W

Waiver

Intentionally given up a right.

Waiver of immunity

A means authorized by statute by which a witness, before testifying or producing evidence, may relinquish the right to refuse to testify against himself or herself, thereby making it possible for his or her testimony to be used against him or her in future proceedings.

Warrant

Most commonly, a court order authorizing law enforcement officers to make an arrest or conduct a search. An application seeking a warrant must be accompanied by an affidavit which establishes probable cause by detailing the facts upon which the request is based.

Warranty

A promise that a proposition of fact is true.

Warranty deed

A deed which guarantees that the title conveyed is good and its transfer rightful.

Water rights

The right to use water.

Will

A legal declaration that disposes of a person’s property when that person dies.

Withholding

A tax deducted from a salary, wage, or other income on behalf of the government at the time of payment of wages to the person who pays it.

With prejudice

A declaration which dismisses all rights. A judgment barring the right to bring or maintain an action on the same claim or cause.

Without prejudice

A declaration that no rights or privileges of the party concerned are waived or lost. In a dismissal these words maintain the right to bring a subsequent suit on the same claim.

Witness

One who personally sees or perceives a thing; one who testifies as to what he has seen, heard, or otherwise observed.

Worker’s compensation

A state agency which handles claims of workers injured on their jobs.

Writ

A judicial order directing a person to do something.

Writ of certiorari

An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal. (See certiorari in Foreign Words Glossary.)

Writ of execution

An order of the court evidencing debt of one party to another and commanding the court officer to take property in satisfaction of the debt.

Writ of garnishment

An order of the court whereby property, money, or credits int he possession of another person may be seized and applied to pay a debtor’s debt. It is used as an incident to or auxiliary of a judgment rendered in a principal action.

V

Vacate

To set aside.

Venire

A writ summoning persons to court to act as jurors. (See venire facias in Foreign Words Glossary.)

Venue

Authority of a court to hear a matter based on geographical location.

Verdict

A conclusion, as to fact or law, that forms the basis for the court’s judgment. (See directed verdict.)

Visa

An official endorsement on a document or passport denoting that the bearer may proceed.

Void

Invalid; a void agreement is one for which there is no remedy.

Voidable

Capable of being declared invalid; a voidable contract is one where a person may avoid his obligation, as a contract between an adult and a minor.

Voir dire

The preliminary examination made in court of a witness or juror to determine his competency or interest in a matter. Literally, to speak the truth.

Voluntary bankruptcy

A proceeding by which a debtor voluntarily asks for a discharge of his debts under the Bankruptcy Code.

U

Uniform Laws

Annotated Annotated uniform and model acts approved by the National Conference of Commissioners on Uniform State Laws.

Unilateral contract

An agreement by which one undertakes an express performance without receiving any express promise of performance from the other.

Union

An organization of workers formed for the purpose of collective bargaining.

United States Attorney

A federal district attorney appointed by the President to prosecute for all offenses committed against the United States; to prosecute or defend for the government all civil actions in which it is concerned and perform all duties of the district to which he/she is assigned.

United States Court of Appeals

Courts which hear appeals from federal district courts, bankruptcy courts, and tax courts.

United States Court of Claims

Court which hears actions against the U.S. Government.

United States Court of Military Appeals

Court which hears appeals from court marshal decisions.

United States Court of Customs & Patent Appeals

Court which hears appeals from all U.S. customs courts.

United States Court of International Trade

Court which hears cases concerning federal tariff laws.

United States District Courts

Courts which try both criminal and civil actions and admiralty cases.

United States Magistrate Judge

Courts given authority by 28 U.S.C. s 636. This court hears all preliminary criminal matters, but does not conduct felony trials, and any pretrial civil matters referred by the district court. If all parties consent, criminal misdemeanor and civil trials can be heard by this court.

United States Marshal’s Service

Agency which serves civil and criminal process in federal courts.

United States Reports

Publication of court decisions of the United States Supreme Court.

United States Supreme Court

The highest court in the land, established by U.S. Constitution.

Unlawful detainer

A detention of real estate without the consent of the owner or other person entitled to its possession.

Unliquidated debt

Remaining not determined; unassessed or unsettled; in dispute as to the proper amount.

