GLOSSARY OF LEGAL TERMS
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14 DAY RULE -- A rule which requires that a person charged with a felony be
given a preliminary examination not more than 14 days after the person’s
arraignment on the original warrant. See MCL 766.4, MCR 6.104(E)(4).
180 DAY RULE -1. 1. A rule which allows those accused of a felony who have been in jail
for 180 days and who have not yet been brought to trial, to be released
on their own recognizance if they delay has not been caused by the
accused or the accused’s attorney.
2. 2. A rule which requires all pending charges against a prison inmate
be brought to trial in 180 days or be dismissed with prejudice.
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A
ABATEMENT- A reduction in some amount that is owed, usually granted by the
person to whom the debt is owed. For example, a landlord might grant an
abatement in rent. In estate law, the word may refer more specifically to a
situation where property identified in a will cannot be given to the beneficiary
because it had to be sold to pay off the deceased debts. Debts are paid before
gifts made in wills are distributed and where a specific gift has to be sold to pay
off a debt, it is said to "abate" (compare with "ademption").
ABBACINARE - A barbaric form of corporal punishment meted out in the middle
ages where persons would be permanently blinded by the pressing of hot irons to
the open eyes.
ABDUCTION - To take someone away from a place without that person's
consent or by fraud. See also "kidnapping".
ABET - The act of encouraging or inciting another to do a certain thing, such as a
crime. For example, many countries will equally punish a person who aids or
abets another to commit a crime.
Ab initio - Latin: from the start.
ABSTRACT OF CONVICTION - Summary of the court's findings on a moving
violation
ABSTRACT OF RECORD - An abbreviated or partial record.
ABSTRACT OF TITLE - A condensed history of the chain of title to land, used to
determine or establish present ownership.
ACCELERATION CLAUSE - A clause in a contract that states that if a payment
is missed, or some other default occurs (such as the debtor becoming insolvent),
then the contract is fully due immediately. This is a typical clause in a loan
contract; miss one payment and the agreement to pay at regular intervals is
voided and the entire amount becomes due and payable immediately.
ACCEPTANCE - One of three requisites to a valid contract under common law
(the other two being an offer and consideration). A contract is a legally binding
agreement between two or more parties which starts with an offer from one
person but which does not become a contract until the other party signifies an
unequivocal willingness to accept the terms of that offer. The moment of
acceptance is the moment from which a contract is said to exist, and not before.
Acceptance need not always be direct and can, in certain circumstances, be
implied by conduct (see acquiescence below).
ACCESSORY - One who knowingly and intentionally contributes to or aids in the
commission of a crime, before or after, but not necessarily during, the
commission of a crime.
ACCOMPLICE - One who participates in the commission of a crime, other that
the person actually doing that act constituting the crime.
ACCORD AND SATISFACTION - A term of contract law by which one party,
having complied with its obligation under a contract, accepts some type of
compensation from the other party (usually money and of a lesser value) in lieu
of enforcing the contract and holding the other party to their obligation. This
discharges the contract. The definition cited by lawyers is usually that found in
British Russian Gazette & Trade Outlook Ltd. v. Associated Newspapers Ltd.
(1933) 2 K.B. 616: "Accord and satisfaction is the purchase of a release from an
obligation arising under contract or tort by means of any valuable consideration,
not being the actual performance of the obligation itself. The accord is the
agreement by which the obligation is discharged. The satisfaction is the
consideration which makes the agreement operative."
ACCRETION - The imperceptible and gradual addition to land by the slow action
of water. Heavy rain, river or ocean action would have this effect by either
washing up sand or soil or by a permanent retreat of the high water mark. The
washing up of soil is often called avulsion although the latter term is but a variety
of accretion.
ACQUIESCENCE - Action or inaction, which binds a person legally even though
it was not intended as such. For example, an action which is not intended as a
direct acceptance of a contract will nevertheless stand as such as it implies
recognition of the terms of the contract. For example, if I display a basket of fruit
in a marketplace and you come by, inspect an apple and then bite into it, you
have acquiesced to the contract of sale of that apple. Acquiescence also refers to
allowing too much time to pass since you had knowledge of an event which may
have allowed you to have legal recourse against another, implying that you waive
your rights to that legal recourse.
ACQUIT - To find not guilty and set free.
ACQUITAL - A judgment of not guilty in a criminal case
ACT - A bill that has passed through the various legislative steps required for it
and which has become law, as in "an Act of the Commonwealth of Australia."
Synonymous to statute, legislation or law.
ACT OF GOD - An event which is caused solely by the effect of nature or natural
causes and without any interference by humans whatsoever. Insurance contracts
often exclude "acts of God" from the list of insurable occurrences as a means to
waive their obligations for damage caused by hurricanes, floods or earthquakes,
all examples of "acts of God".
ACTION - A legal dispute brought forward before a court. An action is also
referred to as a "case," "lawsuit," "cause of action,"or "cause
Ad damnum - Latin: refers to the parts or sections of a petition that speaks to the
damages that were suffered and claimed by the plaintiff. The ad damnum part of
a petition will usually suggest an amount in dollars that the plaintiff asks the court
to award."
ADDENDUM - An attachment to a written document. For example, affidavits may
be addendums to a petition as a petition may be an addendum to a writ.
ADEMPTION - When property identified in a will cannot be given to the
beneficiary because it no longer belonged to the deceased at the time of death.
For example, the particular gift may have been destroyed, sold or given away
between the time of the will and the time of death. Compare this with
"abatement".
ADDITUR - The power of a trial court to increase the amount of an award made
by a jury verdict as an alternative to granting a new trial.
ADEHESION CONTRACT - A fine-print consumer form contract which is
generally given to consumers at point-of-sale, with no opportunity for negotiation
as to it's terms, and which, typically, sets out the terms and conditions of the sale,
usually to the advantage of the seller.
Ad hoc - Latin: for this purpose; for a specific purpose. An ad hoc committee, for
example, is created with a unique and specific purpose or task and once it has
studied and reports on the matter, it stands disbanded (compare with standing
committee).
Ad infinitum - Latin: forever; without limit; indefinitely.
ADJOURN - To suspend indefinitely, or until a later stated time.
ADJOURNMENT - The postponing or putting off a case or session of court until
another time or place.
ADJUDICATE - To determine judicially.
ADJUDICATION - The final judicial determination of a case by a finding of guilt
or innocence by a trial court in a criminal case or the giving of a judgment or a
decree in a civil case.
Ad litem - Latin: for the suit. A person appointed only for the purposes of
prosecuting or defending an action on behalf of another such as a child or
mentally challenged person. Also called a guardian ad litem.
ADMINISTRATIVE AGENCY REGULATIONS - Rules adopted by an
administrative agency (such as the Department of State or the Department of
Natural Resources) to govern matters under the jurisdiction of the agency.
ADMINISTRATIVE LAW - Synonymous with "natural justice." Administrative law
is that body of law, which applies for hearings before quasi-judicial or
administrative tribunals. This would include, as a minimum, the principles of
natural justice as embodied in audi alteram partem and nemo judex in sua causa.
Many quasi-judicial organizations or administrative tribunals supplement the rules
of natural justice with their own detailed rules of procedure.
ADMINISTRATIVE ORDERS – Orders issued by the Michigan Supreme Court to
regulate court procedures.
ADMINISTRATOR DE BONIS NON – In cases where the administration of the
decedent’s estate is left unfinished due to the death, removal, or resignation of
the personal representative, a court may appoint a new personal representative
to complete the administration of the estate. In some jurisdictions, the new
personal representative is called the "administrator de bonis non." Under the
Michigan Revised Probate Code, this person is referred to as a "successor
personal representative."
ADULT – Someone who is no longer a minor. In criminal cases, an adult is
someone age 17 or older. See MCL 712A.2(a). In most other proceedings, an
adult is someone age 18 or older. See MCL 700.8(5). See also MINOR.
ADMINISTRATIVE TRIBUNAL - Hybrid adjudicating authorities, which straddle
the line between government and the courts. Between routine government policy
decision-making bodies and the traditional court forums lies a hybrid, sometimes
called a "tribunal" or "administrative tribunal" and not necessarily presided by
judges. These operate as a government policy-making body at times but also
exercise a licensing, certifying, approval or other adjudication authority which is
"quasi-judicial" because it directly affects the legal rights of a person.
Administrative tribunals are often referred to as "Commission", "Authority" or
"Board."
ADMINISTRATOR - A person who administers the estate of a person deceased.
The administrator is appointed by a court and is the person who would then have
power to deal with the debts and assets of a person who died intestate. Female
administrators are called "administratrix." An administrator is a personal
representative.
ADR - Abbreviation for alternative dispute resolution.
ADULTERY - Voluntary sexual intercourse between a married person and
another person who is not their married spouse. In most countries, this is a legal
ground for divorce. The person who seduces another's spouse is known as the
"adulterer." In old English law, this was also known as criminal conversation.
Ad Valorem - According to the value. For example, an ad valorem tax on an
automobile is one where the tax depends on the value of the automobile.
ADVERSE POSSESSION - The possession of land, without legal title, for a
period of time sufficient to become recognized as legal owner. The more
common word for this is "squatters." Each state has its own period of time after
which a squatter can acquire legal title. Some states prohibit title by mere
prescription or possession.
AFFIANT - One who, being sworn, makes and signs an affidavit; a deponent.
AFFIDAVIT - A statement, which before being signed, the person signing takes
an oath that, the contents are, to the best of their knowledge, true. It is also
signed by a notary or some other judicial officer that can administer oaths, to the
effect that the person signing the affidavit was under oath when doing so. These
documents carry great weight in Courts to the extent that judges frequently
accept an affidavit instead of the testimony of the witness.
AFFINITY - The relationship that exists as a result of a marriage, between a wife
and her husband’s relatives, or a husband and his wife’s relatives, as
distinguished from relationship by blood.
AFFIRMATION - A solemn and formal declaration that a statement is true. In
certain cases, an affirmation may be substituted for an oath.
AGENT - A person who has received the power to act on behalf of another,
binding that other person as if he or she were himself or herself making the
decisions. The person who is being represented by the agent is referred to as the
"principal."
AGGRAVATED DAMAGES - Special and highly exceptional damages awarded
by a court where the circumstances of the tortuous conduct have been
particularly humiliating or malicious towards the plaintiff/victim.
ALIAS SUMMONS - A second or subsequent summons issued after the
originally issued summons expires without being served.
ALLEGATION - A declaration, assertion, or statement of a party to a lawsuit,
made in a pleading, and setting out what the party intends to prove.
ALIMONY - An amount given to one spouse to another while they are separated.
Historically, the word "alimony" referred to monies paid while spouses were
legally separated but stilled wed locked. Where they were divorced, the monies
payable were then referred to as "maintenance" but this distinction is now in
disuse.
ALLIANCE - A military treaty between two or more states, providing for a
mutually-planned offensive, or for assistance in the case of attack on any
member.
ALIENATE - To sell or give completely and without reserve; to transfer title to
somebody else. A voluntary conveyance of property, especially real property.
ALLODIAL A kind of land ownership that is unfettered, outright and absolute. It is
the opposite of the feudal system and supposes no obligation to another (ie. a
lord).
ALLONGE
A piece of paper which has been attached to a contract, a check or any
promissory note, on which to add signatures because there is not enough room
on the main document.
ALTERNATIVE DISPUTE RESOLUTION - Also known as "ADR"; methods by
which legal conflicts and disputes are resolved privately and other than through
litigation in the public courts, usually through one of two forms: mediation or
arbitration. It typically involves a process much less formal than the traditional
court process and includes the appointment of a third-party to preside over a
hearing between the parties. The advantages of ADR are speed and money: it
costs less and is quicker than court litigation. ADR forums are also private. The
disadvantage is that it often involves compromise.
AMALGAMATION - The merging of two things together to form one such as the
amalgamation of different companies to form a single company.
AMBASSADOR - A citizen that has been officially asked by their country to live
in another country in order to legally represent it. For example, the USA has sent
ambassadors to live, and represent the USA, in almost all other countries.
AMBULATORY - Something, which is not cast in stone; which can be changed
or revoked, such as a will.
AMEND - To change, to revise, usually to the wording of a written document
such as legislation.
Amicus curiae - Latin: friend of the court. Refers more specifically to persons
asking for permission to intervene in a case in which they are neither plaintiff nor
defendant, usually to present their point of view (or that of their organization) in a
case, which has the potential of setting a legal precedent in their area of activity.
This is common, for example, in civil rights cases and, in some instances, can
only be done with the permission of the parties or the court.
ANCILLARY - That which is part of but subordinate to some other proceeding.
ANCILLARY ADMINISTRATION - Administration of an estate in another
jurisdiction where a decedent had property but where the decedent did not live.
ANNULMENT - To make void; to cancel an event or judicial proceeding both
retroactively and for the future. Where, for example, a marriage is annulled, it is
struck from all records and stands as having never transpired in law. This differs
from a divorce, which merely cancels a valid marriage only from the date of the
divorce. A marriage annulled stands, in law, as if never performed.
ANSWER - The legal paper in which the defendant answers the claims of the
plaintiff in a lawsuit.
ANTEDATE - To date back; retroactively. To date a document to a time before it
was written.
ANTENUPTIAL - An event or document, which pre-dates a marriage. For
example, an "ante nuptial agreement" is one, which is signed before marriage. A
ante nuptial gift is a gift given by one spouse to the other before marriage.
ANTI-TRUST - (USA)"Anti-trust" legislation is designed to prevent businesses
from price-setting or other secret collaboration which circumvents the natural
forces of a free market economy and gives those engaging in the anti-trust
conduct, a covert competitive edge. Also known as "anti-combines" or
"competition" legislation.
APPEAL - To ask a more senior court or person to review a decision of a
subordinate court or person. In some countries such as Canada, the USA and
Australia, appeals can continue all the way up to the Supreme Court, where the
decision is final in that it can no longer be appealed. That is why it is called
"supreme" (although, in Australia the supreme court is called the High Court).
APPEAL BY APPLICATION OR LEAVE - An appeal where permission must be
obtained from the higher court before the appeal may be filed
APPEAL BY RIGHT - An appeal to a higher court where permission does not
first have to be obtained.
APPEAL RECORD - The record sent by the trial court of what happened at the
trial court. Must be either a copy of the court record and transcripts or a settled
record.
APPEARANCE - The act of showing up in court as either plaintiff, defendant,
accused or any other party to a civil or criminal suit. It implies that you accept the
power of the court to try the matter (i.e. "jurisdiction"). Appearances are most
often made by lawyers on their client’s behalf and any appearance by a lawyer
binds the client. You can make a limited appearance called a "special
appearance" in which your presence is not to imply acceptance of the court's
jurisdiction but, rather, to challenge the jurisdiction of the court. An example of
the usefulness of a "special appearance" would be where you want to raise the
fact that you were never properly served with the court papers.
APPELLANT - In a case on appeal, the party appealing a decision or judgment
to a higher court.
APPELLATE COURT - A court which reviews lower court decisions, generally on
the record of the lower court. Cases from the district courts are appealed to the
circuit court. Cases from the circuit court are appealed to the Court of Appeals.
Cases from the probate court are appealed to either the circuit court or the Court
of Appeals depending upon the type of case. A limited number of cases may also
be appealed to the Michigan Supreme Court.
APPELLEE - In a case on appeal, the party who did not appeal the lower court’s
decision.
APPLICATION - Placing a request or petition before the court. The act of making
the request.
APPLICATION FOR LEAVE TO APPEAL - A document requesting the appellate
court to hear a party’s appeal from a judgment when the party has no appeal of
right or the time limit for an appeal of right has expired. An "application for leave
to appeal" must be made if one wishes to have the court consider one’s appeal
where there is no appeal of right. The Court has final discretion to accept or
reject an application.
APPORTIONMENT - The division and distribution of something into
proportionate parts; to each according to their share. For example, if a court
ordered apportionment of a contract, the party would be required to perform only
to a extent equal to the performance of the other side.
APPURTENANCE
Something that, although detached, stands as part of another thing. An
attachment or appendage to something else. Used often in a real estate context
where an "appurtenance" may be, for example, a right-of-way over water, which,
although physically detached, is part of the legal rights of the owner of another
property.
ARBITRATION
A alternative dispute resolution method by which an independent, neutral third
person ("arbitrator") is appointed to hear and consider the merits of the dispute
and renders a final and binding decision called an award. The process is similar
to the litigation process as it involves adjudication, except that the parties choose
their arbitrator and the manner in which the arbitration will proceed. The decision
of the arbitrator is known as an "award." Compare with mediation.
ARRAIGNMENT
In USA criminal law, the formal appearance of an accused person to hear, and to
receive a copy of, the charge against him or her, in the presence of a judge, and
to then enter a plea of guilty or not guilty. The arraignment is the final preparatory
step before the criminal trial.
ARREARS
A debt that is not paid on the due date adds up and accumulates as "arrears".
For example, if you do not pay your rent, the debt still exists and is referred to as
"arrears". The same word is used to describe child or spousal maintenance or
support, which is not paid by the due date.
ARREST WARRANT - An order issued to a peace officer by a judge or
magistrate, requiring the arrest of a named person.
ARSON - Some countries define "arson" as the intentional setting of a fire to a
building in which people live; others include as "arson" the intentionally setting of
a fire to any building. In either case, this is a very serious crime and is punishable
by a long jail sentence.
ASSAULT - The touching of another person with intent to harm, without that
person's consent.
ASSIGN - To give, to transfer responsibility, to another. The assignee
(sometimes also called "assigns") is the person who receives the right or
property being given and the assignor is the person giving.
ATTACHMENT - The act of seizing a person or property under the authority of a
judicial order so that the person or property is before the court, subject to its
judgment.
ATTEST, ATTESTATION - Signing as a witness to the execution of a written
document.
ATTORN OR ATTORNMENT - To consent, implicitly or explicitly, to a transfer of
a right. Often used to describe a situation where a tenant, by staying on location
after the sale of the leased property, accepts to be a tenant of the new landlord;
or where a person consents to ("attorns to") the jurisdiction of a court, which
would not have otherwise had any authority over that person.
ATTORNEY - An alternate word for lawyers or "barrister & solicitor", used mostly
in the USA. A person that has been trained in the law and that has been certified
to give legal advice or to represent others in litigation.
ATTORNEY IN FACT - The attorney acting in a fiduciary capacity under a
"power of attorney." See POWER OF ATTORNEY.
ATTORNEY OF RECORD - The attorney named in the records or file of a case
who bears the responsibility for the handling of the case on behalf of the party he
or she represents.
Audi alteram partem -Latin: a principle of natural justice which prohibits a
judicial decision which impacts upon individual rights without giving all parties in
the dispute a right to be heard. Habeas corpus was an early expression of the
audi alteram partem principle. In more recent years, it has been extended to
include the right to receive notice of a hearing and to be given an opportunity to
be represented or heard.
Autrefois acquit
French word now part of English criminal law terminology. Refers to an accused
that cannot be tried for a crime because the record shows he has already been
subjected to trial for the same conduct and was acquitted. If the accused
maintains that the previous trial resulted in conviction, he or she pleads,
"autrefois convict." "Autrefois attaint" is another similar term; "attainted" for a
felony, a person cannot be tried again for the same offence.
AUTHENICATED - Certification of original or copy of recorded document.
AVERMENT - Something alleged or asserted in a pleading. See also
ALLEGATION.
A vinculo matrimonii
Latin: of marriage. The term is now used to refer to a final and permanent
divorce.
AVULSION
Land accretion that occurs by the erosion or addition of one's land by the sudden
and unexpected change in a river stream such as a flash flood.
Avunculus - Latin: a mother's brother. "Avuncular" refers to an uncle.
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B
BACKLOG – Total inventory of cases at issue (in civil cases) or defendants
arraigned (in criminal cases) and awaiting trial.
BAD FAITH - Intent to deceive. A person who intentionally tries to deceive or
mislead another in order to gain some advantage.
BAIL – Criminal law: a commitment made (and possibly secured by cash or
property) to secure the release of a person being held in custody and suspected
of a crime, to provide some kind of guarantee that the suspect will appear to
answer the charges at some later date.
BAIL BOND – A financial obligation signed by the accused and those who serve
as sureties to guarantee his or her future appearance in court.
BAILEE - The person who receives property through a contract of bailment, from
the bailor, and who may be committed to certain duties of care towards the
property while it remains in his or her possession.
BAILIFF - A court employee who maintains order in the courtroom and who is
responsible for the custody of the jury, among other functions.
BAILMENT - The transfer of possession of something (by the bailor) to another
person (called the bailee) for some temporary purpose (e.g. storage) after which
the property is either returned to the bailor or otherwise disposed of in
accordance with the contract of bailment.
BAILOR - The person who temporarily transfers possession of property to
another, the bailee, under a contract of bailment.
BANKRUPTCY - The formal condition of an insolvent person being declared
bankrupt under law. The legal effect is to divert most of the debtor's assets and
debts to the administration of a third person, sometimes called a "trustee in
bankruptcy", from which outstanding debts are paid pro rata. Bankruptcy forces
the debtor into a statutory period during which his or her commercial and
financial affairs are administered under the strict supervision of the trustee.
Bankruptcy usually involves the removal of several special legal rights such as
the right to sit on a board of directors or, for some professions that form part of
the justice system, to practice, such as lawyers or judges. Commercial
organizations usually add other non-legal burdens upon bankrupts such as the
refusal of credit. The duration of "bankruptcy" status varies from state to state but
it does have the benefit of erasing most debts even if they were not satisfied by
the sale of the debtor's assets.
BARE TRUST - A trust that has become passive for the trustee because all the
duties the settlor may have imposed upon the trustee have been performed or
any conditions or terms have come to fruition, such as there is no longer any
impediment to the transfer of the property to the beneficiary.
BARRISTER - A litigation specialist; a lawyer that restricts his or her practice to
the court room. In England and some other Commonwealth jurisdictions, a legal
distinction is made between barristers and solicitors, the latter with exclusive
privileges of advising clients, providing legal advice, and the former with
exclusive privileges of appearing in a court on behalf of a client. In other words,
solicitors don't appear in court on a client's behalf and barristers don't give legal
advice to clients. In England, barristers and solicitors work as a team: the solicitor
would typically make the first contact with a client and if the issue cannot be
resolved and proceeds to trial, the solicitor would transfer the case to a barrister
for the duration of the litigation. Lawyers in some states, such as Canada,
sometimes use the title "barrister and solicitor" even though, contrary to England,
there is no legal distinction between the advising and litigating roles. Canadian
lawyers can litigate or give legal advice, as is the case in the USA, where lawyers
are referred to as "attorneys."
BASTARD - An illegitimate child, born in a relationship between two persons that
are not married (ie. not in wedlock) or who are not married at the time of the
child's birth.
BENCH - A judge in court session
BENCH TRIAL - Trail of a case held before a judge sitting without a jury.
BENCH WARRANT - An order issued by the court, ("from the bench") for the
arrest of a person for violating a court order. See CAPIAS.
BENEFICIARY - In a legal context, a "beneficiary" usually refers to the person for
whom a trust has been created. May also be referred to as a "donee" or, for legal
techies, as a cestui que trust. Trusts are made to advantage a beneficiary (i.e. A
settlor (also called a "donor") transfers property to a trustee, the profits of which
are to be given to the beneficiary).
BEQUEATH -To give personal property by a will. This term has been replaced by
the term "devise" under the Michigan Revised Probate Code. See DEVISE,
MICHIGAN REVISED PROBATE CODE.
BEQUEST - Former term used for gift of personal property by a will. Under the
Michigan Revised Probate Code, now called a "devise." See DEVISE,
MICHIGAN REVISED PROBATE CODE.
BERNE CONVENTION - An international copyright treaty called the Convention
for the Protection of Literary and Artistic Works signed at Berne, Switzerland in
1886 (amended several times and as late as 1971) and to which now subscribe
77 nations including all major trading countries including China, with the notable
exception of Russia. It is based on the principle of national treatment.
BIGAMY - Being married to more than one person at the same time. This is a
criminal offence in most countries.
BILL OF EXCHANGE - A written order from one person (the payor) to another,
signed by the person giving it, requiring the person to whom it is addressed to
pay on demand or at some fixed future date, a certain sum of money, to either
the person identified as payee or to any person presenting the bill of exchange. A
check is a form of bill of exchange where the order is given to a bank.
BILL OF LADING - A document that a transport company possesses
acknowledging that it has received goods, and serves as title for the purpose of
transportation.
BLIND TRUST - A trust set up by a settlor who reserves the right to terminate the
trust but other than that, agrees to assert no power over the trust, which is
administered without account to the beneficiary/settlor or the retention of any
other measure of control over the trust's administration. In Canada, for example,
it is common for government ministers to vest all their investment property to a
blind trust to avoid any conflict of interest.
BIND - To create a legal obligation upon one’s self or upon another.
BIND OVER - To hold for trial; a finding at a preliminary examination that
sufficient evidence exists to require a trial on the charges made against the
defendant.
Bona vacantia - PROPERTY THAT
BELONGS TO NO PERSON, AND
WHICH MAY BE CLAIMED BY A
FINDER. IN SOME STATES, THE
GOVERNMENT BECOMES OWNER
OF ALL BONA VACANTIA PROPERTY.
BOND – A promise or contract to do or perform a specified act(s) or to pay a
penalty for failure to perform, usually guaranteed by a "surety" who promises to
pay if the "principal" defaults, or by deposit of money as a "cash bond." Means
basically the same as "bail" on criminal cases; contract to pay; security. A
contract to pay when another person defaults - a surety. A contract to act as
surety and to pay where the principal defaults. It is given by public officers to
guarantee honest and faithful performance of their official duties while in office. If
the principal defaults, the surety has to pay, and the surety can then collect from
the principal. Not the same as insurance.
BORN OUT OF WEDLOCK - Born of parents who were not married at the time
of birth.
BREACH OF CONTRACT - The failure to do what one promised to do under a
contract. Proving a breach of contract is a prerequisite of any suit for damages
based on the contract.
BREACH OF TRUST - Any act or omission on the part of the trustee which is
inconsistent with the terms of the trust agreement or the law of trusts. A prime
example is the redirecting of trust property from the trust to the trustee,
personally.
BRIEF - A written argument submitted to the court by counsel setting forth facts
and/or law supporting his or her client’s case.
BUGGERY - Synonymous with sodomy and referring to "unnatural" sex acts,
including copulation, either between two persons of the same sex or between a
person and an animal (the latter act also known as "bestiality"). Most countries
outlaw bestiality but homosexual activity is gradually being decriminalized.
BURDEN OF PROOF - A rule of evidence that makes a person prove a certain
thing or the contrary will be assumed by the court. For example, in criminal trials,
the prosecution has the burden of proving the accused guilt because innocence
is presumed.
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CALENDAR - A list of all pending cases, or all pending issues ready for trail in
court. A court’s complete trial (etc.) schedule. Often used interchangeably, but
improperly, with "docket."
CALENDAR AUDIT - Review of status of all cases on active lists. The audit
might result in the removal of cases from the calendar and identification of cases,
which have been delayed excessively.
CANON LAW - The law of the Christian Church. Has little or no legal effect
today. Canon law refers to that body of law which has been set by the Christian
Church and which, in virtually all places, is not binding upon citizens and has
virtually no recognition in the judicial system. Some citizens resort to canon law,
however, for procedures such as marriage annulments to allow for a Christian
church marriage where one of the parties has been previously divorced. Many
churchgoers and church officers abide by rulings and doctrines of canon law.
Also known as "ecclesiastical law."
CANONS OF ETHICS - A document outlining the professional responsibilities
and goals of doctors, lawyers, judges, etc. In Michigan, the canons for judges are
found in the Code of Judicial Conduct. Canons for lawyers are found in the
Michigan Rules of Professional Conduct.
CAPIAS – A bench warrant, issued when a defendant does not appear in court
when required to do so; court-issued warrant for arrest.
CAPITAL PUNISHMENT - The most severe of all sentences: that of death. Also
known as the death penalty, capital punishment has been banned in many
countries. In the United States, an earlier move to eliminate capital punishment
has now been reversed and more and more states are resorting to capital
punishment for serious offenses such as murder.
