A term that describes a profit-making corporation organized under state law whose shareholders have applied for and received subchapter S corporation status from the Internal Revenue Service. Electing to do business as an S corporation lets shareholders enjoy limited liability status, as would be true of any corporation, but be taxed like a partnership or sole proprietor. That is, instead of being taxed as a separate entity (as would be the case with a regular or C corporation) an S corporation is a pass-through tax entity: income taxes are reported and paid by the shareholders, not the S corporation. To qualify as an S corporation a number of IRS rules must be met, such as a limit of 75 shareholders and citizenship requirements.
adj. a reference back to a thing that was previously mentioned or identified, popular in legal documents, as “the said driver drove said automobile in a negligent manner.”
n. transfer of something (and title to it) in return for money (or other thing of value) on terms agreed upon between buyer and seller. The price paid may be based on a posted cost, established by negotiation between seller and buyer, or by auction with potential buyers bidding until the highest bid is accepted by the seller or his agent (auctioneer).
1) v. to save goods. 2) n. payment to a person or group which saves cargo from a shipwreck.
n. 1) a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court. If a fine, the sanction may be paid to the court or to the opposing party to compensate the other side for inconvenience or added legal work due to the rule violation. Examples: a) under local rules Bagatelle’s attorney is required to file a brief in response to the opposition’s motion five days before the hearing, but is two days late. The judge accepts the documents, but imposes a $200 sanction on Bagatelle’s attorney for the failure to file them on time. b) Campbell’s lawyer wants to include a newly found expert in his list of witnesses, but the date for adding to the list has passed. The judge permits the added witness, but allows the opposition to take the expert’s deposition, and imposes a sanction (fine) on Campbell to pay both sides’ costs of the deposition and $500 attorney’s fees to the opposing counsel. c) Defendant Danny Dipper says “you son-of-a-bitch” in court when the judge fines him $100 for jay-walking. The judge imposes a sanction of $200 and a day in jail for Danny’s contempt of court. 2) v. to impose a fine or penalty as part of a judge’s duty to maintain both order and fairness in court. 3) v. in international law, to impose economic constraints on trade against a country that violates international law or is guilty of human rights violations. 4) v. to allow or approve. This meaning is ironically in contrast to the other definitions of “sanction.” To sanction can mean to ratify or to approve but it can also mean to punish. The sanction of a crime refers to the actual punishment, usually expressed as a fine or jail term.
n. receiving payment or performance of what is due.
Satisfaction of judgment
n. a document signed by a judgment creditor (the party owed the money judgment) stating that the full amount due on the judgment has been paid. The judgment creditor (the party who paid the judgment) is entitled to demand that the judgment creditor (the party to whom the money judgment is owed) sign the satisfaction of judgment, file it with the court clerk, acknowledge it before a notary public, and record the document with the County Recorder (or Recorder of Deeds) if there is an abstract of judgment (a document showing the amount of the judgment which is a lien on any real property belonging to the defendant) on record.
Satisfaction of mortgage
n. a document signed by a lender acknowledging that a mortgage has been fully paid. It must be recorded with the County Recorder (or Recorder of Deeds) to clear the title to the real property owned by the person who paid off the debt.
v. 1) also called hold harmless, to indemnify (protect) another from harm or cost. 2) to agree to guarantee that any debt, lawsuit or claim which may arise as a result of a contract or contract performance will be paid or taken care of by the party making the guarantee. Example: the seller of a business agrees to “save harmless” the buyer from any unknown debts of the business.
Savings and loan
n. a banking and lending institution, chartered either by a state or the federal government. Savings and loans only make loans secured by real property from deposits, upon which they pay interest slightly higher than that paid by most banks. In the early 1980s savings and loans were “de-regulated,” allowing them to make loans for speculative land development, removing high reserve funds requirements, and allowing their funds to participate in competition with banks. The result was use of many savings and loans for speculative and dishonest investments, lack of controls and tremendous losses to thousands of depositors. However, a properly managed, conservative savings and loan which concentrates on real estate loans guaranteed by the FHA (Federal Housing Administration) and/or sold in the secondary mortgage market can be safe, profitable and provide a valuable channel for savings into the home finance market.
Latin for “having knowledge.” In criminal law, it refers to knowledge by a defendant that his/her acts were illegal or his/her statements were lies and thus fraudulent.
Latin for “spark.” Scintilla is commonly used in reference to evidence, in the context that there must be a “scintilla of evidence” (at least a faint spark) upon which to base a judgment.
Scope of employment
n. actions of an employee which further the business of the employer and are not personal business, which becomes the test as to whether an employer is liable for damages due to such actions under the doctrine of respondeat superior (make the master answer).
n. a person who writes a document for another, usually for a fee. If a lawyer merely writes out the terms of a lease or contract exactly as requested by the client, without giving legal advice, then the lawyer is just a scrivener and is probably not responsible for legal errors (unless they were so obvious as to warrant comment). A non-lawyer may act as a scrivener without getting in trouble for practicing law without a license.
n. a device which creates an impression upon paper or melted wax, used by government agencies, corporations and notaries public to show that the document is validly executed, acknowledged or witnessed, since the seal is unique to the sealer. Corporate seals state the name, date and state of incorporation. Notaries increasingly use a rubber stamp instead of a seal since their print is easier to microfilm for official recording than is a faint embossed impression. Contracts used to be “sealed,” but that is rare today.
n. the decision of a jury when there is a delay in announcing the result, such as waiting for the judge, the parties and the attorneys to come back to court. The verdict is kept in a sealed envelope until handed to the judge when court reconvenes.
Sealing of records
n. trial records and decisions which a judge orders kept secret. Usually these are the criminal records of under-age offenders which cannot be examined without a special court order or only by those connected with law enforcement. On occasion records in civil trials are sealed on the motion of a party claiming the need to protect inventions, business secrets or national security. Sometimes sealing is stipulated as part of a settlement to keep the terms from public scrutiny.
v. 1) to examine another’s premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional under the 4th and 14th Amendments for law enforcement officers to conduct a search without a “search warrant” issued by a judge or without facts which give the officer “probable cause” to believe evidence of a specific crime is on the premises and there is not enough time to obtain a search warrant. 2) to trace the records of ownership of real property in what is commonly called a “title search.”
Search and seizure
n. examination of a person’s premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, a blood-soaked blanket). The basic question is whether the search and seizure were “unreasonable”. Thus, searches and seizures must be under the authority of a search warrant or when the officer has solid facts that give him/her “probable cause” to believe there was evidence of a specific crime on the premises but no time to get a warrant. Evidence obtained in violation of the Constitution is not admissible in court, nor is evidence traced through such illegal evidence.
An order signed by a judge that directs owners of private property to allow the police to enter and search for items named in the warrant. The judge won’t issue the warrant unless she has been convinced that there is probable cause for the search — that reliable evidence shows that it’s more likely than not that a crime has occurred and that the items sought by the police are connected with it and will be found at the location named in the warrant. In limited situations the police may search without a warrant, but they cannot use what they find at trial if the defense can show that there was no probable cause for the search.
Second degree murder
n. a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility. Second degree murder is different from first degree murder, which is a premeditated, intentional killing or results from a vicious crime such as arson, rape or armed robbery. Exact distinctions on degree vary by state.
n. an organized refusal to purchase the products of, do business with or perform services for (such as deliver goods) a company which is doing business with another company where the employees are on strike or in a labor dispute.
In trademark law, a mark that is not inherently distinctive becomes protected after developing a “secondary meaning”: great public recognition through long use and exposure in the marketplace. For example, though first names are not generally considered inherently distinctive, Ben & Jerry’s Ice Cream has become so well known that it is now entitled to maximum trademark protection.
n. a kickback of money by a business to a “preferred” customer, not offered to the public or by a subcontractor to a contractor not shown on a job estimate. Both are illegal in most states as unfair business practices and may result in criminal penalties or refusal of a court to enforce a contract (written or oral) in which there is such a secret rebate.
