LEGAL DICTIONARY
P
paid into court
adj. referring to money deposited with the clerk of the court by a person or entity who knows that the money is owed but does not know to whom they should pay it until the outcome of a lawsuit between two other parties is decided. In short, the party handing over the money is saying: "Here is the money. You two argue over it, but spare me the trouble and cost of the suit." Example: A contractor buys supplies from a hardware store on credit. The store is owned by two people who have dissolved their partnership and are fighting over who owns accounts receivable, including the funds owed by the contractor. The contractor knows he owes the money for his supplies, wants to meet his obligations, and wants to get rid of the debt. So the contractor gives what he thinks he owes the hardware store to the court to hold while the two former partners settle their differences.
pain and suffering
n. the physical and mental distress suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression and embarrassment from scarring, all of which are part of the "general damages" recoverable by someone injured by another's negligence or intentional attack. The monitory value of damages for pain and suffering is subjective, as distinguished from medical bills, future medical costs and lost wages which can be calculated, called "special damages."
palimony
n. a substitute for alimony in cases in which the couple were not married but lived together for a long period and then terminated their relationship. The key issue is whether there was an agreement that one partner would support the other in return for the second making a home and performing other domestic duties beyond sexual pleasures. Written palimony contracts are rare, but the courts have found "implied" contracts, when a woman has given up her career, managed the household or assisted in the man's business for a lengthy period of time. The line between a mutual "affair" and a relationship warranting palimony is a difficult one which must be decided on a case by case basis. Palimony suits may be avoided by contracts written prior to or during the relationship.
pander
1) v. to solicit customers for a prostitute. 2) n. a pimp, who procures customers for a prostitute or lures a woman into prostitution, all for his own profit. 3) v. catering to special interests without any principles, such as a politician who says to whatever group he/she is addressing just what they want to hear to win their support, contributions or favors.
panderer
n. 1) a person who panders or solicits for a prostitute. 2) some politicians catering to special interests.
panel
n. the list of people selected to appear for jury duty.
paper hanger
n. slang for a person who criminally writes and cashes "bad" checks on accounts he/she either does not have or which have no money in them.
par
n. 1) an equal level. 2) the face value of a stock or bond, printed on the certificate, which is the amount the original purchaser paid the issuing corporation. However, most common stocks are issued as "no-par value," and the value reflects the current market for the stock. Preferred stocks state a par value upon which the dividends are calculated, and the par value of bonds establishes the final pay-off amount upon maturity, usually many years in the future.
paralegal
n. a non-lawyer who performs routine tasks requiring some knowledge of the law and procedures and who is employed by a law office or works free-lance as an independent for various lawyers. Usually paralegals have taken a prescribed series of courses in law and legal processes, which is much less demanding than those required for a licensed attorney. Paralegals are increasingly popular, often handling much of the paperwork in probates of estates, divorce actions, bankruptcies, investigations, analyzing depositions, preparing and answering interrogatories and procedural motions and other specialized jobs.
paramount title
n. a right to real property which prevails over any other person's claim of title.
parcel
n. a defined piece of real estate, usually resulting from the division of a large area of land. It can range in size from a small lot to a gigantic ranch. 2) a package.
pardon
1) v. to use the executive power of a Governor or President to forgive a person convicted of a crime, thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime for which the pardon was given. A pardon strikes the conviction from the books as if it had never occurred, and the convicted person is treated as innocent. Sometimes pardons are given to an older rehabilitated person long after the sentence has been served to clear his/her record. However, a pardon can also terminate a sentence and free a prisoner when the chief executive is convinced there is doubt about the guilt or fairness of the trial, the party is rehabilitated and has performed worthy public service, or there are humanitarian reasons such as terminal illness. A pardon is distinguished from "a commutation of sentence" which cuts short the term; "a reprieve," which is a temporary halt to punishment, particularly the death penalty, pend- ing appeal or determination of whether the penalty should be reduced; "amnesty," which is a blanket "forgetting" of possible criminal charges due to a change in public circumstances (such as the end of a war or the draft system); or a "reduction in sentence," which shortens a sentence and can be granted by a judge or an executive.
parens patriae
(paa-rens pat-tree-eye) n. Latin for "father of his country," the term for the doctrine that the government is the ultimate guardian of all people under a disability, especially children, whose care is only "entrusted" to their parents. Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is 18 years old, and a judge may change custody, child support or other rulings affecting the child's well-being, no matter what the parents may have agreed or the court previously decided.
parent
n. the lawful and natural father or mother of a person. The word does not mean grandparent or ancestor, but can include an adoptive parent as a replacement for a natural parent.
parental neglect
n. a crime consisting of acts or omissions of a parent (including a step-parent, adoptive parent or someone who, in practical terms, serves in a parent's role) which endangers the health and life of a child or fails to take steps necessary for the proper raising of a child. The neglect can include leaving a child alone when he or she needs protection; failure to provide food, clothing, medical attention or education to a child; or placing the child in dangerous or harmful circumstances, including exposing the child to a violent, abusive or sexually predatory person.
pari delicto
adj. equal fault.
parish
n. 1) a geographic area served by a church (particularly Catholic) originally measured by whether people living in the area could walk to the church.
parody
n. the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning. Parodies have been challenged as copyright infringements on the original works, particularly since some have reaped terrific profits. Recent decisions favor the parodies and say they have an originality of their own and, thus, are not infringements.
parol
adj. oral.
parol evidence rule
n. if there is evidence in writing (such as a signed contract) the terms of the contract cannot be altered by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.
parole
n. 1) the release of a convicted criminal defendant after he/she has completed part of his/her prison sentence, based on the concept that during the period of parole, the released criminal can prove he/she is rehabilitated and can "make good" in society. A parole generally has a specific period and terms such as reporting to a parole officer, not associating with other ex-convicts, and staying out of trouble. Violation of the terms may result in revocation of parole and a return to prison to complete his/her sentence. 2) a promise by a prisoner of war that if released he will not take up arms again.
partial
adj. not complete or entire.
partial breach
n. the failure to meet a term of a contract which is so minimal that it does not cause the contract to fail or justify breach (breaking the contract) by the other contracting party. A partial breach can be remedied (made up) by a small reduction in payment or other adjustment. Example: a landlord promises to rent an apartment furnished, and when the tenants move in some furnishings are not there. The landlord may lower the rent temporarily until he/she can bring in the missing or expected items.
partial disability
n. the result of an injury which permanently reduces a person's ability to function, but still permits some working or other activity. In worker's compensation cases an injured worker is often awarded a percentage rating of permanent partial disability, which will entitle him/her to a money settlement. The percentage payoff is often based on a physician's evaluation of what part of the person's normal functioning is gone.
partial verdict
n. in a criminal trial, the result when the jury finds the defendant guilty of one or more charges but not guilty (or deadlocks) on one or more other charges.
participate
v. to invest and then receive a part or share, as in business profits, payments on a promissory note, title to land, or as one of the beneficiaries of the estate of a person who has died.
partition
n. a lawsuit which one co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. Partition cases are common when co-owners differ on whether to sell, keep or divide the property.
partner
n. 1) one of the co-owners and investors in a "partnership" which is an on-going business enterprise entered into for profit. A "general partner" is responsible for the debts, contracts and actions of all the partners in the business, is an equal in management decisions unless there is an agreement establishing management duties and rights, and shares in the profits and losses based on the percentage of the investment (either in money or effort) in the partnership. A "limited partner" does not share responsibility for debts beyond his/her investment, cannot share in management, and shares in profits based on a written agreement. A "silent partner" is no different from any partner except he/she is not visible to the public and has no part in day-to-day management. 2) slang for "domestic partner," usually two people living together, either homosexual or heterosexual, sharing lives and possessions, and not married.
partnership
n. a business enterprise entered into for profit which is owned by more than one person, each of whom is a "partner." A partnership may be created by a formal written agreement, but may be based on an oral agreement or just a handshake. Each partner invests a certain amount (money, assets and/or effort) which establishes an agreed-upon percentage of ownership, is responsible for all the debts and contracts of the partnership even though another partner created the debt or entered into the contract, has a share in management decisions, and shares in profits and losses according to the percentage of the total investment. Often a partnership agreement may provide for certain division of management, shares of investment, profit and/or rights to buy out a partner upon leaving the partnership or death. Each partner owes the other partners a duty of full disclosure of information which affects the business and cannot commandeer for himself/herself business opportunities which rightfully belong to the partnership. A partnership which does business under a trade name must file with the county or state a certificate of "doing business under a fictitious name," which gives notice to the public of the names of partners and the business address. A "limited partnership" limits the responsibility for debts beyond the investment to the managing "general partners." The investing "limited partners" cannot participate in management and are limited to specific percentages of profit. A partnership differs from a "joint venture," which involves more than one investor for only a specific short-term project and prompt division of profits.
party
n. 1) one of the participants in a lawsuit or other legal proceeding who has an interest in the outcome. Parties include plaintiff (person filing suit), defendant (person sued or charged with a crime), petitioner (files a petition asking for a court ruling), respondent (usually in opposition to a petition or an appeal), cross-complainant (a defendant who sues someone else in the same lawsuit), or cross-defendant (a person sued by a cross-complainant). 2) a person or entity involved in an agreement. 3) a common reference by lawyers to people or entities involved in lawsuits, transactions, contracts or accidents, as in "both parties knew what was expected," "he is a party to the contract," "he was not a party to the criminal conspiracy…."
party of the first part
n. reference in a written contract to identify one of the people entering into the agreement. The agreement would read "Mary Abraham (hereinafter called The Party of the First Part)." Better practice is to identify the parties by a short form of their name ("hereinafter referred to as Mary") or as Buyer, Seller, Owner, Trustee or some other useful identification. Name use aids in following and understanding the contract and avoids confusion with "the party of the second part," which identifies another party to the agreement.
party of the second part
n. a reference to a party to a written contract, as distinguished from "the party of the first part."
