Bailee

One who accepts tender of a bailment.

Bailiff

An officer of the court, usually a sheriff's deputy, whose Duty is to protect everyone within the court and to carry out every order of the judge. Bailiffs are typically very kind men and women, however they do carry weapons and have authority to do whatever is necessary to keep the peace and carry out the judges' orders, whether it's carrying the jury foreman's verdict form to the bench or escorting someone out of the courtroom in handcuffs and leg irons.

Bailment

Tender of a thing (tangible personal property as opposed to money or other intangible personal property) to one entrusted with its care (e.g., a warehouseman or bicyle shop). If the tender is accepted, the one who accepts is called the bailee, and the one who made the tender the bailor. Applies only to goods and other things, not money or intangibles.

Bailor

One who offers tender of a bailment.

Bar

Contrary to a false belief promoted on the internet by well-meaning people who cling to conspiracy theories, this word does not mean "British Accreditation Registry" or anything of the sort.

The "bar" is simply a railing or partial partition that separates the public gallery from the courtroom arena where parties present their arguments in person or by lawful representatives (who are permitted to bring their cases "before the bar" as opposed to being required to stay "behind the bar" with those who have no part in the word battle).

Anyone whose interest is at stake in a courtroom controversy is permitted to bring his or her case before the bar, i.e., to pass from the public gallery into that part of the room within the bar to present evidence and legal argument. The area of a courtroom within the bar where arguments are made and evidence presented is sometimes called "the bar" to distinguish it from "the bench" (i.e., that part of the courtroom on the business side of the bar but behind a bench restricted to judges, their clerks, bailiffs, and other officials who are not parties to the "action" within the bar.

In other words, at the far end of every courtroom is an area called "the bench", reserved for judicial officials, an area that has its own doors that lead to chambers within the courthouse. At the other end of the courtroom doors admit the public to a gallery, a seating area that is normally open to anyone who cares to learn more about our judicial system. Across the middle of the room is a railing or partial partition past which members of the general public are not permitted to go, for their presence would interfere with justice. In the middle is the arena where justice seeks its due.

This is the "bar".

Those who practice law as a profession (men and women who advise and assist members of the public who choose to study disciplines other than law) make their living at the bar. In time the professionals came to be known as members of the bar or, simply, "the bar". Anyone of good character willing to study an accredited curriculum and pass the bar exam can be admitted to practice before the bar. It is not a secret society, and its members have made no secret oaths to the British Crown ... and those who say otherwise are liars. The word has nothing whatever to do with Britain ... for courtrooms in every nation have a bar of some form, barring the public who have no interest in the outcome of controversies from interfering with those whose future depends on what is decided from the bench as a result of what is presented (decently and in order) from within the bar.

It is regrettable that Public Legal Education has fallen so far behind in this wonderful nation that self-seeking liars would be able to foist an utterly ridiculous concept on an uninformed public in an effort to cast a cloud of treason on lawyers and judges without whom none in America would have liberty or any hope of true justice. To accuse all lawyers of making a secret oath to the British Crown (as those who call their selfish rebellion patriotism viciously are doing) is but evidence of their disregard for the truth upon which all human hope for progress must depend. Only the truth is true. Support Public Legal Education.

Barratry

The practice of "manufacturing" lawsuits out of thin air. As Black defines barratry, it is "the practice of exciting groundless judicial proceedings". It is, unfortunately, a practice of unscrupulous lawyers that has seen an alarming increase in recent years. Through increasing public knowledge of legal proceedings generally, and the principles of American justice in particular, we may hope to stem the tide of lawless lawyering by empowering people to better understand what is going on in our courts ... and what should be going on in our courts.

Battery

Many years ago, when life was simpler than today, battery was the infliction of some form of violence upon another, i.e., the use of force. The term was most commonly used to describe beating another or striking the other forcibly with an object. Today battery takes place when any person touches another without consent ... with or without an object. Beware. The mere touching of another person without that person's consent is considered battery by today's courts. No harm need be done to the other person. Purely innocent intent can result in an action for battery. Don't touch without permission.

Beneficial Title

The beneficiary of a trust is said to hold "beneficial title" to the trust assets, while the trustee is said to hold "legal title" for the beneficiary's benefit. Outside trust interests, title is whole and not split. But, when a trust is created, title splits into the two types. The holder of beneficial title cannot sell or manage the assets, since he does not have legal title. The trustee can sell or manage but may not use the assets, since he holds only legal title. More at Trusts.

Best Evidence Rule

Many people (including novice lawyers) encounter disastrous consequences when they assume their "ton of evidence" cannot be admitted to the court record, i.e., what they thought was evidence that would win their case turns out to be inadmissible, that the court will not allow it to be admitted to the court record or relied upon in proving one's case".

If one's opponent is competent and not asleep at the wheel, an objection will surely be made based on the Best Evidence Rule. This powerful rule requires original documents to be offered as evidence rather than mere copies that can easily be forged using inexpensive technology available today to almost everyone.

Refer to and rely on the official rules of evidence in your jurisdiction to learn more about the best evidence rule. Above all, avoid making the all-too-common mistake of thinking because you have a "ton of evidence" that the stuff you think is evidence will be admitted when the other side jumps up to demand, "Objection, your Honor. Best evidence rule!"

Bias

A limitation on an individual's power to decide based solely on justice and fair-mindedness. Bias results from personal interest in the outcome. For example, a witness might be biased against his former employer in a case between the employer and another disgruntled employee. An employer might be biased against a former employee whom the employer believes slandered the business. Most of us are affected by bias at some level. The best of us are little effected by it when the goal is justice and a fair-minded outcome.

Bigamy

Being "married" to more than one person. Purists argue in terms of "what is marriage?" Some offer convincing arguments. Yet, in the face of constant pressures for change, civil law protects marriage of one man to one woman. Would that men and women would protect the civil law of marriage. Would that men and women would learn what civil life is all about. Bigamy is a felony crime in many states, i.e., a crime authorizing incarceration by force.

Binding

A contract is said to be binding when it has the power of the law behind it, i.e., when a party who suffers damages as a result of breach can sue upon it. Not all contracts can be sued upon. For example, a contract in contemplation of marriage (e.g., where Tommy promises Suzy he'll marry her if she kisses him) cannot be enforced in any court in America ... not even if it's written on parchment, signed, witnessed, and sealed with wax and velvet ribbons. The courts simply will not hear the case. If Tommy promises to paint Suzy's house for $800 and she gives him $800, the contract may be binding ... or it may not. It could depend on whether the agreement is in writing, signed, dated, or otherwise complies with the law of the state jurisdiction where the promise is made. Most states have a "statute of frauds" that dates back to the common law of England to protect people from those who would commit perjury in court, claiming they had a verbal agreement when there never was an agreement. Such statutes require contracts to be in writing if they are for the sale of goods for more than a particular amount of money or for services that cannot be performed within the space of a particular time frame. Some contracts require the signatures of witness (e.g., deeds or other conveyances of land) in order to be binding (i.e., to give the aggrieved party power to bring a lawsuit for breach). Even if a contract isn't binding, a court may still provide a legal remedy, but not for breach of contract. Instead, the court may impute a trust and allow the aggrieved person to recover what might otherwise be unjustly lost by preventing the defaulting person from gaining an advantage by breach of duty or breach of trust. These cases are often successful. The cause of action is called unjust enrichment and proceeds to judgment by virtue of the court's powers in equity. Though the contract may not be binding, the power of justice acting in equity is. See contract and the tutorials for more information.

Blue Laws

Laws forbidding trade on Sunday, allegedly so-named because early Puritans published them on blue paper. Blue laws survived into the 20th Century in many states. Gradually exceptions began to apply, such as an exception allowing "drug stores" to stay open to sell prescriptions and other emergency medical supplies. Then the blue laws were loosened to allow gas stations, convenience stores, and other businesses to stay open throughout the weekend. By the end of the last century, blue laws were pretty much a thing of the past. A vestige remains in employment discrimination claims by persons whose employers require them to work on Sundays (or Saturdays, that are "Sabbath" for Seventh-Day Adventists and other religious groups). These persons complain that such rules interfere with their "right to work" but, of course, there is no common-law right of one free person to demand of another free person the benefit of being gainfully employed on the employee's own terms. It has been said blue laws originated in a statute codified during the reign of Emperor Constantine (c. 321 A.D.), who implemented many changes to accommodate demands of the early Christian movement for recognition of faith-based rules and traditions. The following may be a rough translation:

"Let all judges, city people, and tradesmen rest upon the venerable day of the sun. But let those dwelling in the country freely and with full liberty attend to the culture of their fields; since it frequently happens that no other day is fit for sowing grain, or planting vines; hence, the favorable time should not be allowed to pass, lest the provisions of heaven be lost."

Breach

A break or failure, as in breach of duty, breach of contract. One is said to be "in breach" when he has broken his promise or failed to meet his obligation. It is the breach of duty that gives rise to every cause of action.

Brief

Simply put, a short statement of a case or a somewhat more detailed argument for or against a motion. The latter is often called a memorandum and states both facts and citations to controlling law. The former simply puts forth a concise statement of what the case is about. See Memorandum

Burden

One of the most interesting things about studying the law is discovering those things you believed inviolably true to be completely wrong. For example, have you ever heard anyone say, "It'll just be your word against mine"? That is completely wrong in court. In court one side or the other always has the burden to prove what he claims is in fact true. Always. Always. ALWAYS! Whoever makes a motion, pleads a cause, asserts a claim, promotes a legal argument, or demands an order from the court in any form must carry his burden of proof. If he is asserting a legal premise, he must prove he is correct. If he demands a judgment in his favor he must prove he is entitled as a matter of law and as a matter of fact. If he moves the court he must satisfy the court by carrying his burden to prove he and not the other side should prevail. The party who does not move the court or assert a claim (other than to deny his opponent's claim) does not have the burden to prove anything! The burden is carried by meeting the standard of proof required in that particular kind of case. For example, the standard of proof required in most civil cases (i.e., the burden to prove) is the greater weight of the evidence, also called a preponderance of the evidence.

Case Management

Case management is a concern of the court, where limited judicial resources demand that litigants pursue their causes expeditiously. Therefore, in most jurisdictions, either at the direction of the court or upon motion of a party, judges will hold case management conferences to set schedules for discovery, coordinate trial, and generally to take care of bookwork and housekeeping so the lawsuit progresses smoothly and efficiently through the system, rather than requiring overmuch time on the court's calendar for unnecessary hearings and delays.

Causation

Causation is the relationship between the action of one person and the injury of another. It may be proximate (close, and therefore actionable in court) or distal (remote, and therefore not actionable in court). To be liable for the injury of another, one must have acted in such a way as to proximately cause the injury. A person injured only remotely in consequence of the action of another has no right to sue, as where intervening superceding causes contribute to an injury.

Cause of Action

A cause of action is essential to every civil lawsuit; it is the basis for your complaint. Usually the plaintiff will assert separate counts in his complaint -- one for each cause of action. To adequately allege a cause of action he must state all the facts that are required to win on each cause of action. These are sometimes called elements of the cause of action. If the plaintiff alleges a cause of action for breach of contract and proves each and every one of the essential elements of that cause of action (i.e., if he can prove the facts that he alleged in his complaint are true), he wins. It's that simple.

Certiori

See Writ of Certiorari.

Cestui Que

Literally a beneficiary, i.e., a person for whom a benefit has been provided by some legal mechanism.

A cestui que could be a named beneficiary of a will or other legal provision but is usually a particular beneficiary of a trust, in which case the trust may be called a "Cestui Que Trust".

Chattel

See Personal Property.

Circuit Court

Most states are comprised of local governmental units called counties, each with its own courthouse where local judges preside over county courts (usually including small claims courts) and circuit judges preside over more powerful courts known as circuit courts. Each circuit has a chief judge who has authority to command all judges in his circuit, from magistrates hearing small claims cases in the county courts to judges presiding over capital murder cases in the circuit court. The chief judge of the circuit answers only to the justices of the state supreme court. The term comes from the days when judges rode horseback from one county to the next along a continuous route called the circuit, hearing disputes that exceeded the jurisdiction of the local county courts.

Circumstantial Evidence

Evidence purportedly based on inferences as opposed to direct evidence. Circumstantial evidence is an invention. Circumstantial evidence reaches beyond the boundaries of known truth into the realm of conjecture, imagination, and hunches. To be admissible in court, circumstantial evidence must be derived from direct evidence. It must be directly derived from direct evidence. It cannot be derived from other circumstantial evidence, inferences upon inferences, or opinions founded on intuition. The inferences circumstantial evidence makes must be reasonable ... or the evidence is excluded for lack of credibility. Circumstantial evidence derived from an inference upon another inference is always excluded by reasonable courts.

Civil Law

The body of law (and its rules) that deals with the rights of individuals and legal entities (e.g., trusts, corporations, partnerships) providing injured parties with court-enforced remedies for breaches of duty (causes of action) arising from contract, negligence, intentional torts, and crimes. Civil law differs from criminal law in that it protects the rights of individuals and legal entities to recover money damages or other compensation for the wrongs of others, while criminal law protects the rights of society at large. Civil law actions are prosecuted by private actors, individuals or legal entities and punish wrongdoers by making them pay other individuals or legal entities for their injuries. Examples are breach of contract actions or automobile negligence actions. Criminal actions are prosecuted by the government and punish wrongdoers by depriving them of liberty or, in egregious circumstances, of life itself.

Clean Hands

The doctrine of "clean hands" applies to cases where one party seeks to persuade the court to exercise its equitable discretion, so the court looks to see if either party has dirty hands, e.g., whether one party has done something unfair with regard to the issues of the case. It is not enough if one party has an unsavory history. The "unclean hands" must apply to the issues in controversy, such as preventing the other party from performing his contract, etc. The ancient maxim is, "He who comes to equity must come with clean hands."

Co-defendant

When two or more defendants are sued in the same case, they are called co-defendants.

Co-plaintiff

When two or more plaintiff's join to file a single lawsuit, they are called co-plaintiffs.

Coercion

Unreasonable force or imminent threat used to compel someone to do something adverse to his or her free will. A person coerced to enter a contract may be freed from the obligation by appropriate court process if it can be proven the contract was obtained by coercion AND the coerced party would not have agreed but for the unreasonable force or imminent threat.

Color of Law

Color of law is that characteristic of an individual who acts as a judge, police officer, mayor, or other public official.

Common Law

A body of jurisprudence evolved over centuries from the common sense and persistence of people who refused to be ruled by the power of pride.

The principles of common law are embodied in maxims that express, perhaps better than constitutions, the will of the people toward the exercise of government power and the importance of keeping that power in check.

Many people are confused about common law, failing to realize it is constantly subject to change.

Where a principle of common law is found violative of the maxims, the principle must be abandoned. This takes place when the people, acting through duly elected or appointed representatives or by decisions of appellate courts, amend and re-codify the legal limits of acceptable public behavior through duly enacted statutory or constitutional change.

To the extent amendment is carried out in accordance with due process and the rule of law, the rule of statutes and constitutions supersede common law and are an expression of the will of the people.

For those who object that the common law should forever control, let it be said that as citizens of free republics it is our dutyto teach the maxims to our neighbors and our children so our leaders and we the people ourselves will have better guidance.

Common Sense

The presence of mind and general caution and concern that the law imputes to all persons, i.e., sense everyone should have. Everyone owes a duty to use common sense. The breach of this duty may give rise to a cause of action.

Compensatory Damage

Compensatory damage is the amount of money that will make the plaintiff "whole", i.e., the actual cost that will restore him to his "status quo ante", i.e., where he was before the defendant's acts or failures to act.

Competence

See competent.

Competency

The degree to which a person is competent (q.v.). Persons deemed incompetent as a matter of law are those persons who, usually as a result of dementia or lunacy, are incapable of understanding the nature of truth; such persons are, therefore, never able to sue, maintain, or defend lawsuits except by the representation of another who must be appointed by the court to speak and act on behalf of the incompetent.

Competent

Having the right to be believed. A competent witness, for example, is one that is not disqualified by self-interest, felonious intent, inability to understand the nature of sworn testimony (as is the case with infants and small children), imbecility, dementia, or other disability restricting the reasonableness of giving such person credence, i.e., any condition that would render that person's testimony unreliable. A competent witness is not necessarily credible, however the testimony of an incompetent witness might, under certain circumstances, be completely credible in light of other known facts. Credibility goes to the believability of the testimony. Competence goes to the reliability of persons testifying (or the authenticity of documents). Credibility goes to the believableness of the evidence given by such persons (or documents). An example of a competent document is a certified copy of a court order, while a document that might be deemed to lack competence is a copy of an unsigned typed letter received by a fax machine. A person who is deemed by the court legally incompetent is one whose disabilities render their verbal and other representations incompetent, i.e., not worthy of belief. In modern usage the term incapacitated is replacing the term incompetent, however the reason "incompetent" was used for so many years is that it addresses competency, which is an issue dealing with believability, not capacity to act in one's own behalf.

Complaint

Where it all begins. One person (thereafter called a party instead of a person) undertakes to force another person (also thereafter called a party and no longer a person) to do something the other does not wish to do. The first party filing the complaint is called the plaintiff. The party against whom the complaint is filed is called the defendant. There may be more than one defendant. There may be more than one person joined as plaintiff. The complaint is what sets the ball rolling. The complaint should plainly state a cause of action and all facts the plaintiff can prove in support of the allegations of each separate cause of action (i.e., allegations of sufficient facts to prove each count). The complaint demands an answer from the defendant, i.e., the public filing of a specific response to each of the numbered allegations of the plaintiff's complaint. The complaint and answer taken together comprise what are called the pleadings. Each side "pleads" with the court. The plaintiff complains to the court and obtains the court's jurisdiction over the defendant. The defendant answers and demands to be released from the court's jurisdiction or in turn seeks some remedy from the plaintiff. Each party seeks relief from the court by way of an order compelling the other to do something the other does not wish to do. The order sought may be a money judgment, an injunctive order, or some other exercise of state power. The parties before the court are called litigants. The plaintiff has the burden to prove his case. The complaint should completely state the plaintiff's case, without the slightest omission of any detail necessary to require a reasonable court to favorably decide the outcome. The complaint is the single most important document filed in any lawsuit (and, strangely, one of the least attended-to documents filed by lawyers today). Many lawyers follow what are called "form books". You get the idea. They use forms to draft their pleadings. The better practitioner wins his lawsuit on the day he files the complaint. The winning practitioner completely states his client's case in the complaint. Each count should allege a separate cause of action and include all provable facts that tend to establish the plaintiff's right to judgment on each such cause of action. The complaint should completely state the plaintiff's case. Do not be brief! Do not permit your lawyer to be brief! State your causes of action and state every fact you can prove that will support your causes of action. Don't be lazy. Do a good job, and you improve your chance of winning a thousand-fold.

Compulsory

Compelled by law, i.e., subject to enforcement by money fine, public service, incarceration, or execution.

Conclusory

A statement such as, "Defendant owes plaintiff one million dollars," is said to be conclusory, i.e., alleging facts without supporting evidence. You should object to such statements to make your record clear and prevent them from unfairly influencing the court. Demand admissible evidence! Never forget you are dealing with human beings who are easily persuaded by empty statements without evidence. (Think about arguments you've had at home.) It is important to make the court record clear that conclusory statements by your opponent are NOT evidence and should not be permitted to stand without support in the form of admissible evidence.

Conflict of Interest

When a person stands to gain an advantage from playing both sides of the street, he is said to have a conflict of interest. On the one hand he may gain from taking a particular position with regard to one person while (perhaps unknown to that person) he may have an opportunity to gain a greater advantage for himself by taking an alternative position favorable to another. The result, of course, is that neither side can trust him ... nor should trust him. When a lawyer attempts to represent a new client against the interests of a former client, he is said to have a conflict of interest (though, technically, his interests are not in conflict, because it is the new client who stands to gain an advantage, not the lawyer). What makes this objectionable is not that the lawyer cannot be trusted to represent his new client's case zealously but that the new client may gain an unfair advantage by his lawyer's having had prior access to facts about his old client that could help him win for the new client. So, where a lawyer technically does not have a conflict of interest, there may nonetheless be created an appearance of conflict. The rules of professional conduct of most bars forbid such representation and treat the lawyer as if he, in fact, has a conflict because he stands in the shoes of his client who actually has the advantage. The situation is sometimes referred to simply as having a conflict, as, "Attorney Jones has a conflict representing his new client." Just remember that a true conflict of interest arises from playing both sides of the street.

Consent Order

A consent order is one entered upon stipulation of both parties, i.e., by agreement. The parties prepare and file their stipulation and proposed order. The judge signs the order, because the parties have consented to entry of the order by agreement in writing.

Contempt

The condition of refusing to honor and obey court rules and orders. Penalties for contempt range from a simple fine to continuous imprisonment until the contempt is cured. If you succeed with a motion to compel discovery, the court will order the other side to respond to your discovery request(s). If the other side fails or refuses to respond, you can file a "Motion to Show Cause" why the other side should not be held in contempt. The court may order the other side to show cause. Then, if they do not show cause, the court will order them once again to respond to your discovery request(s). If they fail or refuse to respond after being ordered the second time, you will file a "Motion for Contempt", and the court will likely find them in contempt. The punishment may be imprisonment until they respond to your discovery request(s).

