An attestation that one will tell the truth, or a promise to fulfill a pledge, often calling upon God as a witness. The best known oath is probably the witness’ pledge “to tell the truth, the whole truth, and nothing but the truth” during a legal proceeding. In another context, a public official usually takes an “oath of office” before assuming her position, in which she declares that she will faithfully perform her duties. A religious or solemn affirmation to tell the truth or to take a certain action.
Latin. Remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts. Generally, obiter dicta is simply dicta.
1) v. to ask the court not to allow a particular question asked of a witness by the opposing lawyer on the basis that it is either legally not permitted, confusing in its wording or improper in its “form.” An attorney may also object to an answer to the question on the basis that it is not “responsive” since a witness is limited to answering a question as asked and is not allowed to make unsolicited comments. The trial attorney must be alert and quick in order to object before the witness answers. This is called an “objection” and must be based on a specific list of legal restrictions on questions. 2) n. a particular thing. 3) n. an aim or purpose, as “the object of the contract…”
n. a lawyer’s protest about the legal propriety of a question which has been asked of a witness by the opposing attorney, with the purpose of making the trial judge decide if the question can be asked. A proper objection must be based on one of the specific reasons for not allowing a question. These include: irrelevant, immaterial, incompetent (often stated together, which may mean the question is not about the issues in the trial or the witness is not qualified to answer), hearsay (the answer would be what someone told the witness rather than what he/she knew first-hand), leading (putting words in the mouth of one’s own witness), calls for a conclusion (asking for opinion, not facts), compound question (two or more questions asked together), or lack of foundation (referring to a document lacking testimony as to authenticity or source). An objection must be made quickly and loudly to halt the witness before he/she answers. The judge will either “sustain” the objection (ruling out the question) or “overrule” it (allow the question). The judge may ask for an “offer of proof” in which the lawyer asking the question must explain to the court the reason the question is relevant, and what evidence his/her questions will bring out. Badly worded, confusing or compound questions are usually challenged by an objection to the form of the question, which is essentially a demand that the question be withdrawn and reworded. An attorney may “object” to a witness’s answer as “non-responsive” to the question, but the proper request should be that the answer or a comment without a question be “stricken” from the record.
n. a legal duty to pay or do something.
n. the person or entity to whom an obligation is owed, like the one to be paid on a promissory note.
n. the person or entity who owes an obligation to another, as one who must pay on a promissory note. A person who is contractually or legally, committed or obliged, to providing something to another person; the recipient of the benefit being called the promisor.
Obstruction of justice
n. an attempt to interfere with the administration of the courts, the judicial system or law enforcement officers, including threatening witnesses, improper conversations with jurors, hiding evidence or interfering with an arrest. Such activity is a crime.
n. 1) living in or using premises, as a tenant or owner. 2) taking possession of real property or a thing which has no known owner, with the intention of gaining ownership.
n. 1) someone living in a residence or using premises, as a tenant or owner. 2) a person who takes possession of real property or a thing which has no known owner, intending to gain ownership.
n. 1) fairly permanent trade, profession, employment, business or means of livelihood. 2) possession of real property or use of a thing.
n. an illness resulting from long-term employment in a particular type of work, such as black lung disease among miners, or cancer among asbestos installers. If the chances of being afflicted by such an illness are significantly higher than the average in the population, then a former employee may receive benefits from Social Security or worker’s compensation for a work-related disability.
n. a danger or risk inherent in certain employments or workplaces, such as deep-sea diving, cutting timber, high-rise steel construction, high-voltage electrical wiring, use of pesticides, painting bridges and many factories. The risk factor may limit insurance coverage of death or injury while at work.
Occupational Safety and Health Act (OSHA)
The primary federal law establishing safety standards in the workplace. Generally, OSHA requires employers to provide a safe workplace by informing employees about potential hazards, training them to deal with hazards and recording workplace injuries.