Unsecured debts

In bankruptcy, debts such as open accounts at department stores for which the debtor has not pledged collateral to guarantee payment.

Usury

Extraction of interest on a loan above the maximum rate permitted by statute.

T

Tangible Personal Property Memorandum (TPPM)

A legal document that is referred to in a will and used to guide the distribution of tangible personal property.

Taxable income

The income against which tax rates are applied to compute tax paid; gross income of businesses or adjusted gross income of individuals less deductions and exemptions.

Temporary relief

Any form of action by a court granting one of the parties an order to protect its interest pending further action by the court.

Temporary restraining order

An emergency remedy of brief duration issued by a court only in exceptional circumstances, usually when immediate or irreparable damages or loss might result before the opposition could take action.

Tender of performance

An offer or attempt to do what is required under a contract or under the law.

Testamentary capacity

The legal ability to make a will.

Testamentary trust

A trust set up by a will.

Testator

Person who makes a will (Female: testatrix).

Testimony

The evidence given by a witness under oath. It does not include evidence from documents and other physical evidence.

Third party complaint

A petition filed by a defendant against a third party (not presently a party to the suit) which alleges that the third party is liable for all or part of the damages plaintiff may win from defendant.

Title

Legal ownership of property, usually real property or automobiles.

Tort

A private or civil wrong or injury for which the court provides a remedy through an action for damages.

Trademark

A word, name, symbol, or devise used by a manufacturer to distinguish his goods from those sold by others.

Transcript

A written, word-for-word record of what was said. Usually refers to a record of a trial, hearing, or other proceeding which has been transcribed from a recording or from shorthand.

Transmittal form

Form required in certain courts for transmitting documents for filing.

Treatise

A formal and systematic book or writing containing a narrative statement on a field of law.

Trial

A judicial examination of issues between parties to an action.

Trial brief

A written document prepared for and used by an attorney at trial. It contains the issues to be tried, synopsis of evidence to be presented and case and statutory authority to substantiate the attorney’s position at trial.

Trust

A legal device used to manage real or personal property, established by one person (grantor or settlor) for the benefit of another (beneficiary). (See trustee.)

Trust agreement or declaration

The legal document that sets up a living trust. Testamentary trusts are set up in a will.

Trustee

The person or institution that manages the property put in trust.

Truth in lending

Statutes which provide that precise and meaningful cost of credit information be provided to the credit customer.

S

Search warrant

A written order issued by a judge that directs a law enforcement officer to search a specific area for a particular piece of evidence.

Seal

To mark a document with a seal; to authenticate or make binding by affixing a seal. Court seal, corporate seal.

Secondary authority

Legal encyclopedias, treatises, legal texts, law review articles, and citators. Writings which set forth the opinion of the writer as to the law.

Secured debts

In bankruptcy, a debt is secured if the debtor gave the creditor a right to repossess the property or goods used as collateral.

Self-defense

The claim that an act otherwise criminal was legally justifiable because it was necessary to protect a person or property from the threat or action of another.

Self-incrimination, privilege against:

The constitutional right of people to refuse to give testimony against themselves that could subject them to criminal prosecution. The right is guaranteed in the Fifth Amendment to the United States Constitution . Asserting the right is often referred to as “taking the Fifth.”

Self-proving will

A will whose validity does not have to be testified to in court by the witnesses to it, since the witnesses executed an affidavit reflecting proper execution of the will prior to the maker’s death.

Sentence

The punishment ordered by a court for a defendant convicted of a crime. (See concurrent and consecutive sentences.)

Sentence Report

(See Presentence Report.)

Sequester

To separate. Sometimes juries are separated from outside influences during their deliberations. For example, this may occur during a highly publicized trial.

Sequestration of witnesses

Keeping all witnesses (except plaintiff and defendant) out of the courtroom except for their time on the stand, and cautioning them not to discuss their testimony with other witnesses. Also referred to as “separation of witnesses.”

Service of process

The delivering of writs, summonses, and subpoenas by delivering them to the party named in the document. Also referred to as “service.”

Settlement

An agreement between the parties disposing of a lawsuit.

