An opportunity to buy stock at a fixed price, offered by a seller who does not own the stock to back up the promise. If the buyer wants to exercise the option, the seller must purchase the stock at market price to make good on the offer.
A living, breathing human being, as opposed to a legal entity such as a corporation. Different rules and protections apply to natural persons and corporations, such as the Fifth Amendment right against self-incrimination, which applies only to natural persons.
The process by which a foreign person becomes a U.S. citizen. Almost everyone who goes through naturalization must first have held a green card for several years. A naturalized U.S. citizen has virtually the same rights as a native-born American citizen.
See capitalized interest.
A denial of wrongdoing in which a person actually admits more than she denies. For example, if a defendant who is accused of embezzling $2 million in 1996 denies that she embezzled $2 million during that year, the denial is pregnant with the possibility that she might have embezzled a different sum of money during a different time period.
A written document that represents an unconditional promise to pay a specified amount of money upon the demand of its owner. Examples include checks and promissory notes. Negotiable instruments can be transferred from one person to another, as when you write “pay to the order of” on the back of a check and turn it over to someone else.
Earnings that remain after an employer subtracts mandatory deductions (such as income tax, union dues and Social Security contributions) from an employee’s gross income.
The value of all property owned at death less liabilities or debts.
A commercial real estate lease in which the tenant regularly pays not only for the space (as he does with a gross lease) but for a portion of the landlordÃ¢â‚¬â„¢s operating costs as well. When all three of the usual costs–taxes, maintenance and insurance–are passed on, the arrangement is known as a “triple net lease.” Because these costs are variable and almost never decrease, a net lease favors the landlord. Accordingly, it may be possible for a tenant to bargain for a net lease with caps or ceilings, which limits the amount of rent the tenant must pay. For example, a net lease with caps may specify that an increase in taxes beyond a certain point (or any new taxes) will be paid by the landlord. The same kind of protection can be designed to cover increased insurance premiums and maintenance expenses.
net taxable estate
See taxable estate.
A person, usually a relative, who appears in court on behalf of a minor or incompetent plaintiff, but who is not a party to the lawsuit. For example, children are often represented in court by their parents as “next friends.”
next of kin
The closest relatives, as defined by state law, of a deceased person. Most states recognize the spouse and the nearest blood relatives as next of kin.
Any divorce in which the spouse who wants to split up does not have to accuse the other of wrongdoing, but can simply state that the couple no longer gets along. Until no-fault divorce arrived in the 1970s, the only way a person could get a divorce was to prove that the other spouse was at fault for the marriage not working. No-fault divorces are usually granted for reasons such as incompatibility, irreconcilable differences, or irretrievable or irremediable breakdown of the marriage. Also, some states allow incurable insanity as a basis for a no-fault divorce. Compare fault divorce.
Car insurance laws that require the insurance companies of each person in an accident to pay for medical bills and lost wages of their insured, up to a certain amount, regardless of who was at fault. The effect of no-fault insurance laws is to eliminate lawsuits in small accidents. The advantage is the prompt payment of medical bills and expenses. The downsides are that the amounts paid by no-fault policies are often not enough to fully cover a person’s losses and that no-fault does not compensate for pain and suffering.
See nolle prosequi.
Latin for “we shall no longer prosecute.” At trial, this is an entry made on the record by a prosecutor in a criminal case stating that he will no longer pursue the matter. An entry of nolle prosequi may be made at any time after charges are brought and before a verdict is returned or a plea entered. Essentially, it is an admission on the part of the prosecution that some aspect of its case against the defendant has fallen apart. Most of the time, prosecutors need a judgeÃ¢â‚¬â„¢s permission to Ã¢â‚¬Å“nol-prosÃ¢â‚¬Â a case. (See Federal Rule of Criminal Procedure 48a.) Abbreviated Ã¢â‚¬Å“nol. pros.Ã¢â‚¬Â or Ã¢â‚¬Å“nol-pros.Ã¢â‚¬Â
Latin for “I choose not to.” See nolo contendre.
A plea entered by the defendant in response to being charged with a crime. If a defendant pleads nolo contendere, she neither admits nor denies that she committed the crime, but agrees to a punishment (usually a fine or jail time) as if guilty. Usually, this type of plea is entered because it can’t be used as an admission of guilt if a civil case is held after the criminal trial.
See noncompetition agreement.
An agreement, generally included in an employment contract or a contract for the sale of a business, where one party agrees not to compete with the other party for a specific period of time and within a particular area. Salespeople, for example, often sign noncompetition agreements that prevent them from using the contacts gained by one employer to benefit another employer. Or a salesperson may sign what is known as a Ã¢â‚¬Å“noncompete,Ã¢â‚¬Â agreeing not to sell within a particular area, or even work in the same type of business. In some states, such as California, courts view noncompetition agreements with disfavor and will not enforce them unless the restrictions are very narrow. In other states, courts routinely uphold them.
