Race to the courthouse
n. slang for the rule that the first deed, deed of trust, mortgage, lien or judgment which is recorded with the County Recorder will have priority and prevail over later recordings no matter when the documents were dated.
Racketeer Influenced Corrupt Organization (RICO) statue
n. a federal law which makes it a crime for organized criminal conspiracies to operate legitimate businesses.
n. the federal crime of conspiring to organize to commit crimes, particularly as a regular business (“organized crime” or “the Mafia”).
A lawyer who drums up a lot of business for a law firm by bringing in clients.
1) n. money paid to a kidnapper in demand for the release of the person abducted. Ransom money can also be paid to return a valuable object such as a stolen painting. 2) v. to pay money to an abductor to return the person held captive. Money paid to have a kidnapped person released.
adj. taxable according to value, such as an estate or property.
n. confirmation of an action which was not pre-approved and may not have been authorized, usually by a principal (employer) who adopts the acts of his/her agent (employee).
v. to confirm and adopt the act of another even though it was not approved beforehand. A person under the legal age who makes a contract may ratify the contract when he/she reaches majority (usually 18) or may refuse to honor it without obligation.
n. a test of constitutionality of a statute, asking whether the law has a reasonable connection to achieving a legitimate and constitutional objective.
In patent law, describing literally. A patent is infringed if the patent’s claims read on all elements of the infringing device.
Ready, willing and able
adj. fully prepared to act, as in performing a contract.
An agreement that a debtor and a creditor enter into after a debtor has filed for bankruptcy, in which the debtor agrees to repay all or part of an existing debt after the bankruptcy case is over. For instance, a debtor might make a reaffirmation agreement with the holder of a car note that the debtor can keep the car and must continue to pay the debt after bankruptcy.
Land and the property permanently attached to it, such as buildings, houses, stationary mobile homes, fences and trees. In legalese, real estate is also called real property.
Real estate agent
A foot soldier of the real estate business who shows houses and does most of the other nitty-gritty tasks associated with selling real estate. An agent must have a state license and be supervised by a real estate broker. Most agents are completely dependent upon commissions from sellers for their income, so it pays to find out which side the agent represents (buyer, seller or both) before you place too much trust in the agent’s opinion.
Real estate broker
A real estate professional one step up from a real estate agent. A broker has more training and can supervise agents, but its still worth examining his or her loyalties.
Real estate investment trust
A real estate investment organization which finds investors and buys real property and gives each investor either a percentage interest in the property itself or an interest in a loan secured by a mortgage or deed of trust on the property. Usually the loan is used to develop the property and build upon it, and then there is a division of profits upon sale-if there is a profit.
Real party in interest
n. the person or entity who will benefit from a lawsuit or petition even though the plaintiff (the person filing the suit) is someone else, often called a “nominal” plaintiff.
Another term for real estate. It includes land and things permanently attached to the land, such as trees, buildings, and stationary mobile homes. Anything that is not real property is termed personal property.
n. a short form of “real estate.”
adj., adv. in law, just, rational, appropriate, ordinary or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities.
n. the degree of caution and concern for the safety of himself/herself and others an ordinarily prudent and rational person would use in the circumstances. This is a subjective test of determining if a person is negligent, meaning he/she did not exercise reasonable care.
n. not being sure of a criminal defendant’s guilt to a moral certainty. Thus, a juror (or judge sitting without a jury) must be convinced of guilt of a crime (or the degree of crime, as murder instead of manslaughter) “beyond a reasonable doubt,” and the jury will be told so by the judge in the jury instructions. However, it is a subjective test since each juror will have to decide if his/her doubt is reasonable. It is more difficult to convict under that test, than “preponderance of the evidence” to decide for the plaintiff (party bringing the suit) in a civil (non-criminal) trial.
n. particularly in contracts, what a prudent person would believe and act upon if told something by another. Typically, a person is promised a profit or other benefit, and in reliance takes steps in reliance on the promise, only to find the statements or promises were not true or were exaggerated. The one who relied can recover damages for the costs of his/her actions or demand performance if the reliance was “reasonable.” If the promisor says he “owned the Brooklyn Bridge,” reliance on that statement is not reasonable. In a complaint the language would read something like: “in reasonable reliance on defendant’s statement (or promise), plaintiff did the following….”
n. the speed of an automobile determined to be lower than the posted speed limit due to the circumstances, such as rain, icy road, heavy traffic, poor condition of the vehicle or gloom of night. Exceeding reasonable speed under the circumstances can result in being cited for speeding. In the law of negligence, exceeding reasonable speed in the prevailing conditions may be found to be negligent even though below the speed limit.
n. in contracts, common custom in the business or under the circumstances will define “reasonable time” to perform or pay. It is bad practice to draft a contract using such a vague term.
Reasonable wear and tear
n. commonly used in leases to limit the tenant’s responsibility (and therefore liability to repair or repaint) upon leaving. It is subjective, but the considerations include the length of time of tenancy (the longer the occupancy the more wear and tear can be expected), the lack of unusual damage such as a hole in the wall or a broken window, and the condition of the premises when the tenant moved in. This is often a source of conflict between landlord and tenant, particularly when there is a deposit for any damages “beyond reasonable wear and tear.”
