Legal Terms (Part 5)

Question 1

Negligence established as a matter of law, so that breach of the· duty is not a jury question. X usu. arises from a statutory violation, such as speeding or running a red light.

Answer 1

negligence per se

Question 2

A written instrument that ( 1) is signed by the maker or drawer, (2) includes an unconditional promise or order to pay a specified sum of money, (3) is payable on demand or at a definite time, and (4) is payable to order or to bearer.

Answer 2

negotiable instrument

Question 3

A person who appears in a lawsuit on behalf of an incompetent or minor plaintiff, but who is not a party to the lawsuit and is not appointed as a guardian. Cf. guardian ad litern.

Answer 3

next friend

Question 4

A grand jury’s notation that insufficient evidence exists for an indictment on a criminal charge. Cf. true bill

Answer 4

no bill

Question 5

A criminal defendant’s plea that, while not admitting guilt, the defendant will not dispute the charge. This plea is often preferable to a guilty plea. which can be used against the defendant in a later civil lawsuit.

Answer 5

no contest (nolo contendere)

Question 6

A divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences

Answer 6

no-fault divorce

Question 7

A contractual provision - typically found in employment. partnership, or sale-of-business agreements - in which one party agrees to refrain from conducting business similar to that of the other party. Courts usu. uphold these clauses for the duration of the original business relationship, but clauses extending beyond termination must usu. be reasonable in scope, time, and territory.

Answer 7

noncompetition clause

Question 8

A person authorized by , a state to administer oaths, certify documents, attest to the authenticity of signatures, and , perform official acts in commercial matters, such as protesting negotiable instruments.

Answer 8

notary public

Question 9

Legal notification required , by law or agreement, or imparted by operation of law as a result of some fact (such as the recording of instruments): definite legal cognizance, actual or constructive, of an existing right or title. 2. The condition of being so notified, whether· or not actual awareness exists.

Answer 9

notice

Question 10

The substitution for an old contract of a new one that, either replaces an existing obligation with a new obligation or replaces an original party with a new part

Answer 10

novation

Question 11

A condition or situation (such as a loud noise or foul odor) that interferes with another’s use or enjoyment of property. It the interference is substantial and unreasonable, the responsible party may be held liable in tort.

Answer 11

nuisance

Question 12

An oral will made in contemplation of imminent death from an injury recently incurred. Xs are invalid in most states in the United States. But in those states allowing them, the amount that may be conveyed is usu. limited by statutes, and they traditionally apply only to personal property.

Answer 12

nuncupative will

Question 13

1. A solemn pledge by which the person swearing to a statement implicitly invites punishment from a supreme being if the person is untruthful. 2. A statement made after making such a pledge. Cf. affirmation.

Answer 13

oath

Question 14

A formal statement protesting something that has occurred in court and seeking the judge’s immediate ruling on the point. The person objecting must usu. state the basis for the X to preserve the right to appeal an adverse ruling.

Answer 14

objection

Question 15

A legal standard that is based on conduct and perceptions external to a particular person. In tort law, for example, the reasonable-person standard is considered an X because it does not require a determination of what the defendant was thinking.

Answer 15

objective standard

Question 16

1. The quality or state of being morally abhorrent or socially taboo, esp. as a result of referring to or depicting sexual or excretory functions. Under the United States Supreme Court’s three-part test, material is legally … - and therefore not protected under the First Amendment to the United States Constitution - if, taken as a whole, the material (1) appeals to the prurient interest in sex, as determined by the average person applying contemporary community standards; (2) portrays sexual conduct, as specifically defined by state law, in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value. 2. Something (such as an expression or act) that has this quality. Cf. indecency.

Answer 16

obscenity

Question 17

Interference with the orderly administration of law (such as by withholding evidence or intimidating a witness). X is a crime in most states in the United States.

Answer 17

obstruction of justice

Question 18

A violation of the law; a crime, often a minor one.