Occupy the field
v. to preempt (monopolize) an area of statutory law by a higher authority, such as federal preemption of bankruptcy or interstate commerce over state legislation, and state statutes or state constitution prevailing over laws of cities and counties on certain topics.
adj. reference to an attorney who is not actively involved in the day-to-day work of a law firm, but may be available in particular matters or for consultation. This designation often identifies a semi-retired partner, an attorney who occasionally uses the office for a few clients or one who only consults on a particular case or on his/her specialty. Putting the name of the attorney “of counsel” on a law firm’s stationery gives the office the prestige of the lawyer’s name and reputation, without requiring his/her full-time presence.
adj. refers to an order of the court to take a lawsuit, petition or motion off the list of pending cases or motions which are scheduled to be heard. A case or motion will be ordered off calendar if the lawyers agree (stipulate) to drop it, if the moving party’s lawyer fails to appear, if a suit is settled pending final documentation or any number of procedural reasons for the judge to determine the case should not proceed at that time. A suit or motion can be put back “on calendar” by stipulation of the lawyers or upon motion of either party.
n. an accused defendant in a criminal case or one convicted of a crime.
n. a crime or punishable violation of law of any type or magnitude.
Offensive collateral estoppel
A doctrine that prevents a defendant from re-litigating an issue after it has been lost. For example, if your neighbor sues you for putting up a fence on his land and the court rules that your fence extends beyond your property line, you can’t later file your own lawsuit seeking a declaration that the property line is incorrectly drawn.
A proposal to enter into an agreement with another person. An offer must express the intent of the person making the offer to form a contract, must contain some essential terms–including the price and subject matter of the contract–and must be communicated by the person making the offer. A legally valid acceptance of the offer will create a binding contract.
Offer of proof
At trial, a party’s explanation to a judge as to how a proposed line of questioning, or a certain item of physical evidence, would be relevant to its case and admissible under the rules of evidence. Offers of proof arise when a party begins a line of questioning that the other side objects to as calling for irrelevant or inadmissible information. If the judge thinks that the questions might lead to proper evidence, the judge will stop the trial, ask the parties to “approach the bench,” and give the questioner a chance to show how, if allowed, the expected answers will be both relevant and admissible. This explanation is usually presented out of the jury’s hearing, but it does become part of the trial record. If the matter is later heard on appeal, the appellate court will use the record to decide whether the judge’s ruling was correct.
n. a person or entity to whom an offer to enter into a contract is made by another (the offeror).
n. a person or entity who makes a specific proposal to another (the offeree) to enter into a contract.
A person elected by a profit or nonprofit corporation’s board of directors, or by the manager of a limited liability company, to manage the day-to-day operations of the organization. Officers generally hold titles such as President or Treasurer. Many states and most corporate bylaws or LLC operating agreements require a corporation or LLC to have a president, secretary and treasurer. Election of a vice president may be required by state law.
Officer of the court
n. any person who has an obligation to promote justice and effective operation of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks and other personnel. As officers of the court lawyers have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the location of documents and other matters related to conduct of the courts.
1) adj. referring to an act, document or anything sanctioned or authorized by a public official or public agency. The term can also apply to an organizational act or product which is authorized by the organization, such as an Official Boy Scout knife or emblem, an official warranty, membership card or set of rules. 2) n. a public officer or governmental employee who is empowered to exercise judgment. 3) n. an officer of a corporation or business.
n. improper and/or illegal acts by a public official which violate his/her duty to follow the law and act on behalf of the public good. Often such conduct is under the guise or “color” of official authority.
n. a volunteer who assists and/or benefits another without contractual responsibility or legal duty to do so, but nevertheless wants compensation for his/her actions. The courts generally find that the intermeddler must rely on the equally voluntary gratitude of the recipient of the alleged benefit.
1) n. also called a “setoff,” the deduction by a debtor from a claim or demand of a debt or obligation. Such an offset is based upon a counterclaim against the party making the original claim. 2) v. to counterclaim an alleged debt owed by a claimant to reduce the demand of that claimant.
n. a corporation chartered under the laws of a country other than the United States. Some countries (particularly in the Caribbean) are popular nations of incorporation since they have little corporate regulation or taxes and only moderate management fees. Professional trustees and nominal officials in the country of incorporation perform routine contacts with the local government but take no active part in management. The reasons for the use of offshore corporations are best known to the incorporators, but may include avoidance of taxes, ease of international operations, freedom from state regulation and placement of funds in accounts out of the country.
