This Glossary has been prepared and provided by Stephen Danz & Associates for informational and educational purposes for clients and prospective clients. It is not intended to provide any type of legal advice, or advice on any particular case or fact pattern. Lay persons relying on the information contained herein, do so at their peril and assume all risks for any misleading information, inability to understand or apply any particular information to a specific set of facts. Stephen Danz & Associates accepts no responsibility for the information contained herein or how it applies to your particular case. If you have any questions regarding any of the matters or items of information contained within this Glossary, please contact our offices at (877) 789-9707 or use the Contact Form on our website to submit questions, make comments, or schedule a free consultation.
The evidence that a trial judge may allow in at a trial for the judge or jury to consider in reaching a decision. Evidence is admitted or deemed inadmissible based on the applicable rules of evidence in the place where the case is being heard. The basic rules of evidence are the same in almost all jurisdictions. There are also both federal and military rules.
1) One side’s statement that certain facts are true, or failure to respond to certain allegations, in response to a request from the other side during pretrial discovery. 2) An out-of-court statement by an adverse party that is against the interest of the party who said it, offered into evidence as an exception to the hearsay rule.
Admission Against Interest
An admission against interest is an exception to the hearsay rule which allows someone to testify to a statement by another person that reveals something incriminating, embarrassing, or otherwise damaging to the maker of the statement.
Any person, whether an adult or a minor, who is legally adopted as the child of another in a court proceeding.
The opposite side in a lawsuit. Sometimes when there are numerous parties in one lawsuit, they may be adverse to each other on some issues and in agreement on other matters.
Someone who signs an affidavit and swears to its truth before a notary public or another person authorized to take oaths, such as a county clerk.
Any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a county clerk) that the statements in the document are true. In many states, a declaration under penalty of perjury, which does not require taking an oath, is the equivalent of an affidavit.
Policies of governments and other institutions, private and public, intended to promote employment, contracting, educational, and other opportunities for members of historically disadvantaged groups. Because they may favor some groups over others, affirmative action policies must be narrowly tailored to meet the institution’s legitimate goals, such as remedying the effects of past discrimination or promoting full diversity in a school setting.
When a defendant in a civil lawsuit files a response, usually called an “answer,” the answer will state the defendant’s denials of the claims made. In addition, the defendant may state affirmative defenses that excuse or justify the behavior on which the lawsuit is based. For example, an affirmative defense of “unclean hands” argues that the person bringing the lawsuit has acted badly in a way that should preclude any finding against the defendant.
Treating an employee or applicant for employment less favorably because of his or her age, if the employee or applicant is at least 40 years old. Age Discrimination In Employment Act (ADEA) A federal law that prohibits discrimination based on age against employees or applicants who are at least 40 years old.
Alternative Dispute Resolution (ADR)
A catchall term that describes a variety of methods that parties can use to resolve disputes outside of court, including negotiation, conciliation, mediation, collaborative practice, and the many types of arbitration. The common denominator of all ADR methods is that they are faster, less formalistic, less expensive, and often less adversarial than a court trial.
Americans With Disabilities Act (ADA)
A federal law that prohibits discrimination against people with physical or mental disabilities in employment, public services, transportation, and places of public accommodation, such as restaurants, hotels, and theaters. The law also requires employers to make reasonable accommodations to allow employees with disabilities to do their jobs.
When a lawyer comes to court and responds when a client’s case has been called, that lawyer has appeared on behalf of the client. When an attorney makes a “general appearance,” the lawyer will represent the client in all aspects of the case. An attorney may instead make a “special appearance” when the lawyer is appearing only for the purpose of what is before the court that day, as long as the judge is told of the limited nature of the appearance.
A party to a lawsuit who appeals to a higher court in an effort to have a losing decision modified or reversed.
A higher court that reviews the decision of a lower court when a losing party files an appeal.
A party to a lawsuit who wins in the trial court — or sometimes on a first appeal — only to have the other party (called the appellant) file for an appeal. An appellee files a written brief responding to the appeal, and often makes an oral argument before the appellate court, asking that the lower court’s judgment be upheld. In some courts, an appellee is called a respondent.
An out-of-court procedure for resolving disputes in which one or more people — the arbitrator(s) — hear evidence and make a decision. Arbitration is like a trial in some ways, but typically proceeds much more quickly and with less formality.
An employment arrangement in which the employee may quit at any time, and the employer may fire the employee for any reason that is not illegal. For example, an employer may fire an at-will employee for poor performance, to cut costs, or because the employer simply doesn’t like the employee, but may not fire an at-will employee for discriminatory reasons, to retaliate against the employee for reporting harassment, or because the employee exercised a legal right.
1) An agent or someone authorized to act for another. 2) A person authorized to practice law by a state following a bar examination and the meeting of other qualifying requirements.
Attorney Work Product
Written materials, charts, notes of conversations and investigations, and other materials related to a the preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in court or otherwise revealed to the other side.
A rule that keeps communications between an attorney and client confidential and protects everything said between attorney and client from being discovered by the opposing party during pretrial investigation, or used as evidence in a trial. The same type of privilege exists between physician and patient, clergy and parishioner, and spouses.
1) The written decision of an arbitrator or commissioner (or any nonjudicial arbiter) setting out the arbitrator’s award. 2) The amount awarded in a money judgment to a party to a lawsuit, arbitration, or administrative claim. Example: “Plaintiff is awarded $27,000.”
The intentional refusal to fulfill a legal or contractual obligation, misleading another, or entering into an agreement without intending to or having the means to complete it.Most contracts come with an implied promise to act in good faith.
Badgering The Witness
When, instead of being questioned, a witness is subjected to derisive comments (“You expect the jury to believe that?”), legal arguments posed as questions (“With all the evidence against you, how can you deny that you stole the watch?), or questions that assume facts not in evidence (“There were ten people blocking your view, yet you can identify the security guard?”).
A federal legal process for debtors seeking to eliminate or repay their debts. There are two types of bankruptcies for consumers: Chapter 7, which allows debtors to wipe out many debts in exchange for giving up nonexempt property to be sold to repay creditors, and Chapter 13, which allows debtors to keep all of their property and repay all or a portion of their debts over three to five years. Businesses can file for Chapter 7 or Chapter 11 bankruptcy. Chapter 11 lets companies reorganize their debt load to stay in business.
A specialized federal court that hears only bankruptcy cases. Bankruptcy courts are established in districts in every state, and petitioners file for bankruptcy in the district where the petitioner lives or does business.
An order issued by the bankruptcy court at the end of a bankruptcy case, wiping out all of the debtor’s dischargeable debts.
Everything a debtor owns when filing for bankruptcy, except certain pensions and educational trusts.
The way a bankruptcy case wends its way through the court system, from the time the bankruptcy petition is filed until the debtor receives a bankruptcy discharge.
A person appointed by the court to oversee a bankruptcy case. In a Chapter 7 case, the trustee’s role is to gather the debtor’s nonexempt property, sell it, and distribute the proceeds to creditors. In a Chapter 13 case, the trustee’s role is to receive the debtor’s monthly payments and distribute them to creditors. Businesses can file for Chapter 11 bankruptcy.
An organization of lawyers. Membership in a state bar association (also called an “integrated” or “unified” bar association) is often mandatory before a lawyer can practice in that state. There are also many voluntary bar associations organized by city, county, or other community.
Best Evidence Rule
A rule of evidence that demands that the original of any document, photograph, or recording be used as evidence at trial, rather than a copy. A copy will be allowed into evidence only if the original is unavailable.
Board Of Directors
The policy managers of a corporation or organization elected by the shareholders or members.
Slang for standard provisions in a contract, form, or legal pleading that are routine and often pre-printed. Boilerplate provisions are meant to be used in many contracts, but some may not apply to every situation.
A failure or violation of a legal obligation — for example, a failure to perform a contract (breaching its terms), failure to do one’s duty (breach of duty, or breach of trust), causing a disturbance, threatening, or other violent acts which break public tranquility (breach of peace), or illegally entering property (breach of close).
Breach Of Contract
A legal claim that one party failed to perform as required under a valid agreement (written or oral) with the other party. For example you might say, “The roofer breached our contract by using substandard supplies when he repaired my roof.”
Burden Of Proof
A party’s job of convincing the decision-maker in a trial that the party’s version of the facts is true. In a civil trial, it means that the plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff’s version is true — that is, over 50% of the believable evidence is in the plaintiff’s favor. (That said, the burden of proof may shift to the defendant if the defendant raises a factual issue in defense to the plaintiff’s claims.) In a criminal case, because a person’s liberty is at stake, the government has a harder job, and must convince the judge or jury beyond a reasonable doubt that the defendant is guilty.
Any activity carried on with the intent to make a profit or any enterprise engaged in such activity. A business does not have to have a formal organization; it can be a corporation, partnership, sole proprietorship, or any other type of entity, ranging from a street peddler to General Motors.
Business Records Exception
An exception to the evidence rule prohibiting hearsay. The business records exception allows a business document to be admitted into evidence if a proper foundation is laid to show the document is reliable.
Common business slang to distinguish a regular corporation, whose profits are taxed separate from its owners under subchapter C of the Internal Revenue Code, from an S corporation, whose profits are passed through to the shareholders and taxed on their personal income tax returns under subchapter S of the Internal Revenue Code.
A benefit program in which employees choose from a menu of options, such as health coverage, life insurance, disability insurance, and so on.
Carrying On Business
A routine and continuous involvement in an activity undertaken for the purpose of making profit. This can be accomplished with or without a physical or visible business entity.
1) A cause of action, lawsuit, or the right to sue (as in, “Do I have a case?”). 2) A written decision of a court that is reported in official “reporters” and can be cited as precedent for other cases.
The law based on judicial opinions (including decisions that interpret statutes), as opposed to law based on statutes, regulations, or other sources. Also refers to the collection of reported judicial decisions within a particular jurisdiction dealing with a specific issue or topic.