party wall
n. a wall shared by two adjoining premises which is on the property line, such as in townhouses, condominiums, row houses or two units in a duplex. Both owners are responsible for maintaining structural integrity of the wall, even if the wall is entirely on the property of one of the parties.
passenger
n. a rider who has paid a fare on a train, bus, airline, taxi, ship, ferry, automobile or other carrier in the business of transporting people for a fee (a common carrier). A passenger is owed a duty of care by such a carrier and has a right to sue for damages for injuries suffered while being transported without proof of negligence. One tricky issue is whether a person who has entered the depot, station or airport, but not yet purchased a ticket or has not boarded, is entitled to the rights of a passenger to recover for damages. A passenger without payment of fare who is injured must prove the driver's negligence in a suit for damages.
passion
n. See also: heat of passion
passive
adj. referring to being inactive. A "passive trustee" is one who has no responsibilities other than to hold title or wait for an event which would activate the trust. "Passive income" for tax purposes includes any income in which there is no effort or active management, and is treated differently for some purposes. It may include stock dividends, trust profits, rents with no management involvement and interest on bank accounts.
patent
1) adj. obvious. Used in such expressions as a "patent defect" in an appliance. 2) n. an exclusive right to the benefits of an invention or improvement granted by the Patent Office, for a specific period of time, on the basis that it is novel (not previously known or described in a publication), "non-obvious" (a form which anyone in the field of expertise could identify), and useful. There are three types of patents: a) "utility patent" which includes a process, a machine (mechanism with moving parts), manufactured products, and compounds or mixtures (such as chemical formulas); b) "design patent" which is a new, original and ornamental design for a manufactured article; and c) "plant patent" which is a new variety of a cultivated asexually reproduced plant. Patent law specialists can make a search of patents to determine if the proposed invention is truly unique, and if apparently so, can file an application, including detailed drawing and specifications. While awaiting issuance of the patent, products or designs should be marked "patent pending" or "pat. pending." Upon receiving the patent the product can be marked with the word "patent" and the number designated by the Patent Office. The rights can be transferred provided the assignment is signed and notarized to create a record or "licensed" for use. Manufacture of a product upon which there is an existing patent is "patent infringement" which can result in a lawsuit against the infringer with substantial damages granted. 3) n. a nearly obsolete expression for a grant of public land by the government to an individual.
patent ambiguity
n. an obvious inconsistency in the language of a written document.
patent defect
n. an obvious flaw in a product or a document (such as leaving out the property description in a deed).
patent infringement
n. the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. The infringing party will be liable to the owner of the patent for all profits made from the use of the invention, as well as any harm which can be shown by the inventor, whether the infringement was intentional or not.
patent pending
n. often abbreviated to "pat. pend." or "pat. pending," the term is printed on a product to inform others that an application for a patent has been filed with the Patent Office, but the patent has not yet been granted.
paternity suit
n. a lawsuit, usually by a mother, to prove that a named person is the father of her child (or the fetus she is carrying). Evidence of paternity may include blood tests (which can eliminate a man as a possible father), testimony about sexual relations between the woman and the alleged father, evidence of relationship of the couple during the time the woman became pregnant, admissions of fatherhood, comparison of child in looks, eye and hair color, race and, increasingly, DNA evidence. In addition to the desire to give the child a known natural father, proof of paternity will lead to the right to child support, birthing expenses and the child's inheritance from his father. The threat of a paternity suit against a man married to another may lead to a prompt and quiet settlement.
pawn
v. to pledge an item of personal property as security for a loan, with the property left with the pawnbroker. The interest rates are on the high side, the amount of the loan is well below the value of the pledged property, and the broker has the right to sell the item without further notice if the loan is not paid.
pay
v. to deliver money owed.
payable
1) adj. referring to a debt which is due. A debt may be owed, but not yet payable until a certain date or event. 2) n. a debt which is due. "Payables" are all the liabilities (debts) of a business.
payable on demand
adj. a debt on a promissory note or bill of exchange which must be paid when demanded by the payee (party to whom the debt is owed).
payee
n. the one named on a check or promissory note to receive payment.
payment in due course
n. the giving of funds to the holder of a promissory note or bill of exchange when due, without any knowledge that the document had been acquired by fraud or that the holder did not have valid title. The true owner of the bill or note cannot also demand payment, but must look to the recipient of the funds.
payment in full
n. the giving of all funds due to another. This language is often inserted on the back of a check above the place for endorsement to prove that the payee accepts the payment as complete.
payor
(payer) n. the party who must make payment on a promissory note.
peace bond
n. a bond required as part of a court order to guarantee that a person will stay away from another person he/she has threatened or bothered. The bond will be forfeit (given up) if the order is violated, but that is no consolation to a person injured, molested or murdered by the violator.
peaceable possession
n. in real estate, holding property without any adverse claim to possession or title by another.
peculation
n. misappropriation of public (government) funds or property.
pecuniary
adj. relating to money, as in "pecuniary loss."
pedophilia
n. an obsession with children as sex objects. Overt acts, including taking sexually explicit photographs, molesting children and exposing one's genitalia to children, are all crimes. The problem with these crimes is that pedophilia is also treated as a mental illness, and the pedophile is often released only to repeat the crimes or escalate the activity to the level of murder.
peeping tom
n. a person who stealthily peeks into windows, holes in restroom walls or other openings with the purpose of getting a sexual thrill from seeing women or girls undressed or couples making love. The term comes from the legendary Tom who was the one person who peeked when Lady Godiva rode her horse naked through the streets of Coventry to protest taxes. Being a peeping tom is treated as a crime based on sexual deviancy. It forms the basis for a lawsuit by the victim on the basis of invasion of privacy.
peer
n. an equal. A "jury of one's peers," to which criminal defendants are constitutionally entitled, means an impartial group of citizens from the judicial district (e.g. county) in which the defendant lives. It does not mean a jury ethnically, educationally, economically or sexually the same as the defendant.
peer review
n. an examination and evaluation of the performance of a professional or technician by a board or committee made up of people in the same occupation. This may arise in determining whether a person has been legitimately discharged, denied promotion or penalized by an employer, or is found to have failed to meet minimum standards of performance and is thus liable in a lawsuit claiming damages due to negligence.
penal
adj. referring to criminality, as in defining "penal code" (the laws specifying crimes and punishment), or "penal institution" (a prison or penitentiary confining convicted felons).
penalty
n. 1) in criminal law, a money fine or forfeiture of property ordered by the judge after conviction for a crime. 2) an amount agreed in advance if payment or performance is not made on time, such as a "late payment" on a promissory note or lease, or a financial penalty for each day a building contractor fails to complete a job.
pendente lite
(pen-den-tay lee-tay) adj. Latin for awaiting the litigation (lawsuit). It is applied to court orders (such as temporary child support) which are in effect until the case is tried, or rights which cannot be enforced until the lawsuit is over.
penitentiary
n. a prison in which convicts are held for commission of major crimes (felonies).
per
prep. from Latin for "by means of" or simply, "by" as in "per day" (by day) or "per capita" (by head).
per capita
adj. Latin for "by head," meaning to be determined by the number of people. To find the per capita cost, the total number of persons are added up and the bill, tax or benefits are divided equally among those persons.
per curiam
adj. Latin for "by the court," defining a decision of an appeals court as a whole in which no judge is identified as the specific author.
per diem
adj. or n. Latin for "per day," it is short for payment of daily expenses and/or fees of an employee or an agent.
per se
(purr say) adj. Latin for "by itself," meaning inherently. Thus, a published writing which falsely accuses another of having a sexually transmitted disease or being a convicted felon is "libel per se," without further explanation of the meaning of the statement.
per stirpes
(purr stir-peas) adj. Latin for "by roots," by representation. The term is commonly used in wills and trusts to describe the distribution when a beneficiary dies before the person whose estate is being divided. Example: "I leave Rs 10,00,000 to my daughter, and if she shall predecease me, to her children, per stirpes." Thus, if the daughter dies before her parent, then the Rs 10,00,000 will be divided among her children equally. A way to make this more clear is to substitute for per stirpes: "…to her children, by right of representation, share and share alike," which is clear to the non-lawyer. If there is no provision for distribution to children of a predeceased child, then the gift will become part of the residue (what is left after specific gifts), and then the grandchildren may not share if there are surviving children of the giver.
peremptory
adj. absolute, final and not entitled to delay or reconsideration. The term is applied to writs, juror challenges or a date set for hearing.
peremptory challenge
n. the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on law, the number of parties to a case, and whether it is a civil or criminal trial.
peremptory writ of mandate
(or mandamus) n. a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. This is distinguished from an alternative writ of mandate (mandamus), which orders the governmental agency, court or officials to obey the order or show cause at a hearing why it should not. The usual practice is for anyone desiring such an order to file a petition for the alternative writ. If the officials do not comply with the order and fail to convince the court that the writ of mandate should be denied, then the court will issue the peremptory writ. In some emergency situations or when there is no conceivable reason for the government not to follow the law, then the peremptory writ will be issued after a notice of hearing without the alternative writ.
perfect
(with stress on the second syllable) v. 1) to complete; to take all required steps to achieve a result, such as obtaining a lien or other security by legal action or completing and filing all documents to present a case to a court of appeals. A mechanic's lien for labor and/or materials used to improve real property is "perfected" by filing a lawsuit and obtaining a judgment that the lien attaches to the property. 2) to make perfect.
perfected
adj. having completed all necessary legal steps to achieve a result, such as perfected title to property.
perform
v. 1) to fulfill one's obligations under a contract. 2) to comply with requirements of a court order.
performance
n. fulfillment of one's obligations required by contract. Specific performance of a contract may be demanded in a lawsuit. Partial performance is short of full performance spelled out in the contract, but if the contract provided for a series of acts or deliveries with payment for each of the series, there may be partial recovery for what has been performed or delivered even if there is not full performance.
