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Glossary of Terms

Whether in civil litigation, appeals, or as part of the administrative and licensing law practice, Simas & Associates, Ltd., deals with unique, complicated processes. This involves terms that are not in common use by most of our clients – whether they are business owners, employees, or professional licensees. This page is our attempt to define some of these terms and lift the veil of confusion for clients and potential clients alike.

Below, please find a non-exhaustive list of some of the terms common to our legal practice. Please check back often, as additional glossary entries are added on a regular basis.

In addition, please use the legal dictionary at Law.com to find definitions of other words that may come up in the course of the representation.


A   B   C   D   E   F   G   H   I   J   K     M   N   O   P   Q   R   S   T   U   V   W   X   Y   Z


A

Accusation:

Official charging document in many administrative law and licensing actions. The equivalent of the complaint in civil litigation. Also known as the statement of issues.

Affirmative Defense:

A fact or set of facts other than those alleged by the plaintiff, claimant, or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's or respondent's otherwise unlawful or violative conduct. Typically, in asserting an affirmative defense, the defendant/respondent may concede that he/she committed the alleged acts, but asserts that other facts either justify or excuse his/her otherwise wrongful actions, or otherwise overcome the claim. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, while in criminal prosecutions, examples of affirmative defenses are self defense, insanity, as well as the statute of limitations.

Admissible:

Documents or testimony which are allowable to be received into evidence in an official hearing or proceeding. In California the rules regarding admissibility can be found in the Evidence Code.

Allegation:

A statement in a pleading outlining the facts a party intends to prove in a case. It is essential that all relevant facts be alleged in a pleading.

Alternative Writ:

An order commanding a governmental agency, court, or official to do a specific thing or to report to the court and show cause why the thing cannot or should not be done. An Alternative Writ is obtained by filing a Petition for Writ of Mandate (or Mandamus).

At Will Employment:

An employment arrangement in which the employee may quit at any time, and the employer may fire the employee for any reason that is not illegal. For example, an employer may fire an at-will employee for poor performance, to cut costs, or because the employer simply doesn't like the employee, but may not fire an at-will employee for discriminatory reasons, to retaliate against the employee for reporting harassment, or because the employee exercised a legal right.


B

Back pay:

A common remedy for wage violations is an order that the employer make up the difference between what the employee was paid and the amount he or she should have been paid. In the alternative, it can also be the wages or compensation an employee would have earned but for the wrongful termination or other adverse action by the employer. The amount of this sum is often referred to as "back pay" or commonly misspelled as "backpay." Sources of the award include litigation, state labor or personnel boards, or the U.S. Department of Labor.

Bid Protest:

The process of an interested party formally disagreeing with the decision of the public contracting officer or agency in the acceptance of a bid or awarding of a contract to a private third party. The public governing agency (i.e. federal, state, municipality, military, etc.) provides rules and regulations governing the process to ensure that the interested party has an opportunity to be heard.

Bifurcate:

An act of a judge in dividing issues before a hearing or trial so that one issue will be ruled upon before hearing evidence or argument on the other issue. A common example of a bifurcated trial is one in which the question of liability in a personal injury case is tried separately from and prior to a trial on the amount of damages to be awarded if liability is found. A bifurcated trial in such a case is advantageous because if the defendant is not found liable, there is no need to spend the money or time in the presentation of proof and witnesses on the issue of damages.

Blackmail:

An act, often a crime, involving unjustified threats to make a gain or cause loss to another unless a demand is met. It is a form of coercion involving threats of physical harm, threat of criminal prosecution, or threat of revealing defamatory or embarassing-but-true information. It originally meant payments rendered by settlers in the Counties of England bordering Scotland to Scottish chieftains in exchange for protection from Scottish thieves and marauders. Although the two are thought to be synonymous, extortion is the taking of personal property by threat of future harm, whereas blackmail is the use of threats to prevent another from engaging in a lawful pursuit to cause a loss or cause a profit. Some jurisdictions distinguish it further by requiring blackmail to be in writing.

Bond:

An agreement to pay money as security for performance of an obligation. In most cases most of the money is returned upon satisfaction of the obligation.

Breach:

The breaking of a law, right, or duty. For example, a breach of contract occurs when one of the parties to the contract either fails to perform, or indicates their future intention to fail to perform, their obligations under the contract. This is an essential date in contract law as it is used to determine if a complaint for breach of contract is within the statute of limitations.

Burden of Proof:

The obligation of a party to proves its allegations at trial. The standard beyond which the party must do so varies according to the venue and nature of proceeding. Some of the most common standards of proof are – probable cause, substantial evidence, preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt.

C

Cause of Action:

The basis of a lawsuit or proceeding founded on legal grounds and alleged facts which, if proved, would constitute all the "elements" required by statute or regulation. In many proceedings there are several causes of action stated separately, such as fraud, breach of contract, and debt, or negligence and intentional destruction of property. In all cases there must be a connection between the acts of the defendant and damages. 

Example: To have a cause of action for breach of contract there must have been an offer of acceptance.

