AAA abbr. See American Arbitration Association.
AALS abbr. See Association of American Law Schools.
ABA abbr. See American Bar Association.
abandon v. 1 To intentionally give up for all time an assertion or a claim of an interest in property or in a right or priv- ilege. 2 To repudiate, withdraw from, or otherwise disassociate oneself from a duty or responsibility. 3 To intention- ally fail to complete.
abandoned property See property.
abandonee n. A person or party to whom property or a right has been aban- doned or relinquished.
abandonment n. 1 The act of aban- doning property or a right with no intent of reclaiming it or of later giving it away or selling it. See also forfeiture, relin- quishment, renunciation, surrender, and waiver. 2 The act of abandoning a person with the intent of terminating the duties or him or her. For example, the intentional failure by a parent to com- municate with or to provide financial or other support to his children. See also desertion.
abate 1 v. To end, eliminate, do away with, or make null and void. 2 v. To diminish, decrease, or lessen in degree or amount. 3 n. The reduction of a bequest or devise made in a will because
the combined value of all bequests and devises, and/or the debts owed by a tes- tator, exceed the assets in the testator’s estate. 4 n. The rebate or reduction of taxes already assessed and/or paid.
abatement n. 1 The act of abating. 2 The process of, or the state of, being abated. 3 The amount abated.
abatement clause n. A contractual provision releasing the tenant of a lease from the obligation to pay rent when an act of God prevents the occupancy of the premises.
abator n. A person who diminishes or eliminates a nuisance.
ABC test n. A rule of law that allows employers not to provide unemployment compensation to independent contrac- tors. The test for whether an individual is an independent contractor as opposed to an employee is threefold: 1) does the individual work independently of the employer’s control (A = alone); 2) does the individual maintain his own place of business (B = business); and 3) does the individual practice or work at an estab- lished trade, and exercise control over his own schedule and method of opera- tion (C = control)? The name derives from the letters normally used to desig- nate the three parts of the test. See contractor.
abdication n. The act of a person or branch of government renouncing or abandoning an office, trust, sovereignty, privileges, or duties to which he or she is entitled, holds, or possesses by law.
abduct v. 1 To carry or lead a person away from where he wants to be or wants to go by use of force, threats, or deception. 2 To restrain or conceal a person in order to prevent his escape or rescue. See also kidnapping.
abet v. To actively, knowingly, and/or intentionally aid, encourage, incite, instigate, or otherwise support the com- mission of an act.
abeyance n. 1 An indefinite or tempo- rary state of inactivity or suspension. 2 An incomplete or undetermined state of existence. 3 The status of real prop- erty or of a position or title when its ownership or occupancy is not vested in any existing person or party.
abide v. 1 To await. 2 To accept or submit to. 3 To tolerate or withstand. 4 To adhere, execute, obey, perform, or otherwise act in conformity with. 5 To dwell, remain, reside, or stay.
abiding adj. Certain; indestructible; permanent; steadfast; unaltering; unfal- tering; unshakeable.
ab initio adv. Latin. From the first act. From the beginning; back to one’s cre- ation or inception.
abnormally dangerous activity n. An undertaking so dangerous that, even if precautions and reasonable care are used, it cannot be safely performed and anyone who engages in it is strictly liable for any resulting injuries and dam- age, especially if 1) there is a risk of serious harm to people or property,
2) the activity cannot be performed in some other way that avoids those risks, and 3) the undertaking does not nor- mally occur at the location where it is to take place. See also liability.
abode 1 n. A dwelling, home, or other fixed place where a person resides. 2 v. Past tense and past participle of abide.
abolish v. To abrogate, annul, cancel, eliminate, put an end to, recall, repeal, or revoke, especially things of a seem- ingly permanent nature, such as cus- toms, institutions, and usages.
abolition n. 1 The act of abolishing. 2 The legal abolition and prohibition of slavery. 3 The abolition of slavery in the United States by the Thirteenth Amendment to the United States Constitution.
abortion n. 1 The premature termina- tion of a pregnancy. 2 The intentional and artificial termination of a pregnancy that destroys an embryo or fetus. 3 The spontaneous expulsion of an embryo or fetus before it is capable of living outside the womb.
above adv. 1 Previously in the same chapter, document, or text. For example, a reference to a court case cited earlier in the same document. 2 Having the power to review the decisions regarding questions of fact and/or law made in a court. For example, appellate courts, such as the United States Supreme Court, are above, or can review, the deci- sions made by one or more trial courts. See jurisdiction, question of fact, and question of law.
abridge v. 1 To diminish, lessen, or restrict a legal right. 2 To condense or shorten the whole of something, such as a book, and not merely a portion of it.
abrogate v. 1 To annul, cancel, destroy, overturn, repeal, revoke, set aside, supercede, or otherwise do away with or put an end to. 2 To abolish a custom or law by some authoritative, formal, legislative, or other legally effec- tive method.
abscond v. 1 To secretly or suddenly leave a place or to go into hiding, espe- cially to avoid arrest, prosecution, the service of a summons or other legal process, or an action by a creditor. 2 To leave a location, often in a hurry, with money or property of another.
absent without leave n. The act of being away from one’s military duties or post without permission but with no intent of deserting. Abbreviated as AWOL. See also desertion.
absentee n. A person who is not where he or she would normally be found, such as a place of residence or work.
absentee landlord n. A landlord who resides so far from the leased real property that his is not, or is not expected to be, readily available to per- sonally address any problems concern- ing the property.
absentee voting See voting. absentia See in absentia.
absolute n. 1 Without any conditions, encumbrance, qualification, or restric- tion. See also discretion, divorce, immunity, privilege, and fee. 2 Not liable or subject to revisions; conclusive. 3 Free from any restraint or restriction in the exercise of government power.
absolute law See natural law. absolute liability See strict liability. absolve v. 1 To forgive misconduct.
2 To free from guilt or suspicion; for example, when evidence proves that a suspect is innocent of a crime. 3 To free from the penalties imposed as a result of misconduct. 4 To free from a debt, duty, obligation, or responsibility.
abstention n. 1 The act of voluntarily refraining from taking some action, such as casting a vote or participating in a decision or deliberation. 2 A fed- eral court’s act of declining to exercise its jurisdiction while awaiting or defer- ring to a decision by a state court. In doing so, the federal court retains juris- diction of the legal issues at hand and may decide those issues if the plaintiff is not satisfied with the state court’s decision. See also comity and relin- quishment. Several rationales for a fed- eral court’s abstention are named for the United States Supreme Court deci- sion in which the rationale was first applied. These include:
Burford abstention. The refusal of a federal court to consider a challenge to a state’s administrative regula- tions and proceedings or to review a
state court’s decision involving those regulations and proceedings when they involve a substantial or sensitive area of state concern. Burford v. Sun Oil Co. (1943).
Colorado River abstention. A federal court’s act of declining to exercise its jurisdiction when there is under- way a state court proceeding involv- ing the same parties and questions. Colorado River Water Conservation Dist. v. United States (1976).
Pullman abstention. A federal court’s decision to await the interpretation of a state law by that state’s court before deciding a federal constitu- tional question that is dependant upon how that law is interpreted. Railroad Commission of Texas v. Pullman Co. (1941).
Rooker–Feldman abstention. A fed- eral court’s declining to consider the argument that a state court judge violates a party’s federal rights for the reason that the proper venue to challenge that judge is that state’s court system. Rooker v. Fidelity Trust Co. (1923) and District of Columbia Court of Appeals v. Feldman (1983).
Thibodaux abstention. A federal court’s act of declining to exercise its jurisdiction to allow a state court to decide difficult issues if impor- tance in order to avoid unnecessary friction between federal and state authorities. Louisiana Power & Light Co. v. City of Thibodaux (1959).
Younger abstention. 1 A federal court’s decision to halt or interfere with a state court’s criminal pro- ceeding unless the prosecution has been brought in bad faith or harass- ment. 2 A federal court’s decision to halt or interfere with a state court proceeding on the grounds that the arguments of the party seeking the federal courts involve- ment can be raised and fairly deter-
mined in the state court. Younger v. Harris (1971).
abstract n. A concise summary of a text. See also abstract of judgment, abstract of record, and abstract of title.
abstract of judgment n. A copy or summary of a court’s judgment. When it is filed with the appropriate authorities, a lien is created on the judgment debtor’s nonexempt property in favor of the judgment creditor.
abstract of record n. A summary of the record of a case advising an appel- late court of the underlying facts, all the steps taken to-date in the case, the deci- sion of the trial court, and the legal issues to be decided.
abstract of title n. A short history or summary of the ownership of a parcel of land. The abstract includes a list of all conveyances, transfers, and other evi- dence of title; all grants, conveyances, wills, records, and judicial proceedings that may affect title; and a list of encum- brances and liens of record on the land, along with a statement whether the encumbrances and liens still exist. A company whose business is to obtain such information from public records usually does such an abstract for the mortgagee or buyer of real property in connection with a proposed sale of land. See also chain of title.
abstraction n. 1 The act of separat- ing, taking away, or withdrawing. 2 The act of taking with the intent to injure or defraud. 3 The unauthorized taking of financial statements or funds with the intent of misappropriating them.
abuse 1 v. To mistreat or neglect a person, particularly as to one for whom the actor has special responsibility by virtue of a relationship, e.g., spouse, child, elderly parent, or one for whom the actor has undertaken a duty of care,
e.g., nurse-patient; 2 v. to use an object in an illegal or unreasonable manner. 3 n. The mental or physical mistreat- ment of a person, frequently resulting in serious emotional, mental, physical, and/or sexual injury.
child abuse. 1 The intentional or neglectful abuse, which includes sexual mistreatment, inflicted on a child. 2 A parent or caregiver’s intentional or neglectful act or fail- ure to act that results in a child’s abuse, exploitation, or death. 3 An act or failure to act that results in a possibility of immediate and serious harm to a child. See also battered person syndrome and child neglect.
elder abuse. The abuse of an elderly person by his or her child or care- giver, that may include battery, ver- bal abuse, isolation, and the denial or deprivation of food.
sexual abuse. 1 An illegal sexual act. 2 Unlawful sexual activity or contact with a person without her consent. The activity or contact is usually imposed by the use of force or threats of violence. The applica- tion of the term varies, but it is usu- ally applied to activities or contact that do not amount to rape, but sometimes the term includes rape. Also called carnal abuse and sex abuse.
spousal abuse. The abuse inflicted on a person by his or her spouse. See also battered person syndrome and cruelty.
abuse excuse n. A courtroom tactic whereby a criminal defendant claims that mental or physical abuse either explains the defendant’s conduct, espe- cially in cases involving violence against the alleged abuser, or makes the defen- dant incapable of telling right from wrong. The phrase is almost exclusively used as a term of derision by those unsympathetic to such claims.
abuse of discretion n. A trial court or administrative agency’s ruling on a mat- ter within its discretion that, in light of the relevant facts and law, is arbitrary, capricious, unconscionable, unfair, unreasonable, or illegal. An appellate court will not reverse a ruling that was within the discretion of the trial court or administrative agency merely because the appellate court would have reached a different decision. Instead, the trial court or administrative agency’s deci- sion must be wholly inconsistent with the facts and the law and with any rea- sonable deductions that can be made therefrom.
abuse of process n. The tort of begin- ning or otherwise using the judicial civil or criminal process for an improper pur- pose. There may be a legitimate basis for instituting or using the judicial process, but the actual intent behind the action is improper. See also malicious prosecution.