perjurer
n. a person who intentionally lies while under an oath administered by a notary public, court clerk or other official, and thus commits the crime of perjury. A perjurer may commit perjury in oral testimony or by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, tax return) knowing the document contains false information.
perjury
n. the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.
permanent disability
n. an injury which impairs the physical and/or mental ability of a person to perform his/her normal work or non-occupational activities supposedly for the remainder of his/her life. Under worker's compensation laws (covering on-the-job injuries) once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability is also one basis for awarding general damages in a lawsuit for injury suffered due to the negligence or intentional attack of another.
permanent injunction
n. a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or petition asking for the "permanent" injunction.
permanent injury
n. physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful of another, a permanent injury can be a major element in an award of general damages.
permissive
adj. 1) referring to any act which is allowed by court order, legal procedure, or agreement. 2) tolerant or allowing of others' behavior, suggesting contrary to others' standards.
permit
1) v. to allow by silence, agreement or giving a license. 2) n. a license or other document given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts. These can include building a structure, using a building, driving on the highway, conducting a retail business, and dozens of other activities. The purpose of permits is supposedly to guarantee that laws and regulations have been obeyed, but they also are a source of public revenue.
perpetuity
n. forever.
person
n. 1) a human being. 2) a corporation treated as having the rights and obligations of a person. Counties and cities can be treated as a person in the same manner as a corporation. However, corporations, counties and cities cannot have the emotions of humans such as malice, and therefore are not liable for punitive damages unless there is a statute authorizing the award of punitive damages.
personal effects
n. things which include clothes, cosmetics and items of adornment. This is not the same as "personalty" which means all tangible property which is not real property, money or investments. The expression is often found in wills ("I leave my personal effects to my niece, Susan").
personal property
n. same as "personalty."
personal service
n. delivering a summons, complaint, notice to quit tenancy or other legal document which must be served by handing it directly to the person named in the document. Personal service is distinguished from "constructive service," which includes posting the notice and then mailing a copy or publishing a summons on a person the court has found is hiding to avoid service, and from "substituted service," which is giving the document to someone else (another resident, a secretary or receptionist, or other responsible adult) at the address.
personal services
n. in contract law, the talents of a person which are unusual, special or unique and cannot be performed exactly the same by another. These can include the talents of an artist, an actor, a writer or professional services. The value of personal services is greater than general labor, so woodcarving is personal service and carpentry is not. Therefore, if an actor contracts to perform in a movie and fails to show, he/she will be liable for damages based on the difficulty to replace him. An artist who contracts to paint a picture cannot send a substitute, since he/she was retained for his/her unique ability and product.
personalty
n. movable assets (things, including animals) which are not real property, money or investments.
petit jury
n. old-fashioned name for the jury sitting to hear a lawsuit or criminal prosecution, called "petit" (small) to distinguish it from a "grand" jury, which has other duties.
petition
1) n. a formal written request to a court for an order of the court. It is distinguished from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of a case, reduction of bail in criminal cases, a decree of distribution of an estate, appointment of a guardian, and a host of other matters arising in legal actions. 2) n. a general term for a writing signed by a number of people asking for a particular result from a private governing body (such as a homeowners association, a political party, or a club). 3) in public law, a writing signed by a number of people which is required to place a proposition or ordinance on the ballot, nominate a person for public office, or demand a recall election. Such petitions for official action must be signed by a specified number of registered voters. 4) v. to make a formal request of a court; to present a written request to an organization's governing body signed by one or more members. 5) n. a suit for divorce in which the parties are called petitioner and respondent.
petitioner
n. one who signs and/or files a petition.
petty larceny
n. a term used for theft of a small amount of money or objects of little value. It is distinguished from grand larceny, which is theft of property of greater worth and a felony punishable by a term in prison.
physician-patient privilege
n. the right and obligation of a physician to refuse to testify in a trial or other legal proceeding about any statement made to him/her by a patient on the basis that any communication between doctor and patient is confidential. A patient could sue the physician for damages if the doctor breaches the confidence by testifying. Of course, in most trials involving injuries the physician will testify with the plaintiff's permission. Note: when the defendant's physician examines the injured plaintiff, the plaintiff has given permission for that examination and potential testimony, so a plaintiff must be cautious in making statements.
picketing
n. standing or parading near a business or government office usually with signs of protest or claims in labor disputes or public policy controversies (peace marches to pro- or anti-abortion advocates). Picketing is constitutionally guaranteed as free speech, but in some cases it may be limited by court order to prevent physical combat, blocking of entrances or threats to the public safety.
pierce the corporate veil
v. to prove that a corporation exists merely as a completely controlled front (alter ego) for an individual or management group, so that in a lawsuit the individual defendants can be held responsible (liable) for damages for actions of the corporation. If a corporation has issued stock and held regular meetings of shareholders and directors, it is unlikely a judge will "pierce" the veil and limit the liability to the corporation, unless there is proof that the corporation was created to accomplish a fraud on those dealing with it.
pilferage
n. a crime of theft of little things, usually from shipments or baggage.
pimp
n. a person who procures a prostitute for customers or vice versa, sharing the profits of the person's activities. Supposedly he provides protection for the prostitutes, but quite often he will threaten, brutalize, rape, cheat and induce drug addiction of the prostitutes. A pimp commits the crime of pandering
pink slip
n. 1) slang for official automobile registration certificate, due to its color. 2) slang for notice of being fired or laid off from a job.
piracy
n. the crime of robbery of ships or boats on the oceans. Accusation, trial and punishment of pirates may be under international agreement applicable anywhere, or under the laws of the particular nation where the accused has been captured.
plagiarism
n. taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one's own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.
plain view doctrine
n. the rule that a law enforcement officer may make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Example: a policeman stops a motorist for a minor traffic violation and can see in the car a pistol on the back seat, giving him "reasonable cause" to enter the vehicle to make a search.
plaintiff
n. the party who initiates a lawsuit by filing a complaint with the clerk of the court against the defendant(s) demanding damages, performance and/or court determination of rights.
plaintiff's attorney
n. the attorney who represents a plaintiff (the suing party) in a lawsuit. In lawyer parlance a "plaintiff's attorney" refers to a lawyer who regularly represents persons who are suing for damages, while a lawyer who is regularly chosen by an insurance company to represent its insureds is called a "defense attorney."
plea
n. 1) in criminal law, the response by an accused defendant to each charge of the commission of a crime. Pleas normally are "not guilty," "guilty," "no contest" (admitting the facts, but unwilling to plead "guilty," thus resulting in the equivalent of a "guilty" verdict but without admitting the crime), or "not guilty by reason of insanity" (at the time of the criminal act). However, the accused may make a "dilatory plea" challenging the jurisdiction of the court or claiming that he/she is the wrong defendant, requiring a special hearing. He/she may admit the acts but have excuses to be considered (a "plea in abatement"), which may affect the judge's sentence. Pleas are entered orally at arraignment (first court appearance) or a continued (postponed) arraignment. If after a preliminary hearing the judge determines the defendant must face trial for a felony, he/she will have to enter a plea again before a judge of the trial court. 2) any written answer or other response filed by a defendant to a complaint or petition in a civil lawsuit.
plea bargain
n. in criminal procedure, a negotiation between the defendant and his attorney on one side and the prosecutor on the other, in which the defendant agrees to plead "guilty" or "no contest" to some crimes, in return for reduction of the severity of the charges, dismissal of some of the charges, the prosecutor's willingness to recommend a particular sentence or some other benefit to the defendant. Sometimes one element of the bargain is that the defendant reveal information such as location of stolen goods, names of others participating in the crime or admission of other crimes (such as a string of burglaries). The judge must agree to the result of the plea bargain before accepting the plea. If he does not, then the bargain is cancelled. Reasons for the bargain include a desire to cut down on the number of trials, danger to the defendant of a long term in prison if convicted after trial and the ability to get information on criminal activity from the defendant. There are three dangers: a) an innocent defendant may be pressured into a confession and plea out of fear of a severe penalty if convicted; b) particularly vicious criminals will get lenient treatment and be back "on the street" in a short time; c) results in unequal treatment. Public antipathy to plea bargaining has led to some statutes prohibiting the practice, but informal discussions can get around the ban
plea in abatement
n. See also: plea
plead
v. 1) in civil lawsuits and petitions, to file any document (pleading) including complaints, petitions, declarations, motions and memoranda of points and authorities. 2) in criminal law, to enter a plea of a defendant in response to each charge of criminal conduct.
pleading
n. 1) every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well-organized and comprehensive.
pledge
v. to deposit personal property as security for a personal loan of money. If the loan is not repaid when due, the personal property pledged shall be forfeit to the lender. The property is known as collateral. To pledge is the same as to pawn. 2) to promise to do something.
plenary
adj. full, complete, covering all matters, usually referring to an order, hearing or trial.
police court
n. a municipal court which handles misdemeanors (minor crimes) and traffic violations, as well as conducting arraignments (first appearances) and preliminary hearings of those accused of felonies to decide if there is cause to send the defendant to a higher court for trial. Police courts only handle criminal cases-unlike those municipal courts which also have jurisdiction over some civil cases.
police powers
n. fot the protection and welfare of the society, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement.
political question
n. the determination by a court (particularly the Supreme Court) that an issue raised about the conduct of public business is a "political" issue to be determined by the legislature or the executive branch and not by the courts.
polygamy
n. having more than one wife or husband at the same time, usually more than just two (which is "bigamy").
polygraph
n. a lie detector device, from Greek for "many" (poly) "message" (graph) since numerous physiological responses are tested when questions are answered.
pornography
n. pictures and/or writings of sexual activity intended solely to excite lascivious feelings of a particularly blatant and aberrational kind, such as acts involving children, animals, orgies, and all types of sexual intercourse. The printing, publication, sale and distribution of "hard core" pornography is either a felony or misdemeanor. Since determining what is pornography and what is "soft core" and "hard core" are subjective questions to judges, juries and law enforcement officials, it is difficult to define, since the law cases cannot print examples for the courts to follow.
