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Legal Glossary (A-B)

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ab initio

Latin for “from the beginning.” This term is used by lawyers intent upon getting their money’s worth from a liberal arts education by uttering such statements as “The judge was against me ab initio.”

AB trust

A trust that allows couples to reduce or avoid estate taxes. Each spouse puts his or her property in an AB trust. When the first spouse dies, his or her half of the property goes to the beneficiaries named in the trust — commonly, the grown children of the couple — with the crucial condition that the surviving spouse has the right to use the property for life and is entitled to any income it generates. The surviving spouse may even be allowed to spend principal in certain circumstances. When the surviving spouse dies, the property passes to the trust beneficiaries. It is not considered part of the second spouse’s estate for estate tax purposes. Using this kind of trust keeps the second spouse’s taxable estate half the size it would be if the property were left directly to the spouse. This type of trust is also known as a bypass or credit shelter trust.

abandonment (of a child)

A parent’s failure to provide any financial assistance to or communicate with his or her child over a period of time. When this happens, a court may deem the child abandoned by that parent and order that person’s parental rights terminated. Abandonment also describes situations in which a child is physically abandoned — for example, left on a doorstep, delivered to a hospital or put in a trash can. Physically abandoned children are usually placed in orphanages and made available for adoption.

abandonment (of a spouse)

See desertion.

abandonment (of trademark)

A situation in which the owner of a trademark or service mark does not use the mark for an extended period of time, fails to protest the unauthorized use of the mark by others or lets others use the mark without adequate supervision. If a trademark is abandoned, the owner loses her exclusive rights to the mark.

abatement

A reduction. After a death, abatement occurs if the deceased person didn’t leave enough property to fulfill all the bequests made in the will and meet other expenses. Gifts left in the will are cut back in order to pay taxes, satisfy debts or take care of other gifts that are given priority under law or by the will itself.

abstract of title

A short history of a piece of land that lists any transfers in ownership, as well as any liabilities attached to it, such as mortgages.

abstract of trust

A condensed version of a living trust document, which leaves out details of what is in the trust and the identity of the beneficiaries. You can show an abstract of trust to a financial organization or other institution to prove that you have established a valid living trust, without revealing specifics that you want to keep private. In some states, this document is called a “certification of trust.”

abuse

Misuse of the Chapter 7 bankruptcy remedy. This term is typically applied to Chapter 7 bankruptcy filings that should have been filed under Chapter 13, because the debtor appears to have enough disposable income to fund a Chapter 13 repayment plan.

accessory

Someone who intentionally helps another person commit a felony by giving advice before the crime or helping to conceal the evidence or the perpetrator. An accessory is usually not physically present during the crime. For example, hiding a robber who is being sought by the police might make you an “accessory after the fact” to a robbery. Compare accomplice.

accompanying relative

An immediate family member of someone who immigrates to the United States. In most cases, a person who is eligible to receive some type of visa or green card can also obtain green cards or similar visas for accompanying relatives. Accompanying relatives include spouses and unmarried children under the age of 21.

accomplice

Someone who helps another person (known as the principal) commit a crime. Unlike an accessory, an accomplice is usually present when the crime is committed. An accomplice is guilty of the same offense and usually receives the same sentence as the principal. For instance, the driver of the getaway car for a burglary is an accomplice and will be guilty of the burglary even though he may not have entered the building.

accord and satisfaction

An agreement to settle a contract dispute by accepting less than what’s due. This procedure is often used by creditors who want to cut their losses by collecting as much money as they can from debtors who cannot pay the full amount.

accumulation trust

A trust in which the income is retained and not paid out to beneficiaries until certain conditions are met. For example, if Uncle Pierre creates a trust for Nick’s benefit but stipulates that Nick will not get a penny until he gets a Ph.D. in French; Nick is the beneficiary of an accumulation trust.

acknowledged father

The biological father of a child born to an unmarried couple who has been established as the father either by his admission or by an agreement between him and the child’s mother. An acknowledged father must pay child support.

acknowledgment

A statement you make in front of a notary public or other person who is authorized to administer oaths stating that a document bearing your signature was actually signed by you.

acquittal

A decision by a judge or jury that a defendant in a criminal case is not guilty of a crime. An acquittal is not a finding of innocence; it is simply a conclusion that the prosecution has not proved its case beyond a reasonable doubt.

act of God

An extraordinary and unexpected natural event, such as a hurricane, tornado, earthquake or even the sudden death of a person. An act of God may be a defense against liability for injuries or damages. Under the law of contracts, an act of God often serves as a valid excuse if one of the parties to the contract is unable to fulfill his or her duties — for instance, completing a construction project on time.

act of nature

See act of God.

action

Another term for a lawsuit. For example, a plaintiff might say, “I began this negligence action last fall after the defendant, Ms. Adams, struck me while I was crossing the street at Elm and Main.”

actual damages

See damages.

actus reus

Latin for a “guilty act.” The actus reus is the act which, in combination with a certain mental state, such as intent or recklessness, constitutes a crime. For example, the crime of theft requires physically taking something (the actus reus) coupled with the intent to permanently deprive the owner of the object (the mental state, or mens rea).

