Public Health Law Glossary P-T

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panel

n. the list of people selected to appear for jury duty.

parens patriae

n. doctrine under which the state asserts authority over a child’s welfare.

party

n. 1) one of the participants in a lawsuit or other legal proceeding who has an interest in the outcome. Parties include plaintiff (person filing suit), defendant (person sued or charged with a crime), petitioner (files a petition asking for a court ruling), respondent (usually in opposition to a petition or an appeal), cross-complainant (a defendant who sues someone else in the same lawsuit), or cross-defendant (a person sued by a cross-complainant). 2) a person or entity involved in an agreement. 3) a common reference by lawyers to people or entities involved in lawsuits, transactions, contracts or accidents, as in "both parties knew what was expected," "he is a party to the contract," "he was not a party to the criminal conspiracy…."

patent ambiguity

n. an obvious inconsistency in the language of a written document.

per curiam

adj. Latin for "by the court," defining a decision of an appeals court as a whole in which no judge is identified as the specif- ic author.

permanent disability

n. an injury which impairs the physical and/or mental ability of a person to perform his/her normal work or non-occupational activities supposedly for the remainder of his/her life. Under worker's compensation laws (covering on-the-job injuries) once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability is also one basis for awarding general damages in a lawsuit for injury suffered due to the negligence or intentional attack of another.

permanent injunction

n. a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or petition asking for the "permanent" injunction.

permanent injury

n. physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.

petition

1) n. a formal written request to a court for an order of the court. It is distinguished from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of a case, reduction of bail in criminal cases, a decree of distribution of an estate, appointment of a guardian, and a host of other matters arising in legal actions. 2) n. a general term for a writing signed by a number of people asking for a particular result from a private governing body (such as a homeowners association, a political party, or a club). 3) in public law, a writing signed by a number of people which is required to place a proposition or ordinance on the ballot, nominate a person for public office, or demand a recall election. Such petitions for official action must be signed by a specified number of registered voters (such as five percent). 4) v. to make a formal request of a court; to present a written request to an organization's governing body signed by one or more members. 5) n. a suit for divorce in some states, in which the parties are called petitioner and respondent.

plaintiff

n. the party who initiates a lawsuit by filing a complaint with the clerk of the court against the defendant(s) demanding damages, performance and/or court determination of rights.

pleading

n. 1) every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by state or federal statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well-organized and comprehensive.

plenary

adj. full, complete, covering all matters, usually referring to an order, hearing or trial.

police powers

n. from the 10th Amendment to the Constitution, which reserves to the states the rights and powers "not delegated to the United States," which include protection of the welfare, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement. In short, police powers are the basis of a host of state regulatory statutes.

power

n. the right, authority and ability to take some action or accomplish something, including demanding action, executing documents, contracting, taking title, transferring, exercising legal rights and many other acts.

precedent

1) n. a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment. Thus, "the rule in Fishbeck v. Gladfelter is precedent for the issue before the court in this case." The doctrine that a lower court must follow a precedent is called stare decisis 2) adj. before, as in the term "condition precedent," which is a situation which must exist before a party to a contract has to perform.

preemption

n. the legal effect that results when a superior governmental unit blocks an inferior governmental unit from regulating a particular area. The rational e of preemption is to provide uniformity in certain areas.

preliminary hearing

n. in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable by a term in the state prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime. A preliminary hearing is held in the lowest local court (municipal or police court), but only if the prosecutor has filed the charge without asking the Grand Jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court (variously called superior, county, district, common pleas) for trial. If there is no such convincing evidence, the judge will dismiss the charges. In the "Perry Mason" television series, the courtroom scenes were almost always of preliminary hearings.

preliminary injunction

n. a court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act which is in dispute, thereby maintaining the status quo until there is a final judgment after trial.

preponderance of the evidence

n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.

prima facie

(pry-mah fay-shah) adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a prima facie case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution's apparent "open and shut" case.

privacy

n. the right to be free of unnecessary public scrutiny or to be let alone. Once a person is a "public figure" or involved in newsworthy events, the right to privacy may evaporate.

private nuisance

n. the interference with an individual's peaceful enjoyment of one's property, which can be the basis for a lawsuit both for damages caused by the nuisance and an order (injunction) against continuing the noxious (offensive) activity or condition. Examples: fumes from a factory above the legal limit, loud noises well above the norm, directing rain water onto another person's property, operating an auto repair business in a neighborhood zoned residential, or numerous barking dogs.