Secret warranty program
A program under which a car manufacturer will make repairs for free on vehicles with persistent problems, even after the warranty has expired, in order to avoid a recall and the accompanying bad press. Secret warranties are rarely advertised by the manufacturer, so consumers must pursue the manufacturer to discover and take advantage of them. A few states require manufacturers to notify car buyers when they adopt secret warranty programs.
A debt on which a creditor has a lien. The creditor can institute a foreclosure or repossession to take the property identified by the lien, called the collateral, to satisfy the debt if you default.
n. any loan or credit in which property is pledged as security in the event payment is not made.
n. generic term for shares of stock, bonds and debentures issued by corporations and governments to evidence ownership and terms of payment of dividends or final pay-off. They are called securities because the assets and/or the profits of the corporation or the credit of the government stand as security for payment. However, unlike secured transactions in which specific property is pledged, securities are only as good as the future profitability of the corporation or the management of the governmental agency. Most securities are traded on various stock or bond markets.
A payment required by a landlord to ensure that a tenant pays rent on time and keeps the rental unit in good condition. If the tenant damages the property or leaves owing rent, the landlord can use the security deposit to cover what the tenant owes.
n. generic term for the property rights of a lender or creditor whose right to collect a debt is secured by property.
n. the federal crime of advocacy of insurrection against the government or support for an enemy of the nation during time of war, by speeches, publications and organization. Sedition usually involves actually conspiring to disrupt the legal operation of the government and is beyond expression of an opinion or protesting government policy. Sedition is a lesser crime than “treason,” which requires actual betrayal of the government, or “espionage.” Espionage involves spying on the government, trading state secrets (particularly military) to another country (even a friendly nation), or sabotaging governmental facilities, equipment or suppliers of the government, like an aircraft factory.
n. an old feudal term for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple (full title to real property).
1) having ownership, commonly used in wills as “I give all the property of which I die seized as follows:….” 2) having taken possession of evidence for use in a criminal prosecution. 3) having taken property or a person by force.
The taking of physical evidence or property by law enforcement officials. This runs the gamut from taking blood for a drug test to impounding a car used in a robbery. The police must generally obtain a search warrant, or court order, before they can seize personal property.
n. in the stock market, using secret “inside” information gained by being an official of a corporation (or from such an officer) to buy or sell stock (or real property wanted by the corporation) before the information becomes public (like a merger, poor profit report, striking oil). Self-dealing can also apply to general partners of a limited partnership who do not inform limited partners of business opportunities which should belong to the partnership. Self-dealing can result in a lawsuit for fraud by shareholders. Self-dealing with securities is a crime under the federal Securities and Exchange Act.
An affirmative defense to a crime. Self-defense is the use of reasonable force to protect oneself from an aggressor. Self-defense shields a person from criminal liability for the harm inflicted on the aggressor. For example, a robbery victim who takes the robber’s weapon and uses it against the robber during a struggle won’t be liable for assault and battery since he can show that his action was reasonably necessary to protect himself from imminent harm.
adj. immediately effective without further action, legislation or legal steps. Some statutes are self-executing, as are some legal rights (such as when a person holds property as security and title passes automatically when payments are not made). Most judgments in lawsuits are not self-executing and are only documents giving the winning party the right to try to collect.
n. 1) obtaining relief or enforcing one’s rights without resorting to legal action, such as repossessing a car when payments have not been made, retrieving borrowed or stolen goods, demanding and receiving payment or abating a nuisance (such as digging a ditch to divert flooding from another’s property). Self-help is legal as long as it does not “break the public peace” or violate some other law (although brief trespass is common). 2) the maximizing of one’s opportunities.
The making of statements that might expose you to criminal prosecution, either now or in the future. The Constitution prohibits the government from forcing you to provide evidence (as in answering questions) that would or might lead to your prosecution for a crime.
A will that is created in a way that allows a probate court to easily accept it as the true will of the person who has died. In most states, a will is self-proving when two witnesses sign under penalty of perjury that they observed the willmaker sign it and that he told them it was his will. If no one contests the validity of the will, the probate court will accept the will without hearing the testimony of the witnesses or other evidence. To make a self-proving will in other states, the willmaker and one or more witnesses must sign an affidavit (sworn statement) before a notary public certifying that the will is genuine and that all willmaking formalities have been observed.
adj. referring to a question asked of a party to a lawsuit or a statement by that person that serves no purpose and provides no evidence, but only argues or reinforces the legal position of that party.
v. to transfer possession and ownership of goods or other property for money or something of equivalent value.
n. one who sells goods or other property to a buyer (purchaser).
n. the first security interest (lien or claim) placed upon property at a time before other liens, which are called “junior” liens.
Punishment in a criminal case. A sentence can range from a fine and community service to life imprisonment or death. For most crimes, the sentence is chosen by the trial judge; the jury chooses the sentence only in a capital case, when it must choose between life in prison without parole and death. The punishment given to a person who has been convicted (i.e. found to be guilty) of a crime. It may be time in jail, community service or a period of probati
In community property states, property owned and controlled entirely by one spouse in a marriage. At divorce, separate property is not divided under the state’s property division laws, but is kept by the spouse who owns it. Separate property includes all property that a spouse obtained before marriage, through inheritance or as a gift. It also includes any property that is traceable to separate property — for example, cash from the sale of a vintage car owned by one spouse before marriage-and any property that the spouses agree is separate property.
A situation in which the partners in a married couple live apart. Spouses are said to be living apart if they no longer reside in the same dwelling, even though they may continue their relationship. A legal separation results when the parties separate and a court rules on the division of property, such as alimony or child support — but does not grant a divorce.
n. an agreement between two married people who have agreed to live apart for an unspecified period of time, perhaps forever. The agreement generally covers any alimony (money paid for spousal support), child support, custody arrangements if there are children, payment of bills and management of separate bank accounts. A separation agreement may determine division of property if the separation appears permanent. It cannot be enforced by court order unless one party files a petition for legal separation or files a lawsuit for specific performance of a contract. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.
Latin for “one after another” as in a series. Thus, issues or facts are discussed seriatim (or “ad seriatim”), meaning one by one in order.
n. an employee of an employer, technically one who works for a master. A servant is distinguished from an “independent contractor” who operates his/her own business even though spending much time on the work of a particular person or entity. The servant has established hours or piece work, is under the direction of the employer even as to details, cannot work for competitors and acts for the benefit of the employer rather than for himself/herself. The employer of a servant must provide to the servant (employee) worker’s compensation insurance, Social Security coverage, make income tax deductions, and provide benefit from various federal and state labor laws. An independent contractor is responsible for such payments and benefits himself/herself.
n. 1) paid work by another person, either by contract or as an employee. “Personal services” is work that is either unique (such as an artist or actor) or based on a person’s particular relationship to employer (such as a butler, nanny, traveling companion or live-in health care giver). 2) the domestic activities of a wife, including the marital relationship (consortium), are legally considered “services” for which a deprived husband may sue a person who has caused injury to his wife. 3) the official delivery of legal documents (“service of process”) such as a summons, subpena, complaint, order to show cause (order to appear to show reasons why a judge should not make a particular order), writ (court order), or notice to quit the premises, as well as delivery by mail or in person of documents to opposing attorneys or parties, such as answers, motions, points and authorities, demands and responses.
Service by FAX
n. delivery of legal documents required by statute to be “served” by transmitting through telecopier phone (FAX), followed by mailing an original (“hard copy”). Increasingly, the courts recognize this as legitimate service since it is instantaneous.
Service by mail
n. mailing legal pleadings to opposing attorneys or parties, while filing the original with the court clerk with a declaration stating that the copy was mailed to a particular person at a specific address. Once a party has responded by filing an answer, subsequent pleadings (except orders to show cause and orders of examination) can be served upon his/her/its attorney by mail.