Combination of Function:

When an agency’s decision must be based on a closed record, as required in formal adjudication, the decider cannot be biased by off-the-record considerations. A claim of bias might involve the combination of the functions of prior investigation and subsequent deciding. All errors must be shown with specificity. Absent the showing of substantial prejudice, this claim of combination of function will be rejected by the reviewing court. If the prior investigation can be shown to have resulted in the use of non-record information in making the formal adjudication decision, the court may find error.

Complaint:

The initial pleading usually filed with the court to begin a civil action. A complaint must outline the facts of the case, the legal theory, and the desired remedy. After it is filed with the court the complaint is served on the defendant or defendants along with a Summons issued by the court which gives them official notice of the lawsuit.


D

Damages:

The monetary judgment requested in a case. A party will have to prove justification for the amount of their damages at the trial or hearing. Different types of damages include actual damages – the amount required to reimburse the party for the actual harm suffered or to “make them whole” – and exemplary, aka punitive, damages – damages intended to discourage similar future action by the responsible party.

Declaration:

A written statement made "under penalty of perjury" and signed by the declarant. This is the modern substitute to the oft-cumbersome "affidavit," which required swearing to the truth of the statement before a notary public. Declarations are permitted as administrative hearsay in licensing proceedings, and are often used to buttress other testimony and evidence of rehabilitation, mitigation, and good character of the licensee.

Default Judgment:

A judgment entered when there has been no appearance by the responding party. In order to obtain a default judgment, the complaining party must show that the non-responsive party was properly served with the summons and complaint, and failed to reply within the specified time. Additionally, in some cases, the party seeking the judgment may be required to “prove up” their case before a judge prior to obtaining the default judgment.

Demurrer:

A written response to a pleading filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the pleading were true, there is no legal basis for the claim. This is most commonly used to challenge the procedural validity of a complaint.

A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. If the judge sustains these errors, the judge will usually sustain the demurrer (i.e. dismiss the complaint), but "with leave to amend" in order to allow changes to correct the errors identified in the demurrer. If the judge overrules these errors, the judge will then order the party that filed the demurrer to answer the pleading. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not valid, a demurrer may be granted or sustained without further leave to amend. A demurrer can be also be used to attack an answer to a complaint that asserts affirmative defenses.

Due Process of Law:

The constitutionally guaranteed right that the state must act in accordance with the law with regards to individuals. This is a fundamental principle of fairness in all legal matters administrative, civil, and criminal. All branches of the government are subject to it within their interactions with individuals, and the protection can be enforced through the courts. The aim is to safeguard both private and public rights against unfairness.

The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides, "No person shall … be deprived of life, liberty, or property, without due process of law," and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.

E

Equitable:

A remedy based on fairness and not principles of law. These are not monetary – not damages – but rather orders from the court to compel or prohibit certain behaviors.

Essential Job Functions:

The fundamental duties of a position—those things that the person holding the job absolutely must be able to do. An employee with a disability must be able to perform the essential job functions, with or without a reasonable accommodation, to be protected by the Americans with Disabilities Act.

Exculpatory:

A description of evidence that serves to justify, excuse, or introduce a reasonable doubt about the accused party’s alleged actions or intentions. Exculpatory evidence may ultimately show that the accused is not guilty or at-fault for the underlying allegations. Police, prosecutors, and the charging party must, to uphold the accused's constitutional right to due process, tell the defense about any exculpatory evidence they've discovered.

Exhaustion of Remedies:

Doctrine of law that requires that procedures established by statute, Common Law, contract, or custom must be initiated and followed in certain cases before an aggrieved party may seek relief from the courts. After all other available remedies have been exhausted, a lawsuit may be filed.

Most commonly, exhaustion of remedies applies where an Administrative Agency has been established by the Legislature to handle grievances that occur under its purview. Only after the parties have satisfied each requirement of the grievance process, and the Agency has reached its final decision, can they appeal the decision to a higher tribunal.

The rationale behind requiring parties to exhaust their administrative remedies is that the agencies have the specialized personnel, experience, and expertise to sort and decide matters that arise under their jurisdiction. Also, the doctrine of Separation of Powers dictates that an agency created by the legislature should be allowed to carry out its duties without undue interference from the judiciary.

Ex Parte:

Latin for "one party," referring to motions, hearings, or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing, or an emergency request for a continuance.

Expert Witness:

A person specially qualified in a subject who can render a opinion as to the facts of a case without having direct or personal knowledge of a case.  If the expert qualifications of a witness are challenged, they can be forced to outline their credentials before the court and be subject to a judicial determination regarding their fitness to testify as an expert.  Expert witnesses are often essential to the success of the case, but can also be extremely costly.


F

Fact Finder:

The person or entity who determines the facts in a proceeding. This person reviews the evidence presented and decides what the actual facts of the matter are. The most familiar finders of fact are judges and juries. The finder of fact’s determination of facts is not generally appealable. Also known as a trier of fact.

Fiduciary:

A person or entity which has assumed the right and responsibility to act on behalf of another – most often in regards to financial or business. A fiduciary is held to a higher standard of ethical conduct and must act strictly and solely in the best interest of the client.