posse comitatus
(pahs-see coh-mitt-tah-tus) n. from Latin for "possible force," the power of the law enforcement officer to call upon any able- bodied adult men (and presumably women) in the county to assist him in apprehending a criminal. The assembled group is called a posse for short.
possess
v. to own, have title to, occupy, physically hold or have under exclusive control. In wills there is often the phrase "of which I die possessed," in describing the estate.
possession
n. 1) any article, object, asset or property which one owns, occupies, holds or has under control. 2) the act of owning, occupying, holding or having under control an article, object, asset or property. "Constructive possession" involves property which is not immediately held, but which one has the right to hold and the means to get (such as a key to a storeroom or safe deposit box). "Criminal possession" is the holding of property which it is illegal to possess such as controlled narcotics, stolen goods or liquor by a juvenile.
possession of stolen goods
n. the crime of possession of goods which one knows or which any reasonable person would realize were stolen. It is generally a felony. Innocent possession is not a crime, but the goods are generally returned to the legal owner.
possessory interest
n. in real estate, the intent and right of a person to occupy and/or exercise control over a particular plot of land. A possessory interest is distinguished from an interest in the title to property, which may not include the right to immediately occupy the property. Example: a long-term lease.
possibility of a reverter
n. the potential that the title to a real property interest will return to the original grantor or giver or to his/her lineal descendants. Examples of events which could cause the title to revert: A gift of property to a hospital on condition that it be used forever for health care, but if the building is no longer used for that purpose the property will revert to the family of the original grantor; the real property is given to a daughter and her children, but will revert to her brother's descendants if her line dies out without further issue.
post
v. 1) to place a notice on the entrance or a prominent place on real property, such as a notice to quit (leave), pay rent, which requires mailing of a copy to the occupant to complete service of the notice. 2) to place a legal notice on a designated public place at the courthouse. 3) a commercial term for recording a payment. 4) to mail.
post mortem
n. Latin for "after death," an examination of a dead body to determine cause of death, generally called an autopsy.
postdated check
n. a check delivered now with a written date in the future, so that it cannot be cashed until that date. The danger to the recipient is that such a check is legally only a promissory note due at the later date, and if the account is closed or short when the check is presented at the bank, the payee has no rights to demand payment by the bank or claim that the delivery of a bad check was criminal.
pot
n. slang for marijuana, an illegal narcotic.
pour over will
n. a will of a person who has already executed a trust in which all property is designated to be distributed or managed upon the death of the person whose possessions are in trust, leaving all property to the trust. A pour over will is a protection which is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party's death. A pour over will often provides that if the trust is invalid in whole or in part, the distribution under the will must be made under the same terms as stated in the invalid trust.
power
n. the right, authority and ability to take some action or accomplish something, including demanding action, executing documents, contracting, taking title, transferring, exercising legal rights and many other acts.
power of acceptance
n. the ability to accept an offer and thus create a binding contract. In real estate an acceptance can only be made for a period specified in the offer, and the power is terminated permanently by the making of a counter-offer. Thus, one cannot make a counter-offer and then decide to accept the original offer.
power of appointment
n. the right to leave property by will, transfer, gift or distribution under a trust. Such a power is often found in a trust in which each of the trustors (the creators of the trust, usually a husband and wife) is empowered to write a will leaving his or her share (or some part) to someone. If the power of appointment is not used then it expires on the death of the person with the power.
power of attorney
n. a written document signed by a person giving another person the power to act in conducting the signer's business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (the agent) is "attorney in fact" for the person giving the power, and usually signs documents. There are two types of power of attorney: a) general power of attorney, which covers all activities, and b) special power of attorney, which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts or executing a limited partnership agreement. A power of attorney may expire on a date stated in the document or upon written cancellation. Usually the signer acknowledges before a notary public that he/she executed the power, so that it is recordable if necessary, as in a real estate transaction.
practicable
adj. when something can be done or performed.
practice
1) n. custom or habit as shown by repeated action, as in "it is the practice in the industry to confirm orders before shipping." 2) n. the legal business, as in "law practice," or "the practice of the law." 3) v. to repeat an activity in order to maintain or improve skills, as "he practices the violin every evening." 4) v. to conduct a law business, as "she practices law".
pray
v. to formally request judicial judgment, relief and/or damages at the end of a complaint or petition.
prayer
n. the specific request for judgment, relief and/or damages at the conclusion of a complaint or petition. A typical prayer would read: "The plaintiff prays for 1) special damages in the sum of Rs 17,500; 2) general damages according to proof [proved in trial]; 3) reasonable attorney's fees; 4) costs of suit; and 5) such other and further relief as the court shall deem proper." A prayer gives the judge an idea of what is sought, and may become the basis of a judgment if the defendant defaults (fails to file an answer). Sometimes a plaintiff will inflate damages in the prayer for publicity or intimidation purposes, or because the plaintiff believes that a gigantic demand will be a better starting point in negotiations.
precatory
adj. referring to a wish or advisory suggestion which does not have the force of a demand or a request which under the law must be obeyed. Thus "precatory words" in a will or trust would express a "hope that my daughter will keep the house in the family," but do not absolutely prevent her from selling it.
precedent
1) n. a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment. The doctrine that a lower court must follow a precedent is called stare decisis 2) adj. before, as in the term "condition precedent," which is a situation which must exist before a party to a contract has to perform.
predecease
v. to die before someone else, as "if my brother, Harry, should predecease me, his share of my estate I give to his son".
preemptive right
n. the right of a shareholder in a corporation to have the first opportunity to purchase a new issue of stock of that corporation in proportion to the amount of stock already owned by the shareholder.
preference
n. in bankruptcy, the payment of a debt to one creditor rather than dividing the assets equally among all those to whom he/she/it owes money, often by making a payment to a favored creditor just before filing a petition to be declared bankrupt. Such a preference is prohibited by law, and the favored creditor must pay the money to the bankruptcy trustee. However, the court may give secured creditors (with a judgment, lien, deed of trust, mortgage or collateralized loan) a legal preference over "general" creditors in distributing available funds or assets.
preferred dividend
n. a payment of a corporation's profits to holders of preferred shares of stock.
preferred stock
n. a class of shares of stock in a corporation which gives the holders priority in payment of dividends (and distribution of assets in case of dissolution of the corporation) over owners of "common" stock at a fixed rate. While the assurance of first chance at profits is a psychological and real benefit, preferred stock shareholders do not participate in higher dividends if the corporation makes large profits, and usually cannot vote for directors.
preliminary hearing
n. in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable by a term in the prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime. A preliminary hearing is held in the lowest local court, but only if the prosecutor has filed the charge without asking the Grand Jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court for trial. If there is no such convincing evidence, the judge will dismiss the charges.
preliminary injunction
n. a court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act which is in dispute, thereby maintaining the status quo until there is a final judgment after trial.
premeditation
n. planning, plotting or deliberating before doing something. Premeditation is an element in first degree murder and shows intent to commit that crime.
premises
n. 1) in real estate, land and the improvements on it, a building, store, shop, apartment, or other designated structure. The exact premises may be important in determining if an outbuilding (shed, garage) is insured or whether a person accused of burglary has actually entered a structure. 2) in legal pleading, premises means "all that has herein above been stated", as in a request at the end of a complaint asking for "any further order deemed proper in the premises" (an order based on what has been stated in the complaint).
premium
n. 1) payment for insurance coverage either in a lump sum or by installments. 2) an extra payment for an act, option or priority.
prenuptial agreement
n. also called an antenuptial agreement, a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been "taken" by a previous spouse.
prerogative writ
n. an historic generic term for any writ (court order) directed to government agencies, public officials or another court.
prescription
n. the method of acquiring an easement upon another's real property by continued and regular use without permission of the property owner for a period of years required by the law.
prescriptive easement
n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by the law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
presentment
n. 1) making a demand for payment of a promissory note when it is due. 2) a report to a court by a Grand Jury, made on its own initiative without a request or presentation of evidence by the local prosecutor, that a "public" crime (illegal act by public officials or affecting the public good) has been committed.
presiding judge
n. 1) the judge who chairs the panel of three or more judges during hearings and supervises the business of the court. 2) in those counties or other jurisdictions with several judges, the one is chosen to direct the management of the courts, usually on an annual or other rotating basis. The presiding judge usually makes assignments of judges to specialized courts (juvenile, probate, criminal, law and motion, family law, etc.), oversees the calendar, and chairs meetings of the judges.
presumption
n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof it is not; a person who has disappeared and not been heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.
presumption of innocence
n. a fundamental protection for a person accused of a crime, which requires the prosecution to prove its case against the defendant beyond a reasonable doubt. This is opposite from the criminal law in many countries, where the accused is considered guilty until he/ she proves his/her innocence or the government completely fails to prove its case.
pretermitted heir
n. the child of a person who has written a will in which the child is not left anything and is not mentioned at all. After the death of the parent, a pretermitted heir has the right to demand the share he/she would have received as an heir under the laws of distribution and descent. The reasoning is that the parent either inadvertently forgot the child or incorrectly believed the child was dead, and did not mean to leave him/her out. Thus, if someone wishes to disinherit a child or omit him/her from his/her will, that parent should specifically state in the will: "I leave nothing to my son, David," with or without a reason. Otherwise there may be unfair and unintended results.
pretrial discovery
n. See also: discovery
prevailing party
n. the winner in a lawsuit. Many contracts, leases, mortgages, deeds of trust or promissory notes provide that the "prevailing party" shall be entitled to recovery of attorney's fees and costs if legal action must be taken to enforce the agreement. Even if the plaintiff gets much less than the claim, he/she/it is the prevailing party entitled to include attorney's fees in the collectable costs. Usually there is no prevailing party when a complaint is voluntarily dismissed prior to trial or settled before or after trial has begun.
