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Glossary

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d.b.a.
n. short for "doing business as," when a person or entity uses a business name instead of his/her/its own.

damages
n. the amount of money which a plaintiff (the person suing) may be awarded in a lawsuit. There are many types of damages. Special damages are those which actually were caused by the injury and include medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. The second basic area of damages are general damages, which are presumed to be a result of the other party's actions, but are subjective both in nature and determination of value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, loss of companionship, loss of reputation (in a libel suit, for example), humiliation from scars, loss of anticipated business and other harm. The third major form of damage is exemplary (or punitive) damages, which combines punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff. On occasion punitive damages can be greater than the actual damages, as, for example, in a sexual harassment case or fraudulent schemes. Although often asked for, they are seldom awarded. Nominal damages are those given when the actual harm is minor and an award is warranted under the circumstances. Liquidated damages are those pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract.

dangerous
adj. unsafe, hazardous, fraught with risk. It can be negligence for which a lawsuit can be brought if damage results from creating or leaving unguarded, a dangerous condition which can cause harm to others, a dangerous instrumentality (any device which can cause harm, including explosives and poisonous substances) or dangerous weapon which is inherently hazardous to anyone handling it or within the weapon's range.

dangerous weapon
n. any gun, knife, sword, crossbow, slingshot or other weapon which can cause bodily harm to people (even though used for target shooting). If a person is harmed by such a weapon that is left unguarded, improperly used, or causes harm even to a person who plays with it without permission, the victim or his/her survivors can sue for negligence and possibly win a judgment.

date rape
n. forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted the acts by verbal refusals, denials or pleas to stop, and/or physical resistance. The fact that the parties knew each other or that the woman willingly accompanied the man are not legal defenses to a charge of rape.

day in court
n. popular term for everyone's opportunity to bring a lawsuit or use the court system if he/she thinks he/she has a gripe which can be resolved in court.

de facto
adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.

de facto corporation
n. a company which operates as if it were a corporation although it has not completed the legal steps to become incorporated or has been dissolved or suspended but continues to function. The court temporarily treats the corporation as if it were legal in order to avoid unfairness to people who thought the corporation was legal.

de jure
adj. Latin for "lawful," as distinguished from de facto (actual).

de jure corporation
n. a corporation in good standing under the law, as compared to a de facto corporation which is acting while not fulfilling legal requirements.

de minimis
adj. (dee-minnie-miss) Latin for "of minimum importance" or "trifling." Essentially it refers to something or a difference that is so little, small, minuscule or tiny that the law does not refer to it and will not consider it.

de novo
adj. Latin for "anew," which means starting over, as in a trial de novo. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, de novo.

deadly weapon
n. any weapon which can kill. This includes not only weapons which are intended to do harm like a gun or knife, but also blunt instruments like clubs, an automobile or any object which actually causes death. This becomes important when trying to prove criminal charges brought for assault with a deadly weapon.

dealer
n. anyone who buys goods or property for the purpose of selling as a business. It is important to distinguish a dealer from someone who occasionally buys and occasionally sells, since dealers may need to obtain business licenses, register with the sales tax authorities, and may not defer capital gains taxes by buying other property.

death penalty
n. the sentence of execution for murder and some other capital crimes.

death row
n. nickname for that portion of a prison in which prisoners are housed who are under death sentences and are awaiting appeals and/or potential execution.

debenture
n. a form of bond certificate issued by a corporation to show funds invested, repayment of which is guaranteed by the overall capital value of the company under certain specific terms. Thus, it is more secure than shares of stock or general bonds.

debt
n. 1) a sum of money due to another. 2) obligation to deliver particular goods or perform certain acts according to an agreement, such as returning a favor. 3) a cause of action in a lawsuit for a particular amount owed.

debtor
n. 1) a person or entity that owes an amount of money or favor to another. 2) in bankruptcy, the party whose affairs are the subject of the proceedings is called the "debtor."

deceased
1) adj. dead. 2) n. the person who has died, as used in the handling of his/her estate, probate of will and other proceedings after death, or in reference to the victim of a homicide (as: "The deceased had been shot three times") In probate law the more genteel word is the "decedent".