ADA

See Americans With Disabilities Act.

ADEA

See Age Discrimination in Employment Act.

ademption

The failure of a bequest of property in a will. The gift fails (is “adeemed”) because the person who made the will no longer owns the property when he or she dies. Often this happens because the property has been sold, destroyed or given away to someone other than the beneficiary named in the will. A bequest may also be adeemed when the will maker, while still living, gives the property to the intended beneficiary (called “ademption by satisfaction”). When a bequest is adeemed, the beneficiary named in the will is out of luck; he or she doesn’t get cash or a different item of property to replace the one that was described in the will. For example, Mark writes in his will, “I leave to Rob the family vehicle,” but then trades in his car in for a jet ski. When Mark dies, Rob will receive nothing. Frustrated beneficiaries may challenge an ademption in court, especially if the property was not clearly identified in the first place.

adjustable rate mortgage (ARM)

A mortgage loan with an interest rate that fluctuates in accordance with a designated market indicator — such as the weekly average of one-year U.S. Treasury Bills — over the life of the loan. To avoid constant and drastic fluctuations, ARMs typically limit how often and by how much the interest rate can vary.

administration (of an estate)

The court-supervised distribution of the probate estate of a deceased person. If there is a will that names an executor, that person manages the distribution. If not, the court appoints someone, who is generally known as the administrator. In some states, the person is called the “personal representative” in either instance.

administrative expenses

The trustee’s fee, the debtor’s attorney fees, and other costs of bringing a bankruptcy case that a debtor must pay in full in a Chapter 13 repayment plan. Administrative costs are typically 10% of the debtor’s total payments under the plan.

administrator

A person appointed by a probate court to handle the distribution of property of someone who has died without a will, or with a will that fails to name someone to carry out this task. administrator ad litem A person appointed by a probate court to represent an estate during a lawsuit. (Ad litem is Latin for “during the litigation.”) An administrator ad litem is appointed only if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests. For example, Jerry’s will leaves most of his property to his brother, Jeff, and also names Jeff as executor of the will. But Jerry’s sister, Janine, feels that Jerry made the will under improper pressure from Jeff, and brings a lawsuit to challenge it. The court appoints an administrator ad litem to represent Jerry’s estate while the lawsuit is in progress. Also known as administrator ad prosequendum, meaning administrator “during the prosecution.” administrator ad prosequendum See administrator ad litem.administrator cum testamento annexo See administrator with will annexed. administrator de bonis non (DBN) Latin for “administrator of goods not administered.” This term refers to the person appointed by a probate court to finish probate proceedings when the executor or previous administrator can’t finish the job.administrator de bonis non cum testamento annexo (DBNCTA) A baffling title for an administrator appointed by a probate court to take over probate proceedings when the named executor dies, leaving the job unfinished.administrator pendente lite Latin for “administrator pending litigation.” This term refers to the person appointed by a court to begin probate proceedings during a lawsuit that challenges the will. The administrator pendente lite takes an inventory of the deceased person’s property and handles the business affairs of the estate until the dispute is settled. Also called a special administrator.administrator with will annexed An administrator who takes the place of an executor under a will. The administrator steps in either when a will fails to nominate an executor or the named executor is unable to serve. Also called administrator cum testamento annexo or CTA, the Latin version of “with the will annexed.”

administratrix

An outdated term for a female administrator — the person appointed by a court to handle probate on behalf of someone who died without a will. Now, whether male or female, this person is called the administrator.

admissible evidence

The evidence that a trial judge or jury may consider, because the rules of evidence deem it reliable. See evidence, inadmissible evidence.

admission

(1) An out-of-court statement by your adversary that you offer into evidence as an exception to hearsay rule. (2) One side’s statement that certain facts are true in response to a request from the other side during discovery.

adopt

(1) To assume the legal relationship of parent to another person’s child. See also adoption. (2) To approve or accept something — for example, a legislative body may adopt a law or an amendment, a government agency may adopt a regulation or a party to a lawsuit may adopt a particular argument.

adopted child

Any person, whether an adult or a minor, who is legally adopted as the child of another in a court proceeding. See adoption.

adoption

A court procedure by which an adult becomes the legal parent of someone who is not his or her biological child. Adoption creates a parent-child relationship recognized for all legal purposes — including child support obligations, inheritance rights and custody.

adoptive parent

A person who completes all the requirements to legally adopt a child who is not his or her biological child. Generally, any single or married adult who is determined to be a “fit parent” may adopt a child. Some states have special requirements, such as age or residency criteria. An adoptive parent has all the responsibilities of a biological parent.

