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Glossary
123 A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
a fortiori (ah-for-she-ory) prep. Latin for "with even stronger reason," which applies to a situation in which if one thing is true then it can be inferred that a second thing is even more certainly true. Thus, if Anil is too young to serve as administrator, then his younger brother Amit certainly is too young.
a priori assumption (ah-pree-ory) n. from Latin, an assumption that is true without further proof or need to prove it. It is assumed the sun will come up tomorrow. However, it has a negative side: an a priori assumption made without question on the basis that no analysis or study is necessary, can be mental laziness when the reality is not so certain.
a.k.a. prep. abbreviation for "also known as" when someone uses different initials, a nickname, a maiden or married name. Example: Amit G. Das, a.k.a. A. G. Das, a.k.a. "Snuffy the Snod."
ab initio prep. lawyer Latin for "from the start," as "it was legal ab initio."
abandon v. to intentionally and permanently give up, surrender, leave, desert or relinquish all interest or ownership in property, a home or other premises, a right of way, and even a spouse, family, or children. The word is often used in situations to determine whether a tenant has left his/her apartment and the property inside and does not intend to come back. Thus, a landlord can take over an apparently abandoned residence, but must store anything a tenant leaves behind and give notice to the tenant before selling the possessions, which are left. To abandon children can mean to have no contact and give no support for a year or more.
abandoned property n. property left behind (often by a tenant) intentionally and permanently when it appears that the former owner (or tenant) does not intend to come back, pick it up, or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long period of time, or patent rights of an inventor who does not apply for a patent and lets others use his invention without protest. One may have abandoned the property of contract rights by not doing what is required by the contract. However, an easement and other land rights are not abandoned property just because of non-use.
abandonment n. the act of intentionally and permanently giving up, surrendering, deserting or relinquishing property, premises, a right of way, a ship, contract rights, a spouse and/or children. Abandonment of a spouse means intent at permanent separation, and with children a lengthy period of neither contact nor any support. In maritime law abandonment has a special meaning: when an owner surrenders a ship and its contents to a trustee for the benefit of claimants, particularly after a wreck. If one invents something and does not get a patent but allows others to use the invention or dedicates it to public use, the right to patent is probably abandoned. Confusion arises over abandonment of water rights, mining rights, or rights of way, since mere non-use is not sufficient to show abandonment.
abate v. to do away with a problem, such as a public or private nuisance or some structure built contrary to public policy. This can include dikes, which illegally direct water onto a neighbor's property, high volume noise from a rock band or a factory, an improvement constructed in violation of building and safety codes, or seepage from a faulty septic tank.
abatement n. 1) the removal of a problem which is against public or private policy, or endangers others, including nuisances such as weeds that might catch fire on an otherwise empty lot; 2) an equal reduction of recovery of debts by all creditors when there are not enough funds or assets to pay the full amount; 3) an equal reduction of benefits to beneficiaries (heirs) when an estate is not large enough to pay each beneficiary in full.
abduction n. the criminal taking away of a person by persuasion (convincing someone-particularly a minor or a woman-he/she is better off leaving with the persuader), by fraud (telling the person he/she is needed, or that the mother or father wants him/her to come with the abductor), or by open force or violence. Kidnapping is more limited, requiring force, threat of force upon an adult or the taking of children.
abet v. to help someone commit a crime, including helping them escape from police or plan the crime.
abeyance 1) n. when the owner- ship of property has not been determined. Examples include title to real property in the estate of a person who has died and there is no obvious party to receive title or there appears to be no legal owner of the property, a shipwreck while it is being determined who has the right to salvage the ship and its cargo, or a bankrupt person's property before the bankruptcy court has decided what property is available to creditors or alleged heirs. 2) legal jargon for "undetermined."
able-bodied adj. physically capable of working at a job or in the military. It is often used to describe a person as capable of earning a living and, therefore, of paying alimony or child support
abortion n. the termination of pregnancy by various means, including medical surgery, before the fetus is able to sustain independent life.
abrogate v. to annul or repeal a law or pass legislation that contradicts the prior law. Abrogate also applies to revoking or withdrawing conditions of a contract.
abscond v. 1) traditionally to leave a jurisdiction (where the court, a process server or law enforcement can find one) to avoid being served with legal papers or being arrested. 2) a surprise leaving with funds or goods that have been stolen, as in "he absconded with the loot."
absolute adj. complete, and without condition.
abstract n. in general, a summary of a record or document, such as an abstract of judgment or abstract of title to real property.
abstract of judgment n. a written summary of a judgment which states how much money the losing party owes to the person who won the lawsuit (judgment creditor), the rate of interest to be paid on the judgment amount, court costs, and any specific orders that the losing party (judgment debtor) must obey, which abstract is acknowledged and stamped so that it can be recorded at the county recorder.
abstract of title n. the written report on a title search which shows the history of every change of ownership on a piece of real estate, and any claims against the property, such as easements on the property, loans against it, deeds of trust, mortgages, liens, judgments, and real property taxes. Some abstracts only go back in history to the last change in title. In some places the abstract of title is prepared by a title company, and in other places by an individual who is called an abstractor. Most buyers and all lenders require the title report with an abstract. The information in the abstract is up to the moment, comes from the local county recorder's office, and usually requires an expert search.