CASE - A legal dispute brought before a court. A "case" is also referred to as an
"action," "lawsuit," "cause of action," or "cause."
CASEFLOW – The management of cases through the court; the passage of
cases through the court system. (Ideally cases are to "flow" through the judicial
process in a smooth, orderly manner, hence the name "caseflow").
CASE LAW - The entire collection of published legal decisions of the courts,
which, because of stare decisis, contributes a large part of the legal rules, which
apply in modern society. If a rule of law cannot be found in written laws, lawyers
will often say that it is a rule to be found in "case law". In other words, the rule is
not in the statute books but can be found as a principle of law established by a
judge in some recorded case. The word jurisprudence has become synonymous
for case law.
CASELOAD - The number of cases a judge handles in a specific time period.
CAUSE OF ACTION, CAUSE - A legal dispute brought before a court, also
referred to as an "action," lawsuit," or "case." The right to judicial relief, also
referred to as a "claim."
Caveat - Latin: let him beware. A formal warning.
Caveat emptor means let the buyer beware or that the buyers should examine
and check for themselves things which they intend to purchase and that they
cannot later hold the vendor responsible for the broken condition of the thing
bought.
CERTIFICATION - s pertains to mental health: The written conclusion and
statements of a physician that an individual is a person requiring treatment
together with the information and opinions in reasonable detail which underlie the
conclusion.
CERTIFIED COPY - A copy of a document, order or record of the court, or other
public office, signed and certified as an exact duplicate by the officer of the court
having custody of the original.
CERTIFY - To vouch for something in writing; to put in writing a statement. To
attest in writing to the authenticity and accuracy of a written instrument or
document, or a copy of it.
Certiorari - A writ of certiorari is a form of judicial review whereby a court is
asked to consider a legal decision of an administrative tribunal, judicial office or
organization (eg. government) and to decide if the decision has been regular and
complete or if there has been an error of law. For example, a certiorari may be
used to wipe out a decision of an administrative tribunal, which was made in
violation of the rules of natural justice, such as a failure to give the person
affected by the decision an opportunity to be heard.
Cestui que trust or cestui que use - The formal Latin word for the beneficiary or
donee of a trust.
Ceteris paribus - Latin" all things being equal or unchanged.
CHALLENGE - To ask that a member of the jury panel be excused. To question
or dispute an action.
CHALLENGE FOR CAUSE - To ask that a member of the jury panel be excused
because there appears to be a specific reason, set out in the court rule, that one
is not legally qualified to act as a juror in this case.
CHALLENGE TO THE ARRAY - To question the qualifications of an entire panel
summoned for jury duty, usually because of alleged partiality or some deficiency
in the manner by which the panel was selected and summoned.
CHANGE OF VENUE - A transfer to removal of a case to a court of another
territorial location and jurisdiction, either because it should have been
commenced there in the first place, or for the convenience of the parties or
witnesses, or because a fair trial cannot be had in the original court location.
CHAMPERTY - When a person agrees to finance someone else's lawsuit in
exchange for a portion of the judicial award.
CHARGE TO THE JURY - A judge’s instructions to the jury which contain
information about the laws which relate to the issues to be decided in a case.
CHATTEL - Moveable items of property, which are neither, land nor permanently
attached to land or a building, either directly or vicariously through attachment to
real property. A piano is chattel but an apartment building, a tree or a concrete
building foundation are not. The opposite of chattel is real property, which
includes lands or buildings. All property, which is not real property, is said to be
chattel. "Personal property" or "personality” is other words sometimes used to
describe the concept of chattel. The word "chattel" came from the feudal era
when "cattle" was the most valuable property besides land.
CHATTEL MORTGAGE - When an interest is given on moveable property other
than real property (in which case it is usually a "mortgage"), in writing, to
guarantee the payment of a debt or the execution of some action. It automatically
becomes void when the debt is paid or the action is executed.
CHECK OR CHEQUE - A form of bill of exchange where the order to pay is
given to a bank which is holding the payor's money.
CHILD ABUSE - Mistreatment of a minor by an adult legally responsible for the
minor.
CHILD BORN OUT OF WEDLOCK - A child born to a woman who was not
married from the date of conception to the date of birth; or, A child who the court
has determined to be born or conceived during a marriage but who is not a child
of the marriage. See MCL 722.711(a).
CHILD CARE FUND - State funds used to reimburse counties for part of the
expenses incurred in providing foster care and other services to children under
the jurisdiction of the family division of the circuit court.
CHILD CARE RULES - The administrative rules for the care of children in foster
care.
CHILD CUSTODY - The responsibility to care for and exercise control over a
child. Child custody may be awarded incident to a domestic relations proceeding.
See DOMESTIC RELATIONS ACTION.
CHILD NEGLECT - The failure of a parent, guardian, or custodian of a minor to
provide the minor with proper or necessary support, education, medical care, or
physical care; also, the failure to provide a fit home environment for the minor.
CHILD PROTECTIVE PROCEEDINGS - Proceedings in the family division of the
circuit court regarding children under age 18 who are abuse or neglected. See
MCL 712A.2(b).
CHILD SUPPORT - In domestic relations cases, ongoing payments made by a
parent to meet the financial needs of that parent’s child, including medical,
dental, educational, and child care expenses. See also SUPPORT ORDER.
CHILD SUPPORT FORMULA - Factors used by the Friend of the Court and the
Prosecuting Attorney when recommending an appropriate amount of child
support. Both the non-custodial and custodial parent’s income are factors
considered in the determination of child support under the formula.
CHILD PROTECTIVE SERVICES (CPS") – A division in the Office of Children’s
Services in the Family Independence Agency. Children’s Protective Services
workers investigate reports of suspected child abuse or neglect. They can also
provide services to families in an effort to prevent abuse or neglect. See the Child
Protection Act, MCL 722.622 et seq.
CHOSE IN ACTION - A right of property in intangible things or which are not in
one's possession, enforceable through legal or court action . Examples may
include salaries, debts, insurance claims, shares in companies and pensions.
CIRCUIT COURT - The trial court of general jurisdiction in Michigan. The
following cases are heard in circuit court: felony trials; civil lawsuits seeking
injunctions, equitable relief, or damages in excess of $25,000; domestic relations
matters; adoptions; child protection proceedings; juvenile delinquency
proceedings; emancipation of minors; waiver of parental consent to an abortion;
personal protection orders; name changes; and, guardianships or
conservatorships arising out of protective proceedings, delinquency proceedings,
or domestic relations custody cases. Each circuit court has superintending
control over the district and probate courts in its circuit. See also ADOPTION,
CONSERVATOR, DOMESTIC RELATIONS ACTION, CHILD PROTECTIVE
PROCEEDINGS, EMANCIPATION, EQUITY, FAMILY DIVISION OF CIRCUIT
COURT, FELONY, GUARDIAN, INJUNCTION, JUVENILE DELINQUENCY
PROCEEDINGS, PERSONAL PROTECTION ORDER, And SUPERINTENDING
CONTROL.
CIRCUIT COURT MISDEMEANOR - Includes any offense, which the statute
designates as a misdemeanor which is punishable by more than one year
imprisonment. It is processed in circuit court exactly like a felony.
CIRCUMSTANTIAL EVIDENCE - Evidence that may allow a judge or jury to
deduce a certain fact from other facts, which have been proven. In some cases,
there can be some evidence that cannot be proven directly, such as with an
eyewitness. And yet that evidence may be essential to prove a case. In these
cases, the lawyer will provide the judge or juror with evidence of the
circumstances from which a juror or judge can logically deduct, or reasonably
infer, the fact that cannot be proven directly; it is proven by the evidence of the
circumstances; hence, "circumstantial" evidence. Fingerprints are an example of
circumstantial evidence: while there may be no witness to a person's presence in
a certain place, or contact with a certain object, the scientific evidence of
someone's fingerprints is persuasive proof of a person's presence or contact with
an object.
CITATION - An order of a court to either do a certain thing or to appear before it
to answer charges. The citation is typically used for lesser offences (such as
traffic violations) because it relies on the good faith of the defendant to appear as
requested, as opposed to an arrest or bail. The penalty for failing to obey a
citation is often a warrant for the arrest of the defendant.
CIVIL ACTIONS OR LAWSUITS - Generally, non-criminal cases concerning the
claim of one private individual against another.
CIVIL INFRACTION - An act or omission prohibited by law which is not a crime,
for which civil sanctions may be ordered. Many traffic violations are classified as
civil infractions.
CIVIL INFRACTION DETERMINATION - A decision whether a person is
responsible for a civil infraction by one of the following: 1) An admission of
responsibility for the civil infraction, 2) An admission of responsibility for the civil
infraction with an explanation, 3) An informal hearing or formal hearing or 4) A
default judgment, for failing to appear at a scheduled informal or formal hearing.
CIVIL INFRACTION FORMAL HEARING - A hearing conducted only by a district
court judge involving the police officer, defendant and all witnesses. An attorney
may represent defendant and a prosecutor must be present.
CIVIL INFRACTION INFORMAL HEARING - A hearing conducted by a district
court magistrate or judge involving the police officer, the defendant and any
witnesses, held without a prosecutor or defense attorney. The determination may
be appealed to a formal hearing.
CIVIL INFRACTION SANCTION - The penalty imposed upon a person found
responsible for a civil infraction; such as the assessment of fine and costs,
mandatory attendance at a corrective program such as a driver’s training
program, drug or alcohol.
CIVIL LAW - Law inspired by old Roman Law, the primary feature of which was
that laws were written into a collection; codified, and not determined, as is
common law, by judges. The principle of civil law is to provide all citizens with an
accessible and written collection of the laws which apply to them and which
judges must follow.
CLAIM OF ACTION - 1. The right to judicial relief also referred to as a "cause of
action." See CAUSE OF ACTION. 2. A creditor’s right to payment from a
decedent’s estate that arises at or before the decedent’s death, including the
decedent’s funeral and burial expenses. 3. A creditor’s right to payment from the
estate of a minor, legally incapacitated person, disappeared person, or ward.
a. Contingent Claim – A claim for expenses not yet incurred that is dependent on
some future event that may or may not happen.
b. Tardy Claim – A claim filed after the date for the final presentation of claims.
CLAIM AND DELIVERY - A civil action to recover: 1) property unlawfully taken
or held by another; and, 2) damages sustained by the unlawful taking or
retention. See MCR 3.105. An action for claim and delivery is also known as an
action for REPLEVIN.
CLAIM OF APPEAL - The form or paper that is filed indicating an appeal is
being taken. The original is filed with court where appeal is going to take place
and copy with trial court.
CLAIMANT - One who has a claim to or makes a claim to something.
CLANDESTINE - Something that is purposely kept from the view or knowledge
of others either in violation of the law or to conduct or conceal some illegal
purpose. A "clandestine marriage" would be one, which does not comply with
laws related to publicity.
CLASS ACTION - When different persons combine their lawsuits because the
facts and the defendant are so similar. This is designed to save Court time and to
allow one judge to hear all the cases at the same time and to make one decision
binding on all parties. Class action lawsuits would typically occur after a plane or
train accident where all the victims would sue the transportation company
together in a class action suit.
CLAYTON'S CASE - An English case which established a presumption that
monies withdrawn from a money account are presumed to be debits from those
monies first deposited. First in, first out. The proper citation is Devaynes v. Noble
(1816) 1 Mer. 572) and the presumption is not applicable to fiduciaries, who are
presumed to withdraw their won money first, and not trust money.
CLEAN HANDS - A maxim of the law to the effect that any person, individual or
corporate, that wishes to ask or petition a court for judicial action, must be in a
position free of fraud or other unfair conduct.
CLIENT-SOLICITOR PRIVILEGE - A right that belongs to the client of a lawyer
that the latter keep any information or words spoken to him during the provision
of the legal services to that client, strictly confidential. This includes being
shielded from testimony before a court of law. The client may, expressly or
impliedly, waive the privilege and, exceptionally, the lawyer may also waive it if
the disclosure of the information may prevent a serious crime.
CODE - A grouping of statutes, relating to a particular subject matter and
arranged in classified order. Usually created by enactment of a new statute by
the legislature embodying all the old statutes relating to the subject and including
changes necessitated by court decisions. In some cases, the change would
result in a new statutory concept. For examples, see JUVENILE CODE, MENTAL
HEALTH CODE, MICHIGAN REVISED PROBATE CODE.
CODICIL - An amendment to an existing will. Does not mean that the will is
totally changed; just to the extent of the codicil.
COLLATERAl - Property that has been committed to guarantee a loan.
COLLATERAL DESCENDANT - A descendant that is not direct, such as a niece
or a cousin.
COLLATERAL MATTERS - Matters related to but not legally relevant to the
question before the court.
COLLATERAL SOURCE RULE
A rule of tort law that holds that the tortfeasor is not allowed to deduct from the
amount he or she would be held to pay to the victim of the tort, any goods,
services or money received by that victim from other "collateral" sources as a
result of the tort (e.g. insurance benefits).
COLLUSION - A secret agreement between two or more persons, who seem to
have conflicting interests, to abuse the law or the legal system, deceive a court or
to defraud a third party. For example, if the partners in a marriage agree to lie
about the duration of their separation in order to secure a divorce.
COMMISSION - A formal group of experts brought together on a regular or ad
hoc basis to debate matters within that sphere of expertise, and with regulatory
or quasi-judicial powers such as the ability to license activity in the sphere of
activity or to subpoena witnesses. Commissions usually also have advisory
powers to government. The organizational form of a commission is often resorted
to by governments to exhaustively investigate a matter of national concern, and
is often known as a "commission of inquiry." This legal structure can be
contrasted with a council, the latter not enjoying quasi-judicial or regulatory
powers.
COMMITTEE - A term of parliamentary law, which refers to, a body of one or
more persons appointed by a larger assembly or society, to consider, investigate
and/or take action on certain specific matters. A committee only has those
powers, which have been assigned to it by the constituent assembly. Most are
merely created to study matters in detail and to then report to the larger group.
This saves the larger assembly time when it meets and allows it to review and
approve a greater number of items, relying on the committee's report and
recommendations. Committees are either standing or ad hoc (this latter kind is
also known as a "special committee).
COMMIT - The act of sending a person to a prison, reformatory, mental hospital
or other facility, pursuant to a court order.
COMMITMENT - The order by which the court directs: 1) The sending of a
person to a prison or jail in execution of sentence or 2) The sending of a person
to a hospital because of a mental disorder.
COMMON LAW - Judge-made law. Law which exists and applies to a group on
the basis of historical legal precedents developed over hundreds of years.
Because it is not written by elected politicians but, rather, by judges, it is also
referred to as "unwritten" law. Judges seek these principles out when trying a
case and apply the precedents to the facts to come up with a judgment. Common
law is often contrasted with civil law systems, which require all laws to be written
in a code, or written collection. Common law has been referred to as the
"common sense of the community, crystallized and formulated by our ancestors".
Equity law developed after the common law to offset the rigid interpretations
medieval English judges was giving the common law. For hundreds of years,
there were separate courts in England and it's dependents: one for common law
and one for equity and the decisions of the latter, where they conflicted,
prevailed. It is a matter of legal debate whether or not common law and equity
are now "fused." It is certainly common to speak of the "common law" to refer to
the entire body of English law, including common law and equity.
COMMON PLEAS COURT - This Court was abolished in 1981 and merged into
the 36th District Court. It was a court in the City of Detroit that had exclusive
jurisdiction over civil cases involving claims up to $5,000 and concurrent
jurisdiction with Wayne County Circuit Court over civil cases involving claims up
to $10,000.
COMMON SHARE - The basic share in a company. Typically, common shares
have voting rights and a pro rata right to any dividends declared. They differ from
preferred shares, which, by definition, carry some kind of right or privilege above
the common shares (e.g. first to receive any dividends).
COMPANY - A legal entity, allowed by legislation, which permits a group of
people, as shareholders, to create an organization, which can then focus on
pursuing set objectives, and empowered with legal rights which are usually only
reserved for individuals, such as to sue and be sued, own property, hire
employees or loan and borrow money. Also known as a "corporation." The
primary advantage of a company structure is that it provides the shareholders
with a right to participate in the profits (by dividends) without any personal liability
(the company absorbs the entire liability of the business).
COMPARATIVE NEGLIGENCE - A principle of tort law which looks at the
negligence of the victim and which may lead to either a reduction of the award
against the defendant, proportionate to the contribution of the victim's negligence,
or which may even prevent an award altogether if the victim's negligence, when
compared with the defendant, is equal to or greater in terms or contributing to the
situation which caused the injury or damage.
COMPETENCY - The presence of those characteristics, which make a witness
legally fit and qualified to give testimony in court – applied, in the same sense, to
documents or other written evidence.
COMPETENT - Legally sufficient, relating primarily to evidence and witnesses in
a court action, i.e., competent to stand trail.
COMPLAINANT - In a civil case, one who makes a complaint, often referred to
as the "plaintiff." In a criminal case, the one who instigates the prosecution, also
referred to as the "complaining witness."
COMPLAINT - In a civil lawsuit, the first paper filed with the court in which the
plaintiff gives the reasons for the suit. A complaint in a criminal action is a written
accusation (under oath or upon affirmation) that a felony, misdemeanor, or
ordinance violation has been committed and probable cause exists that the
named person is guilty of the offense.
CONCILLIATION - A form of alternative dispute resolution in which a "conciliator"
uses medication principles to assist the disputing parties in reaching an
agreement. A conciliator may prepare a recommendation for the court if the
parties are not able to agree; this recommendation may become the court’s order
unless one of the parties objects. See MEDIATION.
CONCURRENT JURISDICTION - The authority of multiple courts to hear the
same type of case at the choice of the litigants.
CONCURRENT SENTENCES - Sentences of imprisonment served
simultaneously in cases where a criminal defendant is convicted of more than
one offense and sentenced to separate terms of imprisonment for each offense.
The defendant is entitled to release from prison at the expiration of the longest
term specified. In Michigan, sentences must always be imposed to run
concurrently absent specific statutory authorization to the contrary. See also
CONSECUTIVE SENTENCE.
CONCURRING OPINION - An opinion written by an appellate judge who agrees
with the decision reached in a case on appeal, but who would base this decision
on reasons different from those expressed by the majority of judges considering
the case. See also DISSENTING OPINION, MAJORITY OPINION.
CONDEMNATION - The process by which private real estate is taken for public
use without the owner’s consent but with just compensation, pursuant to a court
order – a forced sale for public use. Destruction ordered for public health or
safety. In such cases, there is no taking for a public use and thus there is no
compensation
CONDITION PRECEDENT - A contractual condition that suspends the coming
into effect of a contract unless or until a certain event takes place. Many
residential real estate contracts have a condition precedent which states that the
contract is not binding until and unless the property is subjected to an
professional inspection, the results of which are satisfactory to the purchaser.
Compare with "condition subsequent".
CONDITION SUBSEQUENT - A condition in a contract that causes the contract
to become invalid if a certain event occurs. This is different from a condition
precedent. The happening of a condition subsequent may invalidate a contract,
which is, until that moment, fully valid and binding. In the case of a condition
precedent, no binding contract exists until the condition occurs.
CONDONATION - Divorces can be obtained by showing a fault of the other
spouse, such as adultery or cruelty. But a court will refuse to grant a divorce
based on these grounds if there has been "condonation", which is the obvious or
implied forgiveness of the fault. For example, if the "injured" spouse resumes
cohabitation with the "guilty" spouse after being informed of the adultery, and for
a long period or time, the "injured" spouse may be barred from divorce on the
grounds of adultery because of "condonation".
CONFESSION - A statement by person, either oral or written, admitting that he
committed a certain offense. The statement must include all of the elements of
the offense, or it is not a confession but an admission. An oral or written
statement is not necessarily a confession.
CONSANGUINITY - A relationship created by blood; persons who descend from
a common ancestor.
CONSECUTIVE SENTENCE - In cases where a criminal defendant is sentenced
to separate terms of imprisonment for multiple offenses, a consecutive sentence
is one that will be served after another sentence has expired. In Michigan, a
consecutive sentence may only be imposed if there is specific statutory
authorization to do so. See also CONCURRENT SENTENCES.
CONSENSUS - A result achieved through negotiation whereby a hybrid solution
is arrived at between parties to an issue, dispute or disagreement, comprising
typically of concessions made by all parties, and to which all parties then
subscribe unanimously as an acceptable resolution to the issue or disagreement.
Consensus ad idem - Latin term meaning an agreement, a meeting of the
minds between the parties where all understand the commitments made by each.
This is a basic requirement for each contract.
CONSENT CALENDAR - A schedule of informal hearings involving a child in
whom it appears it will serve the best interests of the child and society, with the
consent of the child and all interested parties, to hear the case informally. The
schedule or calendar upon which such informal hearings are placed in called the
"consent calendar."
CONSERVATOR - Under the Michigan Revised Probation Code, a person with
the legal duty and power to manage and protect the estate of another individual
who: 1) Is under the age 18; or, 2) Is a legally incapacitated person. See also
ESTATE, GUARDIAN, LEGALLY INCAPACITATED PERSON, MICHIGAN
REVISED PROBATE CODE, PROTECTED PERSON, WARD.
CONSIDERATION - Under common law, there can be no binding contract
without consideration, which was defined in an 1875 English decision as "some
right, interest, profit or benefit accruing to the one party, or some forbearance,
detriment, loss or responsibility given, suffered or undertaken by the other".
Common law did not want to allow gratuitous offers, those made without anything
offered in exchange (such as gifts), to be given the protection of contract law. So
they added the criteria of consideration. Consideration is not required in contracts
made in civil law systems and many common law states have adopted laws,
which remove consideration as a prerequisite of a valid contract.
CONSIGN -To leave an item of property in the custody of another. A item can be
consigned to a transportation company, for example, for the purpose of
transporting it from one place to another. The consignee is the person to receive
the property and the consignor is the person who ships the property to the
consignee.
CONSPIRACY - An agreement between two or more persons to commit a
criminal act. Those forming the conspiracy are called conspirators.
CONSTITUTION - The basic law or laws of a nation or a state which sets out
how that state will be organized by deciding the powers and authorities of
government between different political units, and by stating and the basic
principles of society. Constitutions are not necessarily written and may be based
on aged customs and conventions, as is the case in England and New Zealand
(the USA, Canada and Australia all have written constitutions).
CONSTRUCTION - The legal process of interpreting a phrase or document; of
trying to find it's meaning. Whether it be a contract or a statute, there are times
when a phrase may be unclear or of several meanings. Then, either lawyers or
judges must attempt to interpret or "construct" the probable aim and purpose of
the phrase, by extrapolating from other parts of the document or, in the case of
statutes, referring to a interpretation law which gives legal construction
guidelines. Generally, there are two types of construction methods: literal (strict)
or liberal.
CONSTRUCTIVE DISMISSAL - Under the employment law of some states,
judges will consider a situation where there has been a fundamental violation of
the rights of an employee, by the employer, so severe that the employee would
have the right to consider himself as dismissed, even though, in fact, there has
been no act of dismissal on the part of the employer. For example, if an employer
tries to force an employee to accept a drastic demotion, the employee might
have a case for constructive dismissal and would be able to assume that the
employment contract has been ended and seek compensation from a court.
CONSTRUCTIVE TRUST - A trust which a court declares or imposes onto
participants of very specific circumstances such as those giving rise to an action
for unjust enrichment, and notwithstanding the lack of any willing settlor to
declare the trust (contrast with express trusts and resulting trusts).
CONTEMPT OF COURT - A act of defiance of court authority or dignity.
Contempt of court can be direct (swearing at a judge or violence against a court
officer) or constructive (disobeying a court order). The punishment for contempt
is a fine or a brief stay in jail (i.e. overnight).
CONTEMNOR - One who commits an act in contempt of court.
CONTINGENCY FEE - A method of payment of legal fees represented by a
percentage of an award. Lawyers get paid in one of two ways: either you pay a
straight hourly rate as you might pay a plumber (e.g. $400 an hour) or the lawyer
might "gamble" (i.e. "contingency" fee) and agree to only get paid if the claim is
successful and by taking a portion (e.g. one-third) of any award that comes after
the filing of the claim. For example, if you go and see a lawyer because, after a
medical emergency, your health insurance company refuses to pay your medical
bills in violation of their policy, the law firm might say: "no money down. In fact,
we don't get paid a cent unless you do. And then, we take one-third off the top of
any award you might get." This allows the client to receive legal services without
putting any money down and it allows the lawyer to advertise, "we don't get paid
unless you do." The lawyer associations in some counties prohibit contingency
fee arrangements. In those countries that allow them, they are very prevalent in
personal injury cases.
CONTRACT - An agreement between persons, which obliges each party to do or
not to do a certain thing. Technically, a valid contract requires an offer and an
acceptance of that offer, and, in common law countries, consideration.
CONTRACT LAW - That body of law which regulates the enforcement of
contracts. Contract law has its origins thousands of years as the early
civilizations began to trade with each other, a legal system was created to
support and to facilitate that trade. The English and French developed similar
contract law systems, both referring extensively to old Roman contract law
principles such as consensus ad idem or caveat emptor. There are some minor
differences on points of detail such as the English law requirement that every
contract contain consideration. More and more states are changing their laws to
eliminate consideration as a prerequisite to a valid contract thus contributing to
the uniformity of law. Contract law is the basis of all commercial dealings from
buying a bus ticket to trading on the stock market.
CONTINUANCE - Postponement of an action pending in court. See
adjournment.
CONTRIBUTORY NEGLIGENCE - The negligence of a person which, while not
being the primary cause of a tort, nevertheless combined with the act or omission
of the primary defendant to cause the tort, and without which the tort would not
have occurred.
CONVERSION - The action of conversion is a common law legal proceeding for
damages by an owner of property against a defendant who came across the
property and who, rather than return the property, converted that property to his
own use or retained possession of the property or otherwise interfered with the
property. The innocence of the defendant who took the property is not an issue. It
is the conversion that gives rise to the cause of action. This common law action
replaced the old action of trover by English law dated 1852. Compare with
detinue.
CONVEY - To transfer title to property; to transport; carry; communicate.
CONVEYANCE - A written document, which transfers property from one person
to another. In real-estate law, the conveyance usually refers to the actual
document which transfers ownership, between persons living (i.e. other than by
will), or which charges the land with another's interest, such as a mortgage.
CONVICTION - The formal decision of a criminal trial, which finds the accused
guilty. It is the finding of a judge or jury, on behalf of the state, that a person has,
beyond reasonable doubt, committed the crime for which he, or she, has been
accused. It is the ultimate goal of the prosecution and the result resisted by the
defense. Once convicted, an accused may then be sentenced.
COPARCENARY - An obsolete co-ownership mechanism of English law where
property, if there was no will, always went to the eldest son. If there was no male
heir, the property went to all the female children collectively as a form of coownership.
COPYRIGHT - The exclusive right to produce or reproduce (copy), to perform in
public or to publish an original literary or artistic work. Many countries have
expanded the definition of a "literary work" to include computer programs or other
electronically stored information.
CORONER - A public official who holds an inquiry into violent or suspicious
deaths. A coroner has the power to summon people to the inquest.
CORPORAL PUNISHMENT - A punishment for some violation of conduct, which
involves the infliction of pain on, or harm to the body. A fine or imprisonment is
not considered to be corporal punishment (in the latter case, although the body is
confined, no punishment is inflicted upon the body). The death penalty is the
most drastic form of corporal punishment and is also called capital punishment.
Some schools still use a strap to punish students. Some countries still punish
habitual thieves by cutting off a hand. These are forms of corporal punishment,
as is any form of spanking, whipping or bodily mutilation inflicted as punishment.
CORPORATE SECRETARY - Officer of a corporation responsible for the official
documents of the corporation such as the official seal, records of shares issued,
and minutes of all board or committee meetings.
CORPORATION - A legal entity, allowed by legislation, which permits a group of
people, as shareholders (for-profit companies) or members (non-profit
companies), to create an organization, which can then focus on pursuing set
objectives, and empowered with legal rights which are usually only reserved for
individuals, such as to sue and be sued, own property, hire employees or loan
and borrow money. Also known as a "company." The primary advantage of for
profit corporations is that it provides its shareholders with a right to participate in
the profits (by dividends) without any personal liability because the company
absorbs the entire liability of the organization.