Service by publication
n. serving a summons or other legal document in a lawsuit on a defendant by publishing the document in an advertisement in a newspaper of general circulation. Service by publication is used to give “constructive notice” to a defendant who is intentionally absent, in hiding, unknown (as a possible descendant of a former landowner), and only when allowed by a judge’s order based on a sworn declaration of the inability to find the defendant after “due diligence” (trying hard). Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address or to give notice to people who might have a right to object to a “quiet title” action to clear title to real property.
A word, phrase, logo, symbol, color, sound or smell used by a business to identify a service and distinguish it from those of its competitors. If the business uses the name or logo to identify a product, such as a camera, it is called a trademark. In practice, the legal protections for trademarks and service marks are identical.
Service of process
n. the delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called “substituted service” can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office or with a designated “agent for acceptance of service” (often with name and address filed with the state’s Secretary of State), or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.
n. work performed for pay.
n. real property which has an easement or other use imposed upon it in favor of another property (called the “dominant estate”), such as right of way or use for access to an adjoining property or utility lines. The property giving usage is the servient estate, and the property holding usage of the easement is the dominant estate.
Property that is subject to use by another for a specific purpose. For example, a beachfront house that has a public walkway to the beach on its premises would be a servient tenement.
n. 1) a meeting (or “sitting”) of a court for a particular period of time. “Session” technically means one day’s business (as in “today’s session”). 2) the term of an appeals court covering several months (as in the “Spring Term” or the “October Term”).
v. to schedule, as to “set a case for trial.”
v. to annul or negate a court order or judgment by another court order. Example: a court dismisses a complaint believing the case had been settled. Upon being informed by a lawyer’s motion that the lawsuit was not settled, the judge will issue an order to “set aside” the original dismissal.
The distance between a property boundary and a building. A minimum setback is usually required by law.
A claim made by someone who allegedly owes money, that the amount should be reduced because the other person owes him money. This is often raised in a counterclaim filed by a defendant in a lawsuit. Banks may try to exercise a setoff by taking money out of a deposit account to satisfy past due payments on a loan or credit card bill. Such an act is illegal under most circumstances.
n. the action of a court, clerk or commissioner in scheduling a trial or hearing.
v. to resolve a lawsuit without a final court judgment by negotiation between the parties, usually with the assistance of attorneys and/or insurance adjusters, and sometimes prodding by a judge. Most legal disputes are settled prior to trial.
n. the resolution of a lawsuit (or of a legal dispute prior to filing a complaint or petition) without going forward to a final court judgment. Most settlements are achieved by negotiation in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company’s insured defendant) and the parties agree to terms of settlement. Many states require a settlement conference a few weeks before trial in an effort to achieve settlement with a judge or assigned attorneys to facilitate the process. A settlement is sometimes reached based upon a final offer just prior to trial (proverbially “on the courthouse steps”) or even after trial has begun. A settlement reached just before trial or after a trial or hearing has begun is often “read into the record” and approved by the court so that it can be enforced as a judgment if the terms of the settlement are not complied with. Most lawsuits result in settlement.
n. the person who creates a trust by a written trust declaration, called a “Trustor” in many (particularly western) states and sometimes referred to as the “Donor.” The settlor usually transfers the original assets into the trust.
A provision in a contract that preserves the rest of the contract if a portion of it is invalidated by a court. Without a severability clause, a decision by the court finding one part of the contract unenforceable would invalidate the entire document.
n. an agreement which is made up of several separate contracts between the same parties, such as series of sales, shipments or different pieces of equipment. Therefore, breach of one of the separate (severable) contracts is not a breach of the remainder of the overall contract and is not an excuse for the other party to refuse to honor any divisable part of the contract which has not been breached.
n. referring to responsibility of one party for the entire debt (as in “joint and several”) or judgment when those who jointly agreed to pay the debt or are jointly ordered to pay a judgment do not do so. A person who is stuck with “several liability” because the others do not pay their part may sue the other joint debtors for contribution toward the payment he/she has made.
n. 1) a separating by court order, such as separate trials for criminal defendants who were charged with the same crime, or trying the negligence aspect of a lawsuit before a trial on the damages. Such division of issues in a trial is sometimes also called “bifurcation.” Severance is granted when a joint trial might be unfair or reaching a decision on one issue (such as negligence) may save the trouble of hearing the other questions. 2) extra pay offered and made to a person to encourage him/her to resign, retire or settle a potential claim for discharge.
Funds, usually amounting to one or two months’ salary, frequently offered by employers to workers who are laid off. No law compels employers to provide severance pay, although the employer may be legally obligated to do so if it was promised in a contract or employees’ handbook.
Unwelcome sexual advances or conduct on the job that creates an intimidating, hostile or offensive working environment. Sexual harassing behavior ranges from repeated offensive jokes to a workplace full of pornography to outright sexual assault.
v. 1) an imperative command as in “you shall not kill.” 2) in some statutes, “shall” is a direction but does not mean mandatory, depending on the context.
n. 1) a portion of a benefit from a trust, estate, claim or business usually in equal division (or a specifically stated fraction) with others (“to my three daughters, in equal shares”). 2) a portion of ownership interest in a corporation, represented by a stock certificate stating the number of shares of an issue of the corporation’s stock.
Share and share alike
adj. referring to the equal division of a benefit from an estate, trust or gift, which includes the right of the survivors to divide the portion of any beneficiary who dies before receiving the gift.
Shared equity mortgage
A home loan in which the lender gets a share of the equity of the home in exchange for providing a portion of the down payment. When the home is later sold, the lender is entitled to a portion of the proceeds.
n. the owner of one or more shares of stock in a corporation, commonly also called a “stockholder.” The benefits of being a shareholder include receiving dividends for each share as determined by the board of directors, the right to vote (except for certain preferred shares) for members of the board of directors, to bring a derivative action (lawsuit) if the corporation is poorly managed, and to participate in the division of value of assets upon dissolution and winding up of the corporation, if there is any value. A shareholder should have his/her name registered with the corporation, but may hold a stock certificate which has been signed over to him/her. Before registration the new shareholder may not be able to cast votes represented by the shares.
n. an employment agreement among the shareholders of a small corporation permitting a shareholder to take a management position with the corporation without any claim of conflict of interest or self-dealing against the shareholder/manager. Such agreements are common when there are only three or four shareholders.
Shareholders’ derivative action
n. a lawsuit by a corporation’s shareholders, theoretically on behalf of the corporation, to protect and benefit all shareholders against the corporation for improper management.
n. a meeting, usually annual, of all shareholders of a corporation (although in large corporations only a small percentage attend) to elect the board of directors and hear reports on the company’s business situation. In larger corporations top management people hold the proxies signed over to them by many of the shareholders to vote for them.
n. actions by a lawyer using misleading statements to opposing counsel or the court, denial of oral stipulations (agreements between attorneys) previously made, threats, improper use of process or tricky and/or dishonorable means barely within the law. A consistent pattern of sharp practice may lead to discipline by the state bar association or by the courts.
n. a method of locating reports of appeals decisions based on prior precedents from Shepard’s Citations, books which list the volume and page number of published reports of every appeals court decision which cites a previously decided case or a statute. Shepard’s exists for all sets of reports of appeals cases, and is updated every month with supplemental booklets. While it looks like a mathematician’s book of tables, Shepard’s Citations is an invaluable tool in finding appeals decisions which either follow, distinguish or deviate from prior case law.
n. the top law enforcement officer for a county, usually elected and responsible for police protection outside of incorporated cities, management of the county jail, providing bailiffs for protection of the courts, and such civil activities as serving summonses, subpenas and writs, conducting judgment sales, and fulfilling various functions ordered by the courts. The office was brought to the United States from England and is unknown in most nations which use federal and state police. Canada, for example, has the highly professional Royal Canadian Mounted Police (and its Quebec equivalent) to serve for most non-municipal law enforcement. The position of sheriff has been criticized as lacking training standards, being overly political, not being coordinated with other jurisdictions, and being hampered by its lack of authority beyond the county line except when in “hot pursuit” of a suspect who crosses the county line. The sheriff’s uniformed police are called “deputy sheriffs,” with the number two person often entitled “under sheriff.”
n. an auction sale of property held by the sheriff pursuant to a writ (court order) of execution (to seize and sell the property) to satisfy (pay) a judgment, after notice to the public.
n. statutes enacted in some states which declare that communications between news reporters and informants are confidential and privileged and thus cannot be testified to in court. This is similar to the doctor-patient, lawyer-client or priest-parishioner privilege. The concept is to allow a journalist to perform his/her function of gathering news without being ordered to reveal his/her sources and notes of conversations. In states which have no shield law, many judges have found reporters in contempt of court (and given them jail terms) for refusing to name informants or reveal information gathered on the promise of confidentiality.
