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Legal Glossary A – G
Legal Glossary A – G for your information. As always, please tell me about any confusing or missing terms.
First of all, this glossary does not substitute for a good legal dictionary. Furthermore, we provide it solely to assist you in reading some of our blog posts and in listening to our shows.
Usually this refers to a forensic accounting or forensic audit (forensic just means it relates to the law). Checking the books happens for all sorts of reasons, from determining assets in a bankruptcy to determining material benefit in an IP infringement case to figuring out a corporation’s overall worth. See: forensic audit.
A bit like squatting, adverse possession happens when you claim title to land because you’ve been there for a dozen years or more. Furthermore, you can only take possession if the land (which includes the buildings thereupon) for unchallenged claims. See: adverse possession.
Latin for ‘friend of the court’, an amicus brief can be filed by a person or organization with an interest in the case. However, they are not a party. See: amicus curiae.
In civil matters, the losing party can appeal on any question of law. Generally, the theory is that the lower court made some type of error. The appellant makes the appeal. The other side is either the appellee or the respondent. In criminal matters, the accused gets the right of appeal if they lose their case. However, asserting a civil rights violation, if not asserted in the original trial, isn’t really an appeal. See: appeal.
The term confuses because it applies to criminal and civil situations. Complicating matters: in common speech, an assault occurs when you hit someone. However, in the law, in civil cases, assault refers to the almost-hit (the hit is battery) or the almost-touch. See: simple assault. In addition, in criminal assault, injury must have occurred. See: criminal assault.
First of all, bail is essentially cash (or a bond) paid to assure a person’s appearance in court. However, amounts vary. Furthermore, they depend on severity of charges and on whether the accused could be a flight risk. Of course, for the poor, even moderate bail can be too much, and can effectively leave an accused in pretrial detention. See: bail.
It’s not bail! The idea behind it: I loan you my personal property for a time period, often for you to do something with it, and generally under contract. For example, I might loan you my car for the express purpose of driving it across the country for me. However, I am not giving it to you, and I am going to want it back. See: bailment.
In common speech, we use the term as a synonym for insolvency, although that is not exactly what it means in the law. However, in the law, it’s an arrangement whereby a debtor pays a percentage of his or her debts, based upon the results of a bankruptcy proceeding. Furthermore, the remaining assets secured creditors get in line before unsecured creditors. See:bankruptcy.
This term confuses as it applies in both civil and criminal situations. In tort law, assault is almost touching (e. g. your fist almost makes contact with my face) whereas battery requires contact, which need not be harmful. Furthermore, a kiss can technically be civil battery. See: simple battery.
For criminal battery, intent and injury must be shown. See: criminal assault and battery.
Bill of Particulars
More specific than a complaint, a bill of particulars gives more in-depth facts and allegations in a civil or criminal case. In New York, the parties can use interrogatories (a series of questions) or a bill of particulars but not both, and the bill of particulars is a preliminary bit of information generally used in determining what to ask at deposition. See: bill of particulars.
Bill of Rights
In the United States, the first ten amendments to the Constitution include several fundamental rights regarding free speech, the right to trial, the prohibition against cruel and unusual punishments, etc. See: bill of rights.
Just as you would expect, these are simply working hours which an attorney, paralegal, or law clerk can bill to a client or in general to the firm. Sometimes, particularly in the case of more junior personnel, they may need to justify their hours even when doing something more general, such as attending an educational seminar. Some firms bill in tenth of an hour (6 minutes long) increments. Others bill in quarter of an hour increments (15 minutes). Still others might bill on a day or half-day basis (often for standard matters like real estate closings). As a legal auditor, I have found one billable hour often correlates to seventy to eighty minutes of actual time. E. g. technically unbillable activities, such as surfing to the right website or even going to the restroom account for the added time.
American law schools currently use this methodology, whereby professors teach the law using cases as examples. E. g. to teach the development of the right to privacy, a professor might assign Griswold v. Connecticut. See: case method.
Even in legal terminology, this one’s a mess. Generally, it is the non-criminal side of things. However, it also refers to legal systems which do not use the common law as a foundation. The United States and pretty much all former British Empire countries have legal systems based on common law. France and Québec have civil law foundations. So does Louisiana. See: civil law.
Claw Back Provision
A claw back (or clawback) provision term generally references securities instruments. It is essentially used to address future unanticipated issues. The provision can be intended to cover the possible inadvertent release of privileged information. See claw back provision.
Clear and Convincing Proof
The standard in between a preponderance of the evidence and proof beyond a reasonable doubt. Clear and convincing proof is more likely the standard for an in between type of case, such as fraud. See: clear and convincing proof.
Usually seen as being the non-statutory area of the law, and based on English law, common law is almost like common sense/commonly agreed-upon law. If that sounds arbitrary, it kind of is, but it is based on centuries of precedent. See: common law.
As you might expect, consent is essentially saying or writing ‘yes’ although it can be implied. See: consent.
The most important legal document in America dates back to 1789. It covers some of Americans’ most basic rights, such as freedom of religion, the right to vote, and outlawing slavery. See: Constitution.
A contract in its simplest form is an agreement to do/not do something or other, in exchange for consideration. E. g. payment or some other valuable item or service. Furthermore, consideration need not be equivalent to the act being performed. So you don’t stop having a contract just because one of the parties got a good deal (a bargain). See: contract.