abut v. To adjoin; to border on; to cease at the point of contact; to connect or join at a border; to share a common border with.
abuttal n. The border of a parcel of land in relation to adjoining lands.
academic freedom n. 1 The right of a teacher or student, especially at the col- lege or university level, to discuss or investigate any issue, or to express opin- ions, on any topic without interference or fear of penalty or other reprisal from either the school or the government. 2 A school’s freedom to control its own policies without government interfer- ence, penalty, or reprisal. The extent to which academic freedom exists depends on many facts, including whether the school is a private or public institution and whether it is a primary or secondary school or a college or university.
acceleration n. 1 The shortening of the time, or the immediate creation or
vesting, of a legal duty, interest, or right that was to arise or vest in the future. See also acceleration clause. 2 The hastening of a real property owner’s enjoyment, or the vesting, of his remain- der interest in an estate because of the failure or premature termination of a preceding estate.
acceleration clause n. A provision in a contract or in a testamentary or other legal document that, upon the occur- rence of specific events, a party’s future interest in certain property will prema- turely vest. For example, in many loan or mortgage agreements, provision is made that if some specified event occurs, such as the debtor’s failure to pay an installment, the creditor may declare the entire outstanding balance to be immediately due.
acceptance 1 n. The act of voluntarily agreeing, expressly or by implication, to the terms of an offer, thereby creating a contract. However, if the act modifies or adds to the terms of the offer, it is not an acceptance, but a counteroffer. See also offer. 2 v. To accept delivery of prop- erty or to otherwise agree, expressly or by implication, to become its owner, either in exchange for the performance of a contractual obligation or the com- pletion of an inter vivos gift. See also contract and gift. 3 n. The receipt of a check or other negotiable instrument by a bank or another drawee.
access n. The ability, opportunity, per- mission, or right to approach, communi- cate, enter, pass to and from, or view without interference or obstruction. See also easement and visitation rights.
accession n. 1 The act of acceding or agreeing, especially when it involves the yielding of part or all of one’s own posi- tion. 2 The act of acceding to, or com- ing into possession of, an office, right, or title. 3 In international law, the formal assent by one county to a treaty between
other countries. By doing so, the country becomes a party to the treaty. 4 The acquisition of title to personal property by applying labor that converts it into an entirely different thing (such as turning leather into shoes) or incorporates it into other property. 5 An artificial or natural addition or improvement to property. 6 A real property owner’s right to all that the property produces and to all that is artificially or naturally added to it, such as land reclaimed by the use of dams or the construction of buildings and other improvements. See also annexation.
accessory n. 1 Additional; aiding the principal design; contributory; second- ary; subordinate; supplemental. 2 One who aids or contributes to the commis- sion or concealment of a crime or assists others in avoiding apprehension for the crime but not present when the crime was committed. Mere silence or approval of the crime is insufficient to make one an accessory; the person must take steps to facilitate the commission or concealment of the crime or the avoidance of the criminal’s capture. See also misprision of felony, accom- plice, aid and abet, conspiracy, and principal.
accessory after the fact. One who was not at the scene of a crime but knowingly assists, comforts, or receives a person known to have committed a crime or to be sought for the commission or attempted commission of a crime, in an attempt to hinder or prevent the felon’s arrest or punishment. Such a person is normally regarded as less culpable than the criminal and is subject to prosecution for obstruc- tion of justice.
accessory before the fact. One who assists, commands, counsels, encourages, or procures another to commit a crime, but is not present
when the crime is committed. Such a person, known as an aider and abettor, is normally considered as culpable as the person who actually commits the crime and is normally treated by the law as an accom- plice. See also aid and abet.
accident n. 1 An unintended, unfore- seen, and undesirable event, especially one that causes harm, injury, damage, or loss. 2 An unintended and unexpected event, especially one that is undesirable or harmful, that does not occur in the usual course of events under the cir- cumstances in which it occurred, or that would not be reasonably anticipated. 3 In equity, an unexpected and injurious event not caused by misconduct, mistake, or negligence. 4 In many automobile insurance policies, any unintentional event including those caused by miscon- duct, mistake, or negligence.
unavoidable accident. An accident that is not caused by the negligence or other fault of anyone involved.
accidental death n. Death resulting from an accident from an unusual event that was unanticipated by everyone involved. A death may be considered “accidental” even if it was intentional or expected. For example, an insurance policy may provide that its accidental death benefit will be paid if the insured is murdered (although generally not if the beneficiary committed the murder).
accidental death and dismemberment insurance n. Insurance that pays the insured or his beneficiaries specified amounts, in addition to or in substitu- tion for compensation for injuries suf- fered by the injured, for the loss of specific body parts, body functions, or death resulting from an accident.
accidental death benefit n. A pay- ment, in addition to the compensation received by the beneficiaries of an
accident insurance or life insurance pol- icy, to be made paid if the insured suffers an accidental death. See also double indemnity.
accident insurance See insurance
accommodated party See accommo- dation party.
accommodating party See accommo- dation party.
accommodation n. 1 Something done, such as providing a loan or signing an accommodation paper as a surety for another, that is done as a favor without any direct or indirect benefit, compensa- tion, or consideration. 2 The act of making a change or provision for some- one or something.
accommodation maker See accom- modation party.
accommodation paper n. A negotiable instrument that one co-signs as a surety as an accommodation to another party, who remains primarily liable without receiving any benefit, compensation, or consideration. See also accommodation party.
accommodation party n. A person who, without any direct or indirect ben- efit, compensation, or consideration, co- signs a negotiable instrument as a favor to the person who owes the money and, thus, becomes liable on it to all parties except the accommodated party who, by implication, agrees to pay the instru- ment and to indemnify the accommoda- tion party for any losses incurred in paying it. This is frequently done when the creditworthiness of the accommo- dated party does not satisfy the person taking the negotiable instrument or extending the credit. Also called, in the case of a promissory note, an accommo- dation maker.
accomplice n. One who knowingly, voluntarily, or intentionally, and with common intent and criminal purpose shared with the principal offender, solic- its or encourages another to commit a crime or assists or attempts to assist in its planning and execution. Normally, one’s mere presence while knowing the crime is about to be committed, without any contribution to the commission of the crime, does not make a person an accomplice. However, in some situa- tions, knowledge combined with the fail- ure to make an attempt to prevent the crime will make one an accomplice. An accomplice is normally regarded as just as culpable as the person who actually commits the crime. See also accessory, aid and abet, and conspiracy.
accord n. 1 An agreement to satisfy a claim by some form of discharging the obligation other than what the obligee is, or considers himself, entitled to. See also accord and satisfaction. 2 In legal citation, the identification of one case that clearly supports the proposi- tion for which another case is being quoted.
accord and satisfaction n. An accord that has been satisfied by the completion of the agreed upon payment or perform- ance. The satisfaction (that is, comple- tion) of the accord extinguishes the original obligation that the obligee was, or considered himself, entitled to. Once satisfied, the subject of the accord can never be raised in any future legal action. See also novation and settlement.
account n. 1 A detailed record of a financial transaction, indicating the deb- its and credits between the parties to a contract or a fiduciary relationship. 2 The debt remaining to be paid, or the credit to be refunded, as indicated in such a record. 3 A detailed record of the financial transactions, business
dealings, and other relations for which records must be kept. 4 In the Uniform Commercial Code, a right to payment for goods whose sale or lease, or for services whose performance, are not evidenced by a negotiable instru- ment or chattel paper. 5 A business relationship involving the management of money or the availability and use of credit. 6 In the common law, a legal action to require a person to account for money or property. See also accounting.
7 A statement by which someone explains, or attempts to explain, an event. 8 In business, a particular client or customer. See also joint account.
accountant-client privilege See priv- ilege.
account creditor n. One to whom the balance of an account is owed. See also account debtor.
account debtor n. 1 One who owes the balance of an account. 2 In the Uniform Commercial Code, one who owes an obligation on an account, chat- tel paper, or intangible property. See also debtor and account creditor.
account payable n. The balance owed to a creditor as indicated by an account. See also account receivable.
account receivable n. The balance owed by a debtor as indicated by an account. See also account payable.
accounting n. 1 The act or a system of establishing how the assets of a busi- ness, estate, trust, or other similar entity were managed and disposed of. 2 In equity, a legal action to require one, usually a fiduciary or a constructive trustee, to account for and pay over funds held by them but owed to another. See also account. 3 In equity, a legal action for the recovery of funds owed for
services performed, property sold, money loaned, or for damage for the incomplete performance of minor contracts. See also account. 4 A legal action to complete or settle all of a partnership’s affairs. Usually done in connection with the dis- solution of the partnership or with alle- gations of a partner’s misconduct. See also winding up.
accounting for profits See accounting.
accounting method n. The accepted method by which a person or business consistently determines his income and expenses and allocates them to an accounting period in order to determine his taxable income. See accrual method, cash method, and contract.
accounting period n. The regular span of time used for accounting pur- poses. For example, the period used by a taxpayer to calculate her income and to determine her tax liability.
accretion n. 1 In property law, the gradual increase in land through natural processes; for example, the creation of land caused by the deposit of sediment on a shoreline of a river or ocean. The new land becomes the property of the owner of the property to which it is attached. See also alluvion, reliction, and avulsion. 2 In succession law, the increase in an heir or legatee’s interest in property when a co-heir or co-legatee dies before the property vests, rejects his inheritance or legacy, fails to comply with a condition to be met before vest- ing, or otherwise becomes incapable of taking the property.
accrual method n. An accounting method that records income and expenses when they are earned or incurred rather than when they are received or paid. See also cash method and completed contract method.
accrue v. 1 To come into existence or mature as an enforceable claim or right. For example, a cause of action may be sued upon once it is an enforceable claim. Likewise, the interest on a sum owed accrues on the date the interest becomes due. 2 To accumulate.
accumulated depreciation n. The total depreciation currently recorded against either a single or all productive assets.
accusation n. 1 A formal charge of criminal wrongdoing against a person or corporation. See also indictment, infor- mation and presentment. 2 An infor- mal charge that one has committed an illegal, immoral, or otherwise wrongful act.
accusatorial system See adversary system.
accuse v. 1 To make an accusation against. 2 To prosecute. 3 To for- mally institute a legal action against a person or corporation wherein they are charged with committing a crime. 4 To judicially or publicly charge one with a criminal offense.
accused n. 1 A person who is blamed for a wrongdoing. 2 A person who has been arrested or formally charged by an indictment, information, or presentment with a crime.
acknowledgment n. 1 The recognition of a fact or the existence of an obligation and the acceptance of the accompanying legal responsibility. For example, a puta- tive father may acknowledge a child as his during a paternity proceeding. 2 One’s formal declaration in the presence of a notary public or other authorized individual that she has signed a deed or other document and that the signature is authentic.