1) n. a discount or deduction on sales price. A secret rebate given by a subcontractor to a contractor in return for getting the job is illegal, since it cheats the person hiring the contractor. 2) v. to give a discount or deduction.
n. since a presumption is an assumption of fact accepted by the court until disproved, all presumptions are rebuttable. Thus rebuttable presumption is a redundancy.
n. evidence introduced to counter, disprove or contradict the opposition’s evidence or a presumption, or responsive legal argument.
n. in income tax, the requirement that upon sale of property the taxpayer pay the amount of tax savings from past years due to accelerated depreciation or deferred capital gains.
n. a written and signed acknowledgment by the recipient of payment for goods, money in payment of a debt or receiving assets from the estate of someone who has died.
n. 1) a neutral person (often a professional trustee) appointed by a judge to take charge of the property and business of one of the parties to a lawsuit and receive his/her rents and profits while the right to the moneys has not been finally decided. Appointment of a receiver must be requested by petition of the other party to the suit, and will only be authorized if there is a strong showing that the moneys would not be available when a decision is made. The funds are held for the prevailing party. 2) a person appointed to receive rents and profits coming to a debtor either while a bankruptcy is being processed or while an arrangement is being worked out to pay creditors, so that funds will be paid for debts and possibly available for distribution to creditors. 3) shorthand for one who commits the crime of receiving stolen goods knowing they were obtained illegally.
n. the process of appointment by a court of a receiver to take custody of the property, business, rents and profits of a party to a lawsuit pending a final decision on disbursement or an agreement that a receiver control the financial receipts of a person who is deeply in debt (insolvent) for the benefit of creditors. Thus, the term “the business is in receivership.”
n. a break in a trial or other court proceedings or a legislative session until a certain date and time. Recess is not to be confused with “adjournment,” which winds up the proceedings.
n. a repeat criminal offender, convicted of a crime after having been previously convicted.
n. the exchange of documents, lists of witnesses, and other information between the two sides of a lawsuit or criminal prosecution before trial.
n. mutual exchange of privileges between states, nations, businesses or individuals. In regard to lawyers, reciprocity refers to recognizing the license of an attorney from another state without the necessity of taking the local state’s bar examination. Such reciprocity is seldom granted now, since many large states refuse to give it.
adj. in both negligence and criminal cases, careless to the point of being heedless of the consequences (“grossly” negligent). Most commonly this refers to the traffic misdemeanor “reckless driving.” It can also refer to use of firearms (shooting a gun in a public place), explosives or heavy equipment.
n. gross negligence without concern for danger to others. Actually “reckless disregard” is redundant since reckless means there is a disregard for safety.
n. operation of an automobile in a dangerous manner under the circumstances, including speeding (or going too fast for the conditions, even though within the posted speed limit), driving after drinking (but not drunk), having too many passengers in the car, cutting in and out of traffic, failing to yield to other vehicles and other negligent acts. It is a misdemeanor crime. A “wet reckless” is a plea in a drunk driving prosecution allowed to lessen the penalty when the blood alcohol level is close to the legal limit.
n. in those states which use deeds of trust as a mortgage on real property to secure payment of a loan or other debt, the transfer of title by the trustee (which has been holding title to the real property) back to the borrower (on the written request of the borrower) when the secured debt is fully paid. Under the deed of trust the borrower transfers title in the real property to the trustee (often a title or escrow company) which holds it for the benefit of the lender (called “beneficiary”). The lender must surrender the promissory note to the trustee who cancels it and then reconveys title to the borrower and records the reconveyance.
1) v. to put a document into the official records of a county at the office of the County Recorder or Recorder of Deeds. The process is that the document is taken or sent to the Recorder’s office, a recording fee paid, the document is given a number (a document number, volume or reel number and page number), stamped with the date (and usually the time) of recording and then in most modern offices, microfilmed and the document returned a short time later. Normally recorded is any document affecting title to real property such as a deed, deed of trust, mortgage, reconveyance, release, declaration of homestead, easement, judgment, lien, request for notice of default, foreclosure, satisfaction of judgment, decree of distribution of a dead person’s estates and sometimes long-term leases. These recordings provide a traceable chain of title to the property and give the public “constructive” notice of all interests in the property. In most states if there is more than one document affecting the property (such as two deeds, two mortgages, or a judgment and mortgage), the first one recorded has “seniority” and first claim on the property in what is called a “race to the courthouse.” 2) v. to write down or tape the minutes, financial transactions, discussions and other happenings at meetings. 3) n. in trials, hearings or other legal proceedings the total of the proceedings which are transcribed by a court reporter and included in the minutes of the clerk or judge, as well as all the documents filed in the case. On an appeal, the record includes everything that transpired before the appeal, upon which the written briefs (opposing legal arguments) and oral argument are based. On appeal the court can consider only the record, unless there is a claim of “newly discovered evidence.”
The process of filing a copy of a deed or other document concerning real estate with the land records office for the county in which the land is located. Recording creates a public record of changes in ownership of all property in the state.
n. the statutes of each state which established the keeping of official records by County Recorders or Recorders of Deeds.
n. in business, particularly corporations, all the written business documents, especially about financial dealings. Thus, shareholders and partners are entitled to access to the “records” of the business.
n. the right of a defendant in a lawsuit to demand deduction from the amount awarded to plaintiff (party bringing the suit) of a sum due the defendant from the plaintiff in the transaction which was the subject of the lawsuit. Example: Laura Landlord sues Tillie Tenant for nonpayment of rent, Tenant is entitled to deduct a deposit made at the commencement of the lease, or an amount Landlord received from re-renting the apartment before the lease expired. A recoupment is not the same as an “offset” (setoff), which can be money owed from any matter, including outside the lawsuit.
n. the right to demand payment to the writer of a check or bill of exchange.
v. to receive a money judgment in a lawsuit.
adj. referring to the amount of money to which a plaintiff (the party suing) is entitled in a lawsuit. Thus, a judge might rule “$12,500 is recoverable for lost wages, and $5,500 is recoverable for property damage to plaintiff’s vehicle.”
n. the amount of money and any other right or property received by a plaintiff in a lawsuit.
A situation in which a judge or prosecutor is removed or steps down from a case. This often happens when the judge or prosecutor has a conflict of interest — for example, a prior relationship with one of the parties.
v. to refuse to be a judge (or for a judge to agree to a request by one of the parties to step aside) in a lawsuit or appeal because of a conflict of interest or other good reason (acquaintanceship with one of the parties, for example). It also applies to a judge or prosecutor being removed or voluntarily removing himself/herself from a criminal case in which he/she has a conflict of interest, such as friendship or known enmity to the defendant.
A legal or factual issue that is irrelevant to the case at hand.