Debts that cannot be erased by filing for bankruptcy. If you file for Chapter 7 bankruptcy, these debts will remain when your case is over. If you file for Chapter 13 bankruptcy, the nondischargeable debts will have to be paid in full during your plan or you will have a balance at the end of your case. Examples of nondischargeable debts include alimony and child support, most income tax debts, many student loans and debts for personal injury or death caused by drunk driving. Compare dischargeable debts.
A legally binding contract in which a person or business promises to treat specific information as a trade secret and not disclose it to others without proper authorization. Nondisclosure agreements are often used when a business discloses a trade secret to another person or business for such purposes as development, marketing, evaluation or securing financial backing. Although nondisclosure agreements are usually in the form of written contracts, they may also be implied if the context of a business relationship suggests that the parties intended to make an agreement. For example, a business that conducts patent searches for inventors is expected to keep information about the invention secret, even if no written agreement is signed, because the nature of the business is to deal in confidential information.
The property you risk losing to your creditors when you file a Chapter 7 bankruptcy or when a creditor sues you and wins a judgment. Nonexempt property typically includes valuable clothing (furs) and electronic equipment, an expensive car that’s been paid off and most of the equity in your house. Compare exempt property.
People who come to the United States temporarily for some particular purpose but do not remain permanently. There are many types of nonimmigrants. Students, temporary workers and visitors are some of the most common.
A U.S. visa that allows an individual to come to the United States temporarily and for a limited purpose. Each nonimmigrant visa comes with a different set of privileges, such as the right to work or study. In addition to a descriptive name, a letter of the alphabet and a number identifies each type of nonimmigrant visa. Student visas, for example, are F-1 or M-1 and investors are E-2. Nonimmigrant visas also vary according to how long they permit you to stay in the United States. For example, on an investor visa, you can remain for many years, but on a visitor’s visa, you can stay for only six months at a time.
A requirement for obtaining a patent. An invention is nonobvious if it would be viewed as an unexpected or surprising development by someone skilled in the technology of the particular field. For example, Babe Ruth III invents an electronic device that can signal whether a pitch is a ball or a strike. Babe’s patent application is rejected on the ground that similar technology has been developed for television commentators and that Babe’s invention extending these prior art developments to the game itself is obvious (in patent-speak, it “lacks nonobviousness”) and is therefore not patentable.
The distribution of a deceased person’s property by any means other than probate. Many types of property pass free of probate, including property left to a surviving spouse and property left outside of a will through probate-avoidance methods such as pay-on-death designations, joint tenancy ownership, living trusts and life insurance. Property that avoids probate is sometimes described as the Ã¢â‚¬Å“nonprobate estate.Ã¢â‚¬Â Nonprobate distribution may also occur if the deceased person leaves an invalid will. In that case, property will pass according to the particular state’s laws of intestate succession.
A legal structure authorized by state law allowing people to come together to either benefit members of an organization (a club, or mutual benefit society) or for some public purpose (such as a hospital, environmental organization or literary society). Nonprofit corporations, despite the name, can make a profit, but the business cannot be designed primarily for profit-making purposes, and the profits must be used for the benefit of the organization or purpose the corporation was created to help. When a nonprofit corporation dissolves, any remaining assets must be distributed to another nonprofit, not to board members. As with for-profit corporations, directors of nonprofit corporations are normally shielded from personal liability for the organization’s debts. Some nonprofit corporations qualify for a federal tax exemption under Ã‚Â§ 501(c)(3) of the Internal Revenue Code, with the result that contributions to the nonprofit are tax deductible by their donors.
An airline ticket for which you cannot get your money back if you decide not to travel. Each airline has its own policies and exceptions regarding nonrefundable tickets. For example, many airlines will allow you to apply the amount of an unused ticket towards a later flight, subject to a fee.
An airline ticket that can be used only by the passenger whose name appears on the ticket. All airlines require passengers to show ID when they check in, and an airline can confiscate a ticket if the names on the ID and on the ticket don’t match.
Certification by a notary public to establish the authenticity of a signature on a legal document. Many legal documents, such as deeds and powers of attorney, are commonly notarized.
A licensed public officer who administers oaths, certifies documents and performs other specified functions. A notary public’s signature and seal is required to authenticate the signatures on many legal documents.
The substitution of a new contract for an old one. A novation may change one of the parties to the contract or the duties that must be performed by the original parties.
A requirement for obtaining a patent. To be novel, an invention must be physically different in some way from all previous inventions.
Something that interferes with the use of property by being irritating, offensive, obstructive or dangerous. Nuisances include a wide range of conditions, everything from a chemical plant’s noxious odors to a neighbor’s dog barking. The former would be a “public nuisance,” one affecting many people, while the other would be a “private nuisance,” limited to making your life difficult, unless the dog was bothering others. Lawsuits may be brought to abate (remove or reduce) a nuisance. See quiet enjoyment, attractive nuisance.