Fictitious Defendants:

Defendants named in a lawsuit which are believed to exist, but cannot currently be particularly identified. These are sort of placeholder defendants named in a complaint most often as “Does.” Upon learning the identity of a fictitious defendant, the complaint can be amended and the name of the person added.  

Sometimes during the investigation or discovery new information about a potential defendant is found and the real name substituted. Then the complaint is amended, and that person is served with a summons and complaint. If no substitution of a real name for a Doe has been made by the time of trial, usually the fictitious defendants are then dismissed from the case since they never existed in the first place, and the case continues against the named defendants. Fictitious defendants are not permitted in federal cases.

Fighting Words:

Vocalized words intentionally directed toward another person which are so nasty and full of malice as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically (hit, stab, shoot, etc.). While such words are not an excuse or defense for a retaliatory assault and battery, if they are threatening they can form the basis for a lawsuit for assault. The difference between incitement and fighting words is subtle, focusing on the intent of the speaker. Inciting speech is characterized by the speaker's intent to make someone else the instrument of his or her unlawful will. Fighting words, by contrast, are intended to cause the hearer to react to the speaker.

Force Majeure:

A common clause in contracts that essentially frees both parties from liability or an obligation to perform when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term, act of God (such as severe weather or geological events like a hurricane, tornado, tsunami, earthquake, or volcanic eruption), prevents one or both parties from fulfilling their obligations under the contract. Generally intended to include risks beyond the reasonable control of a party, incurred not as a product or result of the negligence or malfeasance of a party, which have a materially adverse effect on the ability of such party to perform its obligations.


G

Gag Order:

A judge's order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. The supposed intent is to prevent prejudice due to pre-trial publicity which would influence potential jurors. A gag order has the secondary purpose of preventing the lawyers from trying the case in the press and on television, and thus creating a public mood in favor of one party or the other.

General Appearance:

A public acknowledgement of an attorney's representation of a client, typically made in court. The implication is that for all purposes connected with a pending lawsuit, proceeding, or prosecution, the client is now represented by the attorney and no one should communicate with client outside of the presence of the attorney. After "appearing," the attorney is held accountable and responsible for all future appearances and responsive pleadings, unless and until officially relieved by court order or substitution of counsel.

General Denial:

Statement in an answer to a lawsuit or claim by a defendant in a lawsuit, in which the defendant denies everything alleged without specifically denying any particular allegation. It reads: "Defendant/Respondent denies each and every allegation contained in the complaint on file herein." 

Good Cause:

A substantial or legally sufficient reason or justification for an action or order to take place.

Goodwill:

The good reputation under the name and regular patronage for a business. It is of extreme importance in the sale, transfer, or valuation of a business. Preservation of goodwill is often the justification used to enforce covenants not to compete or non-compete provisions found within the transactional documents. Goodwill is often overestimated by a seller unintentionally, through pride, and intentionally, through the tax benefits of tying a large portion of the value of the company into the goodwill, which upon sale is taxed as a capital gain, rather than as ordinary income.  

Guardian Ad Litem:

A person appointed by the court to act on behalf of another in the course of a legal proceeding. These are generally appointed for minors and those who have been found to be incompetent.


H

Hawthorne Effect:

A type of reactivity or bias in which individuals modify or improve an aspect of their behavior in response to their awareness of being observed. This commonly occurs in experiments, field studies, or in the workplace. Basically, the participants are more efficient, effective, and overly productive due to the novelty of being research subjects and the resulting increased attention.

Hearing:

A proceeding before a finder of fact that is not a jury during which some issue of fact or law is determined. Hearings tend to be brief, with most of the argument being made beforehand in written submissions to the court.

Hearsay:

Testimony which is not of the witness's personal knowledge. The Hearsay Rule, as outlined in the Federal Rules of Evidence, prohibits most statements made outside a courtroom from being used as evidence in court. This is because statements made out of court normally are not made under oath, a judge or jury cannot personally observe the demeanor of someone who makes a statement outside the courtroom, and an opposing party cannot cross-examine such a declarant (the person making the statement). These statements made out of court are, thus, perceived as untrustworthy. However, roughly twenty-three identified exceptions exist, including for those witnesses determined to be qualified experts.

Harmless Error:

An error by a judge which would not have substantially altered the outcome of the proceeding. An appeal based upon a harmless error will fail.

I

Ibid.:

Latin abbreviation for "ibidem", meaning, "in the same place." This is used in citations to refer to a work or case cited immediately before the present citation, and the cited matter appears on the same page of that work or case.

Id.:

Latin abbreviation for "idem", meaning, "the same." This is used in citations to refer to a work or case cited immediately before the present citation. Often followed by the page, paragraph, or line number.

i.e.:

Latin abbreviation for "id est," meaning, "that is" or "that is to say." Often used to expand or explain a general term by use of reference to something much more specific. Not to be confused with "e.g." which means "for example."