Settlor

The person who sets up a trust. Also referred to as “grantor.”

Shepardizing

Method for finding subsequent development of a legal theory by tracing status of a case as legal authority.

Sheriff

The executive officer of local court in some areas. In other jurisdictions the sheriff is the chief law enforcement officer of a county.

Sherman Act

The basic antitrust statute prohibiting any unreasonable interference, conspiracy, restraint of trade, or monopolies with respect to interstate commerce.

Sidebar

A conference between the judge and lawyers, usually in the courtroom, out of earshot of the jury and spectators.

Slander

Spoken defamation which tends to injure a person’s reputation. (See libel.)

Small Business (SBA)

A federal agency which provides assistance of all kinds, Administration including loans, to small businesses.

Small Claims Court

A state court that handles civil claims for small amounts of money. People often represent themselves rather than hire an attorney.

Sovereign Immunity

The doctrine that the government, state or federal, is immune to lawsuit unless it give its consent.

Specific performance

A remedy requiring a person who has breached a contract to perform specifically what he or she has agreed to do. Specific performance is ordered when damages would be inadequate compensation.

Speedy Trial Act

Federal law establishing time limits for carrying out major events, i.e. indictment, arraignment, etc., in a criminal prosecution.

Spendthrift trust

A trust set up for the benefit of someone who the grantor believes would be incapable of managing his or her own financial affairs.

Standard of proof

Indicates the degree to which the point must be proven. In a civil case, the burden of proof rests with the plaintiff, who must establish his or her case by such standards of proof as a “preponderance of evidence” or “clear and convincing evidence.” (See burden of proof.)

Standing

The legal right to bring a lawsuit. Only a person with something at stake has standing to bring a lawsuit.

Status offenders

Youths charged with the status of being beyond the control of their legal guardian or are habitually disobedient, truant from school, or having committed other acts that would not be a crime if committed by an adult, i.e., smoking. Also referred to as minors or children in need of supervision.

Statute

Legislative enactment; it may be a single act of a legislature or a body of acts which are collected and arranged for a session of a legislature. (See statutory law.)

Statute of frauds

A statutory requirement that certain contracts must be in writing.

Statute of limitations

A statute which limits the right of a plaintiff to file an action unless it is done within a specified time period after the occurrence which gives rise to the right to sue.

Statutory

Relating to a statute; created or defined by a law.

Statutory construction

Process by which a court seeks to interpret the meaning and scope of legislation.

Statutory law

Laws promulgated by Congress and state legislatures. (See case law and common law.)

Statutory research

Research of legislation enacted by a state or the United States.

Stay

A court order halting a judicial proceeding.

Stipulation

An agreement between the parties involved in a suit regulating matters incidental to trial.

Strict liability

Concept applied by the courts in product liability cases that when a manufacturer presents his goods for public sale, he is representing that they are suitable for their intended use.

Strike

Highlighting in the record of a case, evidence that has been improperly offered and will not be relied upon.

Subject research

Research of matter by determining all law related to that matter by finding everything on the subject.

Subpoena

A command to appear at a certain time and place to give testimony upon a certain matter.

Subpoena Duces Tecum

A court order commanding a witness to bring certain documents or records to court.

Substantive criminal law

Law with the purpose of prevention of harm to society which prescribed punishment for specific offenses. The basic law of rights and duties as opposed to “remedial law” which provides methods of enforcement.

Substantive law

The statutory or written law that governs rights and obligations of those who are subject to it.

Summary judgment

A judgment given on the basis of pleadings, affidavits, and exhibits presented for the record without any need for a trial. It is used when there is no dispute as to the facts of the case and one party is entitled to a judgment as a matter of law.

Summons

Instrument used to commence a civil action or special proceeding; the means of acquiring jurisdiction over a party.

Support trust

A trust that instructs the trustee to spend only as much income and principal (the assets held in the trust) as needed for the beneficiary’s support.

Suppress

To forbid the use of evidence at a trial because it is improper or was improperly obtained. (See also exclusionary rule.)

Surety Bond

A bond purchased at the expense of the estate to insure the executor’s proper performance. Also referred to as “fidelity bond.”

Survivorship

(See joint tenancy.)