Money charged by some credit card companies to increase their profits when you fail to use the card the way the creditor wants. Examples include late payment fees, inactivity fees and fees for not carrying a balance from month to month. It’s best to shop around and get rid of cards that have these fees attached.
Latin for “no goods.” This is what the sheriff writes when she can find no property to seize in order to pay off a court judgment.
An attestation that one will tell the truth, or a promise to fulfill a pledge, often calling upon God as a witness. The best known oath is probably the witnessÃ¢â‚¬â„¢ pledge Ã¢â‚¬Å“to tell the truth, the whole truth, and nothing but the truthÃ¢â‚¬Â during a legal proceeding. In another context, a public official usually takes an Ã¢â‚¬Å“oath of officeÃ¢â‚¬Â before assuming her position, in which she declares that she will faithfully perform her duties.
oath of office
Occupational Safety and Health Act (OSHA)
The primary federal law establishing safety standards in the workplace. Generally, OSHA requires employers to provide a safe workplace by informing employees about potential hazards, training them to deal with hazards and recording workplace injuries.
offensive collateral estoppel
A doctrine that prevents a defendant from re-litigating an issue after it has been lost. For example, if your neighbor sues you for putting up a fence on his land and the court rules that your fence extends beyond your property line, you can’t later file your own lawsuit seeking a declaration that the property line is incorrectly drawn.
A proposal to enter into an agreement with another person. An offer must express the intent of the person making the offer to form a contract, must contain some essential terms–including the price and subject matter of the contract–and must be communicated by the person making the offer. A legally valid acceptance of the offer will create a binding contract.
offer of proof
At trial, a partyÃ¢â‚¬â„¢s explanation to a judge as to how a proposed line of questioning, or a certain item of physical evidence, would be relevant to its case and admissible under the rules of evidence. Offers of proof arise when a party begins a line of questioning that the other side objects to as calling for irrelevant or inadmissible information. If the judge thinks that the questions might lead to proper evidence, the judge will stop the trial, ask the parties to Ã¢â‚¬Å“approach the bench,Ã¢â‚¬Â and give the questioner a chance to show how, if allowed, the expected answers will be both relevant and admissible. This explanation is usually presented out of the juryÃ¢â‚¬â„¢s hearing, but it does become part of the trial record. If the matter is later heard on appeal, the appellate court will use the record to decide whether the judgeÃ¢â‚¬â„¢s ruling was correct.
A person elected by a profit or nonprofit corporation’s board of directors, or by the manager of a limited liability company, to manage the day-to-day operations of the organization. Officers generally hold titles such as President or Treasurer. Many states and most corporate bylaws or LLC operating agreements require a corporation or LLC to have a president, secretary and treasurer. Election of a vice president may be required by state law.
Older Workers Benefit Protection Act
A federal law that makes it illegal for an employer to use an employee’s age to discriminate in benefits or for a company to target older workers for layoffs. This law also requires employers to allow employees at least 21 days to consider waivers not to sue offered by an employer in exchange for early retirement benefits.
The rule that requires a patent application to be filed within one year of the following: any public use of the invention by the inventor, a sale of the invention, an offer to sell the invention, or any description of the invention by the inventor in a published document. Failure to file a patent application within this one-year period results in the invention’s passing into the public domain, where it is no longer eligible for a patent.
An adoption in which there is some degree of contact between the birthparents and the adoptive parents and sometimes with the child as well. As opposed to most adoptions in which birth and adoption records are sealed by court order, open adoptions allow the parties to decide how much contact the adoptive family and the birthparents will have.
A statement made by an attorney or self-represented party at the beginning of a trial before evidence is introduced. The opening statement outlines the party’s legal position and previews the evidence that will be introduced later. The purpose of an opening statement is to familiarize the jury with what it will hear–and why it will hear it–not to present an argument as to why the speaker’s side should win; that comes after all evidence is presented as part of the closing argument.
See own recognizance.
A decision issued by a court. It can be a simple command–for example, ordering a recalcitrant witness to answer a proper question–or it can be a complicated and reasoned decision made after a hearing, directing that a party either do or refrain from some act. For example, following a hearing, the court may order that evidence gathered by the police not be introduced at trial; or a judge may issue a temporary restraining order. This term usually does not describe the final decision in a case, which most often is called a judgment.
order to show cause
An order from a judge that directs a party to come to court and convince the judge why she shouldn’t grant an action proposed by the other side or by the judge on her own (sua sponte). For example, in a divorce, at the request of one parent a judge might issue an order directing the other parent to appear in court on a particular date and time to show cause why the first parent should not be given sole physical custody of the children. Although it would seem that the person receiving an order to show cause is at a procedural disadvantage–she, after all, is the one who is told to come up with a convincing reason why the judge shouldn’t order something–both sides normally have an equal chance to convince the judge to rule in their favor.
