Untitled 1 Flashcards
Abatement
process of selling estate property to pay debts.
Abatement of Rent
a deduction from the rent owed for the diminishment in value of premises caused by lack of maintenance.
Abstract of Title
chronological summary of all official records and recorded documents affecting the title of a parcel of land.
Accord and Satisfaction
the payment of money, or other valuable consideration (usually less than the amount owed), in exchange for extinguishment of a debt. There must be an express or implied agreement that accepting the smaller sum discharges the obligation to pay the larger sum.
Acquittal
the legal certification that an accused person is not guilty of the charged offense.
Actual Notice
direct knowledge a person has about the ownership and condition of title of real property.
Actus Reus
Latin Term: “guilty act.” The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability.
Administrative Authority
rules, regulations and decisions enacted by federal, state and local agencies; also includes executive orders of the President/Governor.
Administrator (male)/Administratrix (female)
personal representative appointed by the court when there is no valid will.
Advance Directive
document that expresses the health care wishes of the signor.
Advance Sheet
contains recent cases or statutes enacted or decided after the hardbound volume was published. The documents in the advance sheets will be included in the next hardbound volume of the published set.
Adverse Possession
acquiring title through taking possession of land that belongs to another without the owner’s consent and retaining possession for a statutory period time. Adverse possession must be: (i) hostile, meaning it must be without the owner’s consent; (ii) actual, meaning there must be physical dominion and control exerted over the property; (iii) open and notorious, meaning anyone would be able to determine that possession was taking place through inspection of the property; (iv) continuous possession for the entire statutory period; and (v) exclusive, meaning that the adverse possessor cannot share use of the land in question without its title owner.
Affidavit
a sworn statement in writing, made under oath.
Affirmative Defense (civil)
a fact raised by the defendant that constitutes a defense to the complaint.
Affirmative Defense (criminal)
a set of facts which tend to excuse the defendant from the crime with which they have been charged.
Alimony
an award of money given from one spouse to the other. Duration of alimony can be for a very specific time period and will automatically terminate upon a specific date, or it may be unlimited, terminating only upon the death of the payor spouse or the payee spouse. Alimony is also known to as “Separate Maintenance” and/or “Spousal Support”. It is important to note that, in some jurisdictions, spousal support and alimony are different. See Spousal Support.
Alimony Pendente Lite (APL)
an award of money given from one spouse to the other prior to entry of a final decree; more literally, pending the litigation.
American Law Reports (ALR)
published in a series; a secondary legal authority that publishes selected cases followed by extensive articles (a/k/a annotations) which discusses the issues raised.
Ancestor
relative of a previous generation.
Ancillary Administration
estate administration established in a state where property is located outside of the domiciliary state.
Annulment
the act of making something void and wiping it out completely.
Anticipatory Repudiation
occurs when one party positively states that they will not substantially perform a contract.
Appeal
to ask a court of appellate jurisdiction to review the decision of the lower court on the basis that the lower court made an error of law.
Appellant
the party who asks the higher court to review the lower/trial court’s decision.
Appellate Court
a court with jurisdiction to review decisions of a lower/trial courts or administrative agencies.
Appellee
a party against whom an appeal is taken and whose role is to respond to, or defend, that appeal.
Arraignment
the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and enter a plea.
Arrest
the taking or keeping of a person in custody by legal authority in response to a criminal charge.
Articles of Incorporation
the governing document of the corporation, which must be filed with the Secretary of State in the state of incorporation.
Articles of Limited Liability Partnership
public document that must be filed with the Secretary of State in order to form this type of partnership.
Assumption of the Risk
a defense used when it is alleged that the plaintiff assumed a risk knowingly and willingly of the possibility of harm.
Attestation
clause signed by witnesses to a will.
Attorney-Client Privilege
a privilege protecting communications between a client and his/her lawyer.
Bankruptcy Court
a U.S. District court subunit comprised of bankruptcy judges within the district and exclusively concerned with administering bankruptcy proceedings.
Bargain and Sale Deed
a deed that conveys property to a buyer for valuable consideration but that lacks any guarantee from the seller about the validity of the title.
Bates Numbering
a universal system for identifying documents in litigation.
Bench Trial (civil)
a trial before a judge without a jury. The judge decides questions of fact as well as questions of law.
Bench Trial (criminal)
a trial before a judge without a jury. The defendant must waive his/her right to a jury trial to allow the judge to decide all questions of fact as well as questions of law.
Beneficiary
recipient of personal property under a will or the older of the equitable title under a trust.
Bequest
gift of personal property under a will, such as artwork or money; interchangeable with “legacy”.
Bifurcate
separating issues while in a dissolution action. A proceeding commonly used to obtain a termination of marital status while still resolving issues related to division of property, support, custody and visitation. The court will retain jurisdiction to hear the remaining issues.
