The Public Intelligence Agency
§ 1 – Which type(s) of Tort or Breach of Contract occurred, and which type of Liability exists?
Tort – a wrongful (“tortious”) act that causes a private injury:
Torts – related terms:
Tort Reform – a movement to reduce the amount of tort litigation, usually involving legislation to restrict remedies or capping damages
tortfeasor – someone who commits a tort
tortious – constituting a tort; wrongful; injurious
Tortious Act – an act that subjects the actor to liability under the principles of tort law
Tortious Conduct – an act or omission that subjects the actor to liability under the principles of tort law
Tort-of-Another Doctrine – statutory rules authorizing courts to award litigation-related expenses (e.g. attorney’s fees) to a prevailing party forced to bring or defend a suit against a third party for a tort committed by someone else who refused, after notice, to bring or defend the lawsuit
Basic Classifications of Torts:
intentional tort – committed with intent (i.e. battery, false imprisonment, trespass)
prima facie tort – an unjustified, intentional infliction of harm on another, resulting in damages, by an act(s) that would otherwise be lawful
maritime tort – committed within admiralty jurisdiction (on navigable waters)
mass tort – injures many people (i.e. toxic chemicals, commercial airliner crash)
negligent tort – committed by failure to observe the standard of care required by law under the circumstances
negligence – failure to exercise the standard of care that a reasonable person would have exercised
Degrees of Negligence – typically classified as simple, ordinary, gross, or slight negligence:
ordinary negligence – failure to exercise the degree of care that a reasonably prudent person would have exercised in similar circumstances; failure to use ordinary care or due care
(due) diligence – persevering effort to accomplish one’s business, duty, etc.
ordinary (reasonable) care – the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances
“gross,” “criminal,” or “culpable” negligence – conscious, wanton, reckless disregard for the probability that death or injury could result from one’s actions
slight negligence – failure to exercise the degree of care expected of an extraordinarily prudent person, resulting in liability in special circumstances (esp. those involving bailments or carriers)
reasonable person test – a hypothetical person used as a legal standard, especially to determine if someone acted with negligence
Assessing Liability in Negligence Cases:
comparative negligence (doctrine) – reduces a plaintiff’s recovery proportionally to the plaintiff’s degree of fault in causing the damage, rather than barring recovery completely
pure comparative-negligence doctrine – an absolute, literal translation of the comparative negligence doctrine that is adopted by a court
hybrid comparative negligence doctrine – a court’s adoption of the comparative negligence doctrine, wherein, if the plaintiff’s negligence is great enough (usually 50%), the plaintiff is barred from recovering damages
contributory negligence doctrine – completely bars a plaintiff’s recovery if the damage suffered is partly the plaintiff’s own fault; in most jurisdictions, this defense has been superseded by the comparative negligence doctrine
Types of Negligence:
malpractice – negligence or incompetence on the part of a professional (i.e. by an attorney or physician)
public tort – a minor breach of the law (i.e. a parking violation) that carries a criminal punishment even though its considered a civil offense because it is merely a prohibited act and not inherently reprehensible conduct
quasi-tort – when one who did not directly commit the wrong is liable, such as an employer for a tort committed by an employee
Various Types of Torts § 1:
Abuse of Litigation Procedures (Torts):
malicious defense – defendant’s use of unfair, harassing, or illegal tactics to advance a frivolous or unmeritorious defense
malicious prosecution (use of process) – institution of a criminal or civil proceeding for an improper purpose, without probable cause
abuse of discretion (denial of justice) – an adjudicator or appellate court’s failure to exercise sound, reasonable, and legal decision-making, unsupported by the evidence
arbitrary and capricious – a concept which permits a court to substitute its judgment for that of an administrative agency’s unreasonable decision which ignores the law or facts of the case
capricious (caprice) – contrary to the evidence or established rules of law; whimsical rather than logistic
abuse of process – improper, intentional, tortious use of civil or criminal process to obtain a result that is either unlawful or beyond the purpose for which such process was designed
discovery abuse – misuse of the pretrial discovery process, especially by (1) requesting unnecessary information; (2) requesting information for an improper purpose; or (3) failing to respond adequately to a proper discovery request
vexatious suit – instituted maliciously and without good grounds, meant to create trouble and expense for the party being sued
Family Law Torts:
Marital Tort – a tort by one spouse against the other (i.e. assault and battery, transmission of STDs, emotional distress)
Preconception Tort – committed before the victim has been conceived
Prenatal Tort – committed against a fetus (including torts a child can sue for after being born)
government tort – committed by a government employee, agent, or instrumentality:
Constitutional Tort – a violation of one’s constitutional rights by a government officer, redressable by a civil action filed directly against the officer
official misconduct – a public officer’s violation of duty by malfeasance, misfeasance, or nonfeasance
feasance – the doing or accomplishment of an act, condition, or obligation
Malfeasance – a wrongful, unlawful, or dishonest act; especially by a public official
abuse of power – misuse or improper exercise one’s authority in a way that is tortious, unlawful, or outside its proper scope
Misfeasance – the performance of a duty or act which one ought or has a right to do, but in a way that infringes on the rights of others
nonfeasance – the negligent failure to act when a duty to act exists
malice exception – a limit on public officials’ qualified immunity, whereby they can face civil liability for willfully exercising discretion in a way that violates a known or well-established right
qualified immunity – a public official’s immunity from civil liability when performing a discretionary function, as long as the conduct does not violate a clearly established constitutional or statutory right
tortious denial of benefits – the improper, often baseless refusal to recognize a valid claim for financial assistance
Tort Claims Acts – federal and state Acts of Congress that waive sovereign immunity, thus allowing governments to be sued for torts committed by its employees and agents
28 U.S.C. § 1346 – United States as defendant
28 U.S.C. §2401 – Time for commencing action against United States:
Civil Complaints against Federal Agencies or Officials must be filed within 6 years of the injury (some exceptions)
Toxic and Environmental Torts:
Environmental Tort – involves exposure to disagreeable or harmful environmental conditions or harm to & degradation of an environment (i.e. land, water, air)
Toxic Tort – a civil wrong arising from exposure to a toxic substance, such as asbestos, radiation, or hazardous waste
Business Tort – a tort that impairs some aspect of an economic interest or business relationship, causing economic loss rather than property damage or bodily harm
Tortious Interference with Prospective Advantage – an intentional, damaging intrusion on another’s potential business relationship, such as the opportunity of obtaining customers or employment
Personal Tort – injury to one’s person, reputation, or feelings
Dignitary Tort – injury to one’s reputation or honor (defamation)
Property Tort – the unlawful interference by one person with the enjoyment by another of his private property, including property loss or damage to such property
Sanctions Tort – a means of recovery for another party’s discovery abuse, whereby the judge orders the abusive party to pay a fine to the injured party for the discovery violation
Tortious Battery – a nonconsensual, intentional, and offensive touching of another, but not necessarily with the intent to do harm or offense as required in a criminal battery
Tortious Interference with Contractual Relations – a third party’s intentional inducement of a contracting party to break a contract, causing damage to the relationship between the contracting parties
breach of contract – violation of a contractual obligation, or interfering with another party’s performance
breach of covenant – violation of an express or implied promise, usually in a contract; a duty to either to do or not do an act
Immediate Breach – a breach of contract that entitles the nonbreaching party to sue immediately
Anticipatory Breach – a breach of contract caused by a party’s unequivocal indication that the party will not perform when performance is due; the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages
Total Breach – a breach of contract which goes to the whole consideration, for which the remedial rights provided by law may be substituted for all the existing contractual rights, by the injured party