A law adopted by a town or city council, county board of supervisors or other municipal governing board. Typically, local governments issue ordinances establishing zoning and parking rules and regulating noise, garbage removal, and the operation of parks and other areas that affect people who live or do business within the locality’s borders.
original work of authorship
Under U.S. copyright laws, any type of expression independently conceived by its creator. As long as a particular expression has been independently created, it need not be original in the sense of “new.” For example, if Thamas Dowel never heard of or read One Flew Over the Cuckoo’s Nest, by Ken Kesey, but somehow managed to write a play very similar to it, Dowel’s play would qualify as original, and would be protected by copyright law. Many creations qualify as works of authorship, including sheet music, movies, records, tape recordings, video disk productions, computer software, laser disk games, cartoons, designs, magazines, poems and books. The few categories that don’t qualify include titles of books, movies and songs; short phrases and slogans; printed forms; compilations of facts; and works consisting entirely of information that is public domain property–for example, lists and tables taken from public documents. Items in these categories are considered too short or too lacking in originality to qualify for copyright protection.
See Occupational Safety and Health Act.
A common practice whereby an airline, hotel or other company accepts more reservations than it has seats or rooms available, on the presumption that a certain percentage of people will not show up. Airlines have a legal right to overbook, while hotels do not. A hotel must find a room for everyone who has a reservation and shows up on time. An airline may be required to offer compensation for people involuntarily bumped from a flight, depending on several factors, including how long they must wait for another flight.
own recognizance (OR)
A way the defendant can get out of jail, without paying bail, by promising to appear in court when next required to be there. Sometimes called “personal recognizance.” Only those with strong ties to the community, such as a steady job, local family and no history of failing to appear in court, are good candidates for “OR” release. If the charge is very serious, however, OR may not be an option.
See buy-sell agreement
pain and suffering
The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured plaintiff can seek compensation in the form of cold, hard cash. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work — although sometimes these are factored in to arrive at a logical figure.
A non-legal term coined by journalists to describe the division of property or alimony-like support given by one member of an unmarried couple to the other after they break up.
The face value of a stock, assigned by a corporation at the time the stock is issued. The par value is often printed on the stock certificate, but the market value of the stock may be much more or much less than par.
A person who does legal work but who is not licensed to practice law or dispense legal advice. Independent paralegals (those who work directly with the public, not for lawyers) assist their customers by providing forms, helping people fill them out correctly and filing them with the proper court.
When used without a qualifier such as “limited” or “limited liability,” usually refers to a legal structure called a general partnership. This is a business owned by two or more people (called partners or general partners) who are personally liable for all business debts. To form a partnership, each partner normally contributes money, valuable property or labor in exchange for a partnership share, which reflects the amount contributed. Partnerships are easy to form since no registration is required with any governmental agency to create a partnership (although tax registration and other requirements to conduct business may still apply). Although not required, it is an excellent idea to prepare a written partnership agreement between the partners to define items such as ownership percentages, how profits and losses will be divided and what happens if a partner dies or becomes disabled. Partnerships themselves do not pay federal or state income taxes; rather, profits are passed through to partners who report and pay income taxes on their personal returns. See also limited partnership; limited liability partnership.
A person, corporation or other legal entity that files a lawsuit (the plaintiff or petitioner) or defends against one (the defendant or respondent).
A legal monopoly, granted by the U.S. Patent and Trademark Office (PTO), for the use, manufacture and sale of an invention. Patents on useful devices, called utility patents, last for 20 years from the date the patent application was filed. Design patents last for 14 years from the date issued. And plant patents last for 17 years from the date issued.
Patent and Trademark Office (PTO)
An administrative branch of the U.S. Department of Commerce charged with overseeing and implementing the federal laws of patent and trademark.This agency is responsible for examining and issuing all patents and trademarks in the United States.
A statement included in a patent application that describes the structure of an invention in precise and exact terms, using a long established formal style and precise terminology. Patent claims serve as a way for the U.S. Patent and Trademark Office (PTO) to determine whether an invention is patentable, and as a way for a court to determine whether a patent has been infringed. In concept, a patent claim marks the boundaries of the patent in the same way as the legal description in a deed specifies the boundaries of the property.
The official document sent to an inventor by the U.S. Patent and Trademark Office (PTO) when that office has issued a patent for the inventor’s creation.
Visual representations of an invention that are included in a patent application. Patent drawings must be included in the application unless the nature of the invention precludes such them, as would be the case with the formula for a new substance. Patent drawings should show all the features of the invention described in the application, including those features that distinguish it from prior art.
The status of an invention between the time when:a utility patent application has been filed and when it is issued or rejected, or a provisional patent application has been submitted and when a subsequent patent application (filed within one year) is issued or rejected. Inventors often mark their devices “patent pending” to deter competitors from copying the idea or claim it as their own.