Contract

A promise for a promise. Every contract, whether written in ink with the formalities of seals and witnesses or merely spoken in a private meeting between two persons, is an agreement in which promises are exchanged. A meeting of the minds. Contracts need not be in writing to be enforceable (though local laws, e.g., the statute of frauds, may prevent a party from bringing a lawsuit for breach of contract unless the contract meets certain necessities set forth differently by each state). The main thing to look for is an "understanding of the parties with regard to the exchange of promises". If such an understanding exists and can be established as a fact upon the record of the court, there will always exist a cause of action on the contract, though you may have to get at it by bringing your lawsuit under a different cause of action, e.g., trust theory or quantum meruit.

Contract of Adhesion

See Adhesion Contract

Contumacious

The spirit or attitude of those who refuse to honor and obey court rules and orders. One may be said to have shown a contumacious disregard for the court's authority.

Conversion

Conversion is a civil cause of action that arises when defendant, without permission or lawful authority, takes possession of tangible personal property rightfully belonging to plaintiff.

It doesn't matter whether defendant retains possession or returns it. Conversion takes place at the moment of unlawful possession. It matters not if possession is temporary. If defendant takes possession of any tangible personal property of plaintiff, even for only a few seconds without permission or lawful authority, the thing possessed has been "converted".

Once conversion is made, this cause of action will lie. Defendant cannot un-ring the bell by returning the property.

Tangible personal property includes (but is not limited to) such things as a bicycle, boat, airplane, and or prize bull ... dead or alive.

Money is personal property but is not tangible personal property. A dollar bill is a negotiable instrument, not unlike any other dollar bill. It is not normally considered to be "unique". And, like other instruments (e.g., deeds, mortgages, and such like documents that merely "represent" assets but in and of themselves have no intrinsic value) money is considered intangible property. The wrongful taking of money, therefore, does not give rise to an action for conversion, because money is not "tangible personal property".

An exception is a collection of rare coins or some other identifiable currency having value inherent in the particular tangible thing that it is. A dollar bill might be useful to play a game of fool's poker with, or it could be used to stuff into crack in the wall to keep out drafts, but it is not unlike any other dollar bill and has no inherent value other than some strange use to which any other dollar bill could be put. The wrongful taking of ordinary money, therefore, may give rise to an action for civil theft, but an action for conversion will not lie unless the "money" is rare coins or such like having a uniquely inherent value so it can be treated as "tangible personal property", like a bicycle, boat, airplane, or prize bull.

The gist of conversion is the exercise of dominion or control over the tangible property of another that is inconsistent with the owner's right of possession, i.e., depriving the rightful owner of his property without the owner's consent or other lawful authority.

The wrong is not in the taking but in the depriving.

Real property (houses, barns, buildings, things attached to them, and the land they sit on) is not "personal property" and cannot be converted.

Coram Nobis

Coram Nobis (Latin "before us") is a writ from an appellate court directing a lower court to correct its judgment based on facts not available at the time.

If the facts were unavailable due to some unjust circumstance that existed at the time of judgment (e.g., fraud or error on the part of the lower court), the judgment may be corrected. If the facts were unavailable due to negligence on the part of the complaining party, this writ should not be granted.

Coram Vobis

See Coram Nobis.

Costs

Costs in most jurisdiction include filing fees; costs of serving papers on the other side; court reporters' fees for attending and transcribing hearings, depositions, and trial proceedings; and very little else. In most American jurisdictions, the prevailing party is entitled to recover his costs from the losing party ... but this does not normally include attorneys' fees. Long-distance telephone tolls, fees charged by process servers, secretarial costs, office supplies, and such like ancillary costs of suing in American jurisdiction must be born by the person bringing the lawsuit and cannot be recovered.

Count

Each cause of action in the complaint should be stated in a separate count. Each count is nothing more than a separate statement of a single cause of action. For example, if you have a count for breach of contract and a count for negligence, you have two counts, i.e., two separate statements of causes of action. Each cause of action is stated separately in a count. Keep your counts separate. Make sure to allege each and every element of your causes of action and also allege for each such cause of action all facts you can prove to support the allegations of your cause of action. This is very important.

Counterclaim

When a defendant is sued he has the right as part of his defense to sue the person who is suing him. He does this by filing a counterclaim in response to the complaint that was filed by the plaintiff. He then becomes the counter-plaintiff as well as defendant.

County Court

Most states are made up of jurisdictional districts known as counties, each having a particular city known as the county seat where the Courthouse is located. County courts typically have limited jurisdiction to hear such disputes as landlord-tenant cases, cases involving an amount of money below a set limit (at the time of writing this entery the minimum jurisdictionary amount in controversy, exclusive of attorneys fees and costs, is $15,000 in Florida), and small-claims. In Florida, as in most states, several adjacent counties comprise what is called a circuit (from the days when a single judge rode horseback on a circuit from courthouse to courthouse to serve needs of the people in several counties) and circuit courts that have jurisdiction to hear appeals from county courts.

Courthouse

A building where courts are convened. Courthouse is always capitalized when used in reference to a particular courthouse, and it is one word, not two.

Credibility

The capacity of being credible (q.v.).

Credible

Think of the word "incredible", take off the "in" that reverses it, and you see what credible means. Believable. In particular, believable by an ordinary reasonable man, i.e., one who is not gullible or easily persuaded. Some writers suggest the concept of worthiness, declaring a credible thing as one that is worthy of being believed. Only credible evidence is admissible. See also competent.

Cross-claim

When two or more defendants are sued they are called co-defendants. When one co-defendant sues another co-defendant, the pleading used to file the action is called a cross-claim.

Cross-examination

Cross-examination is sometimes said to be the most powerful engine ever devised by man for getting at the truth. It is a process of questioning witnesses whereby the answer may be presented as part of the question. Such questions are called leading questions. The rules permit cross-examination (i.e., leading questions) in certain circumstances and forbid it in others. Sometimes only direct questions may be asked. A party may usually cross-examine opposing parties and their witnesses but cannot cross-examine his own witnesses who must be questioned by direct-examination, instead (i.e., by non-leading questions that do not suggest answers). In most jurisdictions, a party may always cross-examine the other party's witnesses, while he is required to question his own witnesses by direct examination alone. If his own witness becomes a hostile witness, he then may be permitted to cross-examine ... otherwise not. An example of a leading question permitted during cross-examination is, "Isn't it a fact you were in Miami when the First National Bank was robbed?" This is a leading question since it suggests an answer. During cross-examination, a lawyer may suggest facts, leading the witness to give an answer the lawyer wishes to put on the record. During direct examination, however, questions cannot lead the witness at all (i.e., questions may not suggest answers). A party may ask his own witnesses, "Where were you on the day of the robbery?" He is not, however, permitted to suggest the answer in any way (e.g., "Isn't it a fact you saw the defendant running out of the First National Bank carrying sacks of money?"). Doing so is cause for objection. Cross-examination cuts through obfuscation and deceit. Cross-examination forces self-interested witnesses to answer responsively (i.e., to the point and not evasively). Direct questioning is easier to evade with non-responsive or oblique answers. Cross-examination gives lawyers an effective tool to pin down an uncooperative witness and require the testimony to come to the point. It is much more difficult to get at the truth with direct examination. Try it on some friends and see for yourself. Unless you can give hints to the answers you want, a witness reluctant to assist you can easily evade the answers you seek. Keep this in mind when questions are being prepared for depositions, hearings, or trial. If you are questioning a witness you called to the stand, you won't be permitted to lead with, "You were in Miami on the day of the robbery, weren't you?" That's a leading question. Instead, you will be required to ask, "Where were you on the day of the robbery." If your witness was in Fort Lauderdale at any time during the day, even if only for breakfast, he may lawfully answer, "I was in Fort Lauderdale that day." He might also have been in Tampa or West Palm Beach that same day, of course. If you can ask, "Isn't it a fact you were in Miami on the day of the robbery?" the witness will be required to tell the whole truth. Savvy litigants are on the lookout for evasive answers and continue questioning until the facts sought are clearly stated on the record. Know the difference between direct and cross-examination. Know when you can and when you cannot use leading questions. Winning frequently depends on it.

Cross-plaintiff

When one co-defendant files a crossclaim against another co-defendant, he is called a cross-plaintiff.

Custody

The act of responsibility for the welfare of another. The warden of a prison has custody of his prisoners. The custodial parent of a divorced family may have custody of children of the broken marriage. A guardian has custody of his ward. Custody does not necessarily require control, but it does imply responsibility.

Damage

In order to prevail in any lawsuit brought in the courts of our American system, the party bringing the action must prove he suffered some loss or damage in addition to proving that the defendant being sued is liable, i.e., that the defendant is responsible for the legal cause of the plaintiff's damage. Both liability and damages must be pleaded and then proved in every case by meeting the burden of proof.

De Novo

A Latin term applied typically to trials or hearings that begin from the start, i.e., re-presenting testimony and other evidence. A trial de novo is one that starts from the beginning, presenting all the evidence. An appellate review de novo is one wherein the appellate court agrees to hear evidence that was presented in the trial court (not normally done), perhaps because there was such an abuse of power or abuse of discretion by the trial judge that justice requires the appeals court to hear the entire story before rendering its opinion, since the truth was not permitted to come forth in the lower court.

Decedent

Person who has died, i.e., one who is deceased.

Decision

Any ruling by the court. It could be a final judgment or merely a ruling sustaining a via voce (spoken) motion at a hearing or trial.

Decriminalize

This is not so much a legal term as it is a term used by the media and, therefore, lacking legal specificity. The term is best understood in contrast to legalize (q.v.), a word having a similar but not exactly the same meaning. To decriminalize is to remove the criminal aspect from a previously unlawful behavior (e.g., the repeal of prohibition that allowed people to possess and enjoy alcoholic beverages early in the Twentieth Century) while retaining criminal penalties for related behavior outside legal limits established by the legislation that "decriminalized" the behavior. For example, possession of alcoholic beverages was decriminalized by repeal of prohibition. People (other than minors) are now free from criminal prosecution for possessing liquor, wine, or beer. At the same time, it remains a crime to manufacture alcoholic beverages in quantities greater than the maximum allowable limit set by the decriminalizing statutes. In most jurisdictions one may make home-brew beers or ales, ferment and bottle wine, but not operate a distillery to manufacture whiskey and sell it to his neighbors. See legalize.

Defamation

An actionable injury suffered by communication of lies in either speech or in print. See libel and slander.

Defendant

The defendant is that unlucky fellow who has been served with a summons and complaint, the person who must file some sort of defense or lose by default. How your case is handled from the very start is critical to success for, unlike the plaintiff who may have been planning his lawsuit for many months or even years, the defendant usually has a short time in which to respond to the complaint - in many jurisdictions the time allowed is only 20 days. If the defendant is unable to get the complaint dismissed or stricken, he may be required to file an answer stating whether he admits the allegations of the complaint or not. There may be more than one defendant. Each defendant is a party.

Defense

It's often been said the best defense is a good offense, and nowhere is this more true than in a civil lawsuit. The plaintiff begins on the offense when he files his complaint. The defendant must then "defend" against the plaintiff's action, and this he does best by turning the tables against the plaintiff, if he can. For example, as soon as the plaintiff files and serves his case, a wise defendant will attempt to have the complaint stricken or dismissed. He will seek to show the complaint is false or that it fails to state a cause of action worthy of the court's attention and valuable time. All these actions constitute a defense that is on the offensive, i.e., actively opposing the plaintiff's case rather than merely attempting to make excuses or otherwise to avoid its effect. Good civil defense attorneys know the best way to defend against a lawsuit is to destroy it if possible. Force the plaintiff to prove his facts. Make the plaintiff state the law he relies upon. Don't just throw up road-blocks, fight back with every tool the law provides for getting at the truth! Take control of the case and stay in control. The smart defendant takes over the "driver's seat" early in the case and stays there until the plaintiff gives up or is ruled against by the court's final judgment. Put your legal rights to work! Bite back!

Demurrer

The demurrer motion is often misused as a motion to dismiss a claim, however technically it admits the claim while alleging the claim is irrelevant, immaterial, without basis. If you encounter this, and the demurrer is technically improper, a motion to strike the demurrer is in order.

On the other hand, if the claim does fail to allege facts or law relevant to the issues before the court, or fails to state sufficient facts to support a valid cause of action, or otherwise is improper in some regard, the proper thing is to address the demurrer by filing an amended claim correcting the problem.

Do not to ignore it, for it will not go away of its own accord.

Depose

Strictly speaking, the word means to "make come down" or to "remove from another place".

The term is sometimes used to describe the process by which kings and other rulers are removed from power and, in this sense, to depose a person in the scope of a civil lawsuit is to remove that person from the place of comfort and repose he previously occupied, to make him liable to the court' penalties for perjury by prescribing the oath, and by asking him questions (whether or not he might care to answer willingly) pertaining to pretty much any matter you wish to inquire into, so long as the questions are reasonably calculated to lead to the discovery of admissible evidence.

Questions may be asked of deponents that could not be asked of a witness at trial, because the rules are looser with regard to taking depositions. The scope of examination at a deposition may inquire into facts that would be beyond the scope of admissible evidence at trial (i.e., a deposition may inquire into facts that could not be presented at trial) so long as the questions are reasonably calculated to lead to discovery of evidence that would be admissible at trial.

The deposition is a powerful tool for getting at the truth.

It can also be misused. It is improper to depose another merely for the purpose of harassing him or her; such actions before civil courts on this planet generally make the bad actor liable to court penalties called sanctions.

The act of deposing is carried out at a deposition, where an officer of the state, duly authorized to administer oaths and take acknowledgments by law, is employed to record every word that is said (i.e., verbatim) and to transcribe same into printed pages called deposition transcripts to which the officer (a notary or official court reporter) affixes his or her sworn affidavit that the words printed in the transcript are a true and accurate recording of all that was actually said.

Depositions may be used in lieu of live testimony at trial in certain circumstances, e.g., when the deponent resides at great distance from the court, when the deponent dies before trial, and when the deponent later called as a witness at trial contradicts the testimony given at the earlier deposition.

Since the court may sustain your opponent's objections if you attempt to depose a person more than once, it is wise to know as much as possible about your case and your opponent's position before taking depositions. Some lawyers believe the taking of depositions is all that' needed before proceeding to trial. In most cases, written discovery should be used to get a clear idea of the facts of the case before taking depositions.

If a proposed deponent is leaving the court's jurisdiction or threatened with grave illness, prudence will depose such person as soon as practicable. In some cases the court may grant a party leave to depose such persons even before the case is filed. The court's order granting permission, of course, is obtained by making a timely motion.

Deposition

The legal proceedings at which a party acts to depose another party or third person by asking questions of such party or person under penalties of perjury. Some sloppy thinking lawyers use the term to describe the printed material that re-states all the questions and answers, however the proper term for the written transcription prepared by the court reporter or notary is deposition transcript. The deposition is a court proceeding at which questions are asked and answered. The transcript is a sworn printed statement of everything that was said at the deposition; it is not the deposition. See depose.

Direct Evidence

Evidence based on direct facts as opposed to circumstantial evidence based on inferences surmised from direct facts (or, God save us, from other inferences surmised from yet other inferences or one person's intuition based on the opinion of yet another person). Direct evidence is evidence that is believed by reasonable people without having to jump to any conclusions. Facts that cannot be disputed by reasonable persons. Direct evidence does not require any stretch of imagination. Circumstantial evidence is not direct evidence.

Direct Fact

Facts that are not disputed by reasonable persons. A direct fact may be best explained by saying what in-direct facts are, i.e., facts inferred or surmised from other facts. A direct fact requires no inference. A direct fact is not surmised. A direct fact is a fact that any reasonable person would believe to be true without conjecture, without imagination, without relying on a hunch in any way. Pure speculation founded solely on conjecture, hypothesis, or inference should not be given the same weight for determining the outcome of a case as facts that are clearly evident. Direct facts are clearly evident. Direct facts are, therefore, good evidence if they are relevant to the issues in your case. Circumstantial evidence is not direct evidence.

Direct Question

Cross-Examination.

Discovery

The process of finding facts that may lead to admissible evidence to be placed in the court file or presented at hearings or trial. The five primary discovery methods include: requests for admissions, requests for production, interrogatories, depositions, and subpoena power.

Discretion

In every jurisdiction judges are given a certain latitude within which they are permitted to exercise their own "judgment", i.e., according to their private view of what is right or reasonable based on the law and facts presented on the court's record. This is called judicial discretion. Judges must, however, abide by the reasonableness test. See also abuse of discretion.

Dismissal

When a pleading fails to comply with the law or lacks sufficient factual grounds to go forward, the court may enter an order dismissing the pleading. If the dismissal is with prejudice, the case is over, and the plaintiff cannot bring his case again on the same argument of law and fact. If the dismissal is without prejudice, the plaintiff may re-file his or her pleading after amending it to fix the problem(s) that resulted in the dismissal.

Dispositive

Tending to dispose of an issue. A dispositive fact is one which, if proved, will decide the case. See relevant, material, pertinent.

Doctrine

In the field of law, a doctrine is a principle generally followed or a set of rules intended to accomplish a particular aspect of justice.

Donee

One who receives a gift. The donee has no obligation to return the gift. It is his own as soon as he receives possession (but not until, since a gift is not complete until the donor has released it).

Donor

One who gives a gift.

Duces Tecum

When this Latin term appears in legal papers it means, simply, "Bring it with you." A subpoena duces tecum, for example, requires not only attendance of the witness at a hearing, trial, or deposition as set forth in the body of the subpoena but also that the witness bring along whatever documents or things that may be listed in the subpoena or attached papers appended to the subpoena. Failure to comply may expose the witness to contempt penalties.

Due Diligence

Here is a term of art seldom understood but frequently seen in the papers of civil lawsuits. In its plain meaning due diligence is the diligence due to a particular matter (hence the term). Due diligence is the reasonable attention a reasonable man would pay to the matter under the circumstances. Due diligence is a duty imputed to all of us to observe the protocols of civil obedience to the extent doing so does not deprive us unjustly. For example, if Green hires White to supervise Black, and White takes naps in the afternoon while Black leans on the broom handle, White is said to have failed to exercise due diligence. If a guardian undertakes the care of his ward then permits the ward to die of malnutrition at the nursing home, there has been a lack of due diligence. Ultimately, in a civil lawsuit, the determination of whether or not a party exercised due diligence or not is one for the trier of fact (i.e., the jury if a jury is trying the facts, or the judge if there is no jury). The test, again, is the diligence a reasonable man would deem to be due under the circumstances.

Due Process

Due process is the right of individuals and the obligation of the government's courts to see that any action by one party is made known to the other party in a timely and reasonable manner so the other party may prepare for and defend against the action brought by his adversary. In short, due process is the right to receive notice and an opportunity to be heard before the court enters any order or takes any action that might restrict your rights or grant another party any right against you. Due process is also the right to be left alone, free from unreasonable search and seizure, as guaranteed to Americans under the Fourth Amendment of the United States Constitution. A more complete explanation of due process is given in the tutorials.

Durable Power of Attorney

See Power of Attorney.

Duty

Duty is the obligation one owes to another that gives courts the right to order enforcement of that obligation. Duties give rise to causes of action, because every cause of action arises from the breach of a duty. In our society, everyone owes a duty not to cause injury to others ... either with intent or negligence. If one breaches his duty to another, he may be liable in either a civil court or, if the duty is serious enough, in criminal court. Not all duties, however, give rise to a cause of action. For example, if Billy promises Sue that they will marry on June 4th and gets cold feet at the last moment, our courts will not enforce the obligation he took upon himself by making that promise, for all such promises are "contracts in contemplation of marriage" and no longer enforceable under the laws of any state in the nation. If Billy promised Sue he'd take her to the movies if she baked him a cake, and she bakes the cake but he backs out of taking her to the movies, she would have a cause of action to at least recover the price of her ticket (though, of course, it would cost more to bring her lawsuit than the ticket would be worth). The point is that duty gives rise to obligation, and enforcement of obligation is what courts are all about.

Easement

An interest in land that does not include ownership. Easements are typically rights to use a portion of another's land, e.g., a path or an unpaved road crossing the land. The easement holder has a right to use the land specified in the easement for the purposes set out in the easement but cannot sell the land or otherwise enjoy any benefit other than its use. Typically, easements "run with the title", i.e., if the owner sells the easement continues after the buyer takes possession. For this reason, buyers should always check the public records to know if an easement runs with the title. An example of an easement that runs with the title is the easement for utilities, e.g., water mains or power lines. Other easements include public easements like those provided for sidewalks; the owner holds title to the land, but others may use the sidewalks. If an easement does not already exist, the landowner may refuse to allow an easement to be established by keeping people off his property by trespass warnings and legal enforcement. Ownership of title in land normally means "quiet enjoyment" and "exclusive use". Some public easements and utility easements may not be resisted. If the party seeking an easement is an individual or business, the land owner may be able to negotiate to be paid for the easement. If the easement sought is a public easement, payment may be denied in the public interest. See title.

Economic Crime

Crime that deals exclusively with money and thus affects people only in their pocketbooks, as opposed to crimes that injure people physically or destroy property. An example is embezzlement or securities fraud.