CORPUS DELECTI - The body of the crime. That which the prosecutors must
prove (that a crime was committed) before introducing a confession or admission
into evidence.
COSTS - This is a term often used in judgments as in "the defendant will pay
costs." When a person is condemned to "costs" it means that he has to pay all
the court costs such as the fees for bringing the action, witness fees and other
fees paid out by the other side in bringing the action to justice. A court can also
condemn a losing party to "special costs" but this is considered punitive as it
would include the other side's lawyer bill. The rule in most places is that "costs
follows the event" which means that the loser pays. In most states, the court has
the final say on costs and may decide not to make an order on costs.
COUNCIL - A formal group of experts brought together on a regular basis to
debate matters within that sphere of expertise, and with advisory powers to
government. For example, Canada has a 'Standards Council of Canada" which
debates and proposes standards policies and is able to make recommendations
to the government of Canada. It can be contrasted with a commission, which,
although also a body of experts, is typically given regulatory powers in addition to
a role as advisor to the government.
COUNSEL -- An attorney; one who gives advice, especially legal advice.
COUNTERCLAIM -- In a civil lawsuit, a claim that the defendant asserts against
the plaintiff. See MCR 2.203© and CLAIM.
COUNTY AGENT -- An officer of the juvenile court who serves under the
supervision of a family division judge to organize, direct and develop the child
welfare work of the court. Also known as a “juvenile officer.” See MCL 712A.8.
COURT OF APPEALS -- The Michigan court in which appeals from the probate
courts, court of claims, and circuit courts are heard and decided. See MCL
600.308.
COURT OF CLAIMS -- Has the authority to hear only claims against the State of
Michigan. As a general rule, a state cannot be sued without its consent.
Michigan granted that consent by establishing the Court of Claims, which has
jurisdiction over claims above $100, except where the circuit court has
jurisdiction. Since 1979 the Court is administratively housed within the Ingham
County Circuit Court.
COURT CONGESTION – An accumulation of cases impeding the timely
movement of those cases through the judicial process.
COURT MARTIAL - A military court set up to try and punish offenses taken by
members of the army, navy or air force.
COURT OF ADMIRALTY - A rather archaic term used to denote the court, which
has the right to hear shipping, ocean and sea legal cases. Also known as
"maritime law".
COURT OF RECORD -- A court whose proceedings are by law permanently
recorded by a public officer other than the judge; they have the power to fine or
imprison for contempt. Courts not of record have less authority and their
proceedings are not permanently recorded. The only courts not of record in
Michigan are municipal courts.
COURT RECORDER -- A court official who records the activities of a court using
an electronic recording device, usually for the purpose of preparing a verbatim
transcript.
COURT REPORTER -- A person who records the activities of a court using
manual shorthand, a stenotype machine or a stenomask.
COURT REPORTING AND RECORDING BOARD OF REVIEW -- A Board
appointed by the Supreme Court to administer the certification of court reporters
and recorders.
COURT RULES -- Rules adopted by the Michigan Supreme Court to govern
procedure in all the state’s courts.
COURT SYSTEM -- Consists of: Michigan Supreme Court, Court of Appeals,
Circuit Court, District Court, Probate Court, Municipal Court, Court of Claims.
See the name of each court for descriptions of individual courts.
COVENANT - A written document in which signatories either commit themselves
to do a certain thing, to not do a certain thing or in which they agree on a certain
set of facts. They are very common in real property dealings and are used to
restrict land use such as amongst shopping mall tenants or for the purpose of
preserving heritage property.
CPS -- See CHILDREN’S PROTECTIVE SERVICES.
CREDITOR - A person to whom money, goods or services are owed by the
debtor.
CRIME - An act or omission which is prohibited by criminal law. Each state sets
out a limited series of acts (crimes) which are prohibited and punishes the
commission of these acts by a fine, imprisonment or some other form of
punishment. In exceptional cases, an omission to act can constitute a crime,
such as failing to give assistance to a person in peril or failing to report a case of
child abuse.
CRIMINAL -- One who has committed a criminal offense; one who has been
legally convicted of a crime; one adjudged guilty of a crime.
CRIMINAL CASE -- A lawsuit is called a criminal case when it is between the
People of the State of Michigan on one side as plaintiff, and a person or
corporation on the other as defendant and involves a question of whether the
defendant has violated one of the laws defining crimes.
CRIMINAL CONVERSATION - Synonymous with adultery. In old English law,
this was a claim for damages the husband could institute against the adulterer.
CRIMINAL LAW - That body of the law that deals with conduct considered so
harmful to society as a whole that it is prohibited by statute, prosecuted and
punished by the government.
CROSS APPEAL -- In a case on appeal, the appellee’s request that the court
Review aspects of the lower court’s decision that were not raised in the
appellant’s papers.
CROSS CLAIM -- In a civil lawsuit involving multiple plaintiffs or multiple
defendants, a claim brought by one plaintiff against another plaintiff, or by one
defendant against another defendant. See MCR 2.203(D) and CLAIM.
CROSS-EXAMINATION - In trials, each party calls witnesses. Each party may
also question the other's witness(es). When you ask questions of the other
party's witness(es), it is called a "cross-examination" and you are allowed
considerably more latitude in cross-examination then when you question your
own witnesses (called an "examination-in-chief"). For example, you are not
allowed to ask leading questions to your own witness whereas you can in crossexamination.
CROWN - The word refers specifically to the British Monarch, where she is the
head of state of Commonwealth countries. Prosecutions and civil cases taken (or
defended) by the government are taken in the name of the Crown as head of
state. That is why public prosecutors are referred to, in Canada, as "Crown"
prosecutors and criminal cases take the form of "The Crown vs. John Doe" or
"Regina vs. John Doe", Regina being Latin for "The Queen."
Cuius est solum, ejus est usque ad caelum et ad inferos - Latin: who owns
the land, owns down to the center of the earth and up to the heavens. This
principle of land ownership has been greatly tempered by case law, which has
limited ownership upwards to the extent necessary to maintain structures.
Otherwise, airplanes would trespass incessantly.
Culpa lata - Latin for gross negligence. It is more than just simple negligence
and includes any action or an omission in reckless disregard of the
consequences to the safety or property of another.
CURTILAGE - The yard surrounding a residence or dwelling house which is
reserved for or used by the occupants for their enjoyment or work? Curtilage may
or may not be inclosed by fencing and includes any outhouses such as standalone garages or workshops. It is a term one might come across in a search
warrant which calls for a search of the residence its' curtilage of a particular
person.
CUSTODY - Means the charge and control of a child including the right to make
all major decisions such as education, religious upbringing, training, health and
welfare. Custody, without qualification usually refers to a combination of physical
custody and legal custody. For other varieties of custody, see joint custody, split
custody and divided custody.
CUSTODIAL PARENT -- The parent having custody of a child. See CHILD
CUSTODY.
CUSTODY STATEMENT -- In some circumstances a child in custody is not
released to his/her parent(s), guardian, etc., but is detained by the court. When
this occurs, the officer taking the child in custody must prepare a statement
setting forth the grounds for detention and submit this report to the court.
Cy-près - "As near as may be": a technical word used in the law of trusts or of
wills to refer to a power that the courts have to, rather than void the document, to
construct or interpret the will or a trust document "as near as may be" to the
actual intentions of the signatory, where a literal construction would give the
document illegal, impracticable or impossible effect.
A-B-C-D-E-F-G-H-I-J-K-L-M
N-O-P-Q-R-S-T-U-V-W-X-Y-Z
D
DAMAGES - A cash compensation ordered by a court to offset losses or
suffering caused by another's fault or negligence. Damages are a typical request
made of a court when persons sue for breach of contract or tort.
DDP -- See DEVELOPMENTALLY DISABLED PERSON.
DE BONIS NON -- See ADMINISTRATOR DE BONIS NON.
DE NOVO -- Latin. Means “anew”. For example, a trial de novo is a trial anew
or a new trial, as opposed to a mere review of the record of the first trial. Means
to start over from beginning. For example, appeals from the probate court are
not de novo, but rather on the record of what happened in the probate court.
DEATH PENALTY - Also known as capital punishment, this is the most severe
form of corporal punishment as it is requires law enforcement officers to kill the
offender. Forms of the death penalty include hanging from the neck, gassing,
firing squad and has included use of the guillotine.
DEBTOR - A person who owes money, goods or services to another, the latter
being referred to as the creditor.
DECAPITATION - The act of beheading a person, usually instantly such as with
a large and heavy knife or by guillotine, as a form of capital punishment. This
form of capital punishment is still in use in some Arab countries, notably Saudi
Arabia.
DECEDENT -- A person who had died.
DECLARATORY JUDGMENT -- A judgment of a court determining the rights of
the parties or giving the court’s opinion on a legal point, without ordering that
anything be done. A declaratory judgment is usually requested before the
happening of (and to prevent) any specific act, which could result in a claim for
damages.
DECREE -- A court judgment. A final decree is one fully and finally disposing of
a case; an interlocutory decree is preliminary in nature, determining some issue
in the case but not the ultimate question involved.
DECREE ABSOLUTE - The name given to the final and conclusive court order
after the condition of a decree nisi is met.
DECREE NISI - A provisional decision of a court which does not have force or
effect until a certain condition is met such as another petition brought before the
court or after the passage of a period time, after which it is called a decree
absolute. Although no longer required in many jurisdictions, this was the model
for divorce procedures wherein a court would issue A decree nisi, which would
have no force or effect until a period of time passed (30 days or 6 months).
DEED - A written and signed document, which sets out the things that have to be
done or recognitions of the parties towards a certain object. Under older common
law, a deed had to be sealed; that is, accompanied not only by a signature but
with an impression on wax onto the document. The word deed is also most
commonly used in the context of real estate because these transactions must
usually be signed and in writing.
DEEM - To accept a document or an event as conclusive of a certain status in
the absence of evidence or facts, which would normally be required to prove that
status. For example, in matters of child support, a decision of a foreign court
could be "deemed" to be a decision of the court of another for the purpose of
enforcement.
De facto - Latin: as a matter of fact; something which, while not necessarily
lawful or legally sanctified, exists in fact. A common law spouse may be referred
to a de facto wife or de facto husband: although not legally married, they live and
carry-on their lives as if married. A de facto government is one which has seized
power by force or in any other unconstitutional method and governs in spite of
the existence of a de jure government.
DEFALCATION - 1. Defaulting on a debt or other obligation such to account for
public or trust funds. Usually used in the context of public officials. 2. Defalcation
has another legal meaning referring to the setting-off of two debts owed between
two people by the agreement to a new amount representing the balance. I owe
you $7 and you owe me $3; we agree to "defalk"; the result is that I owe you $4.
This is a type of novation.
DEFAMATION - An attack on the good reputation of a person, by slander or libel.
DEFAULT -- A failure to do what ought to be done, i.e., when a defendant does
not plead within the time allowed or fails to appear for trial.
DEFAULT JUDGMENT -- Action taken by the court when a person fails to
appear in court in answer to a summons in a civil case.
DEFEASANCE - A side-contract, which contains a condition, which, if realized,
could defeat the main contract. The common English usage of the word
"defeasance" has also become acceptable in law, referring to a contract that is
susceptible to being declared void as in "immoral contracts are susceptible to
defeasance."
DEFENDANT - The person, company or organization who defends a legal action
taken by a plaintiff and against whom the court has been asked to order
damages or specific corrective action redress some type of unlawful or improper
action alleged by the plaintiff.
DEFENSE ATTORNEY -- The attorney representing the accused (defendant).
Dehors - French for outside. In the context of legal proceedings, it refers to that
which is irrelevant or outside the scope of the debate.
De jure - Latin: "of the law." The term has come to describe a total adherence of
the law. For example, a de jure government is one, which has been created in
respect of constitutional law and is in all ways legitimate even though a de facto
government may be in control.
DELAY - Time periods between phases in the processing of cases through the
judicial system.
DELAYED APPEAL -- An appeal after the time for taking an appeal has run out
and the higher court has granted permission to appeal because of some special
circumstances.
Delegatus non potest delegare - One of the pivotal principles of administrative
law: that a delegate cannot delegate. In other words, a person to whom an
authority or decision-making power has been delegated to from a higher source,
canot, in turn, delegate again to another, unless the original delegation explicitly
authorized it.
DELIBERATE - Criminal Cases - As applied to a jury, the weighing of evidence
relating to the law, for the purpose of determining the guilt or innocence of a
defendant. Civil Cases - As applied to a jury, the weighing of evidence for the
purpose of determining relevant facts.
DELINQUENCY PROCEEDINGS -- See JUVENILE DELINQUENCY
PROCEEDINGS.
DEMUR -- To respond to a civil complaint by filing a demurrer. See
DEMURRER.
DEMAND LETTER - A letter from a lawyer, on behalf of a client, that demands
payment or some other action, which is in default. Demand letters are not always
prerequisites for a legal suit but there are exceptions such as legal action on
promissory notes or if the contract requires it. Basically, a demand letter sets out
why the payment or action is claimed, how it should be carried out (e.g. payment
in full), directions for the reply and a deadline for the reply. Demand letters are
often used in business contexts because they are a courtesy attempt to maintain
some goodwill between business parties and they often prompt payment,
avoiding expensive litigation. A demand letter often contains the "threat" that if it
is not adhered to, the next communication between the parties will be through a
court of law in the form of formal legal action.
DEMARCHE - A word coined by the diplomatic community and referring to a
strongly worded warning by one country to another and often, either explicitly or
implicitly, with the threat of military consequence. Demarches are often
precursors to hostilities or war. In September, 1996, for example, US President
Clinton issued a demarche to Iraqi President Saddam Hussein when intelligence
reports showed troops massing along the border of Kurd communities.
De minimis non curat lex - Latin: a common law principle whereby judges will
not sit in judgment of extremely minor transgressions of the law. It has been
restated, as "the law does not concern itself with trifles".
De novo - Latin: new. This term is used to refer to a trial which starts over, which
wipes the slate clean and begins all over again, as if any previous partial or
complete hearing had not occurred.
DEPARTMENT OF SOCIAL SERVICES -- See FAMILY INDEPENDENCE
AGENCY.
DEPONENT -- One who gives a deposition.
DEPORTATION - The removal of a foreign national under immigration laws for
reasons such as illegal entry or conduct dangerous to the public welfare. The
grounds for deportation vary from country to country.
DEPOSITION - -- A method of pretrial discovery in civil cases. During a
deposition, a party or witness (the “deponent”) is placed under oath and required
to give oral answers to questions. Most depositions are taken without court
supervision; an attorney usually questions the deponent for one of the parties. At
the deposition, a transcript or videotape is made of the deponent’s testimony.
The transcript or videotape may be used to support various pretrial motions, or
admitted into evidence at trial in cases where the deponent is unable to be
present in court. See also DISCOVERY.
DEQ -- An abbreviation for the Michigan Department of Environmental Quality.
DESCENDANT - People who are born of, or from children of, another are called
that person's descendants. Grandchildren are descendants of their grandfather
as children are descendants of their natural parents. The law also distinguishes
between collateral descendants and lineal descendants.
DESIGNATED PROCEEDINGS -- Proceedings in which a juvenile under age 17
is tried in criminal proceedings that occur within the family division of the circuit
court. The juvenile is afforded all the legal and procedural protections that an
adult would be given if charged with the same offense in a court of general
criminal jurisdiction.
DETENTION -- The temporary care of a child who requires custody for his or her
own welfare or the community’s protection pending disposition by the court or
execution of an order of the court for placement or commitment. Also, holding
cell or area in a trial court for defendants in custody pending appearances in
court.
DETINUE - A common law action similar to conversion and also involving the
possession of property by the defendant but belonging to the plaintiff but in which
the plaintiff asks the court for the return of the property, although the plaintiff may
also ask for damages for the duration of the possession.
Devastavit - Latin for "he has wasted." This is the technical word referring to a
personal representative who has mismanaged the estate and allowed an
avoidable loss to occur. This action opens the personal representative to
personal liability for the loss.
DEVELOPMENTALLY DISABLED PERSON (“DDP”) -- Under the Mental
Health Code, a person with either of the following characteristics: 1) The person
is older then five years of age and has a severe, chronic condition attributable to
a mental and/or physical impairment. This condition manifested before the
individual’s 22nd birthday, is likely to continue indefinitely, and results in
substantial functional limitations in three or more areas of major life activity,
including self-care, language, learning, mobility, self-direction, capacity for
independent living, or economic self-sufficiency. Because of his or her condition,
the person needs individually planned services that are of life long or extended
duration. 2) The person is age five or younger and has a substantial
developmental delay or a specific congenital or acquired condition with a high
probability of resulting in a developmental disability as defined in (1) above if
services are not provided. See MCL 330.1100a(19), and LEGALLY
INCAPACITATED PERSON, MENTAL HEALTH CODE.
DEVISE - The transfer or conveyance of real property by will.
DEVISEE -- A person given real or personal property under a will.
Dicta or dictum - Latin: an observation by a judge on a matter not specifically
before the court or not necessary in determining the issue before the court; a
side opinion which does not form part of the judgment for the purposes of stare
decisis. May also be called "obiter dictum."
DILATORY DEFENSES -- Defenses made solely for purposes of delay.
DILATORY FIDUCIARY -- A fiduciary (trustee) that causes undue delays in
administering an estate.
DILATORY MOTION -- A motion made only for purposes of delay.
DILATORY PLEA -- A response to a lawsuit, which has the object of delaying
the action, without responding to the merits of the lawsuit.
DIPLOMAT - An official representative of a state, present in another state for the
purposes of general representation of the state-of-origin or for the purpose of
specific international negotiations on behalf of the diplomat's state-of-origin.
DIRECTED VERDICT -- A verdict issued by a judge at the conclusion of a civil
jury trial when a party has not presented sufficient evidence to establish a
necessary part of his or her case. A directed verdict is issued in response to a
motion brought by the party’s opponent at the end of the party’s presentation of
evidence. In granting such a motion, the judge “directs a verdict” in favor of the
opponent who brought the motion, without sending the case to the jury for
consideration. See MCR 2.515.
DIRECTED VERDICT OF ACQUITTAL -- A verdict issued by a judge at the
conclusion of a criminal jury trial when the prosecutor has not presented
sufficient evidence to convict the defendant. A directed verdict may not be
granted to the prosecutor in criminal cases. See MCR 6.419.
DISAPPEARED PERSON -- Absent from place of residence for at least seven
continuous years; whereabouts unknown by person most likely to know
whereabouts (for seven years as above); has not communicated with person
above.
DISCONTINUANCE -- The termination of a civil case by withdrawal or failure to
continue it by the plaintiff. A voluntary dismissal by the plaintiff.
DISCOVERY -- The process of gathering and preserving evidence prior to trial
in a civil or criminal case. See also DEPOSITION, INTERROGATORIES.
DISCRETIONARY TRUST - A trust in which the settlor has given the trustee full
discretion to decide which (and when) members of a group of beneficiaries is to
receive either the income or the capital of the trust.
DISMISS -- To order a cause or prosecution to be terminated; to refuse to hear
further.
DISMISSAL -- An order or judgment deciding a particular lawsuit in favor of the
defendant by sending it out of court without trial. Dismissal “with prejudice”
forever bars the right to bring a lawsuit on the same claim or cause; dismissal
“without prejudice” disposes of the particular lawsuit before the court but permits
a new lawsuit to be brought based on the same claim or cause.
DISPOSED CASE -- Not pending; decided; closed case.
DISPOSITION -- Determination of a case, whether by dismissal, plea and
sentence, settlement and dismissal, verdict and judgment.
DISQUALIFICATION -- Refers to the disqualification of judges from hearing a
case. Any interest which may impair the ability of a judge to decide the case in a
fair and impartial manner. Disqualification maybe voluntary or it may be done on
the motion of a party to the case. See MCR 2.003.
DISRATE - A term of maritime law where an officer or other seaman is either
demoted in rank or deprived of a promotion.
DISSENT - To disagree. The word is used in legal circles to refer to the minority
opinion of a judge, which runs contrary to the conclusions of the majority.
DISSENTING OPINION -- An opinion written by an appellate judge explaining
why he or she disagrees with the decision reached by the majority of judges
considering the case. See also CONCURRING OPINION, MAJORITY OPINION.
DISSOLUTION - The act of ending, terminating or winding-up a company or
state of affairs. For example, when the life of a company is ended by normal legal
means, it is said to be "dissolved". The same is said of marriage or partnerships,
which, by dissolution, ends the legal relationship between those persons formally
joined by the marriage or partnership.
DISTRAINT - The right of a landlord to seize the property of a tenant which is in
the premises being rented, as collateral against a tenant that has not paid the
rent or has otherwise defaulted on the lease, such as wanton disrepair or
destruction of the premises. A common way to "distrain" against a tenant is by
changing locks and giving notice to the tenant. A legal action to reclaim goods
that have been distrained is called replevin.
DISTRIBUTEE -- One who receives property from a personal representative (but
not a creditor or purchaser); a testamentary trustee to the extent of assets
remaining in his/her hands; a beneficiary taking through a trustee.
DISTRIBUTION -- The division of the residue of an estate among the parties
entitled thereto by the order of the court, after the payment of the debts and
charges. It also includes the division of the residue of an estate by the
Independent Personal Representative.
DISTRICT COURT -- A Michigan trial court that hears the following types of
cases: civil suits involving $25,000 or less; adult criminal misdemeanor offenses
punishable by up to one year’s imprisonment; civil infractions; landlord/tenant
disputes; small claims (civil suits involving $1,705 or less); and, land contract
forfeitures. Additionally, the district court is the court in which all-adult criminal
proceedings being, regardless of the nature of the offense. In carrying out this
function, the district court issues arrest and search warrants, sets bail, conducts
arraignments, and presides over preliminary examinations. See also
ARRAIGNMENT, BAIL, CIVIL INFRACTION, LAND CONTRACT, PRELIMINARY
EXAMINATION, SMALL CLAIMS COURT, WARRANT.
DIVIDEND - A proportionate distribution of profits made in the form of a money
payment to shareholders, by a for-profit corporation. A company’s board of
directors declares dividends.
DIVORCE - The final, legal ending of a marriage, by Court order.
DNA - Abbreviation for deoxyribonucleic acid. A chromosome molecule, which
carries genetic coding unique to each person with the only exception of identical
twins (that is why it is also called "DNA fingerprinting"). Through laboratory
process, DNA can be extracted from body tissue such a strand of hair, semen,
blood and matched against DNA discovered at a crime scene or on a victim to
scientifically implicate an accused. Can also be used to match DNA between
parents in a paternity suit.
DOCKET - An official court record book, which lists all the cases before the court
and which may also note the status or action required for each case.
DOCTRINE - A rule or principle or the law established through the repeated
application of legal precedents.
DOMESTIC ABUSE -- A pattern of sexual, physical, emotional and/or financial
abuse, perpetrated with the intent and result of establishing and maintaining
control over an intimate partner. Domestic abuse may include both criminal and
non-criminal acts, such as hitting, choking, kicking, shoving, scratching, biting,
raping, kidnapping, threatening violence, stalking, destroying property, or
attacking pets. The abuse may be directed at persons other than the intimate
partner (e.g., children) for the purpose of controlling the partner.
DOMESTIC RELATIONS ACTION -- A case involving divorce, separate
maintenance, annulment of marriage, affirmation of marriage, paternity, child or
spousal support, custody of a minor, parenting time, or grandparenting time. See
MCR 3.201.
DOMESTIC VIOLENCE -- See DOMESTIC ABUSE.
DOMICILE - The permanent residence of a person; a place to which, even if he
or she were temporary absence, they intend to return. In law, it is said that a
person may have many residences but only one domicile.
DOMINANT TENEMENT - Used when referring to easements to specify that
property (i.e. tenement) or piece of land that benefits from, or has the advantage
of, an easement.
Dominion directum - Latin: the qualified ownership of a landlord, not having
possession or use of property but retaining ownership. Used in feudal English
land systems to describe the King's ownership of all the land, even though most
of it was lent out to lords for their exclusive use and enjoyment.
Dominion utile - Latin: the property rights of a tenant. While not owning the
property in a legal sense, the tenant, as having dominion utile, enjoys full and
exclusive possession and use of the property.
DONATIO MORTIS CAUSA - A deathbed gift, made by a dying person, with the
intent that the person receiving the gift shall keep the thing if death ensues. Such
a gift is exempted from the estate of the deceased as property is automatically
conveyed upon death. In most jurisdictions, real property cannot be transferred
by these deathbed gifts.
DONEE - Another word to describe the beneficiary of a trust. Also used to
describe the person who is the recipient of a power of attorney; the person who
would have to exercise the power of attorney.
DONOR - The person who donates property to the benefit of another, usually
through the legal mechanism of a trust. The law books of some countries refer to
the trust donor as a "settlor." Also used to describe the person who signs a
power of attorney.
DOUBLE JEOPARDY -- Being placed more than once in danger of being
convicted and sentenced for the same offense.
DOWER -- That part of a man’s real property, which his widow is entitled to use
for her lifetime after her husband’s death, as a result of her status as wife, as
opposed to property devised or inherited.
DSS -- An abbreviation for the Michigan Department of Social Services. This
agency has been renamed the “Family Independence Agency” (“FIA”). See
FAMILY INDEPENDENCE AGENCY.
Duces tecum - Latin: bring with you. Used most frequently for a species of
subpoena (as in "subpoena duces tecum") which seeks not so much the
appearance of a person before a court of law, but the surrender of a thing (e.g. a
document or some other evidence) by its holder, to the court, to serve as
evidence in a trial.
DUE PROCESS - A term of US law which refers to fundamental procedural legal
safeguards of which every citizen has an absolute right when a state or court
purports to take a decision that could affect any right of that citizen. The most
basic right protected under the due process doctrine is the right to notice and a
hearing, the right to an impartial judge and jury, the right to present evidence on
one’s own behalf, the right to confront one’s accuser, the right to be represented
by counsel, etc.
Dum casta - Latin: for so long as she remains chaste. Separation agreements
years ago used to contain dum casta clauses which said that if the women were
to start another relationship, she forfeited her entitlement to maintenance.
Dum sola - Latin: for so long as she remains unmarried.
Dum vidua - Latin: for so long as she remains a widow.
DUPLEX - A house which has separate but complete facilities to accommodate
two families as either adjacent units or one on top of the other.
DURESS - Where a person is prevented from acting (or not acting) according to
their free will, by threats or force of another, it is said to be "under duress".
Contracts signed under duress are voidable and, in may places, you cannot be
convicted of a crime if you can prove that you were forced or threatened into
committing the crime (although this defense may not be available for serious
crimes).
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EASEMENT - A right of passage over a neighbor's land or waterway. An
easement is a type of servitude. For every easement, there is a dominant and a
servient tenement. Easements are also classified as negative (which prevents
the servient land owner from doing certain things) or affirmative easements (the
most common, which allows the beneficiary of the easement to do certain things,
such as a right-of-way). Although right-of-ways are the most common
easements, there are many others such as rights to tunnel under another's land,
to use a washroom, to emit smoke or fumes, to pass over with transmission
towers, to access a dock and to access a well.
ECCLESIASTICAL LAW - Synonymous to canon law: the body of church-made
law which binds only those persons which recognize it, usually only church
officers, and based on aged precepts of canon law.
EMANCIPATION - Term used to describe the act of freeing a person who was
under the legal authority of another (such as a child before the age of majority)
from that control (such as child reaching the age of majority). The term was also
used when slavery was legal to describe a former slave that had bought or been
given freedom from his or her master. When Abraham Lincoln outlawed slavery
he did so in a law called the "emancipation proclamation"
EMBARGO - This is an act of international military aggression where an order is
made prohibiting ships or goods from leaving a certain port, city or territory and
may be enforced by military threat of destroying any vehicle that attempts to
break it or by trade penalties. The word has also come to refer to a legal
prohibition of trade with a certain nation or a prohibition towards the use of goods
or services produced by or within a certain nation.