Bifurcated Trial
the dividing of the proceeding into two phases; the guilt phase and the punishment phase.
Bill
a draft of a law presented to a legislature for enactment.
Blog
a website that contains an online personal journal with reflections and comments by the writer.
Board of Directors
individuals elected by the shareholders who are responsible for formulating policy and deciding the business activities in which the corporation should be engaged. The Board of Directors elects the officers of the corporation and also determines the capital structure, the sale of stock, payment of dividends and other business matters.
Bond (civil)
an interest-bearing document giving evidence of a debt issued by a government body or corporation that is sometimes secured by a lien on property and is often designed to take care of a particular financial need.
Bond (criminal)
money held by the court when given by a criminal defendant or by his/her surety to ensure compliance with the terms of bail and especially with the requirement that the defendant appears in court as scheduled.
Boolean Search
search queries in online databases that allow the user to combine words and phrases with a series of operators to limit or define search parameters. Boolean operators and connector words like “and”, “or” and “not”.
Burden of Proof
the duty to prove a disputed assertion or charge.
Business Judgement Rule
legal principle stating that corporate officers and directors are not liable for honest mistakes of business judgement when acting in good faith.
Bylaws
set of rules adopted by the board of directors which set forth the manner in which the business and affairs of the corporation will be managed.
Canons of Professional Ethics
standards promulgated by the ABA regulating the conduct of lawyers.
Case Law
the law to be found in a collection of reported cases that form all or part of the body of law within a given jurisdiction.
Causation
the act by which an effort is produced; one of four elements to be proven in a successful tort claim.
Cause-In-Fact
an action by the tortfeasor that resulted in an invasion of some legally protected interest of another to which the tortfeasor is held responsible for the harm caused.
Certification
a voluntary form of regulation.
Chain of Title
the succession of title ownership to real property from the present owner back to the original owner.
Challenge for Cause
a party’s challenge during voir dire, supported by a specific reason, such as bias or prejudice, which would disqualify that potential juror.
Charging Document
a document in a criminal case that formally accuses a person of committing a crime, a/k/a indictment.
Child Support
payment made by the non-custodial parent to the custodial parent for the necessities of life (shelter, food, clothing, medical, etc.) for the benefit of the minor child(ren).
Citation
(1) an official summons to appear in court; (2) reference to (citing) a statute, precedent-setting case or legal textbook; (3) section of a statute or name of the case, as well as the volume number, the report series and the page number of a case referred to in a brief, points and authorities, or other legal argument.
Claw Back
a buffer for an attorney who realizes only after production that he/she has not adequately redacted the privileged or trial-preparation materials; the claw back provision of Fed. R. Civ. P. 26(b)(5) allows that attorney to request that the information be returned immediately, which Fed. R. Civ. P. 16(b) permits parties to create their own agreement for asserting claims of attorney-client privilege or protection of trial preparation materials after accidental production.
Clear and Convincing Evidence
the second highest degree of proof used in administrative cases, civil cases and preliminary criminal hearings.
Closely Held Corporation
a privately held corporation whose stock is not traded on the national stock exchanges.
Closing Argument
a prosecutor’s/defense lawyer’s final statement to the judge or jury before deliberation begins, at which time the prosecutor requests the judge or jury to consider the evidence and render a verdict of “guilty;” and, at which time the defense lawyer requests the judge or jury to consider the evidence and apply the law in his/her client’s favor.
Cloud on Title
a defect or potential defect in the owner’s title to a piece of land arising from some claim or encumbrance, such as a lien, an easement or a court order.
Codicil
a legal instrument that modifies an earlier will.
Collaborative Law
a form of alternative dispute resolution. The parties and attorneys work together in a determined spirit of cooperation to settle their dispute.
Collateral Relative
non-lineal blood relation.
Commingling
mixing of monies which should be separated.
Common Law
a body of law that developed over time in England which resulted from judicial precedent and decisions. In America, common law refers to the body of case law developed by jurists through the history of the country.
Community Property
property owned in common by husband and wife as a result of its having been acquired during the marriage by means other than an inheritance or a gift to one spouse, each spouse holding a one-half interest in the property.
Comparative Negligence
an alternative defense to contributory negligence theory which allows the liability of the defendant to be adjusted or reduced by the percentage of plaintiff’s contribution to his/her own injuries.
Compensatory Damages
money awarded to compensate the victim for the tortfeasor’s negligence.
Complaint
a formal legal document that sets out the facts and legal reasons that the plaintiff believes support a claim against the defendant entitling the plaintiff to a legal remedy.
Concurring Opinion
an opinion written by less than a majority of the judges on the court that agrees with the result reached by the majority, but not with all of its reasoning.
Conflict of Interest
representing more than one party in a matter when the parties have adverse interest.
Consanguinity
relationship determined by blood ties.