Material Breach – a breach of contract sufficiently substantial to give the injured party the right to rescind the contract or to maintain an action for damages, or both
Liability – legally obligated or accountable; a debt enforceable by civil remedy or criminal punishment
General Legal Terms pertaining to “Liability”:
apportionment of liability – parceling out of liability or an injury among multiple tortfeasors, and possibly the plaintiff as well
Fault – an error or defect of judgment or conduct; deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement
liable – likely to incur a penalty as a result of having commit a civil wrong or breach of contract, answerable by tort
culpable – guilty or at fault; often used in cases of breach of duty
breach of duty – violation of a legal or moral obligation; especially, a fiduciary’s violation of an obligation
tortious liability – arising from the breach of a duty, is redressable by an action for compensatory, unliquidated (and sometimes punitive) damages
breach of duty of care – negligence that results in a foreseeable injury that would not have occurred but for the negligent person’s actions
liability insurance – an insurance policy wherein the company agrees to protect against liability arising from an act or omission of the insured, which causes injury to a third person or to their property
General Classifications for Types of Liabilities:
civil liability – liability imposed under the civil, as opposed to the criminal, law
criminal liability – the penalty or forfeiture imposed as punishment for a crime
liability created by statute – a liability created by statute, as opposed to one created by contract
Types of Liabilities Associated with Civil Law:
alternative liability – when a plaintiff proves that one of two or more defendants caused harm, but they cannot prove which one, the burden of proof shifts to each defendant
derivative liability – liability that a person other than the one wronged has a right to redress (i.e. a widow in a wrongful-death action or liability to a corporation in a shareholder’s derivative suit)
vicarious liability – liability that a supervisory party (i.e. an employer or principal) bears for the actionable conduct of a subordinate or associate (i.e. an employee or agent)
respondeat superior – the doctrine wherein liability is imposed on an employer for the acts of its employees committed in the course and scope of their employment, or on a principal for acts of their agent(s)
Types of Liabilities Associated with Criminal Law:
accomplice liability – criminal responsibility of one who acts with another before, during, or (in some jurisdictions) after a crime
Types of Liabilities Associated with both Civil and Criminal Law:
absolute liability – a type of strict liability based on causation alone, without any other limiting factors
aiding-and-abetting liability – civil or criminal liability imposed on one who assists in, facilitates, or promotes the commission of an act that results in harm or loss
causer liability – civil or criminal liability imposed on the person whose acts resulted in harm or loss
§ 2 – Assess Injuries and Losses:
Injury – the violation of another’s legal right, thereby causing harm to another in person, character, or property
General Types of Injuries:
consequential injury – an injury arising from the results of damage rather than from the damage itself
continual injury – recurs at repeated intervals
Continuing Injury – an injury that is still in the process of being committed
irreparable injury – cannot be adequately measured or compensated by money and is therefore often considered remediable by injunction
pecuniary injury – can be adequately measured or compensated by money; a reparable injury
reparable injury – can be adequately compensated by money; a pecuniary injury
physical injury – damage to one’s body or an injury that exists so a person cannot physically enjoy his property
temporary Injury – may be abated or discontinued at any time by either the injured party or the wrongdoer
Terms used to Classify Types of Injuries:
Indivisible Injury – a single injury that has been caused by concurrent tortfeasors and that is not reasonably capable of being separated
Injury in Fact – an actual or imminent invasion of a legally protected interest, in contrast to an invasion that is conjectural or hypothetical
Malicious Injury – a physical or non-physical injury resulting from a willful act committed with knowledge that it is likely to injure another or with reckless disregard of the consequences
Permanent Injury – a lasting injury to person, land, water, or property that is likely to be lasting, and whose consequences cannot be remedied for an indefinite period
Wilful and Malicious Injury – an injury to a person or property inflicted intentionally and deliberately, without cause and with no regard for the legal rights of the injured party; often associated with bankruptcy
Types of Injuries pertaining strictly to Property:
Injuriously Affected – as a condition of the right to damages in eminent domain, the consequences of an act which would have given a right of action if the act had not been authorized by the statute
Injury by the Elements – such injuries that results from the most common destructive forces of nature, against which buildings need to be protected
Injury in His Property – direct or indirect harm or damage to property, including the diminishing of his property by a transfer, or a payment of money, induced by fraud
Injury to Property – something materially affecting the capacity of particular property for ordinary use and enjoyment
Types of Injuries that could Qualify as Other Types of Injuries as well:
Civil Injury – physical harm or property damage caused by breach of a contract or by a criminal offense redressable through a civil action
Injurious Exposure – contact with a substance that would cause injury if the person were repeatedly exposed to it over time
Personal Injury – an actionable physical (bodily) injury or invasion of a personal right (i.e. wrongful eviction, slander, false arrest, violation of the right to privacy); an injury to the individual himself, resulting from breach of contract or tort
Bodily Injuries – physical harm or injury to a person’s body
Accidental Injury – a bodily injury resulting from external, violent, and unanticipated causes, especially caused by some external force or agency operating contrary to a person’s intentions, unexpectedly, and not according to the usual order of events
Serious Bodily Injury – a serious physical impairment of the human body that creates a substantial risk of death or that causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part or organ
dispossession (disseisin, ouster) – deprivation of, or eviction from, rightful possession of property; the wrongful taking or withholding of possession of land from the person lawfully entitled to it
constructive eviction – a landlord’s act of making premises unfit for occupancy, often with the result that the tenant is compelled to leave
Wrongful Eviction – the wrongful dispossession of someone from property:
Partial Eviction – a responsive eviction from a portion of the tenant’s premises
Retaliatory Eviction – a nearly always illegal eviction that is commenced in response to a tenant’s complaints or involvement in activities with which the landlord disapproves of
Legal Injury – an invasion or violation of a legal right
Direct Injury – an injury which the direct result of the violation of a legal right
Public Injury – a loss or an injury stemming from a breach of a duty or violation of a right that affects the community as a whole (i.e. official misconduct, crimes, public nuisances)
Types of Injuries Strictly pertaining to Businesses:
Antitrust Injury – damage, loss, or harm caused by anticompetitive conduct that violates antitrust laws (i.e. a vertical maximum-price-fixing conspiracy that results in predatory pricing)
Compensable Injury – a personal injury caused by an accident arising from the employment and in the course of the employee’s work, and for which the employee is statutorily entitled to receive compensation
Economic Injury – an injury to a person’s ability to enter into or profit from a business arrangement
Injury Arising Out of Employment – an injury with a direct cause and effect relationship between the injury and the employment
Scheduled Injuries – types of partially disabling injuries for which a predetermined amount of compensation is allowed under a workers’ compensation statute
Types of Non-Physical Injuries –
Advertising Injury – harm resulting from oral or written speech that slanders or libels a person, violates their right to privacy, or disparages their goods, products, services, name, or slogan
Injurious Falsehood – a defamation that causes damage (i.e. disparagement, trade disparagement)
Injurious Words – slanderous or libelous language
Injury to Reputation – a diminution in any manner or degree of the esteem, goodwill, or confidence that a people place in a person, firm, company, etc
Loss – the decrease or total diminishing in value of property, usually in an unexpected or relatively unpredictable way, or the act of losing something that is gone and cannot be recovered, such as a life or friendship, etc.