privilege

n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

probative

adj. in evidence law, tending to prove something. Thus, testimony which is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel.

procedure

n. the methods and mechanics of the legal process. These include filing complaints, answers and demurrers; serving documents on the opposition; setting hearings, depositions, motions, petitions, interrogatories; preparing orders; giving notice to the other parties; conduct of trials; and all the rules and laws governing that process. Every state has a set of procedural statutes (often called the Codes of Civil Procedure and Criminal Procedure), and courts have so-called "local rules," which govern times for filing documents, conduct of the courts and other technicalities. Law practice before the federal courts operates under the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. Procedural law is distinguished from "substantive" law, which involves the statutes and legal precedents upon which cases are tried and judgments made.

proceeding

n. any legal filing, hearing, trial and/or judgment in the ongoing conduct of a lawsuit or criminal prosecution. Collectively they are called "proceedings," as in "legal proceedings."

process

n. in law, the legal means by which a person is required to appear in court or a defendant is given notice of a legal action against him/her/it. When a complaint in a lawsuit is filed, it must be served on each defendant, together with a summons issued by the clerk of the court stating the amount of time (say, 30 days) in which the defendant has to file an answer or other legal pleading with the clerk of the court, and sent to the plaintiff. New York has an unusual system in which a summons may be served without a complaint. A subpoena is similar to a summons but is a notice to a witness to appear at a deposition (testimony taken outside court), or at a trial. A subpoena duces tecum is an order to deliver documents or other evidence either into court or to the attorney for a party to a lawsuit or criminal prosecution. An order to show cause is a court order to appear in court and give a reason why the court should not issue an order (such as paying temporary child support). The summons, complaint, subpoena, subpoena duces tecum and order to show cause must all be "served" on the defendant or person required to appear or produce, and this is called "service of process." Service of process is usually made by an officer of the court such as a deputy sheriff or marshal, or a professional process server, but can be performed by others in most jurisdictions.

proof

n. confirmation of a fact by evidence. In a trial, proof is what the trier of the fact (jury or judge without a jury) needs to become satisfied that there is "a preponderance of the evidence" in civil (non-criminal) cases and the defendant is guilty "beyond a reasonable doubt" in criminal prosecutions. However, each alleged fact must be proved separately, as must all the facts necessary to reach a judgment for the plaintiff (the person filing a lawsuit) or for the prosecution (the "people" or "state" represented by the prosecutor). The defendants in both civil suits and criminal trials need not provide absolute "proof" of non-responsibility in a civil case or innocence (in a criminal case), since the burden is on the plaintiff or prosecution to prove their cases (or prove the person guilty).

property damage

n. injury to real or personal property through another's negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home or any other possession. The amount of recovery for property damage may be established by evidence of replacement value, cost of repairs, loss of use until repaired or replaced or, in the case of heirlooms or very personal items (e.g. wedding pictures), by subjective testimony as to sentimental value.

proximate cause

n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the defendant's act must have been the proximate cause of the death of a victim to prove murder or manslaughter.

public

1) n. the people of the nation, state, county, district or municipality which the government serves. 2) adj. referring to any agency, interest, property, or activity which is under the authority of the government or which belongs to the people. This distinguishes public from private interests as with public and private schools, public and private utilities, public and private hospitals, public and private lands and public and private roads.

public health law

n “the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to ensure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and of the limitations on the power of the state to constrain for the common good the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals.  The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.”   LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT xxii (2008).

public nuisance

n. a nuisance which affects numerous members of the public or the public at large (how many people it takes to make a public is unknown), as distinguished from a nuisance which only does harm to a neighbor or a few private individuals. Example: a factory which spews out clouds of noxious fumes is a public nuisance but playing drums at three in the morning is a private nuisance bothering only the neighbors.

public use

n. the only purpose for which private property can be taken (condemned) by the government under its power of eminent domain. Public use includes: schools, streets, highways, hospitals, government buildings, parks, water reservoirs, flood control, slum clearance and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public.

punitive damages

n. (synonymous with exemplary damages), damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.

quash

v. to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as "quashing" service of a summons when the wrong person was served.

quasi-judicial

adj., adv. referring to the actions of an agency, boards or other government entity in which there are hearings, orders, judgments or other activities similar to those conducted by courts. Example: a public utilities hearing on setting telephone company rates is quasi-judicial.