ADR

See alternative dispute resolution.

adult

In most situations, any person 18 years of age or older.

adultery

Consensual sexual relations by a married person with someone other than his or her spouse. In many states, adultery is technically a crime, though people are rarely prosecuted for it. In states that have retained fault grounds for divorce, adultery is always sufficient grounds for a divorce. In addition, some states alter the distribution of property between divorcing spouses in cases of adultery, giving less to the “cheating” spouse.

advance directive

See living will.

adverse possession

A means by which one can legally take another’s property without paying for it. The requirements for adversely possessing property vary between states, but usually include continuous and open use for a period of five or more years and paying taxes on the property in question.

affiant

Someone who signs an affidavit.

affirmative action

Positive or constructive action rather than inaction. Affirmative action programs and regulations attempt to compensate for discriminatory practices that have in the past denied fair consideration to members of minority groups. For example, an all-white government office may take steps to hire people of color. Or, a mostly-male college program may seek to balance its admissions by giving preference to female applicants. Affirmative action programs are controversial in the present political climate — many have recently been eradicated or have come under attack — and the subject is likely to be hotly debated for many years to come.

affirmative defense

An explanation for a defendant’s actions that excuses or justifies his behavior. For example, acting in self-defense is a common affirmative defense to a charge of battery or homicide. Other affirmative defenses include insanity, duress and intoxication.

Age Discrimination in Employment Act (ADEA)

A federal law that prohibits arbitrary discrimination against workers over the age of 40 in any employment decision, especially firing. The ADEA also provides that no worker can be forced to retire.

age of majority

Adulthood in the eyes of the law. After reaching the age of majority, a person is permitted to vote, make a valid will, enter into binding contracts, enlist in the armed forces and purchase alcohol. Also, parents may stop making child support payments when a child reaches the age of majority. In most states the age of majority is 18, but this varies depending on the activity. For example, in some states people are allowed to vote when they reach the age of eighteen, but can’t purchase alcohol until they’re 21.

agent

A person authorized to act for and under the direction of another person when dealing with third parties. The person who appoints an agent is called the principal. An agent can enter into binding agreements on the principal’s behalf and may even create liability for the principal if the agent causes harm while carrying out his or her duties. See also attorney-in-fact.

aggravate

To make more serious or severe.

aggravating circumstances

Circumstances that increase the seriousness or outrageousness of a given crime, and that in turn increase the wrongdoer’s penalty or punishment. For example, the crime of aggravated assault is a physical attack made worse because it is committed with a dangerous weapon, results in severe bodily injury or is made in conjunction with another serious crime. Aggravated assault is usually considered a felony, punishable by a prison sentence.

agreement

A meeting of the minds. An agreement is made when two people reach an understanding about a particular issue, including their obligations, duties and rights. While agreement is sometimes used to mean contract — a legally binding oral or written agreement — it is actually a broader term, including understandings that might not rise to the level of a legally binding contract.

alien registration receipt card (ARC)

The official name used in immigration law for a green card.

alimony

The money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Except in marriages of long duration (ten years or more) or in the case of an ailing spouse, alimony usually lasts for a set period, with the expectation that the recipient spouse will become self-supporting. Alimony is also called “spousal support” or “maintenance.”

allegation

A statement by a party in a pleading describing what that party’s position is and what that party intends to prove.

Allen charge

See dynamite charge.

alternate beneficiary

A person, organization or institution that receives property through a will, trust or insurance policy when the first named beneficiary is unable or refuses to take the property. For example, in his will Jake leaves his collection of sheet music to his daughter, Mia, and names the local symphony as alternate beneficiary. When Jake dies, Mia decides that the symphony can make better use of the sheet music than she can, so she refuses (disclaims) the gift, and the manuscripts pass directly to the symphony. In insurance law, the alternate beneficiary, usually the person who receives the insurance proceeds because the initial or primary beneficiary has died, is called the secondary or contingent beneficiary.

alternative dispute resolution (ADR)

A catchall term that describes a number of methods used to resolve disputes out of court, including negotiation, conciliation, mediation and the many types of arbitration. The common denominator of all ADR methods is that they are faster, less formalistic, cheaper and often less adversarial than a court trial. In recent years the term Alternative Dispute Resolution has begun to lose favor in some circles and ADR has come to mean Appropriate Dispute Resolution. The point of this semantic change is to emphasize that ADR methods stand on their own as effective ways to resolve disputes and should not be seen simply as alternatives to a court action.

