and the board of directors of a corporation.
For copyright purposes, a new work based upon an original work to which enough original creative work has been added so that the new work represents an original work of authorship. Examples of derivative works include a translation of a book into another language, a jazz version of a popular tune and a movie based on a play.
n. the rules of inheritance established by law in cases in which there is no will naming the persons to receive the possessions of a person who has died. The rules of descent vary somewhat from state to state and will usually be governed by the law of the state in which the deceased party lived. Depending on which relatives survive, the estate may go all or in part to the surviving spouse, and down the line from a parent to children (or if none survive, to grandchildren), or up to surviving parents, or collaterally to brothers and sisters. If there are no survivors among those relatives, then aunts, uncles, cousins, nieces and nephews may inherit, depending on their degree of kinship (closeness of family relationship), state laws of descent and distribution, or whether the deceased person lived in a community property state, in which the wife has a survivorship right to community property.
Descent and distribution
n. the system of laws which determine who will inherit and divide the possessions of a person who has died without a will (intestate).
A trademark or service mark that describes the characteristics of the product or service to which it’s attached. For instance, “Jiffy Lube” describes its purportedly fast service. Marks judged to be descriptive are initially considered legally weak and don’t get much protection from the courts. If federal registration is sought, they are usually placed on the Supplemental rather than Principal Trademark Register, which also doesn’t provide much protection. After a descriptive mark has been in use for five years, however, it can be moved to the Principal Register on the theory that it has by that time become well known through public exposure.
v. to intentionally abandon a person or thing.
n. the act of abandoning, particularly leaving one’s spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era of no-fault divorce and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues.
A patent issued on a new design, used for purely aesthetic reasons, that does not affect the functioning of the underlying device. Design patents last for 14 years from the date the patent is issued. For example, the unique flaring fender designs appearing on new model trucks to make them look more sporty are non-functional industrial designs that may qualify for design patents.
adj. defining something which may be terminated upon the occurrence of a particular event, used primarily to describe an interest in real property, such as a fee simple determinable, in which property is deeded to another, but may revert to the giver or go to a third person if, as examples, the receiver (grantee) marries, divorces or no longer lives in the house.
An old legal term that is generally used to refer to real estate left to someone under the terms of a will, or to the act of leaving such real estate. In some states, “devise” now applies to any kind of property left by will, making it identical to the term bequest. Compare legacy.
A person or entity who inherits real estate under the terms of a will.
n. 1) the transfer of title to real property by the automatic operation of law. 2) n. the transfer of rights, powers or an office (public or private) from one person or government to another.
Latin. A remark, statement or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it. For example, if a defendant ran a stop sign and caused a collision, the judge’s comments about the mechanical reliability of the particular make of the defendant’s car would not be necessary to reach a decision in the case, and would be considered dictum. In future cases, lower court judges are free to ignore the comments when reaching their decisions. Dictum is an abbreviation of the Latin phrase “obiter dictum,” which means a remark by the way, or an aside.
n. reasonable care or attention to a matter, which is good enough to avoid a claim of negligence, or is a fair attempt (as in due diligence in a process server’s attempt to locate someone).
A situation in which a famous trademark or service mark is used in a context in which the mark’s reputation for quality is tarnished or its distinction is blurred. In this case, trademark infringement exists even though there is no likelihood of customer confusion, which is usually required in cases of trademark infringement. For example, the use of the word Candyland for a pornographic site on the Internet was ruled to dilute the reputation of the Candyland mark for the well-known children’s game, even though the traditional basis for trademark infringement (probable customer confusion) wasn’t an issue.
Diminution in value
n. in the event of a breach of contract, the decrease in value of property due to the failure to construct something exactly as specified in the contract.
Direct and proximate cause
n. the immediate reason damage was caused by an act or omission (negligence); the negligence must have caused the damages, without intervention of another party, and can- not be remote in time or place. Example (in a complaint): “Defendant’s negligent acts (speeding and losing control of his vehicle) directly and proximately caused plaintiff’s injuries.”
n. real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.
At trial, the initial questioning of a party or witness by the side that called him or her to testify. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your adversary’s version. Good direct examination seeks to prove all facts necessary to satisfy the plaintiff’s legal claims or causes of action — for example, that the defendant breached a valid contract and, as a result, the plaintiff suffered a loss.
A ruling by a judge, typically made after the plaintiff has presented all of her evidence but before the defendant puts on his case, that awards judgment to the defendant. A directed verdict is usually made because the judge concludes the plaintiff has failed to offer the minimum amount of evidence to prove her case even if there were no opposition. In other words, the judge is saying that, as a matter of law, no reasonable jury could decide in the plaintiff’s favor. In a criminal case, a directed verdict is a judgement of acquittal for the defendant.