query

n. common lawyer lingo for a question to be answered.

question of fact

n. in a lawsuit or criminal prosecution, an issue of fact in which the truth or falsity (or a mix of the two) must be determined by the "trier of fact" (the jury or the judge in a non-jury trial) in order to reach a decision in the case. A "question of fact" may also be raised in a motion for summary judgment which asks the court to determine whether there are any questions of fact to be tried, allowing the judge to rule on the case (usually to dismiss the complaint) at that point without a trial. "Questions of fact" are distinguished from "questions of law," which can only be decided by the judge.

question of law

n. an issue arising in a lawsuit or criminal prosecution which only relates to determination of what the law is, how it is applied to the facts in the case, and other purely legal points in contention. All "questions of law" arising before, during and sometimes after a trial are to be determined solely by the judge and not by the jury. "Questions of law" are differentiated from "questions of fact," which are decided by the jury and only by the judge if there is no jury.

quiet enjoyment

n. the right to enjoy and use premises (particularly a residence) in peace and without interference. Quiet enjoyment is often a condition included in a lease. Thus, if the landlord interferes with quiet enjoyment, he/she may be sued for breach of contract. Disturbance of quiet enjoyment by another can be a "nuisance" for which a lawsuit may be brought to halt the interference or obtain damages for it.

Racketeer Influenced Corrupt Organization (RICO) statute

n. a federal law which makes it a crime for organized criminal conspiracies to operate legitimate businesses.

racketeering

n. the federal crime of conspiring to organize to commit crimes, particularly as a regular business ("organized crime" or "the Mafia").

ratify

v. to confirm and adopt the act of another even though it was not approved beforehand. Example: An employee for Holsinger's Hardware orders carpentry equipment from Phillips Screws and Nails although the employee was not authorized to buy anything. The president of Holsinger's ratifies the deal when Phillips delivers the order. A person under the legal age who makes a contract may ratify the contract when he/she reaches majority (usually 18) or may refuse to honor it without obligation.

rational basis

n. a test of constitutionality of a statute, asking whether the law has a reasonable connection to achieving a legitimate and constitutional objective.

reasonable

adj., adv. in law, just, rational, appropriate, ordinary or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities.

reciprocity

n. mutual exchange of privileges between states, nations, businesses or individuals. In regard to lawyers, reciprocity refers to recognizing the license of an attorney from another state without the necessity of taking the local state's bar examination. Such reciprocity is seldom granted now, since many large states refuse to give it.

record

1) v. (ree-cored) to put a document into the official records of a county at the office of the County Recorder or Recorder of Deeds. The process is that the document is taken or sent to the Recorder's office, a recording fee paid, the document is given a number (a document number, volume or reel number and page number), stamped with the date (and usually the time) of recording and then in most modern offices, microfilmed and the document returned a short time later. Normally recorded is any document affecting title to real property such as a deed, deed of trust, mortgage, reconveyance, release, declaration of homestead, easement, judgment, lien, request for notice of default, foreclosure, satisfaction of judgment, decree of distribution of a dead person's estates and sometimes long-term leases. These recordings provide a traceable chain of title to the property and give the public "constructive" notice of all interests in the property. In most states if there is more than one document affecting the property (such as two deeds, two mortgages, or a judgment and mortgage), the first one recorded has "seniority" and first claim on the property in what is called a "race to the courthouse." 2) v. to write down or tape the minutes, financial transactions, discussions and other happenings at meetings. 3) n. (reck-urred) in trials, hearings or other legal proceedings the total of the proceedings which are transcribed by a court reporter and included in the minutes of the clerk or judge, as well as all the documents filed in the case. On an appeal, the record includes everything that transpired before the appeal, upon which the written briefs (opposing legal arguments) and oral argument are based. On appeal the court can consider only the record, unless there is a claim of "newly discovered evidence."

recusal

n. the act of a judge or prosecutor being removed or voluntarily stepping aside from a legal case due to conflict of interest or other good reason.

referee

n. a person to whom a judge refers a case to take testimony or acquire other evidence such as financial records and report to the court on such findings.

referendum

n. the process by which the repeal or approval of an existing statute or state constitutional provision is voted upon. Many states provide for referenda (plural of referendum) which are placed on the ballot by a required number of voter signatures on a petition filed.