Consequential Damages
a legal term referring to an injury or loss that is sustained by someone as an indirect result of another person’s action.
Construction Lien (or mechanic’s lien)
allows certain persons and entities who provide labor or materials for the improvement of real property and who are not paid the statutory right to place a claim of lien on and ultimately foreclose on specific real property and any improvements thereon.
Constructive Notice
such notice as is implied or imputed by law, as in the case of notice documents that have been recorded in the appropriate registry of deeds.
Constructive Trust
implied trust used to right a wrong.
Contributory Negligence
a defense to negligence claiming a plaintiff’s own actions contributed to the injuries.
Conventional Loan
a loan made by a private lender in which the lender usually does not have any insurance or guarantee from a third party, such as a government agency backing the loan should the borrower fail to meet his/her obligations.
Conversion
stealing; unauthorized organization formed by individuals to market products.
Cooperative
not-for-profit organization formed by individuals to market products.
Corporate Opportunity Doctrine
Principle established by case law that says corporate officers, directors and agents cannot take personal advantage of an opportunity that in all fairness should have belonged to the corporation.
Corporation
a business entity, authorized by state law, that is formed and authorized to act as a single person and to raise capital by issuing stock to investors who are the owners of the corporation.
Corpus
trust property.
Court of Appeals
the court that hears the facts of a case by written argument, and possibly oral argument, which have already been argued at trial if that case on the district court level is not favorable to one part or the other.
Cross-Examination
the examination of a witness who has already testified in order to check or discredit the witness’s testimony, knowledge or credibility.
Curtesy
in common law, a husband’s right, upon his wife’s death, to a life estate in the land that his wife owned during their marriage, assuming that a child was born alive to the couple. The right has been largely abolished, although the term is still included in certain forms/agreements.
Decedent
a deceased person.
Declaration of Trust
instrument creating an inter vivos trust.
Deed
a formal written instrument that conveys title to real property from one party to another.
Deed of Trust
a deed conveying title to real property to a trustee as security until the grantor repays a loan.
Default
the failure to do something required by law.
Default Judgment
a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.
Defendant
the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution.
Degrees of Separation
number of generations a person is removed from the decedent.
Deliberation
the process by which jurors weigh the evidence and facts of the case in order to reach a verdict.
Deposition
the taking of out-of-court oral testimony of a witness under oath before a court reporter that is typically transcribed into a written transcript for later use in court or for discovery purposes.
Devise
testamentary gift of real property.
Dictum
statement, remark or observation included in case opinions not necessary for the decision of the matter. Dicta are not binding on the court.
Digest
paragraph summaries of legal issues in cases in a particular jurisdiction. These summaries are organized by topic and key number and are published by Thomas West.
Direct Examination
the first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify.
Discovery
efforts of a party in a lawsuit through his/her/its attorneys to obtain information before trial through interrogatories, requests for production, requests for admission and depositions of parties and potential witnesses.
Dissenting Opinion
an opinion by one or more judges who disagree with the decision reached by the majority.
Dissolution of Marriage
the act of formally terminating or dissolving the marriage and returning the parties to the status of unmarried persons.
Distributee
intestate inheritor of personal property.
Diversity Jurisdiction
the jurisdiction granted to federal courts over civil disputes involving parties having diverse citizenship (as in being from different states) where the matter in controversy exceeds a statutory amount.
Docket Number
a unique number assigned to each case (a/k/a case number) filed in the court by the court clerk.
Doctrine of Laches
a legal right or claim may be barred from court if an unreasonable lapse of time in asserting that right or claim has prejudiced the adverse party, resulting in permanent damage to the adverse party’s ability to defend him/herself.
Donee
recipient of a gift.
Dower
in common law, the right of a wife, upon her husband’s death, to a life estate in one-third of the land that he owned in fee.
Due Care
proper and sufficient care as far as circumstances demand it; the absence of negligence.
Due Process
guarantees that an accused shall receive a fair trial and shall not be deprived of life, liberty or property.
Duress
a wrongful act or threat by one person that compels another person to perform some act, such as sign a contract, which he/she would not have performed voluntarily. As a result, there is no true meeting of minds of the parties and, therefore, there is no legally enforceable contract. Blackmail, threats of physical violence or threats to institute legal proceedings in an abusive manner can constitute duress.
Duty of Care
the responsibility of corporate directors and officers to use care and diligence when acting on behalf of the corporation.
Easement
an interest in land owned by another person, consisting of the right to use or control the land, including the area above or below it, for a specific limited purpose.
Electronic Discovery
a/k/a e-discovery/eDiscovery; the compiling, storing and securing of digital information, such as email, text messages and other electronic files and data.
Electronically Stores Information (ESI)
information created, manipulated, communicated, stored and best utilized in digital form, requiring the use of computer hardware and software.
Eminent Domain
the legal power to expropriate private land for the sake of public necessity.