Shifting the burden of proof
n. the result of the plaintiff in a lawsuit meeting its burden of proof in the case, in effect placing the burden with the defendant, at which time it presents a defense. There may be shifts of burden of proof on specific factual issues during a trial, which may impact the opposing parties and their need to produce evidence.
n. a lawsuit which is estimated by the parties (usually their attorneys) and the trial setting judge to take no more than one day. Thus, a short cause may be called on the “short cause” calendar and get priority on the calendar since it can be fitted into the court’s schedule and will not tie up a courtroom for a long period. Short causes may be treated differently from “long cause” cases, such as not requiring a settlement conference or having the cases tried by “pro tem” judges. However, if a supposed “short cause” lasts beyond one day the judge is authorized to declare a mistrial and the case will be reset later as a “long cause.”
Short sale (of house)
A sale of a house in which the proceeds fall short of what the owner still owes on the mortgage. Many lenders will agree to accept the proceeds of a short sale and forgive the rest of what is owed on the mortgage when the owner cannot make the mortgage payments. By accepting a short sale, the lender can avoid a lengthy and costly foreclosure, and the owner is able to pay off the loan for less than what he owes.
n. an order of the court in response to the motion of a party to a lawsuit which allows setting a motion or other legal matter at a time shorter than provided by law or court rules. Shortening time is usually granted when the time for trial or some other court action is approaching and a hearing must be heard promptly by the judge. Example: the local rules require that a party give the other side 10 days’ notice before a hearing. A hearing on adding a witness to the expert list would be useless unless heard in five days, since the trial is set to be called in nine days. The court may shorten the time to schedule the hearing to five days, provided the notice is served within 24 hours.
Show cause order
n. an order of the court, also called an order to show cause or OSC, directing a party to a lawsuit to appear on a certain date to show cause why the judge should not issue a specific order or make a certain finding.
Time off work for illness. Most employers provide for some paid sick leave, although no law requires them to do so. Under the Family and Medical Leave Act, however, a worker is guaranteed up to 12 weeks per year of unpaid leave for severe or lasting illnesses.
n. 1) physically, an area in front of or next to the judge’s bench (the raised desk in front of the judge) away from the witness stand and the jury box, where lawyers are called to speak confidentially with the judge out of earshot of the jury. 2) a discussion between the judge and attorneys at the bench off the record and outside the hearing of the jurors or spectators. 3) in journalism, a brief story on a sidelight to a news story, such as a biographical sketch about a figure in the news or an anecdote related to the main story, and sometimes enclosed within a box.
v. 1) to write one’s signature on a document, including an “X” by an illiterate or physically impaired person, provided the mark is properly witnessed in writing as “Eddie Jones, his mark.” An attorney-in-fact given authority to act for another person by a power of attorney may sign for the one giving the power but should identify the signature as “by his attorney-in-fact, George Goodman.” 2) to commu-nicate by sign language.
n. a non-legal term for an investor who puts money into a business, takes no part in management and is often unknown to customers. A “limited partner,” who is prohibited from taking part in management and has no liability for debts beyond his/her investment, is a true silent partner. However, without a limited partnership agreement, a silent partner is responsible for the debts of the partnership as a general partner.
adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a “class action,” brought for the benefit of the party filing the suit as well as all those “similarly situated.” To be similarly situated, the defendants, basic facts and legal issues must be the same, and separate lawsuits would be impractical or burdensome.
n. a trust which requires that all income be distributed each year and not accumulated.
Simultaneous death act
n. a statute in effect in most states which provides that if a husband and wife or siblings die in an accident in which they died at the same moment or it cannot be determined who died first, it is presumed that each died before the other for determining inheritance.
Sine qua non
Latin for “without which it could not be,” an indispensable action or condition.
Latin for “location,” be it where the crime or accident took place or where the building stands.
A type of defamation. Slander is an untruthful oral (spoken) statement about a person that harms the person’s reputation or standing in the community. Because slander is a tort (a civil wrong), the injured person can bring a lawsuit against the person who made the false statement. If the statement is made via broadcast media — for example, over the radio or on TV — it is considered libel, rather than slander, because the statement has the potential to reach a very wide audience.
A Strategic Lawsuit Against Public Participation, in which a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative. SLAPP suits typically involve the environment–for example, local residents who are petitioning to change zoning laws to prevent a real estate development might be sued in a SLAPP suit for interference with the developer’s business interests. Many states have “anti-SLAPP suit” statutes that protect citizens’ rights to free speech and to petition the government.
Small claims court
A state court that resolves disputes involving relatively small amounts of money — usually between $2,000 and $10,000, depending on the state. Adversaries usually appear without lawyers — in fact, some states forbid lawyers in small claims court — and recount their side of the dispute in plain English. Evidence, including the testimony of eye witnesses and expert witnesses, is relatively easy to present because small claims courts do not follow the formal rules of evidence that govern regular trial cases. A small claims judgment has the same force as does the judgment of any other state court, meaning that if the loser — now called the “judgment debtor” — fails to pay the judgment voluntarily, it can be collected using normal collection techniques, such as property liens and wage garnishments.
According to the Patent and Trademark Office (PTO), a for-profit company with 500 or fewer employees, a nonprofit organization or an independent inventor. The PTO charges small entities half the fees charged large entities for filing a patent application and for issuing and maintaining the patent.
The general term that describes a number of related programs, including retirement, disability, dependents and survivors benefits. These programs provide workers and their families with some monthly income when their normal flow of income shrinks because of retirement, disability, or death.
An arrangement whereby only one parent has physical and legal custody of a child and the other parent has visitation rights.
A business owned and managed by one person (or for tax purposes, a husband and wife). For IRS purposes, a sole proprietor and her business are one tax entity, meaning that business profits are reported and taxed on the owner’s personal tax return. Setting up a sole proprietorship is cheap and easy since no legal formation documents need be filed with any governmental agency (although tax registration and other permit and license requirements may still apply). Once you file a fictitious name statement (assuming you don’t use your own name) and obtain any required basic tax permits and business licenses, you’ll be in business. The main downside of a sole proprietorship is that its owner is personally liable for all business debts.
n. an English attorney who may perform all legal services except appear in court. Under the British system, the litigator or trial attorney takes special training in trial work and is called a “barrister.” Occasionally a solicitor becomes a barrister, which is called “taking the silk.” In the United States and Canada attorneys are referred to interchangeably as solicitors or barristers.
n. the chief trial attorney in the federal Department of Justice responsible for arguing cases before the Supreme Court and ranking second to the Attorney General in the Department.
n. the placement of a prisoner in a federal or state prison in a cell away from other prisoners, usually as a form of internal penal discipline, but occasionally to protect the con- vict from other prisoners or to prevent the prisoner from causing trouble. Long-term solitary confinement may be found to be unconstitutional as “cruel and unusual punishment.”
n. 1) having sufficient funds or other assets to pay debts. 2) having more assets than liabilities (debts). The contrast is “insolvency,” which may be a basis for filing a petition in bankruptcy.