regulations

n. rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations. One problem is that regulations are not generally included in volumes containing state statutes or federal laws but often must be obtained from the agency or located in volumes in law libraries and not widely distributed. The regulation-making process involves hearings, publication in governmental journals which supposedly give public notice, and adoption by the agency. The process is best known to industries and special interests concerned with the subject matter, but only occasionally to the general public. Federal regulations are adopted in the manner designated in the Administrative Procedure Act (A.P.A.) and states usually have similar procedures.

relevant

adj. having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. Commonly, an objection to testimony or physical evidence is that it is "irrelevant."

remedy

n. the means to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, granted by judgment after trial or hearing, by agreement (settlement) between the person claiming harm and the person he/she believes has caused it, and by the automatic operation of law. Some remedies require that certain acts be performed or prohibited (originally called "equity"); others involve payment of money to cover loss due to injury or breach of contract; and still others require a court's declaration of the rights of the parties and an order to honor them. An "extraordinary remedy" is a means employed by a judge to meet particular problems, such as appointment of a referee, master or receiver to investigate, report or take charge of property. A "provisional remedy" is a temporary solution to hold matters in status quo pending a final decision or an attempt to see if the remedy will work.

remittitur

n. 1) a judge's order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff (person who brought the suit). 2) an appeal's transmittal of a case back to the trial court so that the case can be retried, or an order entered consistent with the appeals court's decision (such as dismissing the plaintiff's case or awarding costs to the winning party on appeal).

removal

n. 1) the change of a legal case from one court to another, as from a state court to federal court or vice versa based on a motion by one of the parties stating that the other jurisdiction is more appropriate for the case. 2) taking away the position of a public official for cause, such as dishonesty, incompetence, conviction of a crime or successful impeachment.

repeal

1) v. to annul an existing law, by passage of a repealing statute, or by public vote on a referendum. Repeal of constitutional provisions requires an amendment, as with the repeal of prohibition in which the 21st Amendment repealed the 18th Amendment. 2) n. the act of annulling a statute.

replevin

n. under common law, the right to bring a lawsuit for recovery of goods improperly taken by another. In almost all states the term replevin in no longer used, since the states have adopted "one cause of action" for all civil wrongs.

reply brief

n. the written legal argument of the respondent (trial court winner) in answer to the "opening brief" of an appellant (a trial court loser who has appealed).

reports

n. the published decisions of appeals courts in all states and federal courts, which are found in federal, state and regional series (called "reporters") which are constantly updated with pamphlets called "advance sheets" which are soon followed by bound volumes. There are also reports of specialized courts and particular subject matters such as taxes, bankruptcy and federal procedure. Thus there are Massachusetts Reports, Georgia Reports, Kansas Reports, California Supreme Court Reports, California Appellate Reports and similar series for every state. Regional reporters include Northeast, Atlantic, Southeast, Southern, Northwest, Pacific and so forth, and combine several states' decisions. For Supreme Court cases there are three major reporters, including U.S. Reports, Supreme Court Reporter, and Lawyer's Edition Supreme Court Reports. These reports are available in almost all law libraries.

res

(rayz) n. Latin, "thing." In law lingo res is used in conjunction with other Latin words as "thing that."

res adjudicate

n. a thing (legal matter) already determined by a court, from Latin for "the thing has been judged." More properly res judicata.

res gestae

(rayz jest-tie) n. from Latin for "things done," it means all circumstances surrounding and connected with a happening. Thus, the res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime. Statements made within the res gestae of a crime or accident may be admitted in court even though they are "hearsay" on the basis that spontaneous statements in those circumstances are reliable.

res ipsa loquitur

(rayz ip-sah loh-quit-her) n. Latin for "the thing speaks for itself," a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. Examples: a) a load of bricks on the roof of a building being constructed by Highrise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for Pedestrian's injury even though no one saw the load fall. b) While under anesthetic, Isabel Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to "res ips," and find it a handy shorthand for a complex doctrine.

res judicata

(rayz judy-cot-ah) n. Latin for "the thing has been judged," meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Example: an Ohio court determines that John is the father of Betty's child. John cannot raise the issue again in another state. Sometimes called res adjudicata.

rescind

v. to cancel a contract, putting the parties back to the position as if the contract had not existed. Both parties rescind a contract by mutual agreement, since a unilateral cancellation of a contract is a "breach" of the contract and could result in a lawsuit by the non-cancelling party.

residence

n. 1) the place where one makes his/her home. However, a person may have his/her state of "domicile" elsewhere for tax or other purposes, especially if the residence is for convenience or not of long standing. 2) in corporation law, the state of incorporation.