decedent
n. the person who has died, sometimes referred to as the "deceased".

deceit
n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.

deception
n. the act of misleading another through intentionally false statements or fraudulent actions.

decide
v. for a judge, arbitrator, court of appeals or other magistrate or tribunal to reach a determination (decision) by choosing what is right and wrong according to the law as he/she sees it.

decision
n. judgment, decree or determination of findings of fact and/or of law by a judge, arbitrator, court, governmental agency or other official tribunal (court).

declarant
n. the person making a statement, usually written and signed by that person, under "penalty of perjury" pursuant to the laws of the state in which the statement, called a declaration, is made. The declaration is more commonly used than the affidavit, which is similar to a declaration but requires taking an oath to swear to the truth attested to (certified in writing) by a notary public. In theory, a declarant who knowingly does not tell the truth would be subject to the criminal charge of perjury. Such violations are seldom pursued.

declaration
n. 1) any statement made, particularly in writing. 2) a written statement made "under penalty of perjury" and signed by the declarant, which is the modern substitute for the more cumbersome affidavit, which requires swearing to its truth before a notary public.

declaration of mailing
n. a form stating that a particular document has been mailed to a particular person or persons (such as opposing attorneys or the clerk of the court) and declaring the truth of that fact "under penalty of perjury", and signed by the person in the law office responsible for mailing it. This is almost always required to be attached to filed documents so that the court is assured it has been sent to the other party.

declaration of trust
n. the document signed by a trustor (settlor) creating a trust into which assets are placed, a trustee is appointed to manage the trust (who may be the party who created the trust), the powers and duties of management of the principal and profits of the trust are stated, and distribution of profits and principal is spelled out.

declaratory judgment
n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion", it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it.

declaratory relief
n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.

decree
n. in general, synonymous with judgment. However, in some areas of the law, the term decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law and in equity (court rulings ordering or prohibiting certain acts). Thus, there may be references to a final or interlocutory decree of divorce, final decree of distribution of a dead person's estate, etc.

decriminalization
n. the repeal or amendment of statutes which made certain acts criminal, so that those acts no longer are crimes subject to prosecution.

dedication
n. the giving of land by a private person or entity to the government, typically for a street, park or school site, as part of and a condition of a real estate development. The city (or other public body) must accept the dedication before it is complete. In many cases there are "dedicated" streets on old subdivision maps which were never officially accepted and, in effect, belong to no one. The adjoining property owners can sue for a judgment to give them the title to the unclaimed (unowned) street or property by a quiet title action or request abandonment by the government which did not accept the street or other property.

deduction
n. an expenditure which an income tax payer may subtract from gross (total) income to determine taxable income. This is not the same as an exemption, which is for one's marital status, blindness and number of dependents (e.g. children), which, added together, reduce the tax owed.

deed
1) n. the written document which transfers title (ownership) or an interest in real property to another person. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed by the grantor, who must then acknowledge before a notary public that he/she/it executed the deed. To complete the transfer (conveyance) the deed must be recorded in the office of the Recorder of Deeds. There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title. This is not to be confused with a deed of trust, which is a form of mortgage. 2) v. to transfer title by a written deed.

deed of trust
n. a document which pledges real property to secure a loan, used instead of a mortgage. The property is deeded by the title holder (trustor) to a trustee (often a title or escrow company) which holds the title in trust for the beneficiary (the lender of the money). When the loan is fully paid, the trustor requests the trustee to return the title by reconveyance. If the loan becomes delinquent the beneficiary can file a notice of default and, if the loan is not brought current, can demand that the trustee begin foreclosure on the property so that the beneficiary may either be paid or obtain title.

defalcation
v. from Latin for "deduction," withholding or misappropriating funds held for another, particularly by a public official, or failing to make a proper accounting.

defamation
n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one's occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.

default
1) n. failure to respond to a summons and complaint served on a party in the time required by law. If a legal answer or other response is not filed, the suing party (plaintiff) can request a default be entered in the record, which terminates the rights of the defaulting party to defend the case. 2) the failure to make a payment when due, which can lead to a notice of default and the start of foreclosure proceedings if the debt is secured by a mortgage or deed of trust. 3) v. to fail to file an answer or other response to a summons and complaint, or fail to make a payment when due.