Encroachment
an infringement of another’s rights or intrusion on another’s property.
Equitable Distribution/Division
marital property is distributed fairly and not necessarily as an equal division of property.
Equitable Title
title giving the beneficiary the right to enjuoy trust property subject to limitations imposed by the trustor.
Escheat
the right of the state to take title to property after the death of a decedent if it appears certain that there are no heirs, descendants or named beneficiaries to take the property upon the death of the last known owner.
Escrow Account
a bank account held by a third party to be turned over only upon the fulfillment of some condition or by agreement of both parties.
Estate
interest in land; also, property of the decedant.
Estate Administration
process of collecting assets, paying debts, and distribution of a person’s property after his/her death.
Ethics
principles of conduct governing an individual or group.
Evidence
something that tends to prove or disprove the existence of an alleged fact. Evidence can be testimony, documents and tangible objects.
Ex Parte
Latin term: “without the party.” Generally, communication made to the court by one party, in the absence of the other party, which is generally forbidden.
Exculpatory Clauses
a contractual clause that releases one party from liability in case of wrongdoing by the other party involved.
Executive Order
an order issued by the President or Governor to direct action of government agencies.
Executor (male)/Executrix (female)
personal representative named in a will.
Exhibit
a document, record or other tangible object formally introduced as evidence in court.
Expert Witness
a witness qualified by knowledge, skill, experience, training or education to provide a scientific, technical or other specialized opinion about the evidence or an issue of fact.
Express Condition
a condition that is clearly stated in the language of the contract that defines a particular circumstance that either creates or removes an obligation for one or more of the contracting parties.
Fact Finder
generally, another term for juror. Fact finders hear testimony and review evidence to issue a decision/render a verdict on the collective factual issues/ the defendant’s guilt or innocence.
Fact Witness
also known as a lay witness. Restricted to giving an opinion or making an inference that is based on first-hand knowledge and is helpful in clarifying the testimony or in determining the facts.
Federal Courts
a court having federal jurisdiction, incluing the U.S. Supreme Court, circuit courts of appeals, district courts, bankruptcy courts and tax courts.
Federalism
the division of powers between the branches of federal and state governments.
Felony
a serious crime potentially punishable, under federal law, by imprisonment for more than one year or death.
Ficticious Name
the operating name of a company, or the d/b/a (doing business as) name, as opposed to the legal name of the company. In case of a corporation, a ficticious business name is any name other than the corporate name stated in the articles of incorporation.
Fiduciary
trustee; a person held to a standard of care higher than ordinary care.
Fixture
personal property that is attached to land or a building, and that is regarded as an irremovable part of the real property, such as a built-in fireplace.
Force Majeure
a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime or event described by the legal term “act of God” (such as flooding, an earthquake, or a volcanic eruption), preventing one or both parties from fulfilling their obligations under the contract.
Foreclosure
the forced sale of real estate to pay off a loan on which the owner of the property has defaulted.
Foreign Corporation
a corporation incorporated in one state, but doing business in other states or jurisdictions.
Foreperson
the juror who chairs the jury during deliberations and speaks for the jury in court by announcing the verdict.
Foreseeability
the action by which, under particular circumstances, would produce an anticipated result such as an injury to someone.
Form 706
federal estate tax return.
Franchise
a party that owns a trade name or trademark (the franchisor) may contract with a party that wishes to sell, distribute or provide services and/or products using the trade name or mark (franchisee).
Freelance Paralegal
a paralegal who does contract work for lawyers.
General Lien
a lien that is not secured by any particular parcel of real property and, therefore, may affect all nonexempt property of a debtor. An example of a general lien is a lien for federal estate taxes. If these taxes are not paid, the United States government may go after any nonexempt property of the decedent’s estate, as full of partial satisfaction of the debt.
General Partnership
partnership in which management responsibilities and profits are equally divided among the partners; all partners have unlimited personal liability for the partnership’s debts.
General Warranty Deed
a type of deed by which the grantor states that he/she has valid title and will defend that title against any defect arising from the actions of the grantor or those of the grantor’s predecessors. A general warranty deed provides the geatest degree of protection for the grantee.
Gift
transfer of property without consideration.
Grand Jury
a body of people (usually 16 to 23) who are chosen to sit for extended periods of time and who, in ex parte proceedings, decide whether to issue indictments in criminal cases.
Grantee
the person to whom the real property is to be conveyed.
Grantor
the person or entity that transfers ownership of the real property.
Gross Negligence
a higher degree of disregard, inadvertence and indifference to a legal duty and the consequences of ignoring the legal duty.
Guardian Ad Litem
competent adult appointed by a court to represent an incapacitated person during litigation.
Guardian of the Estate
person appointed and legally authorized to manage the property of an incapacitated person.
Guardian of the Person
person legally authorized to manage the personal, non-financial affairs of an incapacitated person.
