failure of consideration
The refusal or inability of a contracting party to perform its side of a bargain.
failure of issue
A situation in which a person dies without children who could have inherited her property.
Fair Credit Billing Act (FCBA)
A federal law that gives you rights when an error occurs on your credit card statement. You must notify the credit card company of the mistake within 60 days after it mailed the bill to you. The company must then correct the mistake, or at least acknowledge receipt of your letter within 30 days, and must correct the error within 90 days or explain why it believes the credit card statement is correct.
Fair Credit Reporting Act (FCRA)
A federal law that is designed to prevent inaccurate or obsolete information from entering or remaining in a credit report. The law requires credit bureaus to adopt reasonable procedures for gathering, maintaining and disseminating information and bars credit bureaus from reporting negative information that is older than seven years, except a bankruptcy, which may be reported for ten. If you notify a credit bureau of an error in your credit report, the FCRA requires the bureau to investigate your allegations within 30 days, review all information you provide, remove inaccurate and unverified information and adopt procedures to keep the information from reappearing. In addition, the law requires that creditors refrain from reporting incorrect information to credit bureaus.
Fair Debt Collections & Practices Act (FDCPA)
A federal law that outlaws unfair debt collection practices, including lying, harassing, misleading and otherwise abusing debtors, by debt collectors working for collection agencies. The law does not apply to creditors collecting their own debts. This law has greatly improved conditions for debtors, although more than a few debt collectors ignore the law. If a collection agency violates the law, debtors can contact the Federal Trade Commission for help.
Fair Housing Act & Fair Housing Amendments Act
Federal laws that prohibit housing discrimination on the basis of race or color, national origin, religion, sex, familial status or disability. The federal Acts apply to all aspects of the landlord/tenant relationship, from refusing to rent to members of certain groups to providing different services during tenancy.
Fair Labor Standards Act (FLSA)
A federal law that guarantees a worker’s right to be paid fairly. The FLSA defines the 40-hour workweek, sets out the federal minimum wage, states requirements for overtime and places restrictions on child labor.
fair use rule
A law that authorizes the use of copyrighted materials for certain purposes without the copyright owner’s permission. Generally, uses intended to further scholarship, education or an informed public are considered fair use, but recent years have seen severe limits placed on the amount of a work that can be reproduced under the fair use rule.
See false imprisonment.
Intentionally restraining another person without having the legal right to do so. It’s not necessary that physical force be used; threats or a show of apparent authority are sufficient. False imprisonment is a misdemeanor and a tort (a civil wrong). If the perpetrator confines the victim for a substantial period of time (or moves him a significant distance) in order to commit a felony, the false imprisonment may become a kidnapping. People who are arrested and get the charges dropped, or are later acquitted, often think that they can sue the arresting officer for false imprisonment (also known as false arrest). These lawsuits rarely succeed: As long as the officer had probable cause to arrest the person, the officer will not be liable for a false arrest, even if it turns out later that the information the officer relied upon was incorrect.
A certain amount of a deceased person’s money to which immediate family members are entitled at the beginning of the probate process. The allowance is meant to help support the surviving spouse and children during the time it takes to probate the estate. The amount is determined by state law and varies greatly from state to state.
Family and Medical Leave Act (FMLA)
A federal law that requires employers to provide an employee with 12 weeks of unpaid leave during a year’s time for the birth or adoption of a child, family health needs or personal illness. The employer must allow the employee to return to the same position or a position similar to that held before taking the leave. There are exceptions to the FMLA: the most notable is that only employers with 50 or more employees are covered–about half the workforce.
A separate court, or more likely a separate division of the regular state trial court, that considers only cases involving divorce (dissolution of marriage), child custody and support, guardianship, adoption, and other cases having to do with family-related issues, including the issuance of restraining orders in domestic violence cases.
family pot trust
See pot trust.
A tradition that required one spouse to prove that the other spouse was legally at fault, to obtain a divorce. The “innocent” spouse was then granted the divorce from the “guilty” spouse. Today, 35 states still allow a spouse to allege fault in obtaining a divorce. The traditional fault grounds for divorce are adultery, cruelty, desertion, confinement in prison, physical incapacity and incurable insanity. These grounds are also generally referred to as marital misconduct.
See Fair Credit Billing Act.
See Fair Credit Reporting Act.
See Fair Debt Collections & Practices Act.
A branch of the United States government with power derived directly from the U.S. Constitution. Federal courts decide cases involving the U.S. Constitution, federal law–for example, patents, federal taxes, labor law and federal crimes, such as robbing a federally chartered bank–and cases where the parties are from different states and are involved in a dispute for $75,000 or more.
Federal Trade Commission (FTC)
A federal government agency established to regulate business practices and enforce antitrust laws. The FTC often shows up in the news when big businesses merge, but it also plays a role in protecting consumers from unfair business practices, including actions by collection agencies and credit bureaus. While the FTC generally does not have authority to intervene in individual consumer disputes, the FTC can take action against a company about which it has received numerous consumer complaints.
A serious crime (contrasted with misdemeanors and infractions, less serious crimes), usually punishable by a prison term of more than one year or, in some cases, by death. For example, murder, extortion and kidnapping are felonies; a minor fist fight is usually charged as a misdemeanor, and a speeding ticket is generally an infraction.
A legal doctrine that prevents people who are injured as a result of military service from successfully suing the federal government under the Federal Tort Claims Act. The doctrine comes from the U.S. Supreme Court case Feres v. United States, in which servicemen who picked up highly radioactive weapons fragments from a crashed airplane were not permitted to recover damages from the government. Also known as the Feres-Stencel doctrine or the Feres rule.
fictitious business name
See fictitious name.