abuse of discretion n. a polite way of saying a trial judge has made such a bad mistake ("clearly against reason and evidence" or against established law) during a trial or on ruling on a motion that a person did not get a fair trial. A court of appeals will use a finding of this abuse as a reason to reverse the trial court judgment. Examples of "abuse of discretion" or judges' mistakes include not allowing an important witness to testify, making improper comments that might influence a jury, showing bias, or making rulings on evidence that deny a person a chance to tell his or her side of the matter. This does not mean a trial or the judge has to be perfect, but it does mean that the judge's actions were so far out of bounds that someone truly did not get a fair trial. Sometimes the appeals courts admit the judge was wrong, but not wrong enough to have influenced the outcome of the trial, often to the annoyance of the losing party. In criminal cases abuse of discretion can include sentences that are grossly too harsh. In a divorce action, it includes awarding alimony way beyond the established formula or the spouse's or life partner's realistic ability to pay.
abuse of process n. the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.
abut v. when two parcels of real property touch each other.
acceleration n. 1) speeding up the time when there is vesting (absolute ownership) of an interest in an estate, when the interest in front of it is terminated earlier than expected; 2) in a contract or promissory note, when the payment of debt is moved up to the present time due to some event like non-payment of an installment or sale of the property which secures the debt.
acceleration clause n. a provision in a contract or promissory note that if some specified event (like not making payments on time) occurs then the entire amount is due or other requirements are due now, pronto. This clause is most often found in promissory notes with installment payments for purchase of real property and requires that if the property is sold then the entire amount of the note is due immediately (the so-called "due on sale clause").
accept v. to receive something with approval and intention to keep it. This use often arises on the question of accepting a payment which is late or not complete or accepting the "service" (delivery) of legal papers.
acceptance n. 1) receiving something from another with the intent to keep it, and showing that this was based on a previous agreement. 2) agreeing verbally or in writing to the terms of a contract, which is one of the requirements to show there was a contract (an offer and an acceptance of that offer). A written offer can be accepted only in writing. 3) receiving goods with the intention of paying for them if a sale has been agreed to. 4) agreement to pay a bill of exchange, which can be an "absolute acceptance" (to pay as the bill is written) or "conditional acceptance" (to pay only when some condition actually occurs such as the shipment or delivery of certain goods). "Acceptance" is most often used in the factual determination of whether a contract was entered into.
acceptance of service n. agreement by a defendant (or his/her attorney) in a legal action to accept a complaint or other petition (like divorce papers) without having the law enforcement officer show up at the door. The agreement of "acceptance of service" must be in writing or there is no proof that it happened. In most jurisdictions there is a form entitled "receipt and acknowledgment of acceptance of service" or similar language which must be signed, dated and sent back to the attorney who sent the complaint or petition. Attorneys must be careful that they have legal authority from a client to act on his/her behalf, because a client may deny later that he/she gave authority to accept service
access n. 1) in real estate the right and ability to get to the property. 2) when a husband has the opportunity to make love to his wife, it is said he has access. This rather vulgar use of "access" has been important because if a husband "had access" to his wife during the time when she became pregnant, it is presumed he is the father. Modern use of blood tests and DNA studies may show the father to be someone other than the husband whether the husband "had access" or not.
accessory n. a second-string player who helps in the commission of a crime by driving the getaway car, providing the weapons, assisting in the planning, providing an alibi, or hiding the principal offender after the crime. Usually the accessory is not immediately present during the crime, but must be aware that the crime is going to be committed or has been committed. Usually an accessory's punishment is less than that of the main perpetrator, but a tough jury or judge may find the accessory just as responsible.
accommodation n. 1) a favor done without compensation (pay or consideration), such as a signature guaranteeing payment of a debt, sometimes called an accommodation endorsement. Such accommodation is not the smartest business practice, since the holder of the note can go after the accommodator rather than the debtor and will do so if the accommodator has lots of money or is easier to locate than the debtor. 2) giving in to an adversary on a point to make a deal work.
accomplice n. someone who assists in the commission of a crime and, unlike a mere accessory, is usually present or directly aids in the crime (like holding a gun on the bank guard while the vault is looted, or holding a victim of assault and battery). Also unlike an accessory who can claim being only a subordinate figure, the accomplice may share in the same charge and punishment as the principal criminal.
accord and satisfaction n. an agreement to accept less than is legally due in order to wrap up the matter. Once the accord and satisfaction is made and the amount paid (even though it is less than owed) the debt is wiped out since the new agreement (accord) and payment (the satisfaction) replaces the original obligation. It is often used by creditors as "a bird in the hand is worth two in the bush" practicality.
account stated n. a statement between a creditor or the person to whom money is owed and a debtor (the person who owes) that a particular amount is owed to the seller as of a certain date. Often the account stated is a bill, invoice or a summary of invoices, signed by the customer or sent to the customer who pays part or all of it without protest. This is important when a frustrated businessman sues for "account stated" which sets both the debtor's liability and the exact amount the debtor must pay, which is less complicated than claiming a debt is due and payable.
accounts payable n. bills that are owed.