Economic Loss Rule

The economic loss rule prevents plaintiffs from double-dipping. Many times plaintiffs file an action for breach of contract and also for negligence in performance of the contract. The economic loss rule prevents plaintiffs from collecting for both. For example, a case involving a contract between a strawberry farmer and a chemical company was filed in Florida when a batch of fertilizer the farmer ordered turned out instead to contain herbicide that killed all his strawberry plants. The farmer's case had a count for breach of contract and another count for negligence. Since the farmer contracted for fertilizer and received herbicide instead, he sued for breach of contract. Since the packaging of herbicide in fertilizer bags could only result from bone-headed negligence, the farmer also sued for negligence damages. The farmer won, and the economic loss rule did not apply. In another case, however, a farmer sued a tractor manufacturer for breach of contract and negligence when a negligently designed part on the tractor caused the tractor to fail, and the farmer couldn't get his crops in on time. The faulty tractor resulted from negligence. The court said in this case, however, that the bargained-for consideration was a tractor, not crops safely gathered into the barn. When the tractor failed to work it was only the tractor that was damaged by the defendant's negligence. The farmer's contract for a working tractor was breached by delivery of a faulty tractor, and the farmer won on his breach of contract count. The tractor did not directly damage the farmer's crops, however, so the farmer was not permitted to recover for negligence. Since the damages were not to property other than property the farmer contracted for (a working tractor) the courts restricted his recovery to breach of contract and denied the negligence count. The economic loss rule barred his recovering for lost crops. In the first case, a negligently delivered chemical damaged other property, and the economic loss rule did not prevent recovery for both breach of contract and negligence damages. In the second case a negligently manufactured tractor damaged itself, and the court applied the economic loss rule to bar the farmer from recovery on his negligence count for crops left to rot in the field. The idea of the economic loss rule is that when one is prevented from enjoying the benefit of his contract bargain by negligence that only affects the thing bargained for, recovery must be by a breach of contract action alone. The negligence count will not be heard unless the defective thing bargained for also damaged other property. You cannot double-dip. Since the negligently manufactured tractor damaged only itself and not the farmer's crops, the farmer was required to seek recovery in court solely on his breach of contract count. When the negligently packaged herbicide destroyed fields of strawberries, however, the farmer was permitted to recover damages both for breach of his contract (he paid for fertilizer) and for the negligent delivery of herbicide that destroyed his crop. The economic loss rule applies to restrict recovery only to the contract count when negligence damages the thing bargained for. In such cases the injured party is said to have lost only the economic value of his bargain. If the injured party also suffers damages to other property, however, the economic loss rule does not apply. Both contract and negligence law may be used to get a judgment for damages if something other than the bargained-for thing is damaged by the defendant's negligence.

Ejectment

An action for ejectment is the proper method for obtaining a court order determining boundary disputes, to remove structures from real property, or to require persons occupying the property without lawful title (i.e., deed, lease, or license to be upon the property). The action may also recover money damages for the plaintiff, who must prove to the court that he or she is the lawful owner entitled to exclusive use and possession. If the plaintiff prevails, the court will issue a writ of possession directing the Sheriff (or other officer of the law) to put the plaintiff into exclusive possession and remove all others and their structures and personalty.

Elements of Causes of Action

Every cause of action is comprised of essential elements that must be stated in the complaint and proven on the court's record. Different causes of action have different elements. In a breach of contract case, for example, the cause of action must state sufficient ultimate facts to allege the following essential elements: (1) formation of a contract, (2) breach of the contract, and (3) damages proximately resulting from the breach. If a party fails to state in his complaint sufficient ultimate facts to allege all essential elements of his cause of action, his complaint can be dismissed for failure to state a cause of action. If he succeeds in stating a cause of action but cannot prove each and every one of the essential elements of his cause of action by the greater weight of admissible evidence, he loses the case. Simplicity itself!

Embezzlement

This is an economic crime that most commonly occurs where one person entrusts another with money (or access to it, which is, of course, the same thing), and the person entrusted steals the money or otherwise appropriates it improperly to his own use. An example would be a bank president dipping into the till. Another would be a lawyer using his clients' retainer funds to pay gambling debts or fly to Las Vegas for a weekend of fun. In short, it is theft arising from a situation of trust.

En Banc

A term that denotes a court presided over by all the court's justices. For example, in Florida's appellate courts decisions are usually rendered by three judges who vote (rather than the one judge that presided at the trial level). In particularly critical cases the appellate court may render an en banc decision in which all of the court's justices sit on the bench to vote.

Entireties

Entireties is a term used to describe a form of tenancy in property shared by married persons. Tenancies by the entireties are reserved to married couples only. When one dies the other owns all, but both own all in the first place. Entireties title treats the property as if it were held by one person, i.e., the marriage unit.

Equitable

Of or relating to equity or the exercise of the court's power to let what's right and fair overrule (under the proper circumstances) what's technically "legal" but wrong. See equity.

Equity

Equity is the soul of justice. It is its heart. It is the goodness that justice works for. It is the goal for which all good men and women strive. It is the sum and substance of due process and gives wisdom to the Rule of Law. Black's Law Dictionary (2nd Edition, 1910) puts it best. "Equity is the spirit and habit of fairness, justness, and right-dealing which should regulate the interactions of men and women -- the rule of doing unto others as we desire them to do to us. As expressed by Justinian, equity is 'to live honestly, to harm nobody, and to render to everyone what's due.' It is therefore the synonym of natural right or justice. It is grounded in precepts of the conscience, not in any sanction of written law." Equity derives from the same root word as "equal" and thus is the guide that always points our legal systems toward that path whereon all stand before the law and its courts without preference. Each of us is entitled to our day in court, entitled to be heard, entitled to receive every protection the state affords to others. This is what equity demands. Equity appears where love and wisdom dispense justice together. May all of us purpose in our hearts to work tirelessly for that day when equity is more perfectly obeyed in all our courts -- and justice is truly secured for the benefit of all.

Estop

Prevent from proceeding by virtue of the estoppel doctrine.

Estopped

Prevented from proceeding by virtue of the estoppel doctrine.

Estoppel

Estoppel is a handy term with a peculiar and often misunderstood meaning. One party or the other may be said to be "estopped" (i.e., prevented by law) to deny some fact or point of law the party has previously admitted. For example, if you as party to a lawsuit seek to recover damages from the driver of a car that ran over your dog, you may be said to be estopped to deny that your dog was out of the house that day (unless the car came crashing into your living room to run over the dog). Estoppel arguments can advance your case, making it unnecessary to prove certain facts that are "undeniable".

et al.

And others. Usually set off by commas and seldom capitalized, since the term makes no sense at the start of a sentence or by itself. It is used to indicate that there are "others" in addition to the item or items immediately preceding it. Sometimes used in pleading captions to indicate there are parties to the suit other than those whose names appear in the caption. For example, "Jones v. Smith, et.al." indicates there are defendants other than Smith. In other words, the case is Jones versus Smith and others whose names are not listed in the caption.

Every

All. Omitting none. Without exception.

Evidence

That which is competent, credible, and relevant to prove or disprove a fact in controversy. Evidence can be clearly seen. Things that cannot be clearly seen should not be permitted to be considered by the court as evidence. All evidence is fact, as opposed to fanciful conjecture or insidious innuendo. Every civil lawsuit should be a search for truth, and the outcome should not be decided upon mere possibilities or suspicions but upon solid evidence, i.e., evident facts, upon which reasonable persons cannot disagree. There are two kinds of evidence: direct fact evidence and circumstantial fact evidence. Direct fact evidence is evidence of facts that tend directly to prove or disprove a disputed issue. Circumstantial fact evidence is evidence of facts that do not in themselves tend to prove or disprove a disputed issue except by the drawing of an inference. The quality of the inference should determine the admissibility of circumstantial evidence. For example, if a locked house is robbed without any visible signs of forced entry, a jury may be persuaded to believe the robber had a key. At the same time, one could infer the robber knew how to pick locks. This circumstantial evidence is susceptible of two separate inferences and is, therefore, not as reliable as direct fact evidence. Some jurisdictions have ruled that unless an inference drawn from circumstantial evidence is incontrovertible, i.e., not susceptible of any contrary reasonable inference, it should not be presented. Further, most jurisdictions have ruled that one inference cannot be piled upon another, e.g., inferring from the preceding circumstances that the homeowner must have robbed his own house because he was the only one who had a key. In this example, the direct fact evidence is the absence of any signs of forced entry. The first inference is that the robber had a key. The second inference, built upon the first, is that the owner must be the robber because he is the only one with a key. Such pyramiding of inferences in forbidden in most jurisdictions to prevent the obvious, "Henny Penny said that Chicken Licken said that Turkey Lurkey said the sky is falling, and we must tell the king." Such evidence is neither competent nor credible and should never be relied upon to reach a verdict. An example of direct fact evidence in the preceding example is that there were no visible signs of forced entry, a matter that needs no inference or conjecture but stands on its own ... i.e., evident.

Evident

That which can be clearly seen, plain, apparent, obvious. This word is the root of evidence, q.v.

Evidentiary

An adjective that describes a proceeding as one in search of evidence, as an "evidentiary hearing".

Ex Parte

Literally, "without the party". Ex parte communications with the court are communications made by one party in the absence of the other and is generally forbidden.

Exculpate

To free from guilt, fault, or blame.

Exculpatory

An adjective frequently applied to evidence that tends to prove innocence, rather than guilt - absence of liability, rather than liability. Comes from the Latin ex meaning from or out of and culpa meaning guilt, fault, or blame.

Execution

The name of a writ. (See Writ of Execution)

Every final order granting a money judgment to the plaintiff should include the phrase, "... for which let execution issue." Unless a writ of execution issues, law enforcement has no lawful authority to levy on the judgment debtor's property.

Executor

Person appointed by the court to administer the probate estate of deceased persons. In some states the term used is personal representative, to denote that the person appointed "represents" the dead person with the obligation to satisfy the claims of creditors and distribute the remainder to beneficiaries.

Executrix

The feminine of executor. Seldom used today.

Fact

A fact is an established truth, something that is evident, clearly seen, indisputable, beyond doubt. This term is widely misused by lawyers today, perhaps because some lawyers are more intent on winning their cases than sticking closely to the truth. Facts are facts ... not guesses, hunches, beliefs, opinions, inferences, or suppositions. It may be a fact that someone has an opinion, for example, but the opinion itself is only an opinion, not a fact ... regardless of the education or stature of the person who holds the opinion. Facts exist. Facts are real. Facts are not fanciful constructions of the mind. Facts are facts. Like Jack Webb used to say as Joe Friday on the "Dragnet" TV series, "We just want the facts, ma'am." Today's courts are perhaps too inundated by outrageous performances by which lawyers seek to lead juries to believe hypotheses based solely on opinions, circumstances, or unsupported legal rhetoric and courtroom drama. Facts should be the bedrock of American justice. Facts and facts alone.

False

That which is not true. That which is false should never be admitted as evidence. A false statement intentionally made by a witness under oath constitutes perjury, a felony crime in most jurisdictions, punishable by imprisonment. Perjury in courts martial during time of war may be punishable by death. Finding the falseness in your opponent's case and putting it on the public record as admissible evidence is the key to winning lawsuits. Justice has so ordered the universe that the false often creates its own defeat, i.e., the party whose case is a mere fabrication is usually found out. Cross-examination is a tool that easily discovers the false and vindicates the true.

Falsehood

Any statement containing an allegation that is false. If only one small part of the statement contains a false allegation then, even if the false part is insignificant and the rest of the statement is true as true can be, just courts are required to treat the statement as false. Falsehoods in a statement are like weak links in an otherwise strong chain. It matters not at all how strong the other links may be, if one of the links is a lie then the chain is worthless and cannot be relied upon in court. Just as a chain can be no stronger than its weakest link, a statement can be no more true than the lie that lurks within it.

Fee Simple

Same as fee simple absolute.

Fee Simple Absolute

This is the most complete form of title to real property (land) an individual can hold. Ownership in fee simple absolute is complete ownership ... well, as complete as complete gets in this lifetime (since the Sovereign ultimately "owns" all land, and individuals only temporarily hold "title"). The fee includes all that's on the surface within property boundaries, all that's below the surface to the very center of Earth, and all that's above the surface upward to the infinite reaches of the universe. Other forms of ownership include life estates, tenants in common, joint tenancies, and conditional tenancies. Fee title (like all other title held by individuals) is always subject to rights of the sovereign that owns paramount title and can, for example, dispossess even fee simple title holders if taxes are not paid.)

Fees

Fees, i.e., attorneys' fees, are a critical factor to be carefully considered when deciding whether to sue or not to sue in civil courts. In most American jurisdictions, the prevailing party is awarded his costs but is not entitled to recover the expense of paying his lawyers. There are exceptions, and these vary from state to state, however in most cases both litigants must bear the financial burden of paying their lawyers. Unless the amount sought by the lawsuit is quite large, therefore, it may be a foolish enterprise to sue if you are going to require the services of a lawyer. In Florida's civil courts, an award of attorneys' fees can be obtained by the prevailing party in only three circumstances: (1) the issue is one pertaining to the terms of a contract, and the contract contains a clause providing an award of attorneys' fees to the prevailing party, (2) the issue is one controlled by some statute or other public law that provides for an award of attorneys' fees to the prevailing party, or (3) the court determines at the conclusion of the litigation that there never was any genuine issue of material fact or law, i.e., that the case was "open and shut" with no reasonable chance for the loser to win. Unless the facts and law in your case are so clear-cut that there is no "genuine issue" to put before the judge, or unless a contract exists that entitles the winner to recover his lawyers' fees, or unless the issues in the lawsuit arise from some law that provides for the winner to recover his attorneys' fees (as in Florida's residential but not commercial landlord-tenant disputes), you cannot make the other side pay you for fees your lawyers charge. In most jurisdictions the winner is permitted to recover his costs, e.g., filing fees, court reporter's fees, costs of deposition and hearing transcripts, and such like) but not fees paid to lawyers. If you sue on a contract make sure there's an attorneys' fee provision in the contract. If you sue for breach of some public law or statute, check for attorneys' fees provisions in the law. If you sue on some other issue and are absolutely certain you can make your case "open and shut", i.e., without the slightest scintilla of any genuine issue of material fact or law, make certain your jurisdiction provides for an award of attorneys' fees before proceeding. The amount attorneys charge sometimes exceeds what a lawsuit is worth. Beware of this pitfall that awaits the uninformed litigant.

Felony

Breach of public duty authorizing incarceration by force or other loss of civil rights as punishment for crime. Crime punishable by imprisonment, other restraint, or forfeiture of rights. See misdemeanor.

Fiduciary

This term comes from the root for "faith". A fiduciary relationship, for example, is one based on faith - e.g., a trustee or guardian in whom in entrusted a responsibility to act faithfully with regard to the property of others. Such a person is often called, simply, a fiduciary. When one occupies a fiduciary position, the law holds that person to a high standard of responsibility ... the breach of which can result in heavy penalties.

Finder of Fact

In a non-jury trial, the judge is said to be the finder of fact, ruling upon what is true and what is not. In a jury trial, the jury is the finder of fact, ruling upon what is true and what is not ... while the judge rules on the application of law to the facts that are found by the jury to be true. The judge always rules on the application of laws to fact. The finder of fact decides only the verity of evidence presented.

First Breach

See Anticipatory Repudiation.

Foreclose

To terminate rights in a matter. Most cases before the courts result in judicial decisions that grant one party certain rights and remedies, while foreclosing the rights and remedies of the other party, i.e., terminating the further claims of the losing party in favor of the winner. At the conclusion of probate proceedings, the rights of those entitled to an interest in the decedent's estate are established, and the rights of all others are foreclosed, i.e., judicially terminated. See foreclosure.

Foreclosure

Any judicial proceeding instigated to foreclose the rights of defendant parties to the action. Most actions for foreclosure involve defaulted promissory notes and mortgages, the aim of the lawsuit being to foreclose the rights of a mortgagor (usually a homeowner) in favor of a mortgagee (usually a bank). When the foreclosure action is concluded, the rights of the mortgagor are forever terminated, i.e., the rights of the mortgagor are foreclosed.

Fraud

Fraud is deceit in practice. To be actionable it must be intentional. Most fraud actions are brought to recover damages from a party who misleads another in order to gain some advantage or deprive the other of one or more rights. If the person defrauded reasonably relied on the fraud and suffered injury, the courts provide a remedy in money or in some cases an injunctive order to make the injured party whole again. When pleading fraud, one must be very specific spelling out the facts of what took place, how it was intentional, how the plaintiff reasonably relied, how it caused the plaintiff injury, and how the falsehood or intentional mis-statement of facts was intentionally used by the defendant to cause the injury. (There is no such thing as "negligent fraud". The fraudulent act or failure to act must be intentional.)

Fungible

This peculiar term is usually applied in cases where a plaintiff attempts to use conversion as a cause of action to recover damages for the taking of money. Money is "fungible", because any dollar can be replaced by any other dollar, i.e., the value of one dollar is no different from the value of another dollar. The law does not permit conversion to be used as a cause of action to recover damages for the taking of money, unless the "money" is something like a coin collection that is NOT "fungible", i.e., NOT replaceable by the substitute of just any other coins. One can use conversion to sue for the taking of a bicycle or other "tangible personal property" but not for the taking of money (or the taking of land which is "real property").

Garnish

See Garnishment.

Garnishment

See Writ of Garnishment.

Gift

A thing (money, property, or other right) granted to another with no intent to be re-paid. A common law maxim says, "A gift is not a gift until the donor transfers possession to the donee."

God

God, as understood by all religions and cultures throughout history, is all that is that truly is or was or ever shall be. Many founding fathers referred to God as Providence, meaning that force (or Law) in the universe that determines supernaturally that good actions ultimately bring good results, while bad actions ultimately bring bad results. God is Law with a capital-L, Law that cannot be refuted. God is truth that overcomes falsehood (sooner or later). God is the source and sustainer of all life. God permeates all things created, yet God is not the things created but is in them. God is everywhere at all times and will be everywhere forever, rewarding good and ultimately denying prosperity to those who do evil, proving truth and revealing falsehood. God is, therefore, love itself ... eternal and unchanging. God is not the absence of God, however. God created man with free will, and in this free will man has freedom to deny God, to ignore God, to live as if there were no God. It is in this denial of God that evil breeds, for here it is that men believe they can "get away" with evil, not knowing God is real, that the Law is never violated, that Truth will always be established and falsehood revealed for what it is. Falsehood is the absence of God. The motto of our nation is, "We trust in God." This is not the proclamation of a state "religion" but the common-sense principle that wise people believe truth ultimately prevails over falsehood, that good is its own reward, and that love is better than selfishness and hate. The oath required of witnesses at trial and officers of government embarking on their careers is a restatement of our nation's faith in God. Our prosperity as a people depends on our allegiance to the truth and our continued confidence that love will always prevail because God has ordained it to be so.

Good Faith

Some definitions of good faith explain the term as simply "honesty in fact", the practice of fair dealing, the process of doing unto others as you would want others to do unto you. Good faith arguments may be the key to winning many kinds of lawsuits.

Gratuitous

Without consideration, e.g., in the nature of a gift that's given with nothing whatever expected in return.

Greater Weight of the Evidence

The more persuasive and convincing force and effect of the entire evidence in the case. Also called preponderance of the evidence. This is the standard of proof required in most civil cases, as opposed to that required in criminal cases where a more stringent standard applies. See burden.

Guardian

A person empowered by court order to exercise part or all of the civil rights of another person called the ward. In some jurisdictions courts may appoint guardians only for those persons found to be completely incompetent or incapacitated to a plenary extent. In a growing number of jurisdictions, however, the courts may appoint guardians to exercise only part of a ward's civil rights. In many states, a guardian can even be appointed for an unborn child.

Guardianship

The legal relationship between a ward, a guardian, and the court system whereby one person is authorized and empowered to exercise the civil rights of another called the ward, who in turn is deprived of the civil rights transferred to the guardian by the court. Guardianships may be plenary or partial, according to whether the guardian is authorized all or only part of a ward's civil rights.

Habeas Corpus

Literally, to have the body. Habeas is a procedure by which one can test the right of the warden of a prison, for example, to hold an accused person who has not yet been charged or for whom no bail has been set. See Writ of Habeas Corpus.

Habendum

The habendum clause in a deed or similar conveyancing document is the part that says how the person receiving title may "have and hold" the property rights conveyed by the document. For example, a deed might convey real property from A to B "to have and to hold in fee simple absolute forever" or "to have and to hold for life" or even "to have and to hold so long as B remains sober".

Harassment

Anything intentionally done by one person to disturb or interfere with another person's right to be left alone.

Have and Hold

See Habendum.

Hearsay

Here's a term often misunderstood by even experienced lawyers and judges, yet its explanation is really simple if you apply common sense. You may remember the children's story about Chicken Licken, who said that Henny Penny said that Turkey Lurkey said, "The sky is falling." Dare we allow our courts (judges or juries) to infer from such a statement that the sky, indeed, is falling? After all, Chicken Licken isn't reporting what he, himself, knows. He is merely repeating an out-of-court statement made by a person who is not in court and therefore is not subject to being cross-examined on the truth of what the out-of-court declarant (in this case Turkey Lurkey) allegedly said. We cannot be certain what Turkey Lurkey may have said about the sky or even if he said anything at all about it, since Turkey Lurkey isn't in court to speak in person and be cross-examined on his testimony to determine the truth of it. Such statements are hearsay and are generally inadmissible. They are only generally inadmissible, because in all American jurisdictions there are exceptions to the hearsay rule. These exceptions go beyond the scope of this free legal dictionary but can be found in the local rules of evidence for your jurisdiction. Just remember that in general Chicken Licken cannot testify in court (or in any document filed with the court) about the condition of the sky unless he is saying so of his own knowledge. The attempt to establish a fact on the basis of what someone else said when that someone else is not in court and cannot be cross-examined is generally disallowed by the hearsay rule (subject to certain exceptions you will want to learn from your local evidence rules and commit to memory before you go to trial).