General Terms used for Describing and Assessing Various Types of Losses:
Consequential Loss – a loss-arising from the results of damage rather than from the damage itself
Direct Loss – loss or damage resulting from a direct cause, as distinguished from a remote cause
Extraordinary Loss – a loss that is both unusual and infrequent, such as a loss resulting from a natural disaster
Intangible Loss – the damage caused by the disruption of an intangible right or benefit
Nonpecuniary Loss – a loss resulting from emotional or sentimental loss
Pecuniary Loss – a loss of money or of something having monetary value (often used in relation to wrongful death actions and many other cases)
Temporal Loss – a pecuniary loss which causes actual deterioration of person or property, thereby forming an independent and substantive ground of proceeding, as opposed to a spiritual grievance or injury to the feelings, which is not grounds for a proceeding
Progressive Loss – loss that spreads or becomes more expensive to repair over time (i.e. asbestosis)
Legal Terms used in relation to assessing Losses:
Proximate – very near or close, or happening immediately before or after
Remote – far removed or separated in dime, space, or relation; or slight; little; inconsequential
Specific Types of Losses which are also Insurance-Related Terms:
Partial Loss – partial disability in health, mind, or person, such as the loss of use of ability to use an arm or leg; or – in insurance – damage not amounting to a total loss
Particular Average Loss – a term used primarily in marine insurance in contrast to “general average,” indicating a loss to a ship’s cargo that is absorbed solely by the owner or owners of the particular cargo that has been destroyed
Types of Losses pertaining to Insurance:
Actual Loss – the real and substantial destruction, whether total or partial, of insured property
Actual Total Loss – the same as total loss, although primarily used in marine insurance
Constructive Total Loss – such serious damage to the insured property that the cost of repairs would exceed the value of the thing repaired, or half the value when dealing in marine underwriting
General Average Loss – loss at sea usually incurred when cargo is thrown overboard to save the ship; such a loss is borne equally by all the interests concerned in the venture
Total Loss – the complete destruction of the insured property by fire so that nothing of value remains, and cannot be rebuilt, as distinguished from a partial loss
Types of Losses pertaining to Taxes:
Casualty Loss – a deduction in an income tax return for a loss arising from fire, storm, shipwreck, automobile accident, tornado, or other casualty to property owned by the taxpayer
Disaster Loss – a casualty loss sustained in a geographic area that the President designates as a disaster area which may be treated as having occurred during the previous tax year so that a victim may receive immediate tax benefits
Deductible Loss – a taxpayer’s loss that may be deducted in computing net taxable income, such as losses as a result of property being destroyed, damaged, confiscated, stolen, abandoned, taken by foreclosure, or becoming entirely worthless from other special losses, such as embezzlement or theft, provided the losses are not fully compensated by the insurance or otherwise
Hobby Loss – a nondeductible loss arising from a personal hobby; as contrasted with an activity engaged in for profit
Ordinary Loss – a tax that is deductible from ordinary income in business or trade, from the sale or exchange of an item; more beneficial to the taxpayer than a capital loss
Passive Loss – a loss, with limited tax deductibility, from an activity in which the taxpayer does not materially participate, from a rental activity, or from a tax-shelter activity
Products-Liability Loss – the total of a taxpayer’s products-liability expenses up to the amount of the taxpayer’s net operating loss
Recognized Loss – the portion of a loss that is subject to income taxation
§ 3 – Which form(s) of relief are you seeking to help remedy the situation?
Legal Terms pertaining to Types of Remedies:
redress – the means of seeking relief or remedy:
relief – an award of damages or a judgment, decree, or order requiring an adversary to perform as directed or to refrain from specified conduct
affirmative relief – a court order requiring the losing party to act in a specified manner or desist from specified conduct, or relief sought by a defendant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiff’s action
alternative relief – a request, in a pleading, asking for both specific performance, and damages that would be averted by specific performance
declaratory relief – request a court to determine the legal status or ownership of a thing
extraordinary relief – exceeds what is typically or customarily granted but is warranted by the unique or extreme circumstances of a situation
remedy – the means of enforcing a right or preventing or redressing an injury; legal (monetary) or equitable (non-monetary) relief
estoppel – a prohibition imposed by law against uttering what may actually be the truth.
Extrajudicial Remedies – may be obtained without a court:
administrative remedy – a nonjudicial remedy provided by an administrative agency (if an administrative remedy is available, it must be exhausted before a court will hear the case)
exhaustion of remedies doctrine – if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available
self-help doctrine – an attempt to redress a perceived wrong by one’s own action rather than through the normal legal process
Judicial Remedies – may be obtained from a court:
extraordinary remedy – not available unless necessary to preserve a right that cannot be protected by a standard legal or equitable remedy
legal remedy – historically available in a court of law, as opposed to only in equity
remedial action – intended to permanently alleviate pollution when a hazardous substance has been released or might be released into the environment, so as to prevent or minimize any further release of hazardous substances and thereby minimize the risk to public health or to the environment
substitutional remedy – wherein the plaintiff receives a sum of money when the very thing that was lost cannot be returned
election of remedies – the act of choosing between two or more concurrent but inconsistent remedies allowed by law, upon the same set of facts
equitable remedy (aka equitable relief) – a form of non-monetary relief that may be requested from the court
specific performance – a court-ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate
Injunction – a court order commanding an action to be done, or preventing an action from being done an “Equitable Remedy” that the plaintiff has shown to be necessary for preventing (further) injury
common injunction – grantable as an order of course, without reference to the merits, when the defendant fails to appear, or to timely plead, answer, or move to dismiss
Injunction – related terms:
Injunctive Relief – relief resulting from an injunction
Irreparable-Injury Rule – the principle that equitable relief (i.e. injunction) is available only when no adequate legal remedy (money damages) exists
permanent injunction – granted after a final hearing on the merits, as distinguished from a temporary injunction granted to provide temporary relief (not necessarily permanent)
Production Injunction – a permanent injunction prohibiting specified conduct in a field or activity that the court has found to embrace misappropriated trade secrets
Use Injunction – a permanent injunction prohibiting the use of specified information that the court has found to constitute a trade secret
Types of Injunctions only used to Prevent Actions:
Anti-Antisuit Injunction – an injunction prohibiting a litigant subject to the jurisdiction of a local court from seeking in a foreign court to restrain the continuation of a proceeding in the local court.