The act of going over a document with a fine-toothed comb in order to find any ambiguities or areas that are not to your advantage.
v. to buy back, as when an owner who had mortgaged his/her real property pays off the debt. The term also refers to paying the amount due and all charges after a foreclosure (because of failure to make payments when due) has begun. A person who has pawned a possession may redeem the item by paying the loan and interest to the pawnbroker.
n. the act of redeeming, buying back property by paying off a loan, interest and any costs of foreclosure.
n. taking back possession and going into real property which one owns, particularly when a tenant has failed to pay rent or has abandoned the property, or possession has been restored to the owner by judgment in an unlawful detainer lawsuit. Reentry may also be allowed when a buyer defaults on payments on a contract of sale or upon foreclosure of a mortgage or deed of trust which secured a loan on the property. The right of reentry is usually written into leases and sometimes in mortgages.
n. a person to whom a judge refers a case to take testimony or acquire other evidence such as financial records and report to the court on such findings.
n. the process by which the repeal or approval of an existing statute or state constitutional provision is voted upon. Many states provide for referenda (plural of referendum) which are placed on the ballot by a required number of voter signatures on a petition filed.
The act of changing a written contract when one of the parties can prove that the actual agreement was different than what’s written down. The changes are usually made by a court when both parties overlooked a mistake in the document, or when one party has deceived the other.
Refresh one’s memory
v. to use a document, exhibit or previous testimony in order to help a witness recall an event or prior statement when the witness has responded to a question that he/she could not remember. To attempt to “refresh” the memory of a forgetful or reluctant witness, the witness must have denied remembering and the attorney must have the witness identify the document, exhibit or prior statement (lay a foundation showing it is genuine).
n the context of the immigration law, people who have been allowed to live in the country indefinitely to protect them from persecution in their home countries. Refugees get their status before coming to the country, while asylum seekers obtain their status after arrival.
n. in corporations, the record of shareholders, and issuance and transfer of shares on the records of the corporation.
n. a detailed report to be filed with the Securities and Exchange Commission by a corporation making an issuance of shares to be advertised and sold to the general public in more than one state (in interstate commerce), which must be approved by the SEC before it will approve the stock issuance.
Registry of deeds
n. the records of land title documents kept by the County Recorder or Recorder of Deeds. These are usually kept on microfilm reels of copies of the original documents, which can be found by tracing the names of owners in the Grantor-Grantee index. These are public information but may require the assistance of an employee to locate.
n. rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations. One problem is that regulations are not generally included in volumes containing state statutes or federal laws but often must be obtained from the agency or located in volumes in law libraries and not widely distributed. The regulation-making process involves hearings, publication in governmental journals which supposedly give public notice, and adoption by the agency. The process is best known to industries and special interests concerned with the subject matter, but only occasionally to the general public. Federal regulations are adopted in the manner designated in the Administrative Procedure Act (A.P.A.) and states usually have similar procedures.
n. conducting a hearing again based on the motion of one of the parties to a lawsuit, petition or criminal prosecution, usually by the court or agency which originally heard the matter. Rehearings are usually requested due to newly discovered evidence, an unfortunate and possibly unintended result of the original order, a change of circumstance or a simple claim that the judge or agency was just wrong.
Rejection of claim
n. in probate law (administration of an estate of a person who died), a claim for a debt of the deceased denied (rejected) in total or in part by the executor or administrator of the estate. A claim is rejected in writing filed with the court, and a judge shall approve or disapprove the rejection if the claimant protests. If a claim is not acted upon it may be presumed to be approved in most states. There are other types of claims which may be rejected by agencies or individuals, which can be protested in a lawsuit if all administrative procedures are used first (under the rule called “exhaustion of administrative remedies”).
1) v. to give up a right as releasing one from his/her obligation to perform under a contract, or to relinquish a right to an interest in real property. 2) v. to give freedom, as letting out of prison. 3) n. the writing that grants a release.
Release on one’s own recognizance
v. for a judge to allow a criminal defendant pre-trial freedom without posting bail, based on the past history of the defendant, roots in the community, regular employment, the recommendation of the prosecutor, the type of crime, and in total the likelihood of making all appearances in court and the improbability that the defendant will commit another crime while awaiting trial. Often called “O.R.” or “R.O.R,” it is granted routinely in traffic matters, minor and technical crimes, and to people with no criminal record who display stability. It is called to be “ORed” in courtroom slang
adj. having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. Commonly, an objection to testimony or physical evidence is that it is “irrelevant.”
n. acting upon another’s statement of alleged fact, claim or promise. In contracts, if someone takes some steps (“changes his position” is the usual legal language) in reliance on the other’s statement, claim or promise then the person upon whom the actor relied is entitled to contend there is a contract he/she can enforce. However, the reliance must be reasonable.
n. gradual change of water line on real property which gives the owner more dry land.
n. generic term for all types of benefits which an order or judgment of court can give a party to a lawsuit, including money award, injunction, return of property, property title, alimony and dozens of other possibilities.
n. in real property law, the interest in real property that is left after another interest in the property ends, such as full title after a life estate (the right to use the property until one dies). A remainder must be created by a deed or will.
Someone who will inherit property in the future. For instance, if someone dies and leaves his home “to Alma for life, and then to Barry,” Barry is a remainderman because he will inherit the home in the future, after Alma dies.
v. to send back. An appeals court may remand a case to the trial court for further action if it reverses the judgment of the lower court, or after a preliminary hearing a judge may remand into custody a person accused of a crime if the judge finds that a there is reason to hold the accused for trial.
n. the means to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, granted by judgment after trial or hearing, by agreement (settlement) between the person claiming harm and the person he/she believes has caused it, and by the automatic operation of law. Some remedies require that certain acts be performed or prohibited (originally called “equity”); others involve payment of money to cover loss due to injury or breach of contract; and still others require a court’s declaration of the rights of the parties and an order to honor them. An “extraordinary remedy” is a means employed by a judge to meet particular problems, such as appointment of a referee, master or receiver to investigate, report or take charge of property. A “provisional remedy” is a temporary solution to hold matters in status quo pending a final decision or an attempt to see if the remedy will work.
v. to give up something, sometimes used in quitclaim deeds.
n. 1) a judge’s order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff (person who brought the suit). 2) an appeal’s transmittal of a case back to the trial court so that the case can be retried, or an order entered consistent with the appeals court’s decision (such as dismissing the plaintiff’s case or awarding costs to the winning party on appeal).
adj., adv. extremely far off or slight. Evidence may be so remote from the issues in a trial that it will not be allowed because it is “immaterial.” An act which started the events which led to an accident may be too remote to be a cause, as distinguished from the “proximate cause.” Example: While Doug Driver is passing a corner a friend calls out to him causing him to look away, and then Doug looks back and in the middle of the block is hit by a truck backing out of a driveway. The momentary inattention is not a cause of the injury, and is called a “remote cause.”