Case Of First Impression
A court case that presents a new question or issue for legal interpretation (or at least new within that court’s jurisdiction). For example, the question may concern recently passed or rarely used legislation. In making its decision, the court may consider — but is not bound by — decisions from other state or federal courts or commentaries by legal scholars, as well as the arguments and briefs submitted by lawyers in the case.
Sometimes used to refer to work that does not further the business of the employer, typically on a one-time or very sporadic basis. For example, someone who was hired for one day to clean the windows of a car showroom or a group that was hired for a few hours to unload new office furniture might be referred to as casual labor. Casual labor is not a legally recognized category, however: Workers performing casual labor are either independent contractors or employees, and the hiring company’s legal and tax obligations to workers performing casual labor are the same as for other workers.
Cause Of Action
A specific legal claim — such as for negligence, breach of contract, or medical malpractice — for which a plaintiff seeks compensation. Each cause of action is divided into discrete elements, all of which must be proved to present a winning case. A complaint often states multiple causes of action, and each cause of action is made up of certain required elements — for example, a cause of action for breach of contract must show offer, acceptance, transfer of something of value, and breach of the agreement.
Certificate Of Citizenship
An identity document that USCIS will provide to people who have derived or acquired U.S. citizenship and would like to prove their U.S. citizenship status.
A check issued and guaranteed by a bank, certifying that the maker of the check has enough money in his or her account to cover the amount to be paid. The bank sets aside the funds so that the check will remain good even if other checks are written on the particular account.
Chain Of Title
The line of owners of real estate, stretching from the current owner back in time to the original grant from some government. The chain of title is shown by deeds, judgments in lawsuits over title, affidavits, and other documents showing ownership changes and recorded in the county land records office. An error in this chain of title is what title searches are supposed to find and what title insurance protects purchasers against.
When selecting a jury, the right of each party to request that a potential juror be excused. There may be a “challenge for cause” on the basis the juror had admitted prejudice or shows some obvious conflict of interest (for example, the juror used to work for the defendant) which the judge must resolve. More common is the “”peremptory challenge,”” which is a request that a juror be excused without stating a reason. Each side is normally allowed a limited number of peremptory challenges.
Challenge For Cause
A party’s request that the judge dismiss a potential juror from serving on a jury by providing a valid legal reason why he shouldn’t serve. Potential bias is a common reason potential jurors are challenged for cause — for example, the potential juror is a relative of a party or one of the lawyers, or admits to a prejudice against one party’s race or religion. Judges can also dismiss a potential juror for cause.
A fancy word for a judge’s office. It’s usually close to the courtroom so that the judge can enter the court from behind the bench and not encounter people on the way. Trial court judges often schedule pretrial settlement conferences and other informal or sensitive meetings in chambers.
A person who testifies in court on behalf of another as to that person’s positive character traits and the person’s reputation in the community. Such testimony is often offered when the person’s honesty or morality is an issue, as in some criminal cases and in civil cases involving accusations of fraud.
1) A person’s offspring of any age, which can include biological offspring, unborn children, adopted children, stepchildren, foster children, and children born outside of marriage. 2) A person under an age specified by law, often 14 or 16. For example, state law may require a person to be over the age of 14 to make a valid will, or may define the crime of statutory rape as sex with a person under the age of 16. In this sense, a child can be distinguished from a minor, who is a person under the age of legal majority (18 in most states).
Child Status Protection Act (CSPA)
An amendment to the Immigration and Nationality Act passed in 2002 (Public Law 107-208). The CSPA helps children applying for green cards or visas, either in family-based immigration categories or as derivatives on a parent’s asylum application, to maintain their eligibility even after they reach age 21. That’s the age at which, in immigration law terms, people are normally too old to be considered “children.”
1) The name used for the principal trial court in many states. 2) In the federal system, the term may refer to courts within the 13 circuits. Eleven of these circuits cover different geographic areas of the country — for example, the United States Court of Appeal for the Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The remaining circuits are the District of Columbia, and the Federal Circuit, (which hears patent, customs, and other specialized cases based on subject matter). The term derives from an age before mechanized transit, when judges and lawyers rode the circuit of their territory to hold court in various places.
Evidence that proves a fact by means of an inference. For example, from the evidence that a person was seen running away from the scene of a crime, a judge or jury may infer that the person committed the crime. Usually, many pieces of circumstantial evidence are needed before a judge or jury will find that they add up to proof beyond a reasonable doubt.
A noncriminal lawsuit, usually involving private property rights. For example, lawsuits involving breach of contract, probate, divorce, negligence, and copyright violations are just a few of the many hundreds of varieties of civil lawsuits.
(1) A generic term for all non-criminal law, usually relating to settling disputes between private citizens. (2) A body of laws and legal concepts derived from Roman law as opposed to English common law, which is the framework of most state legal systems. In the United States only Louisiana, relying on the French Napoleonic Code, has a legal structure based on civil law.
A legal obligation that arises to a private party, usually for payment of damages or other court-enforcement of a lawsuit.
(Civil Fines) Fines or other financial payments imposed by a state or federal agency for violation of laws or regulations. Examples include fines for late payment of taxes, or penalties for failing to obtain a building permit.
The rules set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) laws that establish the format under which civil lawsuits are filed, pursued, and tried. Civil procedure refers only to form and procedure, and not to the substantive law that gives people the right to sue or defend a lawsuit.
Civil Rights Act Of 1964
A federal law that prohibits discrimination on the basis of race, color, national origin, sex (including pregnancy), and religion in employment, education, and access to public facilities and public accommodations, such as restaurants and hotels. The employment provisions of the law are often referred to as “Title VII,” based on their location in the U.S. Code.
A relationship available in some states that provides all of the rights and responsibilities of marriage for same-sex couples who register as civil union partners. Class Action A lawsuit in which a large number of people with similar legal claims join together in a group (the class) to sue someone, usually a company or organization. Common class actions involve cases in which a product has injured many people, or a group of people has suffered discrimination at the hands of an organization.
Clear And Convincing Evidence
The burden of proof placed on a party in certain types of civil cases, such as cases involving fraud. Clear and convincing is a higher standard than “preponderance of the evidence,” the standard typical in most civil cases, but not as high as “beyond a reasonable doubt,” the burden placed on the prosecution in criminal cases.
A speech made at trial after all the evidence has been presented by each party. The closing argument reviews and summarizes the evidence, and forcefully explains why the verdict should be granted in favor of the arguing party. In trials before a judge (without a jury), it is common for both parties to waive closing argument on the theory that the judge has almost surely already arrived at a decision.
Money damages recovered as compensation for economic loss, such as lost wages.
Papers filed in court by an injured party to begin a lawsuit by setting out facts and legal claims (usually called causes of action). The person filing the complaint is called the plaintiff and the other party is called the defendant. In some states and in some types of legal actions, such as divorce, complaints are called petitions and the person filing is called the petitioner. The plaintiff’s complaint must be served on the defendant, who then has the opportunity to respond by filing an answer. A complaint filing must be accompanied by a filing fee payable to the court clerk, unless the party asks a judge to waive the fee based on inability to pay.
A single question that actually asks more than one thing. In a trial or deposition, the opposing party can object to such a question. If the objection is sustained, the question must be withdrawn and asked in a series of separate questions.
Conflict Of Interest
1) A real or apparent conflict between one’s professional or official duties and one’s private interests. 2) A situation where one duty conflicts with another — for example, if an attorney were to represent both parties in a divorce proceeding.
When an employee quits a job because working conditions are so intolerable that a reasonable person in the same situation would quit. For purposes of a discrimination or harassment lawsuit, a constructive discharge is like any other tangible employment action.
A method of paying a lawyer for legal representation by which, instead of an hourly or per job fee, the lawyer receives a percentage of the money her client obtains after settling or winning the case. Often contingency fee agreements — which are most commonly used in personal injury cases — award the successful lawyer between 20% and 50% of the amount recovered. Lawyers representing defendants charged with crimes may not charge contingency fees. In most states, contingency fee agreements must be in writing.
In a civil case, each separate statement in the complaint that, standing alone, would support a lawsuit. For example, a complaint might begin with a “first count” for negligence, with detailed factual allegations; a second count for breach of contract, a third count for debt, and so forth. Also known as a “cause of action.” In a criminal case, each count is a statement of a different alleged crime.
A defendant’s court papers that seek to reverse the thrust of the lawsuit by claiming that, despite the plaintiff having brought the lawsuit in the first place, the plaintiff is actually wholly or partly at fault concerning the same set of circumstances. The counterclaim goes on to allege that the plaintiff thus owes the defendant money damages or other relief. A counterclaim is commonly but not always based on the same events that form the basis of the plaintiff’s complaint. For example, a defendant in an auto accident lawsuit might file a counterclaim alleging that it was really the plaintiff who caused the accident — or could claim that, as long as they’re in court, the plaintiff should pay for having chopped down the defendant’s tree the previous week.
The rejection of an offer to enter into a contract that simultaneously makes a different offer, changing the terms of the original offer in some way. For example, if a buyer offers $5000 for a used car, and the seller replies that he wants $5500, the seller has rejected the buyer’s offer of $5000 and has made a counteroffer to sell at $5500. The legal significance of a counteroffer is that it completely voids the original offer.
Course Of Employment
The hours and circumstances of an employee’s job. An employer is generally responsible for actions an employee takes within the course of employment. An employee who is injured in the course of employment is generally entitled to workers’ compensation.
Any official tribunal presided over by a judge or judges in which legal issues and claims are heard and determined. In the United States, there are essentially two systems: federal courts and state courts. The basic federal court system has jurisdiction over cases involving federal statutes, constitutional questions, actions between citizens of different states, and certain other types of cases. There are also special federal courts such as bankruptcy and tax courts. Each state has local trial courts, which include courts for misdemeanors, smaller demand civil actions (called municipal, city, justice, or some other designation), and then superior or district courts to hear felonies, estates, divorces, and major lawsuits. Some states have specialty courts such as family, surrogate, and domestic relations. Small claims courts are an adjunct of the lowest courts handling lesser disputes.
A list of the cases and hearings that will be held by a court on a particular day, week, or month. Because the length of time it will take to conduct a particular hearing or trial is at best a guess and many courts have a number of judges, accurately scheduling cases is difficult, with the result that court calendars are often revised and cases are often heard later than initially planned. A court calendar is sometimes called a docket, trial schedule, or trial list.