default judgment
n. if a defendant in a lawsuit fails to respond to a complaint in the time set by law, then the plaintiff (suer) can request that the default (failure) be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment. If the complaint was for a specific amount of money owed on a note, other money due, or a specific contract price (or if the amount due is easy to calculate) then the clerk of the court can enter a default judgment. If proof of damages or other relief is necessary, a hearing will be held in which the judge determines terms of the default judgment. In either case the defendant cannot speak for himself/herself. A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.

defeasance
n. an antiquated word for a document which terminates the effect of an existing writing such as a deed, bond or contract if some event occurs.

defect
n. an imperfection, quite often so great that the machinery or written document cannot be used. A car that will not run or has faulty brakes has a defect, and so does a deed in which a party who signed the deed to give over property did not have title to the property described. There are also minor defects, like scratches that only lessen value but do not make an object useless.

defective
adj. not being capable of fulfilling its function, ranging from a deed of land to a piece of equipment.

defective title
n. an apparent title to real property which fails because a claimed prior holder of the title did not have title, or there is a faulty description of the property or some other "cloud" over it, which may or may not be apparent from reading the deed.

defendant
n. 1) the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution. In some types of cases (such as divorce) a defendant may be called a respondent.

defense
n. 1) a general term for the effort of an attorney representing a defendant during trial and in pre-trial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) a response to a complaint, called an affirmative defense, to counter, defeat or remove all or a part of the contentions of the plaintiff.

defense attorney
n. 1) the attorney representing the defendant in a lawsuit or criminal prosecution. 2) a lawyer who regularly represents defendants who have insurance and who is chosen by the insurance company. 3) a lawyer who regularly represents criminal defendants. Attorneys who regularly represent clients in actions for damages are often called "plaintiff's attorneys".

deficiency judgment
n. a judgment for an amount not covered by the value of security put up for a loan or installment payments. The right to a deficiency judgment is often written into a lease or installment contract on a vehicle. There is a danger that the sale of a repossessed vehicle will be at a wholesale price or to a friend at an auction, leaving the debtor holding the bag for the difference between the sale price and remainder due on the lease or contract.

deficit
n. a shortage, less than is due, or in the case of a business or government budget, more expenditures than income.

defraud
v. to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another.

degree of kinship
n. the level of relationship between two persons related by blood, such as parent to child, one sibling to another, grandparent to grandchild or uncle to nephew, first cousins, etc., calculated as one degree for each step from a common ancestor. This may become important when determining the heirs of an estate when there is no will.

delegate
1) v. to assign authority to another. 2) n. a person chosen to attend a convention, conference or meeting on behalf of an organization, constituency, interest group or business.

deleterious
adj. harmful.

deliberate
1) adj. (dee-lib-er-et) done with care and intention or premeditated. 2) v. (dee-lib-er-ate) to consider the facts, the laws and/or other matters, particularly by members of a jury, a panel of judges or by any group including a legislature.

deliberation
n. the act of considering, discussing and, hopefully, reaching a conclusion, such as a jury's discussions, voting and decision-making.

delinquent
1) adj. not paid in full amount or on time. 2) n. short for an underage violator of the law as in juvenile delinquent.

deliver
v. to actually hand an object, money or document to another.

delivery
n. the actual handing to another of an object, money or document (such as a deed) to complete a transaction. The delivery of a deed transfers title (provided it is then recorded), and the delivery of goods makes a sale complete and final if payment has been made. Symbolic or constructive delivery (depositing something with an agent or third person) falls short of completion unless agreed to by the parties.

demand
1) v. to claim as a need, requirement or entitlement, as in to demand payment or performance under a contract. In a lawsuit for payment of a debt or performance of an act, the party suing (plaintiff) should allege that he/she/it demanded payment or performance. 2) n. a claim, such as an unqualified request for payment or other action. 3) the amount requested by a plaintiff (usually in writing) during negotiations to settle a lawsuit. 4) adj. referring to a note payable at any time a request to pay is made.