An immigration legal proceeding, also commonly known as “deportation,” that is conducted before an immigration judge to decide whether or not an immigrant will be allowed to enter or remain in the country. Generally speaking, a person who is already in the U.S. cannot be expelled without first going through a removal hearing, while someone arriving at the border or a port of entry can be removed without a hearing or ever seeing a judge (called “summary” or “expedited” removal). Those who are deported or removed are barred from returning to the United States for at least five years unless U.S. Citizenship and Immigration Services (USCIS) grants a special waiver.
n. keeping an existing arrangement in force for an additional period of time, such as a lease, a promissory note, insurance policy or any other contract. Renewal usually requires a writing or some action which evidences the new term.
1) v. to hire an object or real property for a period of time (or for an open-ended term) for specified payments. 2) n. the amount paid by the renter and received by the owner. Rent may be specified in a written lease, but also may be based on an oral agreement for either a short period or on a month-to-month basis in which the hiring may be terminated on a month’s notice.
Laws that limit the amount of rent landlords may charge, and that state when and by how much the rent can be raised. Most rent control laws also require a landlord to provide a good reason, such as repeatedly late rent, for evicting a tenant. Rent control exists in some cities and counties in California, Maryland, New Jersey, New York and Washington, D.C.
n. the amount which would be paid for rental of similar property in the same condition in the same area. Evidence of rental value becomes important in lawsuits in which loss of use of real property or equipment is an issue, and the rental value is the “measure of damages.” In divorce cases in which one of the spouses stays in the family residence, the use of the property has rental value which is considered in balancing the income of the parties, determining division of property or setting the amount of alimony to be paid.
n. 1) giving up a right, such as a right of inheritance, a gift under a will or abandoning the right to collect a debt on a note. 2) in criminal law, abandoning participation in a crime before it takes place, or an attempt to stop other participants from going ahead with the crime. A defendant may use renunciation as evidence of his/her innocence. Once the crime is underway, any claimed renunciation is factually too late.
n. the implementation of a business plan to restructure a corporation, which may include transfers of stock between shareholders of two corporations in a merger. In bankruptcy, a corporation in deep financial trouble may be given time to reorganize while being protected from creditors by the bankruptcy court. The theory is that if the business is able to get on its feet the creditors will eventually collect.
v. to restore to former condition or in some contracts to operational soundness. Contracts should spell out the repairs to be made and what the final condition will be. Example: roof repairs should be more than a half-baked patching to temporarily halt leaking.
1) v. to annul an existing law, by passage of a repealing statute, or by public vote on a referendum. Repeal of constitutional provisions requires an amendment, as with the repeal of prohibition in which the 21st Amendment repealed the 18th Amendment. 2) n. the act of annulling a statute.
What it would cost to buy a particular item from a retail vendor, considering its age and condition — for instance, to buy a car from a used car dealer, furniture from a used furniture shop,or electronic equipment on eBay.
A type of legal action where the owner of movable goods is given the right to recover them from someone who shouldn’t have them. Replevin is often used in disputes between buyers and sellers — for example a seller might bring a replevin action to reclaim goods from a buyer who failed to pay for them.
n. the written legal argument of the respondent (trial court winner) in answer to the “opening brief” of an appellant (a trial court loser who has appealed).
n. the published decisions of appeals courts in all states and federal courts, which are found in federal, state and regional series (called “reporters”) which are constantly updated with pamphlets called “advance sheets” which are soon followed by bound volumes. There are also reports of specialized courts and particular subject matters such as taxes, bankruptcy and federal procedure. Thus there are Massachusetts Reports, Georgia Reports, Kansas Reports, California Supreme Court Reports, California Appellate Reports and similar series for every state. Regional reporters include Northeast, Atlantic, Southeast, Southern, Northwest, Pacific and so forth, and combine several states’ decisions. For Supreme Court cases there are three major reporters, including U.S. Reports, Supreme Court Reporter, and Lawyer’s Edition Supreme Court Reports. These reports are available in almost all law libraries.
v. to take back property through judicial processes, foreclosure, or self-help upon default in required payments.
A creditor’s taking property that has been pledged as collateral for a loan. Lenders will most often repossess cars when the owner has missed loan payments and has not attempted to work with the lender to resolve the problem. A repossessor can’t use force to get at your car, but he can legally hot-wire it and even drive it out of your unlocked garage.
v. 1) to act as the agent for another. 2) to act as a client’s attorney. 3) to state something as a fact, such as “I tell you this horse is only four years old.” 4) to allege a fact in court, as “I represent to the court that we will present six witnesses,” “We represent that this is the final contract between the parties.”
n. 1) the act of being another’s agent. 2) acting as an attorney for a client. 3) a statement of alleged fact either in negotiations or in court.