The fees charged for the use of a court, including the initial filing fee, fees for serving the summons, complaint, and other court papers, fees to pay a court reporter to transcribe depositions (pretrial interviews of witnesses) and in-court testimony, and, if a jury is involved, to pay the daily stipend of jurors. Often costs to photocopy court papers and exhibits are also included. Court costs must be paid by both the plaintiff and the defendant as the case progresses. In many types of cases, however, the losing party is held responsible for both parties’ costs.
Court Of Appeal(S)
1) Any court (state or federal) that hears appeals from trial courts or lower appeals courts. 2) The intermediate courts in most jurisdictions — that is the courts positioned between trial courts and the courts of last appeal (usually the supreme court).
Covenant not to Compete
An agreement where one party agrees not to compete with the other party for a specific period of time and within a particular area. Salespeople, for example, often sign non-competition agreements that prevent them from using the contacts gained by one employer to benefit another employer, from selling within a particular area, or even working in the same type of business. Non-competes are also used in the context of a contract for the sale of a business: The selling owner may agree not to compete with the acquiring business for a certain period of time. In some states, such as California, courts view non-competition agreements with disfavor and will not enforce them against employees or contractors unless the restrictions are very narrow. In other states, courts routinely uphold them.
A witness whose testimony is believable based on his or her experience, knowledge, training, and appearance of honesty and forthrightness.
Sometimes called a cross-claim, legal paperwork that a defendant files to initiate his or her own lawsuit against the original plaintiff, a co-defendant, or someone who is not yet a party to the lawsuit. A cross-complaint must concern the same events that gave rise to the original lawsuit. For example, a defendant accused of causing an injury when she failed to stop at a red light might cross-complain against the mechanic who recently repaired her car, claiming that his negligence resulted in the brakes failing and that, therefore, the accident was his fault. In some states where the defendant wishes to make a legal claim against the original plaintiff and no third party is claimed to be involved, a counterclaim, not a cross-complaint, should be used.
At trial, the opportunity to question any witness who testifies on behalf of any other party to the lawsuit (in civil cases) or for the prosecution or other co-defendants (in criminal cases). The opportunity to cross-examine usually occurs as soon as a witness completes his or her initial testimony, called direct testimony. Cross-examiners attempt to get the witness to say something helpful to their side, or to cast doubt on the witness’s testimony by eliciting something that reduces the witness’s credibility — for example, that the witness’s eyesight is so poor that she may not have seen an event clearly. When a witness’s direct testimony ends up being hostile to the party that called the witness, sometimes that party’s lawyer is allowed to cross-examine his own witness.
Custody (Of A Child)
The legal authority to make decisions affecting a child’s interests (legal custody) and the responsibility of taking care of the child (physical custody). When parents separate or divorce, they may share legal and physical custody, or one parent may have physical custody with the other parent having visitation.
1) In a lawsuit, the harm caused to a party who is injured. 2) In a lawsuit, the money awarded to one party based on injury or loss caused by the other. For either definition, there are many different types or categories of damages.
De Facto Latin for “in fact.”
A recognition of authority even when legal or formal requirements have not been met.
The outcome of a proceeding before a judge, arbitrator, government agency, or other legal tribunal. Decision is a general term often used interchangeably with the terms judgment or opinion. But to be precise, a judgment is the written form of the courts decision in the clerks minutes or notes, and an opinion is a document setting out the reasons for reaching the decision.
A person who signs a statement or declaration alleging that the information contained in the statement is true.
Declaration Against Interest
When a nonparty witness in a lawsuit is not available to testify, a statement made by the witness that is against his or her own interest may be admitted in court as evidence as an exception to the hearsray rule.
A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Courts are usually reluctant to hear declaratory judgment cases, preferring to wait until there has been a measurable loss. But especially in cases involving important constitutional rights, courts will step in to clarify the legal landscape. For example, many cities regulate the right to assemble by requiring permits to hold a parade. A disappointed applicant who thinks the decision-making process is unconstitutional might hold his parade anyway and challenge the ordinance after hes cited; or he might ask a court beforehand to rule on the constitutionality of the law. By going to court, the applicant may avoid a messy confrontation with the city — and perhaps a citation, as well.
In tax law, an amount that an individual or business can subtract from its gross income (total income) to determine its taxable income (the total income on which it owes tax). Examples of federal income tax deductions include mortgage interest, charitable contributions, and certain state taxes.
A false statement that harms a person’s reputation. If the statement is published, it is libel; if spoken, it is slander. Most states have retraction statutes under which a defamed person who fails to seek a retraction from the publisher, or who seeks and obtains a retraction, is limited to compensation equal to the actual (or special) damages. Public figures, including officeholders and candidates, can only prevail in defamation lawsuits if they can show that the defamation was made with knowledge that it was false or with reckless disregard for the truth.
1) Failure to file an answer or other response to a summons or complaint in a lawsuit. After a certain period has passed, the plaintiff may ask the court for a default judgment, which means the defendant who failed to respond loses the case. A defendant who has a legally sufficient reason for failing to respond (for example, the defendant never received the summons) may file a motion asking the court to overturn the default judgment and allow the defendant to defend the lawsuit. 2) Failure to pay a debt or meet other obligations of a loan agreement. For example, a debtor may default on a car loan by failing to make required monthly payments or by failing to carry adequate insurance as required by the loan agreement.
At trial, a decision awarded to the plaintiff when a defendant fails to contest the case or comply with required procedural steps. For instance, the defendant may fail to respond to the plaintiff’s complaint within the required time, or simply neglect to show up in court. To appeal a default judgment, a defendant must first file a motion in the court that issued it, asking to have the default vacated (set aside).
The person against whom a lawsuit is filed. In some types of cases (such as divorce) a defendant may be called a respondent.
Defense Of Marriage Act (DOMA)
So-called Defense of Marriage laws (DOMAs) define marriage as a relationship between one man and one woman, for the purpose of excluding same-sex couples from the institution of marriage. There are two types of DOMAs: federal and state. The federal Defense of Marriage Act (DOMA) was enacted so that the federal government could restrict marriage to a union between a man and a woman. In so doing, the federal government was able to deny same-sex married couples any of the federal benefits opposite-sex married couples received. In June 2013, this all changed – in U.S. v. Windsor, the U.S. Supreme Court struck down DOMA’s federal definition of marriage as unconstitutional. As a result, same-sex married couples will be recognized by the federal government and qualify for federal benefits, including immigration status, Social Security benefits and federal tax benefits. This decision does not apply to same-sex couples in domestic partnerships or civil unions. The Supreme Court did not clarify, however, whether same-sex married couples living in non-recognition states (states that don’t allow gay marriage) would qualify for all federal benefits across the board. As of this writing, a few federal agencies, such as the Social Security Administration, continue to determine eligibility for benefits based on where a couple resides, not where they were married. So, for example, in order to qualify for Social Security benefits on a same-sex spouse’s work record, the married couple must reside in a recognition state. Immigration status, federal employee benefits and military benefits, on the other hand, do not depend on where the couple lives. All legally married same-sex couples that live anywhere in the U.S. will qualify for these federal benefits. And, now the same rule applies to federal tax benefits. In August 2013, the U.S. Department of the Treasury ruled that the IRS will treat all legally married same-sex couples as “married” for federal tax purposes – regardless of where they live. Same-sex married couples are free to move about the country without worrying about changing their federal filing status. Individual states’ DOMA laws provide that those states do not allow same-sex marriage and, often, do not recognize same-sex unions from other states.
An arrangement in which a portion of an employee’s income is paid at a later date than the date when it is earned. In most cases, the primary benefit is the tax deferral on the deferred income.
Correspondence from one party to a dispute to the other, stating the drafting party’s version of the facts of the dispute and making a claim for compensation or other action to resolve it. Often drafted by an attorney, a demand letter is generally an opening gambit in an effort to settle a legal claim.
Objects, pictures, models, and other devices used in a trial or hearing to demonstrate or explain facts that the party is trying to prove.
Department Of Labor (DOL)
A federal government agency that interprets and enforces a number of labor and employment laws, including the Occupational Safety and Health Act, the Family and Medical Leave Act, the federal minimum wage and overtime laws, and laws that govern child labor.
1) A person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce income taxes. 2) Requiring an event to occur, as the fulfillment of a contract for delivery of goods is dependent on the goods being available.
The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial. A deposition is part of pretrial discovery. The testimony is recorded by the court reporter, who will prepare a transcript that can be used for pretrial preparation or in trial to contradict or refresh the memory of the witness, or be read into the record if the witness is not available.
Real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.
At trial, the initial questioning of a party or witness by the side that called him or her to testify. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your opponent’s version. Good direct examination seeks to prove all facts necessary to satisfy the plaintiff’s legal claims or causes of action — for example, that the defendant breached a valid contract and, as a result, the plaintiff suffered a loss.
A member of the governing board of a corporation, typically elected at an annual meeting of the shareholders. As a group, the directors are responsible for making important business decisions — especially those that legally bind the corporation — leaving day-to-day management to the corporation’s officers and employees. For example, a decision to borrow money, lease an office, or buy real property would normally be authorized by the board of directors.
To treat similarly situated people differently on the basis of a protected characteristic, such as race, gender, or disability.
1) To deprive a person of the rights of citizenship, especially the right to vote. 2) Generally, to deprive of a right, privilege, or power.
(1) In a court setting, a judge may dismiss or throw out all or a portion of a plaintiff’s lawsuit without further evidence or testimony upon being persuaded that the plaintiff has not and cannot prove the case. This judgment may be made before or at anytime during the trial. The judge may independently decide to dismiss or may do so in response to a motion by the defendant. Also, the plaintiff may voluntarily dismiss an action before or during trial if the case is settled, if it is not provable, or if trial strategy dictates getting rid of a weak claim. A defendant may also be dismissed from a lawsuit, meaning the suit is dropped against that party. (2) To discharge or let an employee go.