Hung Jury

When a jury cannot reach a verdict, i.e., when the vote is insufficient to reach a fixed conclusion, the jury is said to be hung.

Immaterial

A thing is immaterial if it cannot affect the outcome of a case. If a fact offered as evidence is immaterial, the court should sustain an objection to its introduction and strike same from the record. An example of an immaterial fact in a case involving a contract dispute between a homeowner and a swimming pool contractor would be the date on which the homeowner got his last haircut. If the fact presented cannot affect the outcome of the case, it is immaterial. See also relevant, pertinent, and material.

Impeach

To question a witness in such a way that his or her lies become apparent to the jury so the jury will give little or no weight to the testimony. For example, if a witness on the stand says the traffic light was green but at an earlier deposition he said it was red, you might impeach him by asking, "Were you lying then or are you lying now?" The jury won't miss a beat, and that witness' testimony will be ignored by at least most if not all the jurors. Lay people think about impeachment as a method by which politicians can be removed from office. In court this word has a different meaning. It works wonders and should be done each and every time you get a chance. Liars make poor witnesses! Don't put up with it!

Impeachment

The act of impeaching.

Imprimatur

Originally written permission to publish a written work, the term is now commonly used to refer to a signature that approves some action, e.g., the signature of a judge granting a petition.

Impute

A court imputes when it imposes by its order (or the common law makes a presumption) that a person has some knowledge or other possession, even when the person denies knowing or having the thing imputed to him. For example, a doctor who elects to quit his post at the hospital and become a bartender after being divorced so he cannot afford to pay more money in child support to his ex-wife may have the earnings of a doctor imputed to him, so the court can require him to pay what he might have been required to pay if he did not voluntarily reduce his income. Similarly, one is imputed to know his own name and the place of his birth. The court will impute a fact or situation to a person to secure justice that might otherwise be avoided out of willing ignorance or purposeful change of circumstance.

In Forma Pauperis

In the nature of a pauper. This term is applied to describe a lawsuit brought by one who claims inability to pay the costs of bringing suit. Most courts will allow an indigent to proceed, even though he cannot (or claims he cannot) afford to pay the court's costs, if he files an affidavit swearing under penalties of perjury that he is unable to pay. Frequently abused by people who have the ability to pay but think the rest of society owes them some benefit.

In Judicio

This term, in judicio, is sometimes used by litigants who want to impress the court with their knowledge of obscure Latin phrases. It refers to the case at hand, i.e., the case being judged at the moment. It's much better not to try to impress the court with terms the judge may not understand. Use simpler references, e.g., "the instant case" or, even better, "this case", etc.

In Personam Jurisdiction

Latin term for Personal Jurisdiction.

In Propria Persona

Frequently written in abbreviated form, "pro per", the term denotes those appearing in court without an attorney, i.e., appearing in their own proper person. See also pro se.

Incarceration

Imprisonment or other deprivation of the freedom to move about without restraint.

Incompetence

See competent.

Incompetency

See competent.

Incompetent

See competent.

Incredible

credible.

Indigence

The state of being an indigent.

Indigent

One who cannot (or claims he cannot) pay his own way. Also used to describe such persons, i.e., "John Smith is indigent."

Indispensable Party

Anyone whose presence in the case as a party is necessary to a complete resolution of all the material issues in the case is an indispensable party. Failure to join an indispensable party to a lawsuit is grounds for dismissal.

Inference

A conclusion that reasonably can be drawn from a particular fact or set of facts. In all cases that involve circumstantial evidence, inferences are drawn from direct facts that support the inference and from which facts no reasonable contrary inference can be drawn. Inferences in a court of law should not be fanciful, improbable, nor rely on other inferences. For more, see circumstantial evidence.

Informed Consent

Giving the go-ahead for a serious surgical procedure or signing a contract for something as simple as roof repairs implies knowledge on the part of the person agreeing. If a person doesn't really know what he's agreeing to, his consent is not informed, and the law may relieve him of the consequences. Unless there is informed consent, courts may hold the other party liable for damages, cancel the contract, or provide some other benefit to minimize the uninformed party's injury. Ordinarily, the law assumes parties know what they're getting into before they agree, however sometimes a party may be misled into agreeing without knowing all the possible adverse consequences. In some cases facts are hidden. People are told the benefits without being warned of risks. There is not a true meeting of the minds, because one party is not fully informed. And, where there is no meeting of the minds there can be no enforceable contract. Informed consent is permission granted by a person who has complete knowledge of the consequence of his or her consent, i.e., there is a complete meeting of the minds and so the party is bound by his consent because it is informed consent and therefore constitutes an enforceable agreement. The problem in court, of course, is proving how much information reason requires to be given and to what extent the person giving consent should reasonably have known the possible adverse consequences.

Injunction

An order of the court commanding that a thing be done or not done. An injunction might require a party to move a building or refrain from advertising a competitor's product. An injunction might take the form of a protective order, commanding one individual to stay away from another. Injunctions are very powerful and should be granted only in extreme cases where a money judgment would not suffice to make the injured person whole. In fact, if a money judgment would make the injured party whole, the injunction should be denied. If a money judgment cannot make the injured party whole, the injunction should be granted. (See our tutorial on causes of action.)

Intent

Motive to cause a result. Under some concepts of common law, every crime requires the element of intent, i.e., the act complained of must result from some direct motive of the accused to cause the act. In civil law, this is not always so, since a civil action will lie for damages resulting from bone-headed stupidity or blind ignorance as well as for damages resulting from the defendant' direct intention to cause the plaintiff injury. Battery, for example, is a civil cause of action that requires proof of intent, while negligence is not. Intent is often difficult to prove, so in some cases the law allows a presumption of intent to be imputed if the plaintiff can first establish certain preliminaries that give rise to the presumption, and the presumption thereafter shifts the burden to the defendant to prove he did not have the requisite intent. See presumption and willful.

Intentional

With intent, q.v.

inter alia

Literally among others. Seldom capitalized, since it doesn't appear at the beginning of sentences but adds to the words immediately preceding it. For example, "The plaintiff's principle argument, inter alia, is that ...", meaning the plaintiff has other arguments, among which is the principle argument the writer is about to explore.

Interest

A right or relationship that will be affected by the outcome of a case. A person who has no interest in a case is referred to merely as a person, while all persons whose rights are or may be affected by the outcome are called interested persons. If the interested persons are actually named as litigants in the case, they are properly called parties. If you hold legal title to a parcel of real property, you are said to have an interest in the property, and the interest you have is said to be vested. If you are named as a beneficiary in someone's will, you are said to have an interest in the person's property, however until the person dies he may change the will, so your interest is said to be not vested. An interest vests when it becomes fixed in the person holding the interest.

Interested Persons

Persons whose rights or relationships will be affected by the outcome of a case. In probate matters, an interested person is anyone who may have a right to recover property from the decedent's probate estate.

Interrogate

To question.

Interrogation

A session of questioning. A witness may be interrogated at trial or at a deposition. An accused person may be interrogated at the police station or in a squad car. Any questioning is interrogation.

Interrogatories

One of the really fun tools you have to get at the truth of matters you must prove to win your lawsuit is a discovery tool called interrogatories. Interrogatories are really nothing more than a set of written question the other side must answer under oath within a set time limit (varies slightly from jurisdiction to jurisdiction). By getting your opponent to answer your interrogatories you establish facts in your case. If your opponent answers truthfully, you can hold him to his answer for all purposes during the proceedings. If your opponent lies or answers incompletely, you can file a motion to compel him to answer truthfully or you may even file a motion for an order to show cause why he should not be held in contempt of court. If you catch him in a lie, you may win your case without ever going to trial. Use interrogatories. Be careful how you word your questions. In some jurisdictions you may be limited to a particular number of total questions you can ask.

Irrelevant

A thing is irrelevant if it does not directly relate to an issue in the case. See relevant.

Judgment

The order of a court determining the outcome of a dispute. Judgments are issued by judges, who are the only persons having authority to enter such orders.

Judgment Creditor

One in favor of whom the Court has issued judgment finding the judgment debtor to owe money.

Judgment Debtor

One against whom the Court has issued judgment finding he owes the judgment creditor money.

Judgment Proof

An individual who owns nothing (or owns only property that is exempt from levy pursuant to state or federal law) is said to be judgment proof. If an individual doesn't have any non-exempt property, suing him is a waste of time, because a money judgment against him is useless if you cannot collect what the Court declares that he owes.

It's always a good idea, if possible, to see if the person you intend to sue is judgment proof. If he has nothing to recover, you're only wasting your time to file a suit against him.

Judicial Discretion

See discretion.

Judicial Notice

The court's declaration of fact and/or law that controls the outcome of a controversy. The court may do this on its own, or it may do so upon the motion of any party at any time. The court may be moved to take judicial notice of any commonly known fact, e.g., that Tuesday regularly follows Monday or that the moon was full at least once during the past 30 days or so. The court may also be moved to take judicial notice of any law that controls the outcome of your case, whether the law is statute, constitutional, or case law. Any law. Any commonly known fact about which reasonable people do not dispute. Judicial notice is an excellent way to establish a fact you need to "prove" in order to win your case. This is your right ... part of your pen power.

Judiciary

The judiciary is that body of individuals who are the judges and justices of our courts (as opposed to clerks, bailiffs, and lawyers). The judiciary is a powerful moral force in our nation. The judiciary molds the mores of our nation by entering orders and judgments that affect us all ... often in ways we don't want and don't recognize until the damage on our society has already come upon us. You need to understand the judiciary's great power and learn how to control it peaceably for the good of all. Learn how to use The Rule of Law and the principles and practices of due process taught by Jurisdictionary. The judiciary is supposed to interpret the law, not make it. Too often they act "above the law" to change the law, and we all suffer as a consequence. Learn how to control your courts!

Jurisdiction

The jurisdiction of a court is its legal authority to act. This is very important. Different courts have different jurisdictions. Please take note that every court does not have jurisdiction to hear every kind of case. Some courts are limited to a maximum dollar amount. Other courts cannot hear family matters or lawsuits between parties fighting over property boundaries. If you are sued, make certain the court your opponent selected is the proper court, i.e., that the court you are in actually has jurisdiction over the matter presented by the plaintiff. If you are the plaintiff, make very sure you are in the right court.

Jury

A panel of lay-persons assembled to hear evidence in a trial and to determine the truth or falsity of such evidence. The jury is always a finder of fact, while the judge always rules on the applicability of law to facts found by the fact finder. (In non-jury trials, the judge acts both as finder of fact and to decide the applicability of law to the facts that are found.)

Justice

Justice is both a metaphysical and a political concept.

Philosophers agree there is a divine justice that rules everything and everyone, while the political machinery of human institutions can only regulate the behavior of individuals in the name of the state. The two forms of justice are clearly not the same.

Justice in the divine sense is rule of God by which goodness and truth eventually triumph over evil and deception. Justice in this sense is an eternal unseen framework that reaches beyond human reason to bring about the downfall of evil and deception by prospering kindness and truth. Human justice can never be more than an approximation of the divine.

Human justice is fraught with human failures. Sometimes the rule of the state is good and sometimes it is wholly evil and corrupt, serving self-interest instead of justice. Men mete out human justice in accordance with written laws penned by mortals serving their own self-interest. God, on the other hand, measures each of us according to a higher justice that obeys a simpler, yet far more comprehensive set of laws.

The goals of human justice are too often aimed only at securing domestic tranquility and promoting peace and prosperity for the state ... not necessarily with consideration for the welfare of individuals who at times may challenge the wisdom of political leadership and for their efforts suffer penalties of imprisonment, banishment, or death.

Divine justice always abides in truth, ruling galaxies of stars as well as every form of human enterprise.

Man's laws are frequently evaded.

God's laws never are.

Man's justice proposes to meet the needs of human destiny through collective management of individuals through force. This is not Justice in an absolute sense, but justice as man's approximation. Man's justice is achieved through the exercise of police power to enforce the collective will against individuals.

In western society justice proposes to protect every individual, i.e., the common man. In this we prosper. As we work together to protect innocence we pave the way to a brighter future for our children. Justice keeps it bright. We act in concert because we all want what justice alone can secure for us -- peace.

So, in spite of all adversity, justice and peace march steadfastly forward against the crazed pitch of self-interested opposition.

Justice tempered by mercy should be our goal ... justice founded on written law, not the cruel man-hating whims of some who take it upon themselves to know what's best for all of us. Justice keeps them at bay.

Mercy holds the scale. Wisdom tips the balance.

Will we prepare future leaders to submit to the rule of law? Will we constrain them to operate within the principles of due process?

When man takes the law into his own hands (either individually or through the power of the collective and its court systems) to achieve what he (or the collective) wishes to achieve (outside the law) it is then that wars begin. Whether man's justice will be constrained by the Rule of Law and the power of due process is a question facing each of us. Will justice survive, or will the collective and powerful self-interested forces within the collective destroy individuality and the Rule of Law altogether?

Justice thinks upon these things. Will we?

We can make the future brighter by passing the light of our American heritage of law to future generations, or we can allow the light to dim and ultimately fail altogether by being forgotten or purposely hidden from us.

The challenge of lifting the lamp of liberty is presented to us each moment of our lives.

Now we choose. Will we obey Law ... or man?

Will each of us be equal with all others, or will the rich and powerful rule?

How much will your children remember? Who will secure justice for them? Will they even know what justice is? Justice is the lamp of liberty, truth in action. It is man's eternal challenge to lift that lamp for future generations, so they may find their way to peace. Fight the battle for their destiny.

Teach your children how to win!

Judges sitting on supreme courts, including the United States Supreme Court and supreme courts of the various states, are called justices instead of judges out of reverence for their high office.

K (the letter)

The letter K when used in a lawyer's hand-written notes stands for "contract". Don't ask us why. The letter is a form of shorthand for the word "contract" taught to law students so they can take class notes faster. Some older lawyers still use the practice.

King's Evidence

A term used in monarchies synonymous with "state's evidence" in the US, where one of a number of accused persons is given immunity from prosecution in exchange for testifying against his alleged accomplices and co-defendants.

Known

A thing is said to be "known" when it has been established as a fact. The court may take judicial notice of the fact, if it is widely accepted to be true and there is no reasonable room for doubt, or the court (or jury) may rule that the thing is a fact after hearing testimony and examining tangible evidence and documents. A thing "known" is not "believed" to be true but is, for the purpose of your lawsuit, an established fact upon which you and the other parties may rely. There are three forms of knowing: (1) what a man knows he knows, (2) what a man thinks he knows but does not know for certain, and (3) what a man knows he does not know. Don't let the other side confuse the court by claiming to know what is not truly known.

Laches

Laches is a doctrine that operates much like statutes of limitation to limit the time within which a legal action can be brought.

Laches is seldom successful to prevent legal action prior to the deadline set by the statutes of limitation except when the plaintiff has unnecessarily refused to come forward sooner, witnesses have died, evidence is no longer available, or other reasons exist that some protection should be afforded to the defendant who would be unfairly prejudiced by the inability to defend and the limited economy and resources of the court to hear cases what are unlikely to go forward because of the limitations caused by the plaintiff's unnecessary delay in bringing the case sooner.

Law

Strangely, this all-important term is not widely understood ... for it can have many meanings, depending on usage.

For example, there once was a time when men with dark skin were not permitted to enjoy the same civil rights as men with significantly lighter skin. There were "laws" that kept such people in the back of the bus or drinking from specially-marked water fountains in public buildings. Segregation was the "law" for many years ... until wiser men made new law to replace the old. Such laws derive from human legislation and can be changed.

Even constitutions fall into this category and, though they are not often changed and wisdom urges us to refrain from changing them except upon the highest priority, yet they, too, can be amended, revised, or done away with altogether.

Other laws like the maxims are self-evident truths that never change.

The meaning of "law" and its relationship to equity is the quest of that noble study known as jurisprudence. In American Jurisprudence our laws must submit to constitutions (state and federal) that require all living persons to be treated equally ... well, almost.

Constitutions seek equity, while legislation serves expedience.

There is a higher law than constitutions. That Law is God, ordaining eternally that some things are and will forever remain as they are, that day follows night, that kind action brings good results, that honesty is the best policy, that love is its own reward. This Law is not subject to our laws. When we intentionally harm others, this Law brings consequences we do not enjoy. When we do good to others, this Law brings inner peace and joy. This Law that is God cannot be changed by our legislation or our constitutions, for it matters not one whit what we decree about the force of gravity, for example, nor where we draw the line on the issue of when human life begins. God does not change no matter what we insist, how loudly we protest, nor how many laws we pass.

Hold an apple in your outstretched hand and open your fingers. The apple will fall. Invade your neighbor's land to murder his children and call it self-defense. You will pay a heavy price that God ordains. Give to those in need and God will reward you in ways past understanding.

This Law should guide us as we make our own laws for, if we are foolish in our legislative bodies and in our courts, God will exact a price from us as certainly as gravity pulls us toward the earth.

If, on the other hand, we protect the weak and poverty inflicted, protecting their equal access to the benefits of our government, and if we refuse to invade the province of our neighbors on the pretence of policing the world but honor them by keeping our own skirts clean, then God will reward us in due season.

Such is the Law of laws ... the Law of Love.

Love never fails.

No student can pretend to know what is needed to be known about law, until he or she submits to the Authority of that Unseen Hand that gives treasures to all who in love will give of themselves. This is the Law we may choose to obey and receive Life more abundantly ... the highest law of all and the greatest wisdom.

Lawyer

Though in years past there may have been a distinction between "lawyer" and "attorney" in this nation (as there is a difference between "solicitor" and "barrister" in England, the distinction is no longer recognized.

A lawyer these days is simply a man or woman who holds himself or herself out as having the competence to assist or represent others in legal matters. See Attorney.

Leading Question

See Cross-Examination.

Legal

Not contrary to codified law.

Legal Cause

An act or failure to act that by a natural and continuous sequence directly produces or contributes substantially to damage, so it can be reasonably said that, but for the act or failure to act, the damage would not have occurred.

Legal Description

To keep track of interests in real property legal descriptions are written into deeds, mortgages, and other documents identifying particular parcels with specificity.

Such documents must include more than a mere street address, e.g., "1701 Main Street, Jacksonville, Florida".

The legal description to such a parcel might read "Lot 10, Block 27, Plat Book 283 of the Public Records of Duval County, Florida." In those public records will be found even more precise information clarifying the exact location and boundaries, often with an official survey.

Legalize

To remove criminal penalties. When a particular behavior, previoulsy illegal, is legalized, there remains no criminal punishment for the behavior, i.e., individuals are free to participate in the behavior without fear of criminal prosecution. See decriminalize.

Levy

This word is both noun and verb. A levy is an action (usually carried out by the local sheriff, but also sometimes by a federal marshall) that seizes property from a judgment debtor, i.e., one who has been determined by court order to owe another (usually the result of the judgment creditor winning his case). As a verb, of course, the word is used as, "The Sheriff will levy on his property next Tuesday," where as a noun it is, "The judgment debtor's property is subject to a levy."

Liability

Responsibility for the legal cause on which a plaintiff has the right to file a lawsuit to recover his damages. Liability imputes duty. Failure to meet a duty results in a cause of action.

Liable

The state of being responsible for the legal cause on which a plaintiff has the right to file a lawsuit to recover his damages.

Libel

A form of defamation communicated in print, as opposed to speech. In order for a cause of action to arise for libel, the plaintiff must prove (1) the words printed were false, (2) they were communicated to others in print, and (3) the plaintiff suffered some genuine damage as a result. See also slander.

Lien

A right to foreclose on the property of another (tangible personal property or real property) to collect an amount owed but as yet unpaid. It is a non-possessory interest in that the lien holder does not have a right to enjoy the property but, rather, only the right to have a court of competent jurisdidiction foreclose the lien, i.e., to order the property sold to obtain money to satisfy the amount owed.

Limine

Preliminary. Pronounced Lim'-u-nee. Usually seen with a "Motion in Limine" that is filed prior to a hearing or trial in which the moving party wishes the court to rule that certain evidence be excluded as a preliminary precaution, i.e., to keep that evidence from even being mentioned. Very powerful when used in a timely manner.

Lis Pendens

When a lawsuit is filed over the right to possess real property or otherwise affecting rights in real property, the savvy litigant also files a notice to alert the rest of the world that rights to the parcel of real property are in dispute. This filing is called a notice of lis pendens, meaning "litigation is pending". If third parties search the public record before dealing with the purported owners of such property, they will find the notice of lis pendens and be duly warned that title in the property is disputed. Caution should be exercised before filing a lis pendens, however, for unless there exist legitimate claims in the property adverse to those of the owner of record, the party filing a lis pendens may be held responsible for damages to the owner and those seeking to deal with the owner in regard to the property. On the other hand, if the lawsuit legitimately challenges claims of interest in the real property, filing a lis pendens so notifies others and tends to prevent the purported owner from selling or otherwise disposing of the property until the relevant issues are formally resolved by the court.

Litigant

Any party to a lawsuit.