Antisuit Injunction – an injunction prohibiting a litigant from instituting other, related litigation, usually between the same parties on the same issues
Headstart Injunction – an injunction prohibiting the defendant from using a stolen trade secret for a period of time equal to the time between the date of the secret’s theft and the date when the secret became public
Hyperinjunction – a gag order that bars discussing the subject matter or the existence of the injunction itself, except to lawyers of the recipient’s council
Preliminary Injunction – a temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case
Ex Parte Injunction – a preliminary injunction issued after the court has heard from only the moving party, and without notice to the adverse party
Preventative Injunction – an injunction designed to prevent a loss or injury in the future via commanding a party to refrain from doing a specified act or acts
Quia-Timet Injunction – an injunction granted to prevent an action that has been threatened but has not yet violated the plaintiff’s rights or interest
Special Injunction – an injunction in which the prohibition of an act, in order to prevent irreparable injury, is the only relief ultimately sought
Superinjunction – a type of gag order that forbids the recipient not just to discuss the subject matter but also to reveal the existence of the injunction itself
Types of Injunctions used only for Commanding Particular Action(s) to be Done:
Mandatory Injunction – an injunction that orders an affirmative act or mandates a specified course of conduct
Reparative Injunction – an injunction requiring the defendant to restore the plaintiff to the position that the plaintiff occupied before the defendant committed a wrong
Damage Assessment Made Simple – how much money are you due?
General Legal Terms pertaining to “Damages”:
Accord and Satisfaction – an agreement (accord) to substitute for an existing debt some alternative form of discharging that debt, coupled with the actual discharge of the debt by the substituted performance (satisfaction)
Accord – an agreement, compact, or treaty: an offer to give or to accept a stipulated performance in the future to satisfy an obligor’s existing duty, together with an acceptance of that offer
Satisfaction – the giving of something with the intention, express or implied, to substitute the specified performance, in order to extinguish the existing legal or moral obligation
Compensation – payment of damages, or any other act that a court orders to be done by a person who has caused injury to another, in theory making the injured person whole, or remuneration for services rendered (i.e. salary, wages)
Recompense – repayment, compensation, remuneration, or retribution for something, especially an injury or loss
Remuneration – the act of paying or compensating
compromise and settlement – a compromise agreement followed by the performance of the promises contained in the agreement
Compromise – an agreement between two or more persons to settle matters in dispute between them in which each party surrenders somethings in concession to the other
General Descriptive Terms for Various Types of Damages:
Stigma Damages – damages which caused a permanent loss in the value of the property
Substantial Damages – a considerable sum awarded to compensate for a significant loss or injury, as opposed to nominal damages
Temperate Damages – reasonable damages allowed in certain cases , without proof of actual or special damage, where the wrong done caused actual damage, though, due to the nature of the case, he cannot furnish evidence thereof
Tort Damages – monetary compensation for tangible and intangible harm to persons and property as the result of a tort
Standard Legal Terms used in Initial Damage Assessment:
Additional Damages – usually provided by statute in addition to direct damages, including expenses resulting from the injury, consequential damages, or punitive damages
Compensatory aka Actual Damages – the total damages recoverable in satisfaction of, or in recompense for, loss or injury sustained, including all damages, except nominal damages, punitive, or exemplary damages
Common-Law Damages – a court ordered monetary award intended to return an injured party, as nearly as possible. to their position that party occupied before suffering harm
Lawful Damages – those damages fixed by law and ascertained in a court of law
Measurable Damages – damages whose amount can be determined with a high degree of certainty
Pecuniary Damages – damages that can be estimated and monetarily compensated, as opposed to nonpecuniary damages, which require nonmonetary (equitable) remedies; the term “pecuniary loss” is often used in wrongful death cases
General Damages – damages so reasonably expected to result from the type of wrong complained of that they do not need to be proved; specifically compensatory damages for harm that frequently result from the tort for which a party has sued
Mitigation-of-Damages Doctrine – the principle inducing a plaintiff, after an injury or breach of contract, to make reasonable efforts to alleviate the effects of the injury or breach, or else the plaintiff’s recovery may be reduced
Statutory Damages – damages provided by statute as distinguished from damages provided under the common law
Multiple Damages – statutory damages that are a multiple of the amount that the fact-finder determines to be owed
Double Damages – damages that, by statute, are twice the amount that the fact-finder determines is owed or twice the amount of actual damages
Treble Damages – damages that, by statute, are three times the amount. of actual damages that the fact-finder determines is owed
Accumulative Damages – statutory damages allowed in addition to amounts available under the common law
Writ of Inquiry – to determine the amount of damages suffered by a plaintiff who has won a default judgment on an unliquidated claim
Types of Damages § 1:
Damages to Real Property (land and buildings):
Fee Damages – awarded to the owner of property abutting an elevated railroad for injury caused by the railroads construction and operation to compensate damages to property owner’s easements of light, air, and access, which are parts of the fee
Land Damages – a payment by the government for property it has taken under eminent domain, which must be fair both to the person whose property is taken and to the public, who must pay for it
Severance Damages – in a condemnation (eminent domain) case, compensation awarded to a landowner for the loss in value of the tract that remains after a partial taking of the land
Temporary Damages – damages for injury to, or trespass on, real property caused by intermittent or occasional wrongs that are continuing in character and would require successive actions to make the plaintiff whole, the amount of the recovery being limited to those damages which have accrued to date of suit
Types of Damages That Are Uncertain and Not Immediately Measurable:
Discretionary Damages – not precisely measurable (i.e. mental anguish, pain and suffering, etc.) but are determined by a jury
Future Damages – awarded to an injured party for an injury’s residual or projected effects (i.e. a reduction in a person’s ability to function, expected pain and suffering, loss or impairment of earning capacity, projected medical expenses)
Hedonic Damages – for loss of enjoyment of life or of life’s pleasures
Cosmetic Damages – The amount awarded to compensate for personal disfigurement
Irreparable (Nonpecuniary) Damages – in the law of injunctions, an injury that cannot be satisfactorily or completely compensated with money, so that to refuse the injunction would be a denial of justice
Permanent Damages – damages for past, present, and future harm that cannot be avoided or remedied; technically, injury in real estate which is permanent in character, so that all the damages, whether present, past, or prospective must be recovered in a single action
Special Damages – damages that are alleged to have been sustained in the circumstances of a particular wrong, which must be specifically claimed and proved
Speculative Damages – damages that are so uncertain to occur that they will not be awarded
Uncertain Damages – damages that are not clearly the result of a wrong; the uncertainty refers to allowing recovery for the damages, not to the amount
