A lawyer who drums up a lot of business for a law firm by bringing in clients.
In patent law, describing literally. A patent is infringed if the patent’s claims read on all elements of the infringing device.
An agreement that a debtor and a creditor enter into after a debtor has filed for bankruptcy, in which the debtor agrees to repay all or part of an existing debt after the bankruptcy case is over. For instance, a debtor might make a reaffirmation agreement with the holder of a car note that the debtor can keep the car and must continue to pay the debt after bankruptcy.
Land and the property permanently attached to it, such as buildings, houses, stationary mobile homes, fences and trees. In legalese, real estate is also called real property.
real estate agent
A foot soldier of the real estate business who shows houses and does most of the other nitty-gritty tasks associated with selling real estate. An agent must have a state license and be supervised by a real estate broker. Most agents are completely dependent upon commissions from sellers for their income, so it pays to find out which side the agent represents (buyer, seller or both) before you place too much trust in the agent’s opinion.
real estate broker
A real estate professional one step up from a real estate agent. A broker has more training and can supervise agents, but its still worth examining his or her loyalties.
Another term for real estate. It includes land and things permanently attached to the land, such as trees, buildings, and stationary mobile homes. Anything that is not real property is termed personal property.
The process of filing a copy of a deed or other document concerning real estate with the land records office for the county in which the land is located. Recording creates a public record of changes in ownership of all property in the state.
A situation in which a judge or prosecutor is removed or steps down from a case. This often happens when the judge or prosecutor has a conflict of interest — for example, a prior relationship with one of the parties.
A legal or factual issue that is irrelevant to the case at hand.
The act of going over a document with a fine-toothed comb in order to find any ambiguities or areas that are not to your advantage.
In Chapter 7 bankruptcy, when the debtor obtains legal title to collateral for a debt by paying the creditor the replacement value of the collateral in a lump sum. For example, a debtor may redeem a car note by paying the lender the amount a retail vendor would charge for the car, considering its age and condition.
The act of changing a written contract when one of the parties can prove that the actual agreement was different than what’s written down. The changes are usually made by a court when both parties overlooked a mistake in the document, or when one party has deceived the other.
In the context of U.S. immigration law, people who have been allowed to live in the United States indefinitely to protect them from persecution in their home countries. Refugees get their status before coming to the U.S., while asylum seekers obtain their status after arrival. Refugees may eventually get green cards.
Someone who will inherit property in the future. For instance, if someone dies and leaves his home “to Alma for life, and then to Barry,” Barry is a remainderman because he will inherit the home in the future, after Alma dies.
A legal proceeding, commonly known as “deportation,” that is conducted before a special immigration judge to decide whether or not an immigrant will be allowed to enter or remain in the country. While, generally speaking, a person who is already in the U.S. cannot be expelled without first going through a removal hearing, someone arriving at the border or a port of entry can be forced to leave without a hearing or ever seeing a judge. Those who are deported are barred from returning to the United States for at least five years unless the Immigration and Naturalization Service (INS) grants a special waiver.
Laws that limit the amount of rent landlords may charge, and that state when and by how much the rent can be raised. Most rent control laws also require a landlord to provide a good reason, such as repeatedly late rent, for evicting a tenant. Rent control exists in some cities and counties in California, Maryland, New Jersey, New York and Washington, D.C.
What it would cost to buy a particular item from a retail vendor, considering its age and condition — for instance, to buy a car from a used car dealer, furniture from a used furniture shop,or electronic equipment on eBay.
A type of legal action where the owner of movable goods is given the right to recover them from someone who shouldnÃ¢â‚¬â„¢t have them. Replevin is often used in disputes between buyers and sellers — for example a seller might bring a replevin action to reclaim goods from a buyer who failed to pay for them.
A creditor’s taking property that has been pledged as collateral for a loan. Lenders will most often repossess cars when the owner has missed loan payments and has not attempted to work with the lender to resolve the problem. A repossessor can’t use force to get at your car, but he can legally hot-wire it and even drive it out of your unlocked garage.
request for admission
A discovery procedure, authorized by the Federal Rules of Civil Procedure and the court rules of many states, in which one party asks an opposing party to admit that certain facts are true. If the opponent admits the facts or fails to respond in a timely manner, the facts will be deemed true for purposes of trial. A request for admission is called a “request to admit” in many states.
request to admit
See request for admission.
res ipsa loquitur
A Latin term meaning “the thing speaks for itself.” Res ipsa loquitur is a legal doctrine or rule of evidence that creates a presumption that a defendant acted negligently simply because a harmful accident occurred. The presumption arises only if (1) the thing that caused the accident was under the defendant’s control, (2) the accident could happen only as a result of a careless act and, (3) the plaintiff’s behavior did not contribute to the accident. Lawyers often refer to this doctrine as “res ips” or “res ipsa.”
Latin for “a new thing,” used by courts to describe an issue of law or case that has not previously been decided.
A person who receives any property by a will or trust that is not specifically left to another designated beneficiary. For example, if Antonio makes a will leaving his home to Edwina and the remainder of his property to Elmo, then Elmo is the residuary beneficiary.