resolution

n. a determination of policy of a corporation by the vote of its board of directors. Legislative bodies also pass resolutions, but they are often statements of policy, belief or appreciation, and not always enactment of statutes or ordinances.

respondeat superior

(rehs-pond-dee-at superior) n. Latin for "let the master answer," a key doctrine in the law of agency, which provides that a principal (employer) is responsible for the actions of his/her/its agent (employee) in the "course of employment." Thus, an agent who signs an agreement to purchase goods for his employer in the name of the employer can create a binding contract between the seller and the employer. Another example: if a delivery truck driver negligently hits a child in the street, the company for which the driver works will be liable for the injuries.

respondent

n. 1) the party who is required to answer a petition for a court order or writ requiring the respondent to take some action, halt an activity or obey a court's direction. In such matters the moving party (the one filing the petition) is usually called the "petitioner." Thus, the respondent is equivalent to a defendant in a lawsuit, but the potential result is a court order and not money damages. 2) on an appeal, the party who must respond to an appeal by the losing party in the trial court (called "appellant") in the appeals court.

retrial

n. a new trial granted upon the motion of the losing party, based on obvious error, bias or newly discovered evidence, or after mistrial or reversed by an appeals court.

reversal

n. the decision of a court of appeal ruling that the judgment of a lower court was incorrect and is therefore reversed. The result is that the lower court which tried the case is instructed to dismiss the original action, retry the case or change its judgment. Examples: a court which denied a petition for writ of mandate is ordered to issue the writ. A lower court which gave judgment with no evidence of damages is ordered to dismiss.

reversible error

n. a legal mistake at the trial court level which is so significant (resulted in an improper judgment) that the judgment must be reversed by the appellate court. A reversible error is distinguished from an error which is minor or did not contribute to the judgment at the trial.

right

1) n. an entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, real or personal. These rights include: various freedoms; protection against interference with enjoyment of life and property; civil rights enjoyed by citizens such as voting and access to the courts; natural rights accepted by civilized societies; human rights to protect people throughout the world from terror, torture, barbaric practices and deprivation of civil rights and profit from their labor; and such U.S. constitutional guarantees as the right to freedoms of speech, press, religion, assembly and petition. 2) adj. just, fair, correct.

right to privacy

n. the possible right to be let alone, in absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity (such as a magazine or television show) violating the right. However, the right to privacy does not extend to prohibiting someone from taking another person's picture on the street.

rights

n. 1) plural of right, which is the collection of entitlements which a person may have and which are protected by the government and the courts or under an agreement (contract). 2) slang for the information which must be given by law enforcement officers to a person who is about to be arrested, is a prime suspect in a crime, or is officially accused of a crime. These "rights" are short for "Miranda rights," which the Supreme Court, in Miranda v. Arizona (1966), required be read to suspects, including the rights to remain silent and to have an attorney (and if the suspect cannot afford a lawyer, one will be provided), and warning that anything the suspect says can be used against him/her in court. Failure to recite these rights means that a confession may not be used as evidence.

rule

1) v. to decide a legal question, by a court, as in: "I rule that the plaintiff is entitled to the goods and damages for delay in the sum of $10,000." 2) v. to make a judicial command, such as: "I find that George Gonzo is the parent of Larry Gonzo and rule that he must pay support of $150 per month to the mother" for the support of Larry. 3) n. any regulation governing conduct. 4) n. one of the regulations of covering legal practice before a particular group of courts, collectively called "rules of court" adopted by local judges. 5) n. a legal principle set by the decision in an appellate case, as "the rule in the case of Murray v. Crampton is…."

rules of court

n. a set of procedural regulations adopted by courts which are mandatory upon parties and their lawyers on matters within the jurisdiction of those courts. Most states have statewide rules of court. Federal court rules are adopted by the district courts based on the Federal Rules of Procedure, and county, district and municipal court judges adopt what are called "local rules" of court. Local rules encompass the time allowed to file papers, the format of documents (including the paper colors of appeal court briefs), the number of copies to be filed, the procedure to file motions, the basis for calculating alimony and child support, fees for filing various documents and numerous other mundane but vital matters. These rules are violated or ignored at the peril of the client and his/her/its counsel.

ruling

n. court decision on a case or any legal question.