price fixing
n. a criminal violation of antitrust statutes in which several competing businesses reach a secret agreement (conspiracy) to set prices for their products to prevent real competition and keep the public from benefitting from price competition. Price fixing also includes secret setting of favorable prices between suppliers and favored manufacturers or distributors to beat the competition.
prima facie
(pry-mah fay-shah) adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a prima facie case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution's apparent "open and shut" case.
prima facie case
n. a plaintiff's lawsuit or a criminal charge which appears at first blush to be "open and shut."
prime suspect
n. the one person law enforcement officers believe most probably committed a crime being investigated. Once a person is determined to be a prime suspect, the police must take the risk that any admissions (any evidence gained from the statements) by the suspect may be excluded in trial.
primogeniture
n. from Latin for "first born," the ancient rule from England (except in the County of Kent) that the oldest son would inherit the entire estate of his parents (or nearest ancestor), and, if there was no male heir, the daughters would take (receive the property) in equal shares. The intent was to preserve larger properties from being broken up into small holdings, which might weaken the power of nobles.
principal
n. 1) main person in a business. 2) employer, the person hiring and directing employees (agents) to perform his/her/its business. It is particularly important to determine who is the principal since he/she/it is responsible for the acts of agents in the "scope of employment" under the doctrine of respondeat superior. 3) in criminal law, the main perpetrator (organizer and active committer) of a crime, as distinguished from an "accessory" who helps the principal in some fashion. The criminal principal is usually the person who originates the idea of committing the crime and/or directly carries it out, and is more likely to be charged with a higher degree of the crime, and receive a stiffer prison sentence. 4) adj. chief, leading, highest.
principal place of business
n. location of head office of a business where the books and records are kept and/or management works.
prior restraint
n. an attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press (even in the guise of an anti-nuisance ordinance).
prior(s)
n. slang for a criminal defendant's previous record of criminal charges, convictions, or other judicial disposal of criminal cases (such as probation, dismissal or acquittal). Only previous felony convictions can be introduced into evidence.
priority
n. the right to be first or ahead of the rights or claims of others. In bankruptcy law, the right to collect before other creditors is given to taxing authorities, judgment holders, secured creditors, bankruptcy trustees and attorneys. The right also can apply to mortgages, deeds of trusts or liens given priority in the order they were recorded (in the "race to the courthouse").
privacy
n. the right to be free of unnecessary public scrutiny or to be let alone. Once a person is a "public figure" or involved in newsworthy events, the right to privacy may evaporate.
private carrier
n. one who provides transportation or delivery of goods for money, just for the particular instance, and not as a regular business. It is distinguished from a "common carrier" which is in the business, such as buses, railroads, trucking companies, airlines and taxis. However, a private carrier may be liable for injuries to anyone who pays or shares the cost of transport.
private nuisance
n. the interference with an individual's peaceful enjoyment of one's property, which can be the basis for a lawsuit both for damages caused by the nuisance and an order (injunction) against continuing the noxious (offensive) activity or condition. Examples: fumes from a factory above the legal limit, loud noises well above the norm, or directing rain water onto another person's property.
private parts
n. men's or women's genitalia, excluding a woman's breasts, usually referred to in prosecutions for "indecent exposure" or production and/or sale of pornography.
private property
n. land not owned by the government or dedicated to public use.
private road
n. a road or driveway on privately owned property, limited to the use of the owner or a group of owners who share the use and maintain the road without help from a government agency. A private road has not been given to a government entity and accepted by that entity for public use. Some private roads are used by the public, but should be closed off at least once a year to prove that an easement of use is not allowed and to prevent a prescriptive easement (taken by continued use) from arising.
privilege
n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.
privilege against self incrimina-tion
n. a right to refuse to testify against oneself in a criminal prosecution or in any legal proceeding which might be used against the person.
privileged communication
n. statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court. These include communications between husband and wife, attorney and client, physician or therapist and patient, and minister or priest with anyone seeing them in their religious status. Thus, such people cannot be forced to testify or reveal the conversations to law enforcement or courts, even under threat of contempt of court, and if one should break the confidentiality he/she can be sued by the person who had confidence in him/her. The reason for the privilege is to allow people to speak with candor to spouse or professional counsellor, even though it may hinder a criminal prosecution. The extreme case is when a priest hears an admission of murder or other serious crime in the confessional and can do nothing about it. The privilege may be lost if the one who made the admission waives the privilege, or, in the case of an attorney, if the client sues the attorney claiming negligence in conduct of the case.
privity
n. contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, which requires that there be "privity" if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, a tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the land sales contract between seller and buyer since the tenant was not "in privity" with the seller.
pro bono
adj. short for pro bono publico, Latin for "for the public good," legal work performed by lawyers without pay to help people with legal problems and limited or no funds, or provide legal assistance to organizations involved in social causes such as environmental, consumer, minority, youth, battered women and education organizations and charities.
pro forma
1) prep. Latin for "as a matter of form," the phrase refers to court rulings merely intended to facilitate the legal process (to move matters along). 2) n. an accountant's proposed financial statement for a business based on the assumption that certain events occurred, such as a 20% increase in annual sales or 6% inflation.
pro per
adj. short for "propria persona," which is Latin for "for oneself," usually applied to a person who represents himself/herself in a lawsuit rather than have an attorney.
pro rata
(proh rat-ah or proh ray-tah) adj. from Latin for "in proportion," referring to a share to be received or an amount to be paid based on the fractional share of ownership, responsibility or time used. Examples: an heir who receives one-quarter of an estate may be responsible for one-quarter of the estate taxes as his/her pro rata share. A buyer of a rental property will pay his/her pro rata share of the property taxes for that portion of the year in which he/she holds title.
pro se
(proh say) prep. Latin for "for himself." A party to a lawsuit who represents himself (acting in propria persona) is appearing in the case "pro se."
pro tanto
(proh tahn-toe) Latin for "only to that extent." Example: a judge gives an order for payments for one year, pro tanto.
pro tem
1) adj. short for the Latin pro tempore, temporarily or for the time being. In law, judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as a substitute for a regular judge. When an appeals justice is not available or there is a vacancy, a lower court judge is appointed Justice Pro Tem until a new Justice is appointed. Small claims cases are often heard by an attorney serving as Judge Pro Tem. 2) n. short for a temporary judge.
pro tempore
(proh temp-oh-ray): See also: pro tem
probable cause
n. sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. While some cases are easy (pistols and illicit drugs in plain sight, gunshots, a suspect running from a liquor store with a clerk screaming "help"), actions "typical" of drug dealers, burglars, prostitutes, thieves, or people with guilt "written across their faces," are more difficult to categorize. "Probable cause" is often subjective, but if the police officer's belief or even hunch was correct, finding stolen goods, the hidden weapon or drugs may be claimed as self-fulfilling proof of probable cause. Technically, probable cause has to exist prior to arrest, search or seizure.
probate
1) n. the process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate court where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the court determines the will is valid, the court then "admits" the will to probate. 2) n. a general term for the entire process of administration of estates of dead persons, including those without wills, with court supervision. The means of "avoiding" probate exist, including creating trusts in which all possessions are handled by a trustee, making lifetime gifts or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner. Even if there is a will, probate may not be necessary if the estate is small with no real estate title to be transferred or all of the estate is either jointly owned or community property. Reasons for avoiding probate are the fees set by statute and/or the court for attorneys, executors and administrators, the need to publish notices, court hearings, paperwork, the public nature of the proceedings and delays while waiting for creditors to file claims even when the deceased owed no one. 3) v. to prove a will in court and proceed with administration of a deceased's estate under court supervision. 4) adj. reference to the appropriate court for handling estate matters, as in "probate court."
probation
n. a chance to remain free (or serve only a short time) given by a judge to a person convicted of a crime instead of being sent to jail or prison, provided the person can be good. Probation is only given under specific court-ordered terms, such as paying a fine, maintaining good behavior, getting mental therapy and reporting regularly to a probation officer. Violation of probation terms will usually result in the person being sent to jail for the normal term. Repeat criminals are normally not eligible for probation. Probation is not the same as "parole," which is freedom under certain restrictions given to convicts at the end of their imprisonment.
probative
adj. tending to prove something. Thus, testimony which is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel.
probative facts
n. evidence which tends to prove something which is relative to the issues in a lawsuit or criminal prosecution.
probative value
n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed by the trial judge against prejudicing in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, balanced against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions.
procedure
n. the methods and mechanics of the legal process. These include filing complaints, answers and demurrers; serving documents on the opposition; setting hearings, depositions, motions, petitions, interrogatories; preparing orders; giving notice to the other parties; conduct of trials; and all the rules and laws governing that process.
proceeding
n. any legal filing, hearing, trial and/or judgment in the ongoing conduct of a lawsuit or criminal prosecution. Collectively they are called "proceedings," as in "legal proceedings."
process
n. in law, the legal means by which a person is required to appear in court or a defendant is given notice of a legal action against him/her/it. When a complaint in a lawsuit is filed, it must be served on each defendant, together with a summons issued by the clerk of the court stating the amount of time (say, 30 days) in which the defendant has to file an answer or other legal pleading with the clerk of the court, and sent to the plaintiff. A subpena is similar to a summons but is a notice to a witness to appear at a deposition (testimony taken outside court), or at a trial. A subpena duces tecum is an order to deliver documents or other evidence either into court or to the attorney for a party to a lawsuit or criminal prosecution. An order to show cause is a court order to appear in court and give a reason why the court should not issue an order (such as paying temporary child support). The summons, complaint, subpena, subpena duces tecum and order to show cause must all be "served" on the defendant or person required to appear or produce, and this is called "service of process".
process server
n. a person who serves (delivers) legal papers in lawsuits, either as a profession or as a government official.
proctor
n. 1) in admiralty (maritime) law, an attorney. 2) person who keeps order.