EMBEZZLE - The illegal transfer of money or property that, although possessed
legally by the embezzler, is diverted to the embezzler personally by his or her
fraudulent action. For example, an employee would embezzle money from the
employer or a public officer could embezzle money received during the course of
their public duties and secretly convert it to their personal use.
EMINENT DOMAIN - USA: The legal power to expropriate private land for the
sake of public necessity.
EMOLUMENT - A legal word which refers to all wages, benefits or other benefit
received as compensation for holding some office or employment.
EMPHYTEUSIS - Civil law: a long-term (many years or in perpetuity) rental of
land or buildings including the exclusive enjoyment of all product of that land and
the exercise of all property rights typically reserved for the property owner such
as mortgaging the property for the term of the emphyteusis or permitting a right
of way.
Emptio or emtio - Latin for "purchase" or the contract in which something is
bought.
ENACTMENT - A law or a statute; a document, which is published as an
enforceable set of written rules is said to be "enacted".
ENDORSEMENT - Something written on the back of a document. An alternate
spelling, in some English jurisdictions, is "endorsement." In the laws of bills of
exchange, an endorsement is a signature on the back of the bill of exchange by
which the person to whom the note is payable transfers it by thus making the
note payable to the bearer or to a specific person. An endorsement of claim
means that if you want to ask a court to issue a writ against someone, you have
to "endorse" your writ with a concise summary of the facts supporting the claim,
sometimes called a statement of claim.
ENJOIN - To forbid; restrain.
ENDOWMENT - The transfer of money or property (usually as a gift) to a public
organization for a specific purpose, such as medical research or scholarships.
ENTRAPMENT - The inducement, by law enforcement officers or their agents, of
another person to commit a crime for the purposes of bringing charges for the
commission of that artificially-provoked crime. This technique, because it involves
abetting the commission of a crime, which is itself a crime, is severely curtailed
under the constitutional law of many states.
EQUAL PROTECTION - The Constitution requires that the government and
courts of a state be open and available to all persons under the same conditions
with like rules of procedure and evidence.
EQUITY - A branch of English law which developed hundreds of years ago when
litigants would go to the King and complain of harsh or inflexible rules of common
law which prevented "justice" from prevailing. For example, strict common law
rules would not recognize unjust enrichment, which was a legal relief developed
by the equity courts. The typical Court of Equity decision would prevent a person
from enforcing a common law court judgment. The kings delegated this special
judicial review power over common law court rulings to chancellors. A new
branch of law developed known as "equity", with their decisions eventually
gaining precedence over those of the common law courts. A whole set of equity
law principles were developed based on the predominant "fairness" characteristic
of equity such as "equity will not suffer a wrong to be without a remedy" or "he
who comes to equity must come with clean hands". Many legal rules, in countries
that originated with English law, have equity-based law such as the law of trusts
and mortgages.
ESCHEAT - Where property is returned to the government upon the death of the
owner, because there is nobody to inherit the property. Escheat is based on the
Latin principle of dominion directum as was often used in the feudal system when
a tenant died without heirs or if the tenant was convicted of a felony.
ESCROW - When the performance of something is outstanding and a third party
holds onto money or a written document (such as shares or a deed) until a
certain condition is met between the two contracting parties.
ESTATE -1. 1. The interest a person has in real or personal property. Examples:
Property that was owned by a person who has died is referred to as a
decedent’s estate. Property held in trust for the benefit of another is a
trust estate. The property of a person or corporation that has declared
bankruptcy is an estate in bankruptcy or bankrupt estate.
2. 2. The assets of a decedent or other person subject to be
administered under the authority of a court.
ESTATES AND PROTECTED INDIVIDUALS CODE -- Michigan statutes
governing wills, decedent’s estates, trusts, and guardianships or
conservatorships over minors or legally incapacitated persons. The Estates and
Protested Individuals Code will take effect on April 1, 2000, and will replace the
Michigan Revised Probate Code. See CONSERVATOR, DECEDENT’S
ESTATE, GUARDIAN, LEGALLY INCAPACITATED PERSON, MICHIGAN
REVISED PROBATE CODE, MINOR, TRUST, WILL.
ESTATE LAW - A term used by the law to describe that part of the law which
regulates wills, probate and other subjects related to the distribution of a
deceased person's "estate".
ESTOPPEL -A rule of law that when person A, by act or words, gives person B
reason to believe a certain set of facts upon which person B takes action, person
A cannot later, to his (or her) benefit, deny those facts or say that his (or her)
earlier act was improper. A 1891 English court decision summarized estoppel as
"a rule of evidence which precludes a person from denying the truth of some
statement previously made by himself".
EUTHANASIA - The putting to death, by painless method, of a terminally ill or
severely debilitated person through the omission (intentionally withholding a lifesaving medical procedure, also known as "passive euthanasia") or commission
of an act ("active euthanasia'). See also living will.
EVIDENCE - Proof of fact(s) presented at a trial. The best and most common
method is by oral testimony; where you have an eyewitness swear to tell the truth
and to then relate to the court (or jury) their experience. Evidence is essential in
convincing the judge or jury of your facts as the judge (or jury) is expected to
start off with a blank slate; no preconceived idea or knowledge of the facts. So it
is up to the opposing parties to prove (by providing evidence), to the satisfaction
of the court (or jury), the facts needed to support their case. Besides oral
testimony, an object can be deposited with the court (eg. a signed contract). This
is sometimes called "real evidence." In other rare cases, evidence can be
circumstantial.
EVIDENTIARY MOTION HEARING -- Hearings at which evidence is presented
(a “speaking motion”) as opposed to a hearing at which lawyers argue matters of
law.
Ex aequo et bono - Latin for "in justice and fairness." Something to be decided
ex aequo et bono is something that is to be decided by principles of what is fair
and just. Most legal cases are decided on the strict rule of law. For example, a
contract will be normally upheld and enforced by the legal system no matter how
"unfair" it may prove to be. But a case to be decided ex aequo et bono, overrides
the strict rule of law and requires instead a decision based on what is fair and just
given the circumstances.
EXAMINATION -- An inspection or investigation. As pertains to court action, the
term is used to describe a preliminary hearing before the district court to
determine whether there is sufficient cause to hold a person to answer a felony
charge before the circuit court.
EXAMINATION-IN-CHIEF - The questioning of your own witness under oath.
Witnesses are introduced to a trial by their examination-in-chief, which is when
they answer questions asked by the lawyer representing the party, which called
them to the stand. After their examination-in-chief, the other party's lawyer can
question them too; this is called "cross-examination".
EXCULPATE - Something that excuses or justifies a wrong action.
EXECUTE -- To carry out, complete or dispose of according to law.
EXECUTION -- A post judgment remedy to collect a money judgment. A writ
issued by the court to authorize the process server to seize or take possession of
real or personal property to be sold to satisfy the judgment.
The carrying out of some act or course of conduct to its completion; i.e.,
execution of a civil judgment is the putting into effect of the final judgment of the
court by obtaining possession of that which the judgment has awarded.
EXECUTION OF AN INSTRUMENT -- The signing, sealing and delivery of a
written instrument or document.
EXECUTOR - A person specifically appointed by a testator to administer the will
ensuring that final wishes are respected (i.e. that the will is properly "executed").
An executor is a personal representative.
EXEMPT PROPERTY -1. 1. Personal property that the surviving spouse of a decedent is
automatically entitled to receive from the decedent’s estate.
2. 2. Property of a judgment debtor that is exempt from executions under
either state law or federal bankruptcy law.
EXHIBIT - A document or object shown to the court as evidence in a trial. The
court clerk gives them each a number or letter as they are introduced for future
reference during the trial. For example, weapons are frequently given as exhibits
in criminal trials. Except with special permission of the court, exhibits are locked
up in court custody until the trial is over.
EXONERATE -- To free from suspicion; to show someone to be free of guilt.
Ex parte - Latin: for one party only. Ex parte refers to those proceedings where
one of the parties has not received notice and, therefore, is neither present nor
represented. If a person received notice of a hearing and chose not to attend,
then the hearing would not be called ex parte. Some jurisdictions expand the
definition to include any proceeding that goes undefended, even though proper
notice has been given.
EX PARTE COMMUNICATION -- A communication between the court and one
party to a lawsuit, made without prior notice to any other party.
EX PARTE INJUNCTION -- An injunction issued upon the request of one party
to a lawsuit, without prior notice to any other party.
EX PARTE MOTION -- A motion made to the court by one party to a lawsuit
without prior notice to any other party.
EX PARTE ORDER -- An order made by the court upon the application of one of
the parties to a lawsuit, without prior notice to any other party.
Ex patriate - A person who has abandoned his or her country of origin and
citizenship and has become a subject or citizen of another country.
Ex post facto - Latin: after the fact. Legislation is called ex post facto if the law
attempts to extend backwards in time and punish acts committed before the date
of the law's approval. Such laws are constitutionally prohibited in most modern
democracies. For example, the USA Constitution prohibits "any ex post facto
law".
EXPROPRIATION - Canada: the forced sale of land to a public authority.
Synonymous to the USA doctrine of "eminent domain".
EXPRESS TRUST - A trust that is clearly created by the settlor, usually in the
form of a document (eg. a will), although they can be oral. They are to be
contrasted with trusts which come to being through the operation of the law and
which do not result from the clear intent or decision of any settlor to create a trust
(e.g. constructive trust).
EXPUNGE - To physically erase; to white or strike out. To "expunge" something
from a court record means to remove every reference to it from the court file.
Ex rel - An abbreviation of "ex relatione", Latin for "on the relation of." Refers to
information or action taken that is not based on first-hand experience but is
based on the statement or account of another person. For example, a criminal
charge "ex rel" simply means that the attorney general of a state is prosecuting
on the basis of a statement of a person other than the attorney general himself
(or herself.).
EXTORTION - Forcing a person to give up property in a thing through the use of
violence, fear or under pretense of authority.
EXTRADITION - The arrest and delivery of a fugitive wanted for a crime
committed in another country, usually under the terms of a extradition treaty.
Ex turpi causa non oritur actio
Latin: "Of an illegal cause there can be no lawsuit." In other words, if one is
engaged in illegal activity, one cannot sue another for damages that arose out of
that illegal activity. A example is an injury suffered by a passenger in a stolen car,
which that passenger knew to be stolen and was a free participant in the
joyriding. If vehicle crashes injuring the passenger, there is no action in tort
against the driver under the ex turpi causa non oritur actio principle.
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FAC CASE -- Stands for “Failure to Answer Citation.” When a person fails to
answer a traffic citation (ticket) the court concerned notifies the Department of
State, which enters this information into its computer system. When this occurs it
is called a “FAC Case,” and the defendant’s license is suspended until the FAC is
set aside after the case is disposed o, and a fee is paid.
FAIR MARKET VALUE - The hypothetical most probable price that could be
obtained for a property by average, informed purchasers.
FAMILY DIVISION OF THE CIRCUIT COURT -- A division of the circuit court
devoted to the following proceedings: divorce; paternity; child or spousal
support; parenting time; child custody; adoptions; juvenile delinquency; child
protective proceedings; name changes; personal protection orders; emancipation
of minors; waiver of parental consent to an abortion; and, guardianships or
conservatorships for persons under 18 where the matter arises our of a child
protective proceedings, delinquency proceeding, or a domestic relations custody
case. See also ADOPTION, CONSERVATOR, DOMESTIC RELATIONS
ACTION, CHILD PROTECTIVE PROCEEDINGS, EMANCIPATION,
GUARDIAN, JUVENILE DELINQUENCY PROCEEDINGS, And PERSONAL
PROTECTION ORDER.
FAMILY INDEPENDENCE AGENCY (“FIA”) -- The state agency responsible
for administering a broad range of social services programs in Michigan,
including financial aid to families and elderly persons, foster care services, and
adoption services. The Family Independence Agency was formerly known as the
Department of Social Services. See also CHILDREN’S PROTECTIVE
SERVICES.
FCJ CASE -- Mean “Failure to Comply with Judgment” imposed for violations
that are civil infractions that are issued on traffic violations and follows the same
procedure as FAC cases.
FCPV CASE -- Means “Failure to Comply with Parking Violation” entries. The
Secretary of State will prohibit individuals from obtaining or renewing licenses
when they have six or more unpaid parking tickets within a court. The court
concerned notifies the Department of State in the same procedure as in FAC and
FCJ cases.
FEES -- A charge fixed by law for services of public officers or for use of a
privilege under government control. A charge or wages for services given to one
for the services performed, such as fiduciary or attorney fees.
FEE SIMPLE - The most extensive tenure allowed under the feudal system
allowing the tenant to sell or convey by will or be transfer to a heir if the owner
dies intestate. In modern law, almost all land is held in fee simple and this is as
close as one can get to absolute ownership in common law.
FEE TAIL - A form of tenure under the feudal system that could only be
transferred to a lineal descendant. If there were no lineal descendants upon the
death of the tenant, the land reverted back to the lord.
FELONY - A serious crime for which the punishment is prison for more than a
year or death. Crimes of less gravity are called misdemeanors. This term is no
longer used in England or other Commonwealth countries but remains a major
distinction in the United States. Historically, in England, the term referred to
crimes for which the punishment was the loss of land, life or a limb.
FEUDAL SYSTEM - A social structure that existed throughout much of Europe
between 800 and 1400 and that revolved around a multi-level hierarchy between
lords (who held land granted under tenure from the king), and their tenants (also
called "vassals").Tenants would lease land from the lord in exchange for loyalty
and goods or services, such as military assistance or money. In exchange, the
tenant would be protected from attack.
FIA -- See FAMILY INDEPENDENCY AGENCY.
FIDUCIARY - Normally, the term is synonymous to a trustee, which is the
classic form of a fiduciary relationship. A fiduciary has rights and powers, which
would normally belong to another person. The fiduciary holds those rights, which
he or she must exercise to the benefit of the beneficiary. A fiduciary must not
allow any conflict of interest to infect their duties towards the beneficiary and
must exercise a high standard of care in protecting or promoting the interests of
the beneficiary. Fiduciary responsibilities exist for persons other than trustees
such as between solicitor and client and principal and agent.
Fieri facias - A writ of fieri facias commands a sheriff to take and sell enough
property from the person who lost the law suit, to pay the debt owed by the
judgment.
FILE -- Toput in the records, or deposit in the custody or among the records of a
court.
FILING -- The act of recording the various legal documents pertaining to a suit
with the clerk of the court. “Filing” also specifically refers to the original warrant,
complaint, or other document that initiates the action. See MCR 8.105.
FILING FEES - Sums of money that must be paid to the court clerk before a civil
action or an estate proceeding may start.
Force majeure - French for an act of God; an inevitable, unpredictable act of
nature, not dependent on an act of man. Used in insurance contracts to refer to
acts of nature such as earthquakes or lightning.
FORECLOSURE - The technical meaning of the word is to wipe out a right of
redemption on a property. Generally, this is what happens when someone does
not pay his or her mortgage. Even though there has been no payments, the
borrower retains a equitable right of redemption if, some day, he or she were
able to find the money and try to exercise their right of redemption. To clear the
title of this potential, a lender goes to court, demonstrates the default, requests
that a date be set where the entire amount becomes payable after which, in the
absence of payment, the lender is automatically relieved of the requirement to
redeem the property back to the borrower; the debtor's right of redemption is said
to be forever barred and foreclosed. This cancels all rights a borrower would
have in the property and the property then belongs entirely to the lender, who is
then free to possess or sell the property. The word is frequently used to generally
refer to the lender's actions of repossessing and selling a property for default in
mortgage payments.
FOREIGN JUDGMENT -- A judgment issued by a court having jurisdiction in
Indian territory, a foreign state, or a state other than Michigan. See also
JUDGMENT.
FOREIGN PERSONAL REPRESENTATIVE - A personal representative from a
jurisdiction other than Michigan. See also PERSONAL REPRESENTATIVE.
FOREIGN SUPPORT ORDER --A support order issued by a court having
jurisdiction in Indian Territory, a foreign state, or a state other than Michigan.
See also SUPPORT ORDER.
FORENSIC CENTER --Another name for the Center for Forensic Psychiatry
operated by the Department of Mental Health. Criminal defendants are often
sent there by trial courts to determine if they are competent to stand trial.
FORMAL HEARING -- See CIVIL INFRACTION FORMAL HEARING.
FORUM -- A court or the jurisdiction where a court sits.
FORUM NON CONVENIENS -- A court’s power to decline to exercise its
jurisdiction in a case because the convenience of the parties and/or the interests
of justice would be better served if the case were tried in another court.
FOSTER CARE REVIEW BOARD -- Boards created in many counties
throughout Michigan to review selected court cases and permanency plans of
foster care placement of neglected and abuse children. These boards are
composed of private citizens.
FOSTER HOME -- A licensed home for the temporary board and care of abused
and neglected or delinquent children.
FRAUD - Deceitful conduct designed to manipulate another person to give
something of value by (1) lying, (2) by repeating something that is or ought to
have been known by the fraudulent party as false or suspect or (3) by concealing
a fact from the other party which may have saved that party from being cheated.
The existence of fraud will cause a court to void a contract and can give rise to
criminal liability.
FREEHOLD - A special right granting the full use of real estate for an
indeterminate time. It differs from leasehold, which allows possession for a
limited time. There are varieties of freehold such as fee simple and fee tail.
FREEHOLDER - A person who owns freehold property rights (i.e. in a piece of
real estate; either land or a building).
FRIEND OF THE COURT -1. 1. The office connected with the family division of the circuit court that
investigates and advises the court in domestic relations cases involving
minor children. The Friend of the Court Office is also responsible for
enforcement of court orders in those cases.
2. 2. The person responsible for directing the Friend of the Court Office.
FUGITIVE - One who runs away to avoid arrest, prosecution or imprisonment.
Many extradition laws also call the suspect a "fugitive" although, in that context, it
does not necessarily mean that the suspect was trying to hide in the country from
which extradition is being sought.
FUGITIVE WARRANT -- A warrant authorizing the taking into custody of a
person who has fled from one state to another to avoid prosecution or
punishment for crime.
FULL FAITH AND CREDIT -- A court’s constitutional obligation to recognize and
enforce orders, decrees, and judgments issued by the courts of other U.S. states
or Indian tribes. U.S. Const. Art. IV, Sec. 1.
Functus officio - Latin: an officer or agency whose mandate has expired either
because of the arrival of an expiry date or because an agency has accomplished
the purpose for which it was created.
FUNGIBLES - Goods which are comprised of many identical parts such as a
bushel of grain or a barrel of apples or oil, and which can be easily replaced by
other, identical goods. If the goods are sold by weight or number, this is a good
sign that they are fungible.
Furiosi nulla voluntas est - A Latin expression that mentally impaired persons
cannot validly sign a will.
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GARNISHMENT - The seizing of a person's property, credit or salary, on the
basis of a law which allows it, and for the purposes of paying off a debt. The
person who possesses the assets of the debtor and is the subject of the seizure
is called a "garnishee". This is frequently used in the enforcement of child
support where delinquent debtors will be subjected to salary garnishment. A
percentage of their wages is subtracted directly off their paycheck and directed to
the person in need of support (the employer being the garnishee).
GAVEL -A wooden mallet used by a judge to bring proceedings to a start or to
an end or to command attention in his or her court.
GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT) - Multilateral
international treaty first created in 1947 and frequently amended (most recently in
1994) to which 125 countries subscribe. GATT provides for fair trade rules and
the gradual reduction of tariffs, duties and other trade barriers. The 1994
amendment created a World Trade Organization, which oversees the
implementation of the GATT.
GENERAL COUNSEL - The senior lawyer of a corporation. This is normally a
full-time employee of the corporation although some corporations contract this
position out to a lawyer with a private firm.
GIFT OVER - A device used in wills and trusts to provide for the gift of property
to a second recipient if a certain event occurs, such as the death of the first
recipient. For example, I give you my car but on your death you must give it to
your child; that is a gift over to the benefit of your child.
GOODWILL
An intangible business asset, which includes a cultivated reputation and
consequential attraction and confidence of, repeat customers and connections.
GRAND JURY - American criminal justice procedures whereby, in each court
district, a group of 16-23 citizens hold an inquiry on criminal complaints brought
by the prosecutor and decide if a trial is warranted, in which case an indictment is
issued. If a Grand Jury rejects a proposed indictment it is known as a "no bill"; if
they accept to endorse a proposed indictment it is known as a "true bill".
GRANDPARENTING TIME -- The time a child spends with a grandparent. A
grandparent may seek a court order for grandparenting time under MCL 722.27b.
GRANT -- To transfer property to another, especially real property.
GRANTEE -- The person to whom a grant is made, e.g., the person who
receives title to real property by deed.
GRANTOR -- The person who makes a grant.
GROSS NEGLIGENCE - Any action or an omission in reckless disregard of the
consequences to the safety or property of another. Sometimes referred to as
"very great negligence" and it is more then just neglect of ordinary care towards
others or just inadvertence. Also known as the Latin term culpa lata.
GROUP HOME -- A licensed home for the temporary board and care of abused
and neglected or delinquent children.
GUARANTOR - A person who pledges collateral for the contract of another, but
separately, as part of an independently contract with the obligee of the original
contract. Compare with "surety."
GUARDIAN - An individual who, by legal appointment or by the effect of a
written law, is given custody of both the property and the person of one who is
unable to manage their own affairs, such as a child or mentally-disabled person.
GUARDIAN AD LITEM - A guardian appointed to assist an infant or other
mentally incapable defendant or plaintiff, or any such incapacitated person that
may be a party in a legal action.
GUILTY -- Responsible for a crime.
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Habeas corpus - Latin: a court petition, which orders that a person being
detained be produced before a judge for a hearing to decide whether the
detention is lawful. Habeas corpus was one of the concessions the British
Monarch made in the Magna Carta and has stood as a basic individual right
against arbitrary arrest and imprisonment.
HABEAS CORPUS AD RESPONDENUM -- To bring in a prisoner for trail on
another charge.
HABEAS CORPUS AD TESTIFICANDUM -- To bring a prisoner in to testify.
HABITUAL OFFENDER - A person who is convicted and sentenced for crimes
over a period of time and even after serving sentences of incarceration, such as
demonstrates a propensity towards criminal conduct. Reformation techniques fail
to alter the behavior of the habitual offender. Many countries now have special
laws that require the long-term incarceration, without parole, of habitual offenders
as a means of protecting society in the face of an individual that appears unable
to comply with the law.
HARASSMENT - Unsolicited words or conduct, which tend to annoy, alarm or
abuse another person. An excellent alternate definition can be found in Canadian
human rights legislation as: "a course of vexatious comment or conduct that is
known or ought reasonably to be known to be unwelcome." Name-calling
("stupid", "retard" or "dummy") is a common form of harassment. (See also
sexual harassment.)
HARMLESS ERROR -- An error committed in the course of a trial, which does
not justify reversal of the verdict on appeal.
HEARING -- A court proceeding on the record. Hearings are often used to
determine issues arising before or after the full trial of a case, and may be less
formal than the trial.
HEARSAY - Any evidence that is offered by a witness of which they do not have
direct knowledge but, rather, their testimony is based on what others have said to
them. For example, if Bob heard from Susan about an accident that Susan
witnessed but that Bob had not, and Bob attempted to repeat Susan's story in
court, it could be objected to as "hearsay." The basic rule, when testifying in
court, is that you can only provide information of which you have direct
knowledge. In other words, hearsay evidence is not allowed. Hearsay evidence is
also referred to as "second-hand evidence" or as "rumor." You are able to tell a
court what you heard, to repeat the rumor, and testify that, in fact, the story you
heard was told to you, but under the hearsay rule, your testimony would not be
evidence of the actual facts of the story but only that you heard those words
spoken.
HEIR -1. 1. Someone who is entitled by statute to inherit the property of another
person in the even that person dies without a valid will.
2. 2. A person who inherits the property of another, whether by will or by
intestate succession. See also INTESTATE SUCCESSION.
HOLOGRAPH WILL - A will written entirely in the testator's handwriting and not
witnessed. Some states recognize holograph wills, other do not. Still other states
will recognize a will as "holograph" if only part of it is in the testator's handwriting
(the other part being type-written).
HOMICIDE - The word includes all occasions where one human being, by act or
omission, takes away the life of another. Murder and manslaughter are different
kinds of homicides. Executing a death-row inmate is another form of homicide,
but one, which is excusable in the eyes of the law. Another excusable homicide
is where a law enforcement officer shoots and kills a suspect who draws a
weapon or shoots at that officer.
HOMESTATED -- An artificial estate in land, devised to protest the possession
and enjoyment of the owner against the claims of creditors.
HOSTILE WITNESS - During an examination-in-chief, a lawyer is not allowed to
ask leading questions of their own witness. But, if that witness openly shows
hostility against the interests (or the person) that the lawyer represents, the
lawyer may ask the court to declare the witness "hostile", after which, as an
exception of the examination-in-chief rules, the lawyer may ask their own witness
leading questions.
HUNG JURY - A jury is required to make a unanimous or near unanimous
verdict. When the jurors, after full debate and discussion, are unable to agree on
a verdict and are deadlocked with differences of opinion that appear to be
irreconcilable, it is said to be a "hung jury". The result is a mistrial.
HUSBAND-WIFE PRIVILEGE - A special right that married persons have to
keep communications between them secret and even inaccessible to a court of
law. While this privilege may have been varied in some states, it has always
been held to be lifted where one spouse commits a crime on the other. Similar to
the client-solicitor privilege.
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ILLEGITIMATE CHILD -- A child born to parties who are not married to each
other.
IMMUNITY- An exemption that a person (individual or corporate) enjoys from the
normal operation of the law such as a legal duty or liability, either criminal or civil.
For example, diplomats enjoy "diplomatic immunity" which means that they
cannot be prosecuted for crimes committed during their tenure as diplomat.
Another example of immunity is where a witness agrees to testify only if the
testimony cannot be used at some later date during a hearing against the
witness.
IMPANEL -- (As pertains to juries.) To select a jury and enroll their names.
IMPEACHMENT OF WITNESS -- Questioning of a witness by an adverse party
that attempts to cast doubt on the credibility (believability) of the witness.
INCARCERATION -- Commitment to jail or prison.
INCOMPETENT EVIDENCE -- Inadmissible evident.
INCOME WITHHOLDING ORDER -- An order entered by the circuit court
providing for the withholding of a person’s income to enforce a child support
order.
INCONVENIENT FORUM -- See FORUM NON CONVENIENS.
INCORPOREAL - Legal rights which are intangible such as copyrights or
patents.
INCORPOREAL HEREDITAMENT - An incorporeal right which is attached to
property and which is inheritable. Easements and profits à prendre are examples
of incorporeal hereditaments as are hereditary titles such as those common in
the United Kingdom.
INDEFEASIBLE - A right or title in property that cannot be made void, defeated
or canceled by any past event, error or omission in the title. For example,
certificates of title issued under a Torrens land titles system is said to be
"indefeasible" because the government warrants that no interest burdens the title
other than those on the certificate. This makes long and expensive title searches
unnecessary.
INDEPENDENT PERSONAL REPRESENTATIVE -- Person administering a
decedent’s estate under the Michigan Revised Probate Code. An independent
personal representative administers the estate without the court’s supervision.
See DECEDENT’S ESTATE, MICHIGAN REVISED PROBATE CODE.
INDEPENDENT PROBATE -- Probate designed to operate without unnecessary
intervention by the probate court as provided for by the Michigan Revised
Probate Code. See MICHIGAN REVISED PROBATE CODE.
INDICTABLE OFFENCE - An offence in Canada, which is more serious than
those, which can proceed by summary conviction. This is the Canadian
equivalent to the USA "felony". Murder and treason are examples of crimes
committed in Canada, which would be indictable offences. These crimes are
usually tried by federally appointed judges and carry heavy sentences.
INDICTMENT - USA: a formal accusation returned by a Grand Jury, that
charges a person with a serious crime. It is on the basis of an indictment that an
accused person must stand trial.
INDIGENT -- Impoverished; needy; poor; without funds.
INFANTICIDE - Murder of an infant soon after its birth.
INFERIOR COURT -- Lower court. Any court subordinate to a higher appellate
court in a particular judicial system.