accounts receivable n. the amounts of money due or owed to a business or professional by customers or clients. Generally, accounts receivable refers to the total amount due and is considered in calculating the value of a business or the business's problems in paying its own debts. Evaluation of the chances of collecting based on history of customers' payments, quality of customers and age of the accounts receivable and debts is important. A big mistake made by people overly eager to buy a business is to give too high a value to the accounts receivable without considering the chances of collection.
accretion n. 1) in real estate, the increase of the actual land on a stream, lake or sea by the action of water which deposits soil upon the shoreline. Accretion is Mother Nature's little gift to a landowner. 2) in estates, when a beneficiary of the person who died gets more of the estate than he/she was meant to because another beneficiary or heir dies or rejects the gift. Example: if a brother and sister were supposed to divide a share of Dad's estate, but brother doesn't want it, then sister's share grows by accretion. 3) in trusts, accretion occurs when a beneficiary gets a surprising increase in benefits due to an unexpected event.
accrue v. 1) growing or adding to, such as interest on a debt or investment which continues to accumulate. 2) the coming into being of the right to bring a lawsuit. For example, the right to sue on a contract only accrues when the contract is breached (not on mere suspicion that it might be breached) or when the other party repudiates the contract (anticipatory breach).
accusation n. 1) in legal terms accusation means officially charging someone with a crime either by indictment by a Grand Jury or filing charges by a District Attorney. 2) in lay terms any claim of wrongdoing by another person.
acknowledge v. 1) generally to admit something, whether bad, good or indifferent. 2) to verify to a notary public or other officer (such as a County Clerk) that the signer executed (wrote, signed) the document like a deed, lease, or power of attorney, to make it certified as legal and suitable for recording.
acknowledgment n. the section at the end of a document where a notary public verifies that the signer of the document states he/she actually signed it.
acquit v. what a jury or judge sitting without a jury does at the end of a criminal trial if the jury or judge finds the accused defendant not guilty
acquittal n. what an accused criminal defendant receives if he/she is found not guilty. It is a verdict (a judgment in a criminal case) of not guilty.
act 1) n. in general, any action by a person. 2) n. a statutory plan passed by Congress or any legislature which is a "bill" until enacted and becomes law. 3) v. for a court to make a decision and rule on a motion or petition, as in "the court will act on your motion for a new trial."
action n. a lawsuit in which one party (or parties) sues another.
actionable adj. when enough facts or circumstances exist to meet the legal requirements to file a legitimate lawsuit. If the facts required to prove a case cannot be alleged in the complaint, the case is not "actionable" and the client and his/her attorney should not file a suit. Of course, whether many cases are actionable is a matter of judgment and interpretation of the facts and/or law, resulting in many lawsuits that clog the courts. Incidentally, if a case is filed which is clearly not actionable, it may result in a lawsuit against the filer of the original suit for malicious prosecution by the defendant after he/she has won the original suit.
actual controversy n. a true legal dispute which leads to a genuine lawsuit rather than merely a "cooked up" legal action filed to get a court to give the equivalent of an advisory opinion.
actual notice n. having been informed directly of something or having seen it occur, as distinguished from constructive notice (e.g. a notice was mailed but not received, published in a newspaper, or placed in official records).
ad hoc adj. Latin shorthand meaning "for this purpose only." Thus, an ad hoc committee is formed for a specific purpose, usually appointed to solve a particular problem. An ad hoc attorney is one hired to handle one problem only and often is a specialist in a particular area or considered especially able to argue a key point.
ad litem adj. legal Latin meaning "for the purposes of the legal action only." Most often the term applies to a parent who files a lawsuit for his or her minor child as "guardian at litem" (guardian just for the purposes of the lawsuit) or for a person who is incompetent. Either at the time the lawsuit is filed or shortly thereafter, the parent petitions the court to allow him/her to be guardian ad litem, which is brought ex parte (without a noticed hearing) and is almost always granted. A person acting ad litem has the responsibility to pursue the lawsuit and to account for the money recovered for damages. If a child in such a lawsuit reaches majority while the suit is pending, the ad litem guardianship terminates and the "new" adult can run his/her own lawsuit. Some courts require an order terminating the guardianship ad litem upon proof of coming of age.
ad seriatim adj. (add sear-ee-ah-tim) Latin for "one after another".
ad valorem adj. Latin for "based on value," which applies to property taxes based on a percentage of the county's assessment of the property's value. The assessed value is the standard basis for local real property taxes, although some place "caps" (maximums) on the percentage of value or "parcel taxes" which establish a flat rate per parcel.
addendum n. an addition to a completed written document. Most commonly this is a proposed change or explanation (such as a list of goods to be included) in a contract, or some point that has been the subject of negotiation after the contract was originally proposed by one party. Real property sales agreements often have addenda (plural of addendum) as the buyer and seller negotiate fine points (how payments will be made, what appliances will be included, date of transfer of title, the terms of financing by the seller and the like). Although often they are not, addenda should be signed separately and attached to the original agreement so that there will be no confusion as to what is included or intended. Unsigned addenda could be confused with rough drafts or unaccepted proposals or included fraudulently.