A search for documents that will determine whether a particular invention was novel and nonobvious when it was invented, and hence whether it may qualify for a patent. A patent search usually begins with a database of previously issued patents, and also covers other types of documents, such as journal articles and scientific papers, that describe unpatented inventions.
A lawsuit to determine the identity of the father of a child born outside of marriage, and to provide for the support of the child once the identity of the father has been determined.
pay-on-death (POD) designation
A way to avoid probate for bank accounts, government bonds, individual retirement accounts and, in many states, securities or a car. To create a pay-on-death designation, you simply name someone on the ownership document (such as the registration card for a bank account) to inherit the property at your death. You retain complete control of your property while you are alive, and you can change the beneficiary (payee) at any time. At your death, the property is transferred directly to the beneficiary, free of probate.
See Pension Benefit Guaranty Corporation.
Latin for “while the action is pending.” This phrase is used to describe matters that are contingent upon the outcome of a lawsuit. For example, money may be deposited by the defendant with the court pendente lite in order to compensate the plaintiff if the defendant loses the case. If the defendant wins, she gets her money back.
A retirement fund for employees paid for or contributed to by some employers as part of a package of compensation for the employees’ work. Pensions became widespread during the Second World War, when they were commonly used as lures because there were more jobs than workers.
Pension Benefit Guaranty Corporation (PBGC)
A public, nonprofit insurance fund that provides some limited coverage against bankrupt pension funds. Should a pension fund be unable to pay all its obligations to its retirees, the PBGC may pay some of the pension fund’s unfulfilled obligations. The PBGC covers only defined benefit retirement plans and only vested benefits.
Under a will, the most common method of determining what share of property each beneficiary gets when one of the beneficiaries dies before the willmaker, leaving children of his or her own. For example, Fred leaves his house jointly to his son Alan and his daughter Julie. But Alan dies before Fred, leaving two young children. If FredÃ¢â‚¬â„¢s will states that heirs of a deceased beneficiary are to receive the property per capita, Julie and the two grandchildren will each take a third. If, on the other hand, FredÃ¢â‚¬â„¢s will states that heirs of a deceased beneficiary are to receive the property per stirpes, Julie will receive one-half of the property, and AlanÃ¢â‚¬â„¢s two children will share his half in equal shares (through Alan by right of representation).
Under a will, a method of determining who inherits property when a joint beneficiary has died before the willmaker, leaving living children of his or her own. For example, Fred leaves his house jointly to his son Alan and his daughter Julie. But Alan dies before Fred, leaving two young children. If FredÃ¢â‚¬â„¢s will states that heirs of a deceased beneficiary are to receive the property “per stirpes,” Julie will receive one-half of the property, and AlanÃ¢â‚¬â„¢s two children will share his half in equal shares (through Alan by right of representation). If, on the other hand, FredÃ¢â‚¬â„¢s will states that the property is to be divided per capita, Julie and the two grandchildren will each take a third.
During jury selection, an opportunity for a party to a lawsuit to dismiss or excuse a potential juror without having to give a valid reason, as would be the case when a juror is challenged for cause. Depending on court rules, each party typically gets to make from five to 15 peremptory challenges. Although parties may generally use their peremptory challenges as they see fit, the U.S. Constitution has been interpreted to prohibit their use to eliminate all jurors of a particular race or gender from a jury.
A non-U.S. citizen who has been given permission to make his or her permanent home in the United States. If you acquire permanent residence, you will be issued a green card to prove it. The terms permanent resident and “green card holder” mean exactly the same thing. You cannot be a permanent resident without a green card and you cannot have a green card without being a permanent resident. As a permanent resident, you may travel as much as you like, but your place of residence must be the United States and you must keep that residence on a permanent basis. If you leave the United States and stay away for more than a year, you risk losing your green card.
An injury not to property, but to your body, mind or emotions. For example, if you slip and fall on a banana peel in the grocery store, personal injury covers any actual physical harm (broken leg and bruises) you suffered in the fall as well as the humiliation of falling in public, but not the harm of shattering your watch.
personal injury recovery
The amount that comes from a lawsuit or insurance settlement to compensate someone for physical and mental suffering, including injury to body, injury to reputation or both.
All property other than land and buildings attached to land. Cars, bank accounts, wages, securities, a small business, furniture, insurance policies, jewelry, patents, pets and season baseball tickets are all examples of personal property. Personal property may also be called personal effects, movable property, goods and chattel, and personalty. Compare real estate.
A formal written request made to a court, asking for an order or ruling on a particular matter. For example, if you want to be appointed conservator for an elderly relative, you must file a petition with a court. See also complaint.
A formal request for a green card or a specific nonimmigrant (temporary) visa. In many cases, the petition must be filed by someone sponsoring the immigrant, such as a family member or employer. After the petition is approved, the immigrant may submit the actual visa or green card application.