INFORMAL HEARING -- See CIVIL INFRACTION INFORMAL HEARING.
INFORMATION -- A formal accusation (criminal information) of a crime, differing
from an indictment in that it is prepared and signed by the prosecuting attorney
instead of the grand jury. This is the most common means employed in Michigan
to bring an accused before the circuit court after a bindover from the district
court.
INHERITANCE -- Property received from someone who dies, whether by will or
by intestate succession. See also INTESTATE SUCCESSION.
INJUNCTION - A court order that prohibits a party from doing something
(restrictive injunction) or compels them to do something (mandatory injunction).
In limine - Latin: at the beginning or on the threshold. A motion "in limine" is a
motion that is tabled by one of the parties at the very beginning of the legal
procedures.
INNOCENT -- Not guilty; acquitted of a crime.
INQUEST -- A legal inquiry generally before a court of law but in some instances
before certain other officers legally empowered to hold inquiries, such as by a
medical examiner investigating a death.
In pari delicto - Latin: both parties are equally at fault. Actually, the usual use of
this phrase is "in pari delicto, potior est conditio possidentis" which means that
where both parties in a dispute are equally at wrong, the person in possession of
the contested property will retain it (ie. the law will not intervene).
In personam - Latin: All legal rights are either in personam or in rem. An in
personam right is a personal right attached to a specific person. In rem rights are
property rights and enforceable against the entire world.
IN PRO PER -- See PRO PER LITIGANT.
IN PROPRIA PERSONA -- See PRO PER LITIGANT.
In rem - Latin: All legal rights are either in personam or in rem. In rem rights are
proprietary in nature; related to the ownership of property and not based on any
personal relationship, as is the case with in personam rights.
INSOLVENT - A person not able to pay his or her debts as they become due.
"Insolvency" is a prerequisite to bankruptcy.
Inter alia - Latin: "among other things", "for example" or "including". Legal
drafters would use it to precede a list of examples or samples covered by a more
general descriptive statement. Sometimes they use an inter alia list to make
absolutely sure that users of the document understand that the general
description covers a certain element (which was covered in the general
description anyway) without, in any way, restricting the scope of the general
element to include other things that were not singled out in the inter alia list.
INTERESTED PARTY -- Under the Michigan Revised Probate Code, one of the
following: heir; devisee; beneficiary; a fiduciary of a legally incapacitated person
who is an heir, devisee, or beneficiary; fiduciary or trustee named in an
instrument involved; or, a special party. See MCL 700.7, MCR 5.205 and
BENEFICIIARY, DEVISEE, FIDUCIARY, HEIR, LEGALLY INCAPACITATED
PERSON, MICHIGAN REVISED PROBATE CODE, TRUSTEE.
INTERESTED PERSON -- Under the Michigan Revised Probate Code, one of
the following: interested party; creditor; surety; any person having a property
right in a trust estate or estate of decedent or ward who may be affected by the
proceedings, including a person nominated as personal representative; or, a
fiduciary representing an interested person. See MCL 700.7 and ESTATE,
FIDUCIARY, INTERESTED PARTY, MICHIGAN REVISED PROBATE CODE,
PERSONAL REPRESENTATIVE, SURETY, TRUST.
INTERIM BOND -- Refers to a bond that is set by a police officer when a person
is arrested for a misdemeanor offense without a warrant. Any misdemeanor
warrant may also have a interim bond endorsed on it by the issuing judge or
magistrate. Allows one to be released pending an arraignment.
INTERIM ORDER - A temporary court order; intended to be of limited duration,
usually just until the court has had an opportunity of hearing the full case and
make a final order.
INTERLINEATION - An addition of something to a document after it has been
signed. Such additions are ignored unless the signatories initial them and, if
applicable, witnesses (e.g. wills).
INTERLOCUTORY - Proceedings taken during the course of, and incidental to a
trial. Examples include procedures or applications made which are to assist a
case in preparing its case or of executing judgment once obtained (e.g.
garnishment or judicial sale). These decisions intervene after the start of a suit
and decide some issue other than the final decision itself.
INTERLOCUTORY APPEAL -- An appeal of a decision made by the court
during the course of an action, but before the final order or outcome of the action.
INTERLOCUTORY INJUNCTION -An injunction, which lasts only until the end
of the trial during which the injunction was sought.
INTERLOPER - A person who, without legal right, runs a business (e.g. without
mandatory licenses), or who wrongfully interferes or intercepts another's
business.
INTERNATIONAL LAW - A combination of treaties and customs, which
regulates the conduct of states amongst themselves. The highest judicial
authority of international law is the International Court of Justice and the
administrative authority is the United Nations.
Inter partes - Latin: between parties.
INTERPLEADER -- A legal action enabling a person to pay monies into court
and force two or more persons having competing or conflicting claims against
him or her for the same thing to dispute the matter among themselves.
INTERROGATORIES -- Written questions posed prior to trial by one party to a
civil case and served on another party to the case, who must answer them in
writing under oath. See DISCOVERY.
INTERSTATE -- Involving two or more states.
INTERSTATE INCOME WITHHOLDING ORDER -- An order entered to secure
the enforcement of a child support obligations by the withholding of income
derived in this jurisdiction to enforce the child support order of another
jurisdiction.
Inter vivos - Latin: from one living person to another living person. For example,
an inter vivos trust is one, which the settlor sets up to take effect while he or she
is still alive. It can be contrasted with the testamentary trust, which is to take
effect only upon the settlor's death. Another example is the sale of a life estate,
which can only occur between persons living; i.e. inter vivos.
Intestate - Dying without a will.
INTESTATE SUCCESSION -- In cases where a decedent has left no valid will,
a statutory determination of the right to inherit the decedent’s property, made
according to the heirs’ relationship to the decedent.
INURE - To take effect, to result; to come into operation.
ISLAMIC LAW - The law according to the Muslim faith and as interpreted from
the Koran. Islamic law is probably best known for deterrent punishment, which is
the basis of the Islamic criminal system and the fact that there is no separation of
church and state. Under Islamic law, the religion of Islam and the government are
one. Islamic law is controlled, ruled and regulated by the Islamic religion. Islamic
law purports to regulate all public and private behavior including personal
hygiene, diet, sexual conduct, and child rearing. Islamic law now prevails in
countries all over the Middle East and elsewhere covering twenty per cent of the
world's population.
INVENTORY -- A list of the assets of a decedent or ward required by law to be
filed in probate court reflecting assets that are subject to management by the
fiduciary.
INVENTORY FEE -- A statutory fee for services rendered to a decedent’s estate
by the probate court.
ISSUE -1. 1. Of a person: All of the person’s lineal descendants of all generations,
except those who are descendants of a living descendant, with the
relationship of parent and child at each generation being determined by
the definitions of child and parent contained in the Michigan Revised
Probate Code.
2. In pleading: A single, certain, and material point, raised in the pleadings of
the parties to a lawsuit, which is affirmed on the one side and denied on
the other. See also MICHIGAN REVISED PROBATE CODE.
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JACTITATION - A false boast designed to increase standing at the expense of
another. This used to form the basis of an ancient legal petition called "jactitation
of marriage" wherein a person could be ordered by the courts to cease claims of
being married to a certain person when, in fact, they were not married. The tort of
slander of title is a form of jactitation.
J. D. - Abbreviation for "juris doctor" or "doctor of jurisprudence" and the formal
name given to the university law degree in the United States. It is a prerequisite
to most bar admission exams.
JIS – see JUDICIAL INFORMATION SYSTEMS
J.N.O.V. – An abbreviation for judgment non obstante veredicto, i.e., a judgment
not withstanding the verdict. See JUDGMENT NOT WITHSTANDING VERDICT
JOINT AND SEVERAL LIABILITY - Liability of more than one person for which
each person may be sued for the entire amount of damages done by all.
JOINT CUSTODY - A child custody decision, which means that both parents
share joint legal custody and joint physical custody. This is not very common and
many professionals have taken to referring to "joint legal custody but sole
maternal physical custody" as "joint custody".
JOINT TENANCY - When two or more persons are equally owners of some
property. The unique aspect of joint tenancy is that as the joint tenancy owners
die, their shares accrue to the surviving owner(s) so that, eventually, one person
holds the entire share. A valid joint tenancy is said to require the "four unities":
unity of interest (each joint tenant must have an equal interest including equality
of duration and extent), unity of title (the interests must arise from the same
document), unity of possession (each joint tenant must have an equal right to
occupy the entire property) and unity of time: the interests of the joint tenants
must arise at the same time.
JUDGES’ ASSOCATIONS - Associations formed by various groups of judges
by court type to further understanding and cooperation between the judicial,
legislative, and executive branches of government, to promote public awareness,
to support activities designed for sound and efficient administration of justice, and
to encourage high levels of judicial and legal competence
JUDGMENT -- The decision of a court of law.
JUDGMENT NOTWITHSTANDING THE VERDICT -- A judgment setting aside
a jury’s verdict. See MCR 2.610.
JUDGMENT N.O.V. -- An abbreviation for judgment non obstante veredicto, i.e.,
a judgment notwithstanding the verdict. See JUDGMENT NOTWITHSTANDING
THE VERDICT
JUDICIAL ACTIVITY REPORT -- Monthly (district court) or quarterly (circuit
court) report to the State Court Administrator on caseload and court activity.
JUDICIAL INFORMATION SERVICES (“JIS”) -- A data center providing
systems analysis and data processing services to courts throughout the state.
JUDICIAL REVIEW - When a court decision is appealed, it is known as an
"appeal." But there are many administrative agencies or tribunals, which make
decisions or deliver government services of one sort or another, the decisions of
which can also be "appealed." In many cases, the "appeal" from administrative
agencies is known as "judicial review" which is essentially a process where a
court of law is asked to rule on the appropriateness of the administrative agency
or tribunal's decision. Judicial review is a fundamental principle of administrative
law. A distinctive feature of judicial review is that the "appeal" is not usually
limited to errors in law but may be based on alleged errors on the part of the
administrative agency on findings of fact.
JUDICIAIL TENURE COMMISSION -- The commission which reviews
complaints against judges, investigates those complaints and reports to the
Supreme Court recommending appropriate discipline or removal of the judge by
the Supreme Court.
Jure - Latin, from Roman law: by right, under legal authority or by the authority of
the law. A variation, "juris" means "of right" or "of the law." See jurisprudence
below which means "science of the law."
JURISDICTION -- The court’s authority to decide cases. Two major aspects of
a court’s jurisdiction are:
1. 1. Subject Matter Jurisdiction: The authority to hear a particular type
of case; for example, the circuit court has jurisdiction over divorce
cases, and the district court has jurisdiction over small claims cases.
2. 2. Personal Jurisdiction: The legal power of a court to render a
judgment against a party to a proceeding.
JURISPRUDENCE - Technically, jurisprudence means the "science of law".
Statutes articulate the bland rules of law, with only rare reference to factual
situations. The actual application of these statutes to facts is left to judges who
consider not only the statute but also other legal rules which might be relevant to
arrive at a judicial decision; hence, the "science". Thus, jurisprudence" has come
to refer to case law, or the legal decisions which have developed and which
accompany statutes in applying the law against situations of fact.
JURY - A body of persons sworn to consider the evidence presented, to
determine issues of fact, and to deliver a verdict in a judicial proceeding. There
are 6 jurors for district court in civil and criminal matters. In circuit court, there
are 6 jurors for civil matters and 12 for criminal matters. There are 6 jurors in
probate court. See also GRAND JURY, PETIT JURY.
JURY COMMISSIONER -- The officers responsible for choosing the panel of
persons to serve as potential jurors for a particular county.
JURY INSTRUCTIONS -- Directions given by the judge to the jury informing the
jurors of the law applicable to the case.
JURY PANEL -- The group of prospective jurors, from which the trial jury of 6 or
12 is chosen.
.
Jus - Latin: which, in Roman law, meant the law or a right. Also spelt "ius" in
some English translations. For example, public law was called "jus publicum" and
private law was called "jus privatum."
Jus spatiandi et manendi - Latin: referring to a legal right of way, and to
enjoyment, granted to the public but only for the purposes of recreation or
education, such as upon parks or public squares. Very similar to an easement of
which some courts have said a jus spatiandi is a special type.
JUSTICE - Fairness. A state of affairs in which conduct or action is both fair and
right, given the circumstances. In law, it more specifically refers to the paramount
obligation to ensure that all persons are treated fairly. Litigants "seek justice" by
asking for compensation for wrongs committed against them; to right the inequity
such that, with the compensation, a wrong has been righted and the balance of
"good" or "virtue" over "wrong" or "evil" has been corrected.
JUVENILE -- A minor under the age of 17. See also MINOR.
JUVENILE CODE -- The group of statutes governing juvenile delinquency
proceedings, designated proceedings, and child protective proceedings. See
MCL 712A.1 et seq., and CHILD PROTECTIVE PROCEEDINGS, DESIGNATED
PROCEEDINGS, JUVENILE DELINQUENCY PROCEEDINGS.
JUVENILE DELINQUENCY PROCEEDINGS -- Proceedings in the family
division of the circuit court regarding a minor under age 17 who has: committed
an offense that would be a crime if committed by an adult, including a
misdemeanor traffic offense; deserted his or her home; been absent from school;
repeatedly violated school rules; or, disobeyed the reasonable and lawful
commands of his or her parents. See MCL 712A.2(a).
JUVENILE OFFICER -- See COUNTY AGENT
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KIN -- One who is related by blood.
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LACHES - A legal doctrine whereby those who take too long to assert a legal
right, lose their entitlement to compensation. When you claim that a person's
legal suit against you is not valid because of this, you would call it "estoppel by
laches".
LANDLORD - A land or building owner who has leased the land, the building or a
part of the land or building, to another person.
LAND CONTRACT -- A contract for the sale of land on a time payment plan.
LARCENY -- The trespassory taking of property with the intent to permanently
deprive the owner of its ownership rights.
LAW
All the rules of conduct that have been approved by the government and which
are in force over a certain territory and which must be obeyed by all persons on
that territory (e.g. the "laws" of Australia). Violation of these rules could lead to
government action such as imprisonment or fine, or private action such as a legal
judgment against the offender obtained by the person injured by the action
prohibited by law. Synonymous to act or statute although in common usage,
"law" refers not only to legislation or statutes but also to the body of unwritten law
in those states which recognize common law.
LAW ENFORCEMENT INFORMATION NETWORK (“LEIN”) -- A computerized
communications system for law enforcement agencies that contains information
on such things as personal protection orders, pretrial release conditions in
criminal cases, outstanding arrest warrants, driving records, and automobile
registration.
LAWSUIT -- A legal dispute brought before a court. A “lawsuit” is also referred
to as an “action,” “case,” “cause of action,” or “cause.”
LAWYER -- A person that has been trained in the law and that has been
certified to give legal advice or to represent others in litigation. Also known as a
"barrister & solictor" or an attorney.
See ATTORNEY.
LEADING QUESTION - A question which suggests an answer; usually
answerable by "yes" or "no". For example: "Did you see David at 3 p.m.?" These
are forbidden to ensure that their lawyer through his or her testimony does not
coach the witness. The proper form would be: "At what time did you see David?"
Leading questions are only acceptable in cross-examination or where a witness
is declared hostile.
LEASE -- A contract or agreement for the renting of real or personal property for
a specified or determined period of time and giving rise to the relationship of
landlord (the lessor) and tenant (the lessee).
LEASEHOLD - Real property held under a lease.
LEGAL CUSTODY - A child custody decision which entails the right to make, or
participate in, the significant decisions affecting a child's health and welfare
(compare with physical custody and joint custody).
LEGACY -- A gift of personal property left by will. Under Michigan’s Revised
Probate Code, this is now called a “devise.” See MCL 7000.4(1). See
MICHIGAN REVISED PROBATE CODE.
LEGALLY INCAPACITATED PERSON (“LIP”) -- Under the Michigan Revised
Probation Code, an adult who is impaired by reason of mental illness, mental
deficiency, physical illness or disability; chronic use of drugs, chronic intoxication,
or other cause, to the extent that the person lacks sufficient understanding or
capacity to make or communicate responsible decisions concerning his or her
person. See MCL 700.8(2). Former term: legally incompetent person. See
DEVELOPMENTALLY DISABLED PERSON, MICHIGAN REVISED PROBATE
CODE.
LEGATEE -- A person who receives property under a will. Under Michigan’s
Revised Probate Code, this person is now called a “devisee.” See DEVISEE,
MICHIGAN REVISED PROBATE CODE.
LEGISLATION - Written and approved laws. Also known as "statutes" or "acts."
In constitutional law, one would talk of the "power to legislate" or the "legislative
arm of government" referring to the power of political bodies (eg: house of
assembly, Congress, Parliament) to write the laws of the land.
LEIN NETWORK -- See LAW ENFORCEMENT INFORMATION NETWORK.
LESSEE -- The tenant under a lease.
LESSOR -- The landlord under a lease.
LIABILITY - Any legal obligation, either due now or at some time in the future. It
could be a debt or a promise to do something. To say a person is "liable" for a
debt or wrongful act is to indicate that they are the person responsible for paying
the debt or compensating the wrongful act.
LIBEL -- Injury to a person’s character or reputation by print, writing, pictures, or
signs.
LIBER -- Latin for “book.” Sometimes used to refer to the large, bound book(s)
of records in a court clerk’s office, register of deeds, etc.
LIBERAL CONSTRUCTION - A form of construction, which allows a judge to
consider other factors when deciding the meaning of a phrase or document. For
example, faced with an ambiguous article in a statute, a liberal construction
would allow a judge to consider the purpose and object of a statute before
deciding what the article actually means.
LICENSE - A special permission to do something on, or with, somebody else's
property which, were it not for the license, could be legally prevented or give rise
to legal action in tort or trespass. A common example is allowing a person to
walk across your lawn, which if it were not for the license, would constitute
trespass. Licenses are revocable at will (unless supported by a contract) and, as
such, differ from an easement (the latter conveying a legal interest in the land).
Licenses which are not based on a contract and which are fully revocable are
called "simple" or "bare" licenses. A common example is the shopping mall to
which access by the public is on the basis of an implied license.
LIEN - A property right that remains attached to an object that has been sold, but
not totally paid for, until complete payment has been made. It may involve
possession of the object until the debt is paid or it may be registered against the
object (especially if the object is real estate). Ultimately, a lien can be enforced
by a court sale of the property to which it attached and then the debt is paid off
from the proceeds of the sale.
LIFE ESTATE - A right to use and to enjoy land and/or structures on land only for
the life of the life tenant. The estate reverts back to the grantor (or to some other
person), at the death of the person to whom it is given. A property right to last
only for the life of the life tenant is called the estate "pur sa vie." If it is for the
duration of the life of a third party, it is called an estate "pur autre vie". The rights
of the life tenant are restricted to conduct which does not permanently change
the land or structures upon it.
LIFE TENANT - The beneficiary of a life estate.
LIMITED GUARDIAN -- Under the Michigan Revised Probate Code, a guardian
for a minor or legally incapacitated person whose powers over the person have
been limited by a court’s order. See MCL 700.424a (minors), 700.444 (legally
incapacitated persons). See GUARDIAN, LEGALLY INCAPACITATED
PERSON, MICHIGAN REVISED PROBATE CODE, MINOR.
LIMITED PARTNER - A unique colleague in a partnership relationship who has
agreed to be liable only to the extent of his (or her) investment. Limited partners,
though, have no right to manage the partnership. Limited partners are usually
just investors or promoters who seek the tax benefits of a partnership
LIMITROPHE - Adjacent, bordering or contiguous.
LINEAL DESCENDANT - A person who is a direct descendant such as a child to
his or her natural parent.
LINEUP -- A police procedure by which the suspect in a crime is exhibited,
usually as one of a group of similar-appearing persons, before the victim or
witness to determine if he or she can be identified as the person who committed
the offense.
LIP -- See LEGALLY INCAPACITATED PERSON.
LIQUIDATION - The selling of all the assets of a debtor and the use of the cash
proceeds of the sale to pay off creditors.
Lis pendens - Control that a court acquires over property that is the subject of
litigation. Where real estate is the subject of litigation, a “notice of lis pendens”
may be filed with the register of deeds in the county where the property is
located. This notice warns persons who deal with the property that it is subject to
litigation and that they may be bound by the court’s judgment regarding the
property. See MCL 600.2701 et seq.
LITERAL CONSTRUCTION - A form of construction which does not allow
evidence extrapolated beyond the actual words of a phrase or document but,
rather, takes a phrase or document at face value, giving effect only to the actual
words used. Also known as "strict" or "strict and literal" construction. Contrasts
with liberal construction (which allows for the input from other factors such as the
purpose of the document being interpreted).
LITIGANT -- Party to a lawsuit.
LITIGATION -- The process of resolving a dispute over legal rights in court.
LIVERY - Delivery. An archaic legal word from the feudal system referring to the
actual legal transmission of possession of an object to another. For example, a
knight would obtain an estate in land as tenure in exchange for serving in the
king's army for 40 days a year. The king would give exclusive possession of the
land, (i.e. "livery") to the knight. A writ of livery also developed which allowed
persons to sue for possession of land under the feudal system. Livery (or
"delivery") of the land was important in completing legal possession or, as it was
known in the feudal system, seisin.
LIVING WILL - A document that sets out guidelines for dealing with lifesustaining medical procedures in the eventuality of the signatory's sudden
debilitation. Living wills would, for example, inform medical staff not to provide
extraordinary life-preserving procedures on their bodies if they are incapable of
expressing themselves and suffering from an incurable and terminal condition.
LL.B., L.M. or LL.D. - The Latin abbreviations for the three classes of law
degrees: the regular bachelor degree in law (LL.B.), the masters degree in law
(LL.M.) and the doctorate in law (LL.D.). These are basic prerequisites to
admission to the practice of law in many states.
LOCAL COURT RULES -- Rules adopted by a particular local trial court to
govern procedural matters in that court. Local court rules may not contradict the
MICHIGAN COURT RULES.
Locus - Latin for "the place." For example, lawyers talk of the "locus delicti" as
the pace where a criminal offense was committed or "loco parentis" to refer to a
person who stands in the place of a parent such as a step-parent in a common
law relationship.
LONG ARM STATUTES - Each court is bound to a territorial jurisdiction and
does not normally have jurisdiction over persons that reside outside of that
jurisdiction. For example, a court in Scotland would not normally have jurisdiction
over a resident of Ireland. Long-arm statutes are a tool that gives a court
jurisdiction over a person even though the person no longer resides in the
territory limits of the court. For example, UIFSA allows a court to have jurisdiction
over a non-resident support payor.
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MAGISTRATE -- Used generally, this title means a judge. In Michigan, a district
court magistrate is a quasi-judicial official of the district court given the power to
set bail, accept bond, accept guilty pleas and sentence for traffic and other
related violations, and to conduct information hearings on civil infractions.
Magna Carta - Charter to which subscribed King John of England on June 12,
1215 in which a basic set of limits were set on the King's powers. King John had
ruled tyrannically. His barons rebelled and committed themselves to war with
King John unless he agreed to the Charter. Held to be the precursor of habeas
corpus as Article 39 of the Magna Carta held that no man shall be "imprisoned,
exiled or destroyed ... except by lawful judgment of his peers or by the law of the
land".
MAINTENANCE - Refers to the obligation of one person to contribute, in part or
in whole, to the cost of living of another person. Maintenance is usually
expressed in a currency amount per month as in "$450 a month maintenance."
Some countries prefer the words "support" (spousal or child) or "alimony" but
they all mean the same thing.
MAJORITY OPINION -- A written decision announcing the court’s ruling in a
case on appeal. The majority opinion explains the reasoning following by a
majority of the judges who heard the case, and is binding on the lower courts in
future cases. See also CONCURRING OPINION, DISSENTING OPINION.
MALFEASANCE - Doing something that is illegal. Compare with misfeasance
and nonfeasance.
MALICE -- Evil intent, motive or purpose.
MANDAMUS - A writ which commands an individual, organization (eg.
government), administrative tribunal or court to perform a certain action, usually
to correct a prior illegal action or a failure to act in the first place.
MANSLAUGHTER - Accidental homicide or homicide which occurs without an
intent to kill, and which does not occur during the commission of another crime or
under extreme provocation.
MARITIME LAW - A very specific body of law peculiar to transportation by water,
seamen and harbors.
MARRIAGE - The state-recognized, voluntary and exclusive contract for the
lifelong union of two persons. Most countries do not recognize marriage between
same-sex couples or polygamous marriages.
MASSACHUESTTS TRUST - A unique way to organize a business where the
property is bought by, or transferred to, a trustee (such as a trust company) and
the trustee issues trust "units", which the investors, or their designees, hold as
beneficiaries. This is a common way to structure a large real estate purchase.
MATRIMONY - The legal state of being married.
MCL -- See MICHIGAN COMPILED LAWS.
MCLA -- See MICHIGAN COMPILED LAWS ANNOTATED.
MCR -- See MICHIGAN COURT RULES.
MEDIATION -1. 1. Generally, a form of alternative dispute resolution in which a
neutral third party assists the parties to a dispute in reaching an
agreement to settle their differences. The parties are not required to
reach agreement, but if they do, the agreement is binding.
2. 2. In Michigan, mediation can also be a process in which a neutral
third party or neutral panel reviews a case and makes a
recommendation or evaluation as to its outcome. The parties may
accept or reject the mediators’ recommendation or evaluation. See
MCR 2.403, 3.216 for a description of this process.
Mens rea - Latin for "guilty mind." Many serious crimes require the proof of
"mens rea" before a person can be convicted. In other words, the prosecution
must prove not only that the accused committed the offence but also that he (or
she) did it knowing that it was prohibited; that their act (or omission) was done
with an intent to commit a crime.
MERC -- See MICHIGAN EMPLOYMENT RELATIONS COMMISSION.
MENTAL HEALTH CODE -- The Michigan statutes that govern, among other
things, care and hospitalization of the mentally ill and guardianships for the
developmentally disabled. MCL 330.1001 et seq. See also
DEVELOPMENTALLY DISABLED PERSON.
MENTAL ILLNESS -1. 1. “Mental illness” means a substantial disorder of thought or mood
which significantly impairs judgment, behavior, capacity to recognize
reality, or ability to cope with the ordinary demands of life.
2. 2. Means mental disease to such an extent that a person so afflicted
requires care and treatment for his or her own welfare, or for the
welfare of others or of the community.
MENTALLY RETARDED -- Significantly below average intellectual abilities,
which originate during physical development (especially during pregnancy and
early infancy). See also DEVELOPMENTALLY DISABLED PERSON.
MICHIGAN COMPLIED LAWS (“MCL”) -- A series of volumes containing the
official version of Michigan statues enacted by the state’s Legislature, and
published by the Legislative Service Bureau.
MICHIGAN COMPILED LAWS ANNOTATED (“MCLA”) -- A series of volumes
containing the text of all Michigan statutes, plus brief references to cases and
legal commentaries discussing these statutes. Published by west Publishing
Company, this compilation uses the same numbering system used in the
Michigan Compiled Laws.
MICHIGAN COURT RULES (“MCR”) -- Rules adopted by the Michigan
Supreme Court to govern Michigan court procedures.
MICHIGAN EMPLOYMENT RELATIONS COMMISSION (“MERC”) -- This
organization handles the certification of collective bargaining units and the
mediation of disputes arising out of collective bargaining.
MICHIGAN REVISED PROBATE CODE -- The Michigan statutes governing:
wills and decedents’ estates; trusts; and, guardianships or conservatorships over
minors or legally incapacitated persons. See MCL 700.1 et seq. Effective April
1, 2000, the Michigan Revised Probate Code will be replaced by the Estates and
Protected Individuals Code. See also CONSERVATOR, DECEDENT’S
ESTATE, ESTATES AND PROTECTED INDIVIDUALS CODE, GUARDIAN,
LEGALLY INCAPACITATED PERSON, MICHIGAN REVISED PROBATE
CODE, MINOR, TRUST, WILL.
MICHIGAN STATUTES ANNOTATED (“MSA”) -- A series of volumes
published by Callaghan & Co., containing the test of all Michigan statutes, plus
brief references to cases and legal commentaries discussing these statutes.