adeem v. to revoke a gift made in a will by destroying, selling or giving away the gift item during the lifetime of the testator (writer of the will). Example: a person writes in his/her will, "I leave my son my 1988 Ford automobile" and then Dad totals or sells the car. Nasty legal fights can arise if the supposed adeemed gift is not clearly identified, as in "I give Ajay my family car." Then the giver sells the Ford and buys a Jeep. Better will language would be: "To Ajay any (or the newest) automobile of which I shall be possessed at the time of my death."
ademption n. the act of adeeming, which is revoking (getting rid of) a gift mentioned in a will by destruction, or selling or giving away the gift before death.
adequate remedy n. a remedy (money or performance) awarded by a court or through private action (including compromise) which affords "complete" satisfaction, and is "practical, efficient and appropriate" in the circumstances. In part this depends on what relief (like an order granting one an easement over a neighbor's property or an order keeping the drunken husband away from the complaining wife) a party is seeking. A court is a bit self-congratulatory and subjectively judgmental when it announces that the remedy granted is "adequate" when it has done the best it can in the circumstances. Example: a "stay away" order telling an abusive husband to keep his distance from his wife but not putting him in jail. The order is only a piece of paper until he violates it, giving cause for his arrest.
adhesion contract n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Example: a rich landlord dealing with a poor tenant who has no choice and must accept all terms of a lease, no matter how restrictive or burdensome, since the tenant cannot afford to move. An adhesion contract can give the little guy the opportunity to claim in court that the contract with the big shot is invalid. This doctrine should be used and applied more often, but the same big guy-little guy inequity may apply in the ability to afford a trial or find and pay a resourceful lawyer.
adjourn v. the final closing of a meeting, such as a convention, a meeting of the board of directors, or any official gathering. It should not be confused with a recess, meaning the meeting will break and then continue at a later time.
adjudication n. the act of giving a judicial ruling such as a judgment or decree. The term is used particularly in bankruptcy proceedings, in which the order declaring a debtor bankrupt is called an adjudication.
adjusted basis n. in accounting, the original cost of an asset adjusted for costs of improvements, depreciation, damage and other events which may have affected its value during the period of ownership. This is important in calculating capital gains for income tax purposes since the adjusted basis is generally higher than the original price and will lower capital gains taxes.
adjuster n. an employee (usually a non-lawyer) of an insurance company or an adjustment firm employed by an insurance company to negotiate an early settlement of a claim for damages against a person, a business or public body (like a city). While a fair and responsible adjuster can serve a real purpose in getting information and evaluating the case for the insurance company, some adjusters try to make a settlement before the injured person has retained an attorney ("don't worry, we'll pay your bills. You don't need an attorney. He'll only confuse things."), get a statement from the injured without counsel, or delay the payout with the promise he/she will negotiate any reasonable demand, and then making an offer of payment that is absurdly low. Some insurance companies try to make the attorney deal with the adjuster, which is cheaper than sending the case to defense attorneys. Adjusters also represent the company in approving settlements
administer v. 1) to conduct the duties of a job or position. 2) particularly, to manage the affairs of the estate of a person who has died under supervision of the local court. 3) to give an oath, as in "administer the oath."
administrative hearing n. a hearing before any governmental agency or before an administrative law judge. Such hearings can range from simple arguments to what amounts to a trial. There is no jury, but the agency or the administrative law judge will make a ruling.
administrative law n. the procedures created by administrative agencies (governmental bodies of the city, county, state or government) involving rules, regulations, applications, licenses, permits, available information, hearings, appeals and decision-making. 1) the rules and regulations are often special for each agency and are not usually found in the statutes but in those regulations; 2) a member of the public must "exhaust his/her administrative remedies" (take every step, including appeals) with the agency and its system before he/she can challenge the administrative ruling with a lawsuit in court. There are exceptions (such as emergency or obvious futility) to exhausting one's remedies, but those are rare. Administrative law can be a technical jungle, and many lawyers make lots of money from knowing how to hack their way through it on behalf of their clients.
administrative law judge n. a professional hearing officer who works for the government to preside over hearings and appeals involving governmental agencies. They are generally experienced in the particular subject matter of the agency involved or of several agencies. Formerly called "hearing officers," they discovered that there was more prestige and higher pay in being called "judge".
administrator n. the person appointed by the court to handle the estate of someone who died without a will, with a will but no nominated executor, or the executor named in the will has died, has been removed from the case or does not desire to serve. If there is a will but no available executor, the administrator is called an "administrator with will annexed." The procedure is that if an estate must be probated (filed and approved by a court) then someone (usually a relative or close friend) petitions the court in the appropriate county (usually where the late lamented last lived) for appointment of a particular person as administrator. If an estate requires attention and no one has come forward to administer the estate, then the county Public Administrator may do so. In most cases state law requires that the administrator post a bond ordered by the court to protect the estate from mishandling or malfeasance. If the will includes real property in another state then the administrator or executor must find someone in the other state to handle the change of title and paying of local taxes, and that person is called an "ancillary administrator."
admiralty n. concerning activities which occur at sea, including on small boats and ships in navigable bays. Admiralty law (maritime law) includes accidents and injuries at sea, maritime contracts and commerce, alleged violations of rules of the sea over shipping lanes and rights-of-way, and mutiny and other crimes on shipboard.