Litigation

Litigation is the process of prosecuting or defending a lawsuit. Litigation is an unavoidable expense of civilization, for without it people would be required to either suffer the damages caused them by others or resort to violence to redress their grievances. The right to litigate is your most fundamental right in America and other civilized nations. Litigation is part of the process that preserves peace. At the same time, litigation is becoming one of the most expensive and time-consuming enterprises known to man. Without it, we would realize very little progress against the avarice and abuses of those more powerful than ourselves. Yet, at the same time, litigation is constantly tearing at the fabric of the very political machine that makes it possible. Where labor and management create capital, litigation and its attendant expenses of time and money only consume capital and dissipate a nation's resources. We would do well to find ways to reduce unnecessary litigation in our world, however a truly free people cannot be denied the right to complain when they suffer injuries at the hands of others, and a just government will keep the courthouse doors open to everyone who petitions to be heard. Ours is said to be the most litigious society ever known, yet ours is also the wealthiest and most controlled of all societies in which the weak and few at least are permitted a voice and an opportunity to be heard complaining about the excesses of the powerful and many. Litigation in itself is not an evil. The misuse of litigation is an evil. By learning about the rules and language of litigation, you empower yourself to avoid the horrors of litigation and increase your chance for victory.

Litigious

Of or pertaining to litigation. Often used derogatorily to describe those individuals or societies of individuals who abuse the process of litigation.

Mala Fides

Bad faith. The opposite of bona fides, good faith. From mala for bad (where we get the words malefactor, malicious, etc.) and fides for faith (where we get the word fidelity).

Mandamus

A writ or court order directing a public official to perform his official duty. A writ of mandamus may be used, for example, to force a mayor to attend his town hall meetings or to require the clerk of court to give you access to a file that is part of the local public records. Mandamus from a higher court can be used to cause a lower court to enter an order instead of continuing to sit on your case. Mandamus can direct any public official, any branch. The President of the United States should be subject to mandamus by the U.S. Supreme Court, and every judge, governor, lieutenant governor, comptroller, court clerk, sheriff, and all other officers of each state should be subject to the mandamus of their state's supreme court. Mandamus is a very powerful writ. The power of mandamus issues only by a court, however it belongs to the people. The power is yours. You have a right to ask the court to issue a writ of mandamus for you anytime a situation warrants it. If you need to, you can use your mandamus power to make leaders do what their Constitutional job descriptions require of them. Make your school board do its job. Here's how. Get a writ of mandamus requiring them to do it. State Attorney's office won't act? Go to court. Complain for a writ of mandamus. Make public officials do their jobs. Use your pen power to move mountains. See Writ of Mandamus.

Mandatory

Required, usually as a condition to something one wishes to achieve or obtain and often enforceable by legal process. For example, in most jurisdictions it is mandatory to obtain and provide proof of liability insurance to operate a motor vehicle on the public streets and highways; failure to do so being accompanied by a penalty that can range from losing one's driving privilege to spending time behind bars.

Material

A fact is material if it is necessary to or can affect the outcome of a case. If a fact is not necessary and cannot affect the outcome of the case it is not material, and it should not be brought up. If a fact is not material, leave it out of your paperwork! See also relevant, pertinent, and dispositive.

Materiality

The materiality of a fact is the degree to which such fact is or is not material. Frequently, during the course of a lawsuit, one party argues the materiality of facts offered by the other side as evidence. If the court finds an offered fact is not material, it cannot be used as evidence in the proceedings.

Mediation

A quasi-judicial process by which the parties meet to seek a mutually agreeable result to their dispute. If the parties agree, the mediator will prepare a mediation agreement for the parties to sign. Both parties must appear for mediation or be represented by persons empowered to settle fully. If the mediation agreement is signed, the mediator will present it to the court, and an order will be entered binding the parties to their agreement. If the parties do not reach and agreement, the mediation is said to be at a impasse, and the parties are left to take their dispute to court. The best preparation for mediation is to know as much as possible about the law and facts prior to attending the mediation conference. Remember this: You are not required to settle with the other side. If the terms are not agreeable, tell the mediator you cannot agree to the terms, and the mediator will report to the judge that you and your opponent have met an impasse and cannot find room for agreement.

Meeting of the Minds

In settling disputes over contracts, courts may look to see if parties were in actual agreement, if there was a genuine meeting of the minds ... for unless there is agreement there is no contract. If, for example, a painter reasonably believes a contract required him to paint the barn red (i.e., if such an interpretation can be reasonably read from the parties' agreement) and the farmer reasonably believed his barn was to be painted blue (i.e., that the contrary interpretation was also reasonable), the court may relieve the parties of their obligation on the basis that there was no meeting of the minds and try to assist the parties to find some mutual ground for resolving their difficulty. If there is no actual meeting of the minds, there can be no enforceable contract, for contracts are only enforceable by our courts if both parties agreed to the same thing. The word "agreement" is synonymous in the law with "contract". See informed consent.

Memorandum

A detailed argument for or against a motion, usually stating the material facts and citations to controlling law. Plural is memoranda. See Brief.

Misdemeanor

A breach of public law that may require a fine but does not deprive the accused of his civil rights. Conviction on misdemeanor charges does not authorize incarceration, forfeiture of property (other than the fine), nor otherwise authorize the state to deny the accused his right to own property and move about free from restraint or imprisonment. See felony.

Money Lent

Exactly what it sounds like. Money loaned to another that now forms the thing in controversy before the court where the parties are arguing over who has a right to the money lent. Money lent is not a gift.

Moot

Used as either an adjective or a verb, a thing is moot when it is no longer effective, e.g., a dead issue. The famous case of Roe v. Wade dealt with the concept and should be studied, because the issue (being a pregnancy and matters related to the law pertaining to the voluntary termination of pregnancy) was likely to become moot before the courts could deal with it (since the courts could not be expected to reach a decision before the child was born). A moot point, therefore, is one that is beyond the reach of settlement. Either the point has been resolved, or it has disappeared by the action of time or some other change. The old saying, "carrying coals to Newcastle" comes to mind, because Newcastle is a town in England that has no shortage of coal and, therefore, it would be moot to carry coals to that town.

Mortgage

A conditional title in property given to secure promises or other obligations. Mortgages in real property (land) are commonly given to secure lenders by granting conditional title in the land as collateral to protect against default on the part of borrowers. Chattel mortgages may be given to collateralize an obligation by giving a conditional title in personal property. Depending on the terms of the mortgage, if the borrower defaults, the mortgage holder can foreclose to gain complete unconditional title.

Mortgagee

One who receives and holds a mortgage, e.g., a bank or other lender. An obligee.

Mortgagor

One who gives a mortgage, e.g., a borrower. An obligor.

Motion

Here is your power. You can move the court. To move the court you file a motion. Although you may speak your motions, it is far better practice to write them using the common sense language in separate numbered simple sentences, one subject, one verb, no connectors (like and, but, however, etc.), minimum adjectives and adverbs. Move the court. Don't request. For Heaven's sake, don't beg. Move the court. Say, "The undersigned moves the court to ... " and fill in the blank with any action you believe justice demands (usually an order resolving some dispute between you and the other party). If the court denies your motion, move the court to explain in a written order by what authority it denies your motion, i.e., move the court to say why. You are entitled to an explanation in writing from the court, i.e., a reasonable adjudication according to law and not just a curt "no". If your motion is reasonable and lawful, fair and even-handed, and does not unduly prejudice the other side, the court should grant your motion. Use this word a lot in your motions. Tell the court what it should do. Tell the court why it should do what you move it to do. Cite laws, if you can. State facts that are already part of the public record. Give the judge some solid ground to stand on, and a good judge will grant your reasonable motion in the interests of justice. Tell the court why it should grant your motion. Be as specific and concise as possible. Move the court to order what you wish. Let each motion clearly seek an order, and follow up each motion with a hearing at which you again ask for the order. Just like a salesman closing a deal, you must ask the court for it's order ... and if the order does not say what you think it should say then you must move the court to explain itself, i.e., on the public record. Keep on in this manner until you get what you want. Motions may be made by either side, and most motions may be made at any time during the court's jurisdiction over the parties and subject matter of the case. Well-stated and reasonable motions that seek justice are your most powerful tools to get what you want in civil lawsuits. Use motions to show the court what it should do, then demand justice.

Movant

One who makes a motion. The movant usually has the burden to prove his motion should be granted by the court, while the non-moving party has no burden to prove the motion should not be granted ... however, the wise non-moving party will research the law pertaining to the facts asserted in the motion and file a memorandum in opposition to the motion to explain why the movant should not be granted what he asks. The non-moving party should also be prepared to argue his memorandum in opposition at the hearing on the movant's motion, explaining to the court why the motion should be denied.

Move

Make a motion. Move the court for an order or other action.

Mutatis Mutandis

A phrase indicating that a document or thing may be changed or amended to reflect non-material matters (like a new address or telephone number) without changing the legal effect thereof. Altered, yet fundamentally the same.

Natural Law

A very misunderstood concept that refers to the order of things outside human authority and control. For example, it is widely considered a matter of natural law that one person has not the right to murder another without the authority of the state (as an executioner is authorized to take the condemned man's life by lethal injection or a soldier is authorized to take the enemy's life in combat during a declared war). Some people confuse natural law with the edicts for human behavior set out in their respective "bibles" or books of the law preserved by religious orders, however natural law is not codified. It just is. The Oriental concept of Karma is an expression of natural law. Another is the Quaker view, "If thou wouldst have a friend, thou must be a friend." More recently natural law is expressed as, "What goes around comes around!" Unlike man's law, nobody can violate natural law and "get away with it", because natural law is part of the order of the universe. Evil begets evil. Good begets good. Man's legislation has nothing to do with it. To paraphrase an old Beatles song, "The love we get is equal to the love we give."

Negligence

Carelessness, i.e., without care or concern for consequence. Since everyone has a duty to care for others and protect them from injury by using common sense and caution, careless acts that damage others, even when no injury was intended, may give rise to a cause of action. A tort, for example, may be intentional (such as when one slanders another) or negligent (as when one rear-ends another on the highway). Both acts give rise to a cause of action.

Negligent

With negligence, q.v.

Never

Not at all. Not in any degree whether large or small. Not at any time. Not today. Not tomorrow. Not ever.

Nonwaiver

A condition sometimes included in a contract or other agreement specifying that a particular circumstance of set of circumstances may not be construed as a waiver of rights otherwise established by the contract or agreement. For example, where A owes payments to B on a certain date, a nonwaiver may provide that B does not waive his rights under the agreement by failing to demand payment in a timely manner. This comes up frequently in rental or lease agreements where a tenant fails to pay on time and the landlord includes the nonwaiver provision so it is clear that the landlord reserves his rights whether or not he initiates eviction or otherwise demands payment, etc.

Notarial

Of or having to do with a notary, e.g., a notarial signature.

Notarize

To affix to a document the signature and seal of a notary attesting that the person signing the document either gave his oath (i.e., was sworn) or his affirmation, thus submitting that person to the authority of the court to punish him for perjury if the statements made in the notarized document are later found to be false.

Notary

An officer of the state authorized by law to administer oaths and accept affirmations. Many courts will not permit persons other than officers of the court to file papers with the clerk unless the papers are notarized. Notaries are typically required to file a bond with the state and give their own oath to uphold their office in accordance with law as a prerequisite to the issuance of their notarial seal.

Notice

Either denotes delivery of some communication or the communication itself, e.g., Notice of Hearing. There may be "actual notice" or "constructive notice", but always notice is in reference to the communication delivered. The word "notice" by itself has no "legal" effect unless connected to the communication that is delivered.

Notwithstanding

In spite of. EXAMPLE: "The boy was allowed to play on the team, notwithstanding the fact that he refused to practice."

Novation

When an existing contract is replaced by another, the new agreement is sometimes called a novation. This may happen in many ways. For example, a promise to give 5 cows for 3 pigs might be replaced by a promise to give 38 chickens for the 3 pigs. Or the original farmer might make a deal with his neighbor who agrees to step into his shoes and give 9 sheep for the three pigs. Any renewal of a prior obligation, whether by substitution of the value being given for the bargain or by substitution of one or more of the bargaining parties themselves, is called a novation.

Nunc Pro Tunc

Nunc Pro Tunc (Latin "now for then") is a term reverting a present circumstance to an earlier time, as if that circumstance had existed from the beginning. A trial court ruling on terms of a contract, for example, might decree the terms modified retroactively, i.e., from the time the contract was entered. If the contract originally provided for an unjust result, the nunc pro tunc order corrects the problem.

Oath

The solemn oath is a foundation of Western Jurisprudence and a necessity of our modern legal system, for it is the oath (and the potential violation of that oath) that gives a court power to prevent perjury (falsified testimony) and corruption of other evidence. Strangely, in some jurisdictions, not every paper filed with the court and not even all words spoken in the courtroom are "under oath" unless an oath was specifically administered by the judge or other officer of the court. If you doubt the truth of what the other side is saying and are unsure if they are "under oath", most courts will readily require such statements to be verified, i.e., made subject to the oath and thereby subject to the civil and criminal penalties for perjury.

Objection

When the other party does something contrary to the rules of procedure or the rules of evidence, the offended party should state an objection to the Court, in which case the Court is obligated to rule on the objection, either sustaining it or overruling it. When time permits, objections should be made in writing, stating what was done that is objectionable, citing the law or rule that declares it objectionable, and moving the court to strike or prevent the objectionable act. Of course, in the midst of hearings or trial one must make objections verbally, however (unlike what we see in the movies and on TV, it is not enough to merely say, "Objection, your Honor!" Better practice will state in a speaking motion the nature of the objectionable act and, if it is not obvious, cite to the law or rule that declares it objectionable. For example, "Objection, your Honor. Counsel is leading his own witness!" See sustain and overrule.

Obligation

The responsibility to do something. An obligation may arise from a contract, i.e., from a promise to do something, or it may arise out of public policy, where a moral or ethical responsibility imposes the obligation.

Obligee

One to whom an obligation is owed, e.g., one who holds an unsatisfied promissory note by which an obligor has obliged himself to pay the obligee whatever amount is due pursuant to the note. A mortgagee (lender) is an obligee, i.e., someone to whom the mortgagor (borrower) owes money.

Obligor

One who owes an obligation to another, e.g., one who signs a promissory note promising to pay an obligee the amount due thereunder. A mortgagor (borrower) is an obligor, who owes the mortgagee (lender) money.

Order

The object of every lawsuit. Judges enter orders commanding people to do things. For example, an order may command the bailiff to take an attorney or his client into custody for contempt of court. An order may command a witness to appear for deposition. An order may command that one party owes another party a huge sum of money. An order may even command a judge to do something, as when an appellate court directs a trial judge to admit some evidence that was excluded during a trial. An order may relieve the parties from a stay or give the sheriff authority to enter a warehouse and take possession of something stored there. All the power of our courts is wielded through the entry of orders on the record of the court clerk.

Overrule

When an objection in court is disapproved, the judge will typically rule on the objection saying, "Overruled", which means the objection is a nullity, and the party against whom the objection was made may continue what he was doing, e.g., requiring a witness to answer the question. See sustain.

Oxymoron

An oxymoron is any unlikely combination of words, e.g., required willingness, punctual procrastinator, advanced mediocrity, or singular redundancy.

Pari Passu

On an equal footing. Both parties are being treated equally by the court. None is prejudiced. Neither has an advantage over the other.

Party

A party to a lawsuit is a plaintiff or defendant of one kind or another, i.e., a person interested in the outcome as a contestant, sometimes also called a litigant. To keep the distinction clear, legal papers may refer differently to parties and persons who are not parties, making the distinction between those directly involved (parties) and those only accessory to the lawsuit proceedings like witnesses or others who are neither suing nor being sued (persons). Of course most parties are also persons in real life, however when you refer to a party you should use the term "party". When you refer others who are not parties, you should refer to them as "persons" to keep the distinction clear. (See Person)

Pecuniary

Of or relating to money. A pecuniary interest is one that attaches only to money, as opposed to interests in real property or personal property other than money. Interestingly, the word comes from the Latin pecunia that related to cattle, because the wealth of ancient cultures was measured more often in cattle than in gold or coin of the realm. Now the word only relates to money and specifies interests that attach solely to monetary value. Thus a pecuniary loss is a loss of money, not goods or property.

Pendens

Latin for pending, as in lis pendens a document one may file to alert the world that a lawsuit challenges an interest in property.

Pendente Lite

Literally, pending litigation. During the legal proceedings. So long as the lawsuit continues.

Pending

Waiting to happen. Not yet existing.

Per Minas

This ancient Latin phrase is used to escribe an action taken under threat or duress. If the action taken is to enter a contract, the law will not enforce the contract, because there was no "meeting of the minds", i.e., the party threatened was not operating out of his or her own will.

Per Stirpes

This term is most commonly used in wills and trusts to identify how property should be distributed among children and their lineal descendants. (Legally adopted children are treated by the law as if born to the adoptive parents.) Whenever the term is used, it specifies that if a beneficiary dies before the benefactor, then that beneficiary's children split the share of their deceased parent. If one of the children dies before the benefactor and has children of his own, those children split his share only, i.e., they don't "move up" in the lineal tree.

Peremptory Challenge

In the process of selecting jurors (called voir dire) jurors can usually be removed only for cause, i.e., there is something about the juror relevant to the proceedings that threatens to bias the juror one way or another. However, most jurisdictions allow a limited number of "peremptory challenges" whereby a juror can be removed on request without giving a reason. A party may simply not like the way a juror combs his hair or the way he fidgets in his chair. The court cannot refuse to remove jurors if peremptory challenges are used, even if no reasons are given.

Perjury

The intentional making of a false statement of a material fact under oath or affirmation. A person may lie to the court without committing perjury if he has not been first duly sworn to speak the truth. For example, a trial lawyer who gets away with "testifying" to the jury is usually not under oath, so his exaggerations or outright fabrications are not actually punishable as perjury (so beware). A witness who is first duly sworn and then knowingly makes a false statement of material fact, however, is guilty of perjury, a felony in most jurisdictions punishable by prison time.

Person

In the contemplation of civil law a person is any human entity who can exercise civil rights, such as the right to sue or be sued in civil court. The legal literature, however, opens some worm cans of thought. For example, in many states courts can be required to appoint an attorney ad-litem to represent an unborn fetus. Thus a fetus in those states is a person in the contemplation of law. Also still part of the law in many states is the unborn heir statute that provides that if the father dies before the fetus, the fetus has full rights of inheritance. Non-persons, of course, cannot inherit. Present laws on the books in many states recognized unborn humans as persons, in spite of Supreme Court rhetoric to the contrary. A corporation, trust, partnership, and similar business or legal entity (like the school board or city council) cannot be a true person in contemplation of law. If a person is a party to a lawsuit, that person should only be referred to as a party ... not as a person. (See Party)

Personal Jurisdiction

The authority of a court to command an individual or to rule in a case that will affect the status of an individual. Typically for the court to obtain that authority, the individual must have notice of the proceedings and be served with a summons or other official document alerting him or her that a proceeding has been commenced that will affect that person's status.

Personal Property

Personal property (also called personalty) is all property that is not real property. Personal property may be tangible or intangible. An example of tangible personal property is an automobile or diamond ring. Examples of intangible personal property are brokerage accounts or a cache of money. Note that money is considered intangible personal property because its value is not in the inherent nature of the "stuff" it is made of but rather in the intangible value it represents, while tangible personal property possesses value that is inherent in the "stuff" of it, e.g., the diamond ring. The nature of tangible personal property is somewhat obvious: horses, grapefruit (but not the trees in the grove where the grapefruit grow, for these are considered real property so long as they are part of the land), a coin collection (the value of which is inherent in the coins and not in their face value), or a box of breakfast cereal on the shelf. Tangible personal property is sometimes called chattel. Intangible personal property is sometimes more difficult to identify: a beneficiary's expectation under the will of a person not yet deceased, the unexpired term of a pre-paid lease, a seat on the New York Stock Exchange, goodwill in a going concern, and such like. Often in court the nature of property determines how the law applies to facts presented, for the law controlling one form of property may be entirely different from the law that controls another form. For example, the rules that regulate the sale of tangible personal property are not at all the same as the rules that control the sale of real property.

Personal Representative

Person appointed by the court to administer the probate estate of deceased persons, so-called because of the duty to "represent" the dead person by carrying out obligations of the decedent to satisfy claims of creditors and then to distribute the remainder of the decedent's estate to beneficiaries. In some jurisdictions the term used is executor (or the feminine executrix).

Personalty

See Personal Property.

Pertinent

A thing is pertinent if it directly relates to the issues of a matter. If a thing does not relate directly to the issues it is impertinent. A term sometimes used interchangeably with relevant is material. See also relevant and dispositive.

Petition

A pleading similar to a complaint but typically seeking something other than money damages. A petition sets out the facts on which the Court's relief should be granted, the law that gives the Court jurisdiction to grant the relief sought, and a prayer (pleading) for that relief. Where most lawsuits begin with a complaint, actions for relief from judgment, appointment of a guardian or executor, and prayers for injunctive relief may be begun with a pleading entitled "Petition", instead of "Complaint". See pleading.

Plaintiff

The party filing suit, as opposed to the defendant.

Pleading

Complaints and answers are pleadings. Motions and notices are not. Memoranda of law are not. Formal discovery requests are not pleadings. Only the papers that state the essentials of the plaintiff's or defendant's case are pleadings. Cross-complaints, counterclaims, third-party complaints, and the answers to any such complaints are pleadings. See complaint and answer. A petition is another form of pleading, seeking relief from the court. When a party states his case in court he is said to be pleading his case.

Plenary

Complete, total, absolute, without exception.

Possession

It's been said, "Possession is nine-tenths of the law," however this is an error that causes many people great problems. Possession only ripens into ownership when there is a lawful vested title in the person holding possession.