Answer 18

offense

Question 19

1. The act or an instance of presenting something for acceptance. 2. A promise to do or refrain from doing some specified thing in the future; a display of willingness to enter into a contract on specified terms, made in a way that would lead a reasonable person to understand that an acceptance, having been sought, will result in a binding contract. Cf. acceptance.

Answer 19

offer

Question 20

1. A failure to do something; a neglect of duty. 2. The act of leaving something out; a thing left out.

Answer 20

omission

Question 21

At the outset of a trial, an advocate’s statement giving the fact-finder a preview of the case and of the evidence to be submitted.

Answer 21

opening statement

Question 22

An advocate’s spoken presentation before a court (esp. an appellate court) supporting or opposing the legal relief at issue.

Answer 22

oral argument

Question 23

1. A written direction or command delivered by a court or judge. Also termed court order. 2. A written direction to pay money or deliver property to a specified person.

Answer 23

order

Question 24

A law or regulation, esp. one enacted by a city or other local government.

Answer 24

ordinance

Question 25

1. To rule against; to reject. 2. (Of an appellate court) to overturn or set aside (a precedent) by expressly deciding it should no longer be controlling law. Cf. sustain.

Answer 25

overrule

Question 26

Physical discomfort or emotional distress compensable as an element of damages in torts.

Answer 26

pain and suffering

Question 27

The act or an instance of officially nullifying punishment or other legal consequences of a crime. A X is usu. granted by the chief exe as the President (for federal crimes) or a governor (for state crimes).

Answer 27

pardon

Question 28

1. Oral; unwritten. 2. Not under seal.

Answer 28

parol

Question 29

The release of a prisoner from imprisonment before the full sentence has been served. Although not available under some sentences, X is usu. granted for good behavior on the condition that the parolee regularly report to a parole officer for a specified period.

Answer 29

parole

Question 30

In contract law, the principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by evidence that adds to, varies, or contradicts the writing. This rule usu. prevents a party from introducing extrinsic evidence of negotiations that occurred before or while the agreement was being reduced to its final written form.

Answer 30

parol-evidence rule

Question 31

A voluntary association of two or more persons who jointly own and carry on a business for profit. A X is usu. presumed to exist if the persons agree to proportionally share the business’s profits or losses. Cf. joint venture.

Answer 31

partnership

Question 32

A person involved in a legal transaction or court proceeding.

Answer 32

party

Question 33

A court proceeding to determine whether a person is the father of a child born out of wedlock, usu. initiated by the mother in an effort to obtain child support.

Answer 33

paternity suit

Question 34

A lawyer or staff of lawyers, usu. publicly appointed, whose duty is to represent indigent criminal defendants.

Answer 34

P.D.: public defender

Question 35

Of or relating to money; monetary.

Answer 35

pecuniary

Question 36

1. Punishment imposed on a wrongdoer, esp. in the form of imprisonment or fine. Though usu. for crimes, penalties are also sometimes imposed for civil wrongs. 2. Excessive liquidated damages that a contract purports to impose on a party that breaches. If the damages are excessive enough to be considered a penalty, a court will usu. not enforce that particular provision of the contract. Some contracts specify that a given sum of damages is intended “as liquidated damages and not as a penalty” - but even that language is not foolproof.

Answer 36

penalty

Question 37

[Latin “by the head”) Divided equally among all individuals, usu. in the same class. Cf. per stirpes.

Answer 37

per capita

Question 38

An opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.

Answer 38

per curiam opinion

Question 39

One of a party’s limited number of requests to remove a potential juror from the jury panel. A X need not be supported by any reason unless the opposing party objects that the challenge was made for the purpose of discriminating on the basis of race or sex.

Answer 39

peremptory challenge

Question 40

1. The successful completion of a contractual duty, usu. resulting in the performer’s release from any past or future liability. 2. The equitable doctrine by which acts consistent with an intention to fulfill an obligation are construed to be in fulfillment of that obligation, even if the party was silent on the point.