Dismissal With Prejudice
When a lawsuit is dismissed with prejudice, the court is saying that it has made a final determination on the merits of the case, and that the plaintiff is therefore forbidden from filing another lawsuit based on the same grounds. See also: dismiss, dismissal without prejudice
Dismissal Without Prejudice
When a case is dismissed without prejudice, it leaves the plaintiff free to bring another suit based on the same grounds, for example if the defendant doesn’t follow through on the terms of a settlement.
When a facially neutral policy disproportionately affects one group, this can be the basis of a discrimination lawsuit if the group affected is protected by discrimination laws (such as race, sex, or age). For example, an employer’s policy requiring all employees have the ability to lift 50 pounds could disproportionately affect women. Unless the employer had a good reason for such a policy, it could be discriminatory, even though it doesn’t explicitly exclude women.
When two individuals are treated different based on their status or membership in a protected class.
Fired for what one writes in a personal blog. The term comes from the name of a website (www.dooce.com) kept by Heather Armstrong, who was fired after she wrote about annoying habits of her coworkers and managers and what she was actually doing when she was supposed to be working at home, among other things.
An abbreviation of the Latin words exempli gratia, meaning “for example.”
Compensation for services rendered, such as wages, commissions, and tips.
The record of a person’s earnings over his or her lifetime that is maintained by the Social Security Administration for purposes of calculating the amount of benefits to which one may be entitled — including retirement benefits, disability benefits, or dependents or survivors benefits. Ask the Social Security Administration for a copy of your Social Security Statement to make sure your earnings record is accurate.
A legal rule that a person who causes injury is at fault for all the consequences whether foreseen or not. It is derived from a situation in which a light blow to the head killed an individual, even though it could not have been predicted that such a blow would cause death.
Elements (Of A Case)
The component parts of a legal claim or cause of action. To win a lawsuit, a plaintiff must prove every element of a legal claim. For example, here are the elements of a breach of contract claim: · There was a valid contract. · The plaintiff performed as specified by the contract. · The defendant failed to perform as specified by the contract. · The plaintiff suffered an economic loss as a result of the defendant’s breach of contract.
Suffering in response to an experience caused by the negligence or intentional acts of another; a basis for a claim of damages in a lawsuit brought for such an injury. Originally damages for emotional distress were awardable only in conjunction with damages for actual physical harm, but recently some courts have recognized a right to an award of money damages for emotional distress without physical injury or contact. In sexual harassment and defamation claims, emotional distress can sometimes be the only harmful result. Professional testimony by a therapist or psychiatrist may be required to validate the existence and depth of the distress and place a dollar value upon it.
A person who is hired to work for another person or business (the employer) for compensation and is subject to the employer’s direction as to the details of how to perform the job. Employees are subject to payroll tax code rules.
The person or entity that hires someone (an employee) to do work for compensation and has the right to control how the employee does the job.
1) The hiring of a person for compensation, in which the employer has the right to control how the employee does the job. 2) The job for which an employee is hired.
Employment Authorization Document (EAD)
More commonly called a work permit, this is a photo identification card that certain non-immigrants (foreign-born persons with a temporary right to be in the United States) may apply for in order to show employers evidence of their right or approval to work.
A workplace requirement that prohibits employees from speaking any language other than English. An English-only rule is valid only if it is justified by business necessity and limited in scope to serve those business needs. For example, if an employer adopted an English-only policy for workers on a factory line for safety purposes, that would be justified by business necessity. If the same employer prohibited employees from speaking any other language while eating lunch or smoking in the company parking lot, that would probably be too broad.
Equal Employment Opportunity Commission (EEOC)
The federal agency responsible for interpreting and enforcing laws that prohibit employment discrimination, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Equal Pay Act A federal law that prohibits sex-based wage discrimination between men and women in the same establishment who are performing under similar working conditions.
The right, guaranteed by the Fourteenth Amendment to the U.S. Constitution, to be treated the same, legally, as others in the same situation. If a law discriminates between one group of people and another, the government must have a rational basis for doing so. A law that discriminates on the basis of a suspect classification — that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment — is constitutional only if there is a very compelling reason for the distinction.
Equal Rights Amendment
An attempt to amend the U.S. Constitution to guarantee equal rights between the sexes. More commonly called the ERA, this proposed amendment expired in 1982 and was never ratified.
An employer that does not discriminate on the basis of race, color, national origin, gender, religion, age, or disability. Employers typically claim to be equal-opportunity employers in job advertisements or postings (sometimes using the abbreviation EOE) to make themselves more attractive to job candidates.
Et Al. (et-ahl)
Abbreviation for the Latin phrase “et alia,” meaning “and others.” This is commonly used in shortening the name of a court case, so that instead of listing all the plaintiffs or defendants, one of them will be listed followed by the term “et al.”
Et Seq. (et sek)
Abbreviation for the Latin phrase “et sequentes,” meaning “and the following.” It is commonly used by lawyers to include numbered lists, pages, or sections after the first number is stated, as in “the rules of the road are found in Vehicle Code Section 1204, et seq.”
The many types of information presented to a judge or jury designed to convince them of the truth or falsity of key facts. Evidence typically includes testimony of witnesses, documents, photographs, items of damaged property, government records, videos, and laboratory reports. Strict rules limit what can be properly admitted as evidence, but dozens of exceptions often mean that creative lawyers find a way to introduce such testimony or other items into evidence.
1) A document or object (including a photograph) introduced as evidence during a trial. 2) a copy of a paper attached to a pleading (any legal paper filed in a lawsuit), declaration, affidavit, or other document, which is referred to and incorporated into the main document.
A person who is a specialist in a subject who is asked present his or her expert opinion in a trial or deposition without having been a witness to any occurrence relating to the lawsuit or criminal case. Expert witnesses are paid for their services.
A contract in which all of the essential terms are explicitly stated.
Evidence relating to a contract but not contained in the written document, such as circumstances surrounding the agreement or statements made by the parties. This evidence may be admitted if the document’s meaning is ambiguous.
A person who has actually seen or observed an event and can so testify in court.
An actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he or she sits without a jury).
In a trial of a lawsuit or criminal prosecution, the jury or judge (if there is no jury) who decides if facts have been proven. Occasionally a judge may appoint a “special master” to investigate and report on the existence of certain facts.
Failure Of Consideration
The refusal or inability of a contracting party to perform its side of a bargain.
Fair Housing Act & Fair Housing Amendments Act
Federal laws that prohibit housing discrimination on the basis of race or color, national origin, religion, sex, familial status, or disability. The federal Acts apply to all aspects of the landlord/tenant relationship, from refusing to rent to members of certain groups to providing different services during the tenancy. They also apply to the buying and selling of real estate.
Fair Labor Standards Act (FLSA)
A federal law that guarantees a worker’s right to be paid fairly. The FLSA sets out the federal minimum wage, states requirements for overtime, and places restrictions on child labor.
Fair Minimum Wage Act Of 2007
An act that raised the federally mandated minimum wage in three increments, eventually fixing the rate at $7.25 per hour in July 2009. The Act amended the Fair Labor Standards Act of 1938.
Family And Medical Leave Act (FMLA)
A federal law that requires qualifying employers to provide eligible employees with 12 weeks of unpaid leave during a 12-month period to bond with a new child, care for a family member with a serious medical condition, or recover from a serious medical condition. At the end of the leave, the employer must allow the employee to return to the same or an equivalent position to that held before taking the leave.
A branch of the United States government with power derived directly from the U.S. Constitution. Federal courts decide cases involving the U.S. Constitution, federal law — for example, patents, labor law, federal taxes, and federal crimes, such as robbing a federally chartered bank. Federal courts may also decide cases where the parties are from different states and are involved in a dispute for $75,000 or more.
A basis for filing a lawsuit in federal district court — namely, that it is based on subjects enumerated in the U.S. Constitution or a federal statute is involved. Existence of a federal question gives the federal court jurisdiction.
A term commonly used to describe both the process of submitting a document to a court — for example, “I filed my small claims case today” — and to describe the physical location where these papers are kept. Traditionally, a court’s case files were kept indefinitely in one or more cardboard folders. Today most files — especially those for inactive cases — are stored electronically.
A fee charged by a public official to accept a document for processing. For example, you must usually pay a filing fee to submit pleadings to the court in a civil matter, or to put a deed on file in the public record.
The final determination of a court case, put in writing by the judge who presided over the case.
An agreement reached by the parties to a lawsuit, usually in writing or read into the record in court, settling all issues. Usually there are elements of compromise, waiver of any right to reopen or appeal the matter even if there is information found later which would change matters (such as recurrence of a problem with an injury), mutual release of any further claim by each party, a statement that neither side is admitting fault, and some action or payment by one or both sides. In short, the case is over, provided the parties do what they are supposed to do according to the final settlement’s terms.
The determination by the trier of fact (judge or jury) of a factual question submitted to it for decision. Often referred to as a finding of fact. A finding of fact is distinguished from a conclusion of law, which is determined by the judge as the sole legal expert.
The amendment to the U.S. Constitution that guarantees freedom of religion, freedom of expression (including speech, press, assembly, association, and belief), and freedom to petition the government for a redress of grievances.
Four Corners Of An Instrument
The principle that a document’s meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party signing it.
A judge’s order prohibiting the attorneys and parties in a pending lawsuit or criminal prosecution from talking about the case to the media or the public.
Prejudice against people of a particular gender, usually women. Gender bias may result in discriminatory treatment or unequal opportunity. Gender Bias Prejudice against people of a particular gender, usually women. Gender bias may result in discriminatory treatment or unequal opportunity.
A person’s self-identified gender, versus their anatomical gender at birth. In some states, it is illegal for employers to discriminate based on gender identity.
The first time an attorney appears in court on behalf of a client; after making a general appearance, the attorney is then responsible for all future appearances in court unless officially relieved by court order or substitution of another attorney. General Counsel The senior attorney for a corporation.
Monetary recovery in a lawsuit for injuries suffered or breach of contract for which there is no exact dollar value that can be calculated. General damages can include, for example, pain and suffering, compensation for a shortened life expectancy, and loss of the companionship of a loved one.