Fictitious names are often used in conducting a business (see doing business as.) They may also be used when filing a lawsuit against a party whose real name is unknown or when it is appropriate to conceal the true name of the party.
Latin for “that you cause to be done.” This is a court document that instructs a sheriff to seize and sell a defendant’s property in order to satisfy a monetary judgment against the defendant.
A term commonly used to describe both the process of submitting a document to a court–for example, “I filed my small claims case today”–and to describe the physical location where these papers are kept. Traditionally, a court’s case files were kept indefinitely in one or more cardboard folders. Today many files–especially those for inactive cases–are stored by computer.
A fee charged by a public official to accept a document for processing. For example, you must usually pay a filing fee to submit pleadings and other documents to the court in a civil matter, or to put a deed on file in the public records.
The person or institution designated to receive trust property upon the death of a life beneficiary. For example, Jim creates a trust through which his wife Jane receives income for the duration of her life. Their daughter, the final beneficiary, receives the trust principal after Jane’s death.
See guardian of the estate.
A fee charged by real estate brokers and apartment-finding services in exchange for locating a rental property. These fees are permitted by law. Some landlords, however, charge finder’s fees merely for renting a place. This type of charge is not legitimate and, in some areas, is specifically declared illegal.
Legal grasping at straws; the use of pre-trial investigation (discovery) or witness questioning in an unfocused attempt to uncover damaging evidence you can use against your adversary.
The ability of a prospective adoptive parent to provide for the best interests of a child. A court may consider many aspects of the prospective parents’ lives in evaluating their fitness to adopt a child, including financial stability, marital stability, career obligations, other children, physical and mental health and criminal history.
fixed in a tangible medium of expression
A requirement before a work can be protected by a copyright. The work must be recorded in some physical medium, whether on paper, audio tape or computer disk. This means that spontaneous speech or musicianship that is not recorded, (a jazz solo, for instance) is not protected by copyright.
fixed rate mortgage
A mortgage loan that has an interest rate that remains constant throughout the life of the loan, so that the amount you pay each month remains the same over the entire mortgage term, typically 15, 20 or 30 years.
See Family and Medical Leave Act.
for sale by owner (FSBO)
Selling your house without a real estate broker. Doing so can save you a commission but requires that you devote time and energy not only to marketing and showing the house but also to learning and following the legal rules controlling sales of real estate in your area. The acronym FSBO is pronounced “fizzbo.”
Voluntarily refraining from doing something, such as asserting a legal right. For example, a creditor may forbear on its right to collect a debt by temporarily postponing or reducing the borrower’s payments.
See statutory share.
The forced sale of real estate to pay off a loan on which the owner of the property has defaulted.
A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.
The loss of property or a privilege due to breaking a law. For example, a landlord may forfeit his or her property to the federal or state government if the landlord knows it is a drug-dealing site but fails to stop the illegal activity. Or, you may have to forfeit your driver’s license if you commit too many moving violations or are convicted of driving under the influence of alcohol or drugs.
Printed or “canned” sets of questions that one party in a lawsuit asks an opposing party. Form interratories cover the issues commonly encountered in the kind of lawsuit at hand. For example, lawyers’ form books have sets of interrogatories designed for contract disputes, landlord-tenant cases and many others. Form interrogatories are often supplemented by questions written by the lawyers and designed for the particular issues in the case.
Refers to the court in which a lawsuit is filed or in which a hearing or trial is conducted.
Latin for an inconvenient court. Because these days strict written rules of jurisdiction and venue are used to decide where a case can and cannot be properly filed, this term has largely lost any real meaning, except as yet another example of a confusing Latin term that lawyers take pleasure in using.
The process by which a plaintiff chooses among two or more courts that have the power–technically, the correct jurisdiction and venue–to consider his case. This decision is based on which court is likely to consider the case most favorably. In some instances, a case can properly be filed in two or more federal district courts as well as in the trial courts of several states–and this makes forum shopping a complicated business. It often involves weighing a number of factors, including proximity to the court, the reputation of the judge in the particular legal area, the likely type of available jurors and subtle differences in governing law and procedure.
Court-ordered care provided to children who are unable to live in their own homes, usually because their parents have abused or neglected them. Foster parents have a legal responsibility to care for their foster children, but do not have all the rights of a biological parent–for example, they may have limited rights to discipline the children, to raise them according to a certain religion or to authorize non-emergency medical procedures for them. The foster parents do not become the child’s legal parents unless the biological parents’ rights are terminated by a court and the foster parents adopt the child. This is not typically encouraged, as the goal of foster care is to provide temporary support for the children until they can be returned to their parents. See also foster child.
A child placed by a government agency or a court in the care of someone other than his or her natural parents. Foster children may be removed from their family home because of parental abuse or neglect. Occasionally, parents voluntarily place their children in foster care. See foster care.
The act of displaying another company’s web page within a bordered area of a website — similar to the “picture-in-picture” feature offered on some televisions. For example, when a user enters a search engine request, the search engine might display the contents of an online store within the search engine’s website, framed by the search engine’s text and logos. When a web page is framed within another website, the URL or domain name of the framed web page is not displayed and users are not able to bookmark that site.
fraternal benefit society benefits
These are benefits, often group life insurance, paid for by fraternal societies to their members. Elks, Masons or Knights of Columbus are common fraternal societies that provide benefits. Also called benefit society, benevolent society or mutual aid association benefits. Under bankruptcy laws, these benefits are virtually always considered exempt property.
Intentionally deceiving another person and causing her to suffer a loss. Fraud includes lies and half-truths, such as selling a lemon and claiming “she runs like a dream.”