1) n. an agent. 2) n. in probate law, a generic term for an executor or administrator of the estate of a person who has died, generally referred to as the “personal representative.” 3) adj. typical, as “these pictures are representative of the conditions at the job site.”
n. a temporary delay in imposition of the death penalty (a punishment which cannot be reduced afterwards) by the executive order of the Governor of the state. Reasons for reprieves include the possibility of newly discovered evidence (another’s involvement, evidence of mental impairment), awaiting the result of some last-minute appeal, or concern of the Governor that there may have been some error in the record which he/she should examine. On occasion a reprieve has saved a man found to be innocent. Upon the expiration of the reprieve the date for execution can be reset and the death penalty imposed. A reprieve is only a delay and is not a reduction of sentence, commutation of sentence or pardon.
n. denial of the existence of a contract and/or refusal to perform a contract obligation. Repudiation is an anticipatory breach of a contract.
n. a person’s good name, honor or what the community thinks of him/her. The quality and value of one’s reputation is a key issue in suits for defamation (libel and slander) since the damage to one’s reputation by published untruths may determine the amount of judgment against the defamer. Sometimes a person’s favorable reputation is so great that most defamation cannot do him/her much harm.
adj. referring to what is accepted by general public belief, whether or not correct.
1) v. to ask or demand a judge to act (such as issuing a writ) or demanding something from the other party (such as production of documents), usually by a party to a lawsuit (usually the attorney). 2) n. the act of asking or demanding.
Request for admission
A discovery procedure, authorized by the Federal Rules of Civil Procedure and the court rules of many states, in which one party asks an opposing party to admit that certain facts are true. If the opponent admits the facts or fails to respond in a timely manner, the facts will be deemed true for purposes of trial. A request for admission is called a “request to admit” in many states.
n. a contract between a supplier (or manufacturer) and a buyer, in which the supplier agrees to sell all the particular products that the buyer needs, and the buyer agrees to purchase the goods exclusively from the supplier. A requirements contract differs from an “an output contract,” in which the buyer agrees to buy all the supplier produces.
Latin, “thing.” In law lingo res is used in conjunction with other Latin words as “thing that.”
Latin for “the thing has been judged.” More properly res judicata.
Latin for “things done,” it means all circumstances surrounding and connected with a happening. Thus, the res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime. Statements made within the res gestae of a crime or accident may be admitted in court even though they are “hearsay” on the basis that spontaneous statements in those circumstances are reliable.
Res ipsa loquitur
Latin term meaning “the thing speaks for itself.” Res ipsa loquitur is a legal doctrine or rule of evidence that creates a presumption that a defendant acted negligently simply because a harmful accident occurred. The presumption arises only if 1) the thing that caused the accident was under the defendant’s control, 2) the accident could happen only as a result of a careless act and, (3) the plaintiff’s behavior did not contribute to the accident. Lawyers often refer to this doctrine as “res ips” or “res ipsa.”
Latin for “the thing has been judged,” meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Example: an Ohio court determines that John is the father of Betty’s child. John cannot raise the issue again in another state. Sometimes called res adjudicata.
Latin for “a new thing,” used by courts to describe an issue of law or case that has not previously been decided.
n. selling again, particularly at retail. 2) adj. referring to sales to the general public, as distinguished from wholesale, sales to retailers. In many states a “resale license” or “resale number” is required so that the state can monitor the collection of sales tax on retail sales.
v. to cancel a contract, putting the parties back to the position as if the contract had not existed. Both parties rescind a contract by mutual agreement, since a unilateral cancellation of a contract is a “breach” of the contract and could result in a lawsuit by the non-cancelling party.
n. the cancellation of a contract by mutual agreement of the parties.
n. the rule of law that if a rescuer of a person hurt or put in peril due to the negligence or intentional wrongdoing of another (the tortfeasor) is injured in the process of the rescue, the original wrongdoer is responsible in damages for the rescuer’s injury. Example: Sydney Sparetire speeds on a mountain highway, and skids in front of Victor Victim, running Victim’s car off the bank, trapping Victim in the vehicle. Raymond Rightguy stops, ties a rope to the grill of his car, slides down and extricates Victim, but on the way up slips and breaks his arm, and then finds the grill is badly bent. The negligent Sparetire is liable to Rightguy for his broken arm (including medical expenses, loss of wages and general damages for pain and suffering) as well as the property damage to the car grill.
n. a provision in a deed which keeps (reserves) to the grantor some right or portion of the property. The language might read: “Sarah Sims reserves to herself an easement of access to lots 6, 7 and 8,” or “reserves mineral rights,” or “except she reserves lot 5.”
v. to keep for oneself a right or a portion of the real property when transferring (conveying) a parcel of real estate to anoth
n. a fund of money created to take care of maintenance, repairs or unexpected expenses of a business or a multi-unit housing development (often condominiums or a housing cooperative) operated by a homeowners association or other governing body. Most states require that homeowners associations maintain such a fund.
n. 1) the place where one makes his/her home. However, a person may have his/her state of “domicile” elsewhere for tax or other purposes, especially if the residence is for convenience or not of long standing. 2) in corporation law, the state of incorporation.
n. a person who lives in a particular place. However, the term is vague depending on the permanence of the occupation.
A person who receives any property by a will or trust that is not specifically left to another designated beneficiary. For example, if Antonio makes a will leaving his home to Edwina and the remainder of his property to Elmo, then Elmo is the residuary beneficiary.
n. in a will, the gift of whatever is left (the residue) after specific gifts are given. It is also called a residuary legacy.
The property that remains in a deceased person’s estate after all specific gifts are made, and all debts, taxes, administrative fees, probate costs, and court costs are paid. The residuary estate also includes any gifts under a will that fail or lapse. For example, Connie’s will leaves her house and all its furnishings to Andrew, her VW bug to her friend Carl, and the remainder of her property (the residuary estate) to her sister Sara. She doesn’t name any alternate beneficiaries. Carl dies before Connie. The VW bug becomes part of the residuary estate and passes to Sara, along with all of Connie’s property other than the house and furnishings. Also called the residual estate or residue.
n. in a will, the assets of the estate of a person who has died with a will (died testate) which are left after all specific gifts have been made. Typical language: “I leave the rest, residue and remainder [or just residue] of my estate to my grandchildren.” If the residue is not given to any beneficiary it will be distributed pursuant to the laws of descent and distribution.
n. the crime of using physical force (no matter how slight in the eyes of most law enforcement officers) to prevent arrest, handcuffing and/or taking the accused to jail. It is also called “resisting an officer” (but that can include interfering with a peace officer’s attempt to keep the peace) and is sometimes referred to merely as “resisting.”
n. a determination of policy of a corporation by the vote of its board of directors. Legislative bodies also pass resolutions, but they are often statements of policy, belief or appreciation, and not always enactment of statutes or ordinances.