A member of the governing board of a corporation, typically elected at an annual meeting of the shareholders. Directors are responsible for making important business decisions — especially those that legally bind the corporation — leaving day-to-day management to officers and employees of the corporation. For example, a decision to borrow money, lease an office or buy real property would normally be authorized by the board of directors. However, in the small business world, where it is common for owners to be directors, officers and employees simultaneously, distinctions dividing the roles and responsibilities of these groups are often blurred.
n. 1) a condition which prevents one from performing all usual physical or mental functions. This usually means a permanent state, like blindness, but in some cases is temporary. In recent times society and the law have dictated that people with disabilities should be accommodated and encouraged to operate to their maximum potential and have the right to participate in societal and governmental activity without impediments. Hence, access by ramps, elevators, special parking places and other special arrangements have become required in many states. 2) a legal impediment, including being a minor who can- not make a contract, or being insane or incompetent.
Money available from Social Security to benefit those under 65 who qualify because of their work and earning record and who meet the program’s medical guidelines defining disability. The benefits are roughly equal to those available in Social Security retirement benefits.
v. to remove an attorney from the list of practicing attorneys for improper conduct. This penalty is usually invoked by the State Bar Association (if so empowered) or the highest state court, and will automatically prohibit the attorney from practicing law before the courts in that state or from giving advice for a fee to clients. The causes of permanent disbarment include conviction of a felony involving “moral turpitude,” forgery, fraud, a history of dishonesty, consistent lack of attention to clients, abandoning several clients, alcoholism or drug abuse which affect the attorney’s ability to practice, theft of funds, or any pattern of violation of the professional code of ethics. Singular incidents (other than felony conviction) will generally result in reprimand, suspension and/or a requirement that the lawyer correct his/her conduct, show remorse and/or pass a test on legal ethics.
Discharge (of debts)
A bankruptcy court’s erasure of the debts of a person or business that has filed for bankruptcy.
Discharge (of probate administrator)
A court order releasing the administrator or executor from any further duties connected with the probate of an estate. This typically occurs when the duties have been completed but may happen sooner if the executor or administrator wishes to withdraw or is dismissed.
Debts that can be erased by going through bankruptcy. Most debts incurred prior to declaring bankruptcy are dischargeable, including back rent, credit card bills and medical bills. Compare nondischargeable debts.
1) To refuse or give away a claim or a right to something. For example, if your aunt leaves you a white elephant in her will and you don’t want it, you can refuse the gift by disclaiming your ownership rights. 2) To deny responsibility for a claim or act. For example, a merchant that sells goods second-hand may disclaim responsibility for a product’s defects by selling it “as is.”
1) A refusal or renunciation of a claim or right. 2) A refusal or denial of responsibility for a claim or an act. 3) The written clause or document that sets out the disclaimer. See also disclaim.
The making known of a fact that had previously been hidden; a revelation. For example, in many states you must disclose major physical defects in a house you are selling, such as a leaky roof or potential flooding problem.
n. the payment of less than the full amount due on a promissory note or price for goods or services. Usually a discount is by agreement and includes the common situation in which a holder of a long-term promissory note or material goods will sell it/them for less than face value in order to get cash now-the difference is the discount.
A formal investigation — governed by court rules — that is conducted before trial. Discovery allows one party to question other parties, and sometimes witnesses. It also allows one party to force the others to produce requested documents or other physical evidence. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury, and depositions, which involve an in-person session at which one party to a lawsuit has the opportunity to ask oral questions of the other party or her witnesses under oath while a written transcript is made by a court reporter. Other types of pretrial discovery consist of written requests to produce documents and requests for admissions, by which one party asks the other to admit or deny key facts in the case. One major purpose of discovery is to assess the strength or weakness of an opponent’s case, with the idea of opening settlement talks. Another is to gather information to use at trial. Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.
n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: a) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; b) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; c) a District Attorney may have discretion to charge a crime as a misdemeanor (maximum term of one year) or felony; d) a Governor may have discretion to grant a pardon; or e) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.
n. unequal treatment of persons, for a reason which has nothing to do with legal rights or ability. Federal and state laws prohibit discrimination in employment, availability of housing, rates of pay, right to promotion, educational opportunity, civil rights, and use of facilities based on race, nationality, creed, color, age, sex or sexual orientation. The rights to protest discrimination or enforce one’s rights to equal treatment are provided in various federal and state laws, which allow for private lawsuits with the right to damages. There are also federal and state commissions to investigate and enforce equal rights.
v. to refuse to pay the face amount of a check or the amount due on a promissory note.