Although the text of the statutes in these volumes is identical to the text in the
Michigan Complied Laws and Michigan Compiled Laws Annotated, this
compilation uses a different numbering system.
MICHIGAN SUPREME COURT -- See SUPREME COURT.
MINOR -- In delinquency cases, a minor is someone under age 17. See MCL
712A.2(a). In most other proceedings, a minor is someone under age 18. See
MCL 700.8(5). The Michigan Court Rules also provide that a “minor” may
include a person age 18 or older if delinquency or child protective proceedings
were commenced in juvenile court prior to the person’s 18th birthday and the
juvenile court continues to have jurisdiction over the person. See MCR
5.903(A)(10). See also ADULT, JUVENILE DELINQUENCY PROCEEDINGS.
MINOR OFFENSE -- Minor Offense means a misdemeanor or ordinance
violation for which the maximum permissible imprisonment does not exceed 92
days and the maximum permissible fine does not exceed $500.00.
MINUTES -The official record of a meeting. Some minutes include a summary
(not verbatim) of the discussion along with any resolutions. Other minutes just
contain a record of the decisions. Minutes start off with the name of the
organization, the place and date of the meeting and the name of those people's
present. Minutes are prepared by the corporate secretary and signed by either
the president or secretary.
MIRANDA -- Refers to a United States Supreme Court decision, Miranda v.
Arizona, 348 US 436 (1966), from which the rules governing “the right to remain
silent” were taken.
MIRANDA WARNING - Also known as the "Miranda Rule, this is the name given
to the requirement that police officers, in the U.S.A., must warn suspects upon
arrest that they have the right to remain silent, that any statement that they make
could be used against them in a court of law, that they have the right to contact a
lawyer and that if they cannot afford a lawyer, that one will be provided before
any questioning is so desired. Failure to issue the Miranda warning results in the
evidence so obtained to not be admissible in the court. The warning became a
national police requirement when ordered by the US Supreme Court in the 1966
case Miranda v. Arizona and that is how it got the name.
MISDEMEANOR -- A violation of a penal law of this State which is not a felony,
or a violation of an order, rule or regulation of a state agency that is punishable
by imprisonment or by a fine that is not a civil fine.
MISFEASANCE -- The improper performance of some act or duty.
MIS-JOINDER - When a person has been named as a party to a law suit when
that person should not have been added. When this is asserted, a court will
usually accommodate a request to amend the court documents to strike, or
substitute for, the name of the mis-joined party. Compare with non-joinder.
MISREPRESENTATION - A false and material statement, which induces a party
to enter into a contract. This is a ground for rescission of the contract.
MISTRIAL - A partial or complete trial which is found to be null and void and of
no effect because of some irregularity. The sudden end of trial before it would
ordinarily end because of some reason, which invalidates it. Once a mistrial is
declared, the situation is as if the trial had never occurred. Some common
reasons for a mistrial include a deadlocked jury, the death of a juror or a serious
procedural and prejudicial mistake made at the trial that cannot be corrected.
MITIGATING CIRCUMSTANCES - These are facts that, while not negating an
offence or wrongful action, tend to show that the defendant may have had some
grounds for acting the way he/she did. For example, assault, though provoked, is
still assault but provocation may constitute mitigating circumstances and allow for
a lesser sentence.
MITIGATION OF DAMAGES - A person who sues another for damages have a
responsibility to minimize those damages, as far as reasonable. For example, in
a wrongful dismissal suit, the person that was fired should make some effort to
find another job so as to minimize the economic damage on them.
MITTIMUS -- Latin for “we send”:
1. 1. A written court order directed to the keeper of a jail or prison,
directing that he or she receive and safely keep an offender awaiting
trial or sentence.
2. 2. A writ directing the transfer of records from one court to another.
(Contrast with Commitment.)
Modus operandi - Latin: method of operation. A term used by law enforcement
officials to refer to a criminal's preferred method of committing crime. For
example, car thief "George" may have a break and enter technique that leaves a
long scratch mark on the door. Upon discovery of a stolen vehicle with such a
mark, the law enforcement officials might include "George" in the list of suspects
because the evidence at the crime scene is consistent with his "modus
operandi."
Moiety - Half of something. For example, it can be said that joint tenants hold a
moiety in property. In old criminal law, there were "moiety acts" which allowed
half of the fine money to be handed over to the informer.
MOOT - Also called a "moot point": a side issue, problem or question that does
not have to be decided to resolve the main issues in a dispute.
MORATORIUM - The temporary suspension of legal action against a person.
MORTGAGE -- A lien on real property to secure the performance of some
obligation, and to be discharged upon payment or performance as stipulated. It
is a pledge or security of particular property for the payment of a debt.
MORTGAGEE -- One who holds a mortgage; the creditor.
MORTGAGOR -- The maker of a mortgage; the debtor.
MOTION -- An application to the court for the purpose of obtaining a certain
order or decision in favor of the applicant.
MOTIONS, CALENDAR -- Motions pertaining to the calendaring of court
appearances in a case such as motions to continue, advance or rest.
MOTIONS IN LIMINE -- A motion to exclude certain testimonial evidence from
admission into evidence at trial.
MOTIONS TO SUPPRESS -- Application to the court before a trial, asking that a
certain physical evidence or matter relating thereto, not be brought out during the
trial.
MOTION TO QUASH -- See QUASH.
MSA -- See MICHIGAN STATUTES ANNOTATED.
MUNICIPAL COURT -- A trial court whose authority is confined to the city or
community in which it is established. Municipal court civil jurisdiction is limited to
$1,500.00. A few Michigan cities chose to retain this court rather than change to
the district court system.
MURDER - Intentional homicide (the taking of another person's life), without legal
justification or provocation.
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NATION - A group or race of people that share history, traditions and culture.
The United Kingdom is comprised of four nations or national groups: the English,
Scots, Irish and Welsh. Canada includes French-Canadians, English-Canadians
and a number of aboriginal nations. Thus, states may be comprised of one or
several nations. It is common English to use the word "nation" when referring to
what is known in law as "states."
NATIONAL TREATMENT - A tenet of international trade agreements whereby
nations must afford imported goods the same treatment that they afford domestic
or "national" products (no discrimination).
NATURAL JUSTICE - A word used to refer to situations where audi alteram
partem (the right to be heard) and nemo judex in parte sua (no person may judge
their own case) apply. The principles of natural justice were derived from the
Romans who believed that some legal principles were "natural" or self-evident
and did not require a statutory basis. These two basic legal safeguards govern all
decisions by judges or government officials when they take quasi-judicial or
judicial decisions.
NCND AGREEMENT - An international trade instrument; "non circumvention/non
disclosure agreement" used in the preliminary stages of a business transaction
where the Seller and Buyer do not know each other, but are brought into contact
with each other by one or more intermediaries (also known as brokers or
middlemen), to fulfill the transaction. Non Circumvention/Non Disclosure
Agreements ensure that the intermediaries in the transaction are not
cicumvented and excluded from the transaction by the Buyer and/or Seller and/or
the other intermediaries. Many trade transactions are chain-like. Product flows
like this: seller-broker-broker-broker-buyer. The brokers in the middle use
NCNDs to ensure that they are not circumvented by anyone else in the chain;
also, to ensure that information on the other parties in the chain is not disclosed
to outside parties. They are valid for a specified term; usually two years.
NE EXEAT -- A court order forbidding the person to whom it is addressed to
leave the country, the state or the jurisdiction of the court.
NEGLECT HEARING -- Hearing held in the family division of the circuit court.
Involves child abuse or those situations where the children are not being properly
cared for.
NEGLIGENCE - Not only are people responsible for the intentional harm they
cause, but their failure to act as a reasonable person would be expected to act in
similar circumstances (i.e. "negligence") will also give rise to compensation.
Negligence, if it causes injury to another, can give rise to a liability suit under tort.
Negligence is always assessed having regards to the circumstances and to the
standard of care, which would reasonably be expected of a person in similar
circumstances. Everybody has a duty to ensure that their actions do not cause
harm to others. Between negligence and the intentional act there lies yet another,
more serious type of negligence which is called gross negligence. Gross
negligence is any action or an omission in reckless disregard of the
consequences to the safety or property of another. See also contributory
negligence and comparative negligence.
NEGOTIATE - To communicate on a matter of disagreement between two
parties, with a view to first listen to the other party's perspective and to then
attempt to arrive at a resolution by consensus.
Nemo judex in parte sua - Latin and a fundamental principle of natural justice,
which states that no person can judge a case in which he or she is party. May
also be called nemo judex in sua causa or nemo debet esse judex in propria
causa.
NEXT OF KIN - The nearest blood relative of a deceased. The expression has
come to describe those persons most related to a dead person and therefore set
to inherit the deceased’s property.
NEXT FRIEND -- A person appointed by the court to appear on behalf of a minor
or incompetent person who is a plaintiff in a civil action. See MCR
2.201(E)(1)(b).
NO CONTACT ORDER -- A provision in a court order (e.g., an order for the
defendant’s pretrial release in a criminal case) that the person subject to the
order refrain from having contact with another named person.
NO FAULT -- A case which is decided without making a determination as to
which party is at fault. Michigan has laws, which provide for both no-fault auto
insurance and no-fault divorce.
NO PROGRESS -- In a civil case, where a case is filed but not followed up; a
case or cases which may be dismissed (disposed of) by the court because
parties have done nothing to process the case from stage to stage.
NOL. PROS. -- See NOLLE PROSEQUI.
NOLLE PROSEQUI -- Unwilling to prosecute; a formal entry made on the court
record, by, which the prosecutor declares he or she will not further prosecute the
case.
Nolo contendere - -- Latin, meaning “I will not contest it.” It is a plea treated as
a guilty plea except that it is not an admission of guilt, but an indication of
readiness to accept conviction and sentence rather than to go to trial. If the
defendant were to plead guilty, at the time of the plea he or she tells the court
exactly what he or she did; it has to fit the charge. By pleading nolo contendere,
there is no such requirement. If a civil action is pending, or may later be filed
against him or her, he or she can thus avoid incriminating testimony
NON-CUSTODIAL PARENT -- The parent who does not have custody of a
child. See CHILD CUSTODY.
Non est factum - Latin for "not his deed" and a special defense in contract law to
allow a person to avoid having to respect a contract that she or he signed
because of certain reasons such as a mistake as to the kind of contract. For
example, a person who signs away the deed to a house, thinking that the
document signed was only a guarantee for another person's debt, might be able
to plead non est factum in a court and on that basis get the court to void the
contract.
NONFEASANCE - Not doing something that a person should be doing. Compare
with malfeasance and misfeasance.
NON-JOINDER - When a person who should have been made a party to a legal
proceedings has been forgotten or omitted. This is usually addressed by asking
the court to amend documents and including the forgotten party to the
proceedings. It is the opposite of mis-joinder.
NOTARY -- A person who is authorized by the state or federal government to
administer oaths and to certify the authenticity of signatures or documents.
NOTARY PUBLIC -- See NOTARY.
NOTICE OF HEARING -- Document notifying a person of the time, date, place,
and subject matter of an upcoming court proceeding.
NOTICE TO QUIT -1. 1. A written notice by a landlord to his/her tenant demanding that the
tenant surrender and vacate the property, terminating the tenancy.
2. 2. A notice to pay back rent in seven days or vacate.
NOTIFICATION OF PARENTS, RECORD OF NOTICE -- Whenever a child is
taken into custody by any peach officer, that officer is required to notify the
parents of the child. A written record of the names of the persons notified, the
manner and times of notification, or reasons for failure to notify must be made
and preserved.
NOTWITHSTANDING - In spite of, even if, without regard to or impediment by
other things.
NOVATION - Substitute a new debt for an old debt canceling the old debt.
(Compare with "subrogation")
Nudum pactum - A contract-law term which stands for those agreements which
are without consideration, such as a unilateral undertaking, which may bind a
person morally, but not under contract law, in those jurisdictions which still
require consideration.
NUISANCE - Excessive or unlawful use of one's property to the extent of
unreasonable annoyance or inconvenience to a neighbor or to the public.
Nuisance is a tort.
Nunc pro tunc - Latin: now for then. It refers to the doing of something late (after
it should have been done in the first place), with effect as if it had been done on
time.
NUNC PRO TUNC AMENDMENT -- An amendment or correction given
retroactive effect by court order.
NUNC PRO TUNC FILING --The filing of a pleading to take effect as of an
earlier time.
NUNC PRO TUNC JUDGMENT -- A method of amending the record of a
judgment, which is in accord with what was actually pronounced and done, so
that the record will be accurate and true. It is a procedural device often
employed in correcting defects in titles in real estate.
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OATH - A declaration of a statement’s truth, which renders one willfully asserting
an untrue statement punishable for perjury. See also AFFIRMATION, PERJURY
and VERIFICATION.
Obiter dictum - Latin: an observation by a judge on a matter not specifically
before the court or not necessary in determining the issue before the court; a
side opinion which does not form part of the judgment for the purposes of stare
decisis May also be referred to as "dicta" or "dictum."
OBLIGEE -The person who is to receive the benefit of someone else's obligation;
that "someone else" being the obligor. Also called a "promisee." Some countries
refer to the recipient of family support as an "obligee".
OBLIGOR - A person who is contractually or legally, committed or obliged, to
providing something to another person; the recipient of the benefit being called
the obligee. Also known as the "promisor."
OBSCENITY - An elusive concept used in the context of criminal law to describe
a publication which is illegal because it is morally corruptive. The common law
has struggled with this word as society has evolved towards greater tolerance of
alternative sexual behavior. Historically, it included any lewd material which had
no apparent social value, which was offensive to contemporary community
standards of decency, and even material which tended to invoke impure sexual
thoughts. As an example of a modern definition, Canada has defined obscene
material as any publication a dominant characteristic of which is the undue
exploitation of sex, or of sex and crime, horror, cruelty or violence.
OBSTRUCTING JUSTICE - An act which tends to impede or thwart the
administration of justice. Examples include trying to bribe a witness or juror or
providing law enforcement officers with information known to be false.
OFFENSE -- A crime or ordinance violation. The word “offense” generally
implies an act infringing public as distinguished from private rights. In respect to
minors, an offense is any act which violate provisions of the Juvenile Code and
thus places the person committing the act in the jurisdiction of the juvenile court.
Does not include civil infractions.
OFFENSE AGAINST CHILD -- Any act or acts by a person other than the child
asserted as grounds for bringing such child within the provisions of the Juvenile
Code.
OFFENSE BY CHILD -- Any act or acts by a child asserted as grounds for
brining the child within the provisions of the Juvenile Code.
OMBUSDMAN - A person whose occupation consists of investigating customer
complaints against his or her employer. Many governments have ombudsmen
who will investigate citizen complaints against government services.
OMNIBUS BILL - A draft law before a legislature which contains more than one
substantive matter, or several minor matters which have been combined into one
bill, ostensibly for the sake of convenience. The omnibus bill is an "all or nothing"
tactic.
ONE COURT OF JUSTICE -- A concept embodied in the Michigan Constitution
of 1963, Article VI, Section 1, that there is but a single court in the state which is
made up of several divisions, including a supreme court, a court of appeals, a
circuit court, a district court, a probate court and other courts created by the
Legislature.
ONE DAY, ONE TRIAL -- A method of summoning and utilizing jurors whereby
an individual serves as juror for either one day or for the length of one trial. The
purpose of this method is to reduce the term of service and expand the number
of individual jurors called.
ONUS – Latin: The burden. It is usually used in the context of evidence. The
onus of proof in criminal cases lies with the state. It is the state that has the
burden of proving beyond reasonable doubt. In civil cases, the onus of proof lies
with the plaintiff who must prove his case by balance of probabilities. So "onus"
refers both to the party with the burden, and to the scope of that burden, the
latter depending whether the context is criminal or civil.
OPEN-ENDED AGREEMENT - An agreement or contract which does not have
an ending date but which will continue for as long as certain conditions, identified
in the agreement, exist.
ORDER -- A direction of a court made or entered in writing. One that terminates
the action itself, or decides some matter litigated by the parties.
ORDER ASSIGNING RESIDUE -- A probate court order which names the
persons entitled to receive parts of an estate and that share allotted to each.
ORDINANCE - A local law or regulation enacted by a municipal government. It
has no effect out side that city or village.
ORPHAN - A person who has lost one or both of his or her natural parents.
OUT-OF-COURT SETTLEMENT - An agreement between two litigants to settle
a matter privately before the Court has rendered its decision.
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PANEL 1. 1. The jurors serving a specific court. See also JURY PANEL.
2. 2. The three judges who sit together to decide cases brought before
the Court of Appeals.
PARALEGAL - A person who is not a lawyer or is not acting in that capacity but
who provides a limited number of legal services. Each country differs in the
authority it gives paralegals in exercising what traditionally would be lawyers'
work.
PARDON -A pardon is a government decision to allow a person who has been
convicted of a crime, to be free and absolved of that conviction, as if never
convicted. It is typically used to remove a criminal record against a good citizen
for a small crime that may have been committed during adolescence or young
adulthood. Although procedures vary from one state to another, the request for a
pardon usually involves a lengthy period of time of impeccable behavior and a
reference check. Generally speaking, the more serious the crime, the longer the
time requirement for excellent behavior. In the USA, the power to pardon for
federal offenses belongs to the President.
PARENS PATRIAE DOCTRINE -- The inherent power and authority of state to
protect the person and property of a person who is legally unable to manage
his/her own affairs.
PARENTING TIME -- The time a child spends with a non-custodial parent.
Parenting time was formerly referred to as “visitation.”
Pari delicto - Latin for "of equal fault." For example, if two parties complain to a
judge of the non-performance of a contract by the other, the judge could refuse to
provide a remedy to either of them because of "pari delicto": a finding that they
were equally at fault in causing the contract's breach.
Pari passu - Latin: Equitably and without preference. This term is often used in
bankruptcy proceedings where creditors are said to be "pari passu" which means
that they are all equal and that distribution of the assets will occur without
preference between them.
PAROLE -- Conditional release from prison before the end of sentence; if the
parolee observes the conditions, he or she need not serve the rest of his or her
term.
PARTIAL GUARDIAN -- In cases under the Mental Health Code, a guardian
with some – but not all – legal rights and powers over the person and/or estate of
a developmentally disabled person. A partial guardian’s rights, powers, and
duties are specifically enumerated by court order. See MCL 330.1600(e). See
DEVELOPMENTALLY DISABLED PERSON, GUARDIAN, MENTAL HEALTH
CODE.
PARRICIDE - Killing one's father or another a family member or close relative.
PARTNERSHIP - A business organization in which two or more persons carry on
a business together. Partners are each fully liable for all the debts of the
enterprise but they also share the profits exclusively. Many states have laws,
which regulate partnerships and may, for example, require some form of
registration and allow partnership agreements. One of the basic advantages of
partnerships is that they tend to allow business losses to be deducted from
personal income for tax purposes (see also limited partner).
PARTY --
1. 1. A person concerned with or taking part in a matter or transaction,
such as a party to a contract.
2. 2. A person by or against whom a lawsuit is brought, i.e., the plaintiff
or defendant.
PAR VALUE SHARES - Shares issued by a company that have a minimum
price. Shares that are without par value or "non par value shares" are shares,
which may be sold at whatever price the company's board of directors decides.
PATENT - An exclusive privilege granted to an inventor to make, use or sale an
invention for a set number of years (e.g. in Canada, 17 years). Normally, no one
company can retain a monopoly over a product or service because this is
considered to economically harmful to society. But as a financial incentive to
potential inventors, the state grants a temporary monopoly to that inventor
through the issuance of a patent.
PATERNITY -- Fatherhood.
PATERNITY SUIT -- A suite to establish the identity of a child’s father and to
determine that father’s obligation to support the child.
PAYEE - The person to whom payment is addressed or given. In family law, the
term usually refers to the person who receives or to whom support or
maintenance is owed. In commercial law, the term refers to the person to whom
a bill of exchange is made payable. On a regular check, the space preceded with
the words "pay to the order of" identifies the payee.
PAYOR - The person who is making the payment(s). Again, in the context of
family law, the word would typically refer to the person to a support or
maintenance debtor. In commercial law, the word refers to the person who
makes the payment on a check or bill of exchange.
PEACE OFFICER -- Any public officer or official having authority to arrest to
enforce the law and preserve the peace, and generally includes any sheriff or
deputy sheriff, any state or municipal police officer, and any state conservation
officer. It may also include judges of the courts of criminal jurisdiction. Some
other public officials (i.e., Mayor) may be designated by law as a peace officer for
specific limited purposes.
PEDOPHILE - A person afflicted with "pedophilia", a sexual perversion in which
children are preferred as sexual partner.
PEN REGISTER – An electronic surveillance device, which attaches to a phone
line and which registers every number dialed from a specific telephone. This
surveillance device is not as effective as wire-tapping.
Pendente lite - Latin: during litigation. For example, if the validity of a will is
challenged, a court might appoint an administrator pendente lite with limited
powers to do such things as may be necessary to preserve the assets of the
deceased until a hearing can be convened on the validity of the will. Another
example is an injunction pendente lite, to last only during the litigation and, again,
designed simply to preserve something until the decisive court order is issued.
PER CAPITA -- A method by which an estate is divided equally among a given
number of persons.
PERCOLATING WATER - Water that seeps or filters through the ground without
any definite channel and not part of the flow of any waterway. The best example
is rainwater.
PEREMPTORY CHALLENGE -- The right of the prosecution or defendant to
challenge (remove) a certain number of jurors without giving any cause or
reason. The right of the parties at a hearing to challenge a certain number of
jurors without giving cause.
PERJURY - An intentional lie given while under oath or in a sworn affidavit.
PERMANENT INJUNCTION -- One intended to remain in force unless modified
by a later decree of a court.
PERMANENT WARD -- A child who is permanently placed under the care of the
court or other guardian because the parents’ rights to the child have been
permanently terminated by the family division of the circuit court.
PERPETUATING TESTIMONY The recording of evidence when it is feared that the person with that evidence
may soon die or disappear and that this person's evidence, if recorded, could
then be used in the future to prevent a possible injustice or to support a future
claim of property.
PERPETUITY - Forever; of unlimited duration. There is a strong bias in the law
against things that are to last in perpetuity. Rights that are to last forever are said
to hinder commerce as an impediment to the circulation of property. That is why
there is a rule against perpetuities.
PERSON - An entity with legal rights and existence including the ability to sue
and be sued, to sign contracts, to receive gifts, to appear in court either by
themselves or by lawyer and, generally, other powers incidental to the full
expression of the entity in law. Individuals are "persons" in law unless they are
minors or under some kind of other incapacity such as a court finding of mental
incapacity. Many laws give certain powers to "persons" which, in almost all
instances, includes business organizations that have been formally registered
such as partnerships, corporations or associations.
PERSONAL PROPERTY -- Includes everything that is the subject of ownership
but which is not real estate.
PERSONAL PROTECTION ORDER -- One of two types of orders issued by a
circuit court protecting an individual from stalking or domestic abuse. See MCL
600.2950, 600.2950a, MCR 3.701-3.709. See also DOMESTIC ABUSE,
STALKING.
PERSONAL RECOGNIZANCE -- The release that is gained in a criminal case
without the necessity of having to post money or have any surety sign a bond
with the court. The court takes the defendant’s word that he or she will appear
for a scheduled matter or when advise to appear.
PERSONAL REPRESENTATIVE -- The person who administers a decedent’s
estate under the Michigan revised Probate Code. See also INDEPENDENT
PERSONAL REPRESENTATIVE, MICHIGAN REVISED PROBATE CODE.
PETIT JURY -- The ordinary jury (of 6 or 12 persons) selected to hear the trial of
a civil or criminal case and to determine issues of fact; so called to distinguish it
from the grand jury.
PETTIFOGGER - A petty or underhanded lawyer or an attorney who sustains a
professional livelihood on disreputable or dishonorable business. The word has
also taken on an common usage definition referring to anyone prone to quibbling
over details.
PETITION -1. 1. An application made in writing to a court.
2. 2. In juvenile delinquency or child protective proceedings before the
family division of the circuit court, a petition is the instrument used to
set forth the allegations (complaint) against the party before the court.
Petitions in such proceedings must be verified. Jurisdiction of the court
can only be invoked by petition. See CHILD PROTECTIVE
PROCEEDGINS, JUVENILE DELINQUENCY PROCEEDINGS,
VERIFICATION.
PETTY OFFENSE - A minor crime and for which the punishment is usually just a
small fine or short term of imprisonment.
PHYSICAL CUSTODY - A child custody decision that grants the right to organize
and administer the day-to-day residential care of a child. This is usually
combined with legal custody.
PICKET - To object publicly, on or adjacent to the employer's premises, to an
employer's labor practices, goods or services. The most common form of
picketing is patrolling with signs.
PILLORY - A medieval punishment and restraining device made of moveable
and adjustable boards through which a prisoner's head or limbs were pinned.
Pillories were often fixed to the ground in a city's main square and on market
days, local criminals were exhibited. Citizens were given license to throw things
at the prisoners. As such, this method of punishment was not just humiliating but
often led to serious injury or death. For the government, this was a public
statement serving to warn others of the consequences of crime. England
abolished the pillory as a form of punishment in 1837.
PLAINTIFF -- In civil cases, the person who initiates the lawsuit is the plaintiff.
In criminal matters, the prosecuting attorney is the plaintiff.
PLEA -- The defendant’s response to a criminal charge (e.g., guilty, not guilty,
nolo contendere).
PLEA-BARGAINING -- In criminal cases, a process of negotiation between the
prosecutor and defense counsel that typically involves the prosecutor’s
agreement to dismiss pending criminal charges against the defendant in
exchange for the defendant’s plea of guilty to another (usually lesser) offense.
PLEAD -- In a criminal case, to respond to the charge (e.g., by pleading guilty,
not guilty, nolo contendere, etc.).
PLEADINGS -- In a civil lawsuit, the papers that set forth the parties’ claims and
defenses. The plaintiff’s pleadings state his or her claims against the defendant.
The defendant’s pleadings state his or her defenses to the plaintiff’s claims.
PLENARY GUARDIAN -- Under the Mental Health Code, a guardian with full
power over the person and/or estate of a developmentally disabled person. See
MCL 330.1600(d). See DEVELOPMENTALLY DISABLED PERSON,
GUARDIAN, MENTAL HEALTH CODE.
POACH - To kill or take an animal or fish from the property of another.
POLYGAMY - Being married to more than one person. Illegal in most countries.
POLYGRAPH - A lie-detector machine which records even the slightest variation
in blood pressure, body temperature and respiration as questions are put to, and
answers elicited from a subject.
POSTAL RULE - A rule of contract law that makes an exception to the general
rule that an acceptance is only created when communicated directly to the
offeror. An acceptance is binding and the contract is said to be perfected when
the acceptor places this acceptance in the mailbox for return mail even if, in fact,
it never reaches the offeror. An 1892 British case summarized it as follows:
"Where the circumstances are such that it must have been within the
contemplation of the parties that, according to the ordinary usages of mankind,
the post might be used as a means of communicating the acceptance of an offer,
the acceptance is complete as soon as it is posted."
POWER OF ATTORNEY -- A written instrument appointing and authorizing a
person to act in the place of another as agent or substitute. One holding a power
of attorney is called an attorney in fact, and may or may not be a lawyer.
PRAECIPE -- A form used in some jurisdictions to ask a court clerk to do
something (such as issue a summons after a complaint is filed, etc.).
PRECATORY WORDS - Words that express a wish or a desire rather than a
clear command. "Precatory words" are often found in trusts or wills and cause
great difficulties when courts try to find the real intention of the settlor or testator,
For example, the words "all my property to my wife to be disposed of as she may
deem just and prudent in the interest of my family" were found to be "precatory"
and did not constitute a trust for family members other than the wife.
PRECEDENT - A case which establishes legal principles to a certain set of facts,
coming to a certain conclusion, and which is to be followed from that point on
when similar or identical facts are before a court. Precedent form the basis of the
theory of stare decisis which prevents "reinventing the wheel" and allows citizens
to have a reasonable expectation of the legal solutions which apply in a given
situation.