A person who initiates a lawsuit. A synonym for plaintiff, used almost universally in some states and in others for certain types of lawsuits, most commonly divorce and other family law cases.
A U.S. resident or business who makes a formal request that a foreign national be allowed to enter the United States. The petitioner must be an immediate relative who is either a U.S. citizen or green card holder or your prospective U.S. employer. No one else may act as your petitioner. Almost all green card categories and some types of nonimmigrant visa categories require you to have a petitioner.
The right and obligation of a parent to have his child live with him. Compare legal custody.
The inability of a spouse to engage in sexual intercourse with the other spouse. In some states, physical incapacity is a ground for an annulment or fault divorce, assuming the incapacity was not disclosed to the other spouse before the marriage.
piercing the veil
A judicial doctrine that allows a plaintiff to hold otherwise immune corporate officers and directors personally liable for damages caused by a corporation under their control. The veil is pierced when officers have acted intentionally and illegally, or when their actions exceeded the power given them by the company’s articles of incorporation.
Passing off someone else’s work as your own, whether word for word or merely the creative ideas. This can amount to copyright infringement if permission has not been obtained from the copyright owner for use of the expressive elements of the work. Even if permission is granted, putting your name on someone else’s work is still plagiarism and is unethical within artistic, scientific, academic and political communities.
The person, corporation or other legal entity that initiates a lawsuit. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff. Compare defendant, respondent.
A patent issued for new strains of asexually reproducing plants. Plant patents last for 17 years from the date the patent issues.
The defendant’s formal answer to criminal charges. Typically defendants enter one of the following pleas: guilty, not guilty or nolo contendere. A plea is usually entered when charges are formally brought (at arraignment).
A negotiation between the defense and prosecution (and sometimes the judge) that settles a criminal case. The defendant typically pleads guilty to a lesser crime (or fewer charges) than originally charged, in exchange for a guaranteed sentence that is shorter than what the defendant could face if convicted at trial. The prosecution gets the certainty of a conviction and a known sentence; the defendant avoids the risk of a higher sentence; and the judge gets to move on to other cases.
A statement of the plaintiff’s case or the defendant’s defense, set out in generally accepted legal language and format. Today, in many states, the need to plead a case by drafting legal jargon — or borrowing from a legal form book — and printing it on numbered legal paper has been replaced by the use of pre-printed forms. In this case, creating a proper pleading consists principally of checking the correct boxes and filling in the requested information.
See private mortgage insurance.
See pay-on-death designation.
A strategy for avoiding a hostile takeover. A company offers low-price stock to its current shareholders in order to make it more expensive for another company to buy them out.
Part of the Latin phrase post hoc, ergo propter hoc, which means “after this, therefore because of this.” The phrase represents the faulty logic of assuming that one thing was caused by another merely because it followed that prior event in time.
A trust for children in which the trustee decides how to spend money on each child, taking money out of the trust to meet each child’s specific needs. One important advantage of a pot trust over separate trusts is that it allows the trustee to provide for one child’s unforeseen need, such as a medical emergency. But a pot trust can also make the trustee’s life difficult by requiring choices about disbursing funds to the various children. A pot trust ends when the youngest child reaches a certain age, usually 18 or 21.
A will that “pours over” property into a trust when the will maker dies. Property left through the will must go through probate before it goes into the trust.
power of appointment
The legal authority to decide who will receive someone else’s property, usually property held in a trust. Most trustees can distribute the income from a trust only according to the terms of the trust, but a trustee with a power of appointment can choose the beneficiaries, sometimes from a list of candidates specified by the grantor. For example, Karin creates a trust with power of appointment to benefit either the local art museum, symphony, library or park, depending on the trustee’s assessment of need.
power of attorney
A document that gives another person legal authority to act on your behalf. If you create such a document, you are called the principal, and the person to whom you give this authority is called your attorney-in-fact. If you make a durable power of attorney, the document will continue in effect even if you become incapacitated. For examples, see durable power of attorney for finances; durable power of attorney for healthcare.
See provisional patent application.
prayer for relief
What the plaintiff asks of the court — for example, the plaintiff may ask for an award of monetary damages, an injunction to make the defendant stop a certain activity, or both.
A legal principle or rule created by one or more decisions of a state or federal appellate court. These rules provide a point of reference or authority for judges deciding similar issues in later cases. Lower courts must apply these rules when faced with similar legal issues. For example, if the Montana Supreme Court decides that a certain type of employment contract overly restricts the right of the employee to quit and get another job, all other Montana courts must apply this same rule.
In the law of wills, a spouse who dies before the will maker while still married to him or her.
A payment made by a debtor to a creditor within a defined period prior to filing for bankruptcy — within three months for arms-length creditors (regular commercial creditors) and within one year for insider creditors (friends, family members, and business associates). Because a preference gives the creditor who received the payment an edge over other creditors in the bankruptcy case, the trustee can recover the preference (the amount of the payment) and distribute it among all of the creditors.