Power of Attorney

A notice to third parties given by a principal to his agent designating and identifying the agent as one having the principal's authority to act in his place and stead, i.e., on his behalf. In almost all jurisdictions, a power of attorney must be in writing, signed with formalities. Please note that third parties are not required by law to honor a power of attorney. Instead, the law will protect a third person (who has no actual notice of the invalidity of the power) who acts in reliance on the agent's representations. Ordinary powers of attorney become invalid upon the principal's death or mental incapacity. A durable power of attorney (one that specifically states that its validity will survive the principal's mental incompetence and which otherwise meets the requirements of law in the state where the agent attempts to use it on his principal's behalf) may remain valid during the principal's mental incapacity (if given by the principal at a time when he was mentally competent) but always becomes invalid as of the principal's death. All powers of attorney become invalid and without power when the principal dies. There are no exceptions. It is vitally important, therefore, that third persons doing business with an agent claiming to have power of attorney first ascertain that the principal is still alive (and, if the power is not a durable power) that the principal is still mentally competent.

Praecipe

A writ or order of the court directing the clerk to take some certain action.

Prejudice

To judge before evidence. If a case is dismissed with prejudice, the action cannot be brought again. If a case is dismissed without prejudice, the action can be re-filed at a later time (provided no statute of limitations or other right of action terminating event takes place before the case is re-filed). Evidence may be excluded on the basis that its probative value is substantially outweighed by the danger of unfair prejudice.

Preponderance of the Evidence

The standard of proof in most civil cases, as opposed to criminal cases where the standard of proof is much higher. See greater weight of the evidence and burden.

Preposterous

Outside the reach of reason. Incapable of being called reasonable. That which only a fool would believe, yet something that could nonetheless be true. The law has subtleties such as this to make us humble. Even the most preposterous story has been found to be true in actual cases. If truth is the goal we seek, then the fact that testimony is preposterous should not eclipse the possibility of its truth. Perhaps we need to raise our judicial sights to see beyond mere expedience to discover what is truly just. Preposterous stories may have a statistically improbable chance of being true, yet preposterous stories abound, and many of them are found to be completely true! This should tell us something. We should be careful in the dispensation of our courts' power. Innocent people can and do get hurt.

Presumption

Presumptions in law arise from presentation of facts that give rise to the presumption, whereupon the burden of proof shifts to the party against whom the presumption is made. Thereafter the burdened party must prove the presumption is false. Initially, however, the party seeking to establish the presumption must obtain a ruling of the court on preliminary evidence that gives rise to the presumption. For example, in a will contest where a decedent leaves millions to his stockbroker, instead of to his own children or other blood relatives (whom the law presumes to be the natural objects of the decedent's bounty), if the parties challenging the will can persuade the court to enter an order finding (1) that the stockbroker occupied a confidential relationship with the decedent, (2) that the stockbroker was active in procuring the will, and (3) that the stockbroker was not a person whom the law would expect to be a natural object of the decedent's bounty, a presumption arises that shifts the burden of proof to the stockbroker to prove he did not unduly influence the decedent to make his will. Presumptions are not inferences, q.v., which should be carefully distinguished.

Prima Facie

Clear on its face. The term literally means "at first sight". A prima facie case is one clear on its face, self-evident from a consideration of its pleading and the evidence thus far introduced so that, unless offset by substantial countervailing evidence presented by the other side, sufficient to gain a favorable verdict without more. Such cases shift the burden of proof, because unless the other side can discredit the prima facie case with a greater weight of the evidence, judgment must be rendered for the case that's clear on its face, i.e., meritorious and worthy of relief without presentation of anything more.

Pro Hac Vice

Taking the place of for this occasion. Most often used to describe the status of a lawyer who is permitted to appear on behalf of his client in a court outside his jurisdiction, e.g., an attorney admitted to practice law in Florida who is permitted to appear before a Chicago court to defend a client who resides in Florida but is being sued for damages alleged to have been caused by him in Illinois. Typically counsel appearing pro hac vice are required to associate with counsel admitted to practice in the foreign court so the court's time and limited resources are not taken up by the lack of the substitute attorney's knowledge of local rules, etc.

Pro Per

Abbreviated form of in propria persona, a term denoting those appearing in court without an attorney, i.e., appearing in their own proper person. See also pro se.

Pro Se

Literally "for self". A party who appears in court for himself or herself without an attorney is said to be pro se and is called a pro se party or pro se litigant. In general, individual persons always have the right to appear pro se, either as plaintiff or defendant. Corporations, trusts, estates, guardianships, and other legal entities typically are not allowed to appear pro se but are required to be represented by licensed legal counsel. See also pro per.

Probable Cause

Probable cause is a state of facts that gives rise to a reasonable presumption that a crime has been committed or that a civil cause of action has arisen. Since the definition requires use of the term reasonable, probable cause does not exist where it is unreasonable to conclude from the known facts that a crime has been committed or cause of action has arisen, i.e., probable cause does not exist because someone "feels" like it or because someone claims, "I just know he did it." Probable cause should be based only on solid evidence and sworn testimony ... not on opinion, hearsay, or vain imaginings.

Probate

Probate matters are judicial proceedings to determine the rights and interests of persons who may have a claim to assets of a deceased person. The term derives from a word meaning to prove, and the proceedings are primarily used to prove who has a right to the decedent's property and who does not. At the close of probate proceedings, if they are handled properly, the rights of all persons who do not appear and present their claims are forever foreclosed.

Probative

Able to determine proof. The probative value of evidence is its ability to prove or disprove a fact. If the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence, the court may exclude such evidence as inadmissible.

Profer

Same as proffer, q.v.

Proffer

As a noun, a proffer is a thing offered or presented for approval, something submitted to be tested, as evidence is submitted to a jury as proof. As a verb, a proffer is the act of offering or presenting for approval. The word is similar to "offer" but suggests that the thing offered is presented in an attempt to make a proof. Sometimes spelled "profer", the term is properly used not in the sense of an ordinary offer, as when one offers to hold another's jacket or offers to perform some service in exchange for money or goods, but rather in the sense that a small boy falsely accused might offer proof that he was at his neighbor's house when a baseball came crashing through the kitchen window. In this sense, a courtroom lawyer proffers evidence as proof of some proposition. Such an offer is called a proffer. Litigants who have the burden of proof must sooner or later proffer evidence in support of their case by presenting the court with credible, relevant evidence. A trial lawyer might proffer a witness, for example, or present some official, self-proving government document as proof of some fact he must establish to meet his burden of proof.

Prohibit

To forbid upon threat of penalty. To direct a person not to do a thing based on consequences created by law.

Prohibition

Of course this term is frequently used to refer to those days in the early Twentieth Century when law forbade the sale and consumption of alcoholic beverages. In general, the term means the act of law that prohibits. See Writ of Prohibition.

Promise

An offer to do something. If I offer to guard your henhouse while you're away on vacation, and you make no offer in return, there has been no exchange of promises. The law says I have gratuitously promised, and the law will not enforce my gratuitous promise, i.e., the law will not enforce a gift. If you offer me twenty dollars to guard your henhouse and I accept your offer by promising to sit on your back porch with a shotgun while you're away, there has been an exchange of promises and a contract is formed. If I fail to guard your chickens and a fox gets in and kills a few, you have a cause of action against me for breach of contract. On the other hand, if I dutifully sit on your back porch all week and you refuse to pay my twenty dollars, I have a cause of action against you for breach of contract. The contract arose from our exchange of promises, this for that, quid pro quo. Unless there is a promise for a promise, however, i.e., an exchange of promises that constitutes a meeting of the minds and an agreement between the parties is reached, there is no contract, and the law has no power.

Promissory Note

A negotiable instrument evidencing the existence of a promise to pay money. Promissory notes are intangible personal property, just like money, but they are not legal tender.

Proof

The heart of everything we hope for as justice at the hands of men. Where the rubber hits the road. The nitty-gritty of the nitty-gritty. Where man declares by the agency of his courts what is, i.e., where the collective proposes to declare the truth of a matter on the public record.

Proof is the purpose of courts. If a court is convened for any purpose other than to find the truth and prove it, that court is convened contrary to the will of man and acts in open contempt for all that human life aspires to. The purpose of courts is to prove the allegations of one party against another, to establish truth on the public record ... and this they should do according to law or be restructured at once in accordance with reason and the will of man. Proof is the duty of all courts. Proof and nothing short of it.

A proof is that singular outcome resulting from logical analysis of the facts in evidence. A proper proof does not admit of any other "proof", for a true proof is the only outcome that can result from logical analysis of the facts in evidence.

No proper proof can possibly be established on any foundation other than fact. If the facts in evidence do not support a particular proof, the proof must fail. If the facts in evidence support the proof and no other reasonable conclusion can be reached from a logical analysis of the facts, then and only then is the proof properly established. This is what proofs are.

A proof is most easily established on direct fact evidence, i.e., facts in evidence that support the proof directly without resort to the making of inferences as is required to reach a proof established on circumstantial evidence.

If no direct fact evidence exists to support a proof directly, the proof may be established from circumstances, however a proof established on circumstantial evidence must be quite completely as certain as a proof based on direct facts; reason compels it to be so. Therefore, where a proof is sought to be established from circumstantial evidence, the inference drawn from circumstances must be the only possible inference that can be logically derived from the circumstances, i.e., no contrary reasonable inference can be consistent with the circumstantial facts in evidence. Only a single reasonable inference can be considered. If multiple contrary inferences can be reasonably drawn from the circumstances, the proof must fail. The inference offered must lead directly to the sought after proof, and no direct fact evidence can exist that is contrary to the inference in any way or the inference must fail. No inference can be used to establish a proof on circumstantial evidence if any direct fact is contrary to the inference, nor can any inference be properly established from another inference.

Unless absolute certainty of proof can be established, no verdict should be entered. Any verdict entered without certainty of proof properly derived from a logical analysis of the facts in evidence is unjust by definition.

Many courts today miss this distinction, and untold misery results when innocent people are caught in the clumsy web of misinformation and the intentional abuse of the legal process by parties more intent on getting their way than seeing justice done. The only repair for this problem is a more general, widespread knowledge about the law and its processes. Every courtroom should be a theatre in which the search for truth is held to the highest possible standards. Any proof that is not certain is no proof at all. Just as in geometry, where proofs must stand solely on underlying facts that are susceptible of no alternative logical interpretation, so in a court of law every proof should stand on facts alone and be susceptible of no reasonable alternative proof.

The words proof and evidence should not be used interchangeably. Evidence is not proof, and proof is not evidence. A proper proof results from a logical analysis of evidence and stands as the only reasonable conclusion that can be reached from the evidence ... otherwise it is not proof but conjecture based on supposition, which should have no place in the verdicts of our courts of law.

Proximate

Directly resulting. Proximate damages are those directly resulting from some cause and not merely an indirect result of some remote initial event. For example, if someone kicks you in the shin and breaks your leg, your medical bills are damages resulting from the kick. To recover money in a lawsuit for your injuries, however, it may be necessary to prove that your damages were proximately, and not merely indirectly or remotely, caused by the other party's wrongful act. Perhaps your shin bone was already cracked or was unusually brittle due to advanced osteoporosis or other disease. Unless your injuries proximately resulted from the kick, you may not recover ... or you may be limited to a recovery for only that portion of your injury that was the proximate result of the kick, and not those resulting from your preexisting deteriorated condition. If an unruly child sets off a firecracker in a train station, where a luggage cart next to you has been negligently stacked too highly with suitcases and hatboxes that fall on your head when bumped by a nearby passenger frightened at the sudden noise, the issue of proximate cause arises. "What," the court may ask, "was the proximate cause of the injuries you sustained when the boxes fell on your head? Was it the unruly boy with his noise-making explosives? Was it the careless station manager who permitted the luggage cart to be stacked too highly? Or was it the exceptionally nervous fellow traveler awaiting the train?" The more proximate a cause, the more likely is the recovery of money damages for your injury.

Punitive Damage

Punitive damage is money awarded to plaintiff in CERTAIN cases where the defendant should be "punished" for being willfully malicious or grossly negligent. Punitive damage may be awarded in any case, if the jury deems appropriate under the circumstances presented by the evidence. A statute may provide for punitive damage (e.g., fraud cases) but it is NOT "generally available" except where defendant was willful and malicious or grossly negligent.

Purge

Literally to expel or drive out, as one might purge one's memory of a bad thought by drinking a gallon of tequila each day for several months! As used in the legal context the term usually applies to removing records from a file. A person convicted of a misdemeanor may, for example, in some states obtain a court order to have his or her record purged.

Quantum Meruit

Quantum meruit means, simply, "for what it's worth". It's that simple. Don't be bamboozled by legal jargon. Quantum meruit is a cause of action that arises when one person promises to do something for another, and the other takes some action that would cause a reasonable person to believe that the first person will perform, such as tendering a sum of money for what is promised. Even where there is no contract, per se, there may be a cause of action where a person gives value to another under circumstances that would cause the first person (if reasonable) to believe the second person will give fair market value for what he received. This is a very powerful cause of action that opens the door to recovering moneys advanced to others for services or goods never delivered. Quantum meruit offers recovery of "whatever the thing was worth". It is a beautiful invention of wise judges in the past who recognized that very often there is not a written or even a verbal contract between two persons yet an understanding exists upon the passing from one to the other of some value monetary in nature. The law recognizes the right of one to recover from the other for sums delivered for which no return value is given. This right gives rise to the cause of action known as quantum meruit. This is one of your common law causes of action. Don't let your opponents' lawyers steal it from you. Fight for your quantum meruit.

Quid Pro Quo

Literally "this for that". It is the heart and soul of contract law. One party gives a promise, the other side agrees. The two are bound. This for that. That so few persons are able to complete their bargains is no measure of the system that will fix your broken promises if you know how to use it. The system works for those who know how to be heard in court. The system is a good thing. Use it. Quid pro quo. Do your part. That's the quid.

Quiet Title

This term usually refers to an action to clear some confusion or dispute as to who holds title or other interest to a parcel of real property. (In rare cases it might be used to determine who has an ownership or other interest in personal property, e.g., a boat, airplane, farm equipment, etc.) When an adverse interest to title is alleged (e.g., by a lender claiming to hold a mortgage encumbering title or an individual claiming a right of easement on or through the property) an action to quiet title may be brought in a court of equity. To succeed, a quiet title action must allege and prove the adverse claim is a nullity ab initio, has been removed by some intervening process, or otherwise is contrary to good faith and should therefore be quashed by a court order in the interest of equity and the proper administration of justice. The successful outcome of such an action results in a quiet title.

Quitclaim Deed

The best way to explain this term is to tell the story of those who sell the Brooklyn Bridge every now and then. If one makes and executes a quitclaim deed to another, all the recipient gets is what the grantor had to give. If the grantor did not have actual title to convey, the recipient gets nothing. Contrast this with a warranty deed, by which the grantor pledges and guarantees that the title being conveyed thereby is good, promising to remain responsible to defend the authenticity of the title he conveys. With a quitclaim deed you get only what the grantor actually had to give ... and nothing more. You will immediately see the problems failure to understand this term can bring the unwary.

Quo Warranto

See Writ of Quo Warranto.

Real Property

Real property, as contrasted with personal property (also called personalty), is land together with the buildings and fixtures on the land. The law regarding real property ownership, transfers, rights, and duties is well developed and complex. Items of personal property (such as well pumps, central heating and air conditioning systems, in ground swimming pools, etc.) once affixed to real property so that removal requires substantial repairs to restore the real property to its former condition, are called fixtures and are thereafter treated as part and parcel of the real property in the contemplation of law. Interests in real property vary widely from total ownership (called fee simple absolute) to leasehold interests in which ownership is not actually conveyed. Limited conveyances of real property include interests for life, for a term of years, for the duration of some condition, or interests in trust.

Reason

The motto of this nation is, "In God we trust." God is truth. God is love. God is reason. God is found in court by seeking truth through the exercise of human reason ... not by mere hypothesis or superstitious speculation but by rules that establish truth and protect the innocent against injustice brought about by falsehood. Reason guides our courts, reason that refuses to deny the truth of God, reason that trusts in God. In court (more than anywhere else in life) reason can be relied upon and truth established. You have a right to demand that reason guide and control your courts so truth can be put on the public record! Let no authority steal this from you. If someone says or does something unreasonable in your lawsuit, you have every right to object and be sustained by the court. If the opposing party takes some action that seems unreasonable, object. If an attorney for the other side does something you feel is unreasonable, object. If your own attorney threatens some action you believe is unreasonable, object (and, if necessary, fire him). If the judge acts unreasonably, demand to be heard objecting on the record. Rely on reason. Let common sense direct you. Truth is reasonable, and nothing but truth has any place in our courts. Be informed, however. Don't rush into battle with your mind frozen on one idea. Don't ignore weak spots in your armor. Take time to doubt yourself. Try to poke holes in your ideas. Put your theories to the acid test. Prod every assumption. Dig deep if you want to win in court. Ask others. Before you take any action in court, ask your very best friend what she thinks. Listen to her! If she thinks your arguments are nonsense, listen to her! If she thinks the other side is wrong and you are right, you have gained common sense, and reason is on your side. Listen to others. Ask another friend, someone who can see both sides of the circumstance. Ask what she thinks about your claims, then listen to her. If she thinks you're reaching for more than your fair share, listen. If she agrees the other side should be ordered by the court to compensate you for your losses, you have gained common sense, and reason is on your side. Listen to reason. Share your case with anyone you believe you can trust. Talk about every matter before the court. Don't hide your weak points. Share all. See what others think. Ask how they feel. People with whom you share your case are human beings just like judges. If friendly counselors agree with your reasoning, so will good and wise judges. Analyze your case before and during court battles. Ask respected people in your community if they think your case is fair. Ask how they think the judge should rule. Tell them the entire story. Tell them all the facts. Ask, "Does this seem reasonable? What do you honestly think?" Then listen. If wise counselors believe your position is reasonable, it probably is. Fair-minded judges, from the highest federal court to the lowest local magistrate, will rule in favor of the more reasonable party. Reason rules American courts. This is the highest law of the land. That which is unreasonable has no place in courts of justice. That which is unreasonable opposes natural law and the common law of man. That which is unreasonable denies common sense. To support the unreasonable is unethical. No court should ever permit unreasonable verdicts. Unreasonable rule is tyranny that undermines the very security of civilized life for which purpose alone courts are justly established by lawful governments. Reasonable men and women should always prevail over unreasonable people.

Reasonable

Of or pertaining to the reasonable man, who is controlled by reason. There is no better way to define this word. Only by examining the reasonable man can any of us have any hope of agreeing what is reasonable and what is not. That is reasonable which the reasonable man would do or think or say, etc. Anything a reasonable man would not do is patently unreasonable. Therefore, to understand the term properly, one must examine the reasonable man.

Reasonable Man

Though some militant feminists might proclaim this an oxymoron, the "reasonable man" is a concept critically essential to the very framework of our civil judicial system. The reasonable man is a fictitious person. In real life there are very few if any persons male or female who could be said to be reasonable in every regard. Our civil law invented the reasonable man to serve as a standard for us all. Either we live up to the standard set by the reasonable man, or the court may find us to be unreasonable. In tort law, for example, negligence may be defined as the failure to act reasonably, i.e., as a reasonable man would act. The reasonable man exercises care not to injure others. To the reasonable man some truths are self-evident. The reasonable man knows the difference between direct facts and imagined conjectures. The reasonable man cares for his neighbor's welfare. He does not steal. He does not lie. He acts responsibly to others and to himself. He follows the Golden Rule. He is not required to throw his life away attempting to rescue the widow's parakeet from a marauding cat. He is allowed to exercise self-interest. He is not required to give his money to the poor. He is required, however, to act in a way that will not adversely affect the welfare of others or the welfare of society as a whole. The reasonable man exercises due diligence to ensure that his acts (including his words both spoken and written) do not injure others. The reasonable man sets the stage for civilized governments to establish a system of justice and fair play. What is good for the reasonable man is good for us all.

Reasonableness Test

When a judge exercises judicial discretion, the law imposes a responsibility to do so within reasonable bounds. When an aggrieved party believes there has been an abuse of discretion an appeal may be taken to the next higher court to challenge the judge's ruling based on the reasonableness test, whereupon the higher court is required to examine the lower court's ruling to determine if reasonable persons could disagree with the ruling. If the appellate court finds that the lower court's ruling complies with the reasonableness test, it will affirm. If the appellate court finds the lower court's ruling does not pass the reasonableness test, i.e., that reasonable persons acquainted with the law and facts might have reached a different opinion, the appellate court will either reverse the ruling or remand the case back to the lower court for further proceedings consistent with the appellate court's findings.

Recaption

The lawful taking back of property or persons illegally taken, but without going through the courts, i.e., using self-help to get them back (so long as it is without violence).

Recusal

Refusal to perform a duty, most often applied in circumstances where a judge either voluntarily refuses to hear a case or is removed from the case in response to a motion for recusal, usually on the grounds that the judge has a personal or business relationship with one or more of the parties or lawyers that's likely to unjustly influence the court's ability to rule without bias. Recusal is controlled by statutes and case law and will not be granted simply because a party "believes" the judge is, has, or is likely to decide contrary to what one might wish.

Recuse

See Recusal.