ACLU abbr. See American Civil Liberties Union.
acquaintance rape See rape.
acquiescence n. Tacit or passive con- duct that implies agreement or consent. For example, if one makes a statement and another is silent when an objection should be forthcoming, the second per- son’s acquiescence to the statement may be inferred.
acquit v. 1 In criminal law, to clear a person, to release or set him free, or to discharge him from an accusation of committing a criminal offense after a judicial finding that he is not guilty of the crime or after the court or prosecu- tion determines that the case should not continue after the criminal trial has started. See also autrefois acquit and double jeopardy. 2 In contract law, to pay or discharge a debt, duty, or a claim.
acquittal n. 1 In criminal law, the legal finding, by judge or jury, that an accused person is not guilty of the crime he is charged with. Once the acquittal is reached, the defendant may not be pros- ecuted again for the same criminal act or transaction. 2 In contract law, the release or discharge from a debt or other contractual obligation.
act 1 n. A statute. 2 n. Something done or performed. 3 v. The process of doing or performing. See also actus reus, overt act and omission.
action n. 1 Any behavior, conduct, or series of acts by a person. 2 A civil or criminal judicial proceeding intended to resolve a legal dispute, claim, or accusation.
civil action. An action brought to enforce, protect, or redress a civil or private right or to compel a civil remedy; any action brought other than a criminal action.
class action. 1 An action brought by a person or a group of people as representatives of a larger group
who have a common legal claim but are so numerous that it is impracti- cable for all of them to participate or be joined as individual parties in the case. 2 An action brought against a large group of people who have a common legal defense to a claim that they are all potentially liable for but are so numerous that it is impracticable for all of them to participate or be joined as individ- ual parties in the case.
criminal action. An action initiated by the government to punish a per- son or entity for a crime.
damage action. An action seeking an award of money from the defendant for a wrong committed upon the plaintiff.
derivative action. 1 An action brought on behalf of a corporation by a shareholder when that corpora- tion is entitled to bring an action and, deliberatively or otherwise, fails to do so. 2 An action that is based upon the injury suffered by someone other than the plaintiff. For example, a husband may sue for loss of consortium or services if the defendant injured his wife.
in personam action. See in per- sonam.
in rem action. See in rem.
quasi in rem action. An action against an out-of-state defendant over whom the state lacks in per- sonam jurisdiction that is com- menced by the attachment, garnishment, or other seizure of property owned by the defendant that is located within the state and that is unrelated to the plaintiff’s claim.
third-party action. An action initiated by a defendant in a civil case against a person or entity who is not a party to the proceeding that is against the defendant and against whom the defendant claims a right
of contribution or indemnity, should the defendant be found liable to the plaintiff.
action in personam See in per- sonam.
action in rem See in rem. action quasi in rem See action.
actionable n. Wrongful conduct that provide grounds for a lawsuit or other legal proceeding.
actionable per quod n. Actions that require the allegation and proof of addi- tional facts. For example, in libel or slander, the statement in question may not appear defamatory on its face (such as “Mr. Smith is a member of a particu- lar club”), so the plaintiff has to prove additional facts to establish its defama- tory nature (“Every member of that club is a sex offender”). In such actions, the plaintiff has to prove that he suffered damages in order to have a cause of action.
actionable per se n. Actions that do not require the allegation or proof of additional facts to constitute a cause of action nor any allegation or proof that damages were suffered. An example, in libel or slander, is a statement that obvi- ously damages a person’s reputation (such as “Mr. Smith is a sex offender”) that does not require any reference to circumstances or facts to understand its defamatory meaning. In such actions, the plaintiff does not have to prove that he suffered any damages in order to have a cause of action.
act of Congress n. A statute formally enacted by Congress in accordance with the powers granted to it by the United States Constitution.
act of God n. An overwhelming natu- ral event, often unpredictable or difficult to anticipate, that is uncontrolled and
uninfluenced by the power of man and that could not be prevented or avoided by foresight or prudence.
actual adj. Real or existing in fact as opposed to being assumed or deemed to have happened or exist. See also appar- ent and constructive.
actual authority See authority.
actual cash value n. A fair or reason- able price that can be obtained for an item or property in the ordinary course of business, not under duress or exi- gency. Synonymous with fair market value.
actuary n. One who computes insur- ance and property costs, such as the cost of insurance premiums and risks.
actus reus n. The voluntary and wrongful act or omission that consti- tutes the physical components of a crime. Because a person cannot be pun- ished for bad thoughts alone, there can be no criminal liability without actus reus.
ADA abbr. See Americans with Disabilities Act.
ad damnum n. Latin. To the damage. The amount of money sought as dam- ages by the plaintiff in a civil action.
ad damnum clause n. A statement in the complaint in a civil action that spec- ifies the amount of money sought by the plaintiff. See also complaint and prayer.
addendum n. An addition to a docu- ment.
additur n. Latin. It is added to. A trial court’s order to increase the damages awarded by a jury. It is done to prevent the plaintiff from appealing on the grounds that inadequate damages were awarded, but the court cannot issue the order without the defendant’s consent.
The term may also refer to the increase itself, the procedure by which it is done, and the court’s power to issue the order.
adduce v. To compile or offer, gener- ally in the context of introducing evi- dence at trial.
ADEA abbr. See Age Discrimination in Employment Act.
ademption n. The reduction, extinc- tion, or withdrawal of a devise or legacy by some act of the testator, before his or her death, that clearly indicates an intent to diminish or revoke it. See also ademption by extinction, ademption by satisfaction, abatement, advance- ment, and lapse.
ademption by extinction n. An ademption of some specific or unique property that occurs when the property is destroyed, given away, or sold or does not otherwise exist at the time of the testator’s death.
ademption by satisfaction n. An ademption that occurs when the testa- tor, while alive, gives the property that is the subject of a devise or legacy to the intended beneficiary in lieu of the testa- mentary gift.
adequate remedy at law n. A legal remedy, usually an award of money, that provides sufficient compensation to the plaintiff, thereby making equitable relief, such as specific performance, unavailable.
ad hoc adj. Latin. For this; for a par- ticular purpose. For example, ad hoc committees are often created to accom- plish a particular purpose.
ad hominem adj. Latin. To the person. Appealing to personal prejudices instead of reason; attacking one’s char- acter rather than his arguments.
adjoining adj. Abutting; bordering upon; sharing a common boundary; touch- ing. See also contiguous and adjacent.
adjourn v. To briefly delay, suspend, or postpone a court proceeding. See also continuance.
adjournment sine die See sine die.
adjacent adj. Laying near or close by, but not necessarily connected. See also adjoining.
adjudge v. To render a judicial deci- sion or judgment concerning a disputed subject that is before the court. For example, a court may adjudge that a defendant is obligated to pay the dam- ages sought by the plaintiff.
adjudication n. The process of hear- ing and resolving a dispute before a court or administrative agency. It implies a final judgment based on the evidence presented, as opposed to a pro- ceeding where the merits of the case were not considered by the court or administrative agency. See also default judgment.
adjure v. 1 To earnestly and solemnly bind, charge, or command. Frequently, persons who are adjured are placed under oath or a threat of penalty. For example, juries are adjured to consider only the evidence presented at trial as they attempt to reach a verdict in an action. 2 To earnestly and solemnly entreat or request.
adjusted basis n. The value of a tax- payer’s original investment in property, adjusted by the value of subsequent cap- ital improvements and depreciation deductions. See also basis.
adjusted gross income n. A taxpayer’s gross income minus the deductions, usu- ally business deductions, they are allowed under the tax code. See income.
ad litem adj. Latin. For the suit. For the purposes of, or pending, the particu- lar lawsuit. See also administrator ad litem and guardian ad litem.
administration n. 1 A court’s manage- ment and distribution of property during a judicial proceeding. 2 The manage- ment and settlement of the estate of an intestate or of a testator who has no executor by a person appointed by the court.
administrative agency n. A govern- mental regulatory body that controls and supervises a particular activity or area of public interest and administers and enforces a particular body of law related to that activity or interest.
administrative law n. 1 The law cov- ering the organization, duties, and oper- ation of an administrative agency. 2 The law created by an administrative agency consisting of rules, regulations, orders, opinions, or reports containing findings of fact and administrative hear- ing decisions.
administrative law judge n. An offi- cial of an administrative agency who presides at an administrative hearing and has the power to administer oaths, issue subpoenas, and rule on the admis- sibility of evidence as well as hear, con- sider, and weigh testimony and other evidence and make or recommend fac- tual or legal decisions.
Administrative Procedure Act n. A federal statute governing the rule-mak- ing and administrative proceedings of federal administrative agencies by pro- viding guidelines for rule-making and adjudicative hearings, judicial review, and public access. Most states have sim- ilar statutes governing their state administrative agencies. Abbreviated APA.
administrator n. A person appointed by the court to manage a part or all of the assets and liabilities of an intestate or of a testator who has no executor. In many states, the person can be a man or a woman, but in the others, the term refers to a male, while a female who is appointed to perform these duties is called an administratrix. See also administrator ad litem and ancillary administrator.
administrator ad litem n. A person appointed by the court to represent the interests of an estate in an action. Such an appointment is usually made because the estate has no administrator or because the current administrator has interests in the action that conflict with those of the estate.
administratrix See administrator.
admiralty and maritime n. All things related to events occurring at sea and on inland waters.
admiralty courts n. Federal courts exercising jurisdiction over admiralty and maritime matters. However, in some matters, the Congress has granted con- current jurisdiction to the state courts.
admissible evidence n. Evidence per- mitted by the law to be considered by a judge or jury in deciding the merits of an action. Only admissible evidence may be considered, but the judge has the discre- tion to exclude admissible evidence from his or the jury’s consideration. For example, cumulative evidence, or evi- dence whose probative value is out- weighed by the risk of confusing the issues to be decided, may be excluded.
admission n. 1 Any act, assertion, or statement made by a party to an action that is offered as evidence against that party by the opponent. 2 A defendant’s failure to deny, or his voluntary acknowledgment of the truth, of an alle-
gation in a complaint, counterclaim, or request for admissions. 3 The accept- ance by a judge of evidence for consid- eration by himself or the jury when determining the merits of the action. 4 The granting or obtaining of a license from a state or an established licensing authority, such as a state bar associa- tion, or permission from a court, to prac- tice law in that state or before that court. See also admission pro hoc vice.
admission pro hoc vice n. The grant- ing of special permission to an out-of- state attorney, or an attorney not admitted to practice in any state or before any court, to practice law as counsel for a party in a particular law- suit.
admonition n. A judge’s advice, cau- tionary statement, direction, reprimand, or warning to a jury, lawyer, party, spec- tator, or witness regarding any matter that arises during a judicial proceeding.
adoption n. 1 In family law, the legal process that establishes a parent/child relationship between individuals who are not related by blood. Once the adop- tion is completed, the adoptive child becomes entitled to all the privileges belonging to a natural child of the adop- tive parents, and the adoptive parents acquire all the legal rights, duties, and obligations of the child’s natural par- ents. Furthermore, all legal rights, duties, and obligations between the child and his or her natural parents (except, in some states, the obligation to pay delinquent child support payments) terminates upon the completion of the adoption. 2 In contract law, the acceptance by a person or entity of the rights and responsibilities made for their benefit under a contract to which she is not a party. 3 To accept legal responsibility for the act of another. See also ratify.
adoptive adj. 1 Related by virtue of an adoption. For example, an adult who adopts a child is that child’s adoptive parent. (Although the adult is referred to as the adoptive parent, the minor is known as the adopted child.) 2 Pertaining to an adoption of any kind. For example, by adoptive works or con- duct, one may accept legal responsibility for the act of another.