Answer 40

performance

Question 41

A tenancy that automatically continues for successive periods (usu. month to month or year to year) unless terminated at the end of a period by notice. A typical example is a month-to-month apartment lease.

Answer 41

periodic tenancy

Question 42

The crime of deliberately giving false or misleading testimony while under oath or affirmation.

Answer 42

perjury

Question 43

[Latin] 1. Of, in, or by itself: standing alone, without reference to additional facts. 2. As a matter of law.

Answer 43

per se

Question 44

1. In a tort action for negligence, any harm caused to a person, such as a broken bone, a cut, or a bruise: bodily injury. 2. Any invasion of personal rights, including mental suffering and false imprisonment. 3. In workers’ compensation law, any harm (including a worsened preexisting condition) that arises in the scope of employment.

Answer 44

personal injury

Question 45

A court’s power to bring persons into its adjudicative process: jurisdiction over a defendant’s personal rights, rather than merely over property interests. Cf. subject-matter jurisdiction.

Answer 45

personal jurisdiction

Question 46

An awareness or understanding of a fact or condition acquired by a person directly through his or her own senses, as opposed to learning from some other person or source.

Answer 46

personal knowledge

Question 47

Any movable or intangible thing that is subject to ownership and not classified as real property. Also termed personalty. Cf. real property.

Answer 47

personal property

Question 48

[Latin “by roots or stocks”) Proportionally divided between beneficiaries according to their deceased ancestor’s share. Cf. per capita.

Answer 48

per stirpes

Question 49

1. A formal written request presented to a court or other official body. 2. In some states in the United States, a lawsuit’s first pleading; a complaint.

Answer 49

petition

Question 50

The judicial act of imposing personal liability on otherwise immune corporate officers, directors, or shareholders for a corporation’s fraudulent or wrongful acts.

Answer 50

piercing the corporate veil

Question 51

A principle of interpretation prohibiting the examination of any information not contained in a contract, statute, or other document being considered; esp. the statutory-interpretation rule requiring the application of a word’s obvious and customary meaning, without analyzing legislative intent.

Answer 51

plain-meaning rule

Question 52

The party who brings a civil suit in a court of law. Cf. defendant.

Answer 52

plaintiff

Question 53

1. An accused person’s formal response to a criminal charge. 2. In civil litigation, an allegation or pleading made in response to a claim.

Answer 53

plea

Question 54

An agreement between the prosecutor and criminal defendant to resolve a case without trial, usu. allowing the defendant to plead guilty to a lesser offense or testify against another in return for a less severe punishment.

Answer 54

plea bargain

Question 55

A document containing the factual allegations that each party is required to communicate to the opponent before trial. In federal civil procedure in the U.S., the main Xs are the plaintiff’s complaint and the defendant’s answer.

Answer 55

pleading

Question 56

1. A bailment or other deposit of personal property to a creditor as security for a debt or obligation; a pawn. Cf. lien. 2. The item of personal property so deposited; a pawned item. 3. Broadly, the act of providing something as security for a debt or obligation; the thing so provided.

Answer 56

pledge

Question 57

An opinion lacking enough judges’ votes to constitute a majority, but receiving more votes than any other opinion.

Answer 57

plurality opinion

Question 58

A state’s constitutional right to establish and enforce laws protecting the public’s health, safety, and general welfare, or to delegate this right to local governments. A state’s X is subject to constitutional limitations such as due process and the supremacy of federal law.

Answer 58

police power

Question 59

A device used to evaluate a person’s truthfulness by measuring and recording involuntary physiological changes in the human body during interrogation. X results are inadmissible as evidence in most states in the United States. Also termed lie detector.

Answer 59

polygraph

Question 60

A system of law implemented and laid down by political superiors, as distinct from moral law, natural law, or law existing in an ideal community or in some nonpolitical community. X typically consists of enacted law - the statutes and regulations that are applied and enforced in the courts. Cf. natural law.

Answer 60

positive law

Question 61

1. The fact of having or holding property in one’s power: the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. (usu. pl.) Something that a person owns or controls; property.
   power of attorney.