product liability
n. the responsibility of manufacturers, distributors and sellers of products to the public, to deliver products free of defects which harm an individual or numerous persons and to make good on that responsibility if their products are defective. These can include faulty auto brakes, contaminated baby food, exploding bottles of beer, flammable children's pajamas or lack of label warnings. The key element in product liability law is that a person who suffers harm need prove only the failure of the product to make the seller, distributor and/or manufacturer reliable for damages. An injured person usually need only sue the seller and let him/her/it bring the manufacturer or distributor into the lawsuit or require contribution toward a judgment. However, all those possibly responsible should be named in the suit as defendants if they are known.
professional corporation
n. a corporation formed for the purpose of conducting a profession which requires a license to practice, including attorneys, physicians, dentists, certified public accountants, architects and real estate brokers.
professional negligence
n. See also: malpractice
proffer
v. to offer evidence in a trial.
prohibition
n. forbidding an act or activity. A court order forbidding an act is a writ of prohibition, an injunction or a writ of mandate (mandamus) if against a public official.
promise
1) n. a firm agreement to perform an act, refrain from acting or make a payment or delivery. In contract law, if the parties exchange promises, each promise is "consideration" (a valuable item) for the other promise. Failure to fulfill a promise in a contract is a breach of the contract, for which the other party may sue for performance and/or damages. 2) v. to make a firm agreement to act, refrain from acting or make a payment or delivery
promissory estoppel
n. a false statement treated as a promise by a court when the listener had relied on what was told to him/her to his/her disadvantage. In order to see that justice is done a judge will preclude the maker of the statement from denying it. Thus, the legal inability of the person who made the false statement to deny it makes it an enforceable promise called "promissory estoppel," or an "equitable estoppel".
promissory note
n. a person who puts together a business, particularly a corporation, including the financing. Usually the promoter is the principal shareholder or one of the management team and has a contract with the incorporators or makes a claim for shares of stock for his/her efforts in organization.
promotional stock
n. stock issued in a newly formed corporation and given to a promoter (organizer) of the corporation in payment for his/her efforts in putting the company together and locating shareholders or other funding.
proof
n. confirmation of a fact by evidence. In a trial, proof is what the trier of the fact needs to become satisfied that there is "a preponderance of the evidence" in civil (non-criminal) cases and the defendant is guilty "beyond a reasonable doubt" in criminal prosecutions. However, each alleged fact must be proved separately, as must all the facts necessary to reach a judgment for the plaintiff (the person filing a lawsuit) or for the prosecution (the "people" or "state" represented by the prosecutor). The defendants in both civil suits and criminal trials need not provide absolute "proof" of non-responsibility in a civil case or innocence (in a criminal case), since the burden is on the plaintiff or prosecution to prove their cases (or prove the person guilty).
proper party
n. a person or entity who has an interest (financial or protection of some legal rights) in the subject matter of a lawsuit and, therefore, can join in the lawsuit as he/she/it wishes, or may be brought into the suit (as an unnecessary party) by one of the parties to the legal action. However, the judgment may leave some matters undecided. A proper party is distinguished from a "necessary party," which the court will order joined in (brought into) the suit if any judgment is to be reached.
property
n. anything that is owned by a person or entity. Property is divided into two types: "real property," which is any interest in land, real estate, growing plants or the improvements on it, and "personal property" (sometimes called "personalty"), which is everything else. "Common property" is ownership by more than one person of the same possession. "Public property" refers to ownership by a governmental body such as the state, county or city governments or their agencies. The government and the courts are obligated to protect property rights and to help clarify ownership.
property damage
n. injury to real or personal property through another's negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home or any other possession. The amount of recovery for property damage may be established by evidence of replacement value, cost of repairs, loss of use until repaired or replaced or, in the case of heirlooms or very personal items, by subjective testimony as to sentimental value.
property tax
n. an annual governmental tax on real property or personal property based on a tax rate.
propria persona
adj. from Latin, for oneself.
proprietary
adj. referring to ownership.
proprietary interest
n. a total or partial ownership.
proprietary rights
n. those rights which go with ownership of real property or a business.
proprietor
n. the owner of anything, but particularly the owner of a business operated by that individual.
prosecute
v. 1) in criminal law, to charge a person with a crime and thereafter pursue the case through trial on behalf of the government. 2) to conduct any legal action by a lawyer on behalf of a client, including both civil and criminal cases, but most commonly referring to prosecution for crimes.
prosecution
n. 1) in criminal law, the government attorney charging and trying the case against a person accused of a crime. 2) a common term for the government's side in a criminal case, as in "the prosecution will present five witnesses" or "the prosecution rests" (has completed its case).
prosecutor
n. generic term for the government's attorney in a criminal case. A special prosecutor may be assigned to investigate as well as prosecute if necessary when a government official is involved directly or indirectly in the possible criminal activity.
prospectus
n. a detailed statement by a corporation required when there is an issuance of stock to the general public. A prospectus includes the financial status, the officers, the plans, contingent obligations (such as lawsuits) of the corporation, recent performance and other matters which would assist the potential investor or investment adviser to evaluate the stock and the prospects of the company for profit, loss or growth. Every potential purchaser of shares of a new stock shares must receive a copy of the prospectus, even though they are difficult to understand. Offerings to the public of limited partnership interests may require that a prospectus be prepared and delivered to each investor.
prostitute
n. a person who receives payment for sexual intercourse or other sexual acts, generally as a regular occupation. Although usually a prostitute refers to a woman offering sexual favors to men, male prostitutes may perform homosexual acts for money or receive payment from women for sexual services. A woman prostitute who is sent on a "date" to the hotel room or residence of a male customer is commonly referred to as a "call girl".
prostitution
n. the profession of performing sexual acts for money. Prostitution is a crime. Soliciting acts of prostitution is also a crime, called pandering or simply, soliciting. Pandering on behalf of a prostitute is called pimping.
protective custody
n. the act of law enforcement officials in placing a person in a government facility or foster home in order to protect him/her from a dangerous person or situation. Most commonly a child who has been neglected or battered or is in danger from a violent person is taken in as a temporary ward and held in probation facilities or placed in a foster home until a court can decide the future placement of the child. Protective custody is sometimes used to help women threatened by a husband, boyfriend or a stalker, and also for witnesses who have been threatened with physical harm or death if they testify.
protest
1) v. to complain in some public way about any act already done or about to be done, such as adoption of a regulation by a governemt, sending troops overseas, or use of the death penalty. 2) v. to dispute the amount of property taxes, the assessed evaluation of property for tax purposes or an import duty. 3) n. a written demand for payment of the amount owed on a promissory note which has not been paid when due or a check which has been dishonored (not paid by the bank).
prove
v. to present evidence and/or logic that makes a fact seem certain. A party must do this to convince a trier of fact (jury or judge sitting without a jury) as to facts claimed and to win a lawsuit or criminal case.
provisional remedy
n. a generic term for any temporary order of a court to protect a party from irreparable damage while a lawsuit or petition is pending.
proviso
n. a term or condition in a contract or title document.
proximate cause
n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the defendant's act must have been the proximate cause of the death of a victim to prove murder or manslaughter.
proxy
n. 1) someone who is authorized to serve in one's place at a meeting, particularly with the right to cast votes. 2) the written authority given to someone to act or vote in someone's place. A proxy is commonly given to cast a stockholder's votes at a meeting of shareholders, and by board members and convention delegates.
public
1) n. the people of the nation, county, district or municipality which the government serves. 2) adj. referring to any agency, interest, property, or activity which is under the authority of the government or which belongs to the people. This distinguishes public from private interests as with public and private schools, public and private utilities, public and private hospitals, public and private lands and public and private roads.
public administrator
n. a country official with the responsibility to handle the affairs of someone who has died with no known or available relative, executor or friend. At times the public administrator may be instructed by a court to assume similar duties for a living person when no conservator or guardian is available.
public benefit corporation
n. a term used for a nonprofit community service corporation. Typical examples are clubs like Rotary and Lions.
public charge
n. a general term for an indigent, sick or severely handicapped person who must be taken care of at public expense.
public corporation
n. a corporation created to perform a governmental function or to operate under government control, such as a municipal water company or hospital.
public defender
n. an elected or appointed public official, who is an attorney regularly assigned by the courts to defend people accused of crimes who cannot afford a private attorney. In larger counties the public defender has a large case load, numerous deputy public defenders and office staff.
public domain
n. 1) in copyright law, the right of anyone to use literature, music or other previously copyrighted materials after the copyright period has expired. 2) all lands and waters owned by government.
public easement
n. the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property.
public figure
n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).
public nuisance
n. a nuisance which affects numerous members of the public or the public at large (how many people it takes to make a public is unknown), as distinguished from a nuisance which only does harm to a neighbor or a few private individuals. Example: a factory which spews out clouds of noxious fumes is a public nuisance but playing drums at three in the morning is a private nuisance bothering only the neighbors.
public property
n. property owned by the government or one of its agencies, divisions, or entities. Commonly a reference to parks, playgrounds, streets, sidewalks, schools, libraries and other property regularly used by the general public.
public record
n. any information, minutes, files, accounts or other records which a governmental body is required to maintain and which must be accessible to scrutiny by the public. This includes the files of most legal actions. A court will take "judicial notice" of a public record (including hearsay in the record) introduced as evidence. For example: a recorded deed to show transfer of title or a criminal judgment are both public records.
public trust doctrine
n. the principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest. Nevertheless, there has been a great deal of use for offshore oil drilling, for landfill, and marine shoreline development, in which protection of the public interest has been dubious at best.
public use
n. the only purpose for which private property can be taken (condemned) by the government under its power of eminent domain. Public use includes: schools, streets, highways, hospitals, government buildings, parks, water reservoirs, flood control, slum clearance and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public.
public utility
n. any organization which provides services to the general public, although it may be privately owned. Public utilities include electric, gas, telephone, water and television cable systems, as well as Taxis and bus service. They are allowed certain monopoly rights due to the practical need to service entire geographic areas with one system, but they are regulated by state, county and/or city public utility commissions.
publication
n. 1) anything made public by print (as in a newspaper, magazine, pamphlet, letter, telegram, computer modem or program, poster, brochure or pamphlet), orally, or by broadcast (radio, television). 2) placing a legal notice in an approved newspaper of general publication in the county or district in which the law requires such notice to be published. 3) in the law of defamation (libel and slander) publication of an untruth about another to at least one single person. Thus one letter can be the basis of a suit for libel, and telling one person is sufficient to show publication of slander.
publish
v. to make public to at least one other person by any means.
puffing
n. the exaggeration of the good points of a product, a business, real property and the prospects for future rise in value, profits and growth. Since a certain amount of "puffing" can be expected of any salesman, it cannot be the basis of a lawsuit for fraud or breach of contract unless the exaggeration exceeds the reality.
punitive damages
n. (synonymous with exemplary damages), damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.
putative
adj. commonly believed, supposed or claimed. Thus a putative father is one believed to be the father unless proved otherwise, a putative marriage is one that is accepted as legal when in reality it was not lawful (e.g. due to failure to complete a prior divorce). A putative will is one that appears to be the final will but a later will is found that revokes it and shows that the putative will was not the last will of the deceased.