The property that remains in a deceased person’s estate after all specific gifts are made, and all debts, taxes, administrative fees, probate costs, and court costs are paid. The residuary estate also includes any gifts under a will that fail or lapse. For example, Connie’s will leaves her house and all its furnishings to Andrew, her VW bug to her friend Carl, and the remainder of her property (the residuary estate) to her sister Sara. She doesnÃ¢â‚¬â„¢t name any alternate beneficiaries. Carl dies before Connie. The VW bug becomes part of the residuary estate and passes to Sara, along with all of Connie’s property other than the house and furnishings. Also called the residual estate or residue.
See residuary estate.
A term used instead of defendant or appellee in some states — especially for divorce and other family law cases — to identify the party who is sued and must respond to the petitioner’s complaint.
An order from a court directing one person not to do something, such as make contact with another person, enter the family home or remove a child from the state. Restraining orders are typically issued in cases in which spousal abuse or stalking is feared — or has occurred — in an attempt to ensure the victim’s safety. Restraining orders are also commonly issued to cool down ugly disputes between neighbors.
restraint on alienation
A provision in a deed or will that attempts to restrict ownership of the property — for example, selling your house to your daughter with the provision that it never be sold to anyone outside the family. These provisions are generally unenforceable.
A fee paid in advance to a lawyer to secure her services. It acts as a down payment, ensuring that the lawyer won’t get stiffed and that the client will be represented.
Under the Social Security system, an amount of money available to those who reach age 62 — equivalent to a small percentage of worklife earnings. For a single person first claiming retirement benefits in 1997, the average monthly benefit was about $750; $1,250 for a couple. A single person with a high earnings record claiming retirement benefits in 1997 at age 65 would receive about $1,250 per month; $1,800 for a couple. These benefits increase yearly with the cost of living — and the amount is higher the longer a person waits to claim the benefit, up to age 70.
A term used to describe a hard-nosed judge, inflexible in the application of the law.
right of representation
See per stirpes.
right of survivorship
The right of a surviving joint tenant to take ownership of a deceased joint tenant’s share of the property. See joint tenancy.
right to cancel (a contract)
See cooling-off rules.
A delayed tax that allows you to apply the profit you make selling your old house to pay for the new one without paying capital gains taxes on the profit. In order to rollover the profits, the new house must be more expensive than the old and the two sales must occur within two years of each other.
rule against perpetuities
An exceedingly complex legal doctrine that limits the amount of time that property can be controlled after death by a person’s instructions in a will. For example, a person would not be allowed to leave property to her husband for his life, then to her children for their lives, then to her grandchildren. The gift would potentially go to the grandchildren at a point too remote in time.
rule of doubt
The rule under which the U.S. Copyright Office allows object code to be deposited in connection with a computer program registration. The rule of doubt means there is an express understanding that doubt exists as to whether the code qualifies for copyright protection should litigation later occur. In essence, the U.S. Copyright Office is saying, “We will let you deposit object code, but since we can’t read or understand it, we won’t commit ourselves as to its copyrightability.” If the registration is accomplished under the rule of doubt, the copyright owner may be unable to claim the presumption of ownership — an important benefit of registration — should the issue end up in court because of an alleged copyright infringement.
Any decision a judge makes during the course of a lawsuit.
running with the land
A phrase used in property law to describe a right or duty that remains with a piece of property no matter who owns it. For example, the duty to allow a public beach access path across waterfront property would most likely pass from one owner of the property to the next.
A term that describes a profit-making corporation organized under state law whose shareholders have applied for and received subchapter S corporation status from the Internal Revenue Service. Electing to do business as an S corporation lets shareholders enjoy limited liability status, as would be true of any corporation, but be taxed like a partnership or sole proprietor. That is, instead of being taxed as a separate entity (as would be the case with a regular or C corporation) an S corporation is a pass-through tax entity: income taxes are reported and paid by the shareholders, not the S corporation. To qualify as an S corporation a number of IRS rules must be met, such as a limit of 75 shareholders and citizenship requirements.
An order signed by a judge that directs owners of private property to allow the police to enter and search for items named in the warrant. The judge won’t issue the warrant unless she has been convinced that there is probable cause for the search — that reliable evidence shows that it’s more likely than not that a crime has occurred and that the items sought by the police are connected with it and will be found at the location named in the warrant. In limited situations the police may search without a warrant, but they cannot use what they find at trial if the defense can show that there was no probable cause for the search.
In trademark law, a mark that is not inherently distinctive becomes protected after developing a “secondary meaning”: great public recognition through long use and exposure in the marketplace. For example, though first names are not generally considered inherently distinctive, Ben & Jerry’s Ice Cream has become so well known that it is now entitled to maximum trademark protection.
secret warranty program
A program under which a car manufacturer will make repairs for free on vehicles with persistent problems, even after the warranty has expired, in order to avoid a recall and the accompanying bad press. Secret warranties are rarely advertised by the manufacturer, so consumers must pursue the manufacturer to discover and take advantage of them. A few states require manufacturers to notify car buyers when they adopt secret warranty programs.
A debt on which a creditor has a lien. The creditor can institute a foreclosure or repossession to take the property identified by the lien, called the collateral, to satisfy the debt if you default. Compare unsecured debt.
A payment required by a landlord to ensure that a tenant pays rent on time and keeps the rental unit in good condition. If the tenant damages the property or leaves owing rent, the landlord can use the security deposit to cover what the tenant owes.