demand note
n. a promissory note which is payable any time the holder of the note makes a request. This is different from a note due at a specific time, upon occurrence of an event, or by installments.

demise
1) v. an old-fashioned expression meaning to lease or transfer (convey) real property for years or life, but not beyond that. 2) n. the deed that conveys real property only for years or life. 3) n. death. 4) n. failure.

demonstrative evidence
n. actual objects, pictures, models and other devices which are supposedly intended to clarify the facts for the judge and jury: how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime. Many of these are not supposed to be actual evidence, but "aids" to understanding. A model of a knee or a photograph of an accident scene obviously helps, but color photos of an operation in progress or a bullet-riddled body can excite the passions of a jury. The borderline balance between legitimate aids and evidence intended to inflame a juror's emotions is in the hands of the trial judge.

demurrer
n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint.

denial
n. a statement in the defendant's answer to a complaint in a lawsuit that an allegation (claim of fact) is not true. If a defendant denies all allegations it is called a general denial. In answering, the defendant is limited to admitting, denying or denying on the basis he/she/it has no information to affirm or deny. The defendant may also state affirmative defenses.

dependent
1) n. a person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce his/her income taxes. 2) adj. requiring an event to occur, as the fulfillment of a contract is dependent on the expert being available.

depletion
n. when a natural resource (particularly oil) is being used up. The annual amount of depletion may, ironically, provide a tax deduction for the company exploiting the resource because if the resource they are exploiting runs out, they will no longer be able to make money from it.

deponent
n. a person testifying (stating answers in response to questions) at a deposition.

deportation
n. the act of expelling a foreigner from a country, usually because he/she has a criminal record, committed a crime, lied on his/her entry documents, is in the country illegally or his/her presence is deemed to be against the best interests of the nation. Deportation is usually to the country of origin.

depose
v. 1) to ask questions of a witness or a party to a lawsuit at a deposition (testimony outside of the courtroom before trial). 2) to testify at a deposition.

deposition
n. the taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery (investigation), set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpena must be served on him/her if he/she is reluctant to testify. The testimony is taken down by the court reporter, who will prepare a transcript if requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available.

depreciate
v. in accounting, to reduce the value of an asset each year theoretically on the basis that the assets (such as equipment, vehicles or structures) will eventually become obsolete, worn out and of little value.

depreciation
n. the actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a business deduction for income tax reduction, spread out over the expected useful life of the asset or at a higher rate in the early years of use.

depreciation reserve
n. a business fund in which the probable replacement cost of equipment is accumulated each year over the life of the asset, so it can be replaced readily when it becomes obsolete and totally depreciated.

derelict
n. something or someone who is abandoned, such as a ship left to drift at sea or a homeless person ignored by family and society.

dereliction
n. 1) abandoning possession, which is sometimes used in the phrase "dereliction of duty." It includes abandoning a ship, which then becomes a "derelict" which salvagers can board. 2) an old expression for increase of land due to gradual lowering of a tide line (which means the land is building up).

derivative action
n. a lawsuit brought by a corporation shareholder against the directors, management and/or other shareholders of the corporation, for a failure by management. In effect, the suing shareholder claims to be acting on behalf of the corporation, because the directors and management are failing to exercise their authority for the benefit of the company and all of its shareholders. This type of suit often arises when there is fraud, mismanagement, self-dealing and/or dishonesty which are being ignored by officers and the board of directors of a corporation.

descent
n. the rules of inheritance established by law in cases in which there is no will naming the persons to receive the possessions of a person who has died. Depending on which relatives survive, the estate may go all or in part to the surviving spouse, and down the line from a parent to children (or if none survive, to grandchildren), or up to surviving parents, or collaterally to brothers and sisters. If there are no survivors among those relatives, then aunts, uncles, cousins, nieces and nephews may inherit, depending on their degree of kinship (closeness of family relationship).

descent and distribution
n. the system of laws which determine who will inherit and divide the possessions of a person who has died without a will (intestate).

desert
v. to intentionally abandon a person or thing.