Americans With Disabilities Act (ADA)

A federal law that prohibits discrimination against people with physical or mental disabilities in employment, public services and places of public accommodation, such as restaurants, hotels and theaters.

amicus

See amicus curiae.

amicus curiae

Latin for “friend of the court.” This term describes a person or organization that is not a party to a lawsuit as plaintiff or defendant but that has a strong interest in the case and wants to get its two cents in. For example, the ACLU often submits materials to support a person who claims a violation of civil rights even though that person is represented by a lawyer.

ancillary probate

A probate proceeding conducted in a different state from the one the deceased person resided in at the time of death. Usually, ancillary probate proceedings are necessary if the deceased person owned real estate in another state.

annual meeting

A term commonly used to refer to annual meetings of shareholders or directors of a corporation. Shareholders normally meet to elect directors or to consider major structural changes to the corporation, such as amending the articles of incorporation or merging or dissolving the corporation. Directors meet to consider or ratify important business decisions, such as borrowing money, buying real property or hiring key employees.

annuity

A purchased policy that pays a fixed amount of benefits every year — although most annuities actually pay monthly — for the life of the person who is entitled to those benefits. In a simple life annuity, when the person receiving the annuity dies, the benefits stop; there is no final lump sum payment and no provision to pay benefits to a spouse or other survivor. A continuous annuity pays monthly installments for the life of the retired worker, and also provides a smaller continuing annuity for the worker’s spouse or other survivor after the worker’s death. A joint and survivor annuity pays monthly benefits as long as the retired worker is alive, and then continues to pay the worker’s spouse for life.

annulment

A court procedure that dissolves a marriage and treats it as if it never happened. Annulments are rare since the advent of no-fault divorce but may be obtained in most states for one of the following reasons: misrepresentation, concealment (for example, of an addiction or criminal record), misunderstanding and refusal to consummate the marriage.

answer

A defendant’s written response to a plaintiff’s initial court filing (called a complaint or petition). An answer normally denies some or all facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff (called counterclaims). Normally a defendant has 30 days in which to file an answer after being served with the plaintiff’s complaint. In some courts, an answer is simply called a “response.”

anticipation

In patent law, a situation in which an invention is “anticipated” by being too similar to an earlier invention to be considered novel. Because novelty is a requirement for a patent, anticipated inventions are not patentable. Anticipation can occur when a prior invention or printed publication matches all of the primary characteristics of the invention, or it can happen when the invention is displayed or offered for sale more than a year prior to filing a patent application. For example, a bird owner invents a device to keep her bird from picking at its tail feathers. She applies for a patent, but her application is rejected on the ground that the same device was in use 3500 years ago in Egypt. In patent-speak, the inventor’s creation has been anticipated by previous developments (the prior art.)

appeal

A written request to a higher court to modify or reverse the judgment of a trial court or intermediate level appellate court. Normally, an appellate court accepts as true all the facts that the trial judge or jury found to be true, and decides only whether the judge made mistakes in understanding and applying the law. If the appellate court decides that a mistake was made that changed the outcome, it will direct the lower court to conduct a new trial, but often the mistakes are deemed “harmless” and the judgment is left alone. Some mistakes are corrected by the appellate court — such as a miscalculation of money damages — without sending the case back to the trial court. An appeal begins when the loser at trial — or in an intermediate level appellate court — files a notice of appeal, which must be done within strict time limits (often 30 days from the date of judgment). The loser (called the appellant) and the winner (called the appellee) submit written arguments (called briefs) and often make oral arguments explaining why the lower court’s decision should be upheld or overturned.

appellant

A party to a lawsuit who appeals a losing decision to a higher court in an effort to have it modified or reversed.

appellate court

A higher court that reviews the decision of a lower court when a losing party files for an appeal.

appellee

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 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.

appraisal

A determination of the value of something, such as a house, jewelry or stock. A professional appraiser — a qualified, disinterested expert — makes an estimate by examining the property, and looking at the initial purchase price and comparing it with recent sales of similar property. Courts commonly order appraisals in probate, condemnation, bankruptcy or foreclosure proceedings in order to determine the fair market value of property. Banks and real estate companies use appraisals to ascertain the worth of real estate for lending purposes. And insurance companies require appraisals to determine the amount of damage done to covered property before settling insurance claims.