Unliquidated Damages – damages not agreed on by the parties, and that cannot be determined by a fixed formula and must be established by a judge or jury
Subsequent Damages that Resulted from the Initial Injury:
Consequential Damages – losses that do not flow directly and immediately from an injurious act but that result indirectly from the act
Continuing Damages – ongoing damages arising from the same injury, or damages arising from the repetition of similar acts within a definite period
Intervening Damages – continuing damages to an appellee that accrue during the pendency and prosecution of an unsuccessful appeal
Prospective Damages – future damages that, based on the facts pleaded and proved by the plaintiff, can reasonably be expected to occur
Proximate Damages – compensation for reasonably foreseeable harm that directly, immediately. and naturally results from the wrongful act
Types of Contract Damages – remedies available for breach of contract:
Benefit-of-the-Bargain Damages – damages a breaching party to a contract must pay to the aggrieved party, equal to the amounts that the aggrieved party would have received, including profits, if the contract had been fully performed
doctrine of constructive service – the doctrine that an employee unlawfully dismissed from employment who holds himself ready and willing to perform the work for which he was employed shall be regarded in law as having actually performed it, and may sue on the breached contract for the wages that he or she would have earned during the remaining contract period
Expectation Damages – compensation awarded for the loss of what a person reasonably anticipated from a transaction that was not completed
Foreseeable Damages – damages a breaching party knew or should have known when the contract was made would likely result from a breach
Liquidated Damages – an amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches
Nominal Damages – where no substantial loss occurs, however a tort or breach of contract occurred and the action is filed in order to make the existence of right known, so as to deter future violations
Reliance (Loss) Damages – damages awarded or reimbursement for losses incurred by the plaintiff in reliance on the contract, to restore the plaintiff to the economic condition the plaintiff enjoyed before the contract was formed; violation of trust or confidence that was depended on, acitonable as fraud, deceit, and/or a granting of promissory estoppel
Damage Adjustments Demanded After the Judgment in the Initial Trial:
Damages Ultra – additional damages claimed by a plaintiff who is not satisfied with the amounts the defendant paid into court
Excessive Damages – an award of damages by a verdict which appears to have been given under the influence of passion or prejudice; an award so large as to shock the judicial conscience, out of proportion to the damages proved
Inadequate Damages – damages insufficient to fully and fairly compensate the parties; damages bearing no reasonable relation to the plaintiff’ s injuries, indicating prejudice, mistake, etc.
Damages Used When Defendant Acted with Malicious Intent:
Punitive Damages – awarded in addition to actual compensatory damages as a fine imposed as a form of punishment when the defendant acted with recklessness, malice, or deceit, or oppression against the plaintiff(s)
Rescissory Damages – used primarily when the defendant’s fiduciaries unjustly enriched themselves by exercising their fiduciary authority deliberately to extract a personal financial benefit at the expense of the corporation’s shareholders; the amount of damages measured by the fair value of the stock at the time of judgment, awarded to restore a plaintiff(s) to the position occupied before the defendant’s wrongful acts, including either returning the property to the original owner or if that is not possible then to pay the monetary value of the property to the owner
Restitution Damages – damages awarded to a plaintiff when the defendant has been unjustly enriched at the plaintiff’s expense
Enhanced Damages – patent infringement ~3x the compensatory damages depending on defendant’s conduct
Types of Damages Explicit to Businesses:
Headstart Damages – damages for profits lost by a corporate plaintiff because of competition from a defendant who misappropriated or misused the plaintiff’s property
Incidental Damages – commercial term for consequential damages; losses reasonably associated with or related to actual damages
Lost Profits Damages – a measure of damages that allows a seller to collect the profits that would have been made on the sale if the buyer had not breached a contract or commit a tort
Lost-Volume Damages – amount of profit lost because of lower sales
§ 4 – Provide Notice, then file a Claim:
Provide “Notice” – an essential element of “due process”; ensure all parties are property notified:
Types of Notices essential to (Court) Procedure:
Notice of Appeal – filed with a court (according to statute), stating intention to appeal a trial court’s judgment, order, or decree and the relief sought; the clerk sends copies to all parties’ attorneys and to court of appeals
Notice-of-Alibi Rule – a criminal defendant who intends to call an alibi witness at trial must give notice of who that witness is and where the defendant claims to have been at the time of the alleged offense; the government is, in turn, is must give due notice to the defendant of any witness it intends to call to rebut the alibi testimony
Types of Notices mentioned in the UCC:
File a Claim – a legal demand for compensation, payment, or reimbursement, for a loss or injury caused by a breach of contract or a tort
General Legal Terms Pertaining to Claims:
Claimant – one who claims or makes a claim; an applicant for justice; a plaintiff
Claims Adjuster – a person who makes a determination of the value of a claim against an insurance company for the purpose of arriving at the amount for which the claim will be settled
Claims Courts – a federal or state court for asserting claims against the government
General Terms for Various Types of Claims:
Ancillary Claim – a claim that is collateral to, dependent on, or auxiliary to another claim
28 USCA § 1367 – Supplemental jurisdiction
Supplemental Claim – a claim for further relief based on events occurring after the original claim was made
Antecedent Claim – a preexisting claim
U.C.C. § 3-303. VALUE AND CONSIDERATION.
Apportionable Claim – a claim for economic loss or damage to property where, more than one wrongdoer is liable in proportion to his or her responsibility for the harm done
Honest Claim – made by someone who believes they have a right to something or that there is a chance that such right exists
Liquidated Claim – a claim with a definite amount that was agreed upon, can easily be determined, or has already been determined
Matured Claim – a claim based on a debt that is due for payment
Unliquidated Claim – a claim whose existence or amount is not agreed upon by the parties; or that cannot determined by applying rules of law or mathematical calculation
Various Types of Claims:
Claim Against Decedent’s Estate – a debt that could have been enforced in a court against the decedent during his lifetime
Claim and Delivery – the name of an action to recover personal property wrongfully taken or held and, in some circumstances, to recover damages
Enhanced-Injury Claim – a cause of action in which a defendant’s liability stems from the defendant’s negligence or defective product that resulted in harm caused by another to be more serious than it would have been
Terms for Claims which have No Merit:
Colorable Claim – a claim that appears legally well founded, but may actually be false or invalid
False Claim -an assertion or statement that is untrue, especially overbilling
Fraudulent Claim – a claim for any benefit or payment based on an intentional fraudulent misrepresentation
Frivolous Claim – a claim that has no legal basis or merit
Stale Claim – a claim that is barred by the statute of limitations or the defense of laches
Types of Claims generally pertaining to Business & Commerce:
Commercial Tort Claim – business-related claim arising in tort pertaining, typically relating to fraud and conversion, etc.