Implied Covenant of Good Faith and Fair Dealing:

A general assumption of the law of contracts, that people will act in good faith and deal fairly without breaking their word. A lawsuit based on the breach of this covenant is often brought when the other party has been claiming technical excuses for breaching the contract or using the specific words of the contract to refuse to perform.

Example: An employer fires a long-time employee without cause and says it can fire at whim because employment was "at will." However, the employer has never fired employees without cause in the past, and has always used a disciplinary or notice of correction process of two warnings and probation before termination.  Thus, there may be a breach of the implied covenant, since the surrounding circumstances implied that the employee would only be terminated for a cause, and after given multiple opportunities to correct the underlying behavior or performance issue.

In Limine:

Motions made immediately prior to the start of a trial or proceeding. They often involve evidentiary matters.

Injunction:

An order to prohibit an action from taking place. An injunction can be obtained either prior to or during the course of the action.

Interactive Process:

The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation for a disability or health issue. The law requires that employees and employers engage in the Interactive Process in order to determine what can and cannot be done. It can begin in any number of ways. However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. The request can be made verbally and casually, as well as formally. In response to an obvious disability, the employer-supervisor should not just act, but should inquire whether the employee has a need for assistance. The employee should not be asked if he/she has a disability.

Interrogatory:

A written question, typically found in a set of questions, submitted to an opposing party in a lawsuit as part of discovery. The recipient must answer the questions under oath and according to the case's schedule. Typically, these can be form interrogatories (i.e. those approved and found within Judicial Council Forms) or special interrogatories (i.e. customized for the particular facts, circumstances, of the matter in dispute).

J

Joint and Several Liability:

The principle in which a creditor/judgment winner may collect the entire amount of the debt obligation from a single defendant. It is then up to this defendant to collect from any other defendants.

Example: Plaintiff P is awarded a judgment for $10 million from defendants A and B resulting from the same incident. In states that follow the principle of joint and several liability, P may collect the entire $10 million from A, whose only recourse would be to seek reimbursement from B.

Joint Tenancy:

The principle in which property is owned by two or more persons with identical interests, and with a right to survivorship (meaning that if one joint tenant dies, his share automatically vests in the surviving joint tenant(s)). This allows the surviving tenants to avoid probate.  

Judgment:

A final determination of a legal case. The judgment will outline the decision of the trier of fact and the remedies awarded.

Judgment non obstante veredicto ("JNOV"):

Meaning a judgment notwithstanding the verdict. Rarely granted, JNOV is the practice in which a judge overrules the decision of the jury as a matter of law. The idea is that no reasonable jury could have possibly come to the decision that this particular jury has, and thus the verdict is clearly erroneous and should be overturned.

Jurisdiction:

The right of a certain body to determine a dispute.

Judicial Notice:

The ability of a court to recognize and consider matters which are outside the evidence of the current proceeding, but which are not reasonably subject to dispute. Judicial Notice can be mandatory or discretionary. Items of which the court must take judicial notice include things like laws, court rules, and generalized knowledge – such as the fact that the sun rises in the east. Items of which the court may take judicial notice include the laws of other states and countries as well as knowledge which is so locally well known that they are not subject to dispute – the California is undergoing a budget shortfall , for example.


K

K:

Shorthand for "contract"

Kickback:

A return of a portion of a payment, often done in secret, to compensate a third party or agent of a principal for arranging the transaction. This is typically done out of coercion or secret agreement. Also known as a payoff, it is a form of bribery.

Kicker:

An extra charge, penalty, or boost in interest that goes into effect upon the occurrence of a specified event.

Kickout Clause:

A contractual provision permitting one party to end or modify the terms of a contract in the event a specified occurrence takes place.

Known-Loss Doctrine:

An insurance principle where the insured party will be denied coverage if the insured knows that a specific loss has already occurred or is substantially certain to occur. Also known as known-risk doctrine.

L

Lapse:

The termination of a right or privilege because of a failure to exercise it within some time limit.

Laches (Defense of):

An unreasonable delay in bringing a claim or action, resulting in prejudice to the opposing party. In other words, failure to assert one’s rights in a timely manner.

Libel:

Written defamation, which is the communication of a statement, purported to be factual, which falsely puts a party in a negative light.

Loss of Consortium:

Loss of consortium refers to the damage sustained to a relationship because of an injury to you ora close family member. While many attorneys consider loss of consortium to be solely the loss or decrease of a sexual relationship between spouses. However, some states have expanded the concept of loss of consortium to refer to the loss of care, companionship, and affections of a loved one, whether or not there is a decrease or loss of a sexual relationship. Furthermore, a smaller number of states have expanded the concept to include relationships other than spouses – parent-to-child, grandparent-to-child, and unmarried couples..


M

Malfeasance:

An unlawful act, intentionally completed, for which the actor has no right or no belief in a right to perform. It almost always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. 

Malice:

A deliberate wish, deep seated desire, for another's suffering, instigated by doing a wrongful act with no legal justification as a just cause or excuse, with deliberate intent of causing injury or harm. Defamation with malicious intent invalidates the fair comment defense or qualified privilege defense. Wanton or reckless violence done by one knowing to cause injury or harm.