desertion
n. the act of abandoning, particularly leaving one's spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues.

determinable
adj. defining something which may be terminated upon the occurrence of a particular event, used primarily to describe an interest in real property, such as a fee simple determinable, in which property is deeded to another, but may revert to the giver or go to a third person if, as examples, the receiver (grantee) marries, divorces or no longer lives in the house.

devise
1) v. an old-fashioned word for giving real property by a will, as distinguished from words for giving personal property. 2) n. the gift of real property by will.

devisee
n. a person who receives a gift of real property by a will. The distinction between gifts of real property and personal property is actually blurred, so terms like beneficiary or legatee cover those receiving any gift by a will.

devolution
n. 1) the transfer of title to real property by the automatic operation of law. 2) n. the transfer of rights, powers or an office (public or private) from one person or government to another.

devolve
v. when property is automatically transferred from one party to another by operation of law, without any act required of either past or present owner. The most common example is passing of title to the natural heir of a person upon his/her death. 2) passing of authority to a vice president on the death of a president. 3) to give a territory sovereign rights to run itself.

dicta
n. the plural of dictum.

dictum
n. Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)".

diligence
n. reasonable care or attention to a matter, which is good enough to avoid a claim of negligence, or is a fair attempt (as in due diligence in a process server's attempt to locate someone).

diminished capacity
n. essentially a psychological term which has found its way into criminal trials. A contention of diminished capacity means that although the accused was not insane, due to emotional distress, physical condition or other factors he/she could not fully comprehend the nature of the criminal act he/she is accused of committing, particularly murder or attempted murder. It is raised by the defense in attempts to remove the element of premeditation or criminal intent and thus obtain a conviction for a lesser crime, such as manslaughter instead of murder. While the theory has some legitimacy, at times juries have been overly impressed by psychiatric testimony.

diminution in value
n. in the event of a breach of contract, the decrease in value of property due to the failure to construct something exactly as specified in the contract.

direct and proximate cause
n. the immediate reason of damage caused by an act or omission (negligence); the negligence must have caused the damages, without intervention of another party, and cannot be remote in time or place. Example (in a complaint): "Defendant's negligent acts (speeding and losing control of his vehicle) directly and proximately caused plaintiff's injuries".

direct evidence
n. real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.

direct examination
n. the first questioning of a witness during a trial or deposition (testimony out of court), as distinguished from cross-examination by opposing attorneys and redirect examination when the witness is again questioned by the original attorney.

directed verdict
n. a verdict by a jury based on the specific direction by a trial judge that they must bring in that verdict because one of the parties has not proved his/her/its case as a matter of law (failed to present credible testimony on some key element of the claim or of the defense). A judge in a criminal case may direct a verdict of acquittal on the basis that the prosecution has not proved its case, but the judge may not direct a verdict of guilty, since that would deprive the accused of the constitutional right to a jury trial.

director
n. a member of the governing board of a corporation or association elected or re-elected at annual meetings of the shareholders or members. As a group the directors are responsible for the policy making, but not day-to-day operation, which is handled by officers and other managers. In some cases, a director may also be an officer, but need not be a shareholder.Often lay people dealing with corporations confuse directors with officers. Officers are employees hired by the board of directors to manage the business.

disability
n. 1) a condition which prevents one from performing all usual physical or mental functions. This usually means a permanent state, like blindness, but in some cases is temporary. In recent times society and the law have dictated that people with disabilities should be accommodated and encouraged to operate to their maximum potential and have the right to participate in societal and governmental activity without impediments. 2) a legal impediment, including being a minor who cannot make a contract, or being insane or incompetent.

disbar
v. to remove an attorney from the list of practicing attorneys for improper conduct. This penalty is usually invoked by the State Bar Association (if so empowered) and will automatically prohibit the attorney from practicing law before the courts in that state or from giving advice for a fee to clients. The causes of permanent disbarment include conviction of a felony involving "moral turpitude", forgery, fraud, a history of dishonesty, consistent lack of attention to clients, abandoning several clients, alcoholism or drug abuse which affect the attorney's ability to practice, theft of funds, or any pattern of violation of the professional code of ethics. Singular incidents (other than felony conviction) will generally result in reprimand, suspension and/or a requirement that the lawyer correct his/her conduct.