service

n. 1) paid work by another person, either by contract or as an employee. "Personal services" is work that is either unique (such as an artist or actor) or based on a person's particular relationship to employer (such as a butler, nanny, traveling companion or live-in health care giver). 2) the domestic activities of a wife, including the marital relationship (consortium), are legally considered "services" for which a deprived husband may sue a person who has caused injury to his wife. 3) the official delivery of legal documents ("service of process") such as a summons, subpena, complaint, order to show cause (order to appear to show reasons why a judge should not make a particular order), writ (court order), or notice to quit the premises, as well as delivery by mail or in person of documents to opposing attorneys or parties, such as answers, motions, points and authorities, demands and responses.

service by publication

n. serving a summons or other legal document in a lawsuit on a defendant by publishing the document in an advertisement in a newspaper of general circulation. Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, unknown (as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence" (trying hard). Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address or to give notice to people who might have a right to object to a "quiet title" action to clear title to real property.

service of process

n. the delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called "substituted service" can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office or with a designated "agent for acceptance of service" (often with name and address filed with the state's Secretary of State), or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.

session

n. 1) a meeting (or "sitting") of a court for a particular period of time. "Session" technically means one day's business (as in "today's session"). 2) the term of an appeals court covering several months (as in the "Spring Term" or the "October Term").

set aside

v. to annul or negate a court order or judgment by another court order. Example: a court dismisses a complaint believing the case had been settled. Upon being informed by a lawyer's motion that the lawsuit was not settled, the judge will issue an order to "set aside" the original dismissal.

settlement

n. the resolution of a lawsuit (or of a legal dispute prior to filing a complaint or petition) without going forward to a final court judgment. Most settlements are achieved by negotiation in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company's insured defendant) and the parties agree to terms of settlement. Many states require a settlement conference a few weeks before trial in an effort to achieve settlement with a judge or assigned attorneys to facilitate the process. A settlement is sometimes reached based upon a final offer just prior to trial (proverbially "on the courthouse steps") or even after trial has begun. A settlement reached just before trial or after a trial or hearing has begun is often "read into the record" and approved by the court so that it can be enforced as a judgment if the terms of the settlement are not complied with. Most lawsuits result in settlement.

stakeholder

n. a person having in his/her possession (holding) money or property in which he/she has no interest, right or title, awaiting the outcome of a dispute between two or more claimants to the money or property. The stakeholder has a duty to deliver to the owner or owners the money or assets once the right to legal possession is established by judgment or agreement.

stare decisis

(stah-ree duh-sigh-sis) n. Latin for "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law").

state

n. 1) the federal or state government and any of its departments, agencies or components (such as a city, county or board). 2) any of the 50 states comprising the United States. 3) a nation's government.

statute

n. a federal or state written law enacted by the Congress or state legislature, respectively. Local statutes or laws are usually called "ordinances." Regulations, rulings, opinions, executive orders and proclamations are not statutes.

stay

n. a court-ordered short-term delay in judicial proceedings to give a losing defendant time to arrange for payment of the judgment or move out of the premises in an unlawful detainer case.

strict liability

n. legal doctrine under which parties are responsible, without proof or fault on their part, for injuries caused by abnormally dangerous activities under their control or products they have manufactured, distributed, or sold.

strict scrutiny

n. in constitutional law, the standard applied to fundamental rights (such as voting rights) in due process analysis and to suspect classifications (such as race) and classifications based on exercise of a fundamental right in equal protection analysis.  Under strict scrutiny, the state must establish that it has a compelling interest that justifies and necessitates the law in question.

suit

n. generic term for any filing of a complaint (or petition) asking for legal redress by judicial action, often called a "lawsuit." In common parlance a suit asking for a court order for action rather than a money judgment is often called a "petition," but technically it is a "suit in equity."

summary adjudication of issues

n. a court order ruling that certain factual issues are already determined prior to trial. This summary adjudication is based upon a motion by one of the parties contending that these issues are settled and need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact by the opposing party and other discovery, as well as a legal argument (points and authorities). The other party may respond by counter-declarations and legal arguments attempting to show that these issues were "triable issues of fact." If there is any question as to whether there is conflict on the facts on an issue, the summary adjudication must be denied regarding that matter. The theory behind this summary process is to reduce the number of factual questions which will require evidence at trial and eliminate one or more causes of action in the complaint or conversely find a judgment for plaintiff. The motion for summary adjudication of issues often accompanies the broader motion for summary judgment, which can result in judgment on the entire complaint or some causes of action before the trial starts. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom such a motion is made.

summary judgment

n. a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are "triable issues of fact." If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action. The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made.