A requirement for anyone making a legal document, such as a will or healthcare directive. For example, although he can be eccentric or forgetful, a person writing a will must know what he owns, the identities of his family and close friends, and how the will distributes his property. If a person isn’t of sound mind, and someone later challenges the validity of the document in a lawsuit, the judge could rule that the document is invalid and has no legal effect. (Such lawsuits are quite rare.)
Sound mind and memory
n. having an understanding of one’s actions and reasonable knowledge of one’s family, possessions and surroundings. This is a phrase often included in the introductory paragraph of a will in which the testator (writer of the will) declares that he/she is “of sound mind and memory.” The general test is whether the person making the will understood: a) the meaning and effect of the will, b) what the person owned (more or less), and c) the “natural objects of his/her bounty,” meaning the immediate family and any other particularly close relatives or friends to whom he/she might leave things.
Sound recording copyright
A right in a work resulting from the fixation of a series of musical or other sounds (including narration or spoken words). A sound recording copyright protects the way that the composition is performed. The performer, producer, or recording company usually claims copyright in a sound recording.
adj. referring to the underlying legal basis for a lawsuit or one of several causes of action in a suit, such as contract or tort (civil wrong). The phrasing might be: “Plaintiff’s first cause of action against Defendant sounds in tort, and his second cause of action sounds in contract.”
Internet slang for unsolicited bulk email, primarily unsolicited commercial email (UCE). Spam has been linked with fraudulent business schemes, chain letters, and offensive sexual and political messages.
n. an attempt to introduce evidence during a hearing on a demurrer. A demurrer is a legal opposition to a complaint in a lawsuit (or to an answer), which says, in effect, that even if the factual claims (allegations) are true, there are legal flaws or failures in the lawsuit. Therefore, since the factual allegations are admitted for the sake of argument, introducing evidence is improper, and an attorney making a “speaking demurrer” will be halted, often in mid-argument.
adj. referring to a particular purpose, person or happening. In law these include hearings, proceedings, administrator, master, orders and so forth.
1) In the law of wills and estates, a person appointed by the court to take charge of only a designated portion of an estate during probate. For example, a special administrator with particular expertise on art might be appointed to oversee the probate of a wealthy person’s art collection, but not the entire estate. 2) A person appointed to be responsible for a deceased person’s property for a limited time or during an emergency, such as a challenge to the will or to the qualifications of the named executor. In such cases, the special administrator’s duty is to maintain and preserve the estate, not necessarily to take control of the probate process
n. the representation by an attorney of a person in court for: a) only that particular session of the court; b) on behalf of the client’s regular attorney of record; c) as a favor for an unrepresented person; or d) pending a decision as to whether the attorney agrees to handle the person’s case. A special appearance is different from a “general appearance” in which the attorney is committed to represent the client in all future matters, hearings and trial of the case unless he/she is allowed to withdraw or is substituted “out of” the case by the client. Quite often an attorney will make a “special appearance” to protect the interests of a potential client but before a fee has been paid or arranged.
n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which state statutes allow or require imposition of a more severe punishment. “Special circumstances” in murder cases may well result in the imposition of the death penalty for murder (in states with capital punishment) or life sentence without possibility of parole. Such circumstances may include: rape, kidnapping or maiming prior to the killing, multiple deaths, killing a police officer or prison guard, or actions showing wanton disregard for life, such as throwing a bomb into a restaurant.
n. damages claimed and/or awarded in a lawsuit which were out-of-pocket costs directly as the result of the breach of contract, negligence or other wrongful act by the defendant. Special damages can include medical bills, repairs and replacement of property, loss of wages and other damages which are not speculative or subjective. They are distinguished from general damages, in which there is no evidence of a specific dollar figure.
n. a person appointed by the court to carry out an order of the court, such as selling property or mediating child custody cases. A “special” master differs from a “master” in that he/she takes positive action rather than just investigating and reporting to the judge.
n. an attorney from outside of the government selected by the Attorney General or Congress to investigate and possibly prosecute a federal government official for wrongdoing in office. The theory behind appointing a special prosecutor is that there is a built-in conflict of interest between the Department of Justice and officials who may have political or governmental connections with that department.
n. the jury’s decisions or findings of fact with the application of the law to those facts left up to the judge, who will then render the final verdict. This type of limited verdict is used when the legal issues to be applied are complex or require difficult computation.
A specific item of property that is left to a named beneficiary under a will. If the person who made the will no longer owns the property when he dies, the bequest fails. In other words, the beneficiary cannot substitute a similar item in the estate.
n. the gift in a will of a certain piece of real estate to a certain person or persons.
n. a decision on a fact made by a jury in its verdict and which the judge has requested the jury to determine as part of its deliberations. Often the judge gives a jury a list of decisions on findings of fact to be made to help the jurors focus on the issues.
An intent to produce the precise consequences of the crime, including the intent to do the physical act that causes the consequences. For example, the crime of larceny is the taking of the personal property of another with the intent to permanently deprive the other person of the property. A person is not guilty of larceny just because he took someone else’s property; it must be proven that he took it with the purpose of keeping it permanently.
n. a gift in a will of a certain article or property to a certain person or persons.
A remedy provided by a court that orders the losing side to perform its part of a contract rather than, or possibly in addition to, paying money damages to the winner.
In patent law, the narrative portion of a patent application, which includes descriptions of the purpose, structure and operation of the invention, as well as a discussion of any relevant prior art. Essentially, the specification must provide enough information about the invention so that a person proficient in the area of expertise involved in the invention could build and operate it without having to be overly creative.
n. possible financial loss or expenses claimed by a plaintiff (person filing a lawsuit) which are contingent upon a future occurrence, purely conjectural or highly improbable. Speculative damages should not be awarded, and jury instructions should so state.
n. a provision in a trust or will that states that if a prospective beneficiary has pledged to turn over a gift he/she hopes to receive to a third party, the trustee or executor shall not honor such a pledge. The purpose is to prevent a “spendthrift” beneficiary from using a potential gift as security for credit on a speculative investment.
A trust created for a beneficiary the grantor considers irresponsible about money. The trustee keeps control of the trust income, doling out money to the beneficiary as needed, and sometimes paying third parties (creditors, for example) on the beneficiary’s behalf, bypassing the beneficiary completely. Spendthrift trusts typically contain a provision prohibiting creditors from seizing the trust fund to satisfy the beneficiary’s debts. These trusts are legal in most states, even though creditors hate them.
An unsightly fence erected for no other purpose than to irritate a neighbor. Such a fence may be illegal under local fence height and appearance regulations or state laws that specifically bar spite fences. Even if it doesn’t violate regulation or laws, the fence may still be illegal if it was built with malicious intent.
A custody arrangement in the case of multiple children, awarding sole custody of one child to one parent and sole custody of another child to the other parent. This arrangement is generally disfavored by judges because they are reluctant to split up siblings.
n. a sudden statement caused by the speaker having seen a surprising, startling or shocking event (such as an accident or a death), or having suffered an injury. Even though the person who made the spontaneous exclamation is not available (such as he/she is dead or missing), a person who heard the exclamation may testify about it as an exception to the rule against “hearsay” evidence. The reason is that such an exclamation lacks planning and is assumed to have the ring of truth to it.
n. a provision in a general plan which benefits a single parcel of land by creating a zone for use just for that parcel and different from the surrounding properties in the area.
n. payment for support of an ex-spouse (or a spouse while a divorce is pending) ordered by the court. More commonly called alimony, spousal support is the term used in California and a few other states as part of new non-confrontational language (such as “dissolution” instead of “divorce”) now used since divorce is “no-fault” in all states but two.
Springing durable power of attorney
A durable power of attorney that takes effect only when and if the principal becomes incapacitated.
n. a future right to title to real property created by a deed or will.
A trust that gives the person managing it (the trustee) the discretion to disburse its funds among the beneficiaries in any way he or she sees fit.
n. a person having in his/her possession (holding) money or property in which he/she has no interest, right or title, awaiting the outcome of a dispute between two or more claimants to the money or property. The stakeholder has a duty to deliver to the owner or owners the money or assets once the right to legal possession is established by judgment or agreement.