The taking of physical evidence or property by law enforcement officials. This runs the gamut from taking blood for a drug test to impounding a car used in a robbery. The police must generally obtain a search warrant, or court order, before they can seize personal property.
An affirmative defense to a crime. Self-defense is the use of reasonable force to protect oneself from an aggressor. Self-defense shields a person from criminal liability for the harm inflicted on the aggressor. For example, a robbery victim who takes the robber’s weapon and uses it against the robber during a struggle won’t be liable for assault and battery since he can show that his action was reasonably necessary to protect himself from imminent harm.
The making of statements that might expose you to criminal prosecution, either now or in the future. The 5th Amendment of the U.S. Constitution prohibits the government from forcing you to provide evidence (as in answering questions) that would or might lead to your prosecution for a crime.
A will that is created in a way that allows a probate court to easily accept it as the true will of the person who has died. In most states, a will is self-proving when two witnesses sign under penalty of perjury that they observed the willmaker sign it and that he told them it was his will. If no one contests the validity of the will, the probate court will accept the will without hearing the testimony of the witnesses or other evidence. To make a self-proving will in other states, the willmaker and one or more witnesses must sign an affidavit (sworn statement) before a notary public certifying that the will is genuine and that all willmaking formalities have been observed.
Punishment in a criminal case. A sentence can range from a fine and community service to life imprisonment or death. For most crimes, the sentence is chosen by the trial judge; the jury chooses the sentence only in a capital case, when it must choose between life in prison without parole and death.
In community property states, property owned and controlled entirely by one spouse in a marriage. At divorce, separate property is not divided under the state’s property division laws, but is kept by the spouse who owns it. Separate property includes all property that a spouse obtained before marriage, through inheritance or as a gift. It also includes any property that is traceable to separate property — for example, cash from the sale of a vintage car owned by one spouse before marriage-and any property that the spouses agree is separate property. Compare community property and equitable distribution.
A situation in which the partners in a married couple live apart. Spouses are said to be living apart if they no longer reside in the same dwelling, even though they may continue their relationship. A legal separation results when the parties separate and a court rules on the division of property, such as alimony or child support — but does not grant a divorce.
A word, phrase, logo, symbol, color, sound or smell used by a business to identify a service and distinguish it from those of its competitors. If the business uses the name or logo to identify a product, such as a camera, it is called a trademark. In practice, the legal protections for trademarks and service marks are identical.
Property that is subject to use by another for a specific purpose. For example, a beachfront house that has a public walkway to the beach on its premises would be a servient tenement.
The distance between a property boundary and a building. A minimum setback is usually required by law.
A claim made by someone who allegedly owes money, that the amount should be reduced because the other person owes him money. This is often raised in a counterclaim filed by a defendant in a lawsuit. Banks may try to exercise a setoff by taking money out of a deposit account to satisfy past due payments on a loan or credit card bill. Such an act is illegal under most circumstances.
A provision in a contract that preserves the rest of the contract if a portion of it is invalidated by a court. Without a severability clause, a decision by the court finding one part of the contract unenforceable would invalidate the entire document.
Funds, usually amounting to one or two months’ salary, frequently offered by employers to workers who are laid off. No law compels employers to provide severance pay, although the employer may be legally obligated to do so if it was promised in a contract or employees’ handbook.
Unwelcome sexual advances or conduct on the job that creates an intimidating, hostile or offensive working environment. Sexual harassing behavior ranges from repeated offensive jokes to a workplace full of pornography to outright sexual assault. Sexual harassment is prohibited by the federal Civil Rights Act of 1991 as well as state laws.
See joint custody.
shared equity mortgage
A home loan in which the lender gets a share of the equity of the home in exchange for providing a portion of the down payment. When the home is later sold, the lender is entitled to a portion of the proceeds.
An owner of a corporation whose ownership interest is represented by shares of stock in the corporation. A shareholder — also called a stockholder — has rights conferred by state law, by the bylaws of the corporation and, if one has been adopted, by a shareholder’ s agreement (often called a buy-sell agreement). These include the right to be notified of annual shareholders’ meetings, to elect directors and to receive an appropriate share of any dividends. In large corporations, shareholders are usually investors whose shares are held in the name of their broker. On the other hand, in incorporated small businesses, owners often wear many hats — shareholder, director, officer and employee — with the result that distinctions between these legal categories become fuzzy.
See buy-sell agreement.
short sale (of house)
A sale of a house in which the proceeds fall short of what the owner still owes on the mortgage. Many lenders will agree to accept the proceeds of a short sale and forgive the rest of what is owed on the mortgage when the owner cannot make the mortgage payments. By accepting a short sale, the lender can avoid a lengthy and costly foreclosure, and the owner is able to pay off the loan for less than what he owes. See also deed in lieu (or foreclosure).
See dynamite charge.
Time off work for illness. Most employers provide for some paid sick leave, although no law requires them to do so. Under the Family and Medical Leave Act, however, a worker is guaranteed up to 12 weeks per year of unpaid leave for severe or lasting illnesses.
See disability benefits.