In a bankruptcy case, a transfer of property to another for less than the property’s value for the purpose of hiding the property from the bankruptcy trustee — for instance, when a debtor signs a car over to a relative to keep it out of the bankruptcy estate. Fraudulently transferred property can be recovered and sold by the trustee for the benefit of the creditors.
Majority shareholders in a company using their power to deprive one or more minority shareholders of their role in governing the company. This is done to force the minority shareholders to sell their stock at a reduced price and exit the company.
A lawsuit brought by two parties, not as adversaries, but as collaborators in order to resolve a legal question that affects them both. For example, two companies might bring a friendly suit to court in order to clarify a legal interpretation of a contract between them.
A witness whom you have called to testify, and whom you may not cross-examine. If the witness testifies in a way that hurts your case, you can ask the judge to declare him a “hostile witness,” which means that you can begin to cross-examine him with leading questions.
An employee detour that is so far removed from the purposes of employment that the employer will not be liable for any injury he causes while on the trip. For example, the U.S. Postal Service would not have been responsible for any injuries caused by Seinfeld’s Newman and Kramer when they used a U.S. Postal Service truck to cart bottles to Michigan for recycling.
See for sale by owner.
See Federal Trade Commission.
funding a trust
Transferring ownership of property to a trust.
A right to property that cannot be enforced in the present, but only at some time in the future. For example, John’s will leaves his house to his sister Marian, but only after the death of his wife, Hillary. Marian has a future interest in the house.
A court-ordered process that takes property from a person to satisfy a debt. For example, a person who owes money to a creditor may have her wages garnished if she loses a lawsuit filed by the creditor. Up to 25% of a person’s wages can be deducted.
See General Agreement on Tariffs and Trade.
General Agreement on Tariffs and Trade (GATT)
A comprehensive free-trade treaty signed in 1947 by 117 nations, including almost every developed country. The goal of GATT has been to promote global economic growth by encouraging and regulating world trade. Among other things, member countries are required to treat all other member countries equally in the application of import and export tariffs, offer basic copyright protection to authors from member countries, consult with each other about trade matters and attempt to resolve differences in a peaceful manner. GATT created an international regulatory body known as the World Trade Organization (WTO) to enforce compliance with the agreement.
A person who joins with at least one other to own and operate a business for profit — and who (unlike a corporation’s owners), is personally liable for all the business’s debts and obligations. A general partner’s actions can legally bind the entire business. See also partnership, limited partnership.
general power of attorney
See power of attorney.
generation-skipping transfer tax
A federal tax imposed on money placed in a generation-skipping trust. Currently, there is a $1 million exemption to the GSTT; that is, each person may leave $1 million in a generation-skipping trust free of this tax. The GSST is imposed when the middle-generation beneficiaries die and the property is transferred to the third-generation beneficiaries. Every dollar over $1 million is subject to the highest existing estate tax rate–currently 55%–at the time the GSTT tax is applied.
A trust designed to save on estate tax. The trust principal is preserved for the trust maker’s grandchildren, with his or her children receiving only income from the trust. Because the children (the middle generation) never legally own the property, it isn’t subject to estate tax at their death. See generation-skipping transfer tax.
In trademark law, a word or symbol commonly used to describe an entire type of product or service rather than to distinguish one product or service from another. An example is “raisin bran,” used by several manufacturers of breakfast cereals to describe their products. Generic marks never receive protection because they don’t serve the basic function of marks, which is to distinguish goods and services in the marketplace.
Loss of trademark protection that occurs when a specific brand name becomes identified with the entire type of product or service. For example, Xerox was in danger of losing the trademark on its name when “to Xerox” something was equivalent to copying it.
Federal taxes assessed on any gift, or combination of gifts, from one person to another that exceeds $12,000 in one year. Several kinds of gifts are exempt form this tax: gifts to tax-exempt charities, gifts to your spouse (limited to $120,000 annually if the recipient isn’t a U.S. citizen) and gifts made for tuition or medical bills. In addition to the annual gift tax exclusion, there is a $1 million cumulative tax exemption for gifts. In other words, you can give away a total of $1 million during your lifetime — over and above the gifts you give using the annual exclusion — without paying gift taxes.
golden rule argument
During a jury trial, an attempt to persuade the jurors to put themselves in the place of the victim or the injured person and deliver the verdict that they would wish to receive if they were in that person’s position. For example, if the plaintiff in a personal injury case has suffered severe scarring, the plaintiff’s lawyer might ask the jury to come back with the verdict they themselves would want to receive had they been disfigured in such a manner. As a rule, judges frown upon this type of argument, because jurors are supposed to consider the facts of a case in an objective manner.
goods & chattels
See personal property.
A period of time during which you are not required to make payments on a debt. For example, most credit cards give you a grace period of 20-30 days before you have to pay interest on the amount of your purchases. Cash advances, however, usually have no grace period; interest begins to accumulate from the date of the withdrawal, even if you pay your bills on time. Also, some student loans give you a grace period after graduating or dropping out of school. During this time, you are not required to make payments on your loan.
In criminal cases, a group that decides whether there is enough evidence to justify an indictment (formal charges) and a trial. A grand jury indictment is the first step, after arrest, in any formal prosecution of a felony.
A provision in a new law that limits its application to people who are new to the system; people already in the system are exempt from the new regulation. For example, when Washington, D.C. raised its drinking age from 18 to 21, people between those ages, who could drink under the old law, were allowed to retain the right to legally consume alcohol under a grandfather clause.
A deed containing an implied promise that the person transfering the property actually owns the title and that it is not encumbered in any way, except as described in the deed. This is the most commonly used type of deed. Compare quitclaim deed.