Consumer Claim – a person’s legal claim based on having purchased defective goods or services for a noncommercial purpose
False-Association Claim – based on the wrongful use of a distinctive name, mark, trade dress, or other device to misrepresent sponsorship, origin of goods or services, or affiliation
Maritime Claim – a claim related to a ship or a carriage of cargo by ship
Types of Claims asserted after a Civil Action has been Commenced:
Claim (Prayer) for Relief – a complaint and any pleading which sets forth a claim, counterclaim, cross-claim, or third-party claim
Counterclaim – a cause of action within the defendant’s answer which may have been used to sue the plaintiff in a separate action; used in opposition to or as a setoff against the plaintiff ’s claim
Legal Terms pertaining to Counterclaims:
Recoupment – reduction of a plaintiff’s damages because of a demand by the defendant arising out of the same transaction (as opposed to a different transaction, which is a setoff)
setoff (offset) – a counter demand which a defendant holds against a plaintiff, arising out of a separate transaction than the plaintiff’s cause of action, which serves to counterbalance the amount otherwise owed
Types of Counterclaims:
Compulsory Counterclaim – if a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action
Permissive Counterclaim – does not arise out of the same subject matter as the opposing party’s claim or involves third parties over which the court does not have jurisdiction, and may be brought in a later. separate action
Cross-Claim – a claim asserted against a codefendant(s) or coplaintiff(s) in a case and that relates to the subject of the original claim or counterclaim
Third-Party Claim – a claim to property held by the defendant, set forth in a third-party complaint
§ 5 – Commence a Civil Action to enforce, redress, or protect a private or civil right:
“Civil Action” – Related Terms:
action – a civil or criminal judicial proceeding
lawsuit (“suit”) – a broader term than “action” for a judicial proceeding of a civil kind, in pursuit of a legal or equitable remedy
Types of Civil Actions § 1:
Action (Suit) in Equity – a civil suit that seeks (non-monetary) equitable relief (an injunction or specific performance) as opposed to damages (money)
action in rem – wherein the named defendant is real or personal property, to determine who owns the title, and who has rights in such property
action to quiet title – to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it
Possessory Action – an action to obtain, recover, or maintain possession of personal or real property, but not title to it
Action at Law – an action where the only relief obtainable, appropriate, or sought is a legal remedy (a money judgment to recover damages)
Actions to Recover Money Wrongfully Paid
Action Quasi In Rem – brought against a person, generally to subject certain property to the discharge of the claims asserted
The 11 Historical Common-Law “Forms of Action”:
Forms of Action (& Writs) for Breach of Contract or (non-written) Agreement:
Action of Account – violation of fiduciary relation or to recover certain fixed sum of money for business contract breach
Action of Covenant – to claim damages as a result of breach of contract, deed, or other covenant, to fine someone
Debt – liability based on breach of contract or agreement, for the purpose of claiming a fixed sum of money
Special Assumpsit – Breach of Contract
General Assumpsit – Breach of (non-written) Promise or Agreement
Forms of Actions to Recover Wrongfully Imprisoned, Detained, or Withheld Persons or Property (and damages):
Action of Ejectment – an owner or occupier who was wrongfully ejected recovers possession, damages, & costs
Action for Mesne Profits – following a successful act of ejectment, a suit brought by a landowner to recover from losses resulted from 1.) the use of the land during the wrongful occupation 2.) the costs of the ejectment
Federal Law Protects Indian Landowners from being Denied Right of First Refusal during Land Buyback Program
detinue – recover personal property” (movable or intangible assets, but not “real property” such as land or buildings)
Writ of Detinue – recover “personal property” (movable or intangible assets, but not “real property” such as land or buildings)
Trover – recovery damages for property wrongfully taken & sold, given away, lost, etc.
replevin – repossess personal property wrongfully taken, or persons wrongfully detained, imprisoned, or encumbered (i.e. probation)
“Extraordinary Writs” (for extraordinary relief) for Replevy (Habeas Corpus):
writ of habeas corpus – command that a prisoner (or detainee or probatee) be brought before the court to challenge the legality of their custody and demand their release
U.S. Code Title § 2241. Power to grant writ
U.S. Code Title 18 § 2254 – State custody; remedies in Federal courts
U.S. Code Title 28 § 2255. Federal custody; remedies on motion attacking sentence
personal replevin – a historical term for an action to replevy a person out of prison or out of another’s custody; replaced by the writ of habeas corpus
replevin in the cepit – an action for the repossession of property wrongfully taken and wrongfully detained
replevin in the detinet – an action for the repossession of property rightfully taken but wrongfully detained
replevin in the detinuit – an action for damages resulting from the wrongful taking and detention of goods that have since been returned to the owner
Writ of Deliverance – Order the Redeliver of Goods to the Owner
Trespass On The Case – action to recover damages which occurred as a consequence for another’s action or inaction such as negligence, fraud, slander, deceit, omissions, etc.
(Vicontiel) Writ of Trespass – Wrongful Entry on Another’s Real Property
Types of Actions pertaining to the Recovery of Real Property (Land and/or Buildings):
Local Action – an action that can be brought only in the jurisdiction where the cause of action arose because that is the only place such action could possible arise (i.e. involving real property)
Petitory Action – an action for the recovery of real property by showing an proving title to ownership
Penal Action – a civil action to prove a wrongdoer violated a statute, thereby subjecting the wrongdoer to pay a fine directly to the wronged party in addition to punitive damages
personal action – brought against a person (“in personam”) for recovery of debt, damages, or personal property relating to any type of breach of contract or tort; must be brought by the person injured, not his representative
Action ex contractu – a personal action arising out of a contract
Action ex delicto – a personal action arising out of a tort
Wrongful Eviction Action – a lawsuit brought by a former tenant or possessor of real property against one who has put the plaintiff out of possession, alleging that the eviction was illegal
Legal Precepts Adopted into U.S. Law from Europe:
Equity Jurisprudence – the legal science of applying the principles of fairness that supersede otherwise literal translation of common or statutory law
Counterbalancing Legal Considerations of a Court in Determining Equity:
Business Owners’ Equity – the aggregate of the owners’ financial interests in the assets of a business entity:
Perfect Equity – an equitable title or right that, to be a legal title, lacks only the formal conveyance or other investiture that would make it cognizable at law (i.e. the equity of a real-estate purchaser who has paid the full amount but has not yet received a deed)
Contravening Equity – a right or interest that is inconsistent with or contrary to a right sought to be enforced
Countervailing Equity – a contrary and balancing equity, equally deserving of consideration
Latent Equity – an equitable claim or right known only by the parties for and against whom it exists, or that has been concealed from one who is interested in the subject matter