A type of defamation. Slander is an untruthful oral (spoken) statement about a person that harms the person’s reputation or standing in the community. Because slander is a tort (a civil wrong), the injured person can bring a lawsuit against the person who made the false statement. If the statement is made via broadcast media — for example, over the radio or on TV — it is considered libel, rather than slander, because the statement has the potential to reach a very wide audience.
A Strategic Lawsuit Against Public Participation, in which a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative. SLAPP suits typically involve the environment–for example, local residents who are petitioning to change zoning laws to prevent a real estate development might be sued in a SLAPP suit for interference with the developer’s business interests. Many states have “anti-SLAPP suit” statutes that protect citizens’ rights to free speech and to petition the government.
small claims court
A state court that resolves disputes involving relatively small amounts of money — usually between $2,000 and $10,000, depending on the state. Adversaries usually appear without lawyers — in fact, some states forbid lawyers in small claims court — and recount their side of the dispute in plain English. Evidence, including the testimony of eye witnesses and expert witnesses, is relatively easy to present because small claims courts do not follow the formal rules of evidence that govern regular trial cases. A small claims judgment has the same force as does the judgment of any other state court, meaning that if the loser — now called the “judgment debtor” — fails to pay the judgment voluntarily, it can be collected using normal collection techniques, such as property liens and wage garnishments.
According to the U.S Patent and Trademark Office (PTO), a for-profit company with 500 or fewer employees, a nonprofit organization or an independent inventor. The PTO charges small entities half the fees charged large entities for filing a patent application and for issuing and maintaining the patent.
& Retirement Changing Your Name Parenting & Adoption Marriage & Living Together Divorce & Child Custody Health Care & Elder Care Immigration & Green CardsRentersÃ¢â‚¬â„¢ Rights Employee Rights Consumer Rights Go to Court or Mediate Personal Injury Criminal Law Traffic TicketshomeGLOSSARY Social Security The general term that describes a number of related programs, including retirement, disability, dependents and survivors benefits. These programs provide workers and their families with some monthly income when their normal flow of income shrinks because of retirement, disability, or death.
An arrangement whereby only one parent has physical and legal custody of a child and the other parent has visitation rights.
A business owned and managed by one person (or for tax purposes, a husband and wife). For IRS purposes, a sole proprietor and her business are one tax entity, meaning that business profits are reported and taxed on the owner’s personal tax return. Setting up a sole proprietorship is cheap and easy since no legal formation documents need be filed with any governmental agency (although tax registration and other permit and license requirements may still apply). Once you file a fictitious name statement (assuming you don’t use your own name) and obtain any required basic tax permits and business licenses, you’ll be in business. The main downside of a sole proprietorship is that its owner is personally liable for all business debts.
A requirement for anyone making a legal document, such as a will or healthcare directive. For example, although he can be eccentric or forgetful, a person writing a will must know what he owns, the identities of his family and close friends, and how the will distributes his property. If a person isn’t of sound mind, and someone later challenges the validity of the document in a lawsuit, the judge could rule that the document is invalid and has no legal effect. (Such lawsuits are quite rare.)
sound recording copyright
A right in a work resulting from the fixation of a series of musical or other sounds (including narration or spoken words). A sound recording copyright protects the way that the composition is performed. The performer, producer, or recording company usually claims copyright in a sound recording.
Internet slang for unsolicited bulk email, primarily unsolicited commercial email (UCE). Spam has been linked with fraudulent business schemes, chain letters, and offensive sexual and political messages.
(1) In the law of wills and estates, a person appointed by the court to take charge of only a designated portion of an estate during probate. For example, a special administrator with particular expertise on art might be appointed to oversee the probate of a wealthy person’s art collection, but not the entire estate. (2) A person appointed to be responsible for a deceased person’s property for a limited time or during an emergency, such as a challenge to the will or to the qualifications of the named executor. In such cases, the special administrator’s duty is to maintain and preserve the estate, not necessarily to take control of the probate process
special power of attorney
See power of attorney.
A specific item of property that is left to a named beneficiary under a will. If the person who made the will no longer owns the property when he dies, the bequest fails. In other words, the beneficiary cannot substitute a similar item in the estate. Example: If John leaves his 1954 Mercedes to Patti, and when John dies the 1954 Mercedes is long gone, Patti doesn’t receive John’s current car or the cash equivalent of the Mercedes. See ademption.
An intent to produce the precise consequences of the crime, including the intent to do the physical act that causes the consequences. For example, the crime of larceny is the taking of the personal property of another with the intent to permanently deprive the other person of the property. A person is not guilty of larceny just because he took someone else’s property; it must be proven that he took it with the purpose of keeping it permanently.
A remedy provided by a court that orders the losing side to perform its part of a contract rather than, or possibly in addition to, paying money damages to the winner.
In patent law, the narrative portion of a patent application, which includes descriptions of the purpose, structure and operation of the invention, as well as a discussion of any relevant prior art. Essentially, the specification must provide enough information about the invention so that a person proficient in the area of expertise involved in the invention could build and operate it without having to be overly creative.
A trust created for a beneficiary the grantor considers irresponsible about money. The trustee keeps control of the trust income, doling out money to the beneficiary as needed, and sometimes paying third parties (creditors, for example) on the beneficiary’s behalf, bypassing the beneficiary completely. Spendthrift trusts typically contain a provision prohibiting creditors from seizing the trust fund to satisfy the beneficiary’s debts. These trusts are legal in most states, even though creditors hate them.