admissible evidence n. evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury's shock at gory details may outweigh that probative value. In criminal cases the courts tend to be more restrictive on letting the jury hear such details for fear they will result in "undue prejudice." Thus, the jury may only hear a sanitized version of the facts in prosecutions involving violence.
admission n. a statement made by a party to a lawsuit or a criminal defendant, usually prior to trial, that certain facts are true. An admission is not to be confused with a confession of blame or guilt, but admits only some facts. In civil cases, each party is permitted to submit a written list of alleged facts and request the other party to admit or deny whether each is true or correct. Failure to respond in writing is an admission of the alleged facts and may be used in trial.
admission against interest n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. Another party can quote in court an admission against interest even though it is only hearsay.
admission of evidence n. a judge's acceptance of evidence in a trial.
admission of guilt n. a statement by someone accused of a crime that he/she committed the offense. If the admission is made outside court to a police officer it may be introduced as evidence if the defendant was given the proper warnings as to his/her rights before talking.
admission to bail n. an order of a court in a criminal case allowing an accused defendant to be freed pending trial if he/she posts bail (deposits either cash or a bond) in an amount set by the court. Theoretically the posting of bail is intended to guarantee the appearance of the defendant in court when required. In minor routine cases (e.g. petty theft or drunk driving) a judge automatically sets bail based on a rate schedule which can be obtained and put up quickly. Otherwise bail is set at the first court appearance (arraignment). Although the Constitution guarantees the right to bail, in extreme cases (murder, treason, mayhem) the court is not required to admit a prisoner to bail of any amount due to the likelihood of the defendent fleeing the area, or causing further harm. Bail bondsmen are usually readily available near larger courthouses and jails, charge ten percent of the amount of the court-required bond, and often demand collateral for the amount posted. If the defendant fails to show up in court or flees ("jumps bail"), the defendant may have to give up his/her deposit (bail). When the case is concluded, the bail is "exonerated" (released) and returned to the bail bond company or to whoever put up the cash. If a bail bondsman has good reason to believe his client is attempting to flee he may bring him/her in to jail, revoke the bond, and surrender the client.
admit v. 1) to state something is true in answering a complaint filed in a lawsuit. The defendant will admit or deny each allegation in his or her answer filed with the court. If he or she agrees and states that he/she did what he/she is accused of, then the allegation need not be proved in trial. 2) in criminal law, to agree a fact is true or confess guilt. 3) to allow as evidence in a trial, as the judge says: "Exhibit D, the letter, is admitted."
adopt v. 1) to take on the relationship of parent to child of another person, particularly (but not necessarily) a minor, by official legal action. 2) to accept or make use of, such as to adopt another party's argument in a lawsuit.
adoption n. the taking of a child into one's family, creating a parent to child relationship, and giving him or her all the rights and privileges of one's own child, including the right to inherit as if the child were the adopter's natural child. The adoption procedure varies depending on whether the child comes through an agency which handles adoptions or comes from a stranger or a relative, and on the age of the child and the adoptive parent or parents. The hopeful adoptive parent must file a petition, which may be handled by the adoption agency. Natural parents must either give binding written permission for the adoption or have abandoned the child for a lengthy period of time. An investigation will be made by a county office (probation or family services) as to the future parents' suitability to adoption, their relationship status, their home situation, and their health, as well as the best interests of the child. If the child is old enough to understand the procedure he or she may have a say in the adoption. Finally there is a hearing before a local court judge (called "surrogate" in some states) and an adoption order made. In many states a new birth certificate can be issued, with the adoptive parents listed as the parents. If there is an adoption of an adult, the adopting adult usually must be several years older, based on the state law. In recent years, there has been much controversy over adoption by single parents, including gays and lesbians, with the tendency toward allowing such adoptions, provided all other criteria beneficial to the child are met.
adultery n. consensual sexual relations when one of the participants is legally married to another.
advance n. a payment which is made before it is legally due, such as before shipment is made, a sale is completed, a book is completed by the author, or a note is due to be paid.
advancement n. a gift made by a person to one of his or her children or heirs (a presumptive heir since an heir is only determined on the date of death) in anticipation of a gift from the still-living parent's potential estate as an advance on one's inheritance. Example: Sibin John is going to leave his son Rs 1,00,000 under his will or a percentage of the estate on John's death. John gives the son Rs 50,000 with the intention that it would be deducted from the inheritance. The main problem is one of proof that the advanced sum was against the projected inheritance. A person making an advancement should leave a written statement about the advancement or get a signed receipt. Such gifts made shortly before death are more readily treated as an advancement than one made several years earlier.
adverse adj. clearly contrary, such as an adverse party being the one suing you. An adverse interest in real property is a claim against the property, such as an easement.
adverse interest n. a right or concern that is contrary to the interest or claim of another.
adverse party n. the opposite side in a lawsuit. Sometimes when there are numerous parties and cross-complaints, parties may be adverse to each other on some issues and in agreement on other matters. Two beneficiaries of a person who has died may join together to claim a will was valid, but fight each other over the assets of the dead person's estate if the court rules the will was legal.