PREJUDICIAL ERROR -- “Reversible error;” an error in the course of a trial
serious enough to require an appellate court to reverse the judgment.
PRELIMINARY EXAMINATION -- A hearing in a felony case before a district
judge at which the prosecution presents evidence (the defendant and his or her
counsel being present) from which the district judge decides whether there is
probable cause to believe that a crime has been committed, that the defendant
committed the crime and to “bind over” or refer the defendant to the circuit court
for trial. Testimony of some witnesses and presentation of some exhibits are
offered at such examination.
PRELIMINARY HEARING -- The first state of processing a juvenile delinquency
or child protective proceeding when the juvenile is in custody, or custody or
placement is requested.
PRELIMINARY INQUIRY -- The first stage in the processing of a child protective
or juvenile delinquency case when the juvenile is not in custody. An informal
procedure in the family division of the circuit court.
PREPONDERANCE - A word describing evidence that persuades a judge or jury
to lean to one side as opposed to the other during the course of litigation. In
many states, criminal trials require evidence beyond a reasonable doubt. But in
civil trials, evidence is required only by preponderance of the evidence. The
judge (or jury, where applicable) will perceive the evidence of one side as
outweighing the other based
PRESENTENCE INVESTIGATION -- Investigation of the relevant background of
a convicted offender. Usually conducted by a probation officer and designed to
act as a sentencing guide for the judge. See
PRESENTENCE REPORT -- Written report prepared by the Probation
Department containing the family and personal history of the accused, evaluation
of the crime and its ramifications, and recommendations as to sentencing.
Required in all felony cases. Presented to the judge as a guide in determining
sentence.
PRESENTMENT -- A written finding by a grand jury of an offense, from their
own knowledge or observation.
PRESCRIPTION - A method of acquiring rights through the silence of the legal
owner. Known in common law jurisdiction as "statute of limitations." When used
in a real property context, the term refers to the acquisition of property rights,
such as an easement, by long and continued use or enjoyment. The required
duration of continued use or enjoyment, before legal rights are enforceable, is
usually written in a state's law known as "statute of limitations."
PRESIDING JUDGE1. 1. The judge conducting a hearing or trial. The judge in charge of a
case.
2. 2. Formerly, the chief judge of a court composed of two or more
judges. The presiding judge in this sense is now called the Chief
Judge. See MCR 8.110 regarding the appointment of presiding judges
within court divisions.
PRESUMPTION OF ADVANCEMENT - A presumption in trust, contract and
family law which suggests that property transferred from a parent to a child, or
spouse to spouse, is a gift and would defeat any presumption of a resulting trust.
PRETRIAL CONFERENCE -- Hearing in a criminal or civil case between the
judge and the attorneys to discuss any questions or matters that can be resolved
prior to the trial to assist in expediting or simplifying the trial. Such hearing is
usually informal and without client participation.
PRETRIAL HEARING -- See PRETRIAL CONFERENCE.
PRIMA FACIE -1. 1. The term “prima facie case” refers to those facts that will establish
a party’s right to legal relief if no evidence to the contrary is offered by
the party’s opponent.
2. 2. The term “prima facie evidence” refers to evidence that is sufficient
to prove a fact unless overcome by other evidence.
PRINCIPAL -1. 1. One who has permitted or directed another (an agent) to act for his
or her benefit. See also AGENT.
2. 2. The person having primary liability to pay a debt. See also
GUARANTOR, SURETY.
3. 3. Property, as opposed to the income from the property. The term is
often used to designate the property put into a trust. See also TRUST.
PRIVILEGE - A special and exclusive legal advantage or right such as a benefit,
exemption, power or immunity. An example would be the special privileges that
some persons have in a bankruptcy to recoup their debts from the bankrupt's
estate before other, non-privileged creditors.
PROBATE -- The process by which a decedent’s estate is transferred to its
rightful owners.
PROBATE COURT -- The court in Michigan that handles the process by which a
decedent’s estate is transferred to its rightful owners. This court also handles
matters relating to the commitment of mentally ill persons, guardianship matters,
conservatorship matters, and trusts; however, if one of these matters arises from
a child protective proceedings, a juvenile delinquency proceeding, or a domestic
relations custody case, it is properly heard in the family division of the circuit
court. See also CONSERVATOR, DECEDENT’S ESTATE, DOMESTIC
RELATIONS ACTION, CHILD PROTECTIVE PROCEEDINGS, FAMILY
DIVISION OF THE CIRCUIT COURT, GUARDIAN, and JUVENILE
DELINQUENCY PROCEEDINGS, TRUST.
PROBATE REGISTER -- A person who serves both as clerk of probate court
and in a quasi-judicial manner in estates.
PROBATION -- Allowing a person convicted of an offense to remain in the
community instead of going to jail or prison as long as the offender fulfills the
conditions of the probation. One’s probation is usually supervised by a probation
officer. If a person violates probation, probation can be revoked and the
defendant resentenced.
Pro bono - Provided for free. Pro bono publico means "for the public good."
PROCEEDING -- Any hearing or court appearance related to the adjudication of
a case.
PROCESS -- A court order to appear in court or enforce a judgment.
Subpoenas and summonses are examples of process.
PROCESS SERVER -- A person employed to deliver a summons or complaint
to a person being sued or to deliver a subpoena to a witness.
PRO CON DIVORCE -- An uncontested divorce. The proceeding consists of a
short hearing at which only plaintiff appears, the defendant not contesting
anything, after which the divorce is granted.
Profit à prendre
A servitude which resembles an easement and which allows the holder to enter
the land of another and to take some natural produce such as mineral deposits,
fish or game, timber, crops or pasture.
PRO FORMA - As a matter of form; in keeping with a form or practice.
Something done pro forma may not be essential but it facilitates future dealings.
For example, an invoice might be sent to a purchaser even before the goods are
delivered as a matter of business practices.
PROMISEE - A person whom is to be the beneficiary of a promise, an obligation
or a contract. Synonymous to "obligee."
PROMISOR - The person who has become obliged through a promise (usually
expressed in a contract) towards another, the intended beneficiary of the promise
being referred to as the promisee. Also sometimes referred to a "obligor."
PROMISSORY NOTE - An unconditional, written and signed promise to pay a
certain amount of money, on demand or at a certain defined date in the future.
Contrary to a bill of exchange, a promissory note is not drawn on any third party
holding the payor's money; it is a direct promise from the payor to the payee.
PROPERTY – commonly thought of as a thing which belongs to someone and
over which a person has total control. But, legally, it is more properly defined as a
collection of legal rights over a thing. These rights are usually total and fully
enforceable by the state or the owner against others. It has been said, "property
and law were born and die together. Before laws were made there was no
property. Take away laws and property ceases." before laws were written and
enforced, property had no relevance. Possession was all that mattered. There
are many classifications of property, the most common being between real
property or immoveable property (real estate such as land or buildings) and
"chattel", or "moveable" (things which are not attached to the land such as a
bicycle, a car or a hammer) and between public (property belonging to everybody
or to the state) and private property.
PROPINQUITY - Nearness in place; close-by. Also used to describe
relationships as synonymous for "kin."
Pro possessore - As a possessor. For example, a person may exercise certain
rights over a thing not as owner but pro possessore: as a person who possesses,
but does not own, the thing.
PROPOUND - To offer a document as being authentic or valid. Used mostly in
the law of wills; to propound a will means to take legal action, as part of probate,
including a formal inspection of the will, by the court.
Pro rata - Latin: to divide proportionate to a certain rate or interest. For example,
if a company with two shareholders, one with 25% and the other with 75% of the
shares, received a gift of $10,000 and desired to split it "pro rata" between the
shareholders, the shareholder with 25% of the shares would receive $2,500 and
the 75% shareholder, $7,500.
PROPRIETOR - Owner.
Pro se - Latin: in one's personal behalf. Contrast with pro socio.
PROSECUTE - To bring judicial proceedings against a person and to administer
them until the conclusion of the court proceedings. Lawyers are hired by the
government to administer the prosecution of criminal charges in the courts.
PROSECUTING ATTORNEY -- A public officer whose duty is the prosecution of
criminal proceedings on behalf of the people of the State of Michigan.
PROSECUTOR -- A prosecuting attorney. An elected official in each county;
the chief law enforcement officer of each county.
PROSECUTORIAL WAIVER -- See WAIVER OF JURISDICTION.
Pro socio
Latin: on behalf of a partner; not on one's personal behalf.
PROSPECTUS - A document in which a corporation sets out the material details
of a share or bond issue and inviting the public to invest by purchasing these
financial instruments.
PROTECTED PERSON -- Under the Michigan Revised Probate Code, a minor
or legally incapacitated person whose estate is under the care of a conservator.
See MCL 700.9(5) and CONSERVATOR, LEGALLY INCAPACITATED
PERSON, MICHIGAN REVISED PROBATE CODE, MICHIGAN REVISED
PROBATE CODE, MINOR.
PROTECTIVE PROCEEDINGS -- See
CHILD PROTECTIVE PROCEEDINGS.
Pro tempore
Latin: something done temporarily only and not intended to be permanent.
PROXY - A right that is signed-over to an agent. Proxies are used frequently at
annual meetings of corporations where the right to exercise a vote is "proxied"
from the shareholder to the agent.
PS -- An abbreviation for the Protective Services unit of the Family
Independence Agency. See CHILDREN’S PROTECTIVE SERVICES.
PUBLIC DEFENDER -- A lawyer paid by the county to defend one who is
indigent (without funds). Michigan has a statewide “Public Defender” office for
the handling of appeals (see SADO). Michigan does not have a statewide
system for handling of trials.
PUBLIC DOMAIN - A term of American copyright law referring to works that are
not copyright protected, free for all to use without permission. Examples include
works that were originally non-copyrightable (items that by their very nature are
not eligible for copyright such as ideas, facts or names), copyright that has been
lost or expired, where copyright is owned or authored by the federal government
(federal documents and publications are not copyrighted and so are public
domain), and those works which have been specifically granted to the public
domain.
PUNITIVE DAMAGES - Special and highly exceptional damages ordered by a
court against a defendant where the act or omission which caused the suit, was
of a particularly heinous, malicious or highhanded nature. Where awarded, they
are an exception to the rule that damages are to compensate not to punish. The
exact threshold of punitive damages varies from jurisdiction to jurisdiction. In
some countries, and in certain circumstances, punitive damages might even be
available for breach of contract cases but, again, only for the exceptional cases
where the court wants to give a strong message to the community that similar
conduct will be severely punished. They are most common in intentional torts
such as rape, battery or defamation. Some jurisdictions prefer using the word
"exemplary damages" and there is an ongoing legal debate whether there is a
distinction to be made between the two and even with the concept of aggravated
damages.
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Q
Quantum - Latin: amount or extent.
QUANTUM MERUIT -- “As much as he deserves”, absent a
contract/agreement, the law implies a promise to pay a reasonable amount for
services or materials received from another.
QUASH -- To nullify a conviction or order. For example, a motion to quash may
be initiated for the purpose of setting aside a bindover after a preliminary
examination.
QUASI-JUDICIAL - Refers to decisions made by administrative tribunals or
government officials to which the rules of natural justice apply. In judicial
decisions, the principles of natural justice always apply. But between routine
government policy decisions and the traditional court forums lies a hybrid,
sometimes called a "tribunal" or "administrative tribunal" and not necessarily
presided by judges. These operate as a government policy-making body at times
but also exercises a licensing, certifying, approval or other adjudication authority,
which is "judicial" because it directly affects the legal rights of a person. Some
law teachers suggest that there is no such thing as a "quasi-judicial" decision or
body; the body or decision is either judicial or not.
Quid pro quo - Latin: something for something. The giving of something in
exchange for another thing of equal value.
QUORUM - The number of people who must be present at a meeting before
business can be conducted. Without "quorum", decisions are invalid. Many
organizations have a quorum requirement to prevent decisions being taken
without a majority of members present.
QUO WARRANTO -- The name of a writ which brings a person into court so that
it maybe determined by what right he or she exercises his or her authority,
usually brought by the Attorney General to test a person’s claim of right to hold
public office.
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R
RANSOM - Money paid to have a kidnapped person released.
RAPE - Sex with a woman, other than a wife, without her consent. But many
states have changed this basic definition to include sex with a minor (with or
without consent; also known as statutory rape), sex with a man without his
consent, or exempting men who force their wives to have sex.
REAL PROPERTY - Immoveable property such as land, a building, or an object
that, though at one time a chattel, has become permanently affixed to land or a
building.
REALTY -- A brief term of real property; also for anything that partakes of the
nature of real property.
REBUTTLE PRESUMPTION - Usually, every element of a case must be proven
to a judge or a jury. The exception is a "presumption", which means that if certain
other facts are proven, then another fact can be taken for granted by the judge
(or jury). For example, in some states, an adult caught having intercourse with a
minor is presumed as having known that the minor was under-age. Most
presumptions are "rebuttable", which means that the person against whom the
presumption applies may present evidence to the contrary, which then has the
effect of nullifying the presumption. This then deprives the person that tried to
use the presumption with the advantage of the "free" evidence and makes him
present evidence to support the fact that might have been proven by the
presumption.
RECESS -- A brief time set by the judge when those in court including the jury
may be excused from the courtroom.
RECOGNIZANCE -1. 1. An obligation entered into before a court of record or duly
authorized magistrate, containing a condition to do some particular act.
Usually to appear and answer a criminal accusation.
2. 2. A term used interchangeably with “bail bond” in many statutes and
court opinions.
RECONCILIATION -- When the parties in a divorce action are attempting to
work out their differences and wish to have enforcement of their court orders
suspended.
RECORD -- The word for word (verbatim) account by the official court
reporter/recorder of all proceedings at the trial. See DOCKET.
RECORD ON APPEAL -- The pleadings, exhibits, orders or decrees filed in a
case in the trial court, a copy of the docket entries, and a transcript of the
testimony taken in the case, forwarded to the appellate court.
RECESS -- A brief time set by the judge when those in court including the jury
may be excused from the courtroom.
RECOGNIZANCE -3. 3. An obligation entered into before a court of record or duly
authorized magistrate, containing a condition to do some particular act.
Usually to appear and answer a criminal accusation.
4. 4. A term used interchangeably with “bail bond” in many statutes and
court opinions.
RECONCILIATION -- When the parties in a divorce action are attempting to
work out their differences and wish to have enforcement of their court orders
suspended.
RECORD -- The word for word (verbatim) account by the official court
reporter/recorder of all proceedings at the trial. See DOCKET.
RECORD ON APPEAL -The pleadings, exhibits, orders or decrees filed in a
case in the trial court, a copy of the docket entries, and a transcript of the
testimony taken in the case, forwarded to the appellate court.
REDEMPTION - Buying back. When a vendor later buys the property back. A
right of redemption gives the vendor the right to buy back the property. In some
jurisdictions where a mortgage transfers title to the lender until the mortgage is
paid off, the "buying back" of the property is known as redemption.
REFERRAL -- Referral to a protective service. If it appears that the best interest
of the child and of society will be served, the court may refer the matter at hand
to a public or private agency providing such service.
RELATOR - An informer; a person who has supplied the facts required for a
criminal prosecution or a civil suit. In criminal prosecutions in some states, this
would be indicated by the use of the expression ex. rel. as in The State of
California ex. rel. Robert Smith v. George Doe.
RELEASE-ON-RECOGNIZANCE (“ROR”) -- The pretrial release of an arrested
person on his or her written promise to appear for trial at a later date, without
deposit of cash or any surety. Use primarily with defendants as an alternative to
monetary bail. See ROR, RECOGNIZANCE
REMAINDER - A right to future enjoyment or ownership of real property. The
"left-over" after property has been conveyed first to another party. A remainder
interest is what if leftover after a life estate has run its course. Contrary to a
reversion, a remainder does not go to the grantor or his (or her) heirs.
REMAND -- To send a case back to the court from which it came for further
proceedings. (e.g., defendant waives a preliminary examination, thus the case
goes from district court to circuit court, usually because the defendant intends to
plead guilty to a charge. The defendant then decides not to plead guilty and
requests a preliminary examination; if the request is granted, the case is
“remanded” to district court.) To send back to the lower or trial court from which
it was appealed, with instructions as to what further proceedings should be had
there.
REMITTITUR -- An order reducing an excessive jury damages award. An order
in cases when a jury has made an award of damages that is excessive in which
the amount of damages is reduced.
REMO - Abbreviation for "reciprocal enforcement of maintenance orders" and the
name of the international system of recognition, registration and enforcement of
child and spousal support orders between countries which have agreed, between
themselves, to enforce each other's maintenance orders. Originally created by
England, the international REMO system now spreads over many countries. In
the USA, the system is known as UIFSA or URESA.
RENT - This is the consideration paid by a tenant to a landlord in exchange for
the exclusive use and enjoyment of land, a building or a part of a building. Under
normal circumstances, the rent is paid in money and at regular intervals, such as
the first of every month. The word has also come to be used as a verb as in to
"rent an apartment", although the proper legal term would be to "lease an
apartment."
REPLEVIN -- A civil action to recover: 1) property unlawfully taken or held by
another; and, 2) damages sustained by the unlawful taking or retention. See
MCR 3.105. An action for replevin is also known as an action for CLAIM AND
DELIVERY.
REPORTS -1. 1. Court reports: published judicial cases arranged according to
some grouping, such as court jurisdiction, period of time, subject
matter or case significance.
2. 2. Administrative reports or decisions: published decisions of an
administrative agency.
Example: 406 Mich 1 is a case citation for a court opinion beginning on
page 1 of volume 406 of Michigan Reports (Michigan Supreme Court
decisions).
REPORTER -1. 1. A court official responsible for the verbatim record of most court
proceedings, including the questions addressed to, and answers made
by, witnesses, usually for the purpose of preparing a verbatim
transcript.
2. 2. A court official responsible for compiling, indexing and publishing
the opinions of an appellate court.
RESCIND - To abrogate or cancel a contract putting the parties in the same
position they would have been in had there been no contract. Rescission can
occur in one of two ways: either a contract can be set aside (rescinded) because
of some defect in its formation (such as misrepresentation, duress or undue
influence) or it can be set aside by agreement by the parties, for example if they
reach a new agreement.
Res gestae - Latin for "things done." A peculiar rule, used mostly in criminal
cases, which allows hearsay if the statement is made during the excitement of
the litigated event. For example, the words "stick 'em up!" used during an armed
robbery would be admissible in evidence under the res gestae rule. So, too,
would spontaneous statements made by the defendant during or right after the
crime. Some laws even allow res gestae statements to be introduced in evidence
in special kinds of prosecutions. For example, in child sexual abuse cases, the
statement made by a child to another person may be allowed as evidence even
though, technically, it offends the rule against hearsay. This is to recognize the
RES GESTAE WITNESS -- PERSON
TAKING PART AND/OR WITNESSING
OR AT THE SCENE OF A CRIME WHO
MAY HAVE PERSONAL KNOWLEDGE
CONCERNING THE CRIME OR THE
DEFENDANT’S POSSIBLE
INVOLVEMENT.
Res ipsa loquitur - A word used in tort to refer to situations where negligence is
presumed on the defendant since the object causing injury was in his or her
control. This is a presumption that can be rebutted by showing that the event was
an inevitable accident and had nothing to do with the defendant's responsibility of
control or supervision. An example of res ipsa loquitur would be getting hit by a
rock, which flies off a passing dump truck. The event itself imputes negligence
(res ipsa loquitur) and can only be defeated if the defendant can show that the
event was a total and inevitable accident.
Res judicata - Latin: A matter that has already been conclusively decided by a
court and cannot be relitigated.
RESIDENCE -- The place where one presently lives. Does not require that it be
a permanent home as is the case with “domicile.”
RESIDUE -- That part of an estate remaining after payment of all debts, charges
and legacies.
RESPONDENT -- A party against whom a motion is filed in the course of a
lawsuit; analogous to a defendant or an appellee.
Restitution in integrum - Latin for restitution to the original position. In contract
law, upon breach of contract, the injured party may ask the court to reverse the
contract and revert the parties to their respective positions before the contract
was accepted. But if the court finds that restitutio in integrum is not possible
because of actions or events occurring since the date of acceptance, then the
court may order that damages be paid instead.
RESTITUTION -1. 1. In criminal cases, the amount of money that the convicted
defendant is required to pay the crime victim to compensate for
damages suffered as a result of the crime.
2. 2. In civil cases, the amount of money necessary to restore a party
who was wronged to the position he or she was in prior to suffering the
wrong.
RESTRAINING ORDER -- See INJUNCTION, TEMPORARY RESTRAINING
ORDER.
RESTRICTED DELIVERY MAIL -- A new postal classification which takes place
of certified mail. County Clerks frequently use this type of mail in conducting the
court’s business.
RESULTING TRUST - A trust that is presumed by the court from certain
situations. Similar to a constructive trust but for resulting trusts, the court
presumes an intention to create a trust; the law assumes that the property is not
held by the right person and that the possessor is only holding the property "in
trust" for the rightful owner. In constructive trusts, the courts don't even bother
with presuming an intention; they simply impose a trust from the facts.
RETAINER - A contract between a lawyer and his (or her) client, wherein the
lawyer agrees to represent and provide legal advice to the client, in exchange for
money. The signed retainer begins the client-lawyer relationship from which flow
many responsibilities and duties, primarily on the lawyer, including to provide
accurate legal advice, to monitor limitation dates and to not allow any conflict of
interest with the relationship with the client.
RETURN - An endorsement or report by an officer, recording the manner in
which he or she served, the process or order of the court.
REVERSE - To set aside a judgment on appeal or proceedings in error; to
annual; to vacate.
REVISED PROBATE CODE - See MICHIGAN REVISED PROBATE CODE.
REVOCATION OF WILL - The annulling, or rendering inoperative an existing
will, by some subsequent act of the testator.
RIGHT OF FIRST REFUSAL - A right given to a person to be the first person
allowed to purchase a certain object if it is ever offered for sale. The owner of this
right is the first to be offered the designated object if it is ever to be offered for
sale.
RIGHT OF REPRESENTATION -- See PER STIRPES.
RIPARIAN RIGHTS - Special rights of people who own land that runs into a river
bank (a "riparian owner" is a person who owns land that runs into a river). While
not an ownership right, riparian rights include the right of access to, and use of
the water for domestic purposes (bathing, cleaning and navigating). The extent of
these rights varies from country to country and may include the right to build a
wharf outwards to a navigable depth or to take emergency measures to prevent
flooding.
R-O-R, ROR -- See RELEASE ON RECOGNIZANCE.
RULE AGAINST PERPETUITIES - A common law rule that prevents suspending
the transfer of property for more then 21 years or a lifetime plus 21 years. For
example, if a will proposes the transfer of an estate to some future date, which is
uncertain, for either more than 21 years after the death of the testator or for the
life of a person identified in the will and 21 years, the transfer is void. Statute law
exists in many jurisdictions which supersedes the common law rule.
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SADO -- See STATE APPELLATE DEFENDER’S OFFICE.
SANCTION - This is a very unusual word with two contradictory meanings. To
"sanction" can mean to ratify or to approve but it can also mean to punish. The
"sanction" of a crime refers to the actual punishment, usually expressed as a fine
or jail term.
SANCTUARY - A special criminal law option available in Medieval times to
persons who had just committed a crime, allowing them to seek refuge in a
church or monastery. There, they could be exempted from the normal
prosecution, which, in those days, was quite severe. But the ordeal, even within
sanctuary, was no piece of cake. The fugitive had to remain within the walls of
the sanctuary, abandon his or her oath to the king, followed which they had a
short period of time to leave the country. They were considered to be "dead", so
much so that their land was forfeited to the King and their wife considered being
a widow. If they refused to renounce their oath, they could be starved out of the
sanctuary. Henry VIII of England even took to branding them with a hot iron
before they left the country just in case they tried to return; they could then be
quickly spotted and arrested. Abolished from the common law in 1624 and, in
France, at the time of the Revolution, the principle of sanctuary continues today,
in somewhat altered form, as diplomatic asylum under international law.
SATISFACTION -- A written order from a judge or magistrate directing an officer
to search a specific place for a specific object, issued upon a showing of
probable cause.
SCAO -- See STATE COURT ADMINISTRATIVE OFFICE.
Scienter - Latin for knowledge. In legal situations, the word is usually used to
refer to "guilty knowledge". For example, owners of vicious dogs may be liable for
injuries caused by these dogs if they can prove the owner's "scienter" (i.e. that
the owner was aware, before the attack, of the dog's vicious character).
SEARCH WARRANT -- A written order from a judge or magistrate directing an
officer to search a specific place for a specific object, issued upon a showing of
probable cause.
SEISIN - The legal possession of property. In law, the term refers more
specifically to the possession of land by a freeholder. For example, a owner of a
building has seisin, but a tenant does not, because the tenant, although enjoying
possession, does not have the legal title in the building.
SENTENCE - The punishment given to a person who has been convicted (i.e.
found to be guilty) of a crime. It may be time in jail, community service or a period
of probation.
SEQUESTRATION - The taking of someone's property, voluntarily (by deposit)
or involuntarily (by seizure), by court officers or into the possession of a third
party, awaiting the outcome of a trial in which ownership of that property is at
issue.
SEQUESTRATION OF WITNESSES -- A court order directing witnesses to stay
outside the courtroom and not discuss testimony with other witnesses until they
are called to testify to prevent witnesses from being influenced by the testimony
of other witnesses.
SERVIENT TENEMENT - The land that suffers or has the burden of an
easement. The beneficiary of the easement is called a dominant tenement.
SERVICE OF PROCESS -- The services of writs, summonses, etc.; signifies the
delivering to or leaving of such documents with the party to whom or with whom
they ought to be delivered or left; and, when they are so delivered, they are then
said to have been served.
SERVITUDE - From Roman law, referring to rights of use over the property of
another; a burden on a piece of land causing the owner to suffer access by
another. An easement is type of servitude as is a profit á prendre.
SETTLOR - The person who actually creates a trust by donating property to be
managed and administered by a trustee but from which all profits would go to a
beneficiary. The law books of some countries refer to this person as a "donor."
SHOW CAUSE ORDER -- An order to appear in court and present reasons why
certain circumstances actions/should be continued, permitted, or prohibited.
SHOW UP – See LINEUP.
SILENT PARTNER - A person who invests in a company or partnership but does
not take part in administering or directing the organization; he or she just shares
in the profits or losses.
Sine die - Adjourned without giving any future date of meeting or hearing. A
court that adjourns sine die essentially dismisses the case by saying that it never
wants to hear the case again! A meeting which adjourns sine die has simply not
set a date for it's next meeting.
SLANDER -- Injury to a person’s character or reputation by the spoken word
SLANDER OF TITLE - Intentionally casting aspersion on someone's property
including real property, a business or goods (the latter might also be called
"slander of goods"). A form of jactitation. For example, stating that a house is
haunted or alleging that a certain product infringes a patent or copyright.
SMALL CLAIMS COURT -- A division of the district court. The jurisdiction of the
small claims division is limited to civil cases where the amount claimed does not
exceed $3,000. Claims are handled without lawyers or juries, and the parties
generally have no right to appeal.
SOLE CUSTODY -- An order of the court which states that the children live with
on parent and that parent is responsible for making decisions on important issues
dealing with the children.
SOLICITOR - A lawyer that restricts his or her practice to the giving of legal
advice and does not normally litigate. that court room. In England and some
other Commonwealth jurisdictions, a legal distinction is made between solicitors
and barristers, the former with exclusive privileges of giving oral or written legal
advice, and the latter with exclusive privileges of preparing and conducting
litigation in the courts. In other words, solicitors don't appear in court on a client's
behalf and barristers don't give legal advice to clients. In England, barristers and
solicitors work as a team: the solicitor would typically make the first contact with a
client and if the issue cannot be resolved and proceeds to trial, the solicitor would
transfer the case to a barrister for the duration of the litigation. Lawyers in some
states, such as Canada, sometimes use the title "barrister and solicitor" even
though, contrary to England, there is no legal distinction between the advising
and litigating roles. Canadian lawyers can litigate or give legal advice (as is the
case in the USA, WHERE LAWYERS ARE REFERRED TO AS "ATTORNEYS").