An agreement made by a couple before marriage that controls certain aspects of their relationship, usually the management and ownership of property, and sometimes whether alimony will be paid if the couple later divorces. Courts usually honor premarital agreements unless one person shows that the agreement was likely to promote divorce, was written with the intention of divorcing or was entered into unfairly. A premarital agreement may also be known as a “prenuptial agreement.”
See premarital agreement.
In a Chapter 7 bankruptcy, when the debtor’s current monthly income exceeds the family median income for his or her state and he or she cannot pass the means test, the court will presume that the debtor has sufficient income to fund a Chapter 13 plan. In this situation, the debtor will not be allowed to proceed with a Chapter 7 bankruptcy unless the debtor can prove that he or she is not abusing the Chapter 7 bankruptcy remedy.
presumption of innocence
One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each element of the crime charged.
A child or spouse who is not mentioned in a will and whom the court believes was accidentally overlooked by the person who made the will. For example, a child born or adopted after the will is made may be deemed a pretermitted heir. If the court determines that an heir was accidentally omitted, that heir is entitled to receive the same share of the estate as she would have if the deceased had died without a will. A pretermitted heir is sometimes called an “omitted heir.”
Latin for “on its face.” A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial. For example, if you can show that someone intentionally touched you in a harmful or offensive way and caused some injury to you, you have established a prima facie case of battery. However, this does not mean that you automatically win your case. The defendant would win if he could show that you consented to the harmful or offensive touching.
(1) When creating a power of attorney or other legal document, the person who appoints an attorney-in-fact or agent to act on his or her behalf. (2) In criminal law, the main perpetrator of a crime. (3) In commercial law, the total amount of a loan, not including any capitalized fees or interest. (4) In the law of trusts, the property of the trust, as opposed to the income generated by that property. The principal is also known as the trust corpus; that’s Latin for “body.” For example, Arthur establishes a new trust with $100,000, with interest and other income payable to Merlin; the $100,000 is the trust principal or corpus.
The list on which distinctive trademarks and service marks approved for federal regulation are placed. The benefits of getting a mark placed on the principal register include the notice to potential copiers that your mark is protected, the right to sue to stop copying, and the right to have the mark considered immune from legal challenge after five years. Registration also means that an infringer will be considered a willful infringer in case of an infringement lawsuit, which makes it a lot easier to collect large damages and possibly attorney fees.
All previous inventions in the field of an invention for which a patent is being sought. Prior art is used by the Patent and TM Office to decide whether the invention is sufficiently unique and non-intuitive to qualify for patent protection.
A type of debt that is paid first if there are distributions made from the bankruptcy estate in a Chapter 7 bankruptcy, and must be paid in full in a Chapter 13 bankruptcy. Priority debts include alimony and child support, fees owed to the trustee and the attorney in the bankruptcy case, and wages owed to employees.
private mortgage insurance (PMI)
Insurance that reimburses a mortgage lender if the buyer defaults on the loan and the foreclosure sale price is less than the amount owed the lender (the mortgage plus the costs of the sale). A home buyer who makes less than a 20% down payment may have to purchase PMI.
See confidential communication.
pro hac vice
Latin meaning “for this one particular occasion.” The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried.
A term derived from the Latin in propria, meaning “for one’s self,” used in some states to describe a person who handles her own case without a lawyer. In other states, the term pro se is used. When a nonlawyer files his own legal papers, he is expected to write “in pro per” at the bottom of the heading on the first page.
A Latin phrase meaning “for himself” or “in one’s own behalf.” This term denotes a person who represents herself in court. It is used in some states in place of “in pro per” and has the same meaning.
The amount and quality of information police must have before they can arrest or search without a warrant or that a judge must have before she will sign a search warrant allowing the police to conduct a search or arrest a suspect. Reliable information must show that it’s more likely than not that a crime has occurred and the suspect is involved.
The court process following a person’s death that includes proving the authenticity of the deceased person’s will appointing someone to handle the deceased person’s affairs identifying and inventorying the deceased person’s property paying debts and taxes identifying heirs, and distributing the deceased person’s property according to the will or, if there is no will, according to state law. Formal court-supervised probate is a costly, time-consuming process — a windfall for lawyers — which is best avoided if possible.
A specialized court or division of a state trial court that considers only cases concerning the distribution of deceased persons’ estate. Called “surrogate court” in New York and several other states, this court normally examines the authenticity of a will — or if a person dies intestate, figures out who receives her property under state law. It then oversees a procedure to pay the deceased person’s debts and to distribute her assets to the proper inheritors. See probate.
proceeds for damaged exempt property
In a bankruptcy proceeding, money collected through insurance, arbitration, mediation, settlement or a lawsuit to pay for exempt property that’s no longer exemptible because it has been damaged or destroyed.