disbarment
n. the ultimate discipline of an attorney, which is taking away his/her license to practice law, often for life. Disbarment only comes after investigation and opportunities for the attorney to explain his/her improper conduct. Sometimes an attorney may be reinstated upon a showing of rehabilitation and/or cure.

discharge
v. 1) to perform one's duties. 2) to dismiss someone from a job. 3) to pay one's debts or obligations. 4) in bankruptcy, to issue an order of the court that all debts (with certain statutory exceptions) are forgiven and need not be paid.

discharge in bankruptcy
n. an order given by the bankruptcy judge, at the conclusion of all legal steps in processing a bankrupt person's assets and debts, which forgives those remaining debts which cannot be paid, with certain exceptions. Debts for fraudulent or illegal actions, alimony and child support and taxes are not dischargeable and remain owed (but often not collectible if the bankrupt person has nothing). A discharge in bankruptcy is bad news for unsecured creditors.

disclaimer
n. 1) denial or renunciation by someone of his/her title to property. 2) denial of responsibility for another's claim, such as an insurance company's refusal to admit coverage under an insurance policy. 3) statement of non-responsibility, as is made when dissolving a partnership or business.

discount
n. the payment of less than the full amount due on a promissory note or price for goods or services. Usually a discount is by agreement and includes the common situation in which a holder of a long-term promissory note or material goods will sell it/them for less than face value in order to get cash now-the difference is the discount.

discovery
n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

discretion
n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: a) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; b) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; c) a Governor may have discretion to grant a pardon; or d) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.

discrimination
n. unequal treatment of persons, for a reason which has nothing to do with legal rights or ability. Laws prohibit discrimination in employment, availability of housing, rates of pay, right to promotion, educational opportunity, civil rights, and use of facilities based on race, nationality, creed, color, age, sex or sexual orientation. The rights to protest discrimination or enforce one's rights to equal treatment are provided in various laws, which allow for private lawsuits with the right to damages.

disfigure
v. to cause permanent change in a person's body, particularly by leaving visible scars which affect a person's appearance. In lawsuits or claims due to injuries caused by another's negligence or intentional actions, such scarring can add considerably to general damages.

dishonor
v. to refuse to pay the face amount of a cheque or the amount due on a promissory note

disinherit
v. to intentionally take actions to guarantee that a person who would normally inherit upon a party's death (wife, child or closest relative) would get nothing. Usually this is done by a provision in a will or codicil (amendment) to a will which states that a specific person is not to take anything," "no descendant of my hated brother shall take anything on account of my death"). It is not enough to merely ignore or not mention a child in a will since he/she may become a "pretermitted heir" (a child apparently forgotten).

disinheritance
n. the act of disinheriting.

disjunctive allegations
n. the attempt to claim in a civil lawsuit that one thing "or" another occurred, and in criminal charges that the accused committed one crime "or" another. Such complaints are disallowed because the defendant is entitled to know what he/she must defend.

dismiss
v. the ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff's lawsuit is terminated (thrown out) at that point without further evidence or testimony. This judgment may be made before, during or at the end of a trial, when the judge becomes convinced that the plaintiff has not and cannot prove his/her/its case. This can be based on the complaint failing to allege a cause of action, on a motion for summary judgment, plaintiff's opening statement of what will be proved, or on some development in the evidence by either side which bars judgment for the plaintiff. The judge may dismiss on his own or upon motion by the defendant. The plaintiff may voluntarily dismiss a cause of action before or during trial if the case is settled, if it is not provable or trial strategy dictates getting rid of a weak claim. A defendant may be "dismissed" from a lawsuit, meaning the suit is dropped against that party.

dismissal
n. 1) the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) a judge's ruling that a lawsuit or criminal charge is terminated. 3) an appeals court's act of dismissing an appeal, letting the lower court decision stand. 4) the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing the suit again if the defendant does not follow through on the terms of the settlement.