adverse possession n. a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exists. This can arise when a rancher fences in a parcel contending he was to get title from some prior owner, and then grazes cattle on the property for many years without objection by the title holder. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period are evidence of adverse possession but cannot be used by a land grabber with no claim to title other than possession.
adverse witness n. a witness in a trial who is found by the judge to be adverse to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his/her client. When the attorney calling the witness finds that answers are contrary to the legal position of his/her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be "adverse" or "hostile." If the judge declares the witness to be adverse (i.e. hostile) then the attorney may ask "leading" questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition.
advisory opinion n. an opinion stated by a judge or a court upon the request of a legislative body or government agency. An advisory opinion has no force of law but is given as a matter of courtesy. A private citizen cannot get an advisory ruling from a court and can only get rulings in an actual lawsuit.
affiant n. a person who signs an affidavit and swears to its truth before a notary public or some person authorized to take oaths, like a County Clerk.
affidavit n. 1) any written document in which the signer swears under oath before a notary public or someone authorized to take oaths , that the statements in the document are true. 2) a declaration under penalty of perjury, which does not require the oath-taking before a notary, is the equivalent of an affidavit.
affirm v. what an appeals court does if it agrees with and confirms a lower court's decision.
affirmative action n. the process of a business or governmental agency in which it gives special rights of hiring or advancement to ethnic minorities to make up for past discrimination against that minority. Affirmative action has been the subject of legal battles on the basis that it is reverse discrimination against Caucasians, but in most challenges to affirmative action the programs have been upheld.
affirmative defense n. part of an answer to a charge or complaint in which a defendant takes the offense and responds to the allegations with his/her own charges, which are called "affirmative defenses." These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the "boilerplate" (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.
affix v. 1) to attach something to real estate in a permanent way, including planting trees and shrubs, constructing a building, or adding to existing improvements. The key is that affixed items are permanent and cannot be picked up and moved away like a washing machine. 2) to sign or seal, as affix a signature or a seal.
after-acquired property n. 1) personal or real property acquired by a debtor after he/she has agreed that all his/her property secures a debt. Thus, the new property also becomes security for the debt. This includes improvements to real property which is security on a deed of trust or mortgage and personal property pledged in a security agreement 2) in bankruptcy, property acquired by the bankrupt person after he/she has filed papers to be declared bankrupt. This after-acquired property is not included in the assets which may be used to pay any debts which existed at the time of bankruptcy filing.
after-acquired title n. title to property acquired after the owner attempts to sell or transfer the title to another person before he/she actually got legal title. When the title is acquired by the seller in this paper shuffle, title automatically goes to the person to whom it was sold, passing through the person who acquired title "like a dose of salts" on its way to the new purchaser. Example: John signs, acknowledges, and records a deed of the ranch to Sam, but John has not yet received title from the estate of his late father. When John gets title from his father's estate and records it, the after-acquired title goes automatically to Sam.
after-discovered evidence n. evidence found by a losing party after a trial has been completed and judgment (or criminal conviction) given, also called newly-discovered evidence. If the evidence absolutely could not have been discovered at the time of trial, it may be considered on a motion for a new trial.
age discrimination n. an employer's unfair treatment of a current or potential employee. The claimant's problem is proof of age discrimination, but employers should beware. Even flight attendants in their late 30s have proved that there was age discrimination in replacing them with younger, "more attractive" women.
age of consent n. the age at which a person is responsible for his/her own actions (including the capacity to enter into a contract which is enforceable by the other party), for damages for negligence or intentional wrongs without a parent being liable and for punishment as an adult for a crime.
agency n. the relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. "Agency" may arise when an employer (principal) and employee (agent) ask someone to make a delivery or name someone as an agent in a contract. The basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent in the scope of employment when he/she ran down the little child, got drunk and punched someone, or sold impure wheat? There is also the problem of whether the principal acted in such a way as to make others believe someone was his agent-this is known as "apparent" or "ostensible" authority. When someone who is or is not an employee uses company business cards, finance documents, or a truck with the company logo, such use gives apparent authority as an agent.
agent n. a person who is authorized to act for another (the agent's principal) through employment, by contract or apparent authority. The importance is that the agent can bind the principal by contract or create liability if he/she causes injury while in the scope of the agency. Who is an agent and what is his/her authority are often difficult and crucial factual issues.
aggravated assault n. the crime of physically attacking another person which results in serious bodily harm and/or is made with a deadly or dangerous weapon such as a gun, knife, sword, ax or blunt instrument. Aggravated assault is usually a felony punishable by a term in state prison.
agreed statement n. occasionally the two parties on opposite sides of a lawsuit or on an appeal from a trial judgment will agree upon certain facts and sign a statement to be used in court for that purpose. Agreed statements are only used when the only remaining dispute boils down to a question of law and legal argument and not of the actual facts.
agreement 1) n. any meeting of the minds, even without legal obligation. 2) in law, another name for a contract including all the elements of a legal contract: offer, acceptance, and consideration (payment or performance), based on specific terms.
aid and abet v. help commit a crime. A lawyer redundancy since abet means aid, which lends credence to the old rumor that lawyers used to be paid by the word.