Misfeasance:

A negligent or otherwise improper performance of a legal act. It is not completed with intent.

Malpractice:

Negligent or incompetent performance by a professional

Misappropriate:

The dishonest or unfair taking of another’s property for one’s own use

Mitigate (Duty to):

In a legal setting, a party may have the duty to mitigate (reduce) damages caused by a wrongdoing party.

Example: A tenant breaches a rental agreement with a landlord. The landlord has a duty to mitigate this loss (by finding another tenant, for example), so that the breaching tenant owes as little as is reasonably possible.


N

Negligence:

In general, the failure to exercise a reasonable standard of care (for legal purposes, a party must have an existing duty to exercise reasonable care in order to be found negligent).

Nexus Test:

The standard by which an individual's act is considered to be an act on behalf of an organization or governmental unit, giving rise to an organization's or governmental unit's liability for the individual's act. If the conduct is so closely related to the organization's or governmental unit's purpose in employing the individual, the conduct may be attributed to the organization or governmental unit. Focus is on the act as opposed to the relationship between individual and organization or governmental unit.

Nolo contendere:

Latin for "no contest."  A type of criminal plea in which the defendant does not admit guilt, but elects not to dispute the charge. Plea is most often used to avoid the negative consequences of a guilty plea for purposes of a latter civil lawsuit or administrative or licensing proceeding.

Nominal damages:

Refers to a damage award issued by a court when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong. It may be coupled with a request for equitable relief. Or, it may be required for purposes of obtaining punitive damages, which are damages designed to punish a defendant, rather than compensate a plaintiff. In other cases, the plaintiff may be suing because he is fighting for a cause, like if he believes his Constitutional Rights are being violated, and is seeking attorney fees. Typically, the damages awarded to the plaintiff are $1.00.

Non-compete clause:

A provision in a contract mandating that one party refrain from pursuing a similar profession or trade in competition against another party. Enforceability of such clauses is subject to state law (generally a “reasonableness” standard). Also called a "covenant not to compete."

Example: Party A sells his company to party B. The agreement contains a non-compete clause, barring A from starting a new company to compete with B’s (new) company for five years.

Non sequitur:

Latin for "it does not follow." Typically used to challenge an inference or conclusion in that the subject does not logically follow the previously stated premise, facts, or law.


O

Objection:

A formal statement opposing some action taken by the opposing party or adjudicator of a legal proceeding. Typically, objections occur in the midst of a court proceeding or hearing, and are seeking an immediate ruling on the point. If done in the confines of a proceeding, the adjudicator will either grant, or "sustain," the objection or deny, or "overrule," the objection. Sometimes, the party objecting must justify the grounds for the objection in order to preserve the right to appeal an adverse ruling.

Obligation:

A legal or moral duty to act or not act. This duty may be created by statute or contract. The duty might only arise upon the passing of an uncertain event. The duty may be shared by more than one party.

Occurrence Rule:

A statute of limitations rule that interprets the period as beginning when the alleged breach or omission occurs, rather than when the discovery of the breach or omission is made by the plaintiff.

Offer of Proof:

Presentation of evidence for the record made for the judge to ascertain the suitability of the evidence. This may be done prior to the granting of an objection, or after the objection has been sustained for purposes of preserving the evidence for an appeal of the ruling. Consists of three parts: (1) the evidence, (2) explanation for the purposes of the evidence, (3) the legal argument supporting admissibility.

Order to Show Cause:

A judge's written mandate that a party appear in court on a certain date and give reasons, legal and/or factual, (show cause) why a particular order should not be made. May be made after motion by applicant (e.g. opposing party) or on court's own volition. This rather severe method of making a party appear with proof and legal arguments is applied to cases of possible contempt for failure to pay child support, sanctions for failure to file necessary documents or appear previously, or to persuade the judge he/she should not grant a writ of mandate against a governmental agency. 


P

Paralegal:

Non-lawyer who performs routine tasks requiring some knowledge of the law and procedures. In California, they are regulated by Business & Professions Code sections 6450 et seq., which requires supervision by a member of the State Bar of California and possession of Paralegal certificate. Usually paralegals have taken a prescribed series of courses in law and legal processes, which are much less demanding than those required for a licensed attorney.

Paralegals are increasingly popular, often handling much of the paper work in litigation, business law, and reviewing transcripts (i.e. hearings, depositions, etc.). Furthermore, paralegals often take the lead in initial drafts of discovery and discovery responses (i.e. interrogatories, production of documents, etc.), as well as procedural motions and other specialized jobs. The main reason is that the hourly rate charged for paralegals is much less than that for the attorneys. Paralegals are also sometimes called legal assistants.

Pardon:

To use the executive power of a Governor or President to forgive a person convicted of a crime, thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime for which the pardon was given. A pardon strikes the conviction from the books as if it had never occurred, and the convicted person is treated as innocent.

Sometimes pardons are given to an older rehabilitated person long after the sentence has been served to clear his/her record. However, a pardon can also terminate a sentence and free a prisoner when the chief executive is convinced there is doubt about the guilt or fairness of the trial, the party is rehabilitated and has performed worthy public service, or there are humanitarian reasons such as terminal illness.