Superior Court

n. the name used in 16 states for the basic county trial court.

supra

(sooh-prah) Latin for "above," in legal briefs and decisions it refers to the citation of a court decision which has been previously mentioned. Thus a case when first cited will be referred to as Guinn v. United States, (1915) 238 U.S. 347, meaning it can be found in volume 238 of the U.S. Reports (of the Supreme Court) at page 347 and was decided in 1915. The next time the case is cited as Guinn v. United States, supra.

T.R.O.

n. legal slang for temporary restraining order.

taking

n.  in constitutional law, the government’s actual or effective acquisition of private property either by ousting the owner and claiming title or by destroying the property or severely impairing its utility.

tax

n. a governmental assessment (charge) upon property value, transactions (transfers and sales), licenses granting a right and/or income. These include federal and state income taxes, county and city taxes on real property, state and/or local sales tax based on a percentage of each retail transaction, duties on imports from foreign countries, business licenses, federal tax (and some states' taxes) on the estates of persons who have died, taxes on large gifts and a state "use" tax in lieu of sales tax imposed on certain goods bought outside of the state.

temporary injunction

n. a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. A temporary injunction differs from a "temporary restraining order" which is a short-term, stop-gap injunction issued pending a hearing, at which time a temporary injunction may be ordered to be in force until trial. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or change before the legal questions are determined. After the trial the court may issue a "permanent injunction" (making the temporary injunction a lasting rule) or "dissolve" (cancel) the temporary injunction.

tenancy

n. the right to occupy real property permanently, for a time which may terminate upon a certain event, for a specific term, for a series of periods until cancelled (such as month-to-month), or at will (which may be terminated at any time). Some tenancy is for occupancy only as in a landlord-tenant situation, or a tenancy may also be based on ownership of title to the property.

tenant

n. a person who occupies real property owned by another based upon an agreement between the person and the landlord/owner, almost always for rental payments.

tort

n. from French for "wrong," a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as well.

treaty

n. a pact between nations which, if entered into by the United States through its Executive Branch, must be approved by "two-thirds of the Senators present," under Article II, section 2 of the Constitution, to become effective. Presidents sometimes get around the Senate by entering into "Executive Agreements" with leaders of other countries which are a mode of cooperation and not enforceable treaties.

trespass

n. entering another person's property without permission of the owner or his/her agent and without lawful authority (like that given to a health inspector) and causing any damage, no matter how slight. Any interference with the owner's (or a legal tenant's) use of the property is a sufficient showing of damage and is a civil wrong (tort) sufficient to form the basis for a lawsuit against the trespasser by the owner or a tenant using the property. Trespass includes erecting a fence on another's property or a roof which overhangs a neighbor's property, swinging the boom of a crane with loads of building materials over another's property, or dumping debris on another's real estate. In addition to damages, a court may grant an injunction prohibiting any further continuing, repeated or permanent trespass. Trespass for an illegal purpose is a crime.

trial

n. the examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if one has been requested. Each party is entitled to an opening statement by his/her attorney (or the party if he/she is representing himself/herself), limited to an outline of what each side intends to prove (the defense may withhold the opening statement until the defense is ready to present evidence), followed by the presentation of evidence first by the plaintiff (in a civil case) or prosecution (in a criminal case), followed by the defense evidence, and then by rebuttal evidence by the plaintiff or prosecution to respond to the defense. At the conclusion of all evidence each attorney (plaintiff or prosecution first) can make a final argument which can include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case, based on "jury instructions" submitted by the attorneys and approved, rejected, modified and/or added to by the judge. Then the jury retires to the jury room, chooses a foreperson and decides the factual questions. If there is no jury, the judge will determine legal issues and decide factual questions and render (give) a judgment. A jury will judge the factual issues and decide the verdict based on the law as given in the instructions by the judge. Final verdict or judgment usually concludes the trial, although in some criminal cases a further trial will be held to determine "special circumstances" (acts which will increase the punishment) or whether the death penalty should be imposed. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge's chambers. In most criminal cases the exact punishment will be determined by the judge at a hearing held at a later time.

trier of fact

n. the judge or jury responsible for deciding factual issues in a trial. If there is no jury the judge is the trier of fact as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission or referee may be the trier of fact.