Latin for “let the master answer,” a key doctrine in the law of agency, which provides that a principal (employer) is responsible for the actions of his/her/its agent (employee) in the “course of employment.” Thus, an agent who signs an agreement to purchase goods for his employer in the name of the employer can create a binding contract between the seller and the employer. Another example: if a delivery truck driver negligently hits a child in the street, the company for which the driver works will be liable for the injuries.
A term used instead of defendant or appellee in some states — especially for divorce and other family law cases — to identify the party who is sued and must respond to the petitioner’s complaint.
adj. 1) legally liable or accountable. 2) having the ability to pay or perform.
Restatement of the Law
n. a series of detailed statements of the basic law in the United States on a variety of subjects written and updated by well-known legal scholars under the auspices of the American Law Institute since the 1930s. While not having the force of statutes or of decided precedents, the Restatement (as lawyers generally call it) has the prestige of the scholars who have studied the legal questions. Topics covered include agency, contracts, property, torts and trusts.
n. 1) returning to the proper owner property or the monetary value of loss. Sometimes restitution is made part of a judgment in negligence and/or contracts cases. 2) in criminal cases, one of the penalties imposed is requiring return of stolen goods to the victim or payment to the victim for harm caused. Restitution may be a condition of granting a defendant probation or giving him/her a shorter sentence than normal.
An order from a court directing one person not to do something, such as make contact with another person, enter the family home or remove a child from the state. Restraining orders are typically issued in cases in which spousal abuse or stalking is feared — or has occurred — in an attempt to ensure the victim’s safety. Restraining orders are also commonly issued to cool down ugly disputes between neighbors.
Restraint of trade
n. in antitrust law, any activity (including agreements among competitors or companies doing business with each other) which tends to limit trade, sales and transportation in interstate commerce or has a substantial impact on interstate commerce. Most of these actions are illegal under the various antitrust statutes. Some state laws also outlaw local restraints on competitive business activity.
Restraint on alienation
A provision in a deed or will that attempts to restrict ownership of the property — for example, selling your house to your daughter with the provision that it never be sold to anyone outside the family. These provisions are generally unenforceable.
n. any limitation on activity, by statute, regulation or contract provision. In multi-unit real estate developments, condominium and cooperative housing projects managed by homeowners’ associations or similar organizations, such organizations are usually required by state law to impose restrictions on use. Thus, the restrictions are part of the “covenants, conditions and restrictions” intended to enhance the use of common facilities and property which are recorded and incorporated into the title of each owner.
n. 1) an agreement included in a deed to real property that the buyer (grantee) will be limited as to the future use of the property. Example: no fence may be built on the property except of dark wood and not more than six feet high, no tennis court or swimming pool may be constructed within 30 feet of the property line, and no structure can be built within 20 feet of the frontage street. Commonly these covenants are written so that they can be enforced by the grantor and other owners in the subdivision, so that future owners will be bound by the covenant (called “covenant running with the land” if enforceable against future owners). All restrictive covenants based on race (“the property may be occupied only by Caucasians”) were declared unconstitutional and if they still show on deeds are null and void.
n. an endorsement signed on the back of a check, note or bill of exchange which restricts to whom the paper may be transferred.
n. common lawyer lingo for outcome of a lawsuit.
n. a trust implied by law (as determined by a court) that a person who holds title or possession was intended by agreement (implied by the circumstances) with the intended owner to hold the property for the intended owner. Thus, the holder is considered a trustee of a resulting trust for the proper owner as beneficiary. Although a legal fiction, the resulting trust forces the holder to honor the intention and prevents unjust enrichment.
A fee paid in advance to a lawyer to secure her services. It acts as a down payment, ensuring that the lawyer won’t get stiffed and that the client will be represented.
v. 1) to stop working at one’s occupation. 2) to pay off a promissory note and thus “retire” the loan. 3) for a jury to go into the jury room to decide on a verdict after all evi-dence, argument and jury instructions have been completed.
Under the Social Security system, an amount of money available to those who reach age 62 — equivalent to a small percentage of worklife earnings. For a single person first claiming retirement benefits in 1997, the average monthly benefit was about $750; $1,250 for a couple. A single person with a high earnings record claiming retirement benefits in 1997 at age 65 would receive about $1,250 per month; $1,800 for a couple. These benefits increase yearly with the cost of living — and the amount is higher the longer a person waits to claim the benefit, up to age 70.
n. 1) to withdraw any legal document in a lawsuit or other legal proceeding, or withdraw a promise or offer of contract. 2) in defamation, particularly libel, the correction of any untruth published in a newspaper or magazine or broadcast on radio or television, usually upon the demand of the person about whom the damaging false statement was made. A clear and complete retraction will usually end the right of the defamed party to go forward with a lawsuit for damages for libel. In most states a retraction must be demanded before the suit is filed in order to cure the problem without litigation.
n. a new trial granted upon the motion of the losing party, based on obvious error, bias or newly discovered evidence, or after mistrial or reversed by an appeals court.
adj. referring to a court’s decision or a statute enacted by a legislative body which would result in application to past transactions and legal actions. In criminal law, statutes which would increase penalties or make criminal activities which had been previously legal are prohibited by the constitutional ban on ex post facto laws (Article I, Section 9). Most court decisions which change the elements necessary to prove a crime or the introduction of evidence such as confessions are usually made non-retroactive to prevent a flood of petitions of people convicted under prior rules. Nor can statutes or court decisions take away “vested” property rights or change contract rights. However, some decisions are so fundamental to justice they may have a retroactive effect, depending on the balance between stability of the law and the public good. Retroactive is also called “retrospective.”