Suspension

A temporary loss of the right to practice law by an attorney. (See disbarment or censure.)

Sustain

A court ruling upholding an objection or a motion.

R

Real property

Land, buildings, and whatever is attached or affixed to the land. Generally synonymous with the words “real estate.”

Reasonable doubt

An accused person is entitled to acquittal if, in the minds of the jury, his or her guilt has not been proved beyond a “reasonable doubt;” that state of minds of jurors in which they cannot say they feel an abiding conviction as to the truth of the charge.

Reasonable person

A phrase used to denote a hypothetical person who exercises qualities of attention, knowledge; intelligence, and judgment that society requires of its members for the protection of their own interest and the interests of others. Thus, the test of negligence is based on either a failure to do something that a reasonable person, guided by considerations that ordinarily regulate conduct, would do, or on the doing of something that a reasonable and prudent (wise) person would not do.

Rebut Evidence

Disproving other evidence previously given or reestablishing the credibility of challenged evidence. (See rejoinder.)

Recognizance

An obligation entered into before a court whereby the recognizor acknowledges that he will do a specific act required by law.

Record

All the documents and evidence plus transcripts of oral proceedings in a case.

Recuse

The process by which a judge is disqualified from hearing a case, on his or her own motion or upon the objection of either party.

Re-direct examination

Opportunity to present rebuttal evidence after one’s evidence has been subjected to cross-examination.

Redress

To set right; to remedy; to compensate; to remove the causes of a grievance.

Referee

A person to whom the court refers a pending case to take testimony, hear the parties, and report back to the court. A referee is an officer with judicial powers who serves as an arm of the court.

Rehearing

Another hearing of a civil or criminal case by the same court in which the case was originally heard.

Registered mark

Trademark with the words “Registered in the U.S. Patent and Trademark Office” or the letter “R” enclosed within a circle.

Rejoinder

Opportunity for the side that opened the case to offer limited response to evidence presented during the rebuttal by the opposing side. (See rebut.)

Remand

To send a dispute back to the court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court’s ruling.

Remedy

Legal or judicial means by which a right or privilege is enforced or the violation of a right or privilege is prevented, redressed, or compensated.

Remittitur

The reduction by a judge of the damages awarded by a jury.

Removal

The transfer of a state case to federal court for trial; in civil cases, because the parties are from different states; in criminal and some civil cases, because there is a significant possibility that there could not be a fair trial in state court.

Replacement volumes

Volumes which replace books and their pocket parts when the pocket parts cause the books to become too bulky.

Replevin>

An action for the recovery of a possession that has been wrongfully taken.

Reply

The response by a party to charges raised in a pleading by the other party.

Reporters

Books which contain court decisions.

Request for admission Also, Request to Admit

Written statements of facts concerning a case which are submitted to an adverse party and which that party must admit or deny; a discovery device.

Request for production of documents

A direction or command served upon another party for production of specified documents for review with respect to a suit; a discovery devise.

Request to admit See,

Request for Admission.

Rescission

The unmaking or undoing of a contract; repeal.

Research

A careful hunting for facts or truth about a subject; inquiry; investigation.

Resolution

The formal adoption of a motion.

Respondent

The person against whom an appeal is taken. (See petitioner.)

Rest

A party is said to “rest” or “rest its case” when it has presented all the evidence it intends to offer.

Restatement

A publication which tells what the law is in a particular field, as compiled from statutes and decisions.

Restitution

Act of restoring anything to its rightful owner; the act of restoring someone to an economic position he enjoyed before he suffered a loss.

Retainer

Act of the client in employing the attorney or counsel, and also denotes the fee which the client pays when he or she retains the attorney to act for them.

Return

A report to a judge by police on the implementation of an arrest or search warrant. Also, a report to a judge in reply to a subpoena, civil or criminal.

Reverse

An action of a higher court in setting aside or revoking a lower court decision.

Reversible error

A procedural error during a trial or hearing sufficiently harmful to justify reversing the judgment of a lower court.

Revocable trust

A trust that the grantor may change or revoke.

Revoke

To cancel or nullify a legal document.

Right of way

The right of a party to pass over the land of another.