Redirect

Re-direct is direct examination that follows cross-examination by the opposing party. Re-direct must inquire only into matters already raised. Typically, when a party puts on his own witness, he must constrain his questions to direct questions, i.e., one is not ordinarily permitted to lead his own witness (e.g., "What did you see?"). Following the initial direct examination, the other side gets to cross-examine the witness, i.e., to lead the witness by suggesting answers within the questions (e.g., "You never saw the contract, did you?") Then the initial party may be permitted to re-direct, i.e., to ask additional direct questions inquiring into matters raised by the other side during cross-examination.

Regulation

Though the terms "regulation" and "law" are commonly used interchangeably, authorities agree that laws result from legislative bodies while regulations are promulgated by agencies and, in most cases, apply only to persons specifically answerable to such agencies. Though regulations are effectively laws, they are so only in respect of the ability of their issuing agencies to enforce them. Regulations that control court procedures, for example (i.e., rules of court) apply only to persons involved in court proceedings and not to the general public at large.

Relevance

The degree to which a fact or thing is relevant.

Relevant

A thing is relevant if it relates to a dispositive issue, i.e., an issue that can dispose of a controversy and thus decide the outcome of a case or some relevant part of a case. Relevant evidence, therefore, is evidence that tends to prove or disprove a material fact, i.e., a fact that if believed by the court would affect the outcome of a case. All relevant evidence is admissible unless it falls within one of the categories of restricted evidence, e.g., hearsay or privileged communications.

Relief

Relief may come in many forms. Relief from judgment, which is to reduce or cancel a judgment. Relief from stay, which is to allow the parties to proceed after the court has entered a stay order. Normally the only person who has authority to grant relief is the judge who has jurisdiction over the matter.

Relief from Stay

Relief from stay is sought whenever a court, e.g., a bankruptcy court, has entered an order staying the proceedings. The relief from stay order is obtained by filing a motion for relief from stay. Most commonly, the motion is filed in bankruptcy court where the filing of a bankruptcy petition creates an automatic stay of proceedings in any court where a party is attempting to collect from the debtor in bankruptcy. If the creditor holds a perfected lien (or if the debt arose as a result of a fraud or crime) the stay can be lifted. See Stay.

Remittitur

This word comes from the Latin mittere, to send. (We get the word "mission" from the same root.) To remit is to send something back, as when you send money or other value to satisfy an obligation. Remittitur is the noun form, sometimes applied as the act of a appellate court sending an appealed case back to the trial court to be reconsidered or the trial court "sending back" the exorbitant money judgment of an emotional jury that substantially exceeds what justice should reasonably allow.

Removal

Removal is the process whereby one obtains an order of the court directing the parties to take their case to another court, e.g., from state to federal court. For example, if a defendant is sued in state court and the case involves interpretation of patent or trademark rights (issues upon which our federal courts have exclusive jurisdiction) then he may move the court to have the case removed to federal court. The state court judge has no discretion to deny the order, because the state court has no jurisdictional authority to rule on issues of patent or trademark interpretation. The case must be removed. As with everything else in court, one must present and make a record with the court that shows he has a proper predicate (i.e., a valid basis in fact and law) to support a motion for removal.

Replevin

See Writ of Replevin.

Reply

When a defendant files a counterclaim or raises issues not included in the plaintiff's complaint, the plaintiff files a reply in response to the defendant's case. The reply is to the defendant's case what the answer is to the plaintiff's case, a response to the allegations of the other. When a defendant files affirmative defenses with his answer, the plaintiff should file a reply to the affirmative defenses, again a response to the allegations of the other. When an appellant files his or her initial brief, the appellee files a reply brief in response, arguing against the allegations of fact and law in the appellant's brief.

Repudiation

The process of refusing to honor the terms of a contract or other obligation. Examples are failure to pay an agreed amount, failure to deliver goods, and failure to perform services bargained for in the contract. See Anticipatory Repudiation.

Res

Latin for "thing", usually the thing over which people are disputing in a lawsuit, e.g., a dead person's estate or a house or diamond ring. The res in a lawsuit is the thing people are fighting about.

Res Ipsa Loquitur

A Latin phrase meaning simply, "The thing speaks for itself." The phrase is applied in cases where one need not prove a fact (such as the cause of plaintiff's damage) because the fact is proven by the damage itself. In law school we studied a case where a fellow was injured while walking under a window. He was hit on the head by a heavy falling object. The court reasoned that heavy objects do not fall out of windows other than as a result of somebody's negligence or intention. The injured party won his lawsuit without being required to prove how the object came to fall out of the window. The thing, i.e., the heavy object falling as a result of somebody's negligence or outright intention, spoke for itself, so no proof was required.

Res Judicata

A Latin phrase meaning simply, "The thing has been already adjudged." Res judicata is an affirmative defense by which a person sued may respond, "This matter has already been decided by the court and cannot again be litigated." If, in fact, the thing in dispute has already been decided by a court of competent jurisdiction, the issue is said to be res judicata and cannot be re-argued.

Rescind

To grant rescission, q.v.

Rescission

Rescission is an equitable remedy granted by a court to relieve a person from a contract unjustly entered into. A common example is the relief granted to a mentally incapacitated person who signs a deed giving away her house. Equity rules the law and, therefore, will not permit the wrong to be allowed. By rescinding the deed, it is as if the signature had never been given. Most courts require as a condition precedent to granting rescission that it be possible to restore the parties to their status quo, i.e., that after rescission they be in much the same condition as before. This would come into play, for example, if a family member were to get his mentally incompetent aunt to sign a promissory note for $100,000 then spend the $100,000 and later seek to have the court rescind the promise because his aunt didn't know what she was doing. This would, of course, work an unjust enrichment against the lending institution, so rescission would not be granted.

Respondant

One who responds to an appeal, as opposed to the appellant who initiates the appeal.

Respondeat Superior

A binding legal doctrine that holds employers legally liable for wrongful acts of employees when employees are acting within the scope of their employment. If an employee is acting outside the scope of his or her employment (e.g., eating lunch at a diner when he or she does a bad deed) the doctrine does not apply. In general, supervisors are responsible for the acts of their agents.

Responsibility

Responsibility is the consequence of duty. Each of us, in exchange for the benefits of living in community with others, owes a duty to all. That duty creates responsibility. Part of our responsibility is to answer claims for damages filed by people who say you injured them by breaching your duty. They must prove the breach, and they must prove the injury (Liability & Damages). If the complaining party can prove both, you lose and are required by government to meet your responsibility by paying the other side for their damages. Responsibility applies to both parties. We are all responsible to each other. It is the purpose of government to enforce our responsibility.

Restitution

The act of restoring a person to their former state. Paying for a person's damages is one form of restitution. Giving back stolen property is another. Restitution is no defense, however, because you cannot give back time.

Right

Talk about a difficult word to define! Dictionaries use terms like justice, propriety, law, and morality to define what's "right" (words themselves defined only in terms of "right") leaving the answer perhaps forever hidden in the human heart. Right is not wrong (another word over which there is much unfortunate disagreement). One man said right is not left. He made a game of asking children, "What's right?" Children tried again and again for an acceptable answer. "Right things are never left," he told them. Three related words in Spanish are: left, right, and straight ahead. A different view. Other words for right and left are dexter and sinister. Right is not merely lawful, nor is a thing necessarily wrong because it is against the law. Civil courts are ever searching for this truth. Good ones find it. Right results.

Rule of Law

Before America was born, men and women were ruled by kings who claimed divine right to rule, kings who changed laws to suit their personal whim. This was considered intolerable by our founding fathers who dreamed of a nation established on the rule of duly enacted laws ... not edicts of arrogant tyrants. Humanity lived under iron rule of one form of king or another for thousands of years until that fateful day in Philadelphia, when wise, courageous leaders gathered on the Fourth of July 1776 to institute a new form of government whereby people would rule themselves under law. This is what is known as the Rule of Law, i.e., justice administered according to written laws instead of the ever-changing desire of private interest. The dream of America is a land of liberty and justice for all. No longer will kings and tyrants rule us. We will rule ourselves, according to the Rule of Law. The Rule of Law lives in the hearts of free people everywhere. We know deep inside that each of us is entitled to be treated equally by government, that no men or set of men should be given special favors or powers to rule us beyond the limits of our written law. The Rule of Law asserts that men should not be trusted to govern others unless their rule is just, tempered by fixed laws that prevent tyranny, laws that stop individuals from accumulating wealth by force, laws that keep those in high office from exercising power without restraint, laws that deny majority power to act without due regard for the rights of individuals who are a minority, laws that prevent the powerful from plundering the weak. The Rule of Law decrees that Law shall govern us according to the will of the People and not by the will of ambitious men and women in high places. The Rule of Law is what our heroes died for in past wars for liberty. The Rule of Law is worthy of our highest aspirations and dedicated efforts as a united people. This principle that laws should govern instead of men -- laws of our making and not the cruel edicts of tyrant dictators or divine right decrees of kings -- is the bedrock of human justice, the philosophical cornerstone of these United States, and the foundation of hope for all mankind.

Sanctions

When one side or the other violates the rules or acts with bad faith toward the court or another party, the court may (on its own or upon motion by either side) enter an order awarding sanctions to the aggrieved party against the party causing the problem. Sanctions may be in the form of an award of attorneys fees or, if the violation is sufficiently severe, may result in dismissal of the bad actor's case with prejudice, i.e., without the right to re-file his lawsuit again later.

Scienter

Scienter is knowledge of the cause of another's injury or damages, or knowledge of a set of facts that favored or promoted the probability of injury or damages. Under eggregious circumstances, where a person having such knowledge fails to act reasonably to prevent the injury or damages, a civil court may impute to such persons the duty to act and for their breach of that duty hold them liable for the injured person's damages. A criminal court may find such persons' failure to act a punishable crime. Sometimes called "guilty knowledge".

Secured Party

One who holds a security interest.

Security Interest

When one party is owed money or some other obligation, collateral may be given to secure the obligation. That collateral is called a security interest. Often the property itself remains in the hands of the borrower, and the lender holds only a paper interest (lien, mortgage, etc.) in the collateral that is enforceable if the borrower defaults.

Sever

To cut into parts. A lawsuit may be severed in several ways. If a single plaintiff brings his action against two defendants for multiple causes of action arising from multiple independent acts unrelated in any way, either defendant may successfully move the court for an order severing the action into two lawsuits to avoid confusion, delay, or unnecessary expense that might jeopardize the defendants' right to present their separate defenses. If a single lawsuit involves multiple issues (even if between a single plaintiff and single defendant) such that justice would be threatened by confusion, delay, or unnecessary expense, the case may be severed. In general, a case is severable if it would confuse or delay justice or cause undue expense to proceed in a single action.

Severable

Capable of being severed.

Slander

A form of defamation communicated by speech, as opposed to print. In order for an action to lie for slander, the plaintiff must prove (1) the thing said was false, (2) it was communicated to others, and (3) the plaintiff suffered some genuine injury as a result. See also libel.

Solicitor

The name given in England to an attorney who for the most part works out-of-court to discover facts, research applicable law, and prepare his clients' cases for a barrister to argue before the bench.

Sovereignty

Sovereignty is the power to rule, the right (just or unjust) of rulers like kings. The “People� (that’s People with a capital-P) are sovereign in free states. The People rule themselves through due process and the political mechanisms we call Republics. Individually, however, people are not above the law ... as many claim their individual sovereignty makes them. Indeed, if everyone were above the law, there would be no law ... and no security for life, liberty, or the pursuit of happiness for any of us. We are sovereign "together", and only so long as we stand "together" acting in accordance with law, abiding by The Rule of Law according to the rules of due process. We the People are the sovereign in "free nations". Lawlessness is the enemy of Liberty.

Standard of Proof

The measure by which a court determines if a party has met his burden to prove what he asserts. In most civil cases the standard of proof is the greater weight of the evidence, also called a preponderance of the evidence. In criminal cases the standard of proof is much more difficult to meet.

Standing

If White sues Orange for damages Orange caused Blue, Orange will succeed with a motion to dismiss for lack of standing. White cannot stand in the shoes of Blue to sue for damages caused by Orange. White lacks standing. Similarly, White cannot sue the United States Government to stop the government from taxing "everyone", because White cannot stand in the shoes of "everyone". White can sue for matters that directly affect him and may prevail. But, White cannot sue for you or me or his next door neighbor, because he can only stand in his own shoes.

Stare Decisis

From the Latin "stand decided". Once a point of law has been explained and clarified in a published appellate court decision, the issue is said to be "stare decisis". It stands decided, the court's opinion is firmly settled, and those of us involved in litigation may rely upon it fully to control lower court judges.

Statement

Though this term is frequently used in reference to a confession in criminal cases or supporting affidavit in civil matters, in its most restrictive sense it applies to any expression of a complete thought, i.e., any sentence of words that begins with a capital letter, ends with a period, and contains at least one subject (noun or pronoun) and at least one predicate (verb). Though a statement may be a large number of sentences, each sentence must stand on its own as a statement and is either true or false. Any statement that lacks a verb (or, at least, an implied verb) cannot be true, just as any statement that lacks a subject cannot be true. Truth in court is truth in words. Not every string of words is a statement. A string of words without a verb is not a sentence and therefore cannot be a statement. Every allegation in court is made by statement and is either true or false. Of course, if a string of words fails to qualify as a complete sentence, it also cannot qualify as a statement and should have no more bearing on the outcome of a case than a false statement.

Statute of Limitations

Every jurisdiction in the United States limits the period of time one may delay bringing a lawsuit after an injury. If an injured party knew (or should have known) that an injury occurred on a particular date and does not bring the lawsuit within the limitations period, the case may be barred. Limitation periods differ by jurisdiction and by the type of injury. For example, suits for medical malpractice typically have short limitations periods, i.e., a person injured by negligent medical providers may be required to sue sooner after the injury than a person injured by breach of contract or automobile negligence. Check your local statutes.

Stay

An order directing that proceedings in a lawsuit halt, usually for a limited period of time so some out-of-court action can be accomplished or because some party objected that the court might not have jurisdiction, so the proceedings must be stopped until a final determination of the court's authority can be determined by a higher court. Appeals, for example, may stay the lower court proceedings. Another form of stay is an order that's typically entered in bankruptcy cases that stays, i.e., stops, the rights of creditors to sue a person or company that's filed for protection in the bankruptcy court. If a creditor can show his claim is based on a fraud or crime, i.e., if he can show that what he's owed is the result of a wrong instead of a debt in the ordinary course of business, he can file a motion for relief from stay and, if the court grants his motion, he can proceed to sue the bankrupt. See Relief from Stay.

Stet

Just as it is.

Stipulation

A written agreement by which opposing parties in a legal battle agree to settle their respective issues to avoid the expense, delay, and uncertainty of continuing their battle in court. Jurisdictionary^® includes a class on stipulations with sample forms and simplified explanations.

Strawman

One who stands in the place of another, usually in place of a person who wishes to do business through the strawman while remaining anonymous.

Strict Constructionist

The term strict constructionist is intended to describe judges, and more particularly justices of the U.S. Supreme Court, who "interpret" the US Constitution "literally". The problem is that one justice can interpret a provision "literally" from his own viewpoint, while another justice also interpreting "literally" from his separate point of view may reach an entirely different "interpretation" ... much as religionists claiming to rely on their inerrant biblical references arrive at different "interpretations" of what a partcular holy reference might mean ... usually to satisfy their own particular bent or favorite doctrine. So it is also with judges and appellate court justices. Having said that, Jurisdictionary is quick to add that we are better with those who at least come close to being "strict constructionists" than those liberals who try to mold the original framers' intent into their particular ken of today's moral climate or "the changing times". Some things never change, as the founders of this great Republic knew. It was because they knew the "things that never change" (the truths Jefferson called "self-evident") that they wrote our federal Constitution in the way they did, i.e., to protect the several states and their citizens from the foreseeable encroachment of centralized power that they feared would invade our daily lives - much as it has these past 50 or so years because of Public Legal Ignorance. Thank you for supporting Jurisdictionary's work to empower the People with Knowledge.

Sua Sponte

Voluntarily. Usually applied to a court order issued at a judge's own prompting, as opposed to an order issued after the court's consideration of a party's motion. To say the court entered an order sua sponte (or denied a motion sua sponte, or took any other action sua sponte) is to say the judge, after considering the facts and law pertaining to a matter before him, believed the situation merited the court's immediate action, so the judge acted without regard to any motion by a party. On its own. Spontaneously.

Subject Matter Jurisdiction

The subject matter issues a court has authority to rule upon. This can be limited by the amount of money in controversy or matters such as probate, criminal, small claims, etc. When a court lacks authority to hear a case brought on issues outside its scope, a Motion to Dismiss for Lack of Subject Matter Jurisdiction should be filed, and this motion may be filed at any time during the proceedings, even including at the trial.

Subpoena

A command issued by an officer of the court (usually the clerk) directed to persons or business entities to require them to produce themselves or documents and things that may be admitted in evidence. In some states attorneys licensed to practice before the local court can issue subpoenas. The subpoena is one of the five principal discovery tools parties use to get evidence into the court record. A subpoena may command a witness to appear for trial or for deposition. A subpoena duces tecum (bring the thing) is a command to appear and bring along those things listed in the subpoena duces tecum.

Sui Juris

Literally, "capable of answering lawfully in his own person", as opposed to one who is a minor or the ward of a guardianship incapable of being legally bound by his actions. If one is not sui juris he cannot sue or maintain a lawsuit in his own name but must have a court-appointed guardian to act for him. If a person is not sui juris he cannot be bound by contracts he attempts to enter on his own. Generally speaking, the term means, "of lawful age and not mentally incompetent". I recently received correspondence from an interesting young man who signed his name followed by a comma and this special term, e.g., "John Doe, sui juris." I thought it a peculiar thing to do and wondered whether he meant me to know he was over the age of 21 or wished me to assure me he was not crazy. I rather suspect the latter though, of course, the appended terminology did little to assuage my doubts.

Summary Administration

A simplified proceeding to administer estates of decedents who die without costly or complex assets. Different jurisdictions have varying rules for what size and types of estates qualify for summary administration and who may act as personal representative (executor/executrix). Typically those seeking to administer the estates of decedents who die owning real property or large amounts of cash or securities are denied this simplified process and are required instead to use the more expensive, time-consuming full administration process that calls for filing complete accountings, actual notice to creditors, and other protections for those whose interests might be otherwise adversely affected.

Summons

This is a form that summons people to appear in court. That's why it's called a summons. The summons is served on defendants with the complaint and is usually issued by the court on its own forms (instead of being drafted by litigants). In most jurisdictions, a clerk will draft the summons, sign it, and hand it to you or your process server to be "served" on the defendant with a copy of your complaint and any initial discovery requests you may include. The summons is in the form of a command. When "served" on a defendant, the summons gives a court what we lawyers call in personam jurisdiction, i.e., power over the person. If the person fails to respond after being served with a summons, the judge has legal authority to issue an order finding the defendant in default and awarding the plaintiff whatever money damages or other relief the plaintiff is praying for in his complaint (or petition). You are entitled to file a complaint and require the court to summon defendants to appear and answer (or show why they shouldn't be required to answer) your complaint. The summons is your power to require people (even the President of the United States) to answer your complaint. Remember from grade school how we were told we have the right to petition government for a redress of our grievances? Well, this little paper is the first step by which each of us has the right to require government to command others (under penalty of being cast into jail for non-compliance) to answer our complaints.

Supra

Above or before. Typically used in legal writing to refer to a citation that appears prior to a later reference to it. An appellate court might give a complete citation to a particular case (or statute, constitutional provision, etc.) early in a written opinion, e.g., Jones v. Smith, 287 So.2d 583 (Fla. 4th DCA, 1983). Then later in the opinion, the court may choose to make reference to that case again with an abbreviated citation, adding this term in italics, e.g., Jones, supra. The supra tells us the complete citation appears "above" or "before", and the reader is directed to that location for the complete citation.

Surety

A promise to stand for another (or the person making the promise). Companies that issue bonds are sureties, i.e., they promise (upon your paying the bond premium) to stand for you in the event of your default and to pay whatever amount they pledged to the person for whom they promised to stand. If your friend promises your creditor to pay for you if you are unable (or unwilling) to pay, that friend becomes a surety for you ... though, in all probability, unless his promise is committed to a writing, signed and dated, his promise is probably not enforceable. Though related, surety is not the same as guarantee or warranty that are more directed toward performance of some bargain or the quality of a thing. Sureties stand in the shoes of promissors, i.e., they make a promise to keep your promises (for which, of course, you usually have to pay money).

Surety Bond

A contractual promise to provide surety for another. Typically, surety bonds are pledged to release some collateral or to lift a lien. By the surety's pledge, the person holding collateral or a lien has a new form of protection and so can release. Obviously, the value of a surety is no greater than the assets the surety owns. Large bonding companies, for example, may have assets in the billions of dollars, so their pledge to stand in your shoes if you default is solid. This is the bedrock of the bond business.

Sustain

When an objection in court is approved, the judge will typically rule on the objection saying, "Sustained", which means the objection stands as stated, and the party against whom the objection was made must cease the objectionable action, e.g., cross-examining his own witness. See overrule.

Swear

To subject oneself to the court's penalties for perjury by taking an oath attesting to the reliability (truthfulness) of one's testimony or written statements.

Sworn

A statement is sworn if given under oath or affirmation.