aleatory adj. uncertain; usually applied to insurance contracts in which payment is dependent on the occurrence of a contingent event, such as injury to the insured person in an accident or fire damage to his insured building.
alias n. 1) a name used other than the given name of a person or reference to that other name, which may not be an attempt to hide his/her identity (such as initials or a maiden name).
alibi n. an excuse used by a person accused or suspected of a crime. In the original Latin it means "in another place," which has to be the ultimate alibi.
alien 1) n. a person who is not a citizen of the country. 2) in India any person born in another country to parents who are not Indians and who has not become a naturalized citizen. There are resident aliens officially permitted to live in the country and illegal aliens who have sneaked into the country or stayed beyond the time allowed on a visa. 3) v. to convey title to property.
alienation n. the transfer of title to real property, voluntarily and completely. It does not apply to interests other than title, such as a mortgage.
alienation of affections n. convincing a wife to leave her husband, often for another man, causing the husband to lose conjugal relations.
alimony n. support paid by one ex-spouse to the other as ordered by a court in a divorce case. Usually it is paid by the male to his ex, but in some cases a wealthy woman may have to pay her husband, or, in same-sex relationships the "breadwinner" may pay to support his/her stay-at-home former partner. Failure to pay ordered alimony can result in contempt of court citations and even jail time. The level of alimony can be determined by written agreement and submitted to the court for a stipulated order. Income tax-wise, alimony is deductible as an expense for the payer and charged as income to the recipient. Child support is not alimony.
aliquot (al-ee-kwoh) adj. a definite fractional share, usually applied when dividing and distributing a dead person's estate or trust assets.
all the estate i own n. a phrase from a poorly drafted will which means the possessions owned by the deceased at the moment of death, not when the will was written.
allegation n. a statement of claimed fact contained in a complaint (a written pleading filed to begin a lawsuit), a criminal charge, or an affirmative defense (part of the written answer to a complaint). Until each statement is proved it is only an allegation. Some allegations are made "on information and belief" if the person making the statement is not sure of a fact.
allege v. to claim a fact is true, commonly in a complaint which is filed to commence a lawsuit, in an "affirmative defense" to a complaint, in a criminal charge of the commission of a crime or any claim.
alluvion n. an increase in one's land from soil deposited on the shoreline by natural action of a stream, river, bay or ocean.
alter ego n. a corporation, organization or other entity set up to provide a legal shield for the person actually controlling the operation. Proving that such an organization is a cover or alter ego for the real defendant breaks down that protection, but it can be difficult to prove complete control by an individual. In the case of corporations, proving one is an alter ego is one way of "piercing the corporate veil." In a lawsuit complaint, it might be stated (pleaded) that "the ABC Corporation was the alter ego of Joseph John."
alternative pleading n. a legal fiction in which a party to a lawsuit or a defendant charged with a crime can plead two ways which are inconsistent with each other. Examples: a) someone hurt in an accident can plead that the other party was negligent or ran into him intentionally. b) "not guilty" and "not guilty by reason of insanity" (in which there is the implied admission that the defendant committed the act).
ambiguity n. when language has more than one meaning. If the ambiguity is obvious it is called "patent," and if there is a hidden ambiguity it is called "latent." If there is an ambiguity, and the original writer cannot effectively explain it, then the ambiguity will be decided in the light most favorable to the other party.
amend v. to alter or change by adding, subtracting, or substituting. One can amend a statute, a contract or a written pleading filed in a law -suit. The change is usually called an amendment. The legislature will amend a statute, the parties to a contract can amend it, and a party to a lawsuit can amend his or her own pleading. A contract can be amended only by the parties participating in the contract. If the contract is written, it can be amended only in writing (although, curiously, an oral contract can be amended orally or in writing). A pleading can be amended before it is served on the other party, by stipulation or agreement in court between the parties (actually usually between their attorneys), or upon order of the court.
amended complaint n. what results when the party suing (plaintiff or petitioner) changes the complaint he/she has filed. It must be in writing, and can be done before the complaint is served on any defendant, by agreement between the parties (usually their lawyers), or upon order of the court. Complaints are amended to correct facts, add new causes of action (bases for the lawsuit), substitute discovered names for persons sued as "Does," or to properly plead a cause of action (the legal basis for suing) after the court has found the complaint inadequate.
amended pleading n. a changed written pleading in a lawsuit, including complaint or answer to a complaint. Pleadings are amended for various reasons, including correcting facts, adding causes of action (legal bases for a suit), adding affirmative defenses, or responding to a court's finding that a pleading is inadequate as a matter of law. Amendments cannot be made willy-nilly, but only prior to being served, upon stipulation by the parties or order of the court.
american depository receipt n. called in the banking trade an ADR, it is a receipt issued by American banks to Americans as a substitute for actual ownership of shares of foreign stocks. ADRs are traded on American stock exchanges and over-the-counter easily without the necessity of trading the foreign shares themselves.
amicus curiae n. Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants.
amnesty n. a blanket abolition of an offense by the government, with the legal result that those charged or convicted have the charge or conviction wiped out.