Q
quantum meruit
(kwahn-tuhm mare-ooh-it) n. Latin for "as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician's emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed.
quash
v. to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as "quashing" service of a summons when the wrong person was served.
quasi
(kway-zeye, kwah-zee) adj., adv. from Latin for "as if," almost, somewhat, to a degree (always used in combination with another word). Quasi refers to things and actions which are not exactly or fully what they might appear, but have to be treated "as if" they were.
quasi contract
n. a situation in which there is an obligation as if there was a contract, although the technical requirements of a contract have not been fulfilled.
quasi corporation
n. a business which has operated as a corporation without completing the legal requirements, often in the period just before formal incorporation.
quasi in rem
adj. referring to a legal action which is primarily based on property rights, but includes personal rights as well.
quasi-criminal
adj. a reference to a court's right to punish for actions or omissions as if they were criminal. The most common example is finding a parent who is delinquent in child support in contempt of court and penalizing him/her with a jail sentence. If a hearing is quasi-criminal the quasi-defendant is entitled to all due process protections afforded a criminal defendant.
quasi-judicial
adj., adv. referring to the actions of an agency, boards or other government entity in which there are hearings, orders, judgments or other activities similar to those conducted by courts.
queen's bench
n. 1) the highest court in Great Britain during the reign of a Queen, so that opinions are identified as a volume of Queen's Bench (QB).
query
n. common lawyer lingo for a question to be answered.
question of fact
n. in a lawsuit or criminal prosecution, an issue of fact in which the truth or falsity (or a mix of the two) must be determined by the "trier of fact" (the jury or the judge in a non-jury trial) in order to reach a decision in the case. A "question of fact" may also be raised in a motion for summary judgment which asks the court to determine whether there are any questions of fact to be tried, allowing the judge to rule on the case (usually to dismiss the complaint) at that point without a trial. "Questions of fact" are distinguished from "questions of law," which can only be decided by the judge.
question of law
n. an issue arising in a lawsuit or criminal prosecution which only relates to determination of what the law is, how it is applied to the facts in the case, and other purely legal points in contention. All "questions of law" arising before, during and sometimes after a trial are to be determined solely by the judge and not by the jury. "Questions of law" are differentiated from "questions of fact," which are decided by the jury and only by the judge if there is no jury.
qui tam action
(kwee tam) n. from Latin for "who as well," a lawsuit brought by a private citizen (popularly called a "whistle blower") against a person or company who is believed to have violated the law in the performance of a contract with the government or in violation of a government regulation, when there is a statute which provides for a penalty for such violations. Qui tam suits are brought for "the government as well as the plaintiff." In a qui tam action the plaintiff (the person bringing the suit) will be entitled to a percentage of the recovery of the penalty (which may include large amounts for breach of contract) as a reward for exposing the wrongdoing and recovering funds for the government.
quid pro quo
(kwid proh kwoh) n. Latin for "something for something," to identify what each party to an agreement expects from the other, sometimes called mutual consideration. Example of its use: "What is the quid pro quo for my entering into this deal?"
quiet enjoyment
n. the right to enjoy and use premises (particularly a residence) in peace and without interference. Quiet enjoyment is often a condition included in a lease. Thus, if the landlord interferes with quiet enjoyment, he/she may be sued for breach of contract. Disturbance of quiet enjoyment by another can be a "nuisance" for which a lawsuit may be brought to halt the interference or obtain damages for it.
quiet title action
n. a lawsuit to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title. Such a suit usually arises when there is some question about clear title, there exists some recorded problem (such as an old lease or failure to clear title after payment of a mortgage), an error in description which casts doubt on the amount of property owned, or an easement used for years without a recorded description. An action for quiet title requires description of the property to be "quieted," naming as defendants anyone who might have an interest (including descendants-known or unknown- of prior owners), and the factual and legal basis for the claim of title. Notice must be given to all potentially interested parties, including known and unknown, by publication. If the court is convinced title is in the plaintiff (the plaintiff owns the title), a quiet title judgment will be granted which can be recorded and thus provide legal "good title." Quiet title actions are a common example of "friendly" lawsuits in which often there is no opposition.
quit
v. to leave, used in a written notice to a tenant to leave the premises (notice to quit).
quitclaim deed
n. a real property deed which transfers (conveys) only that interest in the property in which the grantor has title. Commonly used in transfers of title or interests in title, quitclaims are often made to family members, divorcing spouses, or in other transactions between people well-known to each other. Quitclaim deeds are also used to clear up questions of full title when a person has a possible but unknown interest in the property. Grant deeds and warranty deeds guarantee (warrant) that the grantor has full title to the property or the interest the deed states is being conveyed, but quitclaim deeds do not warrant good title.
quo warranto
(kwoh wahr-rahn-toe) n. the name for a writ (order) used to challenge another's right to either public or corporate office or challenge the legality of a corporation to its charter (articles).
quorum
n. the number of people required to be present before a meeting can conduct business. Unless stated differently in bylaws, articles, regulations or other rules established by the organization, a quorum is usually a majority of members. A quorum for meetings of corporate boards of directors, homeowners' associations, clubs and shareholders meetings are usually set in the bylaws. The quorum for meetings of governmental bodies such as commissions and boards are usually set by statute.
quotient verdict
n. an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award. A quotient verdict is illegal and improper since it is based on guesses and not a rational discussion of the facts. Such a judgment will be set aside on a motion for a new trial and a mistrial will be declared by the judge.
R
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 Recorder will have priority and prevail over later recordings no matter when the documents were dated.
ransom
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.
rape
1) n. the crime of sexual intercourse (with actual penetration of a woman's vagina with the man's penis) without consent and accomplished through force, threat of violence or intimidation (such as a threat to harm a woman's child, husband or boyfriend). What constitutes lack of consent usually includes saying "no" or being too drunk or drug-influenced for the woman to be able to either resist or consent. "Date rape" involves rape by an acquaintance who refuses to stop when told to. Defense attorneys often argue that there had to be physical resistance, but the modern view is that fear of harm and the relative strengths of the man and the woman are obvious deterrents to a woman fighting back. Any sexual intercourse with a child is rape and even with consent involving a girl 14 to 18 is "statutory rape," on the basis that the female is unable to give consent. 2) v. to have sexual intercourse with a female without her consent through force, violence, threat or intimidation, or with a girl under age. Technically, a woman can be charged with rape by assisting a man in the rape of another woman. Dissatisfied with the typical prosecution of rape cases (in which the defense humiliates the accuser, and prosecutors are unable or unwilling to protect the woman from such tactics), women have been suing for civil damages for the physical and emotional damage caused by the rape, although too often the perpetrator has no funds. Protection services for rape victims have been developed by both public and private agencies. On the other side of the coin, there is the concern of law enforcement and prosecutors that women whose advances have been rejected by a man, or who have been caught in the act of consensual sexual intercourse may falsely cry "rape."
ratable
adj. taxable according to value, such as an estate or property.
ratification
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).
ratify
v. to confirm and adopt the act of another even though it was not approved beforehand.
rational basis
n. a test of constitutionality of a statute, asking whether the law has a reasonable connection to achieving a legitimate and constitutional objective.
ready, willing and able
adj. fully prepared to act, as in performing a contract.
real estate
n. land, improvements and buildings thereon, including attached items and growing things. It is virtually the same as "real property," except real property includes interests which are not physical such as a right to acquire the property in the future.
real estate investment trust
n. 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. Example: a trustee files a suit against a person who damaged a building owned by the trust; the real party in the interest is the beneficiary of the trust.
real property
n. 1) all land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all "interests" in the property, which may include the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate), the right to drill for oil, the right to get the property back (a reversion) if it is no longer used for its current purpose (such as use for a hospital, school or city hall), use of airspace (condominium) or an easement across another's property. Real property should be thought of as a group of rights like a bundle of sticks which can be divided. It is distinguished from personal property which is made up of movable items. 2) one of the principal areas of law like contracts, negligence, probate, family law and criminal law.
realty
n. a short form of "real estate".
reasonable
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.
reasonable care
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.
reasonable doubt
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.
reasonable reliance
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".
reasonable speed
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.
reasonable time
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".
rebate
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.
rebuttable presumption
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.
rebuttal
n. evidence introduced to counter, disprove or contradict the opposition's evidence or a presumption, or responsive legal argument.
receipt
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.
receiver
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 money 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 money 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.
receivership
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".
recess
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.
recidivist
n. a repeat criminal offender, convicted of a crime after having been previously convicted.
reciprocal discovery
n. the exchange of documents, lists of witnesses, and other information between the two sides of a lawsuit or criminal prosecution before trial.