Someone who creates a trust. Also called a trustor or settlor.
grantor retained income trust
Irrevocable trusts designed to save on estate tax. There are several kinds; with all of them, you keep income from trust property, or use of that property, for a period of years. When the trust ends, the property goes to the final beneficiaries you’ve named. These trusts are for people who have enough wealth to feel comfortable giving away a substantial hunk of property. They come in three flavors: Grantor-Retained Annuity Trusts (GRATs), Grantor-Retained Unitrusts (GRUTs) and Grantor-Retained Income Trusts (GRITs).
The essential element of a lawsuit. For example, the gravamen of a lawsuit involving a car accident might be the careless driving of the defendant.
The well-known term for an Alien Registration Receipt Card. This plastic photo identification card is given to individuals who are legal permanent residents of the United States. It serves as a U.S. entry document in place of a visa, enabling permanent residents to return to the United States after temporary absences. The key characteristic of a green card is that it allows the holder to live permanently in the United States. Unless you abandon your residence or violate certain criminal or immigration laws, your green card can never be taken away. Possession of a green card also allows you to work in the United States legally. Those who hold green cards for a certain length of time may eventually apply for U.S. citizenship. Green cards have an expiration date of ten years from issuance. This does not mean that your permanent resident status expires. You must simply apply for a new card.
A situation in which a person or entity buys enough stock in a company to threaten a hostile takeover. The person or entity can greenmail the victim company into buying back its stock at a higher price in order to avoid the takeover.
For federal estate tax filing purposes, the total of all property owned at death, without regard to any debts or liens against the property or the costs of probate. Taxes are due only on the value of the property the person actually owned (the net estate) plus the amount of any taxable gifts made during life. In a few states, the gross estate is used when computing attorney fees for probating estates; the lawyer gets a percentage of the gross estate.
A commercial real estate lease in which the tenant pays a fixed amount of rent per month or year, regardless of the landlord’s operating costs, such as maintenance, taxes and insurance. A gross lease closely resembles the typical residential lease. The tenant may agree to a “gross lease with stops,” meaning that the tenant will pitch in if the landlord’s operating costs rise above a certain level. In real estate lingo, the point when the tenant starts to contribute is called the “stop level,” because thatÃ¢â‚¬â„¢s where the landlordÃ¢â‚¬â„¢s share of the costs stops.
grounds for divorce
Legal reasons for requesting a divorce. All states require a spouse who files for divorce to state the grounds, court and whether requesting a fault divorce or a no-fault divorce.
group life or group health insurance
A single policy under which individuals in a group–for example, employees–and their dependents are covered.
A hotel or rental car reservation secured by a credit card number. In exchange for your card number, the hotel or rental agency promises to have a room or vehicle for you no matter when you show up. If you have a guaranteed reservation with a hotel, it must provide you with a room, either at that hotel or at another comparable establishment. If you have a guaranteed reservation with a car agency, it must provide you with a vehicle. The downside of a guaranteed reservation is that if you don’t show up and haven’t cancelled your reservation, you will be billed for one night in the room or one day’s use of the vehicle.
A person who makes a legally binding promise to either pay another person’s debt or perform another person’s duty if that person defaults or fails to perform. The guarantor gives a “guaranty,” which is an assurance that the debt or other obligation will be fulfilled.
When used as a verb, to agree to pay another person’s debt or perform another person’s duty, if that person fails to come through. As a noun, the written document in which this assurance is made. For example, if you cosign a loan, you have made a guaranty and will be legally responsible for the debt if the borrower fails to repay the money as promised. The person who makes a guaranty is called the guarantor. Also known as a guarantee or warranty.
An adult who has been given the legal right by a court to control and care for a minor or her property. Someone who looks after a child’s property is called a “guardian of the estate.” An adult who has legal authority to make personal decisions for the child, including responsibility for his physical, medical and educational needs, is called a “guardian of the person.” Sometimes just one person will be named to take care of all these tasks. An individual appointed by a court to look after an incapacitated adult may also be known as a guardian, but is more frequently called a conservator.
guardian ad litem
A person, not necessarily a lawyer, who is appointed by a court to represent and protect the interests of a child or an incapacitated adult during a lawsuit. For example, a guardian ad litem (GAL) may be appointed to represent the interests of a child whose parents are locked in a contentious battle for custody, or to protect a child’s interests in a lawsuit where there are allegations of child abuse. The GAL may conduct interviews and investigations, make reports to the court and participate in court hearings or mediation sessions. Sometimes called court-appointed special advocates (CASAs).
guardian of the estate
Someone appointed by a court to care for the property of a minor child that is not supervised by an adult under some other legal method, such as a trust. A guardian of the estate may also be called a “property guardian” or “financial guardian.” See also guardian.
A legal relationship created by a court between a guardian and his ward–either a minor child or an incapacitated adult. The guardian has a legal right and duty to care for the ward. This may involve making personal decisions on his or her behalf, managing property or both. Guardianships of incapacitated adults are more typically called conservatorships .
Latin for “You have the body.” A prisoner files a petition for writ of habeas corpus in order to challenge the authority of the prison or jail warden to continue to hold him. If the judge orders a hearing after reading the writ, the prisoner gets to argue that his confinement is illegal. These writs are frequently filed by convicted prisoners who challenge their conviction on the grounds that the trial attorney failed to prepare the defense and was incompetent. Prisoners sentenced to death also file habeas petitions challenging the constitutionality of the state death penalty law. Habeas writs are different from and do not replace appeals, which are arguments for reversal of a conviction based on claims that the judge conducted the trial improperly. Often, convicted prisoners file both.
habeas corpus ad subjiciendum
See habeas corpus.