An answer to a lawsuit or claim, in which the defendant denies everything alleged in the complaint without specifically denying any allegation.
Genetic Information Nondiscrimination Act (GINA)
A federal law passed in 2008, which prohibits health insurers and employers from discriminating on the basis of an employee’s or applicant’s genetic information.
An agreement by a corporation with an executive to provide substantial payments to the executive in the event of a change in ownership or early retirement.
The well-known term for an Alien Registration Card (ARC). This plastic photo identification card is given to people who are legal permanent residents of the United States. It serves as a U.S. entry document, enabling holders to return to the United States after temporary absences, and it proves their right to work in the United States. The green card expires after a certain number of years and must be renewed — but note that the holder’s permanent residence itself doesn’t expire, only the ability to prove it using the card.
The total income of an individual or business from all sources, before subtracting adjustments, exemptions, or deductions allowed by tax law.
A single insurance policy, such as life or health insurance, under which individuals in a group — for example, employees (and sometimes their dependents) — are covered, as long as they remain part of the group.
To engage in harassment.
In employment law, offensive, unwelcome conduct based on the victim’s protected characteristic, that is so severe or pervasive that it affects the terms and conditions of the victim’s employment. Harassment may take the form of words, actions, gestures, demands, or visual displays, such as photographs or cartoons. Sometimes, harassment is used more generally to refer to repeated irritating or bothersome behavior, such as persistent telephone calls from a debt collector
Head Of Household
1) For purposes of federal income taxes, a filing category for someone who is unmarried or legally separated from a spouse and who provides a home for at least one dependent for more than half of the year. The tax rate for someone filing as head of household is lower than it would be for someone filing as a single person. 2) The primary breadwinner in a family.
Benefits paid under health insurance plans, such as Blue Cross/Blue Shield, to cover the costs of health care.
Any proceeding before a judge or other qualified hearing officer without a jury, in which evidence and argument is presented to determine some issue of fact or both issues of fact and law. The term usually refers to a brief court session that resolves a specific question before a full trial takes place, or to such specialized proceedings as administrative hearings. In criminal law, a “preliminary hearing” is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.
Testimony given by a witness who is not telling what he or she knows personally, but what others have said.
A rule of evidence that prohibits the use of out-of-court statements that are offered as proof of the subject of the statement. These statements are not admitted as evidence because person who made the statement isn’t in court for the other party to cross-examine. For example, if Cathy, an eyewitness to an accident, later tells Betsy that the pickup ran the light, Betsy would not be allowed to recount Cathy’s remarks. Out-of-court statements that aren’t offered to prove the truth of the statement are admissible, however. Suppose Tom is called to testify, “On January 1, Bob said the Steelers stink.” If the party calling Tom wants to prove that Bob was alive on January 1, Tom’s testimony would be admitted, because the other side could question Tom about whether the conversation really took place on that date. Whether the Steelers are a poor team is beside the point. Even statements that are hearsay may be admitted if they fall within one of the many exceptions to the rule. In general, hearsay will be admitted if the circumstances of the statement indicate a high probability that the statement is true. For example, a statement uttered spontaneously and under duress — such as a victim’s remarks immediately following an accident — could be admitted because the judge might find that the person had little time to plan to say anything other than the truth.
Decided or ruled, as in “the court held that the contract was valid.”
Commonly refers to a business that hires one or more independent contractors. Unlike an employer, a hiring firm does not have to withhold tax, contribute to Social Security and Medicare, or provide workers compensation for an independent contractor, nor does it have to follow a variety of employment laws that prohibit discrimination, impose wage and hour obligations, or require time off.
In a contract, a promise by one party not to hold the other party responsible if the other party carries out the contract in a way that causes damage to the first party. For example, many leases include a hold harmless clause in which the tenant agrees not to sue the landlord if the tenant is injured due to the landlords failure to maintain the premises. In most states, these clauses are illegal in residential tenancies, but may be upheld in commercial settings.
A witness who testifies against the party who has called the person to testify. The examiner may ask a hostile witness leading questions, as in cross-examination. Also called an adverse witness.
Hostile Work Environment
Working conditions that are created when unwelcome, discriminatory conduct that is so severe or pervasive that it alters the conditions of a victim’s employment and creates an abusive working environment. Employers can be liable when their employees are subjected to a hostile work environment–for example, when a female employee is subject to repeated sex-based taunting or slurs by her male co-workers.
An attorney who works only for a particular business.
In common parlance, the rights all people have just by virtue of being human. As defined by the United Nations’ Office of the High Commissioner on Human Rights, these rights are those that are “inherent to all human beings, whatever [their] nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status.” Human rights recognized by the United Nations include the rights to life, liberty, and the security of person; the right to be free of slavery; the right to be free of torture and other cruel, inhuman, or degrading treatment or punishment; the right to recognition as a person under the law; the right to fair process and hearing; the right to privacy; the right to a family; the right to freedom of religion, expression, and association; and the right to an education.
Until 2013, this was a small green or white card given to all nonimmigrants when they enter the United States. The I-94 is still used, but getting a copy is now an online process for most nonimmigrants (with exceptions; those who still receive paper I-94s include refugees, asylees, parolees, people who arrive at a land port or using transport other than a commercial air or sea carrier, or those in whose cases CBP decides it’s necessary to give an I-94 for some other reason). To download one’s I-94, the nonimmigrant needs to go to the U.S. Customs and Border Protection. The I-94 serves as evidence that a nonimmigrant has entered legally. It contains a date indicating how long the nonimmigrant may stay for that particular trip. (It is this date–and not the expiration date of the visa — that must be followed in determining when the immigrant must leave the United States.) A new I-94 with a new date is issued each time the nonimmigrant legally enters the United States. Canadian visitors are not normally issued I-94s.
Illegal Immigration Reform And Immigration Responsibility Act
An anti-illegal immigration bill amending the Immigration and Nationality Act (INA), IIRIRA covered everything from border control to penalties on immigrants and employers who violate the immigration laws to allowable benefits for immigrants. Many immigrants were affected by new three- and ten-year bars to admissibility for having been “unlawfully present” in the United States (having entered without any inspection or overstayed a nonimmigrant visa). New vaccination requirements for immigrants were also added. The Act also prevented certain immigrants — including some with green cards — from receiving government benefits such as Social Security. Applying for asylum also became more difficult under IIRIRA, as applicants were required to apply within a year after entering the United States and were refused work permits until their cases had been granted.
Although the common meaning of this is a close family relation, it has a more specific meaning in immigration law. Immediate relatives are a category of prospective immigrants who include a U.S. citizen’s spouse, minor children (under the age of 21), and parents (so long as the citizen is at least 21 years old). Immediate relatives have an immediate right to apply for U.S. permanent residence (assuming their U.S. family member agrees to start the process on their behalf) — unlike more distant relatives, they aren’t subject to yearly limits on the numbers who can apply for permanent residence.
A type of U.S. visa that a U.S. consulate or embassy issues to people who have just qualified for U.S. permanent residence (a “green card”). The immigrant visa enables the holder to enter the United States, take up permanent residence, and receive his or her green card.
Immigration And Customs Enforcement (ICE)
This agency of the Department of Homeland Security handles enforcement of the immigration laws within the U.S. borders; for example, by going to workplaces and checking for undocumented workers.
Immigration And Naturalization Service (INS)
Formerly, the federal agency in the Department of Justice that administered and enforced immigration and naturalization laws. In 2003, however, the INS officially ceased to exist, and its functions were taken over by various branches of the Department of Homeland Security.
To select a jury and assign the jury to decide a court case.
1) To discredit, for example, to show that a witness is not believable — perhaps because the witness made statements that are inconsistent with present testimony, or has a reputation for not being a truthful person. 2) The process of charging a public official, such as the U.S. president or a federal judge, with a crime or misconduct, which results in a trial by the senate to determine whether the official should be removed from office.
Circumstances, conduct, or statements which substitute for explicit language to prove authority to act, warranty, promise, or consent, among other things.
A contract that is found to exist even when its terms are not explicitly stated because 1) the parties assumed a contract existed (implied-in-fact contract), or 2) denying the contract’s existence would result in unjust enrichment to one of the parties (implied-in-law contract).
Implied Covenant Of Good Faith And Fair Dealing
An implied obligation that assumes that the parties to a contract will act in good faith and deal fairly with one another without breaking their word, using shifty means to avoid obligations, or denying what the other party obviously understood.
Discussions or hearings held in the judge’s office, called his or her chambers.
In Limine (In lim-in-ay)
From Latin for “at the threshold,” referring to a request made to the judge before a trial begins, such as a request to exclude evidence.
In immigration law, being ineligible to enter the United States (or obtain any type of visa or green card) because one matches one of the grounds of inadmissibility found at Immigration and Nationality Act Section 212, or 8 U.S. Code Section 1182. Commonly applied grounds of inadmissibility include having a criminal record, a history of certain immigration law violations, being without a source of financial support, or having a communicable disease.
Testimony or other evidence that fails to meet state or federal court rules governing the types of evidence that can be presented to a judge or jury. The main reason evidence is ruled inadmissible is because it falls into a category deemed so unreliable that a court should not consider it as part of a deciding a case –for example, hearsay evidence or an expert’s opinion that is not based on facts generally accepted in the field. Evidence will also be declared inadmissible if it suffers from some other defect — for example, as compared to its value, it will take too long to present or risks inflaming the jury. In addition, in criminal cases, evidence that is gathered using illegal methods is commonly ruled inadmissible.
Money, goods, or other economic benefit received. Under income tax laws, income can be active through one’s efforts or work, or passive from rentals, stock dividends, investments, and interest on deposits in which there is neither physical effort nor management. For tax purposes, income does not include gifts and inheritances received. Taxes are collected based on income by the federal government and most state governments.
1) The inability or lack of qualifications to do something — for example, perform a job duty or testify at a trial. 2) The inability, as determined by a court, to handle one’s own personal or financial affairs. Incompetent 1) Unable to manage one’s affairs due to mental incapacity or sometimes physical disability. Incompetence can be the basis for the appointment of a guardian or conservator to handle the incapacitated person’s affairs. 2) In criminal law, unable to understand the nature of a trial, and therefore not qualified to stand trial or testify. 3) A general reference to evidence that is not admissible at trial.