An unsightly fence erected for no other purpose than to irritate a neighbor. Such a fence may be illegal under local fence height and appearance regulations or state laws that specifically bar spite fences. Even if it doesn’t violate regulation or laws, the fence may still be illegal if it was built with malicious intent.
A custody arrangement in the case of multiple children, awarding sole custody of one child to one parent and sole custody of another child to the other parent. This arrangement is generally disfavored by judges because they are reluctant to split up siblings.
See petitioner (immigration).
springing durable power of attorney
A durable power of attorney that takes effect only when and if the principal becomes incapacitated.
A trust that gives the person managing it (the trustee) the discretion to disburse its funds among the beneficiaries in any way he or she sees fit.
Latin for “let the decision stand,” a doctrine requiring that judges apply the same reasoning to lawsuits as has been used in prior similar cases.
A court that decides cases involving state law or the state constitution. State courts have jurisdiction to consider disputes involving individual defendants who reside in that state or have minimum contacts with the state, such as using its highways, owning real property in the state or doing business in the state. State courts have very broad power to hear cases involving all subjects except those involving federal issues and laws, which are in the exclusive jurisdiction of the federal courts. State courts are often divided according to the dollar amount of the claims they can hear. Depending on the state, small claims, justice, municipal or city courts usually hear smaller cases, while district, circuit, superior or county courts (or in New York, supreme court) have jurisdiction over larger cases. Finally, state courts are also commonly divided according to subject matter, such as criminal court, family court and probate court.
See District Attorney.
The name for the visa category you’re assigned and group of privileges you receive when you become a permanent resident or a nonimmigrant (temporary visa holder). For example, a green card shows that the holder has the status of a permanent resident and the privilege of living and working in the United States on a permanent basis. An F-1 or M-1 visa indicates that the holder has the status of a student and the privilege of attending school in the United States until the study program is completed.
A written law passed by Congress or a state legislature and signed into law by the President or a state governor. (In fairly rare circumstances, a legislative act can become law without the approval of the head of the executive branch of government.) Statutes are often gathered into compilations called “codes,” large sets of books that can be found in many public and all law libraries, or sometimes on the Internet.
statute of limitations
The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim, and often the state. For example, many states require that a personal injury lawsuit be filed within one year from the date of injury — or in some instances, from the date when it should reasonably have been discovered — but some allow two years. Similarly, claims based on a written contract must be filed in court within four years from the date the contract was broken in some states and five years in others. Statute of limitations rules apply to cases filed in all courts, including federal court.
The portion of a deceased person’s estate that a spouse is entitled to claim under state law. The statutory share is usually one-third or one-half of the deceased spouse’s property, but in some states the exact amount of the spouse’s share depends on whether or not the couple has young children and, in a few states, on how long the couple was married. In most states, if the deceased spouse left a will, the surviving spouse must choose either what the will provides or the statutory share. Sometimes the statutory share is known by its more arcane legal name, dower and curtesy, or as a forced or elective share.
statutory subject matter
Requirement for a utility patent . To qualify, an invention must fit into at least one of five categories defined in 35 United States Code, Section 101. These categories include: compositions of matter, manufactures, machines, processes, and new and useful improvements of any of the above categories. Taken together, these categories are called statutory subject matter.
A child born to your spouse before your marriage whom you have not legally adopted. If you adopt the child, he or she is legally treated just like a biological offspring. Under the Uniform Probate Code, followed in some states, a stepchild belongs in the same class as a biological child and will inherit property left “to my children.” In other states, a stepchild is not treated like a biological child unless he or she can prove that the parental relationship was established when he or she was a minor and that adoption would have occurred but for some legal obstacle.
The formal, legal adoption of a child by a stepparent who is living with a legal parent. Most states have special provisions making stepparent adoptions relatively easy if the child’s noncustodial parent gives consent, is dead or missing, or has abandoned the child.
For tax purposes, a value that is used to determine profit or loss when property is sold. If someone inherits property that has increased in value since the deceased person acquired it, the tax basis of the new owner is “stepped-up” to the market value of the property at the time of death. The stepped-up basis means that when the property is eventually sold, there will be less taxable gain.
An insurance policy that allows the insurance company to assess an amount on the insured, above the standard premium payments, if the company experiences losses worse than had been calculated into the standard premium. This is a way for both the insurance company and the policy-holder to gamble on the risk, mutually betting on low losses. Also called assessment, mutual assessment or mutual life insurance. Example: A shipping company buys an insurance policy to protect against loss or damage to its cargo. During the first few years, the company never pays more than the low fixed premiums because it suffers no losses. Later, however, the company’s luck turns and one of its shipping liners sinks in the Bermuda Triangle. In response to the huge losses, the insurance company assess penalty payments and higher premiums.
A term used in wills that refers to descendants of a common ancestor or branch of a family.
Latin for “on its own will or motion.” This term is most commonly used to describe a decision or act that a judge decides upon without having been asked by either party.