Return of service
n. written confirmation under oath by a process server declaring that there was service of legal documents (such as a summons and complaint).
n. a published opinion of the Internal Revenue Service stating what it would rule on future tax questions based on the same circumstances. These rulings are of general use to taxpayers, tax preparers, accountants and attorneys in anticipating tax treatment by the IRS. They have the force of law until otherwise determined by the federal tax court or a new revenue ruling.
n. the decision of a court of appeal ruling that the judgment of a lower court was incorrect and is therefore reversed. The result is that the lower court which tried the case is instructed to dismiss the original action, retry the case or change its judgment. Examples: a court which denied a petition for writ of mandate is ordered to issue the writ. A lower court which gave judgment with no evidence of damages is ordered to dismiss.
n. a legal mistake at the trial court level which is so significant (resulted in an improper judgment) that the judgment must be reversed by the appellate court. A reversible error is distinguished from an error which is minor or did not contribute to the judgment at the trial.
n. in real property, the return to the grantor or his/her heirs of real property after all interests in the property given to others have terminated.
n. synonymous with reversion.
n. the judicial consideration of a lower court judgment by an appellate court, determining if there were legal errors sufficient to require reversal. The process requires notice of appeal, obtaining a transcript of the trial or hearing at the trial level, obtaining all the pleadings and other documents filed in the original trial, preparation of briefs citing precedents and arguing that there was reversible error. Then the respondent (winner at the trial court) may file a responsive brief, and the appellant (the one appealing the decision) has the chance to file a brief in response to the respondent. The next step is oral argument (if allowed) before the appellate court. Appeals on procedural issues normally do not include oral argument. If the appellate court denies the appeal a rehearing may be requested but is seldom granted.
n. 1) requesting a court to reinstate the force of an old judgment. 2) reinstating a contract or debt by a new agreement after the right to demand performance or collect has expired under the statute of limitations (the time to sue).
n. 1) mutual cancellation of a contract by the parties to it. 2) withdrawing an offer before it is accepted (“I revoke my offer”). 3) cancelling a document before it has come into legal effect or been acted upon, as revoking a will. 4) to recall a power or authority previously given, as cancelling a power of attorney or cancelling a driver’s license due to traffic offenses.
v. to annul or cancel an act, particularly a statement, document or promise, as if it no longer existed. Thus, a person can revoke a will or revoke an offer to enter into a contract, and a government agency can revoke a license.
A term used to describe a hard-nosed judge, inflexible in the application of the law.
n. 1) an attachment to a document which adds to or amends it. Typical is an added provision to an insurance policy, such as additional coverage or temporary insurance to cover a public event. 2) in legislatures, an amendment tacked on to a bill which has little or no relevance to the main purpose of the legislation, but is a way to get the amendment passed if the basic bill has support. 3) passenger.
1) n. an entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, real or personal. These rights include: various freedoms; protection against interference with enjoyment of life and property; civil rights enjoyed by citizens such as voting and access to the courts; natural rights accepted by civilized societies; human rights to protect people throughout the world from terror, torture, barbaric practices and deprivation of civil rights and profit from their labor; and such constitutional guarantees as the right to freedoms of speech, press, religion, assembly and petition. 2) adj. just, fair, correct.
Right of survivorship
The right of a surviving joint tenant to take ownership of a deceased joint tenant’s share of the property.
Right of way
n. 1) a pathway or road with a specific description (e.g. “right to access and egress 20 feet wide along the northern line of Lot 7 of the Cobb subdivision in page 75 of maps”). 2) the right to cross property to go to and from another parcel. The right of way may be a specific grant of land or an “easement,” which is a right to pass across another’s land. The mere right to cross without a specific description is a “floating” easement. Some rights of way are for limited use such as repair of electric lines or for deliveries to the back door of a store. Railroads own title to a right of way upon which to build permanent tracks. 3) in traffic ordinances, a driver is entitled to the “right of way” to proceed first ahead of other vehicles or pedestrians, depending on certain rules of the road, such as the first to reach an intersection. Failure to yield the right of way to the vehicle or person entitled to it can result in a citation and fine, to say nothing of an accident. It can also be evidence of negligence in a lawsuit for injuries suffered in an accident.
Right to privacy
n. the possible right to be let alone, in absence of some “reasonable” public interest in a person’s activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity (such as a magazine or television show) violating the right. However, the right to privacy does not extend to prohibiting someone from taking another person’s picture on the street.
n. 1) plural of right, which is the collection of entitlements which a person may have and which are protected by the government and the courts or under an agreement (contract). 2) slang for the information which must be given by law enforcement officers to a person who is about to be arrested, is a prime suspect in a crime, or is officially accused of a crime. These “rights” are short for “Miranda rights,” which the Supreme Court, in Miranda v. Arizona (1966), required be read to suspects, including the rights to remain silent and to have an attorney (and if the suspect cannot afford a lawyer, one will be provided), and warning that anything the suspect says can be used against him/her in court. Failure to recite these rights means that a confession may not be used as evidence.
n. 1) technically a turbulent and violent disturbance of peace by three or more people acting together. 2) an assemblage of people who are out of control, causing injury or endangering the physical safety of others and/or themselves, causing or threatening damage to property and often violating various laws both individually and as a group. The common thread is that the people in a riot have the power through violence to break the public peace and safety, requiring police action. Often a riot is declared after the crowd has been informed by police officers that the people constitute an “unlawful assembly” and are ordered to “disperse” immediately (historically in England called “reading the riot act”). If the crowd does not disperse, its members become subject to arrest for the crime of rioting, disturbing the peace, resisting arrest or other separate crimes ranging from assault to unlawful possession of firearms.
adj. referring to the banks of a river or stream.
n. the right of the owner of the land forming the bank of a river or stream to use water from the waterway on the land, such as for drinking water or irrigation. State laws vary as to the extent of the rights, but controversy exists as to the extent of riparian rights for diversion of water to sell to others, for industrial purposes, to mine the land under the water for gravel or minerals or for docks and marinas. Consistent in these questions is that a riparian owner may not act to deny riparian rights to the owner of downstream properties along the waterway, meaning the water may not be dammed and channelled away from its natural course.
adj. in constitutional law, referring to a law case appealed from a state or federal court which is ready for consideration by the Supreme Court, meaning that all other avenues for determining the case have been exhausted, there is a real controversy and the law needs to be settled on one or more issues raised by the case.
n. chances of danger or loss, particularly of property covered by an insurance policy or property being used or transported by another. Insurance companies assume the risk of loss and calculate their premiums by the value and the risk based on statistically determined chances. A trucking company assumes the risk of loss while carrying goods.
