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Legal Glossary N – S
This glossary does not substitute for a good legal dictionary. We provide it solely to assist you in reading some of our blog posts and in listening to our shows.
Negligence is not exactly synonymous with neglect. Although that’s how we use it in non-legal speech. Rather, in the law, negligence refers to a failure to exert a certain degree of care. And usually the rule encompasses a reasonable person (formerly, ‘reasonable man’) test. E. g. is it reasonable to assume that a driver will service his or her car at least once per year? Yes, probably, particularly in light of annual inspection requirements. However, is it reasonable to assume a driver will take his car for service once per week? Probably not.
Most noteworthy, states vary in terms of how they consider plaintiff’s own negligence in a case. E. g. if plaintiff pedestrian is struck by defendant driver, who is at fault if plaintiff was jaywalking? Some states consider it contributory negligence, and won’t award a dime. While others call it comparative negligence, and see it in terms of a percentage or sliding scale. Yet others embrace a hybrid approach, whereby up to a certain percentage (usually 49%), the finding is comparative, but if the plaintiff tips into 50% or more fault, then contributory negligence kicks in. And then no money is awarded. See: negligence.
The Ninth Amendment to the United States Constitution states, in its entirety:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
See: Ninth Amendment.
This term crops up in a lot of different contexts. However, the main idea says that blame does not have to be proved in order to allow for a recovery. Hence, it’s sort of like strict liability, e. g. we don’t care why or how your car was damaged; we just pay the damages on it. See: no-fault insurance, no-fault law.
One of my favorite legal terms. And it just means ‘nearly worthless’. It’s pronounced like a cross between creamy nougat and Tori Spelling (or Amos, if you prefer). Furthermore, it more or less rhymes with purgatory and mandatory. Use it today! Nugatory, nugatory, nugatory … see, it’s fun! See: nugatory.
Of course in common speech we use this term as more or less a synonym for the word pest. In the law, a nuisance divides into private (your neighbor runs his weed whacker at four in the morning) and public (the factory down the street converts from a more or less smell-free automobile manufacturing plant to a paper mill. If you’ve ever smelled a paper mill, you know what I mean). Nuisances tend to have a real property damage/devaluation component to them, although not always. See: civil nuisance.
Time to lay some Latin on you, yo’.
This is a term which means ‘said in passing’ (dicta is just the plural of dictum). This is all the extra stuff which judges stuff into legal opinions. Beyond the ruling, the facts of the case, the citations and anything which directly relates to the judge’s findings, they often add extra verbiage. Sometimes that ends up being cited in later cases. Even lawyers and judges can and do sometimes blur the lines between dicta and holding. See: obiter dictum.
Courtroom dramas use this word All. The. Time. Objections don’t happen in court (or at deposition) just because lawyers feel like disrupting the process (although that is a side effect). In an examination before trial in New York state, parties generally stipulate to only allow objections as to relevancy. Therefore, this preserves any other objections for motion practice and/or trial. If an objection at trial is improperly sustained or denied, such can be the subject of an appeal. See: objection.
Parol is not the same as parole (although the two words are pronounced the same)! Instead, it’s really just verbal testimony offered in court. See: parol evidence.
Parole is early discharge, sometimes as a reward for better behavior and sometimes just due to prison overcrowding. See: parole.
A perpetrator is a person who actually commits a crime, as opposed to a suspect, who is alleged to have committed a crime. See: perpetrator.
Plea Agreement (Plea Bargain)
The criminal analogy to settlement is a plea agreement (colloquially known as a plea bargain), whereby the defendant generally agrees to a lesser sentence in exchange for not going to trial. Because trials are risky, lengthy, and expensive, it is usually to everyone’s advantage to seek a plea agreement. About 93 – 97% of all criminal cases end in plea bargains. See: plea agreement.
While we generally use the terms jail and prison interchangeably, the word prison is more likely to refer to a larger and more impregnable structure where more serious criminals serve their sentences. See: prison.