A rental agreement or lease between a tenant and a new tenant (called a sublessee) who will either share the rental or take over from the first tenant. The sublessee pays rent directly to the tenant. The tenant is still completely responsible to the landlord for the rent and for any damage, including that caused by the sublessee. Most landlords prohibit subleases unless they have given prior written consent. Compare assignment.
The modern spelling of subpoena. A subpena is a court order issued at the request of a party requiring a witness to appear in court.
subpena duces tecum
A type of subpena, usually issued at the request of a party, by which a court orders a witness to produce certain documents at a deposition or trial. However, when one party wants an opposing party to produce documents, a different discovery device, called a Request for Production of Documents, is often used instead.
A taking on of the legal rights of someone whose debts or expenses have been paid. For example, subrogation occurs when an insurance company that has paid off its injured claimant takes the legal rights the claimant has against a third party that caused the injury, and sues that third party.
A method for the formal delivery of court papers that takes the place of personal service. Personal service means that the papers are placed directly into the hands of the person to be served. Substituted service, on the other hand, may be accomplished by leaving the documents with a designated agent, with another adult in the recipient’s home, with the recipient’s manager at work or by posting a notice in a prominent place and then using certified mail to send copies of the documents to the recipient.
substitution of parties
A replacement of one of the sides in a lawsuit because of events that prevent the party from continuing with the trial. For example, substitution of parties may occur when one party dies or, in the case of a public official, when that public official is removed from office.
The passing of property or legal rights after death. The word commonly refers to the distribution of property under a stateÃ¢â‚¬â„¢s intestate succession laws, which determine who inherits property when someone dies without a valid will. When used in connection with real estate, the word refers to the passing of property by will or inheritance, as opposed to gift, grant, or purchase.
The person or institution who takes over the management of trust property when the original trustee has died or become incapacitated.
Latin for “of its own kind,” used to describe something that is unique or different.
summary adjudication of issues
A partial summary judgment motion, in which the judge is asked to decide only one or some of the legal issues in the case. For example, in a car accident case there might be overwhelming and uncontradicted evidence of the defendant’s carelessness, but conflicting evidence as to the extent of the plaintiff’s injuries. The plaintiff might ask for summary adjudication on the issue of carelessness, but go to trial on the question of injuries.
A final decision by a judge that resolves a lawsuit in favor of one of the parties. A motion for summary judgment is made after discovery is completed but before the case goes to trial. The party making the motion marshals all the evidence in its favor, compares it to the other side’s evidence, and argues that a reasonable jury looking at the same evidence could only decide the case one way–for the moving party. If the judge agrees, then a trial would be unnecessary and the judge enters judgment for the moving party.
A relatively simple probate proceeding available for “small estates,” as that term is defined by state law. Every state’s definition is different, and many are complicated, but a few examples include estates worth up to $100,000 in California; New York estates where property, excluding real estate and amounts that must be set aside for surviving family members, is worth $20,000 or less; and Texas estates where the value of property doesn’t exceed what is needed to pay a family allowance and certain creditors.
A paper prepared by the plaintiff and issued by a court that informs the defendant that she has been sued. The summons requires that the defendant file a response with the court — or in many small claims courts, simply appear in person on an appointed day — within a given time period or risk losing the case under the terms of a default judgment.
A law that automatically terminates the agency or program it establishes unless it is expressly renewed. For example, a state law establishing and funding a new drug rehabilitation program within state prisons may provide that the program will shut down in two years unless it is reviewed and approved by the state legislature.
Statutes that provide public access to governmental agency meetings and records.
The main county trial court in many states, mostly in the west. See state court.
The list on which non-distinctive trademarks or service marks are placed if federal registration has been sought. Descriptive marks, surnames and marks consisting primarily of geographical terms are usually placed on this register, which offers limited protection for marks.
Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict.
America’s highest court, which has the final power to decide cases involving the interpretation of the U.S. Constitution, certain legal areas set forth in the Constitution (called federal questions) and federal laws. It can also make final decisions in certain lawsuits between parties in different states. The U.S. Supreme Court has nine justices — one of whom is the Chief Justice — who are appointed for life by the President and must be confirmed by the U.S. Senate. Most states also have a supreme court, which is the final arbiter of the state’s constitution and state laws. However, in several states — most notably New York and Maryland, where it’s called the “Court of Appeals,” and Massachusetts, where it’s called the “Supreme Judicial Court” — the highest state court uses a different name.
See probate court.
A widow or widower.
surviving spouse’s trust
If a couple has created an AB trust, the revocable living trust (Trust B) of the surviving spouse, after the first spouse has died.
An amount of money available to the surviving spouse and minor or disabled children of a deceased worker who qualified for Social Security retirement or disability benefits.
A case that turns on the word of one witness versus another. The outcome of a swearing match usually depends on whom the jury finds most trustworthy.