Answer 61

possession

Question 62

1. An instrument granting someone authority to act as agent or attorney-in-fact for the grantor. 2. The authority so granted.

Answer 62

power of attorney

Question 63

A request addressed to the court and appearing at the end of a pleading; esp. a request for specific relief or damages.

Answer 63

prayer for relief

Question 64

A judicial decision that serves as a basis for determining later cases involving similar facts or issues. See stare decisis.

Answer 64

precedent

Question 65

In the U.S. constitutional law, the principle (derived from the Supremacy Clause of Article VI) that a federal law supersedes any inconsistent state law or regulation. Cf. abstention.

Answer 65

preemption

Question 66

Stock that gives its holders a preferential claim to dividends and to corporate assets upon liquidation but that usu. carries no voting rights. Cf. common stock.

Answer 66

preferred stock

Question 67

1. Damage or detriment to one’s legal rights or claims. preconceived judgment formed without a factual basis: a strong bias.

Answer 67

prejudice

Question 68

A criminal hearing (usu. conducted by a magistrate) to determine whether there is sufficient evidence to prosecute an accused person. If sufficient evidence exists, the case will be bound over for grand jury review or an information will be filed in the trial court.

Answer 68

preliminary hearing

Question 69

Conscious consideration and planning that precedes some act (esp. the commission of a crime).

Answer 69

premeditation

Question 70

A landowner’s or landholder’s tort liability for conditions or activities on the premises.

Answer 70

premises liability

Question 71

An agreement made before marriage usu. to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse.

Answer 71

prenuptial agreement

Question 72

The greater weight of the evidence: the burden of proof in a civil trial, in which the jury is instructed to find for the party that, on the whole, has the stronger evidence, however slight the edge may be.

Answer 72

preponderance of the evidence

Question 73

The acquisition of an interest (esp. an easement) in real property - hut not full title - by open and continuous possession over a statutory period. Cf. adverse possession.

Answer 73

prescription

Question 74

A factual or legal assumption drawn from the existence of another fact or group of facts: a rule of evidence that calls for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A X shifts the burden of production to the opposing party, who can then attempt to rebut the presumption.

Answer 74

presumption

Question 75

The fundamental criminal-law principle that a person may not be convicted of a crime unless the prosecution proves guilt beyond a reasonable doubt, without any burden placed on the accused to prove innocence.

Answer 75

presumption of innocence

Question 76

[Latin “at first sight”] 1. On first appearance, but subject to further evidence or information. 2. Sufficient to establish a fact or raise a presumption unless disproved or rebutted.

Answer 76

prima facie

Question 77

1. One who authorizes another to act on his or her behalf as an agent. Cf. agent. 2. One who commits or participates in a crime. Cf. accessory. 3. One who has primary responsibility on an obligation, as opposed to a surety or indorser. 4. The corpus of an estate or trust. 5. The amount of a debt, investment, or other fund, not including interest or profits.

Answer 77

principal

Question 78

A governmental restriction on a publication before it is published. Xs violates the First Amendment to the United States Constitution unless the publication is legally obscene or defamatory, or unless it creates a clear and present danger to society.

Answer 78

prior restraint

Question 79

1. A special legal right, exemption, or immunity granted to a person or class of persons. 2. An affirmative defense by which a defendant acknowledges at least part of the conduct complained of but asserts that the defendant’s conduct was authorized or sanctioned by law; esp., in tort law, a circumstance justifying or excusing an intentional tort. Cf. immunity. 3. In the law of evidence, the right to prevent disclosure of certain information in court, esp. when the information was originally communicated in a professional or confidential relationship.

Answer 79

privilege

Question 80

The relationship between two contracting parties; each having a legally recognised interest in the subject matter of the contract; mutuality of interest.

Answer 80

privity

Question 81

A presumption that cannot be overcome by any additional evidence or argument.

Answer 81

irrebuttable presumption