Evidence that is inadmissible because it’s irrelevant or immaterial to the issues in the lawsuit.
To create a corporation by submitting articles of incorporation for an organization, which may be a profit-making business or a nonprofit entity that operates for charitable, social, religious, or educational purposes. The process includes having one or more incorporators file articles of incorporation with the Secretary of State or Division of Corporations, appoint a board of directors, hold a first meeting of the board of directors to launch the enterprise, and issue stock according to state laws and regulations of the Securities and Exchange Commission.
Incorporate By Reference
In documents, to include language from another document by referring to it (rather than repeating it). For example: Plaintiff incorporates by reference all of the allegations contained in the First and Second Causes of Action set forth above.
A legal category of worker that is distinct and different from an employee. The key to the definition is that, unlike employees, independent contractors retain control over how they do their work. Employers are not required to withhold and pay federal, state, and Social Security (FICA) taxes on behalf of independent contractors, as they must do for employees.
Information And Belief
Language used in legal proceedings to qualify a statement and prevent a claim of perjury. A person making a statement based on information and belief often lacks personal knowledge as to the statement but has a belief that the information is correct. In effect, the person is saying, “I am only stating what I have been told, and I believe it.”
A court decision commanding or preventing a specific act, such as an order that an abusive spouse stay away from the other spouse or that a logging company not cut down first-growth trees. Courts grant injunctions to prevent harm–often irreparable harm–as distinguished from most court decisions, which are designed to provide a remedy for harm that has already occurred. Injunctions can be temporary, pending a consideration of the issue later at trial (these are called interlocutory decrees or preliminary injunctions). Judges can also issue permanent injunctions at the end of trials.
A court-ordered act or prohibition against an act that has been requested in a petition to the court for an injunction. Usually injunctive relief is granted only after a hearing at which both sides have an opportunity to present testimony and legal arguments.
Harm done to a person by the acts or omissions of another. Injury may be physical or may involve damage to reputation, loss of a legal right, or breach of a contract.
Evidence so inadequate that a court will find that the prosecution or plaintiff has no basis upon which to proceed, and will most likely dismiss the case.
A provision in a contract stating that the contract represents the full and final agreement of the parties and supersedes any other agreements, oral or written, on the same subject. The purpose of an integration clause is to prevent one party from later claiming that what the parties actually agreed to was different from what was written in the contract.
Provisional and not intended to be final. This usually refers to court orders which are temporary.
Written questions sent by one party to another as part of the pretrial investigation process, called “discovery.” Interrogatories must be answered in writing under oath or under penalty of perjury within a specified time (such as 30 days). Lawyers can write their own sets of questions, or can use form interrogatories designed for the most common types of lawsuits.
Not pertinent, or germane, to the matter at hand or to any issue before the court. This is the most common objection raised by attorneys to questions asked or to answers given during testimony in a trial. For example, if A is charged with hitting B, evidence of A’s honest nature would probably be irrelevant, but that evidence would be relevant if A is charged with embezzlement.
Undivided and shared by two or more persons or entities. It can refer to rights, responsibilities, or ownership. For example, when property is held in joint tenancy, each joint tenant (owner) has the right to the use and enjoyment of the entire property.
Joint And Several
Refers to a debt or a judgment for negligence against two or more defendants, in which each debtor (person who owes) or defendant is responsible for the entire amount of the debt or judgment, regardless of each individual’s precise share of responsibility. For example, a promissory note for a debt often states that if there is more than one debtor, the debt is joint and several. This means the creditor can collect the entire amount from any of the signers of the note. Or, if a party injured in an accident sues several parties for causing damages, the court may find that several people were jointly negligent. The entire judgment may then be collected from any of the defendants found responsible, unless the court finds that different amounts of negligence of each defendant contributed to the injury.
When two or more persons are both responsible for a debt, claim, or judgment. It can be important to the person making the claim, as well as to a person who is sued, who can demand that anyone with joint liability for the alleged debt or claim for damages be joined in (brought into) the lawsuit with them.
1) An official with the authority and responsibility to preside in a court, try lawsuits, and make legal rulings. Judges are almost always attorneys. In some states, “justices of the peace” may need only pass a test, and federal and state “administrative law judges” are often lawyer or nonlawyer hearing officers specializing in the subject matter upon which they are asked to rule. 2) The word “court” often refers to the judge, as in the phrase< “The court found the defendant at fault,” or “May it please the court?” when addressing the judge. 3) To make a legal conclusion, as in “The court judged the defense of self-defense to be unpersuasive.”
A final court ruling resolving the key questions in a lawsuit and determining the rights and obligations of the parties. For example, after a trial involving a vehicle accident, a court will issue a judgment stating which party was at fault and how much money that party must pay the other.
Judgment Notwithstanding The Verdict (JNOV)
Reversal of a jury’s verdict by a judge when the judge believes that there were insufficient facts on which to base the jury’s verdict, or that the verdict did not correctly apply the law. This procedure is similar to a situation in which a judge orders a jury to arrive at a particular verdict, called a directed verdict. Judicial Proceeding Any court proceeding undertaken by a judge, such as a trial or hearing.
The authority of a court to hear and decide a case. To make a legally valid decision in a case, a court must have both “subject matter jurisdiction” (power to hear the type of case in question, which is granted by the state legislatures and Congress) and “personal jurisdiction” (power to make a decision affecting the parties involved in the lawsuit, which a court gets as a result of the parties’ actions). For example, a state court’s subject matter jurisdiction includes the civil and criminal laws passed by its own state, but doesn’t include patent disputes or immigration violations, which Congress allows to be heard only in federal courts. And no court can hear or decide a case unless the parties agree to be there or live in the state (or federal district) where the court sits, or have enough contacts with the state or district that it’s fair to make them answer to that court. (Doing business in a state, owning property there, or driving on its highways will usually be enough to allow the court to hear your case.) The term “jurisdiction” is also commonly used to define the amount of money a court has the power to award. For example, small claims courts have jurisdiction only to hear cases up to a relatively low monetary amount — depending on the state, typically in the range of $2,000 to $10,000. If a court doesn’t have personal jurisdiction over all the parties and the subject matter involved, it “lacks jurisdiction,” which means it doesn’t have the power to render a decision. Jurisdictional Amount The monetary amount that determines whether or not a particular court can hear a case. For example, under the law of a particular state, the jurisdictional amount of a justice, municipal, or city court might be limited to cases involving less than $25,000. Small claims courts have low jurisdictional limits, usually under $15,000 and sometimes as low as $2,500.
A group of people selected to apply the law, as stated by the judge, to the facts of a case and render a decision, called the verdict. Traditionally, an American jury was made up of 12 people who had to arrive at a unanimous decision. But today, in many states, juries in civil cases may be composed of as few as six members, and non-unanimous verdicts may be permitted. (Almost every state still requires 12-person, unanimous verdicts for criminal trials.) The philosophy behind the jury system is that — especially in a criminal case — an accused’s guilt or innocence should be judged by a group of people from the same community (“a jury of peers”), acting impartially and without bias. Recently, some courts have been experimenting with increasing the traditionally rather passive role of the jury by encouraging jurors to take notes and ask questions.
A direction or explanation that a judge gives to a jury about the law that applies to a case.
A list of people who’ve been summoned to the court for jury duty, from which jurors for a particular trial may be chosen.
The process by which a jury is chosen for a particular trial. In brief, a panel of potential jurors is called, they’re questioned by the judge and attorneys, some may be dismissed for cause (such as bias), others based on peremptory challenges (in which the attorneys don’t need to state a cause), and finally the jury is chosen and impaneled.
A trial of a lawsuit or criminal prosecution in which the case is presented to a jury for final determination of the factual questions.
1) In general, a fair and reasonable amount of money to be paid for work performed or to make one whole after loss due to damages. 2) The full value to be paid for property taken by the government for public purposes guaranteed by Fifth Amendment to the U.S. Constitution.
1) A concept of fairness and moral rightness. 2) A scheme or system of law. 3) Judges on the U.S. Supreme Court, the federal courts of appeal, and state appellate courts.
For purposes of the Family and Medical Leave Act (FMLA), a salaried employee who is in the highest-paid 10% of the company’s employees working within 75 miles of the employee’s worksite. An employer does not have to reinstate a key employee after FMLA leave if doing so would cause the company substantial and grievous economic injury.
A blood relative.
A leave (from work) without pay.
A required procedure for many foreign nationals who have a job offer from a U.S. employer and want to use it to apply for U.S. permanent residence (a green card). In most cases, the job offer alone is not enough to qualify the potential immigrant for a green card. First, the employer must prove that there are no qualified U.S. workers available and willing to take the job. To do so, the employer must conduct an advertising and hiring process and then turn to the U.S. Department of Labor for individual approval of a labor certification. At that point, the intending immigrant can continue with the process and apply for a green card. This process is also referred to as “PERM,” meaning Program Electronic Review Management.
1) Any system of regulations to govern the conduct of the people of an organization, community, society, or nation. 2) A statute, ordinance, or regulation enacted by the legislative branch of a government.
Law And Motion Calendar
A description of the kinds of legal matters a particular judge or courtroom will hear that day, week, or any other block of time. The law and motion calendar consists of pretrial motions (such as a motion to compel the other side in a civil case to answer discovery requests) or other legal requests that are not connected to a trial, and does not include trials themselves.
Law Of The Case
Once judges have decided a legal question during the conduct of a lawsuit, they are unlikely to change their views and will respond that the ruling is the “law of the case.”
Law Of The Land
The body of rules, regulations, and laws that govern a country or jurisdiction. The United States Constitution declares itself “the supreme law of the land.”