See sexual harassment.
head of family
See head of household.
head of household
A person who supports and maintains, in one household, one or more people who are closely related to him by blood, marriage or adoption. Under federal income tax law, you are eligible for favorable tax treatment as the head of household only if you are unmarried and you manage a household which is the principal residence (for more than half of the year) of dependent children or other dependent relatives. Under bankruptcy homestead and exemption laws, the terms householder and “head of household” mean the same thing. Examples include a single woman supporting her disabled sister and her own children or a bachelor supporting his parents. Many states consider a single person supporting only himself to be a head of household as well.
Benefits paid under health insurance plans, such as Blue Cross/Blue Shield, to cover the costs of healthcare.
Legal documents that allow you to set out written wishes for your medical care–and to name a person to make sure those wishes are carried out. See living will; durable power of attorney for healthcare.
A person named in a healthcare directive or durable power of attorney for finances to make medical decisions for the person who signed the document, called the principal. A healthcare proxy may also be known as an attorney-in-fact, agent or patient advocate.
In the trial court context, a legal proceeding (other than a full-scale trial) held before a judge. During a hearing, evidence and arguments are presented in an effort to resolve a disputed factual or legal issue. Hearings typically, but by no means always, occur prior to trial when a party asks the judge to decide a specific issue–often on an interim basis–such as whether a temporary restraining order or preliminary injunction should be issued, or temporary child custody or child support awarded. In the administrative or agency law context, a hearing is usually a proceeding before an administrative hearing officer or judge representing an agency that has the power to regulate a particular field or oversee a governmental benefit program. For example, the Federal Aviation Board (FAB) has the authority to hold hearings on airline safety, and a state Worker’s Compensation Appeals Board has the power to rule on the appeals of people whose applications for benefits have been denied.
A rule of evidence that prohibits secondhand testimony at a trial. For example, if an eyewitness to an accident later tells another person what she saw, the second person’s testimony is hearsay. The reason for this rule is that the opposing party has no ability to confront and cross-examine the person who has firsthand knowledge of the event.
One who receives property from someone who has died. While the traditional meaning includes only those who had a legal right to the deceased person’s property, modern usage includes anyone who receives property from the estate of a deceased person.
One who expects to be receive property from the estate of a family member, as long as she outlives that person.
heir at law
A person entitled to inherit property under intestate succession laws.
International marine waters not included in the territorial waters of any country. Because the high seas are not owned by any country, they have their own set of laws.
In a contract, a promise by one party not to hold the other party responsible if the other party carries out the contract in a way that causes damage to the first party. For example, many leases include a hold harmless clause in which the tenant agrees not to sue the landlord if the tenant is injured due to the landlordÃ¢â‚¬â„¢s failure to maintain the premises. In most states, these clauses are illegal in residential tenancies, but may be upheld in commercial settings.
A will that is completely handwritten, dated and signed by the person making it. Holographic wills are generally not witnessed. Although it’s legal in many states, making a holographic will is never advised except as a last resort.
An investigation of prospective adoptive parents to make sure they are fit to raise a child, required by all states. Common areas of inquiry include financial stability, marital stability, lifestyles and other social factors, physical and mental health and criminal history.
A service contract that covers a major housing system–for example, plumbing or electrical wiring–for a set period of time from the date a house is sold. The warranty guarantees repairs to the covered system and is renewable.
An organization comprising neighbors concerned with managing the common areas of a subdivision or condominium complex. These associations take on issues such as salting and sanding a subdivision when it snows and collecting dues from residents. The homeowners’ association is also responsible for enforcing any covenants, conditions & restrictions that apply to the property.
(1) The house in which a family lives, plus any adjoining land and other buildings on that land. (2) Real estate which is not subject to the claims of creditors as long as it is occupied as a home by the head of the household. After the head of the family dies, homestead laws often allow the surviving spouse or minor children to live on the property for as long as they choose. (3) Land acquired out of the public lands of the United States. The term “homesteaders” refers to people who got their land by settling it and making it productive, rather than purchasing it outright.
A form filed with the county recorder’s office to put on record your right to a homestead exemption. In most states, the homestead exemption is automatic–that is, you are not required to record a homestead declaration in order to claim the homestead exemption. A few states do require such a recording, however.
The killing of one human being by the act or omission of another. The term applies to all such killings, whether criminal or not. Homicide is considered noncriminal in a number of situations, including deaths as the result of war and putting someone to death by the valid sentence of a court. Killing may also be legally justified or excused, as it is in cases of self-defense or when someone is killed by another person who is attempting to prevent a violent felony. Criminal homicide occurs when a person purposely, knowingly, recklessly or negligently causes the death of another. Murder and manslaughter are both examples of criminal homicide.
An exception to the general rule that a police officer needs an arrest warrant before he can enter a home to make an arrest. If a felony has just occurred and an officer has chased a suspect to a private house, the officer can forcefully enter the house in order to prevent the suspect from escaping or hiding or destroying evidence.
The final transfer of the ownership of a house from the seller to the buyer, which occurs after both have met all the terms of their contract and the deed has been recorded.
A person who supports and maintains a household, with or without other people. In bankruptcy law, a householder, housekeeper or head of household can claim a homestead exemption and possibly other exemptions relating to the maintenance of the household.
Housing and Urban Development (HUD)
The U.S. Department of Housing and Urban Development. This is the agency responsible for enforcing the federal Fair Housing Act.
See Housing and Urban Development.