ADR abbr. See alternative dispute resolution.
adult n. A person who has attained the age of majority. See age.
ad testificandum adv. Latin. For testi- fying. See subpoena (subpoena ad testifi- candum). See also habeas corpus.
adultery n. The voluntary sexual inter- course by a married person with some- one other than his or her spouse. The consent of both parties and penetration are required for adultery to exist. Under the common law, only a married woman could commit adultery, but most states now apply the term to married men as well. Also, in the states where adultery is still a crime, most statutes now pro- vide that the unmarried sexual partner of a married person can also be charged with the offense. See also criminal con- versation, fornication, and rape.
ad valorem tax See tax.
advance n. Monies paid before any consideration is received in exchange.
advance directive n. A durable power of attorney that becomes effective if and when one becomes incompetent, and that directs the limit to what medical procedures should be employed to pro- long one’s life.
advance sheets n. A paperback or looseleaf booklet or pamphlet contain- ing recent decisions issued by a (usually appellate) court. Advance sheets are pub- lished between the announcement of the
court’s decision and the decision’s incor- poration in a bound volume of law reports. See also reports and slip opinion.
advancement n. An irrevocable gift to an heir during an intestate’s life, given with the intention that it shall diminish or extinguish the heir’s share of the intestate’s estate under the laws of intestate succession. See also satisfac- tion, ademption, and lapse.
adventure n. Any commercial or financial venture involving speculation or risk. See also joint venture.
adversary n. An opponent, especially an opposing attorney or party in an action.
adversary procedure See adversary system.
adversary proceeding n. 1 A judicial hearing or other proceeding involving a real dispute between opposing parties. See also controversy and ex parte. 2 A proceeding before the Bankruptcy Court to settle disputes regarding the distribution of the assets of a bankrupt.
adversary system n. A method of adjudication in which active and unhin- dered parties, usually through their lawyers, contest with each other and present support in favor of their respec- tive positions, usually through the examination and cross-examination of witnesses and the presentation of other evidence, to a neutral and independent decision-maker. In criminal cases, this is often called the accusatorial system.
adverse possession n. A method of acquiring title to real estate by actually, continuously, and openly occupying the property for an uninterrupted amount of time to the exclusion of all others and in defiance of the real owner’s rights. The required period of occupancy, as well as other possible conditions, are set by statute.
adverse witness See hostile witness.
advice and consent n. Phrase found in Article II, Section 2, Clause 2 of the United States Constitution describing the Senate’s role in confirming presiden- tial appointments and ratifying treaties. The “consent” takes the form of a vote. Rarely does a president formally seek the Senate’s advice (it has happened only twice; the last time was in 1848), but senators often advise the president infor- mally as to which potential nominees and treaty provisions are acceptable.
advisory jury n. Used in cases where there is no jury trial as a matter of right but the judge desires the non-binding input of a jury. Rarely used.
advisory opinion n. A nonbinding opinion by a court, judge, or law officer on the interpretation or constitutionality of the law, a proposed statute, or a hypo- thetical legal question submitted to it by a legislative or executive body or an interested party. The United States Constitution prohibits federal courts from issuing advisory opinions.
advisory verdict n. A decision, usually non-binding, of an advisory jury.
advocacy n. Active support for a legal cause by argument and persuasion.
advocate 1 n. One who actively assists, defends, pleads, prosecutes, speaks, writes, or otherwise supports the cause of another. 2 n. A lawyer. 3 v. To speak, write, or otherwise sup- port a cause by argument.
aff’d abbr. Affirmed.
aff’g abbr. Affirming.
affiant n. One who makes and sub- scribes to an affidavit.
affidavit n. A voluntary and written ex parte statement of facts signed and the truth of its content affirmed or sworn to
by the declarant before a notary public or another officer authorized to adminis- ter oaths. See also affirmation.
affidavit of service n. An affidavit that certifies the service of a notice, process, summons, or writ by stating the time and manner in which the docu- ment was served.
affiliate n. A corporation that is related to another corporation by one owning shares of the other, by common ownership, or by other means of control. See also company (parent) and sub- sidiary.
affinity n. 1 A close agreement. 2 The attraction between people. 3 Any relationship created by marriage. See also consanguinity. 4 A term used to describe the relationship that one has to the adopted or blood (and usually close) relatives of their spouse. For example, affinity exists between a woman and her husband’s brother.
affirm v. 1 To confirm, ratify, or other- wise approve a lower court’s decision on appeal. 2 To solemnly declare that certain statements are true or that one will testify truthfully. 3 To make a solemn promise. See also oath.
affirmation n. 1 The act of affirming the truth of one’s statement. It serves the same purpose as an oath and is usu- ally done when the declarant objects to making an oath on religious or ethical ground. 2 A voluntary and written ex parte statement of facts. It is sometimes required that the document be signed and the truth of its content be affirmed by the declarant in the presence of a notary public or another officer author- ized to administer oaths. See also oath, affirm, and affidavit.
affirmative action n. Any acts by a private or public entity to eliminate dis- crimination, to correct or remedy the effects of past discrimination, or to pre-
vent future discrimination. Such dis- crimination is usually based on the race, sex, national origin, or disability of the person being discriminated against. See also reverse discrimination.
affirmative defense See defense. affirmative easement See easement. affirmative relief See relief.
affix v. To permanently add to, attach, or fasten on.
affray n. The voluntary and consen- sual fighting between two or more indi- viduals in a public place to the terror of onlookers or the disturbance of the peace. There is no affray when a person is unlawfully attacked and resorts to self-defense instead of fleeing. See also assembly.
a fortiori v. Latin. By the stronger (rea- son). To draw an inference that when one proposition is true, then a second proposition must also be true, especially if the second is included in the first. For example, if a 19 year old is legally an adult, then a 20 year old is, too.
aforethought adj. Considered in advance; deliberate; premeditated. See also malice aforethought.
after-acquired property n. 1 In com- mercial law, property acquired by a debtor after the execution of a security agreement wherein property acquired by the debtor before the execution of the agreement has been pledged as collat- eral for a loan. 2 In bankruptcy law, property acquired by a bankrupt after a petition for bankruptcy is filed.
after-acquired title n. The title acquired by a buyer, who previously pur- chased property while unaware that the seller did not have complete title to it, after the seller, unbeknownst to the buyer, later acquires complete title to
the property. Title automatically vests in the buyer upon the completion of events that would otherwise give complete title to the seller.
after-born child See child. after-born heir See heir.
A.G. abbr. See Attorney General.
against the (manifest) (weight of the) evidence n. An evidentiary standard allowing a trial judge to set aside a jury’s judgment or verdict and order a new trial when it clearly appears to the judge that the jury’s decision is unsup- ported by the credible evidence pre- sented at trial; is based upon false evidence or some improper motive, bias, or feelings; or would result in a miscar- riage of justice. However, this does not permit a judge to substitute the jury’s decision with his own merely because he disagrees with the decision.
age n. A period of time, especially one marking the time of existence or the duration of life.
age of capacity. The age, usually determined by statute, at which a person becomes legally capable of becoming a party to a contract, exe- cuting a testamentary document (such as a trust or will), initiate a lawsuit without a guardian, and so on. See capacity.
age of consent. 1 The age, usually determined by statute, below which a person may not marry without parental consent. See also consent. 2 The age, usually determined by statute, below which a person is legally incapable of consenting to sexual intercourse. See consent and rape.
age of majority. The age, usually deter- mined by statute, at which a person attains full civil, legal, and political rights. See also age of consent.
age of reason. 1 The age, usually determined by statute, below which a child cannot be legally capable of committing a crime. 2 The age, usually determined by statute or case law, below which a child cannot be legally capable of committing a tort.
legal age. The age, usually deter- mined by statute, at which a person becomes legally capable to exercise a specific right or privilege or to assume a specific responsibility. For example, in many states, a person may legally drive an automobile once she is 16 years of age, but has to wait until she is 21 to legally drink alcohol.
age discrimination n. The denial of privilege or other unfair treatment based on the age of the person who is discrim- inated against.
Age Discrimination in Employment Act n. Federal statute that protects most employees between 40 and 70 years of age from age discrimination in the workforce. Other federal and local laws provide other protections against age discrimination in such areas as housing. Abbreviated ADEA.
agency n. 1 A fiduciary relationship in which a person or entity act, by mutual consent, for the benefit of another and bind the other party by words or deeds. See agent, authority, fiduciary and principal. 2 A governmental body with the legal authority to administer and implement specific legislation.
agency couple with an interest n. A relationship between principal and agent in which the agent is given an interest in the subject matter of the agency.
agent n. One who by mutual consent is authorized to act for another. See agency, authority, and principal.
aggravated adj. In criminal and tort law, a crime or tort becoming worse or more serious due to certain circum- stances (determined by a statute for aggravated crimes and usually by statute and case law for aggravated torts) that occur or are present during the commission of the crime or tort, such as the possession of a deadly weapon, the youthfulness or pregnancy of the victim, or the reckless disregard for the other people’s safety. The perpe- trator of an aggravated crime is usually subject to more severe penalties than for unaggravated forms of offense. The perpetrator of an aggravated tort is sub- ject to punitive damages. See also miti- gating circumstance and simple.
aggravating circumstances n. Circumstances, facts, or situations that increase the culpability, liability, or the measure of damages or punishment for a crime or a tort.
aggregate 1 n. The sum, total, or whole of all the parts. 2 v. To collect or combine.
aggregation doctrine n. The rule that prevents a party from combining the amounts in controversy in all of their claims in order to exceed the jurisdic- tional amount requirement in a federal diversity of citizenship case. See also amount in controversy and jurisdic- tion (jurisdictional amount).
aggrieved adj. To be adversely affected, or to perceive oneself as being so, by an act or situation or by a court’s decision.
agreement n. 1 A mutual understand- ing between two or more legally compe- tent individuals or entities about their rights and duties regarding their past or future performances and consideration. While an agreement usually leads to a
contract, it could also be an executed sale, a gift or other transfer of property, or a promise without a legal obligation.
2 The understanding between two or more legally competent individuals or entities about the rights and duties regarding their past or future perform- ances and consideration as manifested by their language (oral or written) or by implication from other circumstances such as the usage of trade and the course of performance. See also contract.
agreement to agree. A mutual under- standing between two or more legally competent individuals or entities that they will later enter into a contract even though the con- tract’s exact terms have not yet been decided; non-binding.
binding agreement. An enforceable agreement or contract.
collective bargaining agreement. A contract between an employer and a union or other representative, vol- untarily selected by a majority of the employer’s workers within a bargaining group, concerning the wages, hours, and other conditions of employment for that group.
divorce agreement. An agreement between spouses made during a divorce concerning child custody, child and spousal support, property distribution, and other matters. Such agreements are usually incor- porated into the parties’ divorce decree. See separation agreement.
gentlemen’s agreement. An agreement not intended by the parties to be legally enforceable, but that is expected to be performed or followed as a matter of friendship or honor. May or may not involve illegal sub- ject matter such as gambling bets.
postnuptial agreement. An agreement between spouses made during their marriage to determine the right to support and each other’s property in case of death or divorce. Such
agreements are not enforceable unless each party makes a full dis- closure to the other of their assets and has consulted with their own attorneys. Even then, most such agreements are not enforceable unless made by spouses who are in the midst of a separation or divorce.
prenuptial agreement. An agreement between spouses made before their marriage to determine the right to support and each other’s property in case of death or divorce. Generally, such agreements are enforceable, especially if both parties make a full disclosure of individual assets and have consulted with their own attorneys. See also postnuptial agreement and separation agreement.
property settlement agreement. See
separation agreement. An agreement between spouses made during a divorce or while obtaining a legal separation concerning child cus- tody, child and spousal support, property distribution, and other matters. Such agreements are usu- ally incorporated into the parties’ divorce decree or into a judicial decree granting a separation to the parties. Frequently referred to as property settlement agreement (PSA).
simple agreement. An agreement for which nothing is legally required to make it enforceable other then some evidence that the agreement was made and the parties consent to it.
unconscionable agreement. Same as adhesion contract. See contract.
aid and abet v. To order, encourage, facilitate, or to actively, knowingly, intentionally, or purposefully assist, or otherwise promote or attempt to pro- mote the commission of a crime or a tort. Affirmative conduct is regarded; aiding and abetting cannot be established by omission or negative acquiescence. The
person who aids and abets is usually just as liable, and subject to the same meas- urement of damages and penalties, as the person who commits the crime or the tort. See also accessory, accomplice and conspiracy.
air piracy See hijack.
air rights n. The ownership or right to use any or all of the airspace above one’s real property.
a.k.a. abbr. “Also known as.” See
aleatory adj. Dependant on the occur- rence of an uncertain contingent event.
aleatory contract n. A contract in which the performance of at least one party depends upon the occurrence of an uncertain future event.