Robinson-Patman Act

An amendment to the Clayton Act which deals with price discrimination.

Robbery

Felonious taking of another’s property, from his or her person or immediate presence and against his or her will, by means of force or fear. (See larceny.)

Rules

Established standards, guides, or regulations set up by authority.

Rules of evidence

Standards governing whether evidence in a civil or criminal case is admissible.

Q

Quash

To vacate or void a summons, subpoena, etc.

Quasi-contract

An obligation created by the law in the absence of an agreement or contract; not based upon the intentions or expressions of the parties.

Quasi-criminal action

A classification of actions such as violation of a city ordinance that is not also violation of a criminal statute, which are wrongs against the public punishable through fines but are not usually indictable offenses.

Quiet title action

A court proceeding to remove a cloud on the title to real property.

Quitclaim deed

A deed without warranty of title which passes whatever title the grantor has to another.

P

Paralegal

Also, legal assistant. A person with legal skills who works under the supervision of a lawyer.

Pardon

An act of grace from governing power which mitigates punishment and restores rights and privileges forfeited on account of the offense.

Parole

Supervised release of a prisoner from imprisonment on certain prescribed conditions which entitle him to termination of his sentence.

Party

A person, business, or government agency actively involved in the prosecution of defense of a legal proceeding.

Peremptory challenge

Request by a party that a judge not allow a certain prospective juror as a member of the jury. No reason or cause need be stated. (See challenge for cause.)

Periodical

A publication which appears regularly but less often than daily.

Perjury

The criminal offense of making a false statement under oath.

Permanent injunction

A court order requiring that some action be taken, or that some party refrain from taking action. It differs from forms of temporary relief, such as a temporary restraining order or preliminary injunction.

Per se doctrine

Under this doctrine an activity such as price fixing can be declared as a violation of the antitrust laws without necessity of a court inquiring into the reasonableness of the activity.

Personal property

Anything a person owns other than real estate.

Personal recognizance

In criminal proceedings, the pretrial release of a defendant without bail upon his or her promise to return to court. (See also recognizance.)

Personal representative

The person who administers an estate. If named in a will, that person’s title is an executor. If there is no valid will, that person’s title is an administrator.

Person in need of supervision

Juvenile found to have committed a “status offense” rather than a crime that would provide a basis for a finding of delinquency. (See status offense.)

Petitioner

The person filing an action in a court of original jurisdiction. Also, the person who appeals the judgment of a lower court. (See respondent.)

Plaintiff

A person who brings an action; the party who complains or sues in a civil action. (See complainant.)

Plea

The first pleading by a criminal defendant, the defendant’s declaration in open court that he or she is guilty or not guilty. The defendant’s answer to the charges made in the indictment or information.

Plea bargaining

Process where the accused and the prosecutor in a criminal case work out a satisfactory disposition of the case, usually by the accused agreeing to plead guilty to a lesser offense. Such bargains are not binding on the court. Also referred to as plea negotiating.

Pleadings

The written statements of fact and law filed by the parties to a lawsuit.

Polling the jury

The act, after a jury verdict has been announced, of asking jurors individually whether they agree with the verdict.

Post-trial

Refers to items happening after the trial, i.e., post-trial motions or post-trial discovery.

Pour-Over will

A will that leaves some or all estate assets to a trust established before the will-maker’s death.

Power

Authority to do. One has the power to do something if he is of legal age. Also, used as “powers,” the term refers to authority granted by one person to another, i.e., powers given an executor in a will or an agent in a power of attorney.

Power of attorney

An formal instrument authorizing another to act as one’s agent or attorney.

Precedent

Laws established by previous cases which must be followed in cases involving identical circumstances. (See stare decisis in Foreign Words Glossary.)

Pre-injunction

Court order requiring action or forbidding action until a decision can be made whether to issue a permanent injunction. It differs from a temporary restraining order.

Preliminary hearing

Also, preliminary examination. A hearing by a judge to determine whether a person charged with a crime should be held for trial. (See arraignment.)

Preponderance of the proof

Greater weight of the evidence, the common standard of evidence in civil cases.

Pre-sentence report

A report to the sentencing judge containing background information about the crime and the defendant to assist the judge in making his or her sentencing decision.