A jury unable to come to a final decision, resulting in a mistrial. Judges do their best to avoid hung juries, typically sending juries back into deliberations with an assurance (sometimes known as a “dynamite charge”) that they will be able to reach a decision if they try harder. If a mistrial is declared, the case is tried again unless the parties settle the case (in a civil case) or the prosecution dismisses the charges or offers a plea bargain (in a criminal case).
A small green or white card given to all nonimmigrants when they enter the United States. The I-94 card serves as evidence that a nonimmigrant has entered the country legally. It is stamped with a date indicating how long the nonimmigrant may stay for that particular trip. It is this date–and not the expiration date of the visa–that controls how long a nonimmigrant can remain in the United States. A new I-94 card with a new date is issued each time the nonimmigrant legally enters the United States. Canadian visitors are not normally issued I-94 cards.
Against or not authorized by the law. Also called illicit or unlawful.
A promise that pledges nothing, because it is vague or because the promisor can choose whether or not to honor it. Such promises are not legally binding. For example, if you get a new job and promise to work for three years, unless you resign sooner, you haven’t made a valid contract and can resign or be fired at any time.
A type of U.S. visa issued to those who qualify for green cards. An immigrant visa enables the holder to enter the United States, take up permanent residence and receive his or her green card.
Immigration and Naturalization Service (INS)
Formerly, the federal agency in the Department of Justice that administered and enforced immigration and naturalization laws. In 2003, however, the INS officially ceased to exist, and its functions were taken over by various branches of the Department of Homeland Security, as follows:The new Bureau of Citizenship and Immigration Services (BCIS) handles immigration benefits, such as applications for asylum, work permits, green cards, and citizenship. The new Bureau of Immigration and Customs Enforcement (BICE) handles enforcement of the immigration laws within the U.S. borders. The new Bureau of Customs and Border Protection (BCBP) handles U.S. border enforcement (including the land borders, airports, and seaports).
(1) To discredit. To impeach a witness’ credibility, for example, is to show that the witness is not believable. A witness may be impeached by showing that he has made statements that are inconsistent with his present testimony, or that he has a reputation for not being a truthful person. (2) The process of charging a public official, such as the President or a federal judge, with a crime or misconduct and removing the official from office.
A guarantee about the quality of goods or services purchased that is not written down or explicitly spoken. Virtually everything you buy comes with two implied warranties. One for “merchantability” and one for “fitness.” The implied warranty of merchantability is an assurance that a new item will work for its specified purpose. The item doesn’t have to work wonderfully, and if you use it for something it wasn’t designed for, say trimming shrubs with an electric carving knife, the warranty doesn’t apply. The implied warranty of fitness applies when you buy an item for a specific purpose. If you notified the seller of your specific needs, the item is guaranteed to meet them. For example, if you buy new tires for your bicycle after telling the store clerk that you plan to use them for mountain cycling and the tires puncture when you pass over a small rock, the tires don’t conform to the warranty of fitness.
implied warranty of habitability
A legal doctrine that requires landlords to offer and maintain livable premises for their tenants. If a landlord fails to provide habitable housing, tenants in most states may legally withhold rent or take other measures, including hiring someone to fix the problem or moving out. See constructive eviction.
To put a person in prison or jail or otherwise confine him as punishment for committing a crime.
Latin for “in chambers.” A legal proceeding is “in camera” when a hearing is held before the judge in her private chambers or when the public is excluded from the courtroom. Proceedings are often held in camera to protect victims and witnesses from public exposure, especially if the victim or witness is a child. There is still, however, a record made of the proceeding, typically by a court stenographer. The judge may decide to seal this record if the material is extremely sensitive or likely to prejudice one side or the other.
in propia persona
See pro per.
Latin meaning “in fear.” This phrase is used to describe provisions in contracts or wills meant to scare a person into complying with the terms of the agreement. For example, a will might state that an heir will forfeit her inheritance if she challenges the validity of the will. Of course, if the will is challenged and found to be invalid, then the clause itself is also invalid and the heir takes whatever she would have inherited if there were no will.
Latin for “in its entirety” or “completely.” For example, if a judge accepts a lawyer’s argument in toto, it means that he’s bought the whole thing, hook, line & sinker.
Testimony or other evidence that fails to meet state or federal court rules governing the types of evidence that can be presented to a judge or jury. The main reason why evidence is ruled inadmissible is because it falls into a category deemed so unreliable that a court should not consider it as part of a deciding a case –for example, hearsay evidence, or an expert’s opinion that is not based on facts generally accepted in the field. Evidence will also be declared inadmissible if it suffers from some other defect–for example, as compared to its value, it will take too long to present or risks enflaming the jury, as might be the case with graphic pictures of a homicide victim. In addition, in criminal cases, evidence that is gathered using illegal methods is commonly ruled inadmissible. Because the rules of evidence are so complicated (and because contesting lawyers waste so much time arguing over them) there is a strong trend towards using mediation or arbitration to resolve civil disputes. In mediation and arbitration, virtually all evidence can be considered. See evidence, admissible evidence.
(1) A lack of physical or mental abilities that results in a person’s inability to manage his or her own personal care, property or finances. (2) A lack of ability to understand one’s actions when making a will or other legal document. (3) The inability of an injured worker to perform his or her job. This may qualify the worker for disability benefits or workers’ compensation.
incidents of ownership
Any control over property. If you give away property but keep an incident of ownership–for example, you give away an apartment building but retain the right to receive rent–then legally, no gift has been made. This distinction can be important if you’re making large gifts to reduce your eventual estate tax.
A conflict in personalities that makes married life together impossible. In a number of states, incompatibility is the accepted reason for a no-fault divorce. Compare irreconcilable differences; irremediable breakdown.