Older Workers Benefit Protection Act
A federal law that makes it illegal for an employer to use an employee’s age to discriminate in benefits or for a company to target older workers for layoffs. This law also requires employers to allow employees at least 21 days to consider waivers not to sue offered by an employer in exchange for early retirement benefits.
n. 1) failure to perform an act agreed to, where there is a duty to an individual or the public to act (including omitting to take care) or where it is required by law. Such an omission may give rise to a lawsuit in the same way as a negligent or improper act. 2) inadvertently leaving out a word, phrase or other language from a contract, deed, judgment or other document. If the parties agree that the omission was due to a mutual mistake, the document may be “reformed,” but this may require a petition for a court order making the correction if it had been relied upon by government authorities or third parties.
n. 1) an automobile insurance policy clause which provides coverage no matter who is driving the car. 2) a provision in a judgment for distribution of an estate of a deceased person, giving “all other property” to the beneficiaries named in the will.
On all fours
adj. a reference to a lawsuit in which all the legal issues are identical (or so close as to make no difference) to another case, particularly an appeals decision which is a precedent in deciding the suit before the court. Thus, an attorney will argue that the prior case of, for example, Steele v. Merritt is “on all fours” with the case before the court, and so the court must reach the same conclusion.
adj. in a promissory note, a requirement that the amount due must be paid when the person to whom the funds are owed demands payment (rather than upon a certain date or on installments). Such a note is called a “demand note.”
prep. having been formally filed with the clerk of the court or the judge, such as a pleading is “on file.”
On or about
prep. a phrase referring to a date or place used in a complaint in a lawsuit or criminal charge if there is any uncertainty at all, in order to protect the person making the allegations of fact from being challenged as being inaccurate. Thus, a complaint will read “On or about July 11, 1994, Defendant drove his vehicle negligently and without due care on or about the corner of Sunset and Vine Streets….”
On or before
prep. a phrase usually found in a contract or promissory note, designating performance or payment by a particular date, but which may be done prior to that date.
On the merits
adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case “on the merits” when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome.
On the stand
prep. testifying during a trial, in which the witness almost always sits in a chair beside the judge’s bench, often raised above the floor level of the courtroom and behind a knee-high panel.
The rule that requires a patent application to be filed within one year of the following: any public use of the invention by the inventor, a sale of the invention, an offer to sell the invention, or any description of the invention by the inventor in a published document. Failure to file a patent application within this one-year period results in the invention’s passing into the public domain, where it is no longer eligible for a patent.
An adoption in which there is some degree of contact between the birthparents and the adoptive parents and sometimes with the child as well. As opposed to most adoptions in which birth and adoption records are sealed by court order, open adoptions allow the parties to decide how much contact the adoptive family and the birthparents will have.
n. the conduct of judicial proceedings (trials, hearings and routine matters such as trial settings) in which the public may be present. Some hearings and discussions are held in the judge’s chambers (“in camera”) or with the courtroom cleared of non-participants and/or the jury such as adoptions, sanity hearings, juvenile criminal charges and arguments over evidence and motions which might prejudice the jury. The Sixth Amendment to the Constitution, later applied to the states under the 14th Amendment, guarantees criminal defendants a “public trial,” so all criminal proceedings are held in “open court.” This does not apply to pre-trial negotiations and procedural and motion discussions with the judge, which are usually held in chambers.
A statement made by an attorney or self-represented party at the beginning of a trial before evidence is introduced. The opening statement outlines the party’s legal position and previews the evidence that will be introduced later. The purpose of an opening statement is to familiarize the jury with what it will hear–and why it will hear it–not to present an argument as to why the speaker’s side should win; that comes after all evidence is presented as part of the closing argument.