reciprocity
n. mutual exchange of privileges between nations, businesses or individuals.
reckless
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.
reckless disregard
n. gross negligence without concern for danger to others. Actually "reckless disregard" is redundant since reckless means there is a disregard for safety.
reckless driving
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.
record
1) v. (ree-cored) to put a document into the official records at the office of the 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 the document returned. Normally recorded is any document affecting title to real property such as a deed, deed of trust, mortgage, 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. 2) v. to write down or tape the minutes, financial transactions, discussions and other happenings at meetings. 3) n. (reck-urred) 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".
recording acts
n. the statutes of each state which established the keeping of official records by Recorders of Deeds.
records
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.
recoupment
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. A recoupment is not the same as an "offset" (setoff), which can be money owed from any matter, including outside the lawsuit.
recourse
n. the right to demand payment to the writer of a check or bill of exchange.
recover
v. to receive a money judgment in a lawsuit.
recoverable
adj. referring to the amount of money to which a plaintiff (the party suing) is entitled in a lawsuit. Thus, a judge might rule "Rs 12,500 is recoverable for lost wages, and Rs 5,500 is recoverable for property damage to plaintiff's vehicle."
recovery
n. the amount of money and any other right or property received by a plaintiff in a lawsuit.
recusal
n. the act of a judge or prosecutor being removed or voluntarily stepping aside from a legal case due to conflict of interest or other good reason.
recuse
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.
redeem
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.
redemption
n. the act of redeeming, buying back property by paying off a loan, interest and any costs of foreclosure.
reentry
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.
referee
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.
referendum
n. the process by which the repeal or approval of an existing statute or state constitutional provision is voted upon.
reformation
n. the correction or change of an existing document by court order upon petition of one of the parties to the document. Reformation will be ordered if there is proof that the parties did not intend the language as written or there was an omission due to mistake or misunderstanding. Quite often a party petitions for reformation when one or both parties realize the effect of the document as written is different from what was expected but it has already been recorded or filed with a governmental agency. Examples: a paragraph is omitted from a trust which results in the transfer to the trust being a gift subject to gift tax, and which needs to be corrected to keep the taxing authority from demanding payment. The attorney writing the final draft of a limited partnership agreement writes in a calculation which would triple the profit to a limited partner above the amount discussed by the parties, and when the limited partner refuses to change the document, the general partner sues for reformation.
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).
register
n. in corporations, the record of shareholders, and issuance and transfer of shares on the records of the corporation.
registration statement
n. a detailed report to be filed with the Securities and Exchange Board by a corporation making an issuance of shares to be advertised and sold to the general public.
registry of deeds
n. the records of land title documents kept by the Recorder of Deeds.
regulations
n. rules and administrative codes issued by governmental agencies at all levels, municipal, state, etc. 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. 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.
rehearing
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. 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. 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.
release
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.
relevancy
n. See also: irrelevant relevant
relevant
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".
reliance
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.
reliction
n. gradual change of water line on real property which gives the owner more dry land.
relief
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.
remainder
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. A remainder is distinguished from a "reversion," which gives title back to the grantor of the property or to the grantor's descendants; a reversion need not be spelled out in a deed or will, but can occur automatically by "operation of law".
remainderman
n. the person who will receive a remainder in real property.
remand
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.
remedy
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.
remise
v. to give up something, sometimes used in quitclaim deeds.
remittitur
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).
remote
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".
removal
n. 1) the change of a legal case from one court to another based on a motion by one of the parties stating that the other jurisdiction is more appropriate for the case. 2) taking away the position of a public official for cause, such as dishonesty, incompetence, conviction of a crime or successful impeachment.
renewal
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.
rent
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.
rental value
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.
renunciation
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.
reorganization
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.
repair
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.
repeal
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. 2) n. the act of annulling a statute.
replevin
n. under common law, the right to bring a lawsuit for recovery of goods improperly taken by another.
reply brief
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).
reports
n. the published decisions of appeals courts, which are constantly updated with pamphlets called "advance sheets" which are soon followed by bound volumes. These reports are available in almost all law libraries.
repossess
v. to take back property through judicial processes, foreclosure, or self-help upon default in required payments.
represent
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".
representation
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.
representative
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".
reprieve
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. 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.
repudiation
n. denial of the existence of a contract and/or refusal to perform a contract obligation. Repudiation is an anticipatory breach of a contract.
reputation
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.
reputed
adj. referring to what is accepted by general public belief, whether or not correct.
request
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.
requirements contract
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.
res
(rayz)n. Latin, "thing." In law lingo res is used in conjunction with other Latin words as "thing that".
res adjudicata
n. a thing (legal matter) already determined by a court, from Latin for "the thing has been judged". More properly res judicata.
res gestae
(rayz jest-tie) n. from 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
(rayz ip-sah loh-quit-her) n. Latin for "the thing speaks for itself", a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. Examples: a) a load of bricks on the roof of a building being constructed by Highrise Construction Company falls and injures Abraham Paul below, and Highrise is liable for Abraham's injury even though no one saw the load fall. b) While under anesthetic, John's nerve in his arm is damaged although it was not part of the surgical procedure, and he is unaware of which of a dozen medical people in the room caused the damage. Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to "res ips", and find it a handy shorthand for a complex doctrine.
res judicata
(rayz judy-cot-ah) n. 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. Sometimes called res adjudicata.
resale
n. selling again, particularly at retail. 2) adj. referring to sales to the general public, as distinguished from wholesale, sales to retailers. A "resale license" or "resale number" is required so that the state can monitor the collection of sales tax on retail sales.
rescind
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.
rescission
n. the cancellation of a contract by mutual agreement of the parties.
rescue doctrine
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.
reservation
n. a provision in a deed which keeps (reserves) to the grantor some right or portion of the property.
reserve
v. to keep for oneself a right or a portion of the real property when transferring (conveying) a parcel of real estate to another.
reserve fund
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 a housing cooperative) operated by a homeowners association or other governing body.
residence
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.
resident
n. a person who lives in a particular place. However, the term is vague depending on the permanence of the occupation.
residuary bequest
n. in a will, the gift of whatever is left (the residue) after specific gifts are given. It is also called a residuary legacy.
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.
resisting arrest
n. the crime of using physical force) to prevent arrest, handcuffing and/or taking the accused to jail. Sometimes referred to merely as "resisting".
resolution
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.
respondeat superior
(rehs-pond-dee-at superior) n. 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.
respondent
n. 1) the party who is required to answer a petition for a court order or writ requiring the respondent to take some action, halt an activity or obey a court's direction. In such matters the moving party (the one filing the petition) is usually called the "petitioner". Thus, the respondent is equivalent to a defendant in a lawsuit, but the potential result is a court order and not money damages. 2) on an appeal, the party who must respond to an appeal by the losing party in the trial court (called "appellant") in the appeals court.
responsible
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 on a variety of subjects written and updated by well-known legal scholars. 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.
restitution
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.
restraining order
n. a temporary order of a court to keep conditions as they are (like not taking a child out of the county or not selling marital property) until there can be a hearing in which both parties are present. More properly it is called a temporary restraining order.
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.
restraint on alienation
n. an attempt in a deed or will to prevent the sale or other transfer of real property either forever or for an extremely long period of time. Such a restraint on the freedom to transfer property is generally unlawful and therefore void or voidable (can be made void if an owner objects), since a present owner should not be able to tie the hands of future generations to deal with their property. This ban on a restraint on alienation (transfer) is called "the rule against perpetuities".
restriction
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 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.
restrictive covenant
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 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).
restrictive endorsement
n. an endorsement signed on the back of a check, note or bill of exchange which restricts to whom the paper may be transferred. Also spelled "indorsement".
result
n. common lawyer lingo for outcome of a lawsuit.
resulting trust
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 resulting trust differs from a "constructive trust", which comes about when someone by accident, misunderstanding or dishonesty comes into possession of property belonging to another.
retainer
n. the advance payment to an attorney for services to be performed, intended to insure that the lawyer will represent the client and that the lawyer will be paid at least that amount. Commonly in matters which will involve extensive work there will be a retainer agreement signed by the attorney and client. Further payments for services can be expected as the time spent on the legal matter increases. Most lawyers do not want to be owed money and wish to be paid either in advance or promptly as the work is performed. One reason for the retainer, and the problem a lawyer faces, is that he/she does not want to abandon a client, but at the same time does not want to be stuck with extensive unpaid fees.
retire
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 evidence, argument and jury instructions have been completed.
retraction
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.
retrial
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.
retroactive
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. 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).
reversal
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.
reversible error
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.
reversion
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. Examples: a) George deeded property to the local hospital district for "use for health facilities only", and the hospital is eventually torn down and the property is now vacant. The property reverts to George's descendants. b) George wills the property to his sister's children only, who later died without children. When the last grandchild dies the property reverts to George's descendants. Reversion is also called "reverter".
reverter
n. synonymous with reversion.
review
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.
revival
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).
revocation
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.
revoke
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.
rider
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.
right
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 constitutional guarantees as the right to freedoms of speech, press, religion, assembly and petition. 2) adj. just, fair, correct.
right of way
n. 1) a pathway or road with a specific description. 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.
rights
n. 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).
riot
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.
risk
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.
roadside test
n. a preliminary test law enforcement officers use on a suspected drunk driver at the spot the driver has been pulled over.
robbery
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 prison). "Armed robbery" involves the use of a gun or other weapon which can do bodily harm, such as a knife or club, and 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".
rogatory letters
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.
royalty
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.
rule
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 Rs 10,000". 2) v. to make a judicial command. 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.
rule against perpetuities
n. the legal prohibition against tying up property so that it cannot be transferred or vest title in another forever, for several future generations, or for a period of centuries.
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. 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.
ruling
n. court decision on a case or any legal question.
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 or state.
running with the land
adj. permanently part of the title (ownership) to real property