Alford plea n. A guilty plea entered as part of a plea bargain by a criminal defendant who denies committing the crime or who does not actually admit his guilt. In federal courts, such plea may be accepted as long as there is evidence that the defendant is actually guilty. Named after North Carolina v. Alford (1970).
ALI abbr. See American Law Institute.
alias n. 1 An assumed or additional name used by a person, frequently to conceal her true identity, or such a name applied to a person by others. See also known as. 2 An alias writ.
alias writ See writ.
alibi n. 1 In a criminal action, a defense that the defendant was some- where other than the scene of the crime when the crime was committed. 2 The fact or state of being somewhere other than the scene of the crime when the crime was committed.
alien n. 1 One who is not a citizen, national, or subject of a particular coun- try. 2 One who is not a citizen, national, or subject of the country in which he resides. 3 One who is born in or owes his allegiance to a foreign country.
deportable alien. An alien who may be deported because she was an inadmissible alien when she entered the United States or has violated the regulations (for exam- ple, by committing a serious crime) governing the conduct of aliens who are within the country.
illegal alien. 1 An alien who enters or remains in the United States with- out legal authorization or by fraud. 2 An alien who marries an American citizen, but with no intention of liv- ing with his or her spouse as hus- band and wife, for the purpose of improperly entering the United States or avoiding deportation.
inadmissible alien. An alien who can- not legally enter the United States. There are many reasons why an alien may be prohibited from entry, includ- ing a criminal record or poor health.
nonresident alien. An alien who per- manently resides outside the United States.
resident alien. An alien who legally established permanent residency in the United States.
alienation n. In real property law, the voluntary and absolute transfer of title of possession, by gift, sale, or testamen- tary instrument, of real property from one to another.
alienation of affections n. In tort law, the willful or malicious interference with the relationship between a husband and wife by a third party without justifi- cation or excuse. The interference may be adultery or some other act that deprives one of the affection of a spouse.
It also includes mental pain and suffer- ing such as anguish, humiliation, embar- rassment, and loss of social position as well as actual financial losses caused by the disruption or destruction of the mar- ital relationship. See consortium.
alienee n. One to whom property is alienated.
alienor n. One who alienates property to another person or entity.
alimony n. Money paid after divorce to former spouse for support, usually for a specified period of time, by court order or written agreement. If paid during pendency of the divorce proceedings, referred to as alimony pendente lite. See pendente lite.
aliunde rule n. The doctrine that a verdict may not be called into question by a juror’s testimony without a founda- tion for that testimony being first estab- lished by competent evidence from another source. For example, a verdict may not be overturned on the testimony of a juror that he was bribed, unless there was first evidence from another source of the bribery.
ALJ n. abbr. Administration law judge.
allegation n. 1 An assertion of fact that one intends to prove at trial, espe- cially one in a legal pleading such as a complaint, counterclaim, or indictment. 2 Any declaration of something to be true without giving any proof.
Allen charge n. In criminal law, an instruction given by a judge to encour- age a deadlocked jury to make a renewed effort to reach a verdict. Named after Allen v. United States (1896).
allocution n. 1 The procedure during sentencing when a judge gives a con- victed defendant the opportunity to make a personal statement on his own
behalf to mitigate the punishment that is about to be imposed. The defendant does not have to be sworn before he makes his address, his comments are not subject to cross-examination, and the opportunity may include the right to offer evidence (such as an explanation for his conduct or a reason why severe sentence should not be imposed) beyond a request for mercy or an apology for his conduct. 2 A similar procedure where the victim of a crime is given in some states the opportunity to personally speak, before punishment is imposed, about the pain and suffering suffered or about the convicted defendant. 3 The procedure by which a guilty plea can be accepted in a criminal action. The process usually consists of a series of questions designed to assure the judge that the defendant understands the charges, is guilty of the crime he is accused of, understands the conse- quences of a guilty plea and that he is entitled to a trial, and is voluntarily entering the plea.
allodial See ownership and allodium.
allodium n. Real property owned absolutely and free of any obligation to another with a superior vested right.
allowance n. 1 A portion or share, especially of money. 2 A portion of a decedent’s estate awarded by statute to the decedent’s survivors for support dur- ing the administration of the estate, regardless of whether they have any rights to the estate or any testamentary disposition or competing claims to the estate. If statutorily available is only to the surviving spouse, it is known as a spousal (or widow’s or widower’s) allowance. If statutorily available is to surviving spouse, children, or parents, it is known as a family allowance. See also elective share. 3 The court-ordered financial award to a fiduciary for serv- ices rendered. 4 A deduction.
alluvion n. The creation of land caused by the gradual depositing, either by artificial or natural forces, of earth, sand, gravel, and similar materials along the shoreline of a river or ocean by running water. The new land becomes the property of the owner of the property to which it is attached, provided the accumulation is so gradual that it can- not be visibly perceived from moment to moment. See also accretion, reliction, alluvium, and avulsion.
alluvium n. The land created by allu- vion.
alonge n. A piece of paper occasion- ally attached to a negotiable instrument for the signing of endorsements once the original instrument is filled with endorsements.
also known as n. Phrase used before a list of names used by a specific indi- vidual in order to avoid confusion about the person’s true identity or by others when referring to the individual. See also a.k.a. and alias.
alteration See material alteration.
alter ego n. The other self. A doctrine allowing a court to ignore the limited personal liability of a person who acts in a corporate capacity and impose per- sonal liability for the corporation’s wrongful acts when it is shown that the individual was using the corporation to conduct personal business and that there was no real separation between the indi- vidual’s and the corporation’s identity. See also corporate (corporate veil).
a.k.a. abbr. See also known as. alternative dispute resolution n.
Formal methods of settling disputes
other than by court action, collectively referred to as alternative dispute resolu- tion or ADR. See also arbitration, con- ciliation, mediation, and summary proceeding.
alternative minimum tax See tax. alternative pleading See pleadings. alternative writ See writ.
ambiguity n. A confusion or uncer- tainty about the intention or meaning, especially of a provision in a contract or statute.
latent ambiguity. An ambiguity that is not obvious and is unlikely to be found while using reasonable care. For example, a third party contract that provides for a payment to be made to a charity, but two charities exist with the same name. Extrinsic evidence, if allowed, may be required to determine the correct interpretation of the ambiguity. However, if each party, in good faith interprets the ambiguity differently, the meeting of the minds necessary to create a valid contract is not present.
patent ambiguity. An ambiguity that is obvious or apparent upon reason- able inspection.
ameliorating waste See waste.
amenable adj. 1 Legally answerable; required to respond; responsible; sub- ject to. 2 Capable of being tested, adjudged, or brought to judgment. 3 Susceptible to; disposed toward; capa- ble of being persuaded.
amend v. To add to, delete, correct, revise, or otherwise alter.
amendment n. 1 The addition, dele- tion, correction, or other changes pro- posed or made to a document. The term is usually capitalized when referring to an amendment in the United States Constitution (for example, the Fifth Amendment). 2 The act or process or revising something. See also emendation.
a mensa et thoro adv. Latin. From board and hearth. See also divorce.
amercement n. 1 The imposition of a discretionary fine or penalty in an amount not set by statute. 2 The fine or penalty so imposed.
American Arbitration Association n. A national organization that promotes the use of arbitration to resolve com- mercial and labor disputes. It also main- tains a panel of arbitrators for those who wish to utilize their services. Abbreviated AAA.
American Bar Association n. The largest national organization of lawyers, it promotes improvements and reform in the administration of justice and in the provision of legal services to the public. Abbreviated ABA.
American Bar Foundation n. A sub- sidiary of the American Bar Association that funds and sponsors projects in law- related education, research, and social studies.
American Civil Liberties Union n. A national organization of lawyers and others who are interested in enforcing and preserving the individual rights and civil liberties guaranteed by the federal and state constitutions. Abbreviated ACLU.
American Law Institute n. A national organization of attorneys, judges, and legal scholars who seek to promote consistency, clarity, and simpli- fication in the law through such projects as the Restatements of the Law and the Model Penal Code. Abbreviated ALI.
American Stock Exchange n. The second largest stock exchange in the United States. Located in New York City, it frequently engages in the trading of stock of small or new companies because of its less rigid listing require- ments. Abbreviated as AMEX and ASE. See also New York Stock Exchange.
Americans with Disabilities Act n. Federal law enacted in 1990 to protect individuals with physical or mental dis- abilities from intentional or uninten- tional discrimination in housing, employment, education, access to public services, etc. Abbreviated ADA.
AMEX abbr. See American Stock Exchange.
amicus brief See brief.
amicus curiae n. Latin. Friend of the court. One who is not a party to an action but petitions the court or is invited by the court to provide informa- tion or submit her views because she has a strong interest in the case at hand or a perspective that may not be ade- quately presented by the parties.
amnesty n. A pardon for past criminal offenses for a class or group of individu- als who are subject to trial but have not yet been convicted. Amnesty may be lim- ited or conditional. For example, amnesty may be offered only to those who perform a certain act, such as community service, within a specific period of time. Also referred to as grant of amnesty.
amortize v. 1 To gradually extinguish a debt in advance of its maturity, usually by paying regular installments in excess of the accrued interest each time a peri- odic interest payment is due. See also sinking fund. 2 To arrange to gradu- ally extinguish a debt. 3 To apportion the initial cost of an intangible asset each year over the course of the asset’s useful life until the entire cost has been used up.
amount in controversy n. The mone- tary damages sought by a party in an action; the value of a claim even if not expressly stated in the pleadings. See aggregation doctrine and jurisdiction (jurisdictional amount).
AMT abbr. Alternative minimum tax. See tax.
ancestor n. 1 One, such as a parent, grandparent, great-grandparent, who precedes another in lineage. 2 Any relative from whom one inherits by intestate succession.
ancient document See document.
ancillary adj. Auxiliary; collateral; dependant; supplemental; subordinate.
ancillary administrator n. A person appointed by the court in a state where the descendant was not domiciled to manage the assets and liabilities and to oversee the distribution of decedent’s estate in that state. Such an administra- tor usually works as an adjunct to the executor or administrator appointed in the state where the decedent was domi- ciled.
ancillary claim n. A claim that is aux- iliary to, supplemental to, or dependant on another claim. For example, a claim against a physician who negligently pre- scribed an unsafe drug may be ancillary to a claim against the drug manufac- turer who produced the medication. See jurisdiction.
ancillary jurisdiction See jurisdic- tion.
and his heirs See heir.