To deliberately prevent someone from inheriting something. This is usually done by a provision in a will stating that someone who would ordinarily inherit property — a close family member, for example — should not receive it. In most states, you cannot completely disinherit your spouse; a surviving spouse has the right to claim a portion (usually one-third to one-half) of the deceased spouse’s estate. With a few exceptions, however, you can expressly disinherit children.
n. the attempt to claim in a civil lawsuit that one thing “or” another occurred, and in criminal charges that the accused committed one crime “or” another. Such complaints are disallowed because the defendant is entitled to know what he/she must defend.
v. the ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff’s lawsuit is terminated (thrown out) at that point without further evidence or testimony. This judgment may be made before, during or at the end of a trial, when the judge becomes convinced that the plaintiff has not and cannot prove his/her/its case. This can be based on the complaint failing to allege a cause of action, on a motion for summary judgment, plaintiff’s opening statement of what will be proved, or on some development in the evidence by either side which bars judgment for the plaintiff. The judge may dismiss on his own or upon motion by the defendant. The plaintiff may voluntarily dismiss a cause of action before or during trial if the case is settled, if it is not provable or trial strategy dictates getting rid of a weak claim. A defendant may be “dismissed” from a lawsuit, meaning the suit is dropped against that party.
n. 1) the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) a judge’s ruling that a lawsuit or criminal charge is terminated. 3) an appeals court’s act of dismissing an appeal, letting the lower court decision stand. 4) the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing the suit again if the defendant does not follow through on the terms of the settlement.
The difference between a debtor’s current monthly income and allowable expenses. This is the amount that the new bankruptcy law deems available to pay.
Disposing mind and memory
n. the mental ability to understand in general what one possesses and the persons who are the “natural objects of bounty” (wife and/or children), at the time of making a will.
n. the court’s final determination of a lawsuit or criminal charge.
v. to eject someone from real property, either legally or by self-help.
The assertion of conflicting claims or rights between parties involved in a legal proceeding, such as a lawsuit, mediation or arbitration.
n. 1) the opinion of a judge of a court of appeals, including the U.S. Supreme Court, which disagrees with the majority opinion. Sometimes a dissent may eventually prevail as the law or society evolves.
A term used instead of divorce in some states.
Dissolution of corporation
n. termination of a corporation, either a) voluntarily by resolution, paying debts, distributing assets and filing dissolution documents with the Secretary of State; or b) by state suspension for not paying corporate taxes or some other action of the government.
A trademark or service mark that is unusual in the context of its use, and therefore memorable. Distinctive marks typically consist of terms that are fanciful or arbitrary (Penguin books), suggestive (Accuride tires), or coined (Maalox antacid). Distinctive marks receive maximum judicial protection under state and federal laws.
v. to argue that the rule in one appeals court decision does not apply to a particular case although there is an apparent similarity (i.e. it is “distinguished”).
1) n. the self-help taking of another’s possessions in order to force payment of a claim, which is generally illegal without a court order. 2) adj. at lowest price due to negative circumstances.
v. 1) the dividing up of those assets of an estate or trust when someone has died according to the terms of the deceased’s will or trust, or in absence of a will, according to the laws of descent and distribution. 2) division of profits or assets of a corporation or business.
Anyone who receives something. Usually, the term refers to someone who inherits a deceased person’s property. If the deceased person dies without a will (called intestate), state law determines what each distributee will receive. Also called a beneficiary.
n. the act of dividing up the assets of an estate or trust, or paying out profits or assets of a corporation or business according to the ownership percentages.
District Attorney (D.A.)
A lawyer who is elected to represent a state government in criminal cases in a designated county or judicial district. A D.A.’s duties typically include reviewing police arrest reports, deciding whether to bring criminal charges against arrested people and prosecuting criminal cases in court. The D.A. may also supervise other attorneys, called Deputy District Attorneys or Assistant District Attorneys. In some states a District Attorney may be called a Prosecuting Attorney, County Attorney or State’s Attorney. In the federal system, the equivalent to the D.A. is a United States Attorney. The country has many U.S. Attorneys, each appointed by the President, who supervise regional offices staffed with prosecutors called Assistant United States Attorneys.
In federal court and, in some states, the name of the main trial court. Thus, if you file suit in federal court, your case will normally be heard in federal district court. States may also group their appellate courts into districts — for example, The First District Court of Appeal.