Operation of law
n. a change or transfer which occurs automatically due to existing laws and not an agreement or court order. Examples: a joint tenant obtains full title to real property when the other joint tenant dies; a spouse in a community property state will take title to all community property if the spouse dies without a will that leaves some of the dead mate’s interest in the community property to another; or a guardianship of a minor ad litem (for purposes of a lawsuit) ends automatically upon the child turning 18.
n. the explanation of a court’s judgment. When a trial court judgment is appealed to a court of appeals, the appeals judge’s opinion will be detailed, citing case precedents, analyzing the facts, the applicable law and the arguments of the attorneys for the parties. Those opinions considered by the court to be worthy of serving as a precedent or involving important legal issues will be published in the official reports available in most law libraries. Since appeals courts have anywhere from three to nine judges, there are often “dissenting opinions” which disagree with the majority opinion, and “concurring opinions” which agree with the result, but apply different emphasis, precedents or logic to reach the determination. Normally the majority opinion identifies the author, but some brief opinions are labeled “in banc” (by the bench) or “per curiam” (by the court) in which the author is not specified.
n. a right to purchase property or require another to perform upon agreed-upon terms. An option is paid for as part of a contract, but must be “exercised” in order for the property to be purchased or the performance of the other party to be required. “Exercise” of an option normally requires notice and payment of the contract price. Thus, a potential buyer of a tract of land might pay $5,000 for the option which gives him/her a period of time to decide if he/she wishes to purchase, tying up the property for that period, and then pay $500,000 for the property. If the time to exercise the option expires then the option terminates. The amount paid for the option itself is not refundable since the funds bought the option whether exercised or not. Often an option is the right to renew a contract such as a lease, broadcasting a television series, the employment of an actor or athlete, or some other existing business relationship. A “lease-option” contract provides for a lease of property with the right to purchase the property during or upon expiration of the lease.
n. short for “own recognizance,” meaning the judge allowed a person accused in a criminal case to go free pending trial without posting bail. A person so released is often referred to as having been “OR-ed.” A way the defendant can get out of jail, without paying bail, by promising to appear in court when next required to be there. Sometimes called “personal recognizance.” Only those with strong ties to the community, such as a steady job, local family and no history of failing to appear in court, are good candidates for “OR” release. If the charge is very serious, however, OR may not be an option.
n. an agreement made with spoken words and either no writing or only partially written. An oral contract is just as valid as a written agreement. The main problem with an oral contract is proving its existence or the terms. As one wag observed: “An oral contract is as good as the paper it’s written on.” An oral contract is often provable by action taken by one or both parties which is obviously in reliance on the existence of a contract. The other significant difference between oral and written contracts is that the time to sue for breach of an oral contract (the statute of limitations) is sometimes shorter. For example, California’s limitation is two years for oral compared to four for written, Connecticut and Washington three for oral rather than six for written, and Georgia four for oral instead of 20 for written.
A decision issued by a court. It can be a simple command–for example, ordering a recalcitrant witness to answer a proper question–or it can be a complicated and reasoned decision made after a hearing, directing that a party either do or refrain from some act. For example, following a hearing, the court may order that evidence gathered by the police not be introduced at trial; or a judge may issue a temporary restraining order. This term usually does not describe the final decision in a case, which most often is called a judgment.
Order to show cause
An order from a judge that directs a party to come to court and convince the judge why she shouldn’t grant an action proposed by the other side or by the judge on her own (sua sponte). For example, in a divorce, at the request of one parent a judge might issue an order directing the other parent to appear in court on a particular date and time to show cause why the first parent should not be given sole physical custody of the children. Although it would seem that the person receiving an order to show cause is at a procedural disadvantage–she, after all, is the one who is told to come up with a convincing reason why the judge shouldn’t order something–both sides normally have an equal chance to convince the judge to rule in their favor.
A law adopted by a town or city council, county board of supervisors or other municipal governing board. Typically, local governments issue ordinances establishing zoning and parking rules and regulating noise, garbage removal, and the operation of parks and other areas that affect people who live or do business within the locality’s borders.
adj. regular, customary and continuing, and not unusual or extraordinary, as in ordinary expense, ordinary handling, ordinary risks or ordinary skill.
Ordinary course of business
n. conduct of business within normal commercial customs and usages.
n. the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.