Negative Equity – the difference between the value of an asset and the outstanding amount of the loan secured by the asset when the asset’s current value is less than the loan’s balance
Court of Chancery – the English court of equity, where one appealed to the “King’s Conscience”
Chancellor – a judge of a court of chancery
Lord High Chancellor – the highest judicial officer in England, speaker of the House of Lords, member of the Cabinet, and presides at appellate judicial proceedings
Master in Lunacy – a judicial officer appointed by the Lord Chancellor to conduct inquiries into the state of mind of people alleged to be incapable of handling their own affairs, and to ensure their property is properly managed for his or her benefit
Master of Chancery – an assistant of the chancellor having the function of performing judicial or ministerial acts, including inquiring into matters referred by the court, examining cases, taking oaths and affidavits, hearing testimony, and computing damages
Roman “Civil Republic” State Law – a “fixed body of statutes” designed to eliminate crime & secure private property rights
State Law Consists of Two Parts:
Adjective Law – the body of rules governing procedure and practice (“procedural law”)
(Rules of) Procedure – the judicial rule or manner for carrying on a civil class suit or criminal prosecution:
Proceeding – the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment
process – the means of compelling a defendant to appear in court (civil or criminal cases), and all the acts of the court from the beginning to the end of an action or proceeding
due process – the conduct of legal proceedings according to established rules, forms, and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case
Various Forms of Due Process:
Procedural Due Process – a regular course of justice, which is not unreasonable or arbitrary, with minimal requirements of notice and a hearing especially if the deprivation of a significant life, liberty, or property interest may occur, in pursuance of an effective remedy secured by the law and the state
Substantive Due Process – the doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective, and the freedom from arbitrary or capricious in making, interpreting, or enforcing the law
Economic Substantive Due Process – the doctrine that certain social policies, such as the freedom of contract or the right to enjoy property without interference by government regulation, exist in the Due Process Clause of the 14th Amendment, particularly in the words “liberty” and “property”
Essential Components of Due Process:
Due Notice – receiving “notice” is an essential component of “due process”, ensuring ensures a person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; (5) is considered as having been able to ascertain it by checking an official filing or recording
Fair Hearing – a judicial or administrative hearing conducted in accordance with due process
Practice – the procedural methods and rules used in a court of law
Substantive Law – creates, defines, and regulates the rights, duties, and powers of parties
Officer – holds a position of trust or authority (an “office”) in either the government, a private organization, or in the armed services
28 U.S.C. § 2671. “Employee of the government” (definition)
Officers of the Court – charged with upholding the law and administering the judicial system
Judge – a public official appointed or elected to hear and decide legal matters in in court; a judicial officer who has the authority to administer justice
Lawyer – someone licensed to practice law, and thus qualified to advise about legal matters, prepare contracts and other legal instruments, and represent others in court
Cause Lawyering – the practice of a lawyer who advocates for social justice by combining the activities of litigation, community organizing, public education, and lobbying to advance a cause past its current legal limitations and boundaries
practice of law – the professional work of a lawyer (i.e. conducting court cases, preparing transaction-related paperwork, preparing legal opinions, drafting estate-planning documents, advising clients)
Unauthorized Practice of Law – practice of law by a nonlawyer who has not been licensed or admitted to practice law in a given jurisdiction
Sheriff – usually an elected office, duties include custodian of the county jail, executes civil and criminal process, and carries out judicial mandates within the county
posse comitatus – a group of citizens summoned by a sheriff or other peace officer to assist him in maintaining order or making an arrest
Sheriff’s Sale –
Deputy Sheriff – an officer who, acting under the direction of a sheriff, may perform most of the duties of the sheriff ’s office
Marshal – judicial officer who provides court security, executes process (carries out orders), and performs other tasks for the court
The Five Books of Modern Germanic Civil Code:
Family Law – marriage, divorce, adoption, child custody and support, child abuse and neglect, paternity, assisted reproductive technology, and other domestic-relations issues
General Principle of Law – a principle recognized in all kinds of legal relations, regardless of the legal system to which it belongs, or the fundamental tenets of an individual law system
Law of Obligations – the category of law dealing with the modes of acquiring property in personam (relating to persons), particularly relations between the obligor and the obligee
Law of Property – the category of law dealing with proprietary rights in rem (relating to “things”), such as personal servitudes, predial servitudes, and rights of real security
Law of Status – the category of law dealing with personal or nonproprietary rights, whether in rem (relating to “things”) or in personam (relating to persons)
Carried throughout Europe by Royal Judeo-Danish Viking Order (Western Roman Catholic Germanic Empire)
Praetorium Law – magistrates responsible for identifying and framing legal issues in a case and for ordering a lay judge (judex) to hear evidence and decide the case in accordance with the formula
Praetor AErarius – a praetor connected with the treasury
Praetor Fideicommissarius – a special praetor having jurisdiction over cases involving trusts
Praetor Peregrinus – a praetor who decided cases between citizens and foreigners and cases between foreigners
Praetor Tutelaris – a praetor who dealt with the affairs of minors
Praetor Urbanus – a praetor who decided cases between citizens
Admiralty Law – international commercial law exercising jurisdiction over maritime issues:
Commerce – the exchange of goods and services, especially on a large scale involving transportation between cities, states, and countries
Droits of Admiralty – the Lord High Admiral’s rights to goods which have been abandoned or captured at sea in time of war by a non-commissioned ship, to be redistributed to the public
Common Law – body of royal decrees, customs, and judicial decisions based on moral reason instead of statutes or constitutions
Common Law Pleadings
right to homestead (“homestead exemption”) – the right to occupy land for use as a home, with the land, house, and outbuildings remaining exempt from execution and forced sale for collection of a debt by creditors
declaration of homestead – a statement filed with the county recorder, describing the property and showing the world that the occupant claims their homestead exemption rights in the property
homestead – an artificial estate in land, devised to protect the possession and enjoyment of the owner against the claims of his creditors, by withdrawing the property from execution and forced sale, so long as the land is occupied as a home; includes the house, outbuilding , and adjoining land
homesteader – the claimant, who either acquires or occupies, a homestead
Cultural Roots of Indo-European Systems of Law and Equity:
“Scottish Rite” founded by the Picts and Gaels 800-900 A.D.