Anders brief n. A request filed by a court-appointed attorney to withdraw from the appeal of a criminal case because of his belief that the grounds for the appeal are frivolous. Named after Anders v. California (1967).
animus adj. Latin. Purposefully; inten- tionally. 1 Animosity; hostility; ill will; strong dislike; hate. 2 The animating thought, intention, or purpose of an act.
annex v. 1 To add, affix, or append as an additional or minor part to an already existing item, such as a document, building, or land. 2 To attach as an attribute, condition, or consequence.
annexation n. 1 The act of annexing; the state of being annexed. 2 The point in time when an addition or adden- dum becomes part of the thing to which it attached. 3 The formal act of a polit- ical unit, such as a nation, state, or municipality, annexing land to its’ domain. 4 Annexed land.
annotation n. Comments that ana- lyze, explain, or criticize, or a collection of brief summaries of appellate cases that have applied or interpreted, a par- ticular statutory provision. These com- ments and summaries are appended to, and published with, the statute in a set of volumes. For example, the United States Code Annotated contains the statutes of the United States and, after each statutory provision are the com- ments and summaries pertaining to that provision.
annuitant n. One entitled to the peri- odical payments, but not the principal, of an annuity.
annuity n. A fixed sum paid out at regular intervals for a certain period of time and subject to limitations set by the grantor. For example, a person may be entitled to fixed and periodic payments for the rest of his life once he reaches a certain age. See also life estate and trust.
annul v. 1 To cancel, make ineffective, invalidate, nullify, void. 2 To judicially declare something to be void either from the date of decree or ab initio. 3 To make an ecclesiastical or judicial decla- ration that a marriage is void ab initio and never existed. See also divorce.
answer 1 v. To respond to a pleading, discovery request, or other judicial process or procedural step. 2 v. To address or counter allegations, account for one’s actions, or otherwise put up a defense. 3 v. To assume the liability or responsibility for another’s actions. 4
v. To pay a debt or other liability; to suf- fer the consequences for one’s actions.
5 n. A pleading that is a defendant’s principal response to a plaintiff’s com- plaint. It denies, admits, or otherwise addresses each of the allegations in the complaint. It also usually sets forth the defendant’s affirmative defenses and counterclaims. See also reply.
ante adv. Latin. Before. Before in time, order, or position; in front of. See also post.
antenuptial agreement n. Same as prenuptial agreement, although less commonly used. See agreement.
anticipatory breach See breach of contract.
anticipatory repudiation Same as antic- ipatory breach. See breach of contract.
antidumping law n. A federal statute authorizing the imposition of special duties on imported foreign goods when the manufacturers are attempting to sell the goods in the United States at less than fair value to the material detriment of American industry. See dumping.
antilapse statute n. A statute enacted in most states allowing the heirs of a devisee or legatee who dies before the testator to take the testa- mentary gift intended for the devisee or legatee. Without the statute, the gift would fail and go to the residuary bene- ficiary (if any) or to the testator’s intes- tate heirs. For example, without the statute, a bequest to a son who dies before his father would lapse, and the
grandchildren could receive nothing, but with it, the grandchildren would receive the gift that would have gone to the son. Often, these statutes apply only to the heirs of the testator’s rela- tives who are named as devises and legatees in the testamentary document. See also lapse.
antitrust law n. The body of law, pri- marily consisting of federal statutes, designed to promote free competition in trade and commerce by outlawing vari- ous practices that restrain the market- place. See also Clayton Act and Sherman Antitrust Act.
APA abbr. See Administrative Procedure Act.
a posteriori adv. Latin. From what comes after. Inductive; empirical; rea- soning or the ascertaining of truth by actual experience or observation. See also a priori.
apparent adj. 1 Readily perceived; manifest; obvious; visible. 2 Seeming, but not actual or real. See also actual and constructive.
apparent authority See authority.
appeal n. 1 The process to seek and obtain a review and reversal by a court of a lower court’s decision. 2 The process to seek and obtain a review and reversal of an administrative decision by a court or by a higher authority within the administrative agency. See also cer- tiorari, notice of appeal, trial (trial de novo), and writ of error.
appeal (as of) (by) right. An appeal in which a court or administrative agency must review the decision that is sought to be reversed.
appeal by permission. An appeal in which a court or administrative agency’s review of a decision is
within the court or agency’s discre- tion. Also called discretionary appeal. See also certiorari.
consolidated appeal. An appeal in which the issues to be reviewed in two or more cases are similar enough that it is practical to unite the reviews into a single appeal. See also joinder.
cross appeal. An appeal by an appellee, usually considered at the same time as the appeal by the appellant.
direct appeal. An appeal of a trial court’s decision made directly to the jurisdiction’s highest appellate court without first seeking review by the intermediate appellate courts. For example, although a United States District Court deci- sion is usually first reviewed by one of the Untied States Court of Appeals before the United States Supreme Court considers it, a direct appeal bypasses the Court of Appeals and sends the District Court decision directly to the Supreme Court.
interlocutory appeal. An appeal of a trial court’s interim decision while the case is still pending in the trial court. Some interlocutory appeals involve legal questions whose reso- lution are necessary for the trial court to reach a proper decision in the action. Others involve issues that are entirely separate from the merits of the case. In most states, interlocutory appeals are permitted only in limited circumstances and are rarely granted.
appeal (as of) (by) right See appeal.
appealable decision Same as appeal- able order. See order.
appealable order See order. appeal bond See bond.
appearance n. 1 The coming into a court to participate in a court proceed- ing by a party who has been validly served process or by a party who is vol- untarily submitting itself to the court’s jurisdiction. 2 The coming into a court to participate in a court proceeding by a witness or an interested person or by a lawyer acting on behalf of a party or interested person.
compulsory appearance. An appear- ance by one who is required to do so because he has been validly served with process.
entry of appearance. The formal act of an attorney notifying a court of his representation of a party to the proceedings, either by written docu- ment, or orally in open court.
general appearance. An appearance wherein a party consents to the court’s jurisdiction and waives the ability to later contest the court’s authority to reach a binding deci- sion against her in the case.
initial appearance. A criminal defen- dant’s first appearance in court. Usually, this is when the charges are read to the defendant or the defendant is given a copy of the charges, the defendant is advised of his rights and enters a plea, and the amount of bail (if bail is not denied) is determined. See also arraign- ment and presentment.
special appearance. An appearance made for the sole reason of contest- ing the court’s jurisdiction over the defendant.
voluntary appearance. An appear- ance by one who has not yet been served with process in the case.
appellant n. A party who appeals a court or administrative agency’s deci- sion. See also appellee.
appellate adj. Relating to a specific appeal or to appeals in general.
appellate court See court.
appellate jurisdiction See jurisdic- tion.
appellee n. The opponent of the party who appeals a court’s or administrative agency’s decision.
applicant n. One who applies for or requests something.
application n. 1 The act of applying or making a request. 2 An oral or written formal motion, request, or petition.
apply v. 1 To make a formal motion or request to a court. 2 To be relevant; to have bearing upon; to be instructive. 3 To devote, use, or assign for a particular purpose.
appointed counsel See counsel
appointee n. 1 One who is appointed or assigned to a position or a public or private office or to perform a task. 2 One who will receive property pursuant to a power of appointment. See also power of appointment.
appointment n. 1 The appointment, designation, or placement of an individ- ual in a job, office, or position, or to per- form a duty. 2 A job, office, position, or duty to which one has been appointed. 3 The act of designating who will receive property pursuant to a power of appointment. See also power of appointment.
apportionment n. 1 The allocation, distribution, or division of something into proportionate shares. 2 The draw- ing of the boundaries of legislative dis- tricts so that each district is approximately equal in population. See also gerrymandering and reapportion-
ment. 3 The allocation after every census of the seats in the United States House of Representatives among the states based on population.
apportionment of liability n. In tort law, the division of liability for the plain- tiff’s injuries among multiple tortfea- sors. In some cases, some of the liability may be apportioned to the plaintiff as well. See indemnity, liability, and set- tlement.
appraisal rights n. The statutory right available in most states for a corpora- tion’s minority shareholders who object to certain extraordinary corporate actions (the nature of which varies state to state, but usually includes consolida- tions and mergers) to have a fair price of their stock determined in a judicial pro- ceeding prior to the action and to require the corporation to repurchase their stock at that price. See also fault.
appraise v. To determine the fair price or market value of something. See also market value and assess.
appreciation n. 1 The incremental increase in an asset’s value, usually because of inflation. Compare deprecia- tion. 2 The awareness or understand- ing of the meaning, significance, value, or worth of something.
unrealized appreciation. The appreci- ation in the value of property that has not yet been subject to tax. See also realization.
appropriation n. 1 The taking of con- trol or possession of property, especially the government’s taking of private prop- erty for a public purpose. 2 The act by a legislative body to designate or set aside public funds for a government expenditure. 3 In tort law, the taking of the name or likeness of one person by another for a commercial purpose. It is considered an invasion of privacy.
appurtenant n. A right or thing, such as an easement, attached to or associ- ated with land, that benefits or burdens the use or enjoyment of the property by its owner and continues to do so when title passes to another.
APR abbr. Annual percentage rate.
a priori n. Latin. From what is before. Deductive reasoning or the ascertaining of truth by proceeding from an assump- tion to its logical conclusion rather than by actual experience or observation. For example, one who walks by a store when its alarm is sounding and sees that its window is broken can deduce that a bur- glary has occurred without having watched the burglars commit the actual crime.
arbiter n. One called upon to decide a legal dispute outside of a court. See also arbitrator and conciliator.
arbitrary adj. 1 Determined or founded on individual discretion, espe- cially when based on one’s opinion, judg- ment, or prejudice, rather than on fixed rules, procedures, or law. See also abuse of discretion. 2 Absolute; despotic; completely unreasonable; lack- ing any rational basis. This type of deci- sion is often called arbitrary and capricious.
arbitration n. A method of alternative dispute resolution whereby a dispute, with the consent of all the parties, is submitted to a neutral person or group for a decision, usually including full evi- dentiary hearing and presentations by attorneys for the parties. Often, arbitra- tion is the only form of proceeding per- mitted under the terms of contracts; see arbitration clause. See also conciliation, mediation, and summary proceeding.
arbitration clause. A clause in a con- tract requiring the parties to submit all disputes arising from the con-
tract to an arbitrator or group of arbitrators rather than to proceed with litigation. Usually, a breach or repudiation of a contract will not nullify the clause.
binding arbitration. Arbitration pro- ceeding that is final and binding by prior agreement of the parties, or by legal rule or statute; no right of appeal or further proceedings. com- pulsory arbitration. Arbitration required by law rather than by the mutual agreement of the parties to a dispute.
nonbinding arbitration. Arbitration in which the parties to the dispute are not required to abide by the arbitra- tor or arbitrators’ decision and may ignore the decision and submit the dispute to litigation.
arbitrator n. A neutral person who resolves disputes between parties. Usually, the parties to the dispute choose the arbitrator. See also arbitra- tion, arbiter, and conciliator.
arguendo adv. Latin. In arguing. 1 Hypothetically; for the purpose or sake of argument. A term used to assume a fact without waiving the right to ques- tion it later on. For example, a defense attorney may state to the judge: “Assuming arguendo that the defendant committed the crime, the statute of lim- itations prevents the state from prose- cuting him for it.” 2 During the course of an argument or a conversation. For example, “Mr. Smith mentioned arguendo that his client had three prior convictions.”
argument n. 1 The reason or reasons offered for or against something. 2 The formal oral or written presentation of such reasons intended to convince or persuade. 3 The section of an appel- late or trial brief in which a party pre- sents its interpretation of the law.
closing argument. At a trial, the final statement given by the parties or their attorneys to the judge or jury, before deliberation, in which they summarize the evidence and the applicable law, present their inter- pretation of the same, and ask that a judgment or verdict be reached in their or their clients’ favors.