A pardon is distinguished from "a commutation of sentence," which cuts short the term; "a reprieve," which is a temporary halt to punishment, particularly the death penalty, pending appeal or determination of whether the penalty should be reduced; "amnesty," which is a blanket "forgetting" of possible criminal charges due to a change in public circumstances (such as the end of a war or the draft system); or a "reduction in sentence," which shortens a sentence and can be granted by a judge or an executive.

Example: The most famous American pardon was the blanket pardon given by President Gerald Ford to ex-President Richard Nixon in the wake of the Watergate scandal and Nixon's resignation; that pardon closed the door to any future prosecution against Nixon for any crime before the pardon.

Pari Delicto:

Latin term indicating that two or more parties are equally at fault.  Most commonly used when courts deny relief to both/all parties, because of wrongdoing by both/all.  This term is related to the doctrine of “unclean hands,” which is an equitable defense asserting that the opposing party should not be awarded any damages because of its own wrongdoing.

Pleading:

Legal document in which a party sets out the cause of action or defense.

Prima facie:

Translated as “at first sight,” this phrase concerns the minimal burden of proof a claimant is obligated to meet.  Thus, only if a plaintiff provides prima facie evidence of a valid claim, will a court hear the case.

Example:  A prosecutor produces evidence of forged checks by the defendant. This is prima facie evidence of fraud, and the case may proceed to trial. Note that prima facie evidence only allows the case to proceed to trial, and does not guarantee judgment for the party providing the evidence. (From our example, if the defendant introduces evidence that the checks were printed with incorrect account numbers, he may ultimately prevail at trial.)

Pro Per:

Short for "propria persona," which is Latin for, "for oneself," usually applied to a person who represents himself/herself in a lawsuit rather than hiring an attorney. Other terms (e.g. pro se) mean the same thing.

Proximate Cause:

This term is used mainly in civil suit settings, and in particular for negligence cases. A party is only liable for damage if any harm was “proximately caused” by the defendant’s (possibly negligent) act. In other words, any resulting harm must have been foreseeable to a reasonable person, in order for a party to be held liable.

Example: A sailor fails to properly seal a fuel tank on a ship. The ship is struck by lightning that night during a freak rain storm, and the ship explodes, damaging the harbor. At trial, the judge or jury must determine whether the resulting damage to the harbor was a foreseeable result of the sailor’s failure to seal the fuel tank.


Q

Qualification:

Fitness or capacity necessary to make one eligible to serve in a particular role. May be the qualities needed to serve as an expert witness, run for office (i.e. political, corporation, etc.), obtain a license, or vote, among others.

Quantum meruit:

Latin for "as much as he has deserved." This is a reward for the value of services rendered in a quasi-contract relationship. Also used as an equitable remedy to provide restitution for unjust enrichment.

Quash:

To annul or make void. A motion to quash is a motion asking the adjudicator to terminate a particular action of a party to a legal matter.

Quasi:

Latin for "as if." Used to describe something that, or someone who, resembles or seems to like or behaving like something else. Often used to describe a relationship between parties that resembles a contract (i.e. quasi-contract) or the adjudicative acts of an individual who is not a member of the judicial branch (i.e. quasi-judicial), among others.

Question of fact:

An issue in dispute that is to be decided solely by the fact finder at hearing.

Question of law:

A question that is to be decided by the court. It will concern the application or interpretation of the law to the matter in dispute. A question of law may have already been answered by statute or case law, may be in conflict, or may be a case of first impression. It is a question that the fact finder does not answer or address.

Quid pro quo:

Latin meaning "something for something." Pronounced "Kwid-Pro-Kwhoa." Describes when one thing is exchanged for another thing. Also used to describe a particular type of sexual harassment where someone in a position of authority offers some form of promotion, compensation, or enhancement in exchange for sexual favors.

Qui tam:

Type of claim or lawsuit whistleblowers bring under the False Claims Act, a law that rewards whistleblowers if their case recovers funds for the government. Its name is an abbreviation of the latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning "[he] who sues in this matter for the king as well as for himself." The claim or suit is a powerful way for citizens to patrol many kinds of fraud – Medicare and Medicaid fraud, government contractor fraud, etc. – that impact the government financially. The claim can help the government recover billions of dollars per year that is lost due to fraud, malfeasance, and waste. The incentive is providing the whistleblower with a percentage of the ill gotten recovery.

Quorum:

Minimum number of members (i.e. of shareholders, members, directors, legislators, etc.) who must be present for a body to transact business or conduct a vote.


R

Repudiation:

Denial of the existence of a contract and/or refusal to perform a contract obligation. Repudiation is an anticipatory breach of contract.

Res Ipsa Loquitur:

Translated as “the thing itself speaks,” this legal doctrine means that the mere fact something has occurred is sufficient evidence to prove the necessary elements of a case.

Example: Two trains collide. A court could find that based solely on that fact, at least one party was negligent, as two trains just do not occupy the same track at the same time.