Copyright is the granting of ownership rights in intellectual property such as literature and artwork. See: copyright.
Criminal (as opposed to civil) law concerns crimes and their punishments. However, civil law cannot have jail time as a penalty, whereas criminal can. Furthermore, civil law generally penalizes with fines, whereas criminal law commonly does. See: criminal.
Custody is the care and keeping of anything, and that includes children. See: custody.
This is a declaration of the rights of the parties without requiring anything be done. See: declaratory judgment.
Most noteworthy, defamation encompasses injury to one’s reputation. See: defamation.
A demurrer is a part of pleading. Hence it is a means of objecting that a point is irrelevant. And this means even if it is wholly valid. For example, in a contract claim, I might add to the complaint that the defendant is bald. A demurrer is a means of formally saying, “So what?” See: demurrer.
Deposition (Examination Before Trial)
A deposition happens when the parties examine a witness or a party to proceedings. Furthermore, it is conducted under oath. Most jurisdictions call it a deposition. However, New York refers to it as an Examination Before Trial, or EBT.
Witnesses respond to a series of questions from whichever party called or subpoenaed them and then by any other parties. However, you don’t need a subpoena to conduct a deposition. Many people will show up without one, particularly parties to a case. In addition, the main limitation on questions is relevancy. Otherwise, any question passes, including embarrassing ones. While court reporters record depositions, these days, they can also be videotaped. See: deposition.
This term arises in both corporate law and intellectual property matters, and just means that something is secondary or arises from something else. See: derivative.
Dismissal with Prejudice
A case is dismissed but the plaintiff cannot try again. See: dismissal with prejudice.
Dismissal without Prejudice
A case is dismissed but the plaintiff can bring it again (generally with a new complaint). However, this does not constitute a double jeopardy situation. See: dismissal without prejudice.
When parties have connections to more than one state (e. g. you and I get in a car accident and you live in Texas but I live Massachusetts), the case can be brought in Federal Court. However, this only works so long as the amount in controversy exceeds $75,000. In addition, the minimal amount used to be lower. This defines one way to get a case heard in Federal Court. And the other is subject matter jurisdiction, where the case litigates something covered by federal law. See: diversity jurisdiction.
In criminal law, you cannot be tried for the same set fact pattern (offense) twice. See: double jeopardy.
So the Eighth Amendment to the United States Constitution states, in its entirety:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
See: Eighth Amendment.
Equity generally refers to fairness. However, it’s more than that. Older English law, going back to medieval times, had the Court of Common Pleas, the Exchequer, and the Court of the King’s Bench. And unjust results were appealed to the king and, eventually the Lord Chancellor. The Lord Chancellor eventually got his own courts, the Court of Chancery.
In addition, original equitable remedies differed from legal ones. However, they included things we would recognize today. These include injunctions, calls for accounting, specific performance, and declaratory judgment. Bankruptcy is also considered equitable. Most states have merged law and equity. However, some exceptions: Delaware, Mississippi, New Jersey, South Carolina, and Tennessee. Furthermore, Delaware’s Court of Chancery (along with generous tax breaks) attracts many entities to incorporate in the state of Delaware.
Without getting into minutiae, this term appears in both wills and real property matters. And it refers to ownership of an asset. See: estate.
Estoppel serves as a legal impediment. In addition, it can arise from contracts or other acts. See: estoppel.
And exculpatory means anything which helps to excuse or mitigate matters, or even outright excuse a crime. See: exculpatory.
These rushed circumstances can imply major risks to others. Hence exigent circumstances, such as a person in the middle of fleeing the country, often serve to relax some of the stricter requirements for things like search warrants. See: exigent circumstances.
Fair use constitutes a rather complicated term, often in flux. And it references a defense to a copyright infringement allegation. See: fair use.
A felony means a more serious crime. However, the technical definition encompasses a crime whereby the defendant can lose his or her liberty for a year or more. And this means even if the verdict or time served end up as less. See: felony.
Fifth Amendment, Pleading/Taking the Fifth
And the Fifth Amendment to the United States Constitution states, in its entirety:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;
nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just compensation.
See: Fifth Amendment.
The First Amendment to the United States Constitution states, in its entirety:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
See: First Amendment.
A fine means a pecuniary punishment. In addition, fines sometimes encompass a form of criminal punishment. So do not confuse with damages paid in civil verdicts. See: fine.
And the Fourth Amendment to the United States Constitution states, in its entirety:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
See: Fourth Amendment.
Most noteworthy, fraud consists of an intentional deceitful practice. See: fraud.
Similar to civil fraud, fraud can end up as a criminal matter. This happens if it involves governmental matters, such as the United States mail. However, other instances of criminal fraud vary from state to state.
Fruits of the Poisonous Tree
As outlined in the Silverthorne case, this doctrine means evidence obtained due to illegal search and seizure is inadmissible. And it does not matter what it is used for. See: fruits of the poisonous tree.
A grand jury encompasses a group of persons brought together (often for a set period of time, such as a few months) to check on matters presented by the District Attorney’s office. In addition, they determine whether there should be an indictment. However, these days, a prosecutor’s information often replaces them. See: grand jury.
Guardian ad Litem
Finally, a court temporarily hires this person to represent the interests of a disabled, incompetent, or infant party. See: guardian ad litem.