Pro Bono Publico
Often just referred to as pro bono, pro bono publico is lower-cost/free legal services. In general, only a lawyer’s billable hours are provided for free. But court costs remain the client’s responsibility. Many jurisdictions now require a certain number or percentage of annual pro bono hours for lawyers to retain their licenses and remain in good standing. See: pro bono publico, pro bono.
Pro Hac Vice
Pro hac vice (pronounced like pro hock vee-chay) means ‘for one time’ or ‘for one purpose’. When a lawyer admitted to practice in one state is hired to work in another, that lawyer can petition for admission pro hac vice, and be considered to be admitted for the sole purpose of litigating the one case. Pro hac vice admission lasts for the duration of that case and only needs to re-moved (e. g. the motion would have to be made again) if the lawyer takes another case in that same jurisdiction.
If a lawyer routinely takes cases in another jurisdiction, often a better way to handle things is to seek admission to practice in that jurisdiction. Depending upon the jurisdiction, and how long the attorney has been admitted to practice, this might involve a petition and the payment of a fee, or it could involve taking continuing legal education classes or making up for mandatory pro bono hours. It could even involve taking the entire Bar Examination again. See: pro hac vice.
In Federal law, only certain groups can claim certain protections. Probably the easiest way to show this is via the Equal Employment Opportunity Commission (EEOC). They list the following protected classes:
- Age (over 40)
- National Origin
Note that, as of the writing of this glossary (2016), sexual orientation and gender identity are currently not protected classes.
See: EEOC website.
Quash means to nullify or void something. See: quash.
Unlike a contract, a quasi contract is close. The parties’ behavior (and possibly payments) can create an obligation even if there is nothing formally in writing. It can be enforceable, even though it’s not 100% ‘official’. See: quasi-contract.
Rainmaking is the act of bringing in clients. Except (maybe) for managing partners (or law firms with built-in in-house counsel agreements), all partners and wannabe partners have to do this. Generally, this means networking, schmoozing and handing out a ton of business cards and giving free seminars. See: rainmaking.
Ratification is really just another word for confirmation. See: ratification.
Res Ipsa Loquitur
Oh, Latin! Yay! Res ipsa loquitur (pronounced: Ray’s Ipsah Low-quih-tour) means ‘the thing speaks for itself’. Much like strict liability, it takes the fault out a claim. Or at least it makes it so the plaintiff doesn’t have to prove fault (although multiple defendants will probably duke it out amongst themselves).
For example, if I wake up from surgery with a sponge in my abdomen, it doesn’t matter to me who did it. Fault is fault (and it’s not mine!) whether that was due to the negligence of the surgeon, a surgical nurse, the anesthesiologist, any interns or residents who may have been assisting, any spectators, or even some weird passerby who came in, tossed a surgical sponge into my guts and then fled (probably while cackling maniacally). Of course the defendants will all point fingers at each other and testimony will be taken on things like how much assistance the intern gave, or when the resident was in the operating room, or even how securely the doors were closed. But that’s not my, the plaintiff’s headache; it’s defense’s. See: res ispa loquitur.
Rescission, a term used in contract law, really just means cancellation. See: rescission.
This is another term we have all heard on courtroom dramas and other law-related television shows. Based on old equitable remedies, a restraining order (which can be either temporary or permanent) is just an order requiring the subject to do or not do something or other. See: restraining order.
Rule Against Perpetuities
This one exists in here more for my own amusement than any other reason. Because I doubt you would see it unless you do something with real property (real estate) or you attend law school or paralegal school.
In addition, this rule dates back to the 1600s. It just means: if an estate (not necessarily upon someone’s death, by the way) is to be left to you, it must transfer to you within 21 years. The actual wording refers to a ‘life in being’ (e. g. someone alive) plus 21 years. Hence the gist of it makes it so you can’t control your property forever and ever after your death. And it is easily one of the most complicated and arcane extant rules which law students have to memorize. And, yes, I saw it on the Bar Exam. See: Rule Against Perpetuities.