appraiser

A person who is hired to determine the current value of real estate or other property.

appreciation

An increase in value. Appreciated property is property that has gone up in value since it was acquired.

arbitration

A non-court procedure for resolving disputes using one or more neutral third parties — called the arbitrator or arbitration panel. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts, which usually leads to a faster, less-expensive resolution. There are many types of arbitration in common use: Binding arbitration is similar to a court proceeding in that the arbitrator has the power to impose a decision, although this is sometimes limited by agreement — for example, in “hi-lo arbitration” the parties may agree in advance to a maximum and minimum award. In non-binding arbitration, the arbitrator can recommend but not impose a decision. Many contracts — including those imposed on customers by many financial and healthcare organizations — require mandatory arbitration in the event of a dispute. This may be reasonable when the arbitrator really is neutral, but is justifiably criticized when the large company that writes the contract is able to influence the choice of the arbitrator.

arbitrator

See arbitration.

argument

A persuasive presentation of the law and facts of a case or particular issue within a case to the judge or jury.

ARM

See adjustable rate mortgage.

arraignment

A court appearance in which the defendant is formally charged with a crime and asked to respond by pleading guilty, not guilty or nolo contendere. Other matters often handled at the arraignment are arranging for the appointment of a lawyer to represent the defendant and the setting of bail.

arrearages

Overdue alimony or child support payments. In recent years, state laws have made it difficult to impossible to get rid of arrearages; they can’t be discharged in bankruptcy, and courts usually will not retroactively cancel them. A spouse or parent who falls on tough times and is unable to make payments should request a temporary modification of the payments before the arrearages build up.

arrest

A situation in which the police detain a person in a manner that, to any reasonable person, makes it clear she is not free to leave. A person can be “under arrest” even though the police have not announced it; nor are handcuffs or physical restraint necessary. Questioning an arrested person about her involvement in or knowledge of a crime must be preceded by the Miranda warnings if the police intend to use the answers against the person in a criminal case. If the arrested person chooses to remain silent, the questioning must stop.

arrest warrant

A document issued by a judge or magistrate that authorizes the police to arrest someone. Warrants are issued when law enforcement personnel present evidence to the judge or magistrate that convinces her that it is reasonably likely that a crime has taken place and that the person to be named in the warrant is criminally responsible for that crime.

articles of incorporation

A document filed with state authorities (usually the Secretary of State or Corporations Commissioner, depending on the state) to form a corporation. As required by the general incorporation law of the state, the Articles normally include the purpose of the corporation, its principal place of business, the names of its initial directors who will control it, and the amounts and types of stock it is authorized to issue.

assault

A crime that occurs when one person tries to physically harm another in a way that makes the person under attack feel immediately threatened. Actual physical contact is not necessary; threatening gestures that would alarm any reasonable person can constitute an assault. Compare battery.

assessment benefits

See stipulated insurance.

assignee

A person to whom a property right is transferred. For example, an assignee may take over a lease from a tenant who wants to permanently move out before the lease expires. The assignee takes control of the property and assumes all the legal rights and responsibilities of the tenant, including payment of rent. However, the original tenant remains legally responsible if the assignee fails to pay the rent.

assignment

A transfer of property rights from one person to another, called the assignee.

assignment (of copyright)

The unconditional transfer of all rights contained in a copyright from the owner to another person or entity.

association

A group of people who have joined together for a common purpose. Unlike a corporation, an association is not a legal entity. The law may treat an association like a corporation, however, if it has been operating in a corporate manner — for example, if it has a charter and shareholders.

asylum

A legal status granted to an individual who is in the United States and fears political persecution if he or she is forced to return to their home country.

at issue memorandum

A document that states that all parties to a case have been served, that the parties disagree (or are “at issue”) over one or more points to be resolved at trial, and how much time the parties estimate will be required for trial.

at will employment

The right of employers to fire employees for any reason, or for no reason at all. It also gives employees the legal right to quit their jobs at any time for any reason. Despite this legal doctine, employers may not fire employees in a way that discriminates, violates public policy or conflicts with written or implied promises they make concerning the length of employment or grounds for termination.

attestation

The act of watching someone sign a legal document, such as a will or power of attorney, and then signing your own name as a witness. When you witness a document in this way, you are attesting — that is, stating and confirming — that the person whom you watched sign the document in fact did so. Attesting to a document does not mean that you are vouching for its accuracy or truthfulness. You are only acknowledging that you watched it being signed by the person whose name is on the signature line.

