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. 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. A rule which requires all pending charges against a prison inmate be brought to trial in 180 days or be dismissed with prejudice.
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.
ALIMIONY - 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.
ALLODAIL - 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.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.
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 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 settler 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/settler 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.
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.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.
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 - 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).
CONTEMNER - 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 co-ownership.
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 cross-examination.
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 stand-alone 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.
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.
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).
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.
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. 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 life-saving 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. Personal property that the surviving spouse of a decedent is automatically entitled to receive from the decedent’s estate.
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.
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. 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. 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.
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.
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.
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. 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.
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.
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. 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. 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
KIN -- One who is related by blood.
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.
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 - means 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 life-sustaining 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.
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 Cartaheld 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.
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. 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. “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. 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. 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. 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.
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. A written notice by a landlord to his/her tenant demanding that the tenant surrender and vacate the property, terminating the tenancy.
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.
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.
1. The jurors serving a specific court. See also JURY PANEL.
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).
1. A person concerned with or taking part in a matter or transaction, such as a party to a contract.
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.
1. An application made in writing to a court.
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."
1. The judge conducting a hearing or trial. The judge in charge of a case.
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. 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. The term “prima facie evidence” refers to evidence that is sufficient to prove a fact unless overcome by other evidence.
1. One who has permitted or directed another (an agent) to act for his or her benefit. See also AGENT.
2. The person having primary liability to pay a debt. See also GUARANTOR, SURETY.
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.
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.
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.
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. 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.
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.
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.
1. Court reports: published judicial cases arranged according to some grouping, such as court jurisdiction, period of time, subject matter or case significance.
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).
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. 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.
RESPONDET - 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.
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. 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.
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. 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. 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 2.116c. 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.
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 re-assert 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.
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".
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. A statement (e.g., in a court paper) that contains verification by the party submitting it.
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.
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 Taft-Hartley 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.
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