See eminent domain.
taking against the will
A procedure under state law that gives a surviving spouse the right to demand a certain share (usually one-third to one-half) of the deceased spouse’s property. The surviving spouse can take that share instead of accepting whatever he or she inherited through the deceased spouse’s will. If the surviving spouse decides to take the statutory share, it’s called “taking against the will.” Dower and curtesy is another name for the same legal process.
tangible personal property
Personal property that can be felt or touched. Examples include furniture, cars, jewelry and artwork. However, cash and checking accounts are not tangible personal property. The law is unsettled as to whether computer data is tangible personal property. Compare intangible property.
temporary restraining order (TRO)
An order that tells one person to stop harassing or harming another, issued after the aggrieved party appears before a judge. Once the TRO is issued, the court holds a second hearing where the other side can tell his story and the court can decide whether to make the TRO permanent by issuing an injunction. Although a TRO will often not stop an enraged spouse from acting violently, the police are more willing to intervene if the abused spouse has a TRO.
tenancy by the entirety
A special kind of property ownership that’s only for married couples. Both spouses have the right to enjoy the entire property, and when one spouse dies, the surviving spouse gets title to the property (called a right of survivorship). It is similar to joint tenancy, but it is available in only about half the states.
tenancy in common
A way two or more people can own property together. Each can leave his or her interest upon death to beneficiaries of his choosing instead of to the other owners, as is required with joint tenancy. In some states, two people are presumed to own property as tenants in common unless they’ve agreed otherwise in writing.
Anyone, including a corporation, who rents real property, with or without a house or structure, from the owner (called the landlord). The tenant may also be called the “lessee.”
tenants in common
See tenancy in common.
A public offer to purchase stock at a specified price per share, usually done to gain a controlling interest in a corporation.
Leaving property in a will.
A trust created by a will, effective only upon the death of the willmaker.
The circumstance of dying after making a valid will. A person who dies with a will is said to have died “testate.” Compare intestate.
Someone who makes a will.
To provide oral evidence under oath at a trial or at a deposition.
third degree instruction
See dynamite charge.
See Truth in Lending Act.
Evidence of ownership of real estate.
A company that issues title insurance.
Insurance issued by a title company that protects a property owner against loss if it is later discovered that title is imperfect.
An injury to one person for which the person who caused the injury is legally responsible. A tort can be intentional — for example, an angry punch in the nose — but is far more likely to result from carelessness (called “negligence”), such as riding your bicycle on the sidewalk and colliding with a pedestrian. While the injury that forms the basis of a tort is usually physical, this is not a requirement — libel, slander and the “intentional infliction of mental distress” are on a good-sized list of torts not based on a physical injury.
The causing of harm by disrupting something that belongs to someone else — for example, interfering with a contractual relationship so that one party fails to deliver goods on time.
Another term for a payable-on-death bank account.
A personal injury caused by exposure to a toxic substance, such as asbestos or hazardous waste. Victims can sue for medical expenses, lost wages and pain and suffering.
The distinctive packaging or design of a product that promotes the product and distinguishes it from other products in the marketplace — for example, the shape of Frangelico liqueur bottles. Trade dress can be protected under trademark law if a showing can be made that the average consumer would likely be confused as to product origin if another product were allowed to appear in similar dress.
The official name of a business, the one it uses on its letterhead and bank account when not dealing with consumers.
In most states, a formula, pattern, physical device, idea, process, compilation of information or other information that 1) provides a business with a competitive advantage, and 2) is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it, absent improper acquisition or theft.
A word, phrase, logo, symbol, color, sound or smell used by a business to identify a product and distinguish it from those of its competitors. If the business uses the name or logo to identify a service, such as photo copying, it is called a service mark. In practice, the legal protections for trademarks and service marks are identical.
In the United States, trademark ownership arising from “first use” of a mark. First use can be established by actual use or by application with the Patent and Trademark Office (PTO) for registration on an intent to use basis. If the same mark has been in use by different businesses in different parts of the country without causing customer confusion, the mark may be owned by both businesses in their respective regions. If the mark owners then come into conflict in another part of the country, ownership for the purpose of that region will be determined according to who was the first user and which business could most likely consider the region as a natural zone of expansion.
Federal registration of a mark with the U.S. Patent and Trademark Office (PTO) requires that the mark be used in commerce and the filing of a registration application. Once a mark is registered, the owner should always place the trademark registration symbol (Ã‚Â®) or “Reg. U.S. Pat. Off.” next to the mark. Without this designation, it may be hard to collect damages from one who infringes the mark.
An investigation to discover potential conflicts between a proposed trademark or service mark and any marks already in use in the marketplace. Preferably done before a proposed mark is used, a trademark search reduces the possibility of inadvertently infringing a mark belonging to another. Businesses can conduct trademark searches themselves, either manually in a Patent and Trademark Depository library, through a computer in one of the online trademark databases (for a fee) or by hiring a search firm to do the search for them.
triple net lease
See net lease.
See temporary restraining order.
Latin for “the body” of the trust. This term refers to all the property transferred to a trust. For example, if a trust is established (funded) with $250,000, that money is the corpus. Sometimes the trust corpus is known as the “res,” a Latin word meaning “thing.”
The most common method of financing real estate purchases in California (most other states use mortgages). The trust deed transfers the title to the property to a trustee — often a title company — who holds it as security for a loan. When the loan is paid off, the title is transferred to the borrower. The trustee will not become involved in the arrangement unless the borrower defaults on the loan. At that point, the trustee can sell the property and pay the lender from the proceeds.
Under a trust, the situation that occurs when the sole trustee and the sole beneficiary are the same person or institution. Then, there’s no longer the separation between the trustee’s legal ownership of trust property from the beneficiary’s interest. The trust “merges” and ceases to exist.