attorney fees

The payment made to a lawyer for legal services. These fees may take several forms: hourly per job or service — for example, $350 to draft a will contingency (the lawyer collects a percentage of any money she wins for her client and nothing if there is no recovery), or retainer (usually a down payment as part of an hourly or per job fee agreement). Attorney fees must usually be paid by the client who hires a lawyer, though occasionally a law or contract will require the losing party of a lawsuit to pay the winner’s court costs and attorney fees. For example, a contract might contain a provision that says the loser of any lawsuit between the parties to the contract will pay the winner’s attorney fees. Many laws designed to protect consumers also provide for attorney fees — for example, most state laws that require landlords to provide habitable housing also specify that a tenant who sues and wins using that law may collect attorney fees. And in family law cases — divorce, custody and child support — judges often have the power to order the more affluent spouse to pay the other spouse’s attorney fees, even where there is no clear victor.

Attorney General

Head of the United States Department of Justice and chief law officer of the Federal government. The Attorney General represents the United States in legal matters, oversees federal prosecutors, and provides legal advice to the President and to heads of executive governmental departments. Each state also has an attorney general, responsible for advising the governor and state agencies and departments about legal issues, and overseeing state prosecuting attorneys.

attorney work product privilege

A rule that protects materials prepared by a lawyer in preparation for trial from being seen and used by the adversary during discovery or trial.

attorney-client privilege

A rule that keeps communications between an attorney and her client confidential and bars them from being used as evidence in a trial, or even being seen by the opposing party during discovery.

attorney-in-fact

A person named in a written power of attorney document to act on behalf of the person who signs the document, called the principal. The attorney-in-fact’s power and responsibilities depend on the specific powers granted in the power of attorney document. An attorney-in-fact is an agent of the principal.

attractive nuisance

Something on a piece of property that attracts children but also endangers their safety. For example, unfenced swimming pools, open pits, farm equipment and abandoned refrigerators have all qualified as attractive nuisances.

audit

An examination of the financial records of a person, business, or organization, typically done to correct careless or improper bookkeeping or to verify that proper records are being kept. Businesses and nonprofits often undergo an annual audit by an independent accounting firm. The IRS also conducts audits, mainly to assess taxes owed.

augmented estate

In general terms, an augmented estate consists of property owned by both a deceased person and his or her spouse. The concept of the augmented estate is used only in some states. Its value is calculated only if a surviving spouse declines whatever he or she was left by will and instead claims a share of the deceased spouse’s estate. (This is called taking against the will.) The amount of this “statutory share” or “elective share” depends on state law.

authenticate

To offer testimony that tells the judge what an item of evidence is and its connection to the case.

author

In terms of copyright protection, either the person who creates the work, the person or business that pays another to create the work in an employment context or the person or business that commissions the work under a valid work for hire contract. For example, a songwriter may write a song, but if he is employed by a company to do so, the company is the author of that song for copyright purposes.

automatic stay

An injunction automatically issued by the bankruptcy court when a debtor files for bankruptcy. The automatic stay prohibits most creditor collection activities, such as filing or continuing lawsuits, making written requests for payment, or notifying credit reporting bureaus of an unpaid debt.

autopsy

A physician’s examination of the body of a deceased person to determine the cause of death.

avails

Any amount available to the owner of an insurance policy other than the actual proceeds of the policy. Avails include dividend payments, interest, cash or surrender value (the money you’d get if you sold your policy back to the insurance company) and loan value (the amount of cash you can borrow against the policy).

avowal

A direct statement or declaration. Also, a statement made by a witness after the judge has ruled that his or her testimony is not admissible at trial. This statement “preserves” the testimony so that it may be considered by the court if the trial’s outcome is an appeal.

bail

The money paid to the court, usually at arraignment or shortly thereafter, to ensure that an arrested person who is released from jail will show up at all required court appearances. The amount of bail is determined by the local bail schedule, which is based on the seriousness of the offense. The judge can increase the bail if the prosecutor convinces him that the defendant is likely to flee (for example, if he has failed to show up in court in the past), or he can decrease it if the defense attorney shows that the defendant is unlikely to run (for example, he has strong ties to the community by way of a steady job and a family).

bail bond

The money posted by a “bondsman” for a defendant who cannot afford his bail. The defendant pays a certain portion, usually 10%. If the defendant fails to appear for a court hearing, the judge can issue a warrant for his arrest and threaten to “forfeit,” or keep, the money if the defendant doesn’t appear soon. Usually, the bondsman will look for the defendant and bring him back, forcefully if necessary, in order to avoid losing the bail money.

bailiff

A court official usually classified as a peace officer (sometimes as a deputy sheriff, or marshal) and usually wearing a uniform. A bailiff’s main job is to maintain order in the courtroom. In addition, bailiffs often help court proceedings go smoothly by shepherding witnesses in and out of the courtroom and handing evidence to witnesses as they testify. In criminal cases, the bailiff may have temporary charge of any defendant who is in custody during court proceedings.