The power of the federal courts to decide cases between two citizens of different states, provided the amount the plaintiff seeks in damages exceeds $75000.
Diversity of citizenship
n. when opposing parties in a lawsuit are citizens of different states (including corporations incorporated or doing business in different states) or a citizen of a foreign country, which places the case under federal court jurisdiction, if the amount in controversy exceeds $10,000.
n. the court-ordered or voluntary giving up of a possession or right, which is a common result in an antitrust action to prevent monopoly or other restraint of trade.
n. the act of stripping one’s investment from an entity.
A portion of profits distributed by a corporation to its shareholders based on the type of stock and number of shares owned. Dividends are usually paid in cash, though they may also be paid in the form of additional shares of stock or other property. The amount of a dividend is established by the corporation’s board of directors; however, state laws often restrict a corporation’s ability to declare dividends by requiring a minimum level of profits or assets before the dividend can be approved.
The legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when that spouse files the divorce papers with the court. These reasons are referred to as grounds for a divorce.
An agreement made by a divorcing couple regarding the division of property, custody and visitation of the children, alimony or child support. The agreement must be put in writing, signed by the parties and accepted by the court. It becomes part of the divorce decree and does away with the necessity of having a trial on the issues covered by the agreement. A divorce agreement may also be called a marital settlement agreement, marital termination agreement or settlement agreement.
1) n. the cases on a court calendar. 2) n. brief notes, usually written by the court clerk, stating what action was taken that day in court. 3) v. to write down the name of a case to be put on calendar or make notes on action in court.
Doctrine of equivalents
A patent rule under which a new device or process violates an existing patent if the new invention does the same work in a substantially similar way to achieve the same results.
n. a popular generic word among lawyers for any paper with writing on it. Technically it could include a piece of wood with a will or message scratched on it.
n. any document (paper) which is presented and allowed as evidence in a trial or hearing, as distinguished from oral testimony. However, the opposing attorney may object to its being admitted. In the first place, it must be proved by other evidence from a witness that the paper is genuine (called “laying a foundation”), as well as pass muster over the usual objections such as relevancy.
Doing business as (DBA)
A situation in which a business owner operates a company under a name different from his or her real name. The owner must file a “fictitious name statement” or similar document with the appropriate agency — for example, the county clerk. This enables consumers to discover the names of the business owners, which is important if a consumer needs to sue the business.
A combination of letters and numbers that identifies a specific computer or website on the Internet. A domain name usually consists of three parts: a generic “top-level” domain such as “.com” or “.gov” that identifies the type of organization; a second level domain such as nolo or yahoo, which identifies the organization, site or individual; and a third level domain such as “www,” which is used to identify a particular host server. Domain names have various functions. They can serve as an address (whitehouse.com), as a trademark (amazon.com) or as an expression of free speech (presidentbushsucks.com). A domain name owner can stop another business from using the same name for its business or product only if the domain name is being used as a trademark. In other words, if you use your domain name in connection with the sale of goods or services and consumers associate the domain name with your business, you can stop another business from using it. On the flip side, trademark owners can stop others from using a domain name if it conflicts with their existing trademark.
n. the place where a person has his/her permanent principal home to which he/she returns or intends to return. This becomes significant in determining in what state a probate of a dead person’s estate is filed, what state can assess income or inheritance taxes, where a party can begin divorce proceedings, or whether there is “diversity of citizenship” between two parties which may give federal courts jurisdiction over a lawsuit. Where a person has several “residences” it may be a matter of proof as to which is the state of domicile. A business has its domicile in the state where its headquarters is located.
n. in real estate law, the property retained when the owner splits off and conveys part of the property to another party but retains some rights such as an easement for access (a driveway) or utilities. The property sold off upon which there is the easement is called the servient estate. These are also called dominant tenement and servient tenement, respectively.
Property that carries a right to use a portion of a neighboring property. For example, property that benefits from a beach access trail across another property is the dominant tenement.
A gift of property. The IRS allows you to take an income tax deduction for the value of donations made to charitable organizations who are recognized as such by the IRS.
Someone who receives a gift.
Someone who gives a gift.
n. placing someone on trial a second time for an offense for which he/she has been previously acquitted, even when new incriminating evidence has been unearthed. This is specifically prohibited by the Fifth Amendment to the U.S. Constitution, which states: “…nor shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb…” However, in rare instances a person may be tried for a different crime based on some of the same facts which were used to try him/her when he/she was acquitted.
n. taxation of the same property for the same purpose twice in one year. This is generally prohibited if it occurs through such circumstances as transfer of property which has been taxed once and then the tax is imposed on a new owner. However, if all property in a jurisdiction is taxed twice in the same year, it is legal since it is not discriminatory or unfair.
n. an old English common law right of a widow to one-third of her late husband’s estate, which is still the law in a few states. In those states the surviving wife can choose either the dower rights or, if more generous, accept the terms of her husband’s will in what is called a widow’s election. In an obvious sexist imbalance, a surviving husband’s equivalent right (called curtesy) is to the wife’s entire estate, or if there are living children, to a life estate in everything.