oral argument. 1 A party or his attor- ney’s oral presentation to a court stating the factual and legal rea- sons why the court should decide a legal issue or take particular action in their favor. 2 The procedure by which such arguments from all par- ties are heard by the court.
reargument. The oral, and some- times written, presentation of addi- tional arguments to a court on a matter previously argued before the court, but on which no decision has yet been rendered, for the purpose of advising the court of some con- trolling appellate court decision or principle of law that was previously overlooked or of some misapprehen- sion of facts. See also reconsidera- tion and rehearing.
argumentative adj. Stating facts and suggesting that particular inferences and conclusions can be drawn from them.
armed robbery See robbery.
arm’s length adj. Of or relating to the bargaining position or dealings of two or more unrelated parties of approximately equal bargaining power who are not con- nected, on close terms, or in a confiden- tial relationship with each other and whose mutual dealings are influenced only by their own self-interest.
arraignment n. The first step in a criminal prosecution wherein the defen- dant is formally advised of the charges against him. This is done by reading the charges to the defendant or by giving
them a copy of the charges. The defen- dant is also advised of his rights (for example, the right to plead not guilty and to have a jury trial) and enters a plea, and the amount of bail (if bail is not denied) is determined.
array 1 n. A group of people called into court at the same time for potential jury duty. From such a group the mem- bers of a jury or juries will be selected. 2 n. The members of such a group who are empaneled to be a jury. 3 v. To empanel a jury for a trial. 4 n. The list of empaneled jurors. 5 v. To call out the names of the jurors as each is empaneled.
arrear n. 1 The state of being late in the payment of a debt or the perform- ance of an obligation. 2 An overdue or unpaid debt or unfinished duty. See also arrearage.
arrearage n. An overdue debt. See also arrear.
arrears See arrear.
arrest n. The intentional deprivation, whether actual or constructive, of a per- son’s freedom by legal authorities using forcible restraint, seizure, or otherwise taking the individual into custody, espe- cially in response to a warrant or a sus- picion based on probable cause that the person being arrested has committed a crime. The person making the arrest must have the present power to control the person being arrested. Furthermore, the intent to make an arrest must be communicated to the individual who is being detained and that person must understand that the seizure or detention is an intentional arrest. See also privi- lege and resisting arrest.
citizen’s arrest. An arrest made by a private individual rather than by a law enforcement officer. Such arrests are lawful only if 1) an offense was committed in the pres-
ence of the person making the arrest, or 2) the person making the arrest has reasonable cause to believe that the person arrested has committed a felony.
false arrest. An arrest made by a per- son who falsely claims to be a law enforcement officer or by a law enforcement officer who has no legal grounds for making an arrest. See also false imprisonment.
malicious arrest. 1 An arrest made without probable cause and for an improper purpose. 2 An arrest made with knowledge that the per- son arrested did not commit the crime he is charged with. See also malicious prosecution.
parol arrest. An arrest ordered by a judge or magistrate while presiding over a court proceeding. Such an arrest is done without a written complaint and is executed immedi- ately, for example, an arrest of a person in a courtroom who has been found in contempt of court.
pretextual arrest. A valid arrest made for a minor offense with the intent to hold the person in custody while investigating his involvement in a more serious offense for which there is yet no lawful grounds to arrest the suspect.
warrantless arrest. An arrest made in a public place without a warrant that is based on either the probable cause that the person committed a felony or the person committing a misdemeanor in the law enforce- ment officer’s presence.
arrest of judgment n. The court’s refusal to render or enforce a judgment after a verdict has been reached because of some apparent defect or error in the proceedings or because the verdict is not supported by the evidence.
arrest record See criminal record.
arrest warrant See warrant.
arson n. 1 In common law, the willful and malicious burning of someone else’s dwelling house. In some states, the term includes, under specific circumstances, the burning of a dwelling house by its owner. 2 Under modern statutes, the intentional causing of a dangerous fire or explosion for the purpose of destroy- ing one’s own or another’s property.
art 1 v. To utilize knowledge or skill according to rules and principles to cre- ate something. 2 n. A business, occu- pation, or pursuit that depends upon a skill. 3 n. In patent law, the method, process, or technique for creating some- thing or for achieving a useful result.
article n. 1 A separate and distinct part of a written instrument, such as a contract, statute, or constitution, that is often divided into sections. 2 A writ- ten instrument, containing a series of rules and stipulations that are each des- ignated as an article.
Article I court See court. Article I judge See judge. Article III court See court. Article III judge See judge.
articles of association n. A written agreement legally creating an associa- tion and sets forth the purpose and rules of the organization.
Articles of Confederation n. The first constitution of the United States, rati- fied in 1781 and replaced eight years later with the present Constitution of the United States.
articles of impeachment n. A formal statement of the reasons to remove a public official from office. See impeach- ment.
articles of incorporation n. A written agreement setting forth the basic struc- ture of a corporation. The document nor- mally includes the name, duration, and purpose of the corporation; the names and addresses of its initial board of directors; and the number and classes of shares of stock that it will be allowed to issue. Normally, the corporation is not legally created until the articles of incor- poration are filed with a state govern- ment. See also by-law and charter.
artificial person See person.
as of right adj. Description of a court action that a party may take without permission of the court, as opposed to requiring leave of court.
ascendant See ancestor.
ascent n. The passing of an estate to an heir who is an ancestor of the intes- tate. See also descent.
ASE abbr. See American Stock Exchange.
as is adj. In the condition it presently exists or as found on inspection immedi- ately prior to purchase, even if damaged or defective, without modification and without any express or implied war- ranties. When referring to a sale of goods that were sold as is, based on an inspection of a sample, the goods deliv- ered must be of the same type and qual- ity or better than the sample was immediately prior to its inspection.
asportation n. The carrying away or moving the personal property of another. It does not matter how short the dis- tance or slight the movement as long as the person who carries away or moves the property is knowingly and intention- ally exercising control of the property without the consent and to the exclusion of the rights of the owner. See also cap- tion, larceny, robbery, and trespass.
assault n. 1 In criminal and tort law, an act, usually consisting of a threat or attempt to inflict bodily injury upon another person, coupled with the appar- ent present ability to succeed in carry- ing out the threat or the attempt if not prevented, that causes the person to have a reasonable fear or apprehension of immediate harmful or offensive con- tact. No intent to cause battery or the fear or apprehension is required so long as the victim is placed in reasonable apprehension or fear. No actual physical injury is needed to establish an assault, but if there is any physical contact, the act constitutes both an assault and a battery. 2 In criminal law, in some states, the term includes battery and attempted battery. 3 Any attack. 4
v. The act of inflicting bodily injury upon another. See also mayhem.
aggravated assault. A criminal assault accompanied by circum- stances that make it more severe, such as the victim’s suffering seri- ous bodily injury or an assault com- mitted with a dangerous and deadly weapon. The additional circum- stances that make the act an aggra- vated assault are set by statute.
sexual assault. 1 Rape. 2 Any sex- ual contact with another person without the other’s consent or when the other lacks the capacity to give legally effective consent.
assault and battery See battery.
assembly n. 1 A group of people gath- ering, coming together, or meeting, or already so assembled, for a common purpose. 2 A legislative body, espe- cially, in many states, the lower house of the state legislature.
unlawful assembly. Three or more individuals gathering, coming together, or meeting with the com- mon intention of committing a vio- lent crime or some act, lawful or
unlawful, that will breach the peace.
assess v. 1 To determine the value of something, especially of real estate for property tax purposes. See also appraise. 2 To establish the amount of, and then charge, a fine, taxes, or another payment. 3 To require stock- holders and partners to fill the need for additional capital by making additional contributions to their corporation or partnership.
asset n. 1 Any property or right that is owned by a person or entity and has monetary value. See also liability. 2 All of the property of a person or entity or its total value; entries on a balance sheet listing such property.
capital asset. For income tax pur- poses, most property of the tax- payer except for a few certain business assets (for example, inven- tory and stock in trade) and other property excluded by the Internal Revenue Code.
intangible asset. An asset that is not a physical thing and only evidenced by a written document. For exam- ple, a debt that is owed to a tax- payer is an intangible asset.
tangible asset. An asset that is a physical thing, such as land, build- ings, and goods.
assign v. 1 To transfer one’s duty, interest, or right to another, especially regarding property or under a contract, so that the transferee has the same duty, interest, or right as the transferor had. See also assignment and delegate. 2 To appoint. 3 To identify.
assignable n. Capable of being assigned. Certain rights and duties can- not be assigned while others are not assignable without the consent of the other parties involved. For example, a
world-renowned author cannot unilater- ally assign her contract to write a book to another writer.
assigned counsel See counsel.
assignee n. One to whom a duty, inter- est, or right is assigned.
assignment n. The transfer of a duty, interest, or right from one party to another. See also subrogation.
assignment for benefit of creditors. An assignment of most of a debtor’s property to another who, acting as a trustee, consolidates and liquidates the assets and pays the debtor’s creditors with any surplus being returned to the debtor.
assignment of a lease. An assignment of a lessee’s entire interest in a lease. The assignor remains sec- ondarily liable to the landlord and will have to pay the rent if the assignee does not. See also sub- lease.
assignment of error n. The list in an appellant’s brief of the trial court’s alleged errors, upon which the appellant seeks a modification, reversal, or vaca- tion of the trial court’s decision.
assignor n. One who transfers a duty, interest, or a right to another.
assigns n. The plural of assignee. See
heirs and assigns.
assisted suicide See suicide, assisted.
assize n. 1 Often spelled assizes: a session of a court or legislative body. 2 The time or place of, or a law enacted by, such a session. 3 A cause of action, especially one relating to the ownership or possession of land. 4 A trial, especially one presided over by an itinerant judge and held in the county
that is the location of the land, dispute, or crime in question. 5 The jury at such a trial.
general assize. The action, or the trial or jury in an action, to deter- mine the ownership of land.
assizes See assize.
associate n. 1 A colleague, compan- ion, partner, or fellow employee. 2 A junior member of an association, institu- tion, organization, profession, or society. 3 A junior member of a law firm who typically works on salary and does not share in the ownership, profits, or deci- sion-making of the firm.
associate judge See judge.
association n. A group of individuals meeting or associated for fellowship or a common purpose. See also freedom of association.
unincorporated association. An organized, but unincorporated group of individuals. Thus, the organization does not have a legal existence separate from its mem- bers. However, if it has certain char- acteristics, such as centralized management, that make it more like a corporation than a partnership, it may be treated and taxed as a cor- poration.
joint stock association. Same as joint stock company. See also company.
professional association. 1 A group of members of a profession organized to practice their profession together. The association may be a partnership, corporation, or some other entity. 2 A group of mem- bers of a profession organized to promote, improve, regulate, or deal with the public on behalf of their profession, such as a bar associa- tion. 3 In some states, the same as a professional corporation. See also corporation.
trade association. An association of businesses or business organiza- tions that share common concerns or engage in similar activities, such as a chamber of commerce or a trade council.