Respondent:

The party who is required to answer a petition for a court order or writ requiring the respondent to take some action, halt an activity or obey a court’s direction.

Retainer:

The advance payment to an attorney for services to be performed intended to ensure the lawyer will represent the client and that the lawyer will be paid at least that amount.


S

Service:

Delivering documents to the other party or witness. There are different requirements in the law about how documents must be served, depending on what type of hearing is involved, and what type of documents are served. Types of service including personal service (such as having the document hand delivered by a sheriff), certified mail return receipt, or sending by mail are common. Some agencies permit service by facsimile or even email.

Set Aside:

To annul or negate an order, ruling, or judgment of another tribunal. The desired result of a successful prosecution of a petition for writ of mandate.

Stay:

An order or ruling that is delayed or held-up by a tribunal in order to provide more time to the party upon which the order or ruling will be imposed to take needed action (i.e. arranging for payment of a judgment, etc.). Alternatively, the order or ruling may be delayed by the tribunal for equitable purposes – the impact of the order or ruling may be so detrimental to the party upon which the order or ruling will be imposed that the tribunal is willing to delay its impact to permit the party to seek review. This type of stay has the same type of impact as a temporary injunction but is associated with petitions for writs of mandate.

Stipulation:

An agreement between all parties. It is typically used in the context of a hearing or proceeding.

For example, the parties might stipulate to some or all of the facts, and therefore will not have to present evidence concerning those facts. Another common stipulation is concerning continuances of scheduled hearings. Finally, a common form of stipulation in the field of professional licensing law is a Stipulated Settlement, in which the parties agree to some level of admission in exchange for a lesser form of license discipline. Stipulations will either be made in writing before the hearing, or may be stated on the record by the parties after the hearing starts.


T

Tabula Rasa:

Latin for “a blank tablet ready for writing” or “a clean slate.”

Tacit:

Implied by omission. Most often used to seek evidence of an admission or acquiescence. The fact that a party did not deny an allegation, when made, and did not oppose an action, when taken, implies that the allegation is true or that the action is permissible.

Temporary Injunction:

Court order prohibiting an action by a party to a lawsuit until there has been a trial, other court action, or a resolution of the underlying conflict. The purpose is to preserve the status quo and prevent irreparable damages or change until the legal questions are determined. Upon the end of the matter, the court may issues a permanent injunction or dissolve the temporary injunction.

Temporary Restraining Order (“TRO”):

Short-term, stop-gap court order issued pending a hearing, at which time a temporary injunction may be ordered to be in force until trial, or a permanent injunction is granted. Sometimes, a TRO is granted without notice to the opposing party.

Third Party:

One who is not a party to a contract, agreement, lawsuit, or transaction. Sometimes, an unknown or known third party is made an explicit contingency of a term of a contract or transaction.

Toll:

Stop or abate the running of the statute of limitations to bring suit. Typically, associated with a tolling statute (i.e. a law the interrupts the running of the statute of limitations to bring suit) or a tolling agreement (i.e. an enforceable agreement between potential parties to which the apparent-defendant agrees to extend the statutory limitations period on the plaintiff’s claim).

Trade Secret:

Information (i.e. formula, process, pattern, compilation, program, method, technique, device, other business information) not generally known or discoverable that provides a competitive advantage, developed by a party-in-interest, used continuously, and the party-in-interest intends on keeping it confidential.

Trespass to Chattels:

Particular type of trespass whereby a person has intentionally interfered with another person’s lawful possession of a chattel. A chattel refers to the movable or immovable personal property of an individual except real estate. Generally, the basic elements of a claim of trespass to chattels are lack of an owner’s consent to trespass, interference with possessory interest, and intention of the trespasser. Any unlawful interference, however slight, with another’s enjoyment of personal property is a trespass to chattel. Interference can be dispossession of a chattel by taking it, destroying it, or barring the owner’s access to it.

"Twinkie Defense":

A derisive label of an improbable type of legal defense coined by members of the media in the wake of the 1979 trial of Dan White for the murder of City of San Francisco Mayor, George Moscone and Supervisor, Harvey Milk.

White's defense against murder charges was that he had a diminished capacity from slipping into depression at the time of the slayings. Evidence of that depression was the consumption of a large amount of sugary food by White, which was considered out of character. One item eaten was a Twinkie – hence the term "Twinkie defense." The diminished capacity defense was ultimately successful, resulting in White being convicted of only voluntary manslaughter, instead of murder. Often times the defense is misunderstood to mean that, in essence, "the Twinkie did it." However, that was not what was argued or intended at its creation.


U

Ultra vires:

Beyond the scope of authority granted by law or by contract. Often used to find corporate officer’s personally liable for actions taken that exceed the corporate officer’s scope of authority.

Underground Regulation:

When a state agency issues, uses, enforces, or attempts to enforce a guideline, criterion, bulletin, manual, instruction, order, standard, or any other rule without following the procedures established in the Administrative Procedure Act (APA), the "rule" is called an "underground regulation." And a state agency is prohibited from enforcing such an "underground regulation." That is becase compliance with the rulemaking requirements of the APA is mandatory; all regulations are subject to it unless expressly exempted by statute. If a rule looks like a regulation, reads like a regulation, and acts like a regulation, it will be treated as one by the courts, whether or not the issuing agency has so labeled it. 