amortization n. a periodic payment plan to pay a debt in which the interest and a portion of the principal are included in each payment by an established mathematical formula. Most commonly it is used on a real property loan or financing of an automobile or other purchase. By figuring the interest on the declining principal and the number of years of the loan, the monthly payments are averaged and determined. Since the main portion of the early payments is interest, the principal does not decline rapidly until the latter stages of the loan term. If the amortization leaves a principal balance at the close of the time for repayment, this final lump sum is called a "balloon" payment.
and conj. this little word is important in law, particularly when compared to or. Most commonly it determines if one or both owners have to sign documents. Example: when an automobile registration reads that the title is for Anil and Jaya Oswald, then both must sign off upon sale, but if it says "or" then only one will have to sign; if Anil dies then the title is automatically in Jaya's name if it reads "or," but not if it reads "and."
annuity n. 1) an annual sum paid from a policy or gift. 2) short for a purchased annuity policy which will pay dividends to the owner regularly for years or for life.
answer n. in law, a written pleading filed by a defendant to respond to a complaint in a lawsuit filed and served upon that defendant. An answer generally responds to each allegation in the complaint by denying or admitting it, or admitting in part and denying in part. The answer may also com- prise "affirmative defenses" including allegations which contradict the complaint or contain legal theories (like "unclean hands," "contributory negligence" or "anticipatory breach") which are intended to derail the claims in the complaint. Sometimes the answer is in the form of a "general denial," denying everything. The answer must be in typed form, follow specific rules of pleading established by law and the courts, and be filed with the court and served on the defendant within a specific statutory time (e.g. 20 or 30 days after service of the complaint). If the complaint is verified as under penalty of perjury, the answer must be also. There is a fairly steep filing fee for each defendant filing an answer. In short, if served a complaint, one should see a lawyer as soon as possible to prevent a default judgment.
antenuptial (prenuptial) agreement n. 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 are fairly common if either or both parties have substantial assets, children from a previous marriage, potential large inheritances, high incomes, or have been "taken" by a prior spouse.
anticipatory breach n. when a party to a contract repudiates (reneges on) his/her obligations under that contract before fully performing those obligations. This can be by word ("I won't deliver the rest of the goods" or "I can't make any more payments") or by action (not showing up with goods or stopping payments). The result is that the other party does not have to perform his/her obligations and cannot be liable for not doing so. This is often a defense to a lawsuit for payment or performance on a contract. One cannot repudiate his obligations and demand that the other person perform.
antitrust laws n. acts adopted to outlaw or restrict business practices considered to be monopolistic.
apparent authority n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been given authority by the principal, then the principal is stuck for the acts of anyone he allows to appear to have authority. This "apparent authority" can be given by providing Anand Mehta (who has no authority to contract) with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Anand had authority to act for the company. Then the contract or the price quote given by Anand and accepted by a third party is binding on the company. Apparent authority may also arise when Anand's works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss.
appeal 1) v. to ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling. After the lower court judgment is entered into the record, the losing party (appellant) must file a notice of appeal, request transcripts or other records of the trial court (or agree with the other party on an "agreed-upon statement"), file briefs with the appeals court citing legal reasons for over-turning the ruling, and show how those reasons (usually other appeal decisions called "precedents") relate to the facts in the case. No new evidence is admitted on appeal, for it is strictly a legal argument. The other party (Respondent or appellee) usually files a responsive brief countering these arguments. The appellant then can counter that response with a final brief. If desired by either party, they will then argue the case before the appeals court, which may sustain the original ruling, reverse it, send it back to the trial court, or reverse in part and confirm in part. 2) n. the name for the process of appealing, as in "he has filed an appeal."
appear v. for a party or an attorney to show up in court.
appearance n. the act of a party or an attorney showing up in court. Once it is established that an attorney represents the person (by filing a notice of appearance or representation or actually appearing), the lawyer may make an appearance for the client on some matters without the client being present. An attorney makes a "special appearance" when he/she is appearing only for the purpose of what is before the court that day-such as arraignment of one charged with a crime. If an attorney makes a "general appearance" he or she is telling the court that the client is definitely his or hers and the court can proceed. In the future that attorney will be required to represent the client. Some appearances are voluntary, but most are compulsory and are by notice to the party or, if represented, to his/her attorney.
appellant n. the party who appeals a trial court decision he/she/it has lost.
appellate court n. a court of appeals which hears appeals from lower court decisions. The term is often used in legal briefs to describe a court of appeals.
appellee n. in some jurisdictions the name used for the party who has won at the trial court level, but the loser (appellant) has appealed the decision to a higher court. Thus the appellee has to file a response to the legal brief filed by the appellant. In many jurisdictions the appellee is called the "respondent."
appraise v. to professionally evaluate the value of property including real estate, jewelry, antique furniture, securities, or in certain cases the loss of value (or cost of replacement) due to damage. This may be necessary in determining the value of the estate of someone who has died, particularly when the items must be divided among the beneficiaries, to determine the value of assets for insurance coverage, to divide partnership assets, set a sales price, determine taxes, or make insurance claims.
appraiser n. a professional who makes appraisals of the value of property. Some specialize in real property, and others in other types of assets from rugs to rings. A careful, well-trained and practical