Association of American Law Schools
n. A national organization of law schools that have each graduated at least three classes of students and have offered instruction for at least five years. Abbreviated AALS.
assumpsit n. Latin. He undertook. 1 An enforceable promise or undertaking that is not under seal. 2 An action for expectation damages caused by the breach of a promise or a contract not under seal.
express assumpsit. Such a promise that is made orally or in writing.
implied assumpsit. Such a promise that is presumed due to individual’s conduct or the circumstances of the situation.
general assumpsit. An action based the breach of an implied promise or contract to pay a debt. Also called common assumpsit.
special assumpsit. An action for expectation damages based on the breach of an express promise or contract to pay a debt.
non assumpsit. A defendant’s claim, in the form of a pleading, that he or she did not promise or undertake any obligation as alleged in a com- plaint.
assumption n. 1 Something the truth of which is taken for granted; a supposi- tion. 2 The act of taking for or on one- self, especially accepting, or agreeing to take the responsibility for, the obligation of another.
assumption of risk n. 1 In contract law, the act or agreement to take on a risk of damage, injury, or loss, often stated as the risk “passes” to the pur- chaser upon the occurrence of a certain event, e.g., shipment of goods. 2 In contract law, an employee’s express agreement to undertake the risks that normally accompany or arise from that occupation. 3 In tort law, that a plain- tiff voluntarily accepted or exposed him- self to a risk of damage, injury, or loss, after appreciating that the condition or situation was clearly dangerous, and nonetheless made the decision to act; in such cases, the defendant may raise the plaintiff’s knowledge and appreciation of the danger as an affirmative defense. Successful invocation of assumption of risk as an affirmative defense will result in a reduction or elimination of damages assessed against the defendant. This defense has been strictly limited in many states, and is unavailable in cer- tain types of actions, e.g., product liabil- ity cases. See also negligence.
assurance 1 n. a promise or guaran- tee, an act that inspires confidence. 2 v. the act of promising or assuring.
asylum n. A place of refuge, sanctu- ary, or shelter, especially an institution for the maintenance and care of people requiring special assistance.
political asylum. 1 The decision by a country’s government to allow within its border a person from another country and to protect that person from prosecution and perse- cution by that other country’s gov- ernment. 2 The protection and refuge granted by a country to citi- zens and residents of other coun- tries who obtain entry unto the premises of its foreign embassies and consulates.
at bar See bar.
at equity See equity.
at issue See issue.
at large adj. 1 Free from confinement, control, or restraint. 2 Chosen by the electorate of, or representing the resi- dents of, an entire political unit, such as a state, country, or city, as opposed to a subdivision of the unit, such as a district, riding, or ward. 3 Not ordered or organ- ized by topics, especially when referring to a group of statutes or ordinances.
at law adj. Relating to law, as opposed to equity. See equity and operation of law.
at will n. A status or relationship that can be terminated for any reason, or for no reason, at any time without prior notice.
at-risk adj. Characterization of per- son or property subject to unique jeop- ardy or threat, as in the case of youth “at-risk” for increased likelihood of delinquency due to home and environ- mental factors, or finances “at-risk” due to vagaries of stock market, global instability, health issues of individual having such finances, etc.
atrocious n. An act that is outra- geously cruel, vile, and wicked and that demonstrates a depravity and insensi- tive brutality, especially when using senseless, excessive, or extreme vio- lence during the commission of a crime.
attach v. 1 To add, affix, annex, bind, fasten, or join as a part. 2 To seize or take by legal process; to carry out an attachment, for example, to attach the funds in a debtor’s bank account to pay a judgment. 3 To adhere or become legally effective, especially in connec- tion with something or upon some event. For example, certain rights and respon- sibilities attach to becoming a parent.
attachment n. 1 The seizure or freez- ing of property by court order while an
action is pending so that its ownership can be determined, it can be secured to be sold to satisfy a judgment, or its sale or transfer can be prevented so that any future judgment arising from the action may later be secured or satisfied. See also garnishment and replevin. 2 The writ ordering such a seizure or freezing of property. 3 In commercial law, the creation of a security interest in prop- erty when the debtor agrees to the secu- rity, receives value from the secured party, and obtains rights in the property.
attainder n. In common law, the auto- matic elimination of one’s civil rights and liberties when sentenced to death or declared an outlaw for committing a felony or treason. See also civil death and bill of attainder.
attempt n. The intentional and overt taking of a substantial step toward the commission of a crime that falls short of completing the crime. The mere plan- ning of a crime, as well as soliciting another to commit the crime, does not constitute an attempt to commit the crime. Attempt is a crime distinct from the offense that the criminal was attempting to commit. Various legal tests are used to determine when, between planning a crime and commit- ting it, a person’s actions constitute an attempt. See also conspiracy and solic- itation.
attendant adj. Accompanying; result- ing in. For example, in criminal law, the definitions of several crimes require the presence or absence of attendant cir- cumstances; for example, the absence of consent to be touched is required for an offensive touching to be considered a battery.
attest v. 1 To bear witness; testify. 2
To affirm as accurate, genuine, or true.
3 To certify by oath or signature. 4 To affirm a document’s authenticity by signing it as a witness to its execution by another person.
attestation n. The act of authenticat- ing a document by observing its execu- tion at the request of the party signing the document, and then signing it as a witness.
attorn v. 1 To turn over or transfer something to another. 2 To acknowl- edge a new landlord and agree to become his or her tenant.
attorney n. Lawyer; one who dis- penses legal advice to clients and advo- cates for them.
attorney in fact. One who is the agent or representative of another and is authorized, pursuant to a power of attorney, to act on their behalf.
attorney at law. 1 One who is spe- cially trained and licensed by a state to practice law. 2 One whose profession is to provide advice or to act or represent others in legal matters. See also district attorney, public defender, and counsel.
attorney of record. The attorney at law or the law firm designated in a court’s records as representing a particular party in a particular action. As long as a party is repre- sented by an attorney of record, all documents, correspondence, and other communications that are intended for that party, whether from the court or the other parties in the action, must go instead to the attorney of record.
attorney-client privilege See privilege.
Attorney General n. The chief legal officer of the United States or of a state, who advises the federal or state govern- ment on legal matters, represents the federal or state government in litigation, and heads the United States Department of Justice or a state’s legal department. Abbreviated A.G. See also solicitor(s) general and United States Attorney.
attorney, power of See power of attorney.
attorney’s fees n. The sum charged to a client by an attorney at law for the pro- fessional services performed for the client. The sum reflects a contingent fee, flat fee, hourly fee, compensation for out-of-pocket expenses, or some combination thereof. See also contin- gent fee and retainer.
attorney’s lien n. An encumbrance asserted by a lawyer against a client’s file, money or property as security for unpaid legal fees. Strictly limited right to assert such a lien in most jurisdic- tions, and prohibited by ethical rules in others. Also referred to as a charging lien or retaining lien.
attractive nuisance doctrine n. In tort law, the doctrine that one who has a dangerous condition or thing on his property that is likely to attract a curi- ous child is under a duty to take reason- able steps to protect the child from it. For example, one has a duty to fence or cover an unsupervised swimming pool. The fact that the child is a trespasser does not negate the duty, but is one of many factors to be taken into account in determining the exact extent of the property owner’s duty and the level of care required of him.
auction See sale.
audit n A formal inspection of the accounting procedures and records and the financial situation of an individual, business, organization, or government entity to verify the accuracy and com- pleteness of the records or their compli- ance with another set of standards.
authenticate v. 1 To prove that some- thing, such as a document, is what it purports to be, especially so that the item can be admitted into evidence at a trial or hearing. For example, a party wishing to admit a letter into evidence may ask the witness whether it is, indeed, the letter he received, does he recognize the handwriting, and similar questions. 2 To place a mark, such as a signature or a stamp, on a document to signify that it is authentic, effective, or valid. 3 To approve or adopt a writ- ing as one’s own.
self-authentication n. The act of prov- ing that something, usually a document, is genuine or true without the use of extrinsic evidence. For example, nota- rized documents and certified copies of public records are usually deemed to be self-authenticating.
authority n. 1 The authorization, per- mission, power, or right to act on another’s behalf and to bind them by such actions. See also agency, agent, and principal. 2 The right or power to command, govern, or enforce obedience. 3 A legal writing, such as a judicial deci- sion, law review article or legal treatise, or a statute’s legislative history that provides information or insight on how to interpret and apply the law. See also precedent.
actual authority. Authority, express or implied, intentionally given by a principal to an agent.
adverse authority. Authority that is detrimental to a party’s argument or position regarding a question or an issue. Usually, when a lawyer finds such authority, he is under an ethi- cal obligation to reveal it to the court, but it is done in such a way (for example, arguing that the deci- sion in a previous case should be narrowly construed or was wrongly decided) as to minimize the author- ity’s effect upon his client’s case.
apparent authority. Authority that can be reasonably inferred by a third party to have been given to an agent based upon the third party’s dealings with the principal or upon the principal’s representations even if the principal did not intend to give the agent such authority.
binding authority. See precedent.
persuasive authority. Authority that is not binding on a court but still merits consideration. For example, a scholarly work or the decision of a higher court in another jurisdiction.
primary authority. Authority that is issued by law-making bodies, such as a court’s decision or a statute’s legislative history.
secondary authority. Authority that analyzes and explains the law, but is not issued by a court or legisla- ture. For example, an annotation, law review article, or legal treatise.
automatic stay See stay.
automobile guest statute See guest statute.
autopsy n. The post-mortem examina- tion of a human body, including its dis- section and the removal and inspection of the major organs, to determine the cause of death.
autoptic evidence See evidence.
autre or auter n. French. Other, another. See also estate.
autrefois acquit n. French. Formerly acquitted. A plea by a person indicted for a crime for which he or she had pre- viously been tried and acquitted. See also double jeopardy and autrefois convict.
autrefois convict n. French. Formerly convicted. A plea by a person indicted for a crime for which he or she had pre- viously been tried and convicted. See also double jeopardy and autrefois acquit.
autre (or auter) vie n. French.
Another’s life. See estate.
aver v. To formally assert as a fact, such as in a pleading; to allege.
averment n. 1 The act of averring. 2 A positive affirmation, allegation, or declaration of facts, especially in a plead- ing, as opposed to an argumentative statement or a statement based on induc- tion or inference; generally this term is used in civil proceedings, as opposed to allegation in criminal proceedings.
averment of notice. See also notice.
immaterial averment. An averment that provides unnecessary informa- tion and detail.
negative averment. An averment that is stated in the negative, but is actu- ally affirmative in substance. For example, the negative averment “he is not old enough to marry” really means that “he is too young to marry.” Although one who makes a simple denial in a pleading does not carry the burden of proof, the party who asserts negative averment has the burden to prove the averment’s affirmative substance.
a vinculo matrimonii adv. Latin. From the bond of marriage. See divorce.
avoid v. Slang. To annul, cancel, make void, or nullify for some legal reason a transaction to which one is a party or owes an obligation. For example, a child who is under the age of capacity may disavow a contract and avoid her obliga- tions under it because she lacks the legal capacity to enter into a contract. See also annul, voidable, and ratify.
avoidance n. 1 The act of keeping away from, escaping, evading, or pre- venting. 2 Same as confession and avoidance. 3 Same as tax avoidance. 4 Same as voidance.
avulsion n. The sudden and percepti- ble removal or severing of land from the property or jurisdiction of which it was a part by natural forces such as a flood or an abrupt change in the course of a river. Despite the removal or severing of the land, the boundaries between jurisdic- tions or properties are not altered by avulsion. For example, if a river was the boundary between two states, the boundary remains the same although the course of the river has changed. See also alluvion, accretion and reliction.
award 1 n. The final decision of an arbitrator. 2 The final decision of a court, jury, or administrative tribunal granting damages or other relief to a party. 3 v. To formally grant such relief. See also confirmation, judg- ment, and order.
AWOL abbr. See absent without leave.
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