Unconscionability:

Defense that a tribunal may refuse to enforce a contract or agreement that is so extremely unfair or unreasonably favorable to one party that it precluded meaningful choice for the other party. Dependent upon the circumstances at the time of contract or agreement formation.

Undue Influence:

Unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by the very relation between the two is assured that the party will not act in a manner inconsistent with the influencer’s own interest. This is a defense in contract law that voids that contract as the party has lost free will and/or has had another person’s interest forced upon him/her.


V

Vague:

Indefinite, unclear, uncertain, imprecise, or indistinct. Can be used as a defense to contractual terms, regulations, or statutes, or as an objection in discovery and during a proceeding.

Venue:

The location where a conference, hearing, or proceeding is being held. The law requires the venue for a trial to be a proper or possible place because the place has some connection to the events that gave rise to the lawsuit.

Veritas nihil veretur nisi abscondi:

Latin for “truth fears nothing but to be hidden.”

Voir Dire:

A preliminary examination of a prospective fact finder (i.e. juror, hearing panel member, etc.), done by a tribunal or an attorney, to determine whether the fact finder is qualified, suitable, competent, and unbiased to serve in such a role. It is pronounced “vwah DEER.”


W

Wager:

A contract by which two or more parties agree that a certain sum of money or other thing will be paid or delivered to one of them on the happening of an uncertain event or upon the ascertainment of a fact which is in dispute between them. The parties typically have no interest or ability to impact the happening of the uncertain event. And the uncertain event is typically some form of lottery, contest, sporting event, or a game of chance (e.g. the Super Bowl). However, it explicitly does not include investments or insurance.

Wage Theft:

The illegal withholding of accrued wages, income, compensation, vacation, or benefits that are rightfully owed to an employee or misclassified worker. Takes place through a variety of methods, some intentional, and some through recklessness or negligence of the employer. This includes but is not limited to failures to pay wages, minimum wages, overtime, or vacation; employee misclassification; overtime exemption misclassification; illegal deductions in pay; working off the clock; or denial of employee benefits.

Waiver:

The voluntary relinquishment or abandonment of a legal right. May be express or implied. Must have knowledge and intention to forgo prosecuting the right.

Wet Reckless:

Guilty plea bargain of reckless driving which was "alcohol related." A wet reckless results when the defendant wants to avoid a charge of driving under the influence when the amount of blood alcohol was borderline illegal, there was no accident, and no prior record. The result is a lower fine, no jail time, and no record of a drunk driving conviction, but if there is a subsequent drunk driving conviction the "wet reckless" will be considered a "prior" drunk driving conviction and result in a heavier sentence required for a second conviction.

Worker Adjustment and Retraining Notification Act (“WARN Act”):

A federal law (with state counterparts) that requires certain employers to provide notice of a mass layoff, 60 days before the closing or layoff, to all employees who could be potentially laid-off, the state-dislocated-workers unit, and the chief elected official of the unit of local government where the layoff is going to take place.

Writ:

A court’s written order, in the name of state or other competent legal authority, commanding the addressee to do or to refrain from doing a specified act.

Wrongful Discharge:

A lawsuit brought by a former employee against an employer alleging that the termination of employment violated a contract or was illegal. Also termed wrongful termination.


X

X:

A mark serving as a signature for individuals who are illiterate or physically handicapped. The signer’s name is usually required to be near the mark and if it is to be notarized as a signature, requires two witnesses in addition to the notary public.

X-Rated:

Something containing sexually explicit imagery, audio, video, or description, or portraying sexual conduct. Is not necessarily considered obscene as it is not necessarily portraying sexual conduct in a patently offensive way.

XYY syndrome:

Type of defense where the party claims to have a genetic defect – an extra Y chromosome – causing uncontrollable aggressive impulses. Claimed as part of an insanity plea, however, most courts have rejected it.


Y

Yellow-Dog Contract:

Employment contract that forbids membership in a labor union. Such a contract is generally illegal under federal and state law.

Your Honor:

The proper – and only – way to address a judge or administrative law judge. This is the case in almost any setting and especially in court or hearing.

Youthful Offender:

A person in late adolescence who has been convicted of a crime. This term is the politically-correct replacement for juvenile delinquent.


Z

Zealous Witness:

A witness who gives clearly biased testimony in favor of the party that called him or her to testify.

Zero-Sum:

Being in a situation – conflict, relationship, etc. – where the gain of one party is equal to the loss of the other party. This can describe particular types of contract or legal disputes. This can also be used to describe the particular mentality of a party – i.e. there must be one winner and one loser – to a dispute, regardless of whether or not the dispute is, in fact, zero-sum.

Zoning Ordinance:

Municipal ordinance that regulates the use and conditions to which land within various parts of the municipality may or may not be put. When coordinated, creates a zoning map of the municipality.