Risk of loss
n. the responsibility a carrier, borrower or user of property or goods assumes or an insurance company agrees to cover if there is damage or loss.
n. a preliminary test law enforcement officers use on a suspected drunk driver at the spot the driver has been pulled over. Essentially it is a test of equilibrium (balance), reflexes and mental acuity, consisting of standing on one foot and then the other, walking a straight line, touching one’s nose with the forefinger of each hand, saying the alphabet backwards or counting by twos. Some tests include writing. Although sometimes a judgment call by the officers, a suspect’s failure of the test is often obvious and may be supplemented by reports of slurred speech, bloodshot eyes, the smell of alcohol and answers to simple questions such as “How much did you have to drink?” or “Do you know where you are?” If the officer decides the driver is drunk, he/she will inform the driver he/she is being arrested for driving under the influence of alcohol, read the Miranda rights, arrest the driver and transport him/her to a nearby police facility, where the suspect is asked to submit to an alcohol blood test (breathalizer, blood or urine) which is more definitive than the subjective roadside test. If the driver refuses the blood alcohol test, the officer may testify in court on the roadside test results as proof of drunkenness if there is a trial of the accused. In cases in which the inability to drive effectively is due to use of narcotics or a combination of drugs and alcohol, the roadside test may provide crucial evidence of physical symptoms and mental confusion indicating inability to drive safely even though the alcohol level is below the legally drunk level.
n. 1) the direct taking of property (including money) from a person (victim) through force, threat or intimidation. Robbery is a felony (crime punishable by a term in state or federal prison). “Armed robbery” involves the use of a gun or other weapon which can do bodily harm, such as a knife or club, and under most state laws carries a stiffer penalty (longer possible term) than robbery by merely taking. 2) a term improperly used to describe thefts, including burglary (breaking and entering) and shoplifting (secret theft from the stock of a store), expressed: “We’ve been robbed.”
n. a written request by a judge to a judge in another state asking that a witness in the other state have his/her testimony taken in the other state’s court for use in the local court case.
A delayed tax that allows you to apply the profit you make selling your old house to pay for the new one without paying capital gains taxes on the profit. In order to rollover the profits, the new house must be more expensive than the old and the two sales must occur within two years of each other.
n. a percentage of gross or net profit or a fixed amount per sale to which a creator of a work is entitled which is determined by contract between the creator and the manufacturer, publisher, agent and/or distributor. Inventors, authors, movie makers, scriptwriters, music composers, musicians and other creators contract with the manufacturers, publishers, movie production companies and distributors, as well as producers and distributors for a license to manufacture and/or sell the product, who pay a royalty to the creator based on a percentage of funds received. Should someone use another person’s creation either purposely or by mistake, the user could be found liable to the creator for all profits on the basis of copyright or patent infringement, which usually is far more than a royalty. However, a creator does not have to license his/her creation to anyone.
1) v. to decide a legal question, by a court, as in: “I rule that the plaintiff is entitled to the goods and damages for delay in the sum of $10,000.” 2) v. to make a judicial command, such as: “I find that George Gonzo is the parent of Larry Gonzo and rule that he must pay support of $150 per month to the mother” for the support of Larry. 3) n. any regulation governing conduct. 4) n. one of the regulations of covering legal practice before a particular group of courts, collectively called “rules of court” adopted by local judges. 5) n. a legal principle set by the decision in an appellate case, as “the rule in the case of Murray v. Crampton is….”
Rule against perpetuities
An exceedingly complex legal doctrine that limits the amount of time that property can be controlled after death by a person’s instructions in a will. For example, a person would not be allowed to leave property to her husband for his life, then to her children for their lives, then to her grandchildren. The gift would potentially go to the grandchildren at a point too remote in time
Rule of doubt
The rule under which the Copyright Office allows object code to be deposited in connection with a computer program registration. The rule of doubt means there is an express understanding that doubt exists as to whether the code qualifies for copyright protection should litigation later occur. In essence, the Copyright Office is saying, “We will let you deposit object code, but since we can’t read or understand it, we won’t commit ourselves as to its copyrightability.” If the registration is accomplished under the rule of doubt, the copyright owner may be unable to claim the presumption of ownership — an important benefit of registration — should the issue end up in court because of an alleged copyright infringement.
Rules of court
n. a set of procedural regulations adopted by courts which are mandatory upon parties and their lawyers on matters within the jurisdiction of those courts. Most states have statewide rules of court. Federal court rules are adopted by the district courts based on the Federal Rules of Procedure, and county, district and municipal court judges adopt what are called “local rules” of court. Local rules encompass the time allowed to file papers, the format of documents (including the paper colors of appeal court briefs), the number of copies to be filed, the procedure to file motions, the basis for calculating alimony and child support, fees for filing various documents and numerous other mundane but vital matters. These rules are violated or ignored at the peril of the client and his/her/its counsel.
Any decision a judge makes during the course of a lawsuit.
Running at large
adj. 1) referring to cattle or other animals which have escaped from an enclosure and are wandering. The owner will be liable for damage caused by such animals. 2) political campaigning by a candidate running for an office from no specific district, but from an entire city, county or state.
Running with the land
A phrase used in property law to describe a right or duty that remains with a piece of property no matter who owns it. For example, the duty to allow a public beach access path across waterfront property would most likely pass from one owner of the property to the next.