Standard of care
n. the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the “standard” is often a subjective issue upon which reasonable people can differ.
n. the right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in federal court if a) there is an actual controversy, b) a federal statute gives the federal court jurisdiction, and c) the parties are residents of different states or otherwise fit the constitutional requirements for federal court jurisdiction. A state court example: a trade association will have standing to file a petition for a writ of mandate to order a state government agency to enforce a regulation if the association represents businesses affected by the regulation, and it would be impractical for each business to file its own petition.
Star chamber proceedings
n. any judicial or quasi-judicial action, trial or hearing which so grossly violates standards of “due process” that a party appearing in the proceedings (hearing or trial) is denied a fair hearing. The term comes from a large room with a ceiling decorated with stars in which secret hearings of the privy council and judges met to determine punishment for disobedience of the proclamations of King Henry VIII of Great Britain (1509-1547). The high-handed, unfair, predetermined judgments, which sent the accused to the Tower of London or to the chopping block, made “star chamber” synonymous with unfairness and illegality from the bench. In modern American history the best example of star chamber proceedings was the conduct of the House Un-American Activities Committee (1938-1975), which used its subpena power to intimidate citizens by asking them unconstitutional questions about their political beliefs and associations, and then charging them with contempt of Congress for refusing to answer.
Latin for “let the decision stand,” a doctrine requiring that judges apply the same reasoning to lawsuits as has been used in prior similar cases.
n. 1) the federal or state government and any of its departments, agencies or components (such as a city, county or board). 2) any of the 50 states comprising the United States. 3) a nation’s government.
A court that decides cases involving state law or the state constitution. State courts have jurisdiction to consider disputes involving individual defendants who reside in that state or have minimum contacts with the state, such as using its highways, owning real property in the state or doing business in the state. State courts have very broad power to hear cases involving all subjects except those involving federal issues and laws, which are in the exclusive jurisdiction of the federal courts. State courts are often divided according to the dollar amount of the claims they can hear. Depending on the state, small claims, justice, municipal or city courts usually hear smaller cases, while district, circuit, superior or county courts (or in New York, supreme court) have jurisdiction over larger cases. Finally, state courts are also commonly divided according to subject matter, such as criminal court, family court and probate court.
State of domicile
n. the state in which a person has his/her permanent residence or intends to make his/her residence, as compared to where the person is living temporarily. Domicile depends on intent, location of a home where a person regularly sleeps and some conduct. A corporation’s state of domicile is the state where the corporation is incorporated.
Although the nonlegal, dictionary definition of this word refers to a person’s position, rank, or circumstances, it has a more specific legal definition under immigration law. It means the name of the visa category you’re assigned and the group of privileges you receive when you become either a permanent resident or a nonimmigrant (temporary visa holder). For example, a green card shows that the holder has the status of a permanent resident and the privilege of living and working in the United States on a permanent basis. An F-1 or M-1 visa indicates that the holder has the status of a student and the privilege of attending school in the United States until the study program is completed.
n. a pre-trial meeting of attorneys before a judge required under federal Rules of Procedure and in many states required to inform the court as to how the case is proceeding, what discovery has been conducted (depositions, interrogatories, production of documents), any settlement negotiations, probable length of trial and other matters relevant to moving the case toward trial. Court rules usually require the filing of a status conference statement prior to the conference. In federal courts the status conference is also the occasion for setting a trial date.
A written law passed by Congress or a state legislature and signed into law by the President or a state governor. (In fairly rare circumstances, a legislative act can become law without the approval of the head of the executive branch of government.) Statutes are often gathered into compilations called “codes,” large sets of books that can be found in many public and all law libraries, or sometimes on the Internet.
Statute of frauds
n. law in every state which requires that certain documents be in writing, such as real property titles and transfers (conveyances), leases for more than a year, wills and some types of contracts.
Statute of limitations
The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim, and often the state. For example, many states require that a personal injury lawsuit be filed within one year from the date of injury — or in some instances, from the date when it should reasonably have been discovered — but some allow two years. Similarly, claims based on a written contract must be filed in court within four years from the date the contract was broken in some states and five years in others. Statute of limitations rules apply to cases filed in all courts, including federal court.
Statutory offer of settlement
n. a written offer of a specific sum of money made by a defendant to a plaintiff, which will settle the lawsuit if accepted within a short time. The offer may be filed with the court, and if the eventual judgment for the plaintiff is less than the offer, the plaintiff will not be able to claim the court costs usually awarded to the prevailing party.
The portion of a deceased person’s estate that a spouse is entitled to claim under state law. The statutory share is usually one-third or one-half of the deceased spouse’s property, but in some states the exact amount of the spouse’s share depends on whether or not the couple has young children and, in a few states, on how long the couple was married. In most states, if the deceased spouse left a will, the surviving spouse must choose either what the will provides or the statutory share. Sometimes the statutory share is known by its more arcane legal name, dower and curtesy, or as a forced or elective share.
Statutory subject matter
Requirement for a utility patent . To qualify, an invention must fit into at least one of five categories defined in the Code. These categories include: compositions of matter, manufactures, machines, processes, and new and useful improvements of any of the above categories. Taken together, these categories are called statutory subject matter.
n. a court-ordered short-term delay in judicial proceedings to give a losing defendant time to arrange for payment of the judgment or move out of the premises in an unlawful detainer case.
Stay away order
n. a court order that a person may not come near and/or contact another.
Stay of execution
n. a court-ordered delay in inflicting the death penalty.
A child born to your spouse before your marriage whom you have not legally adopted. If you adopt the child, he or she is legally treated just like a biological offspring. Under the Uniform Probate Code, followed in some states, a stepchild belongs in the same class as a biological child and will inherit property left “to my children.” In other states, a stepchild is not treated like a biological child unless he or she can prove that the parental relationship was established when he or she was a minor and that adoption would have occurred but for some legal obstacle.
The formal, legal adoption of a child by a stepparent who is living with a legal parent. Most states have special provisions making stepparent adoptions relatively easy if the child’s noncustodial parent gives consent, is dead or missing, or has abandoned the child.
For tax purposes, a value that is used to determine profit or loss when property is sold. If someone inherits property that has increased in value since the deceased person acquired it, the tax basis of the new owner is “stepped-up” to the market value of the property at the time of death. The stepped-up basis means that when the property is eventually sold, there will be less taxable gain.
An insurance policy that allows the insurance company to assess an amount on the insured, above the standard premium payments, if the company experiences losses worse than had been calculated into the standard premium. This is a way for both the insurance company and the policy-holder to gamble on the risk, mutually betting on low losses. Also called assessment, mutual assessment or mutual life insurance. Example: A shipping company buys an insurance policy to protect against loss or damage to its cargo. During the first few years, the company never pays more than the low fixed premiums because it suffers no losses. Later, however, the company’s luck turns and one of its shipping liners sinks in the Bermuda Triangle. In response to the huge losses, the insurance company assess penalty payments and higher premiums.
n. an agreement, usually on a procedural matter, between the attorneys for the two sides in a legal action. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court.
A term used in wills that refers to descendants of a common ancestor or branch of a family.
1) n. inventory (goods) of a business meant for sale (as distinguished from equipment and facilities). 2) share in the ownership of a corporation (called “shares of stock” or simply “shares”). 3) cattle. 4) v. to keep goods ready for sale in a business.
n. printed document which states the name, incorporation state, date of incorporation, the registered number of the certificate, the number of shares of stock in a corporation the certificate represents, the name of the shareholder, the date of issuance and the number of shares authorized in the particular issue of stock, signed by the president and secretary of the corporation (or with facsimile signatures). On the reverse side of the certificate is a form for transfer of the certificate to another person. After transfer the new owner should register the change of ownership with the corporation.