bailor

Someone who delivers an item of personal property to another person for a specific purpose. For example, a person who leaves a broken VCR with a repairman in order to get it fixed would be a bailor.

balloon payment

A large final payment due at the end of a loan, typically a home or car loan, to pay off the amount your monthly payments didn’t cover. Many states prohibit balloon payments in loans for goods or services that are primarily for personal, family or household use, or require the lender to let you refinance the balloon payment before forcing collection.

ballot

(1) A method or process of casting a vote, called voting “by ballot.” (2) The actual paper, card or machine you use to indicate your choices in an election. (3) The total number of votes cast in an election. (4) A list of candidates running for office.

bankruptcy

A legal proceeding that relieves you of the responsibility of paying your debts or provides you with protection while attempting to repay your debts. There are two types of bankruptcies — liquidation, in which your debts are wiped out (discharged) and reorganization, in which you provide the court with a plan for how you intend to repay your debts. For both consumers and business, liquidation bankruptcy is called Chapter 7. For consumers, reorganization bankruptcy is called Chapter 13. Reorganization bankruptcy for consumers with an extraordinary amount of debt and for businesses is called Chapter 11. Reorganization bankruptcy for family farmers is called Chapter 12.

bankruptcy estate

All of the property you own when you file for bankruptcy, except for most pensions and educational trusts. The trustee technically takes control of your bankruptcy estate for the duration of your case.

bankruptcy trustee

A person appointed by the court to oversee the case of a person or business that has filed for bankruptcy. In a consumer Chapter 7 case, the trustee’s role is to gather the debtor’s nonexempt property, liquidate it and distribute it proportionally to her creditors. In a Chapter 13 case, the trustee’s role is to receive the debtor’s monthly payments and distribute them proportionally to her creditors.

bar examination

An examination for law school graduates who want a license to practice law. Once licensed in a particular state, an attorney can practice law in that state and in federal courts in that state. If the attorney moves to another state, he or she will need to take that state’s bar exam, unless the new state allows the attorney to practice without further examination after he or she has established legal residence. Lawyers from one state may occasionally practice in another with the consent of the court alone. Typically, bar exams are multi-day tests of endurance and knowledge, covering a wide range of legal topics.

basis

For income and capital gains tax purposes, the value that is used to determine profit or loss when property is sold. Often the basis is what you paid for the property, “adjusted” to reflect improvements made or damage incurred while you own the property. See stepped-up basis, carryover basis.

battery

A crime consisting of physical contact that is intended to harm someone. Unintentional harmful contact is not battery, no mater how careless the behavior or how severe the injury. A fist fight is a common battery; being hit by a wild pitch in a baseball game is not.

bench

The seat (usually a comfy chair rather than a bench) where a judge sits in the courtroom during a trial or hearing. Sometimes the word “bench” is used in place of the word “judge” — for example, someone might say she wants a bench trial, meaning a trial by a judge without a jury.

bench trial

A trial before a judge with no jury. The term derives from the fact that the stand on which the judge sits is called the bench.

beneficiary

A person or organization legally entitled to receive benefits through a legal device, such as a will, trust or life insurance policy.

benevolent society benefits

See fraternal benefit society benefits.

bequeath

A legal term sometimes used in wills that means “leave” — for example, “I bequeath my garden tools to my brother-in-law, Buster Jenkins.”

bequest

The legal term for personal property (anything but real estate) left in a will.

Berne Convention

An international treaty that standardizes basic copyright protection among all of the signatory countries, which currently number over 100. A member country will afford the same treatment to an author from another country as it does to authors in its own country. In addition, each member country is obligated to protect an author’s moral rights in her work.

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.

best interests (of the child)

The test that courts use when deciding who will take care of a child. For instance, an adoption is allowed only when a court declares it to be in the best interests of the child. Similarly, when asked to decide on custody issues in a divorce case, the judge will base his or her decision on the child’s best interests. And the same test is used when judges decide whether a child should be removed from a parent’s home because of neglect or abuse. Factors considered by the court in deciding the best interests of a child include: age and sex of the child mental and physical health of the child mental and physical health of the parents lifestyle and other social factors of the parents emotional ties between the parents and the child ability of the parents to provide the child with food, shelter, clothing and medical care established living pattern for the child concerning school, home, community and religious institution quality of schooling, and the child’s preference.