Scènes à Faire
In copyright, scènes à faire constitute the kinds of standard trope-like scenes found in certain genres, e. g. a kiss in a romance. Hence by definition these common scenes do not fall under copyright.
See: scènes à faire.
The Second Amendment to the United States Constitution states, in its entirety:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
See: Second Amendment.
So as a part of a bankruptcy settlement, the bankruptcy judge orders payment (often partial payment) of the bankrupt person’s debts. And secured creditors have more backing to their claims of monies owed. So therefore they get priority. See: secured.
While the term can be used in the law for other things, settlement usually refers to a non-verdict ending of a case. And settlements can occur at any time, even after verdict. If, say, a verdict mandates payments over time but the parties would prefer to get it out of the way faster, in exchange for smaller payments or for a specific performance. Furthermore, settlements are extremely common; it is estimated that a good 95% of all cases are settled. See: settlement.
The Seventh Amendment to the United States Constitution states, in its entirety:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
See: Seventh Amendment.
The Sixth Amendment to the United States Constitution states, in its entirety:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
See: Sixth Amendment.
A subset is slander per se (although defeated if the truth). The difference means certain untruths are considered so malicious that they are slanderous without requiring proof of special damages. Usually this involves allegations of someone contracting a venereal disease, or of being unethical or incompetent within their chosen profession. It used to also refer to aspersions cast on female (never male!) chastity. See: slander per se.
The Socratic Method is a question and answer style of teaching whereby a professor will ask a question and then demand a student respond. In addition, it can be rather stressful. See: Socratic Method.
SODDI Defense (Mistaken Identity)
This is another favorite term. SODDI (pronounced like so, die!) is an acronym meaning “some other dude did it”. See: mistaken identity.
This is another equitable remedy, whereby the court orders a contract be performed to the letter. See: specific performance.
We often use this term (in common, ordinary speech) as a synonym for a condition or a limitation. However, the law uses the term differently. Because in the law, a stipulation is an agreement, formal or informal, often having to do with practice and deadlines. E. g. the parties might stipulate that the defense has an extra week to answer the complaint, or that any deposition questions having to do with trade secrets be agreed upon in advance. See: stipulation.
Strict liability takes the fault out of a negligence claim. E. g. if a falling piano strikes a pedestrian, it kind of doesn’t matter why the piano fell. It only matters that it did. See: strict liability.
Subpoena Duces Tecum
A subpoena duces tecum (pronounced suh-pee-nuh deuces take-’em) is a subpoena to present articles. In addition, these often mean documents such as tax returns, check stubs, letters and the like. However, they can also encompass x-rays or even samples of allegedly defective products. See: Subpoena Duces Tecum.
Subpoena to Appear
It consists of a subpoena to appear, either in court or for a deposition. Anyone can appear at court without a subpoena; you don’t need one. However, employers may want to see one, and certainly adverse witnesses won’t volunteer to just show up.
Furthermore, a subpoena can be served on a person out of state or out of the country. However, it is harder to get them to abide by it. Not impossible, but it can often present a cost-benefit analysis for the person being subpoenaed. Because if you are from New Zealand and never anticipate returning to the United States, and the matter is a simple automobile accident with no injuries, you just might not want to bother (but good luck returning to the States later). See: subpoena.
Summary judgment occurs when you successfully move (e. g. make a motion) to have a case adjudicated on the law. Most noteworthy, the facts, with anything ambiguous being construed as against you (the movant), are immaterial and so you win the case. Also called an accelerated judgment. See: summary judgment.
Supra just means ‘above’ and references anything already stated in any sort of document. See: supra.
Both a noun and a verb, a suspect (the noun) means someone thought to have committed a crime but the matter is not yet proven. And if proven, they become a perpetrator. See: suspect.