Lawful Permanent Resident (LPR)
A non-U.S. citizen who has been given permission to make a permanent home (and work) in the United States. Permanent residents are given “green cards” (not really green) to prove their status. U.S. permanent residents may travel as much as they like, but their place of residence must remain in the United States and they must keep that residence on a permanent basis. Otherwise, they’ll be said to have abandoned their U.S. residence, and could lose their right to the green card. A permanent resident who leaves the United States and stays away for more than six months risks having the U.S. immigration officials believe that he or she has abandoned residence.
1) A legal action by one person or entity against another person or entity, to be decided in a court of law. 2) The complaint or petition that begins a court case.
Lay A Foundation
The act of demonstrating to a judge that a piece of evidence a litigant would like to introduce meets evidence rules requirements concerning authenticity and trustworthiness. For example, a medical report cannot be introduced unless the physician who wrote it testifies that he wrote it; and a photograph must be authenticated by the photographer or by testimony that it truly reflects a particular place or event. Even after a proper foundation is laid, however, evidence can still be excluded if, for example, it is not relevant to the point for which it is being offered.
A witness who is not an expert. Lay witnesses may not offer opinions, unless they are based on firsthand knowledge or help to clarify testimony.
A question asked of a witness who is under oath, which suggests the answer. An improper leading question would be “Didn’t the defendant appear to you to be going too fast in the limited visibility?” The proper question would be: “How fast do you estimate the defendant was going?” followed by “What was the visibility?” and “How far could you see?” Leading questions are not allowed on direct examination (questioning by the side that called the witness), but are allowed on cross-examination (questioning by adverse parties) or when a party’s own witness has been declared a “hostile witness” by the judge
Under the Family and Medical Leave Act (FMLA), the 12-month period by which an employer measures an employee’s entitlement to FMLA leave. Eligible employees have a right to take up to 12 weeks of leave in each 12-month leave year.
A cause that produces a direct effect, and without which the effect would not have occurred.
An abbreviation for Lesbian, Gay, Bisexual, and Transgender people or groups.
1) In law, the state of being liable — that is, legally accountable for an act or omission. 2) In business, money owed by a business to others, such as payroll taxes, a court judgment, an account payable, or a loan debt.
The namesake of the Lilly Ledbetter Fair Pay Act of 2009. Ms. Ledbetter was the plaintiff in a lawsuit against her employer, in which she claimed that she had been paid less because of her gender. The U.S. Supreme Court threw out her case because she had not brought it within the 180-day statute of limitations, which the Court held started running on the day that Ms. Ledbetter and her employer first agreed on her pay. The 2009 law was passed by Congress specifically to overturn this decision and establish that the statute of limitations starts over with each paycheck.
Lilly Ledbetter Fair Pay Act Of 2009
Amends the Civil Rights Act of 1964 to say that the 180-day statute of limitations for filing an equal pay claim starts over with each unequal paycheck. Signed into law by President Barack Obama, this law was passed specifically to overturn a U.S. Supreme Court case that held that the statute of limitations starts on the day the pay was first agreed upon.
Limited Liability Company (LLC)
A business ownership structure that shields its owners’ personal assets through the doctrine of limited liability (like a corporation) but has pass-through taxation (like a partnership), where profits (or losses) are passed through to the owners and taxed on their personal income tax returns.
Limited Liability Partnership (LLP)
A type of partnership recognized in a majority of states that protects a partner from personal liability for negligent acts committed by other partners or by employees not under his or her direct control. Some states also protect partners from personal liability for contract breaches or intentional torts. Some states restrict this type partnership to professionals, such as lawyers, accountants, architects, and health care providers.
A business structure that allows one or more partners (called limited partners) to enjoy limited personal liability for partnership debts while another partner or partners (called general partners) have unlimited personal liability. The key difference between general and limited partners is with management decisionmaking–general partners run the business and limited partners (who are usually passive investors) are not allowed to make day-to-day business decisions. If they do, they risk being treated as general partners with unlimited personal liability.
In a contract, an amount of money agreed upon by both parties that a party who breaches the contract will pay to the other party. Liquidated damages clauses may not be enforced by judges when they appear in consumer contracts, because they are often used to punish the party who breaks the contract, rather than to compensate the other side for its actual damages.
Any party to a lawsuit. This might include a plaintiff, defendant, petitioner, respondent, cross-complainant, or cross-defendant, but not a witness or attorney.
The process of bringing and pursuing (litigating) a lawsuit.
A trial lawyer; an attorney who represents plaintiffs or defendants in court.
Major Life Activity
Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Under the Americans with Disabilities Act, an individual is considered to have a disability if he or she has an impairment that substantially limits a major life activity.
Make One Whole
To award an amount of damages sufficient to put the injured party back into the position that party was in before the injury.
The delivery of substandard care or services by a lawyer, doctor, dentist, accountant, or other professional. Generally, malpractice occurs when a professional fails to provide the quality of care that should reasonably be expected in the circumstances, with the result that a patient or client is harmed. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. In the area of legal malpractice, the claimant must prove two things to show harm: first, that the lawyer failed to meet the standard of professional competence; and second, that if the lawyer had handled the work properly, you would have won the original case.
Marked For Identification
Documents or objects presented during a trial before testimony confirms their authenticity or relevancy. Each item is given an exhibit identification letter or number, and can then be physically marked and referred to by that letter or number. The marked exhibits can be introduced into evidence (made part of the official record) upon request of the lawyer offering the evidence and approval by the judge or by stipulation of both attorneys.
The legal union of two people. Once a couple is married, their rights and responsibilities toward one another concerning property and support are defined by the laws of the state in which they live. A marriage can only be terminated by a court granting a divorce or annulment. Mass Layoff For purposes of the WARN Act, a reduction in force that results in job loss or at least a 50% hours cut at a single employment site for (1) 500 or more employees, not including part-time employees, or (2) 50 to 499 employees, not including part-time employees, if at least 33% of the employer’s active workforce are laid off.
A way that parties can resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge or an arbitrator, the mediator has no power to impose a solution — instead, the mediator facilitates the parties’ communication and helps to develop and reality-test possible solutions. No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed. Mediation is very commonly used in divorce cases, and is mandatory in some places when child custody is in dispute.
Motion To Dismiss
A motion asking the judge to throw out one or more claims or an entire lawsuit. Sometimes, the plaintiff or a prosecutor makes a motion to dismiss a case because it has been settled out of court. Sometimes, the defendant files a motion to dismiss claiming that the plaintiff or prosecutor has committed some procedural error that prevents the court from hearing the case or that, even if all of the facts in the complaint are true, the plaintiff or prosecutor cannot win the case (this type of motion to dismiss is called a demurrer in some courts).
National Labor Relations Board (NLRB)
An independent agency created by Congress in 1935 to administer the National Labor Relations Act. The NLRB’s purposes are to remedy unfair labor practices by unions or employers, and to hold elections to determine whether a particular group of employees wants to be represented by a particular union. NLRB refers both to the agency as a whole and to five members who sit as a court and issue decisions in labor disputes. These decisions can be appealed to the U.S. Court of Appeals.
1) A give-and-take discussion that attempts to reach an agreement or settle a dispute. Negotiation is a form of alternative dispute resolution. 2) The transfer of a check, promissory note, bill of exchange, or other negotiable instrument to another in exchange for money, goods, services, or other benefit
Gross income minus allowed business expenses.
An agreement where one party agrees not to compete with the other party for a specific period of time and within a particular area. Salespeople, for example, often sign noncompetition agreements that prevent them from using the contacts gained by one employer to benefit another employer, from selling within a particular area, or even working in the same type of business. Noncompetes are also used in the context of a contract for the sale of a business: The selling owner may agree not to compete with the acquiring business for a certain period of time. In some states, such as California, courts view noncompetition agreements with disfavor and will not enforce them against employees or contractors unless the restrictions are very narrow. In other states, courts routinely uphold them.
An attorney’s formal statement protesting something that has occurred in court and seeking the judge’s immediate ruling. Often, lawyers object to questions posed to a witness by an opposing attorney because the inquiries do not meet legal standards. For example, the question may be irrelevant, immaterial, call for a conclusion (seeking opinion, not facts), argumentative, assuming facts not in evidence, or compound (two or more questions asked together). The trial attorney must be alert to object before an answer is given.
Occupational Safety And Health Act (OSHA)
The primary federal law establishing health and safety standards in the workplace. Generally, OSHA requires employers to provide a safe workplace by informing employees about potential hazards, following health and safety standards established for their industry, training employees, and recording workplace injuries.
An element required in the creation of an enforceable contract. An offer is a proposal to enter into an agreement and must express the intent of the person making the offer to form a contract, must contain the essential terms — including the price and subject matter of the contract — and must be communicated by the person making the offer. A legally valid acceptance of the offer will create a binding contract.
A statement made by an attorney or self-represented party at the beginning of a trial before evidence is introduced. The opening statement outlines the party’s legal position and previews the evidence that will be introduced later. The purpose of an opening statement is to familiarize the jury with what it will hear — and why it will hear it — not to present an argument as to why the speaker’s side should win; that comes after all evidence is presented as part of the closing argument.
Ordinary Course Of Business
Conduct of business within normal commercial customs and practices. This term is used to determine the legitimacy of certain transactions.
An agreement based on spoken words that is valid and enforceable, provided that it is provable, meets the condition of contract formation, and is not in violation of statutes that prohibit oral agreements — for example state statutes that require sales of real property and agreements whose performance takes more than one year, must be in writing.
Pain And Suffering
The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured person (the plaintiff) can seek compensation in the form of cold, hard cash. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work — although sometimes these amounts are considered to arrive at a logical figure.
1) A person, business, or other legal entity that files a lawsuit (the plaintiff or petitioner) or defends against one (the defendant or respondent). 2) A person or other legal entity that enters into an agreement.
A contract clause that imposes an excessive monetary penalty in the event a party defaults. Courts generally don’t enforce penalty clauses when the amount imposed is unrelated to the damages incurred.
The crime of intentionally lying after being duly sworn to tell the truth by a notary public, court clerk, or other official. This false statement may be made in testimony in court, administrative hearings, depositions, or answers to interrogatories, as well as by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, or tax return) known to contain false information.
A physical or mental disability that indefinitely impairs a worker’s ability to perform the duties or normal activities that the worker performed before the accident or serious illness.