Presentment

Declaration or document issued by a grand jury that either makes a neutral report or notes misdeeds by officials charged with specified public duties. It ordinarily does not include a formal charge of crime. A presentment differs from an indictment.

Pretermitted child

A child born after a will is executed, who is not provided for by the will. Most states have laws that provide for a share of estate property to go to such children.

Pretrial conference

Conference among the opposing attorneys and the judge called at the discretion of the court to narrow the issues to be tried and to make a final effort to settle the case without a trial.

Prima facie case

A case that is sufficient and has the minimum amount of evidence necessary to allow it to continue in the judicial process. (See prima facie in the Foreign Words Glossary.)

Primary authority

Constitutions, codes, statutes, ordinances, and case law sources.

Private law

That law, such as a contract bet The last negligent act which contributes to an injury. A person generally is liable only if an injury was proximately caused by his or her action or by his or her failure to act when he or she had a duty to act.

Proxy

The instrument authorizing one person to represent, act, and vote for another at a shareholders’ meeting of a corporation.

Public law

That law such as traffic ordinances or zoning ordinances which applies to the public.

Public defender

Government lawyer who provides free legal defense services to a poor person accused of a crime.

Public Service Commission

Also, Public Utilities Commission. A state agency which regulates utilities.

Punitive damages

Money award given to punish the defendant or wrongdoer.

Purchase agreement or purchase offer

Also, sales agreement and earnest money contract. Agreement between buyer and seller of property which sets forth in general the price and terms of a proposed sale.

Putative

Alleged; supposed; reputed.

O

Oath

A solemn pledge made under a sense of responsibility in attestation of the truth of a statement or in verification of a statement made.

Objection

The process by which one party takes exception to some statement or procedure. An objection is either sustained (allowed) or overruled by the judge.

Official reports

The publication of cumulated court decisions of state or federal courts in advance sheets and bound volumes as provided by statutory authority.

On a person’s own recognizance

Release of a person from custody without the payment of any bail or posting of bond, upon the promise to return to court.

Opening statement

The initial statement made by attorneys for each side, outlining the facts each intends to establish during the trial.

Opinion

A judge’s written explanation of a decision of the court or of a majority of judges. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the decision of the court but offers further comment. (A per curiam opinion is an unsigned opinion “of the court.”)

Oral argument

Presentation of a case before a court by spoken argument; usually with respect to a presentation of a case to an appellate court where a time limit might be set for oral argument.

Order

A mandate, command, or direction authoritatively given. Direction of a court or judge made in writing.

Ordinance

A rule established by authority; may be a municipal statute of a city council, regulating such matters as zoning, building, safety, matters of municipality, etc.

Overrule

A judge’s decision not to allow an objection. Also, a decision by a higher court finding that a lower court decision was in error.

N

Naturalization

Process by which a person acquires nationality after birth and becomes entitled to privileges of citizenship.

Negligence

Failure to use care which a reasonable and prudent person would use under similar circumstances.

Negotiation

The process of submission and consideration of offers until an acceptable offer is made and accepted.

Next friend

One acting without formal appointment as guardian for the benefit of an infant, a person of unsound mind not judicially declared incompetent, or other person under some disability.

No-contest Clause

Language in a will that provides that a person who makes a legal challenge to the will’s validity will be disinherited.

No-fault Proceedings

A civil case in which parties may resolve their dispute without a formal finding of error or fault.

Noise Control Act

An act which gives government agencies the right to promulgate standards and regulations relating to abatement of noise emissions, i.e., requirement that autos and like vehicles must have mufflers.

Nonfeasance

Nonperformance of an act which should be performed; omission to perform a required duty or total neglect of duty.

Nonjury trial

Trial before the court but without a jury.

Notary Public

A public officer whose function it is to administer oaths, to attest and certify documents, and to take acknowledgments.

Notice

Formal notification to the party that has been sued in a civil case of the fact that the lawsuit has been filed. Also, any form of notification of a legal proceeding.

Notice to creditors

A notice given by the bankruptcy court to all creditors of a meeting of creditors.

Nuncupative will,

An oral (unwritten) will.