Dower and curtesy
A surviving spouse’s right to receive a set portion of the deceased spouse’s estate — usually one-third to one-half. Dower (not to be confused with a “dowry”) refers to the portion to which a surviving wife is entitled, while curtesy refers to what a man may claim. Until recently, these amounts differed in a number of states. However, because discrimination on the basis of sex is now illegal in most cases, most states have abolished dower and curtesy and generally provide the same benefits regardless of sex — and this amount is often known simply as the statutory share. Under certain circumstances, a living spouse may not be able to sell or convey property that is subject to the other spouse’s dower and curtesy or statutory share rights.
A lump sum cash payment paid by a buyer when he or she purchases a major piece of property, such as a car or house. The buyer typically takes out a loan for the balance remaining, and pays it off in monthly installments over time.
1) A written order for the payment of money, such as a check. The person who writes the draft is called the drawer, the person who holds the money — for example, the bank — is called the drawee, and the person who ultimately receives the money is called the payee. After receiving the draft, the payee can demand payment at any time unless the draft specifies a particular time for payment. Also called a bill of exchange.2) A preliminary version of a written document, such as a law or a legal brief, that is ready for revision or correction.3) To select for some purpose, such as military service.
v. 1) to prepare any document. 2) specifically to have prepared and signed a bill of exchange or check.
n. the person who signs a bill of exchange.
Driving under the influence (DUI)
The crime of operating a motor vehicle while under the influence of alcohol or drugs, including prescription drugs. Complete intoxication is not required; the level of alcohol or drugs in the driver’s body must simply be enough to prevent him from thinking clearly or driving safely. State laws specify the levels of blood alcohol content at which a person is presumed to be under the influence. Also called driving while intoxicated (DWI and drunk driving).
Driving while intoxicated (DWI)
See driving under the influence.
Drop dead date
n. a provision in a contract or a court order which sets the last date an event must take place (such as payment) or otherwise certain consequences will automatically follow, such as cancelling the contract, taking property or entering a judgment.
n. and adj. owed as of a specific date. A popular legal redundancy is that a debt is “due, owing and unpaid.” Unpaid does not necessarily mean that a debt is due.
n. the conduct that a reasonable man or woman will exercise in a particular situation, in looking out for the safety of others. If one uses due care then an injured party cannot prove negligence. This is one of those nebulous standards by which negligence is tested. Each juror has to determine what a “reasonable” man or woman would do.
Due process of law
n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides “No person shall…be deprived of life, liberty, or property, without due process of law,” and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.
Durable power of attorney
A power of attorney that remains in effect if the principal becomes incapacitated. If a power of attorney is not specifically made durable, it automatically expires if the principal becomes incapacitated. See durable power of attorney for finances; durable power of attorney for healthcare.
Durable power of attorney for finances
A legal document that gives someone authority to manage your financial affairs if you become incapacitated. The person you name to represent you is usually called your agent or attorney-in-fact.
Durable power of attorney for health care
A legal document that you can use to give someone permission to make medical decisions for you if you are unable to make those decisions yourself. The person you name to represent you may be called an agent, attorney-in-fact, health care proxy, patient advocate, or something similar, depending on where you live.
n. the use of force, false imprisonment or threats (and possibly psychological torture or “brainwashing”) to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find the document null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime.
n. 1) a legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that there was a duty by defendant to plaintiff. This can be a duty of care in a negligence case or a duty to perform in a contract case. 2) a tax on imports.
Duty of care
n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances. Although hearsay since the dead person cannot testify in person, it is admissible on the theory that a dying person has no reason not to tell the truth.
An judge’s admonition to a deadlocked jury to go back to the jury room and try harder to reach a verdict. The judge might remind the jurors to respectfully consider the opinions of others and will often assure them that if the case has to be tried again, another jury won’t necessarily do a better job than they’re doing. Because of its coercive nature, some states prohibit the use of a dynamite charge as a violation of their state constitution, but the practice passed Federal constitutional muster in the case of Allen v. Gainer. The instruction is also known as a dynamite instruction, shotgun instruction, Allen charge or third degree instruction.