Physical or mental damage that will indefinitely restrict the employment or other normal activities of an individual. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.
The person, corporation, or other legal entity that initiates a lawsuit seeking damages, enforcement of a contract, or a court determination of rights. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff.
Pregnancy Discrimination Act
A federal law that prohibits discrimination against employees based on the basis of pregnancy, childbirth, or related medical conditions.
A California ballot measure that ended the brief period in 2008 when same-sex marriage was legal in the state. Passed by voters in November 2008, Prop 8 amended the state’s constitution to read “only marriage between a man and a woman is valid or recognized in California.” The California Supreme Court upheld the validity of Prop 8 in 2009, while also ruling that couples married between May and November of 2008 remained married. In January 2010 a California federal court took up a challenge to the law by same-sex couples and other proponents of same-sex marriage. In August 2010, Prop 8 was deemed unconstitutional in a decision by U.S. District Court Judge Vaughn Walker. An appeal of this decision is already in the works — the initial appeal goes to the Ninth Circuit federal court, but the last word in the case is likely to rest with the U.S. Supreme Court. Meanwhile, even though the legality of Prop 8 was struck down, same-sex marriages are on hold in California through December 2010, when the Ninth Circuit is expected to issue its ruling on the appeal.
Paid Time Off.
To annul or set aside. A motion to quash asks the judge for an order setting aside or nullifying an action, such as quashing a service of summons when the wrong person was served.
An arrangement created and enforced by a court to prevent one party from being unjustly enriched by another; also known as an implied-in-law contract.
Quid Pro Quo (kwid pro kwoh)
Latin for “this for that.” A quid pro quo is what each person in a deal expects to get from the other. In employment law, quid pro quo sometimes refers to a type of sexual harassment in which workplace rewards are explicitly linked to the victim’s willingness to submit to unwanted sexual advances. (“If you agree to go out with me, you’ll be first in line for promotion.”)
Any adjustment to a work environment or job that allows a qualified worker to perform the job in question. Employers subject to federal employment laws must offer reasonable accommodations to employees with disabilities (for example, providing a TDD telephone to an employee with a hearing impairment) or based on religious beliefs (such as not assigning an employee to a shift on his Sabbath), as long as those accommodations do not create an undue burden for the employer.
1) Evidence or argument introduced to counter, disprove, or contradict the opposing party’s evidence or argument. 2) Legal arguments presented in a reply brief.
Right To Work State
A state that has a law prohibiting union security agreements.
Marriage between two people of the same sex, currently available only in a few states.
Scope Of Employment
The actions or activities an employee might reasonably undertake as part of his or her job. An employer is responsible for actions an employee takes within the scope of employment, which means the employer can be liable to third parties who are injured by the employee’s conduct. For example, an employer would be liable for harm to a pedestrian caused by its delivery driver while driving a route; the employer most likely would not be liable for harm the same driver caused if he or she hit a pedestrian while using the delivery van as the getaway car in a bank robbery.
1) The resolution of a dispute or lawsuit. 2) Payment or adjustment. For example, a debtor might settle an account by paying the full amount owed, or an insurance company might settle a property damage claim by paying the insured for the covered damage. 3) The distribution of property and wrapping up of a decedent’s affairs by the executor. 4) The transfer of real property from the seller to the buyer (and new owner); closing.
A provision in a contract that preserves the rest of the contract if a portion of it is invalidated by a court. Without a severability clause, a decision by the court finding one part of the contract unenforceable would invalidate the entire document.
1) Separation of legal claims by court order to allow the claims to be tried separately. For example, a judge might sever the trials of two defendants accused of the same crime. 2) Money paid or benefits provided to an employee who is fired, laid off, or agrees to leave.
Money paid to an employee who is laid off, fired or leaves by mutual agreement. Employers are not generally required to offer severance pay, although a few states require some severance pay for employees who lose their job in a plant closing or large layoff. Employers may also be obligated to provide severance pay if they promised to do so in an employment contract or employee handbook.
Time off work due to illness or injury.
Damages that compensate the plaintiff for quantifiable monetary losses such as medical bills and the cost to repair damaged property (direct losses) and lost earnings (consequential damages). Distinguished from general damages, for which there is no exact dollar value to the plaintiff’s losses.
A court in the state judicial system, rather than the federal judicial system, that decides cases involving state law or the state constitution. State courts are often divided according to the dollar amount of the claims they can hear. Depending on the state, small claims, justice, municipal, or city courts usually hear smaller cases, while district, circuit, superior, or county courts (or in New York, supreme court) have jurisdiction over larger cases. State courts may also be divided according to subject matter, such as criminal court, family court, and probate court.
Statute Of Limitations
The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim and on state law. For example, many states require that a personal injury lawsuit be filed within one year from the date of injury — or in some instances, from the date when it should reasonably have been discovered — but some allow two years. Similarly, claims based on a written contract must be filed in court within four years from the date the contract was broken in some states and five years in others. Statute of limitations rules apply to cases filed in all courts, including federal court.
A final decision by a judge, upon a party’s motion, that resolves a lawsuit before there is a trial. The party making the motion marshals all the evidence in its favor, compares it to the other side’s evidence, and argues that there are no “triable issues of fact.” Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail if the matter were to proceed to trial.
America’s highest court, which has the final power to decide cases based on federal statutes or the U.S. Constitution, cases in which the U.S. government is a party, or in certain lawsuits between parties in different states. The U.S. Supreme Court has nine justices — one of whom is the Chief Justice — who are appointed for life by the president and must be confirmed by the U.S. Senate. Most states also have a supreme court, which is the final arbiter of the state’s constitution and state laws. However, in several states, the highest state court uses a different name.
Tangible Employment Action
An actual change that has an actual adverse effect on the job or working conditions, such as a firing, demotion, or suspension. When an employee claims to have been discriminated against or harassed by a supervisor, a tangible employment action supports the employee’s case (and may be required to be proved).
The official written record of all proceedings in a trial, hearing, or deposition, taken down by the court reporter. In most appeals a copy of the trial transcript is required so that the court of appeals can review the entire proceedings in the trial court.
Tripling the amount of actual damages to be paid to a prevailing party in a lawsuit. Treble damages are sometimes provided by law in order to punish intentional or willful behavior of the losing party.
The examination of facts and law presided over by a judge, magistrate, or other person with authority to hear the matter (such as a lawyer appointed to hear the case). Trials begin with the selection of a jury (unless the case will be heard without one), followed by opening statements by each side if they choose to give them. (The defense may also give an opening statement just before it presents its case.) The plaintiff (in a civil case) or the prosecution (in a criminal case) presents its side, then the defense puts on its case. Sometimes the plaintiff or prosecution presents more evidence, called rebuttal evidence, as does the defense. Following closing arguments, the jury (if there is one) is instructed by the judge on the law they must apply when deciding whether the plaintiff or prosecution adequately proved their case. The trial ends when the jury reaches a verdict, or when they fail to do so and the judge declares a mistrial.
Trier Of Fact
The jury responsible for deciding factual issues in a trial, if there is a jury. If there is no jury the judge is the trier of fact as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission, or referee may be the trier of fact.
In a trial, a fact that is essential to the case.
When one party to a contract takes advantage of the other due to unequal bargaining positions, perhaps because of the disadvantaged party’s recent trauma, physical infirmity, ignorance, inability to read, or inability to understand the language. A contract will be terminated as unconscionable if the unfairness is so severe that it is shocking to the average person.
In opposition to the constitution. Used to describe to a statute, governmental conduct, court decision, or private contract that violates one or more provisions of the constitution. Can be used in reference to the federal constitution or a state constitution.
A contract that is valid, but which a court will not enforce due to a technical defect. For example, an unsigned contract may be unenforceable in court.
The literal meaning is a stamp placed in a foreign national’s passport by an official at a U.S. consulate outside of the United States. All visas allow their holders to enter the United States within a certain period of time. Visas can be designated as either “immigrant visas” or “non-immigrant visas.” Immigrant visas are given to people who have earned U.S. permanent residence or a “green card.” Non-immigrant visas are given to people coming to the U.S. for a temporary stay. However, immigration law also sometimes talks about visas “becoming available,” which refers not to the stamp itself, but to instances where a limited number of visas are given out each year, and people who want them must place themselves on a waiting list.
A contract that can be canceled because one party has wronged the other; the party who has been wronged may void (cancel) the contract. Even without wrongdoing, a contract may sometimes be voidable at the option of one party. For example, if a minor enters into a contract, the minor may usually choose to affirm or reject the contract upon reaching the age of majority.
Compensation that a worker receives in exchange for labor.
Weight Of Evidence
The strength, value, and believability of evidence
A whistleblower who raises concerns about a company’s misconduct or wrongdoing on a blog.
An employee who raises concerns about misconduct or wrongdoing within the company where the person works.
A person who testifies under oath at a deposition or trial, providing firsthand or expert evidence. The term also refers to someone who watches another person sign a document and then adds his or her name to confirm (called “attesting”) that the signature is genuine.
A program that provides medical care and replacement income to employees who are injured or become ill due to their jobs. Financial benefits may also extend to the survivors of workers who are killed on the job. In most circumstances, workers’ compensation pays relatively modest amounts and prevents the worker or survivors from suing the employer for the injuries or death.
An agreement in which an employer forbids an employee to join a labor union. Yellow-dog contracts are unenforceable.
A witness who gives testimony clearly biased toward the party that called him or her to testify.
This Glossary has been prepared and provided by Stephen Danz & Associates for informational and educational purposes for clients and prospective clients. It is not intended to provide any type of legal advice, or advice on any particular case or fact pattern. Lay persons relying on the information contained herein, do so at their peril and assume all risks for any misleading information, inability to understand or apply any particular information to a specific set of facts. Stephen Danz & Associates accepts no responsibility for the information contained herein or how it applies to your particular case. If you have any questions regarding any of the matters or items of information contained within this Glossary, please contact our offices at (877) 789-9707 or use the Contact Form on our website to submit questions, make comments, or schedule a free consultation.