The inability, as determined by a court, to handle one’s own personal or financial affairs. A court may declare that a person is incompetent after a hearing at which the person is present and/or represented by an attorney. A finding of incompetence may lead to the appointment of a conservator to manage the person’s affairs. Also known as “incompetency.”
A legal reason for obtaining either a fault divorce or a no-fault divorce. It is rarely used, however, because of the difficulty of proving both the insanity of the spouse being divorced and that the insanity is incurable.
Revealing one’s genitals under circumstances likely to offend others. Exposure is indecent under the law whenever a reasonable person would or should know that his act may be seen by others–for example, in a public place or through an open window–and that it is likely to cause affront or alarm. Indecent exposure is considered a misdemeanor in most states.
A legal category of worker defined by the Internal Revenue Service. The key to the definition is that, unlike employees, independent contractors retain control over how the work they are hired to do gets done; the person or company paying the independent contractor controls only the outcome–the product or service.
A person or entity (such as a corporation) that must be included in a lawsuit in order for the court to render a final judgment that will be just to everyone concerned. For example, if a person sues his neighbors to force them to prune a tree that poses a danger to his house, he must name all owners of the neighboring property in the suit.
The name of the document, sometimes called a criminal complaint or petition in which a prosecutor charges a criminal defendant with a crime, either a felony or a misdemeanor. The information tells the defendant what crime he is charged with, against whom and when the offense allegedly occurred, but the prosecutor is not obliged to go into great detail. If the defendant wants more specifics, he must ask for it by way of a discovery request. Compare indictment.
An agreement to do something or to allow something to happen, made with complete knowledge of all relevant facts, such as the risks involved or any available alternatives. For example, a patient may give informed consent to medical treatment only after the healthcare professional has disclosed all possible risks involved in accepting or rejecting the treatment. A healthcare provider or facility may be held responsible for an injury caused by an undisclosed risk. In another context, a person accused of committing a crime cannot give up his constitutional rights–for example, to remain silent or to talk with an attorney–unless and until he has been informed of those rights, usually via the well-known Miranda warnings.
A minor violation of the law that is punishable only by a fine–for example, a traffic or parking ticket. Not all vehicle-related violations are infractions, however–refusing to identify oneself when involved in an accident is a misdemeanor in some states.
infringement (of copyright)
Any unauthorized use of a copyrighted work other than fair use. Uses can range from outright plagiarism to using a portion of a photograph in a CD-ROM. The copyright owner may file a lawsuit to stop the infringement and collect damages from the infringer, provided the owner has registered her copyright with the U.S. Copyright Office.
infringement (of patent)
Violation of a patent, occurring when someone else is making, using, or selling the invention described in the patent, or a product that is functionally equivalent to the invention described in the patent, without the patent holder’s permission.
infringement (of trademark)
Unauthorized use of a protected trademark or service mark, or use of something very similar to a protected mark. The success of a lawsuit to stop the infringement turns on whether the defendant’s use causes a likelihood of confusion in the average consumer. If a court determines that the average consumer would be confused, the owner of the original mark can prevent the other’s use of the infringing mark and sometimes collect damages.
An entrance, or the act of entering. Compare egress.
To receive property from someone who has died. Traditionally, the word “inherit” applied only when one received property from a relative who died without a will. Currently, however, the word is used whenever someone receives property from the estate of a deceased person.
Taxes some states impose on people or organizations who inherit property from a deceased person’s estate. The taxes are based on the value of the inherited property.
Persons or organizations who receive property from someone who dies.
A court decision that is intended to prevent harm–often irreparable harm–as distinguished from most court decisions, which are designed to provide a remedy for harm that has already occurred. Injunctions are orders that one side refrain from or stop certain actions, such as an order that an abusive spouse stay away from the other spouse or that a logging company not cut down first-growth trees. Injunctions can be temporary, pending a consideration of the issue later at trial (these are called interlocutory decrees or preliminary injunctions). Judges can also issue permanent injunctions at the end of trials, in which a party may be permanently prohibited from engaging in some conduct–for example, infringing a copyright or trademark or making use of illegally obtained trade secrets. Although most injunctions order a party not to do something, occasionally a court will issue a “mandatory injunction” to order a party to carry out a positive act–for example, return stolen computer code.
A situation in which a court grants an order, called an injunction, telling a party to refrain from doing something–or in the case of a mandatory injunction, to carry out a particular action. Usually injunctive relief is granted only after a hearing at which both sides have an opportunity to present testimony and legal arguments.
The act of displaying a graphic file from another company’s website. For example, inlining occurs if a user at site A can, without leaving site A, view a “cartoon of the day” featured on site B.
See Immigration and Naturalization Service.
See criminal insanity.
Personal property that has no physical existence, such as stocks, bonds, bank notes, trade secrets, patents, copyrights and trademarks. Such “untouchable” items may be represented by a certificate or license that fixes or approximates the value, but others (such as the goodwill or reputation of a business) are not easily valued or embodied in any instrument. Compare tangible property.
integrated pension plan
A pension plan that is integrated with Social Security retirement benefits. In such plans, the monthly or yearly pension benefit is reduced by all, or some percentage of, the retiree’s Social Security check–although since 1988, the law has required that the plan leave at least half of the pension amount. These integrated plans work in one of two ways, either establishing a benefit goal for combined Social Security and pension benefits, or reducing your pension by a set percentage of your Social Security benefits.
intellectual property (IP) law
The area of law that regulates the ownership and use of creative works, including patent, copyright and trademark law.