The person who manages assets owned by a trust under the terms of the trust document. A trustee’s purpose is to safeguard the trust and distribute trust income or principal as directed in the trust document. With a simple probate-avoidance living trust, the person who creates the trust is also the trustee.
The provisions in a trust document defining what the trustee may and may not do.
Truth in Lending Act (TILA)
A federal law that requires credit and charge card companies to disclose interest rates and other information about an account. It also requires lenders to disclose the terms of a loan, including the total amount of the loan, the annual interest rate and the number, amount and due dates of all payments necessary to repay the loan. The TILA requires additional disclosures and places many restrictions on mortgages.
U.S. Copyright Office
See Copyright Office.
U.S. Patent and Trademark Office
See Patent and Trademark Office.
Latin for “beyond powers.” It refers to conduct by a corporation or its officers that exceeds the powers granted by law.
A legal doctrine that prevents a plaintiff who has acted unethically in relation to a lawsuit from winning the suit or from recovering as much money as she would have if she had behaved honorably. For example, if a contractor is suing a homeowner to recover the price of work he did on the home, his failure to perform the work as specified would leave him with unclean hands.
A seller’s taking advantage of a buyer due to their unequal bargaining positions, perhaps because of the buyer’s recent trauma, physical infirmity, ignorance, inability to read or inability to understand the language. The unfairness must be so severe that it is shocking to the average person. It usually includes the absence of any meaningful choice on the part of the buyer and contract terms so one-sided that they unreasonably favor the seller. A contract will be terminated if the buyer can prove unconscionability.
A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there’s no reason for both to go to court — and pay the court costs.
A situation in which a company does not have enough cash available to carry on its business.
Another term for an insurer, one who assumes the risk of another’s loss and compensates for the loss under the terms of an insurance policy.
The circumstances in which a debtor may discharge a student loan in bankruptcy. For example, a debtor who has no income and little chance of earning enough in the future to pay off the loan may be able to show that repayment would be an undue hardship.
unemployment insurance (UI)
A program run jointly by federal and state governments that provides money benefits for a specified time — usually 26 weeks — after you’ve been laid off from a job. The amount of your unemployment check will be less than your former pay. Also called unemployment compensation, UI covers most employees, provided that they worked at least six months during the year prior to losing the job and earned the minimum amount of money required under the program’s regulations.
An overarching term describing any commercial activity that tends to confuse or deceive the public about the sale of products or services. It covers such diverse activities as trademark infringement, false advertising and theft of trade secrets. If a court finds that an activity constitutes unfair competition, it will generally prevent that activity from occurring in the future and award money damages to the person or company harmed by the activity.
Uniform Gifts to Minors Act
See Uniform Transfers to Minors Act.
Uniform Resource Locator (URL)
The Internet address of a Web page, file or other online resource. URLs usually contain a domain name and a description of the material sought. For example, http://www.nolo.com/patents.html is the URL for an article on patents on Nolo’s website.
Uniform Transfer-on-Death Security Act
A statute that allows people to name a beneficiary to inherit stocks or bonds without probate. The owner of the securities can register them with a broker using a simple form that names a person to receive the property after the owner’s death. Every state but Texas has adopted the statute.
Uniform Transfers to Minors Act
A statute, adopted by almost all states, that provides a method for transferring property to minors and arranging for an adult to manage it until the child is old enough to receive it. See custodian.
uninsured motorist coverage
The portion of car insurance that compensates you for any injuries resulting from an accident with an uninsured motorist or a hit-and-run driver. Damage to your vehicle in such a situation is compensated by the collision coverage portion of your car insurance.
United States Attorney
The prosecutor in charge of enforcing the federal criminal laws of the United States. The U.S. Attorney can also enforce selected federal civil statutes, such as the Civil Rights Act. U.S. Attorneys are appointed by the President and the job is considered a political plum. Typical cases brought by the U.S. Attorney and Assistant U.S. Attorneys are immigration violations, drug importation, securities fraud and bank robberies. Any offense committed on federal property (such as a military base or national park) may be prosecuted by the U.S. Attorney.
A legal doctrine stating that if a person receives money or other property through no effort of his own, at the expense of another, the recipient should return the property to the rightful owner, even if the property was not obtained illegally. Most courts will order that the property be returned if the party who has suffered the loss brings a lawsuit.
An eviction lawsuit.
A debt that is not tied to any item of property. A creditor doesn’t have the right to grab property to satisfy the debt if you default. The creditor’s only remedy is to sue you and get a judgment. Compare secured debt.
See Uniform Resource Locator.
A tax imposed by a state to compensate for the sales tax lost when an item is purchased outside of the state, but is used within the state. For example, you buy your car in a state that has no sales tax, but you live across the border in a state that does have a sales tax. When you bring your car home and register it in your state, the state taxing authority will bill you for the sales tax it would have collected had you bought the car within the state.
In patent law, the requirement that an invention have some purpose, or in the case of design patents, be ornamental. The purpose can be solely for amusement or a minor improvement on an existing design — not every invention has to be a groundbreaking feat like the telephone.
The right to use property — or income from property — that is owned by another.
A patent issued for inventions that perform useful functions. Most inventions fall into this category. A utility patent lasts for 20 years from the patent application’s filing date.