Stock in trade
n. the inventory of merchandise held for sale.
n. the right to purchase stock in the future at a price set at the time the option is granted (by sale or as compensation by the corporation). To actually obtain the shares of stock the owner of the option must “exercise” the option by paying the agreed upon price and requesting issuance of the shares.
n. shareholder in a corporation
Stop and frisk
n. a law enforcement officer’s search for a weapon confined to a suspect’s outer clothing when either a bulge in the clothing or the outline of the weapon is visible. The search is commonly called a “pat down,” and any further search requires either a search warrant or “probable cause” to believe the suspect will commit or has committed a crime (including carrying a concealed weapon, which itself is a crime). The limited right to “stop and frisk” is intended to halt the practice of random searches of people in hopes of finding evidence of criminal activity or merely for purposes of intimidation, particularly of minorities.
n. 1) a person to whom title to property or a business interest is transferred for the sole purpose of concealing the true owner and/or the business machinations of the parties. Thus, the straw man has no real interest or participation but is merely a passive stand-in for a real participant who secretly controls activities. Sometimes a straw man is involved when the actual owner is not permitted to act, such as a person with a criminal record holding a liquor license. 2) an argument which is intended to distract the other side from the real issues or waste the opponent’s time and effort, sometimes called a “red herring”.
n. automatic responsibility (without having to prove negligence) for damages due to possession and/or use of equipment, materials or possessions which are inherently dangerous, such as explosives, wild animals, poisonous snakes or assault weapons. This is analogous to the doctrine of res ipsa loquitur in which control, ownership and damages are sufficient to hold the owner liable.
1) v. to remove a statement from the record of the court proceedings by order of the judge due to impropriety of a question, answer or comment to which there has been an objection. Often after a judge has stricken some comment or testimony (an answer made before an objection has stopped the witness), he/she admonishes (warns) the jury not to consider the stricken language, but the jury has a hard time forgetting since “a bell once rung cannot be unrung.” 2) v. to order that language in a pleading (a complaint or an answer, for example) shall be removed or no longer be of any effect, usually after a motion by the opposing party and argument, on the basis that the language (which may be an entire cause of action) is not proper pleading, does not state a cause of action (a valid claim under the law) or is not in proper form. 3) n. the organized refusal of workers to remain on the job, usually accompanied by demands for a union contract, higher wages, better conditions or other employee desires, and possibly including a picket line to give voice to workers’ demands and discourage or intimidate other workers and customers from entering the business, factory or store.
Latin for “on its own will or motion.” This term is most commonly used to describe a decision or act that a judge decides upon without having been asked by either party.
n. a person or business which has a contract (as an “independent contractor” and not an employee) with a contractor to provide some portion of the work or services on a project which the contractor has agreed to perform. In building construction, subcontractors may include such trades as plumbing, electrical, roofing, cement work and plastering. If a subcontractor is not paid for his/her work, he/she has the right to enforce a “mechanic’s lien” on the real property upon which the work was done to collect.
adj. referring to the acquisition of title to real property upon which there is an existing mortgage or deed of trust when the new owner agrees to take title with the responsibility to continue to make the payments on the promissory note secured by the mortgage or deed of trust. Thus, the new owner (grantee) buys the property “subject to” secured debt. However, should the new owner fail to pay, the original debtor will be liable for the payment, but the holder of the mortgage or beneficiary of the deed of trust may foreclose and the buyer could thus lose title. This differs from the new title holder “assuming” the mortgage or deed of trust by a written transfer of the obligation. Such a transfer must be approved by the lender, since the new owner’s credit may or may not be as strong as the original owner/borrower’s.
A rental agreement or lease between a tenant and a new tenant (called a sublessee) who will either share the rental or take over from the first tenant. The sublessee pays rent directly to the tenant. The tenant is still completely responsible to the landlord for the rent and for any damage, including that caused by the sublessee. Most landlords prohibit subleases unless they have given prior written consent.
n. the conclusion of all evidence and argument in a hearing or trial, leaving the decision in the hands of the judge. Typically the judge will ask the attorneys after final arguments: “Is it submitted?” If so, no further argument is permitted.
n. allowing a debt or claim which has priority to take second position behind another debt, particularly a new loan. A property owner with a loan secured by the property who applies for another loan to make additions or repairs usually must get a subordination of the original loan so the new obligation is in first place. A declaration of homestead must always be subordinated to a loan.
n. a written contract in which a lender who has secured a loan by a mortgage or deed of trust agrees with the property owner to subordinate the first loan to a new loan (thus giving the new loan priority in any foreclosure or payoff). The agreement must be acknowledged by a notary so it can be recorded in the official county records.
Subornation of perjury
n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath.
The modern spelling of subpoena. A subpena is a court order issued at the request of a party requiring a witness to appear in court.
Subpena duces tecum
A type of subpena, usually issued at the request of a party, by which a court orders a witness to produce certain documents at a deposition or trial. However, when one party wants an opposing party to produce documents, a different discovery device, called a Request for Production of Documents, is often used instead.
n. the original spelling of subpena, still commonly used.
A taking on of the legal rights of someone whose debts or expenses have been paid. For example, subrogation occurs when an insurance company that has paid off its injured claimant takes the legal rights the claimant has against a third party that caused the injury, and sues that third party.
n. the person or entity that assumes the legal right to attempt to collect a claim of another (subrogor) in return for paying the other’s expenses or debts which the other claims against a third party. A subrogee is usually the insurance company which has insured the party whose expenses were paid. Thus, the subrogee insurance company may file a lawsuit against a party which caused the damages to its insured which the subrogee paid.
n. a person or entity that transfers his/her/its legal right to collect a claim to another (subrogee) in return for payment of the subrogor’s expenses or debts which he/she/it claims. Thus, a person injured in an accident (subrogor) is paid by his/her/its own insurance company (subrogee) for the damages, and then the insurance company sues the party who apparently caused the damages.
v. 1) to sign at the end of a document. The courts have been flexible in recognizing signatures elsewhere on a contract or will, on the theory that a document should be found valid if possible. 2) to order and agree to pay for an issue of stock, bonds, limited partnership interest, investment or periodical magazine or newspaper.
n. in the law of contracts, fulfillment of the obligations agreed to in a contract, with only slight variances from the exact terms and/or unimportant omissions or minor defects.
n. law which establishes principles and creates and defines rights limitations under which society is governed, as differentiated from “procedural law,” which sets the rules and methods employed to obtain one’s rights and, in particular, how the courts are conducted.
v. to take over a case from another lawyer, which must be confirmed by a written statement filed with the court.
A method for the formal delivery of court papers that takes the place of personal service. Personal service means that the papers are placed directly into the hands of the person to be served. Substituted service, on the other hand, may be accomplished by leaving the documents with a designated agent, with another adult in the recipient’s home, with the recipient’s manager at work or by posting a notice in a prominent place and then using certified mail to send copies of the documents to the recipient.
n. putting one person in place of another, in particular replacement of the attorney of record in a lawsuit with another attorney (or the party acting in propria persona).
Substitution of attorney
n. a document in which the party to a lawsuit states that his/her attorney of record is being substituted for by another attorney or by the party acting for himself/herself (in propria persona). Normally the departing attorney and the replacement attorney will both sign the document, agreeing to the substitution, but only the new attorney need agree, since a party may replace counsel at any time.
Substitution of parties
A replacement of one of the sides in a lawsuit because of events that prevent the party from continuing with the trial. For example, substitution of parties may occur when one party dies or, in the case of a public official, when that public official is removed from office.
The passing of property or legal rights after death. The word commonly refers to the distribution of property under a state’s intestate succession laws, which determine who inherits property when someone dies without a valid will. When used in connection with real estate, the word refers to the passing of property by will or inheritance, as opposed to gift, grant, or purchase.