Original work of authorship
Under copyright laws, any type of expression independently conceived by its creator. As long as a particular expression has been independently created, it need not be original in the sense of “new.” For example, if Thamas Dowel never heard of or read One Flew Over the Cuckoo’s Nest, by Ken Kesey, but somehow managed to write a play very similar to it, Dowel’s play would qualify as original, and would be protected by copyright law. Many creations qualify as works of authorship, including sheet music, movies, records, tape recordings, video disk productions, computer software, laser disk games, cartoons, designs, magazines, poems and books. The few categories that don’t qualify include titles of books, movies and songs; short phrases and slogans; printed forms; compilations of facts; and works consisting entirely of information that is public domain property–for example, lists and tables taken from public documents. Items in these categories are considered too short or too lacking in originality to qualify for copyright protection.
n. a child, particularly a minor, whose two natural parents are dead. In some cases, such as whether a child is eligible for public financial assistance to an orphan, “orphan” can mean a child who has lost one parent.
n. a person who has been given the appearance of being an employee or acting (an agent) for another (principal), which would make anyone dealing with the ostensible agent reasonably believe he/she was an employee or agent. This could include giving the ostensible agent stationery or forms of the company, letting him/her use the company truck, telephone or desk in the company office. Businesses should be careful not to allow such situations in which an ostensible agent could bind the business on a contract or make the apparent employer responsible for damages for an accident, libel or assault by the “agent.”
n. apparent authority to do something or represent another person or entity.
n. 1) the wrongful dispossession (putting out) of a rightful owner or tenant of real property, forcing the party pushed out of the premises to bring a lawsuit to regain possession. This often arises between partners (in a restaurant or store) or roommates, when one co-owner or co-tenant forces out the other, changes locks or makes occupancy intolerable. 2) removal of someone from a position or office against his/her expectations or will.
Out of court
adj. referring to actions, including negotiations between parties and/or their attorneys, without any direct involvement of a judge or the judicial system. Most commonly it refers to an “out-of-court settlement” in which the parties work out a settlement agreement, which they may present to the court for inclusion in a judgment approving the agreement so that the parties can request a court to enforce the settlement in case one of the parties reneges and fails to honor the terms of the settlement. Quite often a judgment approving an out-of-court settlement is held in abeyance and replaced by a dismissal if the terms are fulfilled. Some out-of-court settlements are kept confidential and the lawsuit is dismissed.
n. moneys paid directly for necessary items by a contractor, trustee, executor, administrator or any person responsible to cover expenses not detailed by agreement. They may be recoverable from a defendant in a lawsuit for breach of contract; allowable for reimbursement by trustees, executors or administrators; or deductible by a landlord from a tenant’s security deposit for damages beyond normal wear and tear.
n. a structure not connected with the primary residence on a parcel of property. This may include a shed, garage, barn, cabana, pool house or cottage.
n. popularly, anyone who commits serious crimes and acts outside the law.
n. an agreement in which a producer agrees to sell its entire production to the buyer, who in turn agrees to purchase the entire output, whatever that is.
A common practice whereby an airline, hotel or other company accepts more reservations than it has seats or rooms available, on the presumption that a certain percentage of people will not show up. Airlines have a legal right to overbook, while hotels do not. A hotel must find a room for everyone who has a reservation and shows up on time. An airline may be required to offer compensation for people involuntarily bumped from a flight, depending on several factors, including how long they must wait for another flight.
v. 1) to charge more than a posted or advertised price. 2) to file a criminal complaint for crimes of greater degree than the known facts support, in an effort by the prosecutor to intimidate the accused.
v. 1) to reject an attorney’s objection to a question to a witness or admission of evidence. By overruling the objection, the trial judge allows the question or evidence in court. If the judge agrees with the objection, he/she “sustains” the objection and does not allow the question or evidence. 2) to decide (by a court of appeals) that a prior appeals decision on a legal issue was not correct and is therefore no longer a valid precedent on that legal question.
v. to have a legal duty to pay funds to another. However, to owe does not make the amount “payable” if the date for payment has not yet arrived.
v. to have legal title or right to something. Mere possession is not ownership.
Own recognizance (OR)
A way the defendant can get out of jail, without paying bail, by promising to appear in court when next required to be there. Sometimes called “personal recognizance.” Only those with strong ties to the community, such as a steady job, local family and no history of failing to appear in court, are good candidates for “OR” release. If the charge is very serious, however, OR may not be an option.
n. one who has legal title or right to something. Contrary to the cynical adage: “Possession is nine-tenths of the law,” possession does not necessarily make one a legal owner.
n. legal title coupled with exclusive legal right to possession. Co-ownership, however, means that more than one person has a legal interest in the same thing.