Tender

An offer to transfer possession of something to someone else (e.g., tender of payment of rent or return to your neighbor of a borrowed set of golf clubs). One is said to have tendered when the offer is made with the present ability and intent to complete the transfer.Take a look at a dollar bill (or any other denomination) and you'll see written thereon, "This note is legal tender for all debts public and private," meaning you can tender the bill to pay any private or public debt, and the party to whom it is tendered cannot refuse receiving payment thereby (at least in the U.S.).The interesting thing about tender is that it need not be accepted! Whether the tender is accepted or not, tender is still made if the offer to transfer has been extended in a reasonable manner indicating the present ability and willingness to complete the transfer. One may tender payment of rent (return of a borrowed set of golf clubs, for example) and the other party refuse to accept, in which case tender has been made, regardless of acceptance, and our courts will recognize the offer and adjudge the respective rights of the parties accordingly.

Testamentary

Of or pertaining to wills or other instruments intended to be operative only upon the death of the person executing them.

Testamentary Capacity

The ability to understand the nature and extent of what one owns at the time of making a will and also to at least understand who the rest of the world might consider to be those persons naturally entitled to receive the benefit that will be conferred by the will at death (whether or not those persons are named in the will to receive a bounty from the testator or testatrix as beneficiaries) One may have testamentary capacity and be delusional to the point of believing their are pixies playing trombones in the trees, so long as the person knows generally what he or she possesses and knows who the rest of the world would normally expect to receive a benefit from the will when the person dies. In most states, persons under guardianship lack testamentary capacity as a matter of law.

Testator

The term used to refer to a man who executes a will.

Testatrix

The term used to refer to a woman (or girl) who executes a will.

Testify

To give testimony.

Testimony

Any statement made before the court (including testimony taken at a deposition). In most cases this word refers to sworn verbal statements made by witnesses appearing in the courtroom to give evidence, however technically any statement made in a proceeding before the court is testimony. Lawyers, for example, may attempt to give testimony while they interrogate a witness. Leading the witness is one of the common ways this is done, and it is acceptable practice. Sometimes, however, a lawyer will speak to the jury, telling them what happened on such and such a day when the lawyer was nowhere around. This kind of testimony is not acceptable and can, in eggregious cases (i.e., extreme) be cause for the court's declaring a mistrial. Testimony should only be considered reliable when given by a person who is first sworn or affirmed and has first-hand knowledge of the facts alleged.

Theft

Intentionally obtaining possession of property that belongs to someone else (even if only temporarily) is theft. Of course taking any kind of property (money, car, book, or even a pencil) with intent never to return it, is also theft. It's theft, whether or not you intend to "give it back". Taking your friend's car for a joy ride (even if you intend only a single trip round the block) is theft. Borrowing money from mom's purse without permission (even though you intend to pay her back) is theft. It's a crime and also a civil wrong for which you can be sued on a cause of action called civil theft. Not only can you go to prison, but you can be required to pay the person back and, in some civil courts, theft victims are awarded judgment for the value of the thing stolen plus three-times its value as a penalty together with all their attorney&rss fees and costs. Finally, the fact that you offer to pay a person back or are required to pay them back together with treble damages, you can still go to jail. Restitution is no defense.

Title

The right to property, real property or personal property. Title is also the name of certain documents (e.g., automobile or boat title) that grant the right of ownership to property.

Tort

A civil wrong, either negligent or intentional, that results in damages to another. Torts arise from the breach of a duty that does not derive from contract obligations. Examples are fraud, deceit, conversion, breach of trust.

Tortious Interference

Malicious, intentional influence of the customers or employees of another causing loss of business. The complete term is "tortious interference with an advantageous business relationship". See tort.

Tribunal

Today this is just another word for the court, i.e., the judge or judges on the bench, regardless of the number of judges. Nearly all lower courts are presided over by only one judge or magistrate. In many state appellate courts decisions are made by a panel of three judges. Exceptional cases may be decided by five appellate court judges. The United States Supreme Court often sits as a panel of nine justices. The term tribunal is commonly applied regardless of the number presiding.The term derives from days of long ago when capital and other highly critical cases were decided by three judges, instead of only one, to offset the risk of human bias and promote justice.

Trier of Fact

The trier of fact in a civil case may be a jury, a judge, or a panel of judges. In a jury trial, the panel of jurors is given the responsibility to rule as to which side should be believed in regard to the facts presented ... however, the jury never is relied upon to decide the application of law, which is always left to the judge or a panel of judges.In a non-jury trial (e.g., probate and guardianship proceedings in states like Florida or bankruptcy proceedings in federal court) the judge (or a panel of judges) decides matters of fact and application of law to the decided facts.Usually, decisions of the trier of facts are not overturned except in the egregious circumstances when the lower court may be reversed by an appellate tribunal, i.e., lower court decisions in regard to the reliability of evidence presented are seldom overturned unless there has been a clear abuse of judgment that justice cannot abide.

True

A statement is either true or it is false. If true it contains only allegation of truth. If the statement contains any allegation that does not fall into restricted category known as truth, then the entire statement is deemed false in a court of law. In other words, a true statement contains no falsehood whatsoever.

True Bill

The official finding of a grand jury that the evidence before it justifies indictment and further criminal proceedings.

Trust

Trust is the faith, i.e., the confidence, one person places in another. Without it, the civilized world and all its enterprises would grind to a frightening standstill. Nearly every human endeavor imaginable depends in one way or another on trust. The responsibility entrusted to the person in whom trust is reposed is called a fiduciary duty, i.e., the duty of good faith.A trust is also a legal entity that is treated in the contemplation of law as an individual person able to hold and manage property, to prosecute and answer lawsuits, and to carry out the business and financial activities that an individual human being might be able to do in his own name. Every trust has at least five "identities": (1) a grantor (sometimes called the trustor) who creates the trust initially, (2) a trustee into whose care and keeping the property of the trust is committed, (3) the property itself (sometimes called the corpus), (4) at least one identified beneficiary, and (5) a declaration of some sort (preferably written and subscribed with the necessary formalities to make it enforceable in a court of law) by which the world is put on notice of the terms and conditions by which the trustee is to hold and manage the money for the use and benefit of the beneficiaries.Though a trust is treated as a separate individual (e.g., may be required to pay taxes), the actual business of a trust is always handled by a trustee who holds legal title to the trust property, while the equitable (use and benefit) title resides in the named beneficiaries.When a trust sues or is sued in court, the trustee appears on its behalf and, in most jurisdictions, is required to appear by an attorney rather than individually.Drafters of trust documents should be careful not to declare a trust that would survive any of the named persons by 21 years or more, for to do so would void the trust in most jurisdictions for violation of the public interest rule against perpetuities. In other words, no valid trust can be created in most jurisdictions if the trust will survive the named persons by 21 years or more, and trusts that attempt to violate this rule against perpetuities may be declared ineffective nullities.

Truth

Truth is that which is. Truth includes what was and what is yet to be. Truth is the sum of all facts. Truth is not subject to interpretation or opinion though, certainly, there is no shortage of human views of what is truth and what truth is not. In spite of all opinion, truth is not subject to human views. Truth exists even where no human ever ventured. Truth was in the beginning and will endure beyond the end.No false thing is ever true.No truth is ever false.Truth is the litigant's most powerful tool. Cling to it. Insist upon it in your lawsuit. Demand it from your adversaries, and compel the court to permit no deviations.Lawsuits should be decided solely upon the merits of the law and facts.No lie has any place in the deliberations of justice.Let truth alone guide our courts.

Ultra Vires

Latin for "beyond the life", i.e., outside authority. This phrase is most often used to describe the unauthorized act of a corporate officer or trustee who undertakes to do an act that is beyond his actual power.

Unclean Hands

The doctrine of "unclean hands" applies to cases where one party seeks to persuade the court to exercise its equitable discretion, so the court looks to see if either party has dirty hands, e.g., whether one party has done something unfair with regard to the issues of the case. It is not enough if one party has an unsavory history. The "unclean hands" must apply to the issues in controversy, such as preventing the other party from performing his contract, etc. The ancient maxim is, "He who comes to equity must come with clean hands."

Undue Influence

When someone influences another who is susceptible of being swayed in opinion or decision because of mental infirmity or other debilitating factors, causing the weakened person to make a legal choice (such as changing their will) the wrongful act is called undue influence.Upon being presented with sufficient evidence of undue influence, a court my reverse the act, e.g., nullifying the will.In some states a legal presumption of undue influence arises if the influencer occupies a position of trust with the person unduly influenced (e.g., a child or long-term caretaker), actively participates in the influenced act (e.g., taking the person of weakened mind to a lawyer to change the will), and is favored by the influenced act (e.g., becoming a beneficiary under the altered will).

Unintentional

Without intent. Under some concepts of common law, every crime requires the element of intent, i.e., the act complained of must result from some intentional act of the accused. In civil law, this is not always so, since a civil action will lie for damages resulting from bone-headed stupidity or blind ignorance as well as for damages resulting from the defendant's direct intention to cause the plaintiff injury.

Unjust Enrichment

A cause of action in equity to prevent one party from gaining an unfair advantage (unjust enrichment) at the expense of another party without some reasonable benefit being returned.This may be called the "something for nothing" doctrine. Equity rules the law. Therefore, where one party is unjustly enriched by an act the deprives another of property (even if the act is technically "legal") American courts can exercise their equitable power to reverse the gain to prevent unjust enrichment, because equity rules the law.This is sometimes a difficult concept for novices in the law to understand. Some believe they can make a wrong "right" if they find a "law" to hide in. Though this was clearly the way things were in the days of Charles Dickens (read Dickens' Bleak House and Hard Times to learn the pitiable state of the legal system in England only two hundred years ago, when the poor were without any hope at all before the pomp of courts where white-powdered wigs strutted about the courtrooms spouting every excuse under heaven why wrong should be treated as right.), our American legal system today will not tolerate such injustices (if the wronged party knows what his lawyer should be doing to recover the loss and presses forward with clean hands).Equity uncovers the cloak of unjust men and works "right" to prevent wrong, even where there is "law" that would otherwise give the unjust person the advantage.An example of unjust enrichment is where a landlord enters into a lease with his tenant who later is unable to pay the rent as it comes due and must vacate the premises before the expiration of his lease. Certainly, under most jurisdictions in America, the landlord is entitled to his rent money, even after the tenant moves out, because there is remaining time agreed to under the lease, and the tenant promised to pay for the full term of the lease. Otherwise the landlord is left with empty property, and the tenant is unjustly enriched by being let off the hook. The landlord should be permitted to sue and get an un-paid rent judgment against the tenant for the remainder of the lease term ... if, in fact, he is unable to rent the property to someone else. But, suppose the landlord were to find another tenant and start collecting rent from the new tenant while suing the old tenant. This would be a form of unjust enrichment, and equity would prevent the landlord from double-dipping.There are many other examples of unjust enrichment, some of which seem to fly in the face of ancient contract principles. For example, if a young man entrusts the care of his farm to a friend while he goes off to war and returns years later to discover his friend has claimed title to the land by adverse possession, the court could exercise its equitable powers to hear an action brought for unjust enrichment against the friend to prevent the wrong.Remember: Equity rules the law.

Usurious

Of or related to usury, q.v.

Usury

The act of charging exorbitant rates of interest. In some states usury laws render promissory notes or other obligations exacting exorbitant interest rates unenforceable in court. In some circumstances, usury is a punishable crime related to fraud.

Ux

See uxor.

Uxor

Strictly a lawfully married wife. The term is sometimes shortened to simply "ux".

Vacate

To render ineffective. Usually applied in reference to orders, where a subsequent order vacates a previous order. The court is saying it withdraws from its previous holding.

Venue

Venue is where a case is heard, the location where the courthouse is in which the proceedings are to be held.Do not confuse venue with jurisdiction. They are not in any way the same thing.

Verify

To attest as true by giving one's solemn oath or affirmance. A verified pleading or motion is one that has been sworn to or formally affirmed by the pleader, i.e., upon affidavit. Some pleadings and motions are required to be verified. Others are not. A statement made by a witness during legal proceedings is said to be verified if it is later determined to be true. Similarly, a fact is verified if the court rules that the fact is true. See finder of fact.

Verity

Another word for truth.

Vest

To make an interest fixed. An interest may vest permanently or only temporarily. Every interest is either vested or not vested at any particular moment in time. A vested interest may give a person the right to sue on his interest. A not vested interest, however certain to occur in the future, does not give that person the right to sue ... until the interest does vest. See vested interest next.

Vested Interest

A vested interest is one that is fixed in the person holding the interest. If you hold legal title to a parcel of real property, for example, you are said to have a vested interest in the property. On the other hand, if you are named as beneficiary in someone's will, you have an interest in the person's property, however since the person may change the will before he dies, your interest is said to be not vested. See vest.

Via Voce

Latin for "by voice". Used to describe spoken motions made in court, i.e., a via voce motion. The term, like all foreign words used in English writing, should be italicized.

Void Ab Initio

Having no legal effect from the time of its being created, i.e., from the beginning.A contract to pay a gambling debt, for example, is void ab initio, because the courts must treat it as a nullity (unless the contract was made in a jurisdiction where gambling is permitted by law).

Voir Dire

Literally "to speak the truth". Trial lawyers may voir dire the jury or a witness to test their competence. This process is important and should be utilized whenever there is any doubt as to the competence of a witness or juror. See competent.

Waiver

A voluntary, deemed, or assumed abandonment of some right. In many proceedings, if no objection is raised to an act of the opposing party, the court may deem that a waiver has occurred. The longer one delays acting, the more likely the court will impose a waiver. Of course a waiver can be voluntary and express, as when one waives his right to cross-examine a witness.

Ward

One who is in the custody of another. A prisoner is ward of his warden. A person under the protection of a court-ordered guardianship is ward of his guardian. An orphan is generally a ward of the state or of the institution responsible for the orphan's custody and welfare. Children who are not orphans or abandoned to the state are usually in the custody of and therefore wards of one or both of their parents.A ward is not necessarily under the complete control of another, but someone other than the ward is always legally responsible for the ward's welfare and, therefore, that person is legally answerable to the state in regard to the ward's welfare.

Willful

With intent, i.e., intending to take an action rather than doing so accidentially."She entered the plaintiff's property willfully, in spite of the 'No Trespassing' sign she admitted seeing before she crossed the boundary."The issue of "intent" often determines whether or not a person is liable for damages resulting from his or her acts. If the act is unintentional (, i.e., not willful) there may in some cases be no liability, while if intentional (willful) the actor may be responsible for not only the plaintiff's actual damages but also for punitive damages to punish him or her for having either an evil intent or reckless disregard for the consequences to others.Keep in mind it is the intent to do the act that counts, not intent to cause the injury. If one intends an act (i.e., if he acts willfully) then he is responsible for the plaintiff's damages - whether or not he intended to cause damages.

With Prejudice

When a notice or offer or admission is made with prejudice, the party giving the notice, offer, or admission is bound by the consequence. For example, if a party dismisses his lawsuit with prejudice he cannot re-file against any of the same parties upon the same causes of action arising from the same or even similar fact circumstances. By filing a "Notice Of Dismissal With Prejudice" he waives all rights he might otherwise have had to re-file the lawsuit at a later time. Whenever you are settling with another party who, in consideration of some payment or agreement, promises to dismiss his lawsuit against you, make certain he does so "with prejudice" and that his notice of dismissal includes those very words. See Without Prejudice next.

Without Prejudice

When a notice or offer or admission is made "without prejudice", the party giving the notice, offer, or admission is not bound by the consequence. For example, if a party dismisses his lawsuit without prejudice he may re-file against any of the same parties on the same causes of action arising from the same or similar fact circumstances. By filing a "Notice Of Dismissal Withour Prejudice" he does not waive his right to re-file the lawsuit at a later time. Whenever you are settling with another party who, in consideration of some payment or agreement, requests you to dismiss your lawsuit against him, and you have any doubt as to whether or not he will follow-through on the promises he made to get you to dismiss the suit, do so "without prejudice" and make certain you notice of dismissal includes those very words. Then, if he doesn't do what he promised, you can file the lawsuit again.A surprising number of people list their mailing address in various peculiar ways ending with the words "without prejudice", presumably because they think giving their mailing address somehow binds them to some obligation, however inasmuch as listing one's mailing address has no legal consequence other than the hoped for possibility you may receive your mail at that address, adding "without prejudice" has no effect other than to label the person as a bit peculiar.

Writ

An order of the court enforcing the law or its separate orders by directing that some act be performed, as opposed to an order of judgment declaring a debt (as in a case for damages in tort or breach of contract) or enjoining some future action (as in a case to enforce the terms of an agreement or to prevent one person from causing or threatening harm to another). There were in the common law many different types of writs. A few still in use are listed hereinafter. Writs are obtained by motions or petitions to a court having jurisdiction over the matter.

Writ of Assistance

A writ ordering a law enforcement officer (e.g., a sheriff) to enforce a prior writ or other order of the court.

Writ of Attachment

A writ ordering a law enforcement officer (e.g., a sheriff) to attach property obtained by fraud for delivery to the person rightfully entitled to possession.

Writ of Certiorari

A writ ordering certification (i.e., examination) of the rulings of a lower court during proceedings at the trial level. When an aggrieved party believes during the proceedings of his case that the lower court has violated the rules of court, for example, he or she may petition the higher court for a writ of certiorari to examine what the lower court has done and, if the appellate court finds there has been an abuse of power or abuse of discretion, an order may be issued reversing the lower court's decision or remanding the matter back to the trial judge for further proceedings consistent with the appellate court's ruling.

Writ of Execution

A writ ordering a law enforcement officer (e.g., a sheriff or U.S. Marshal) to levy on the property of a person (usually a judgment debtor), to sell same, and to return to the court documentation showing sums recovered therefrom.

Writ of Garnishment

A writ ordering a person or business entitity (e.g., employer) owing money to a judgment debtor to pay that money to the judgment creditor instead.When a party wins a judgment for money damages against another who is owed money by a third person (e.g., employer or person obligated to the debtor pursuant to a promissory note or other contract) the court can order the third person to pay the judgment creditor until the judgment is satisfied.Writs of garnishment may be issued to banks holding cash in accounts of the judgment debtor or to employers of the judgment debtor.If the amount an employer owes is insufficient to satisfy the judgment, a continuing writ may be issued directing the employer to withdraw all but a set minimum sum from the employee&rss wages each pay period, paying the employee the minimum amount and paying the rest of the debtor's wages to the judgment creditor until the judgment is satisfied.

Writ of Habeas Corpus

A writ ordering a law enforcement officer (e.g., a warden, sheriff, or local police officer holding a prisoner) to give answer on the public record explaining by what authority he or she is holding the prisoner (e.g., "having the body") in detention. Motions for writs of habeas corpus are used to challenge the right of the state to continue detaining a prisoner. In some situations an individual may be imprisoned after conviction and there is later discovered evidence to be brought before the court, or the conviction may have resulted from a judge's abuse of discretion. An accused may be wrongfully sentenced to serve a term longer than the law provides, and the writ will bring this fact before the court to re-examine the sentence. The writ has been used to challenge the conditions of detention centers, requiring that such conditions be improved or the detention center closed.

Writ of Mandamus

A writ ordering a government official (regardless of branch or level) to give an answer on the public record explaining by what authority he or she is acting in a particular situation or requiring such person to act in accordance with his or her lawful authority. Thus, if the mayor of a town refuses to convene the city council, an aggrieved citizen can move the local court of competent jurisdiction to issue a writ of mandamus requiring the mayor to act in accordance with his or her legal function. Or, if the mayor takes it upon himself or herself to act as a judge and jury, directing the local police chief to put people in jail at his or her command, a motion for writ of mandamus will move the court to issue an order directing the mayor to explain by what authority he or she is having people jailed without due process of law.

Writ of Possession

A writ ordering a law enforcement officer (e.g., a sheriff) to give possession of property to the person lawfully entitled to possession and, if necessary to remove the offending party by force.

Writ of Prohibition

An extraordinary writ issued by a higher court ordering a lower court to act according to law or to desist acting contrary to law.

Writ of Quo Warranto

A writ ordering a government official (regardless of branch or level) to give an answer on the public record explaining by what authority he or she is acting in a particular situation. Thus, if the mayor of a town takes it upon himself or herself to act as a judge, directing local police to put people in jail at his or her command, a motion for writ of quo warranto will move the court to issue an order directing the mayor to explain by what authority he or she is having people jailed without due process of law.

Writ of Replevin

A writ ordering a law enforcement officer (e.g., a sheriff) to recover personal property from one person and give it to another. When one person is wrongfully in possession of the property of another (e.g., by theft or default on a rental contract) the aggrieved party can petition the court for a writ of replevin to test the right of the party in possession and, if justice demands, to authorize the exercise of legal force to recover the wrongfully detained property.

Xenodochy

The spirit and act of being hospitable, e.g., entertaining others with lodgings, food, and refreshment.

Year Books

A term sometimes applied to compilations of court opinions recorded, bound, and published annually during the reign of English monarchs from Edward I to Henry VIII. The modern term is "reporters", which term is used to describe sets of books containing compilations of court opinions in the United States by region, e.g., Southern Reporter, a set of several volumes listing appellate and supreme court decisions in the southeastern states, etc.

Zealous Advocacy

An ethical lawyer's job.Lawyers are supposed to exercise zeal and enthusiasm in prosecuting their clients' lawsuits. They are supposed to proceed without regard to their own personal bias. They are supposed to proceed without fear of reprisals from the judges or fellow lawyers. They are not even supposed to consider the financial rewards promised ... or the lack thereof. Zealous advocacy is required of lawyers in many jurisdictions as a measure of professional conduct. If you have employed a lawyer to represent you in a dispute, ask for a copy of the lawyer's oath and of the rules of conduct imposed upon him by rules of the state bar and the court system in your state.