The person or institution who takes over the management of trust property when the original trustee has died or become incapacitated.
n. the pain, hurt, inconvenience, embarrassment and/or inability to perform normal activities as a result of injury, usually in the combination “pain and suffering,” for which a person injured by another’s negligence or wrongdoing may recover “general damages” (a money amount not based on specific calculation like medical bills but as compensation for the suffering which is subjective and based on the empathy of the trier of the facts-jury or judge sitting without a jury).
Latin for “of its own kind,” used to describe something that is unique or different.
n. the intentional killing of oneself. Ironically, in most states suicide is a crime, but if successful there is no one to punish. However, attempted suicide can be a punishable crime (seldom charged against one surviving the attempt). “Assisted suicide” is usually treated as a crime, either specifically (as in Michigan) or as a form of homicide (second degree murder or manslaughter), even when done as a kindness to a loved one who is terminally ill and in great pain.
n. generic term for any filing of a complaint (or petition) asking for legal redress by judicial action, often called a “lawsuit.” In common parlance a suit asking for a court order for action rather than a money judgment is often called a “petition,” but technically it is a “suit in equity.”
n. a specific amount stated in a contract or negotiable instrument (like a promissory note) at the time the document is written. A sum certain does not require future calculation or the awaiting of future happenings.
Summary adjudication of issues
A partial summary judgment motion, in which the judge is asked to decide only one or some of the legal issues in the case. For example, in a car accident case there might be overwhelming and uncontradicted evidence of the defendant’s carelessness, but conflicting evidence as to the extent of the plaintiff’s injuries. The plaintiff might ask for summary adjudication on the issue of carelessness, but go to trial on the question of injuries.
A final decision by a judge that resolves a lawsuit in favor of one of the parties. A motion for summary judgment is made after discovery is completed but before the case goes to trial. The party making the motion marshals all the evidence in its favor, compares it to the other side’s evidence, and argues that a reasonable jury looking at the same evidence could only decide the case one way–for the moving party. If the judge agrees, then a trial would be unnecessary and the judge enters judgment for the moving party.
A relatively simple probate proceeding available for “small estates,” as that term is defined by state law. Every state’s definition is different, and many are complicated, but a few examples include estates worth up to $100,000 in California; New York estates where property, excluding real estate and amounts that must be set aside for surviving family members, is worth $20,000 or less; and Texas estates where the value of property doesn’t exceed what is needed to pay a family allowance and certain creditors.
A paper prepared by the plaintiff and issued by a court that informs the defendant that she has been sued. The summons requires that the defendant file a response with the court — or in many small claims courts, simply appear in person on an appointed day — within a given time period or risk losing the case under the terms of a default judgment.
A law that automatically terminates the agency or program it establishes unless it is expressly renewed. For example, a state law establishing and funding a new drug rehabilitation program within state prisons may provide that the program will shut down in two years unless it is reviewed and approved by the state legislature.
Statutes that provide public access to governmental agency meetings and records.
The main county trial court in many states.
Latin for “you shall desist,” an order (writ) by an appeals court commanding a lower court not to enforce or proceed with a judgment or sentence pending the decision on the appeal or until further order of the appeals court.
n. the same as an “intervening cause” or “supervening cause,” which is an event which occurs after the initial act leading to an accident and substantially causes the accident. The superseding cause relieves from responsibility (liability) the party whose act started the series of events which led to the accident, since the original negligence is no longer the proximate cause.
adj. referring to anything that is added to complete something, particularly a document, such as a supplemental declaration, supplemental complaint, supplemental answer, supplemental claim.
The list on which non-distinctive trademarks or service marks are placed if federal registration has been sought. Descriptive marks, surnames and marks consisting primarily of geographical terms are usually placed on this register, which offers limited protection for marks.
Suppression of evidence
n. 1) a judge’s determination not to allow evidence to be admitted in a criminal trial because it was illegally obtained or was discovered due to an illegal search. 2) the improper hiding of evidence by a prosecutor who is constitutionally required to reveal to the defense all evidence. Such suppression is a violation of the due process clause and may result in dismissal, mistrial or reversal on appeal, as well as contempt of court for the prosecutor.
Latin for “above,” in legal briefs and decisions it refers to the citation of a court decision which has been previously mentioned.
Federal law is superior to and overrides state law when they conflict.
The highest court, which has the final power to decide cases involving the interpretation of the Constitution, certain legal areas set forth in the Constitution (called federal questions) and federal laws. It can also make final decisions in certain lawsuits between parties in different states.
n. an additional charge of money made because it was omitted in the original calculation or as a penalty, such as for being late in making a payment.
n. a guarantor of payment or performance if another fails to pay or perform, such as a bonding company which posts a bond for a guardian, an administrator or a building contractor. Most surety agreements require that a person looking to the surety (asking for payment) must first attempt to collect or obtain performance from the responsible person or entity.
n. a term used in analyzing legal documents and pleadings to refer to wording or statements which have no legal effect and, therefore, can be ignored.
n. in written or oral legal argument, the response to the other party’s response (rebuttal) to the initial argument. In written briefs most courts will not allow more than a single surrebutal. The rule is usually the same for oral argument. However, occasionally the parties joust back and forth until the judge stops the debate.
v. 1) to turn over possession of real property, either voluntarily or upon demand, by tenant to landlord. 2) to give oneself up to law enforcement officials.
n. 1) a person acting on behalf of another or a substitute, including a woman who gives birth to a baby of a mother who is unable to carry the child. 2) a judge in some states (notably New York) responsible only for probates, estates and adoptions.
n. a court in a few states with jurisdiction over probates, estates and adoptions.
A widow or widower.
Surviving spouse’s trust
If a couple has created an AB trust, the revocable living trust (Trust B) of the surviving spouse, after the first spouse has died.
n. a person who outlives another, as in “to my sons, Arnold and Zeke, or the survivor.” The survivor is determined at the time the asset or property is received, so if both sons are alive they are both survivors.
An amount of money available to the surviving spouse and minor or disabled children of a deceased worker who qualified for Social Security retirement or disability benefits.
n. the right to receive full title or ownership due to having survived another person. Survivorship is particularly applied to persons owning real property or other assets, such as bank accounts or stocks, in “joint tenancy.” Joint tenancy includes the right of survivorship automatically, except that in some states joint tenancy of a bank account creates only a presumption of survivorship, which might be disproved by evidence that the joint tenancy was only for convenience.
n. in criminal law, a penalty applied by a judge to a defendant convicted of a crime which the judge provides will not be enforced (is suspended) if the defendant performs certain services, makes restitution to persons harmed, stays out of trouble or meets other conditions. Should the sentenced party fail to follow these requirements, then the suspended sentence may be enforced.
v. in trial practice, for a judge to agree that an attorney’s objection, such as to a question, is valid. Thus, an attorney asks a witness a question, and the opposing lawyer objects, saying the question is “irrelevant, immaterial and incompetent,” “leading,” “argumentative,” or some other objection. If the judge agrees he/she will rule “sustained,” meaning the objection is approved and the question cannot be asked or answered. However, if the judge finds the question proper, he/she will “overrule” the objection.
v. 1) to declare under oath that one will tell the truth (sometimes “the truth, the whole truth and nothing but the truth”). Failure to tell the truth and do so knowingly is the crime of perjury. 2) to administer an oath to a witness that he/she will tell the truth, which is done by a notary public, a court clerk, a court reporter or anyone authorized by law to administer oaths. 3) to install into office by administering an oath. 4) to use profanity.
A case that turns on the word of one witness versus another. The outcome of a swearing match usually depends on whom the jury finds most trustworthy.
v. to cheat through trick, device, false statements or other fraudulent methods with the intent to acquire money or property from another to which the swindler is not entitled. Swindling is a crime as one form of theft.
n. a joint venture among individuals and/or corporations to accomplish a particular business objective, such as the purchase, development and sale of a tract of real property, followed by division of the profits. A joint venture, and thus a syndicate, is much like a partnership, but has a specific objective or purpose, after the completion of which it will dissolve.