A term used in trademark law. The Lanham Act permits a mark not yet used in commerce to be reserved for later registration by filing an intent-to-use application with the U.S. Patent and Trademark Office (PTO). The initial reservation lasts for six months and can be extended for up to five additional six-month periods (for a total of 3 years) for good cause.
A deliberate act that causes harm to another, for which the victim may sue the wrongdoer for damages. Acts of domestic violence, such as assault and battery, are intentional torts (as well as crimes).
inter vivos trust
The Latin name, favored by some lawyers, for a living trust. “Inter vivos” is Latin for “between the living.”
A commission you pay a bank or other creditor for lending you money or extending you credit. An interest rate represents the annual percentage that is added to your balance. This means that if your loan or credit line has an interest rate of 8%, the holder adds 8% to the balance each year. More specifically, interest is calculated and added to your loan or credit line through a process called compounding. If interest is compounded daily, the balance will rise by 1/365th of 8% each day. If interest is compounded monthly, the balance will rise 1/12th of 8% at the start of each month.
In patent law, a procedure to resolve a conflict that occurs when two or more patent applications have been filed on the same invention. When this happens, the U.S. Patent and Trademark Office (PTO) examines a number of factors in order to determine who gets the patent, including who first conceived of the invention and worked on it diligently, who first built and tested the invention and who was first to file a patent application.
A court judgment that is not final until the judge decides other matters in the case or until enough time has passed to see if the interim decision is working. In the past, interlocutory decrees were most often used in divorces. The terms of the divorce were set out in an interlocutory decree, which would become final only after a waiting period. The purpose of the waiting period was to allow the couple time to reconcile. They rarely did, however, so most states no longer use interlocutory decrees of divorce.
Internet service provider (ISP)
A business that provides access to the Internet. An ISP may also offer services such as website hosting. An ISP can sometimes be held accountable for copyright violations for material posted by subscribers and users, but is often protected by the Digital Millennium Copyright Act. The Communications Decency Act usually protects ISPs from the posting of obscenities or defamation by subscribers or users.
A term that describes vigorous questioning, usually by the police of a suspect in custody. Other than providing his name and address, the suspect is not obligated to answer the questions, and the fact that he has remained silent generally cannot be used by the prosecution to help prove that he is guilty of a crime. If the suspect has asked for a lawyer, the police must cease questioning. If they do not, they cannot use the answers against the suspect at trial.
Written questions designed to discover key facts about an opposing party’s case, that a party to a lawsuit asks an opposing party (but not a witness, who can only be questioned in person at a deposition). Interrogatories are part of the pretrial discovery stage of a lawsuit, and must be answered under penalty of perjury. Court rules tightly regulate how, when and how many interrogatories can be asked. Lawyers can write their own sets of questions, or can use form interrogatories, designed to cover typical issues in common lawsuits.
The condition of dying without a valid will. The probate court appoints an administrator to distribute the deceased person’s property according to state law.
The method by which property is distributed when a person dies without a valid will. Each state’s law provides that the property be distributed to the closest surviving relatives. In most states, the surviving spouse, children, parents, siblings, nieces and nephews, and next of kin inherit, in that order.
To take effect, or to benefit someone. In property law, the term means “to vest.” For example, Jim buys a beach house that includes the right to travel across the neighbor’s property to get to the water. That right of way is said, cryptically, “to inure to the benefit of Jim.”
A complete listing of all property owned by a deceased person at the time of death. The inventory is filed with the court during probate. The executor or administrator of the estate is responsible for making and filing the inventory.
(1) To formally grant power or authority to someone. For example, when the President of the United States is inaugurated, he is invested with all the powers of that office. (2) To contribute money to a business venture, or to buy property or securities, with the intention and expectation of making a profit.
A person who makes investments. An investor may act either for herself or on behalf of others. A stock broker or mutual fund manager, for instance, makes investments for others who have entrusted her with their money.
A business guest, or someone who enters property held open to members of the public, such as a visitor to a museum. Property owners must protect invitees from dangers on the property. In an example of the perversion of legalese, social guests that you invite into your home are called “licensees.”
See intellectual property law.
Latin for “he himself said it.” The term labels something that is asserted but unproved.
Latin for “by the fact itself.” This term is used by Latin-addicted lawyers when something is so obvious that it needs no elaboration or further explanation. For example, it might be said that a blind person, ipso facto, is not qualified to obtain to a driver’s license.
Differences between spouses that are considered sufficiently severe to make married life together more or less impossible. In a number of states, irreconcilable differences is the accepted ground for a no-fault divorce. As a practical matter, courts seldom, if ever, inquire into what the differences actually are, and routinely grant a divorce as long as the party seeking the divorce says the couple has irreconcilable differences. Compare incompatibility; irremediable breakdown.
irremediable or irretrievable breakdown
The situation that occurs in a marriage when one spouse refuses to live with the other and will not work toward reconciliation. In a number of states, irremediable breakdown is the accepted ground for a no-fault divorce. As a practical matter, courts seldom, if ever, inquire into whether the marriage has actually broken down, and routinely grant a divorce as long as the party seeking the divorce says the marriage has fallen apart. Compare incompatibility; irreconcilable differences.
irresistible impulse test
A seldom-used test for criminal insanity that labels the person insane if he could not control his actions when committing the crime, even though he knew his actions were wrong.
A permanent trust. Once you create it, it cannot be revoked, amended or changed in any way.
A table of national and regional expense estimates published by the IRS. Debtors whose current monthly income is more than their state’s median family income must use the IRS expenses to calculate their average net income in a Chapter 7 case, or their disposable income in a Chapter 13 case.
See Internet service provider.
A term generally meaning all your children and their children down through the generations, including grandchildren, great-grandchildren, and so on. Also called “lineal descendants.”