beyond a reasonable doubt

The burden of proof that the prosecution must carry in a criminal trial to obtain a guilty verdict. Reasonable doubt is sometimes explained as being convinced “to a moral certainty.” The jury must be convinced that the defendant committed each element of the crime before returning a guilty verdict.

bifurcate

To separate the issues in a case so that one issue or set of issues can be tried and resolved before the others. For example, death penalty cases are always bifurcated. The court or juryfirst hears the evidence of guilt and reaches a verdict, and then hears evidence about and decides upon which punishment to impose (death or life in prison without parole). Bifurcated trials are also common in product liability class action lawsuits in which many people claim that they were injured by the same defective product — the issue of liability is tried first, followed by the question of damages. Bifurcation is authorized by Rule 42(b) of the Federal Rules of Civil Procedure.

binding precedent

The decisions of higher courts that set the legal standards for similar cases in lower courts within the same jurisdiction.

blanket search warrant

An unconstitutionally broad authorization from a judge that allows the police to search multiple areas for evidence without specifying exactly what they are looking for.

blue law

A statute that forbids or regulates an activity, such as the sale of liquor on Sundays.

blue sky laws

The laws that aim to protect people from investing in sham companies that consist of nothing but “blue sky.” Blue sky laws require that companies seeking to sell stock to the public submit information to and obtain the approval of a state or federal official who oversees corporate activity.

board of directors

See director.

bond

(1) A written agreement purchased from a bonding company that guarantees a person will properly carry out a specific act, such as managing funds, showing up in court, providing good title to a piece of real estate or completing a construction project. If the person who purchased the bond fails at his or her task, the bonding company will pay the aggrieved party an amount up to the value of the bond. (2) An interest-bearing document issued by a government or company as evidence of a debt. A bond provides pre-determined payments at a set date to the bond holder. Bonds may be “registered” bonds, which provide payment to the bond holder whose name is recorded with the issuer and appears on the bond certificate, or “bearer” bonds, which provide payments to whomever holds the bond in-hand.

booking

A quaint phrase that refers to the recording of an arrested person’s name, age, address and reason for arrest when that person is brought to jail and placed behind bars. Nowadays, the book is likely to be a computer. Usually, a mug shot and fingerprints are taken, and the arrestee’s clothing and personal effects are inventoried and stored.

border patrol

The historical term for what is now called the Bureau of Customs and Border Protection (“BCBP”), a branch of the Department of Homeland Security. The primary functions of the BCBP/border patrol are to guard the borders from illegal entrants and to meet and question immigrants and visitors arriving at airports and other border stops.

breach

A failure or violation of a legal obligation.

breach of contract

A legal claim that one party failed to perform as required under a valid agreement with the other party. For example you might say, “The roofer breached our contract by using substandard supplies when he repaired my roof.”

brief

A document used to submit a legal contention or argument to a court. A brief typically sets out the facts of the case and a party’s argument as to why she should prevail. These arguments must be supported by legal authority and precedent, such as statutes, regulations and previous court decisions. Although it is usually possible to submit a brief to a trial court (called a trial brief), briefs are most commonly used as a central part of the appeal process (an appellate brief). But don’t be fooled by the name — briefs are usually anything but brief, as pointed out by writer Franz Kafka, who defined a lawyer as “a person who writes a 10,000 word decision and calls it a brief.”

bulk sales law

A law that regulates the transfer of business assets so that business owners cannot dispose of assets in order to avoid creditors. If a business owner wants to conduct a bulk sale of business assets — that is, get rid of an unusually large amount of inventory, merchandise or equipment — the business owner must typically publish a notice of the sale and give written notice to creditors. Then, the owner must set up an account to hold the funds from the sale for a brief period of time during which creditors may make claims against the money. The prohibition against bulk sales is spelled out in the Uniform Commercial Code — and laws modeled on the UCC have been generally adopted throughout the country.

burden of proof

A party’s job of convincing the decisionmaker 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. 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.

burglary

The crime of breaking into and entering a building with the intention to commit a felony. The breaking and entering need not be by force, and the felony need not be theft. For instance, someone would be guilty of burglary if he entered a house through an unlocked door in order to commit a murder.

business records exception

An exception to the hearsay rule, which allows a business document to be admitted into evidence if a proper foundation is laid to show it is reliable.

bylaws

The rules that govern the internal affairs or actions of a corporation. Normally bylaws are adopted by the shareholders of a profit-making business or the board of directors of a nonprofit corporation. Bylaws generally include procedures for holding meetings and electing the board of directors and officers. The bylaws also set out the duties and powers of a corporation’s officers.

bypass trust

A trust designed to lessen a family’s overall estate tax liability. An AB trust is the most popular kind of bypass trust.



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