disorderly conduct
n. 1) actions that disturb others. 2) minor criminal offenses, such as public drunkenness, loitering, disturbing the peace, and loud threats or parties.

disorderly house
n. 1) polite term for house of prostitution. 2) place of illegal gambling.

disposing mind and memory
n. the mental ability to understand in general what one possesses and the persons who are the "natural objects of bounty" (wife and/or children), at the time of making a will.

disposition
n. the court's final determination of a lawsuit or criminal charge

dispossess
v. to eject someone from real property, either legally or by self-help

dissent
n. 1) the opinion of a judge of a court of appeals, including the Supreme Court, which disagrees with the majority opinion. Sometimes a dissent may eventually prevail as the law or society evolves. 2) stated disagreement with prevailing thought.

dissolution
n. modern, gentler sounding, term for divorce and symbolic of the no-fault, non-confrontational approach to dissolving a marriage.

dissolution of corporation
n. termination of a corporation, either a) voluntarily by resolution, paying debts, distributing assets and filing dissolution documents or b) by state suspension for not paying corporate taxes or some other action of the government.

distinguish
v. to argue that the rule in one appeals court decision does not apply to a particular case although there is an apparent similarity (i.e. it is "distinguished").

distress
1) n. the self-help taking of another's possessions in order to force payment of a claim, which is generally illegal without a court order. 2) adj. at lowest price due to negative circumstances.

distribute
v. 1) the dividing up of those assets of an estate or trust when someone has died according to the terms of the deceased's will or trust, or in absence of a will, according to the laws of descent and distribution. 2) division of profits or assets of a corporation or business.

distribution
n. the act of dividing up the assets of an estate or trust, or paying out profits or assets of a corporation or business according to the ownership percentages.

disturbing the peace
n. upsetting the quiet and good order particularly through loud noise, by fighting or other unsocial behavior which frightens or upsets people. It is a misdemeanor, punishable by fine or brief term in jail.

diversion
n. in criminal procedure, a system for giving a chance for a first- time criminal defendant in lesser crimes to make restitution for damage due to the crime, obtain treatment for alcohol or drug problems and/or counselling for antisocial or mentally unstable conduct. If the defendant cooperates and the diversion results in progress, the charges eventually may be dismissed. Usually diversion may not be granted for a second offense.

divestiture
n. the court-ordered or voluntary giving up of a possession or right, to prevent monopoly or other restraint of trade.

divestment
n. the act of stripping one's investment from an entity.

dividend
n. a portion of profit, usually based on the number of shares of stock in a corporation and the rate of distribution approved by the board of directors or management, that is paid to shareholders for each share they own. Dividends are not always paid in money, but can be paid in shares of stock, known as a stock dividend.

divorce
1) n. the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution) by one party. The substantive issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees.

dna
n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the famous "double helix") in the nucleus of each living cell, the combination of which determines each individual's hereditary characteristics. In law, the importance is the discovery that each person's DNA is different and is found in each living cell, so blood, hair, skin or any part of the body can be used to identify and distinguish an individual from all other people. DNA testing can result in proof of one's involvement or lack of involvement in a crime scene. While recent DNA tests have proved a convicted killer on death row did not commit a crime and resulted in his release, current debate concerns whether DNA evidence is scientifically certain enough to be admitted in trials. The trend is strongly in favor of admission.

docket
1) n. the cases on a court calendar. 2) n. brief notes, usually written by the court clerk, stating what action was taken that day in court. 3) v. to write down the name of a case to be put on calendar or make notes on action in court.

document
n. a popular generic word among lawyers for any paper with writing on it. Technically it could include a piece of wood with a will or message scratched on it.

documentary evidence
n. any document (paper) which is presented and allowed as evidence in a trial or hearing, as distinguished from oral testimony. However, the opposing attorney may object to its being admitted. In the first place, it must be proved by other evidence from a witness that the paper is genuine (called "laying a foundation"), as well as pass muster over the usual objections such as relevancy.

doing business
v. carrying on the normal activities of a corporation on a regular basis or with substantial contacts-not just an occasional shipment. This is important to determine if an out-of-state corporation is "doing business" in a state so that it can be served with a complaint, is subject to certain state taxes and/or must register as a "foreign" corporation operating within the state.