A legal structure authorized by state law for a fairly narrow list of licensed professions, including lawyers, doctors, accountants, many types of higher-level health providers and often architects. Unlike a regular corporation, a professional corporation does not absolve a professional for personal liability for her own negligence or malpractice. The main reason why groups of professions choose this organizational structure is that, unlike a general partnership, owners are not personally liable for the malpractice of other owners. In some states, limited liability partnerships offer this same benefit and may be more desirable for other reasons.
See personal property, real estate, community property, separate property.
property control trust
Any trust that imposes limits or controls over the rights of trust beneficiaries. These trusts include (1) special needs trusts designed to assist people who have special physical, emotional or other requirements, (2) spendthrift trusts designed to prevent a beneficiary from wasting the trust principal; and (3) sprinkling trusts that allow the trustee to decide how to distribute trust income or principal among the beneficiaries.
See guardian of the estate.
When a local District Attorney, state Attorney General or federal United States Attorney brings a criminal case against a defendant.
See District Attorney.
A lawyer who works for the local, state or federal government to bring and litigate criminal cases.
proving a will
Convincing a probate court that a document is truly the deceased person’s will. Usually this is a simple formality that the executor or administrator easily satisfies by showing that the will was signed and dated by the deceased person in front of two or more witnesses. When the will is holographic — that is, completely handwritten by the deceased and not witnessed, it is still valid in many states if the executor can produce relatives and friends to testify that the handwriting is that of the deceased.
provisional patent application (PPA)
The provisional patent application is a simple, inexpensive strategy to preserve your rights while you decide whether to file for a regular patent. It establishes an official U.S. patent application filing date for the invention and is much less expensive, and much easier to prepare, than a regular patent application.
The act of inciting another person to do a particular thing. In a fault divorce, provocation may constitute a defense to the divorce, preventing it from going through. For example, if a wife suing for divorce claims that her husband abandoned her, the husband might defend the suit on the grounds that she provoked the abandonment by driving him out of the house.
See Patent and Trademark Office.
Someone appointed by a probate court to oversee probate proceedings when a person dies without a will or heirs, and his or her property is expected to pass to the state. Some states have public administrators who are responsible for temporarily preserving the assets of an estate if there are disputes about specific provisions in the will or about who will be appointed the regular administrator.
A lawyer appointed by the court and paid by the county, state, or federal government to represent clients who are charged with violations of criminal law and are unable to pay for their own defense.
A creative work, invention or logo that is available for use without permission from its owner. This typically occurs after patent, trademark or copyright protection has expired.
An original work of authorship that is considered published for purposes of copyright law. A work is “published” when it is first made available to the public on an unrestricted basis. It is thus possible to display a work, or distribute it with restrictions on disclosure of its contents, without actually “publishing” it. Both published and unpublished works are entitled to copyright protection, but some of the rules differ.
pur autre vie
Legal French meaning “for another’s life.” It is a phrase used to describe the duration of a property interest. For example, if Bob is given use of the family house for as long as his mother lives, he has possession of the house pur autre vie.
A trust used to postpone estate tax when more than the amount of the personal federal estate tax exemption is left to a non-U.S. citizen spouse by the other spouse. QDOT stands for qualified domestic trust.
See Qualified Domestic Relations Order.
See Qualified Medical Child Support Order.
A type of trust for wealthy married couples that allows a surviving spouse to postpone estate taxes. A QTIP trust allows the surviving spouse to make use of the trust property tax-free. Taxes are deferred until the surviving spouse dies and the trust property is received by the final trust beneficiaries, who were named by the first spouse to die.
Qualified Domestic Relations Order (QDRO)
A court order that uses pension or retirement benefits to provide alimony or child support, or to divide marital property, at divorce.This special order is necessary to comply with federal law governing retirement pay.
Qualified Medical Child Support Order (QMSCO)
A court order that provides health benefit coverage for the child of the noncustodial parent under that parent’s group health plan.
The reasonable value of services provided, which a winning party may be able to recover from an opponent who broke a contract.
A form of property owned by a married couple. If a couple moves to a community property state from a non-community property state, property they acquired together in the non-community property state may be considered quasi-community property. Quasi-community property is treated just like community property when one spouse dies or if the couple divorces.
The right of a property owner or tenant to enjoy his or her property without interference. Disruption of quiet enjoyment may constitute a nuisance. Leases and rental agreements often contain a “covenant of quiet enjoyment,” expressly obligating the landlord to see that tenants have the opportunity to live undisturbed.
A deed that transfers whatever ownership interest the transferor has in a particular property. The deed does not guarantee anything about what is being transferred, however. For example, a divorcing husband may quitclaim his interest in certain real estate to his ex-wife, officially giving up any legal interest in the property. Compare grant deed.