SOS -- An abbreviation for the Michigan Department (of the Secretary) of State.
SPLIT CUSTODY - child custody decision which means that legal custody goes
back and forth between parents like a ping-pong ball, as they, in turn, take care
of the child. They are very rare (for example, only 5% of all custody orders in the
USA) because they works against consistent upbringing decisions for the child.
Also known as "divided custody" although the latter concept is mostly used to
describe split custody over greater periods of time such as alternate years with
each parent.
SPECIFIC PERFORMANCE -- A court order directing a party to a contract who
has breached its terms to do what he or she contracted to do; generally involved
when the thing or service contracted for is unique so that money damages for
breach of contract would be inadequate, i.e., breach of contract to sell water
rights to one who has no alternative access to water.
SPENDTHRIFT -- A person who by excessive drinking, gaming, idleness, or
debauchery of any kind shall so spend, waste, or lessen his estate as to expose
himself or his family to want or suffering, or expose that State to charge or
expense for the support of himself or family.
SPOUSAL SUPPORT -- A SUM OF
MONEY THAT A COURT ORDERS A
SPOUSE TO PAY TO HIS OR HER
SEPARATED OR DIVORCED SPOUSE
FOR SUPPORT, AID, OR
MAINTENANCE. AN AWARD OF
SPOUSAL SUPPORT DOES NOT
INCLUDE CHILD SUPPORT. SEE
ALSO CHILD SUPPORT.
STALKING -- A willful course of conduct involving repeated or continue
harassment of another person that would cause a reasonable person to feel
terrorized, frightened, intimidated, threatened, harassed, or molested, and that
actually causes the victim to feel this way. See MCL 750.411h.
STANDARD JURY INSTRUCTIONS -- A collection of jury instructions approved
by a Supreme Court committee for use by trial court judges.
STANDING COMMITTEE – A term of parliamentary law which refers to those
committees which have a continued existence; that are not related to the
accomplishment of a specific, once-only task as are ad hoc or special
committees. Standing committees generally exist as long as the organization to
which it reports. Budget and finance or nomination committees are typical
standing committees of a larger organization.
STARE DECISIS -- The doctrine that the decisions of the court should serve as
precedents for future cases.
STATE APPELLATE DEFENDER’S OFFICE (“SADO”) -- A state office for
handling criminal appeals and post conviction proceedings for indigents on a
statewide basis. The goal is to provide speedy processing of appeals within the
time limits set by court rules. The office is supervised by the seven member
State Appellate Public Defender Commission which is appointed by the governor
upon recommendations of the State Judiciary and the State Bar of Michigan.
STATE BAR OF MICHIGAN -- An association for attorneys license to practice
law in the State of Michigan. An attorney must become a member of the State
Bar in order to practice law in Michigan.
STATE CASE - Refers to a violation of state law. The term is mot often used in
district courts and the remaining municipal courts to distinguish between the local
ordinance violations they usually deal with and violations of state statutes.
Violating a state law makes the case a “state case” in these jurisdictions.
STATE COURT ADMINISTRATIVE OFFICE (“SCAO”) -- Under the general
direction of the Supreme Court, the State Court Administrative Office is
responsible for assisting in the administration of justice in Michigan’s trial courts.
Some of its duties include: providing management assistance and direction to
courts; developing guidelines for functions such as child support and sentencing;
analyzing the impact of court rules and legislation on court operations; and,
developing forms and reference manuals for court use. See MCR 8.103.
STATE COURT ADMINISTRATOR -- An official appointed by the Michigan
Supreme Court to act as the director of the State Court Administrative Office.
This official also advises the Supreme Court on matters relating to management
of the state’s court system.
STATUS OFFENSE -- A violation of the juvenile code by a minor that would not
be considered a violation of the law if committed by an adult. Examples:
runaway, school truancy, incorrigibility, etc.
STATUTE OF FRAUDS -- A legal doctrine or rule that certain types of
agreements must be in writing or the courts will not enforce them. Real estate
sales agreements are examples of agreements that must be in writing.
STATUTE OF LIMITATION -1. 1. Civil Cases -- A statutory time limit on the right to seek relief in
court for damages; providing that any claim for relief shall be barred
unless begun within a specific period of time following the alleged
wrong.
2. 2. Criminal Cases -- The mandatory time limit set by statute to
commence prosecution. The following are examples of specific
limitations in Michigan:
Murder -- no limit
Assault with intent to murder -- 10 years
Conspiracy to commit murder -- 10 years
Kidnaping -- 10 years
Extortion -- 10 years
Other felonies -- generally 6 years
STATUTES -- Laws in the State of Michigan enacted by the State Legislature.
The text of statutes can be found in the MICHIGAN COMPILED LAWS,
MICHIGAN COMPILED LAWS ANNOTATED or the MICHIGAN STATUTES
ANNOTATED.
STATUTORY RAPE -The common law definition of rape has not proven
adequate to reflect modern values. It is limited to sex without consent and with a
woman, and only where the victim is not the wife of the rapist. Many states have
enacted laws that include under the charge of rape, sex with a minor even if done
with the minor's consent, sex without consent regardless of whether the victim is
male or female, and sex without consent regardless of the matrimonial bond
between victim and rapist.
STAY -- The suspension of a judicial proceeding by court order.
STATUTORY TRUST - A trust created by the effect of a statute. They are usually
temporary in nature and serve the purpose of bridging ownership of property to
benefit a certain class of individuals, which the statute is designed to protect.
Some examples are the temporary trusts that the law of some states impose on
the executor of an estate, the holding and administration of tax or other pay
deductions (including vacation pay) by employers, the trust accounts of lawyers
and the statutory trust on money paid for a construction project on behalf of any
person who might have a construction lien on the property.
STIPULATION -- An agreement between opposing attorneys on any matter
relating to the proceedings or trial, i.e., to extend the time to answer, to adjourn
the trial date, to admit certain facts at the trial, etc. Often requires court approval
to be effective.
Stirpes - Latin: the offspring of a person; his or her descendants. For example,
inheriting per stirpes means having a right to a deceased's estate because you
happen to be a descendant of the deceased.
STRICT LIABILITY - Tort liability which is set upon the defendant without need
to prove intent, negligence or fault; as long as you can prove that it was the
defendant's object that caused the damage.
SUA SPONTE -- A court acts “sua sponte” when it takes action voluntarily (“on
its own motion”), without first being requested to act by a party to a case.
SUBINFEUDATION - The process whereby, under the feudal system of tenure, a
person receiving a grant of land from a lord, could himself become a lord by
subdividing and subletting that land to others.
Sub judice - A matter that is still under consideration by a court. You will hear of
politicians declining to speak on a certain subject because the subject matter is
"sub judice".
SUBORDINATION - To be subject to the orders or direction of another; of lower
rank.
Subpoena - Latin: an order of a court that requires a person to be present at a
certain time and place or suffer a penalty (subpoena means, literally, "under
penalty"). This is the traditional tool used by lawyers to ensure that witnesses
present themselves at a given place, date and time to make themselves available
to testify (see also duces tecum).
SUBPOENA DUCES TECUM -- This subpoena is used when you want the
witness to bring with him or her all of his or her records or other specified
material mentioned in the body of the subpoena.
SUBROGATION -- The substitution of one party to the rights of another. Most
commonly used in civil cases in which an insurance company (subrogee), which
pays its policyholder, is entitled to the policyholder’s right to recover damages.
SUBSERVIENT TENEMENT - The real property that supports or endures an
easement. The real property benefiting from an easement is called the dominant
tenement.
SUBSTITUTED SERVICE - If a party appears to be avoiding service of court
documents, a request may be made with the court to, instead of personal service
(i.e. giving the document directly to the person), that the document be published
in a local newspaper, served on a person believed to frequent the person or
mailed to his (or her) last known address.
SUCCESSOR -- A person who succeeds to the office, rights, responsibilities, or
place of another. One who replaces or follows another.
SUCCESSOR PERSONAL REPRESENTATIVE -- Under the Michigan Revised
Probate Code, a successor personal representative is appointed by the court to
complete the administration of a decedent’s estate in cases where the
administration the estate is left unfinished due to the death, removal, or
resignation of the original personal representative. In some jurisdictions, a
successor personal representative is called the “administrator de bonis non.”
See also ADMINISTRATOR DE BONIS NON, MICHIGAN REVISED PROBATE
CODE, PERSONAL REPRESENTATIVE.
Sui juris - A person who possesses full civil rights and is not under any legal
incapacity such as being bankrupt, of minor age or mental incapacity. Most
adults are sui juris.
SUMMARY DISPOSITION -- In a civil lawsuit, a dismissal of or judgment on all
or part of a claim, made by a judge prior to trial upon motion by one of the
parties. A motion for summary disposition may be based on one or more of
several grounds listed in MCR 2.116©. Some of the grounds listed in the court
rules are: the trial court lacks jurisdiction over the case or the parties; process or
service of process was insufficient; the party asserting the claim has no legal
capacity to sue; another action has been initiated between the same parties
involving the same claim; the claim is barred by the statue of limitations; a party
has failed to state a valid defense to the claim against him or her; the facts
alleged in a party’s complaint do not entitle the party to judicial relief.
SUMMARY JUDGMENT -- See SUMMARY DISPOSITION.
SUMMARY PROCEEDINGS -- Proceedings where the court decides an issue in
a prompt and simple manner, often without the aid of a jury. One type of
summary proceeding is established in MCL 600.5701 – 600.5759 and MCR
4.201 – 4.202, which govern civil actions to recover possession of premises
(eviction) and to obtain certain types of ancillary relief (e.g., damages, back rent,
etc.).
SUMMONS -- A notice given to a party stating that proceedings have been
instituted against him or her and directing that the person appear in court at a
given date and time to answer the complaint; and further, should he or she fail to
answer a judgment will be entered against him or her.
SUPERINTENDING CONTROL -- The constitutional doctrine that the Michigan
Supreme Court has general administrative supervision over all the courts of the
state. The circuit courts of each county have similar administrative supervisory
power over the various lower courts within their jurisdiction.
SUPPORT ORDER -- In a domestic relations proceeding, an order for payment
of money to meet the ongoing financial needs of a child, spouse, or former
spouse. Support may include health care and educational expenses. See also
CHILD SUPPORT, SPOUSAL SUPPPORT.
SUPPRESS -- To suppress a court record is to prevent its release; to suppress
evidence is to forbid it from being introduced at a trial or other court proceeding.
SUPREME COURT -- The highest appeals court in the State of Michigan. The
Michigan Supreme Court also has superintending control over all other courts in
the state. See SUPERINTENDING CONTROL.
SURETY -- A person who agrees to fulfill another person’s financial obligation in
the event the other person fails to fulfill it. The other person is known as the
“principal.” A surety’s obligation typically arises from the same contract that
binds the principal. See also GUARANTOR, PRINCIPAL.
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TAFT_HARTLEY - The name of an American federal labor law which was
passed in 1947, and which sought to "equalize legal responsibilities of labor
organizations and employers"; ie. balance the Wagner Act, which, it was felt, may
have gone to far in protecting union rights. Where the Wagner Act had was
aimed primarily at employer behavior, the Taft-Hartley was aimed at unions and
sought to restrain their activities under certain circumstances, by detailing union
rights and duties. For example, the Taft-Hartley Act exempted supervisors from
it's provisions, allowed employees to decline participation in union activities and
permitted union decertification petitions.
TAKE -- As used in probate, to acquire title or to be entitled to an estate, such
as the person is entitled to “take” under the will.
TAMPER - To interfere improperly or in violation of the law such as to tamper
with a document. The term "jury tampering" means to illegally disrupt the
independence of a jury member with a view to influencing that juror otherwise
than by the production of evidence in open court.
TEMPRORARY RESTRAINING ORDER -- An order of the court that is intended
to restrain a person’s actions and preserve the status quo until a hearing can be
held to determine if a preliminary injunction should be issued. See MCR
3.310(B). See INJUNCTION.
TEMPORARY WARD -- A minor who is under the supervision of the family
division but whose parents parental rights have not been terminated.
TEN PERCENT BOND -- A procedure that allows persons to pay to the court
ten percent (10%) of the bond otherwise required of them to obtain their release.
This procedure reduces the actual monetary amount paid so that most persons
can arrange bond without the services of a bondsman or other surety.
TENANT -- A person who rents property from the owner (called a landlord).
One who occupies the property of another for a temporary period, with the
landlord’s consent.
TERMINATION HEARING -- A hearing held in the family division of the circuit
court to determine if the parental rights are to be taken away from the parties
involved, and therefore the child will become a ward of the court. The prosecutor
is required to attend. This is the final scheduled hearing of a neglect/abuse case.
TENANTS IN COMMON - Similar to joints tenants. All tenants in common share
equal property rights except that, upon the death of a tenant in common, that
share does not go to the surviving tenants but is transferred to the estate of the
deceased tenant. Unity of possession but distinct titles.
TENDER - An unconditional offer of a party to a contract to perform their part of
the bargain. For example, if the contract were a loan contract, a tender would be
an act of the debtor where he produces the amount owing and offers to the
creditor. In real property law, when a party suspects that the other may be
preparing to renege, he or she can write a tender in which they unequivocally reassert their intention to respect the contract and tender their end of the bargain;
either by paying the purchase or delivering the title.
TENEMENT - Property that could be subject to tenure under English land law;
usually land, buildings or apartments. The word is rarely used nowadays except
to refer to dominant or servient tenements when qualifying easements.
TENURE - A right of holding or occupying land or a position for a certain amount
of time. The term was first used in the English feudal land system, whereby all
land belonged to the king but was lent out to lords for a certain period of time; the
lord never owning, but having tenure in the land. Used in modern law mostly to
refer to a position a person occupies such as in the expression "a judge holds
tenure for life and on good behavior."
TESTAMENTARY TRUST - A trust that is to take effect only upon the death of
the settlor and is commonly found as part of a will. Trusts which take effect
during the life of the settlor are called inter vivos trusts.
TESTATE -- Dying having made a valid will.
TESTATE SUCCESSION -- Inheritance of a decedent’s property under the
direction for the decedent’s will.
TESTATOR --- One who has made a will. (A female testator is known as a
“testatrix.”)
TESTIMONY -- The statement of a witness under oath that is given as evidence.
THIRD-PARTY COMPLAINT -- In a civil lawsuit, a complaint that the defendant
files against a “third-party,” i.e., someone who is not already named in the
lawsuit. This “third-party complaint” alleges that the third-party is or may be liable
to the defendant for some or the plaintiff’s entire claim. See MCR 2.204.
TORT -- An injury or wrong committed against the person or property of another,
arising out o violation of a duty established by law rather than by contract.
TORT_FEASOR - Name given to a person or persons who have committed a
tort.
TRACING - A legal proceeding taken under the law of equity where the plaintiff
attempts to reclaim specific property, through the court, whether the property is
still in the first acquirer's hands or it has passed onto others, and even if the
property has been converted (related common law terms: conversion, trover and
detinue). This is a procedure frequently used by a trust beneficiary to recover
misappropriated trust property.
TRADITIONAL WAIVER -- See
WAIVER OF JURISDICTION.
TRANSFEREE- A person who receives property being transferred (the person
from whom the property is moving is the transferor).
TRANSFEROR - A person from whom property moves. Property is transferred
from the transferor to th transferor. I sell you my house and in transferring title to
you, I am the transferor and you, the transferee.
TRANSCRIPT -- THE VERBATIM
RECORD OF PROCEEDINGS IN A
TRIAL OR HEARING.
TRAIL COURT -- THE COURT
WHERE TRIAL TAKES PLACE.
EXAMPLES OF MICHIGAN TRIAL
COURTS ARE DISTRICT, CIRCUIT,
AND PROBATE COURTS.
TRESPASS - Unlawful interference with another's person, property or rights.
TROVER - An old English and common law legal proceeding against a person
who had found someone else's property and has converted that property to their
own purposes. The action of trover did not ask for the return of the property but
for damages in an amount equal to the replacement value of the property.
English law replaced the action of trover with that of conversion in 1852.
TRUST -- A RIGHT OF PROPERTY,
REAL OR PERSONAL, HELD BY ONE
PARTY FOR THE BENEFIT OF
ANOTHER.
TRUSTEE -- A PERSON IN WHOM
PROPERTY IS VESTED IN TRUST
FOR OTHERS.
Trustee de son tort - A trustee "of his own wrong"; a person who is not a
regularly appointed trustee but because of his or her intermeddling with the trust
and the exercise of some control over the trust property, can be held by a court
as "constructive" trustee which entails liability for losses to the trust.
TURNER HEARING -- A
PROCEEDING TO DETERMINE IF
THE DEFENDANT WAS ENTRAPPED
BY LAW ENFORCEMENT OFFICIALS
INTO COMMITTING THE OFFENSE.
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UIFSA - The American uniform child and spousal support legislation, the Uniform
Interstate Family Support Act already adopted and implemented by most states
and expected to be law throughout the USA soon. It is the successor of URESA
and is a long-arm statutes as it gives the state which issues the first support
order jurisdiction over the support payor anywhere in the USA for the purposes of
varying that order. For more information, please see http://wwlia.org/us-uifsa.htm
Ultra vires - Without authority. An act that is beyond the powers or authority of
the person or organization, which took it.
UNJUST ENRICHMENT - A legal procedure whereby you can seek
reimbursement from another who benefited from your action or property without
legal justification. There are said to be three conditions which must be met before
you can get a court to force reimbursement based on "unjust enrichment": an
actual enrichment or benefit to the defendant, a corresponding deprivation to the
plaintiff, and the absence of a legal reason for the defendant's enrichment. For
example (and only theoretically as many countries have laws which have
modified equity law in some situations), if you found somebody else's cash and
spent it, you might be sued for reimbursement under unjust enrichment. The
legal theory behind unjust enrichment is the constructive trust, which the court
imposes upon the circumstances to hold the person unjustly enriched as the
trustee for the person who should properly get the property back, held to be the
beneficiary of the constructive trust.
URESA - Uniform Reciprocal Enforcement of Support Act of the United States,
as created in 1950 by the National Conference of Commissioners on Uniform
State Laws. This was the first family support uniform legislation in the USA and it
was ultimately adopted, in some form or another, by all the US states. It was
updated in 1968 and the revised version became known as "RURESA", the initial
"R" standing for "Revised." It has been replaced by UIFSA. For more information,
please see http://wwlia.org/us-uifsa.htm
Usufruct - From ancient Roman law (and now a part of many civil law systems),
"usufruct" means the rights to the product of another's property. For example, a
farmer may give a right of "usufruct"of his land to a neighbor, thus enabling that
neighbor to sow and reap the harvest of that land.
USURY - Excessive or illegal interest rate. Most countries now prohibit interest
rates above a certain level; and rates that exceed these levels are called "usury".
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VAGRANT - A tramp or homeless person.
VENDEE -- A BUYER; A PERSON TO
WHOM SOMETHING IS SOLD.
VENDOR -- A SELLER; A PERSON
WHO SELLS SOMETHING.
VENIRE -- TECHNICALLY, A WRIT
SUMMONING PROSPECTIVE
JURORS; POPULARLY REFERS TO
THE GROUP OF JURORS
SUMMONED.
VENUE - This has the same meaning as in everyday English except that in a
legal context it usually refers specifically to the location of a judicial hearing. For
example, if a criminal case has a very high media profile in a particular city, the
"venue" may change to another city to ensure objective witnesses (i.e. that would
not have been spoiled by media speculation on the crime).
VENIREMAN -- A MEMBER OF A
JURY PANEL.
Verba fortius accipiuntur contra proferentem - Latin: a principle of
construction whereby if words of a contract are ambiguous, of two equally
possible meanings, they should be interpreted against the author of the words
and not against the other party.
VERBATIM --THE RECORDING OF
THE EXACT WORD-FOR-WORD
PROCEEDINGS OF A TRIAL COURT,
AS PREPARED IN TRANSCRIPT
FORMAT.
VERDICT -- A DECISION BY A JUDGE
OR JURY ON THE ISSUES
SUBMITTED TO THE COURT FOR
DETERMINATION.
VERIFICATION -- A PERSON’S
STATEMENT UNDER OATH OR
PENALTY OF PERJURY THAT
CERTAIN STATEMENTS OF FACT IN
A DOCUMENT OR COURT PAPER
ARE TRUE. SEE MCL 700.12(1) AND
AFFIRMATION, OATH, PERJURY.
VERIFIED STATEMENT -1. 1. A STATEMENT (E.G., IN A
COURT PAPER) THAT
CONTAINS VERIFICATION BY
THE PARTY SUBMITTING IT.
2. 2. A CONFIDENTIAL
STATEMENT THAT MUST BE
PROVIDED TO THE FRIEND OF
THE COURT AND ATTACHED TO
THE COMPLAINT IN A
DOMESTIC RELATIONS ACTION
INVOLVING A MINOR OR
REQUESTING CHILD OR
SPOUSAL SUPPORT. SEE MCR
3.206(B).
Videlicet - Latin for "to wit" or "that is to say." "Viz.", which is the abbreviation of
videlicet, is much more commonly used. It is often found in legal documents to
advise that what follows provides more detail about a preceding general
statement. For example: "The defendant committed adultery; viz., on April 15th,
at approximately 10:30 pm, he had sexual intercourse with Ms Jane Doe."
VICARIOUS LIABILITY - When a person is held responsible for the tort of
another even though the person being held responsible may not have done
anything wrong. This is often the case with employers who are held vicariously
liable for the damages caused by their employees.
Vir - Latin: man or husband. Vir et uxor censentur in lege una persona is an old
(and long abandoned in most countries) legal principle meaning that man and
wife are considered to be one person in law.
Vis - An abbreviation of the Latin word videlicet. Short for "namely" or "that is to
say."
VISITATION ORDER -- See PARENTING TIME.
VOID or VOID ab initio - Not legally binding. A document that is void is useless
and worthless; as if it did not exist.For example, in many countries, contracts for
immoral purposes are said to be "void":unenforceable and not recognized by the
courts. A good example is a contract to commit a serious crime such as murder.
VOIDABLE - The law distinguishes between contracts that are void, and those,
which are voidable. Some contracts have such a latent defect that they are said
to be void (see definition of "void" above). Others have more minor defects to
them and are voidable at the option of the party victimized by the defect. For
example, contracts signed by a person when they are totally drunk are voidable
by that person upon recovering sobriety.
Voir dire - A mini-hearing held during a trial on the admissibility of contested
evidence. For example, a defendant may object to a plaintiff's witness. The court
would suspend the trial, immediately preside over a hearing on the standing of
the proposed witness, and then resume the trial with or without the witness, or
with any restrictions placed on the testimony by the judge as a result of the voir
dire ruling. In a jury trial, the jury would be excused during the voir dire.
VOIR DIRE EXAM -- The preliminary examination into the qualifications and
potential biases of prospective witnesses or jurors.
Volenti non fit injuria - Voluntary assumption of risk. A defence in tort that
means where a person engages in an event accepting and aware of the risks
inherent in that event, then they can not later complain of, or seek compensation
for an injury suffered during the event. This is used most often to defend against
tort actions as a result of a sports injury.
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WADE HEARING -- A pretrial hearing to test the fairness of a lineup. The issue
at such a hearing is whether to admit or suppress the identification of the
accused that resulted from the lineup.
WAGNER ACT - A 1935 American federal statute which recognized employee
rights to collective bargaining, protected the right to belong to a union, prohibited
many anti-union tactics then used by employers, and set up the National Labor
Relations Board. The NLRB was given wide enforcement powers. The TaftHartley Act later amended it in 1947.
WAIVE -- To give up a right, claim, or privilege.
WAIVER -- The act of waiving or giving up a right, privilege, or claim.
WAIVER HEARING -- Where a juvenile is charged with a felony, a two-phase
hearing on a motion requesting that the family division of circuit court waive its
jurisdiction and transfer the case to the criminal division of the circuit court.
Waiver hearings are only held in cases involving “traditional waiver.” See
WAIVER OF JURISDICTION.
WAVIER OF IMMUNITY -- A means authorized by statute by which a witness,
before testifying or producing evidence, may relinquish the right to refuse to
testify against himself or herself, thereby making it possible for his or her
testimony to be used against him or her in future proceedings
WALKER HEARING -- A court proceeding to determine whether the police
officer advised the defendant of his or her Miranda rights prior to giving a
statement and whether the defendant voluntarily gave the statement.
WARRANTY - A guarantee given on the performance of a product or the doing
of a certain thing. For example, many consumer products come with warranties
under which the manufacturer will repair or replace any product that fails during
the warranty period; the commitment to repair or replace being the "warranty".
WARD -- Under the Michigan Revised Probate Code, a minor or legally
incapacitated person who has been placed under the care of a guardian. See
MCL 700.12(2) and GUARDIAN, LEGALLY INCAPACITATED PERSON,
MICHIGAN REVISED PROBATE CODE, MINOR.
WARRANT -- A writ or paper issued by a judge or magistrate that allows the
police to arrest a person or search a place. See also ARREST WARRANT,
BENCH WARRANT, FUGITIVE WARRANT, SEARCH WARRANT.
WARRANT RECALL -- A
PROCEDURE FOR REMOVING FROM
DEPARTMENT OF STATE AND STATE
POLICE COMPUTERS INFORMATION
CONCERNING CANCELED
WARRANTS IN ORDER TO AVOID
REPEATED OR MISTAKEN ARRESTS.
WEDLOCK - Being married. Has the same meaning as "matrimony." Used
mostly to refer to illegitimate children as "born out of wedlock."
WIDOW -- A woman whose husband is dead, and who has not remarried. A
man whose wife is dead is called a “widower.”
WIDOW’S ELECTION --- A widow’s choice whether she will inherit under the will
or under statute; that is whether she will accept the provision made for her in the
will, and acquiesce in her husband’s disposition of his property, or disregard it
and claim what the law allows her.
WILL -- A written instrument whereby a person makes a disposition of his or her
property to take effect after his or her death.
WIRE-TAPPING - An electronic surveillance device that secretly listens in and
records conversations held over a phone line. It is usually only allowed with the
permission of a judge and if it can be shown to be necessary for the solving of a
serious crime.
WITH PREJUDICE -- A dismissal “with prejudice” means that the plaintiff in a
civil case or the prosecution in a criminal case is forever barred from bringing the
case or claim again.
WITHOUT PREJUDICE -- A dismissal “without prejudice” means that the
plaintiff in a civil case or the prosecution in a criminal case may bring the case or
claim again.
WITNESS -- One who testifies to what he or she has seen, heard or otherwise
observed.
WORDS OF LIMITATION - Words in a conveyance or in a will that set the
duration of an estate. If a will said "to Bob and his heirs", the words "and his
heirs" were words of limitation because they indicate that Bob gets the land in fee
simple and his heirs get no interest.
WORDS OF PURCHASE - Words that specifically name the person to whom
land is being conveyed. The property is conveyed to specifically and by name in
a legal act such as a conveyance or will. This would preclude, for example,
transfer as a result of intestacy.
WRIT -- A court order giving the authority to require the performance of a
specific act.
WRONGFUL DEATH - An American tort law action that claims damages from
any person who, through negligence or direct act or omission, caused the death
of certain relatives (e.g. spouse, children or parent). These actions are
commenced under special "wrongful death" statutes because under the common
law, there is no right of action for survivors for their own loss as a result of
someone's death. The Canadian equivalent of the wrongful death legislation is
generally known as the "fatal accidents act." In England, it is known as Lord
Campbell's Act.
WRONGFUL DISMISSAL - Being fired from a job without an adequate reason or
without any reason whatsoever. Employees do not have a right to a job for life
and can be dismissed for economic or performance reasons but they cannot be
dismissed capriciously. Most employment implies an employment contract, which
may be supplemented by labor legislation. Either could provide for certain
procedures to be followed, failing which any firing is wrongful dismissal and for
which the employee could ask a court for damages against the employer. Can
also be referred to as "dismissal without just cause." Not all states recognize this
tort law action.
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YELLOW DOG CONTRACT - A name given in American labor law to contract of
employment by which the employee agrees to forfeit their employment if they join
a union during the period of employment. These types of contracts are now
prohibited by American law.