domestic partners
n. unmarried couples, living together in long-standing relationships, who may be entitled to some of the same benefits as married people, such as job-related health plans.

domestic relations
n. a polite term for the legal field of divorce, dissolution, annulment, child custody, child support and alimony.

domestic violence
n. the continuing crime and problem of the physical beating of a wife, girlfriend or children, usually by the woman's male partner (although it can also be female violence against a male). It is now recognized as an antisocial mental illness. Sometimes a woman's dependence, low self-esteem and fear of leaving cause her to endure this conduct or fail to protect a child. Prosecutors and police often face the problem that a battered woman will not press charges or testify due to fear, intimidation and misplaced "love". Increasingly domestic violence is attracting the sympathetic attention of law enforcement, the courts and community services, including shelters and protection for those in danger.

domicile
n. the place where a person has his/her permanent principal home to which he/she returns or intends to return.

dominant estate
n. in real estate law, the property retained when the owner splits off and conveys part of the property to another party but retains some rights such as an easement for access (a driveway) or utilities. The property sold off upon which there is the easement is called the servient estate. These are also called dominant tenement and servient tenement, respectively.

dominant tenement
n. See also: dominant estate

donation
n. gift. If made to a qualified non-profit charitable, religious, educational or public service organization, it may be deductible as a contribution in calculating income tax.

donative intent
n. conscious desire to make a gift, as distinguished from giving something for nothing by mistake or under pressure.

donee
n. a person or entity receiving an outright gift or donation.

donor
n. a person or entity making a gift or donation.

double jeopardy
n. placing someone on trial a second time for an offense for which he/she has been previously acquitted, even when new incriminating evidence has been unearthed.

double taxation
n. taxation of the same property for the same purpose twice in one year. This is generally prohibited if it occurs through such circumstances as transfer of property which has been taxed once and then the tax is imposed on a new owner. However, if all property in a jurisdiction is taxed twice in the same year, it is legal since it is not discriminatory or unfair.

dower
n. an old English common law right of a widow to one-third of her late husband's estate.

dowry
n. from the days when a groom expected to profit from a marriage, the money and personal property which a bride brings to her new husband which becomes his alone.

draft
1) n. a bill of exchange or check in which one party (including a bank) is directed by the party drafting (writing) the bill or check to take money from the drafter's (writer's) bank account and pay it to another person or entity. 2) v. to prepare and sign a bill of exchange or check. 3) n. a less than final document, which is ready for discussion, rewriting and/or editing, such as a book, a proposal, or a legislative bill.

draw
v. 1) to prepare any document. 2) specifically to have prepared and signed a bill of exchange or check.

drawee
n. the party who is to be paid on a bill of exchange or check.

drawer
n. the person who signs a bill of exchange.

driving under the influence (dui)
n. commonly called "drunk driving," it refers to operating a motor vehicle while one's blood alcohol content is above the legal limit set by statute, which supposedly is the level at which a person cannot drive safely.

drop dead date
n. a provision in a contract or a court order which sets the last date an event must take place (such as payment) or otherwise certain consequences will automatically follow, such as cancelling the contract, taking property or entering a judgment.

due
n. and adj. owed as of a specific date. A popular legal redundancy is that a debt is "due, owing and unpaid." Unpaid does not necessarily mean that a debt is due.

due and owing
adj. See also: due

due care
n. the conduct that a reasonable man or woman will exercise in a particular situation, in looking out for the safety of others. If one uses due care then an injured party cannot prove negligence. This is one of those nebulous standards by which negligence is tested. Each juror has to determine what a "reasonable" man or woman would do.

due process of law
n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness.

duress
n. the use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find the document null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime.

duty
n. 1) a legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that there was a duty by defendant to plaintiff. This can be a duty of care in a negligence case or a duty to perform in a contract case. 2) a tax on imports.

duty of care
n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.

dying declaration
n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances. Although hearsay since the dead person cannot testify in person, it is admissible on the theory that a dying person has no reason not to tell the truth.



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