Law Merchant – a system of customary law (modern day U.C.C.) that developed in Europe during the Middle Ages and regulated the dealings of mariners and merchants in the commercial countries of the world until the 17th century
Law of Shipping – the part of maritime law relating to the building, equipping, registering, owning, inspecting, transporting, and employing of ships, along with the laws applicable to shipmasters, agents, crews, and cargoes
Law of the Flag – the law of the country whose flag is flown governs a ship’s affairs
Laws of the Barbarians – customary laws of Germanic tribes during the Middle Ages
Law of the Bugundians – the law of the (Germanic) Burgundians, first published about AD. 495
Law of the Visigoths – early 6th century code of Roman law applied to Hispano-Roman and Gallo-Roman peoples ruled by the Germanic Visigoths
Salic Law – principal compilation of early Germanic law developed by Salian Franks
Presentment of Englishry –
Historical Legal Dialects:
Law French – the corrupted form of the Norman French language that arose in England in the centuries after William the Conqueror invaded England in 1066, being used for centuries afterward
Law Latin – corrupted form of Latin (mixed with French and English) used in law and legal documents, including writs, royal charters, and private deeds
§ § of Law Embedded into U.S. Law Pursuant to the American Revolution:
The First Amendment Re-Inforces Freedom for those Aligned with The Preamble:
“Fair Use”; Copyrighted Materials May Be Used “To Clarify Something” or for Educational Purposes
“Giving Money” (& other things) may be done as “A Form of Expression”
Filming Public Officials is a Well-Established Right
“First Amendment Activities” protected in Front of Shopping Centers
State Employees Swear to Uphold The U.S. Constitution and State Constitution – bound to uphold Local, State, and Federal Laws
Public Officials are “Liable” if they violate their Constitutional Oath
Erasure of “Sovereign Immunity” Legal Defense – administrators, officers, and lawmakers may be held accountable for violating civil rights
U.S. Embassies; Designed to Protect the Rights of People Overseas & to Stop Wars
The 14th Amendment guarantees “Equal Protection of the Laws” to Non-Citizens
Indian Country Law:
Legal Term Definitions pertaining to Indian Country § 1:
American Indian Tribe – a definable group with sociological, cultural, and familial links who resides on one reservation
(Indian) Treaty – a contract formally signed, ratified, or adhered to between two countries or sovereigns, or a contract between two or more states that is governed by international law
Reservation – a country’s formal declaration, upon signing or ratifying a treaty, that it becomes party to the treaty conditioned on the modification or amendment of one or more provisions of the treaty as applied in its relations with the other parties to the treaty
Indian Reservation – an area that the federal government has designated for use by an American Indian tribe, where the tribe generally settles & establishes a tribal government
Indian law – the body of law dealing with American Indian tribes and their relationships to federal & state governments, private citizens, & each other
§ § of The Constitution pertaining to Indian Country – coming soon.
Bureau of Indian Affairs – a unit in the U.S. Department of the Interior responsible for helping Indian and Alaskan native people manage their affairs under the trust relationship with the U.S. and for promoting programs for their benefit
Commerce with the Indian Tribes – governed by a separate set of laws known as Admiralty
Indian Marriage, Adoption, and Divorce – subject to local laws and established customs
Indian title – a right of occupancy, constituting possession rather than ownership, that the federal government grants to an American Indian tribe based on the tribe’s immemorial possession of the area
Tribal Court – a quasi-independent court composed of tribal members, usually situated on a reservation and varying in procedure according to local custom
Tribal-Exhaustion Doctrine – the general principle that when an Indian tribal court has jurisdiction, the parties must pursue all remedies available under tribal law before turning to nontribal courts
Indian Country – all land within the borders of any Indian reservation together with the land occupied by any Indian community not on a reservation
Indian Allotment – a conveyance of land by the U.S. to an individual Indian or to a tribe, the title of which is held in trust by the U.S.
Indian Land – land owned by the U.S. but held in trust for & used by the American Indians
Tribal Land – any part of an Indian reservation not allotted to or occupied by individual Indians but instead held in common by tribal members
Supreme Court Rulings affecting Indian Country:
National Farmer’s Union Ins. Co. v. Crow Tribe – unedited
Pre-Contact Indian Country Political Associations:
19 Pueblo Indian Tribes – coming soon
The Pueblo Core Values
California Indians
Desert Southwest American Indian Tribes – coming soon
Great Plains Tribes – coming soon
The Oceti Sakowin (“7 Fires”) – Siouan-Speaking Great Plains Tribes – coming soon
The Iroquois Confederacy – includes the Mohawk, Onondaga, Oneida, Cayuga, Seneca, and Tuscarora tribes
The Great Law of Peace – the legal system of the Haudenosaunee (Iroquois) Confederacy
jurisdiction – a gov’t’s power to exercise authority over all persons and things within its territory, and a court’s power to decide a case or issue a decree
Subject-Matter, Personal, & Territorial Jurisdiction:
personal jurisdiction – a court’s power to bring a person into its adjudicative process; jurisdiction over a defendant’s personal rights rather than merely over property interests
“Persons” and “Parties” – litigation terms:
Party – a person interested in the outcome of litigation, who may or may not be a party of record, &/or a person who has engaged in a transaction
Natural Person – a human being
Artificial Person – has rights but not privileges or immunities, and may be held liable:
corporation – an artificial, intangible entity acting as a single person distinct from the shareholders who own it, existing only in contemplation of law; operated by an association of persons who have the power, in accordance with the corporation’s constitution and bylaws, to contract, issue stock, and form lawsuits and legal defense in favor of the person
Body Politic (and Corporate) – a body of Citizens and the public corporation that governs them under a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by laws for the common good
Nonstock Corporation – a “membership corporation” not organized for profit, which does not issue shares of stock as evidence of ownership, but instead is owned by its members, who have no ownership or proprietary interest in the corporation, which operates in accordance with a charter or agreement
Nonprofit Corporation – a corporation without stockholders, created for or devoted to charitable purposes or supported by charity, usually afforded special tax treatment
Private Corporation – founded by and composed of private individuals principally for a nonpublic purpose (i.e. manufacturing, banking, railroad corporations (including charitable and religious corporations), whose stock is not traded on the stock market
Public Corporation – created by the state as an agency in the administration of civil government, and managed by a publicly appointed board
municipal corporation – a public corporation created for political purposes and endowed with political powers to be exercised for the public good in the administration of local civil government
Town – a center of population that is larger and more fully developed than a village, but that (traditionally speaking) is not incorporated as a city
Village – a modest assemblage of houses and buildings for dwellings and businesses or a municipal corporation with a smaller population than a city
Organization – a body of persons formed to engage ina common activity or to pursue a common purpose
Association – an unincorporated collection of persons with no legal existence independent of its members; if it has sufficient corporate attributes (i.e. centralized management, continuity of existence, limited liability), it may be classified and taxed as a corporation
Interest Group – an association of people who join together to try to influence popular opinion or government action
Partnership – a voluntary association of two or more persons who jointly own and carry on a business for profit as co-owners
Pressure Group – an interest group or an organization that engages in a campaign to sway public opinion and change government policy
Special Interest Group – an organization that seeks to influence legislation or govern policy in favor of a particular interest or issue, especially by lobbying
Political-Action Committee – An organization formed by a special-interest group to raise and contribute money to the campaigns of political candidates who seem likely to promote its interests; a group formed by a business, union, or interest group to help raise money for politicians who support the group’s public-policy interests
State – a system of relations by which jurisdiction and authority are devised and maintained by a community of politically organized people aiming to secure the prevalence of justice via self-imposed law
Types &/or Conditions of States:
Client State – a country that is obliged to cede some control of its external relations to some foreign power or powers
Code State – a state that has procedurally merged law and equity into one system, and having only one form of civil action
Composite State – a state that comprises an aggregate or group of constituent states
Federal State – wherein the sovereignty of the entire state is divided between the central or federal government and the local governments of the several constituent states, and the external international relations of all member states is handled by the central government
Imperial State – a composite state wherein the central government possesses sovereignty from and over the states
Failed State – has lost of physical control of its territory, ability to provide reasonable public services, &/or having an erosion of legitimate authority
Free State – a political community organized independently of all others
Microstate – consists of a small territory and a small population and that is recognized as a state for international-law purposes
Sovereign State –
Terms for a State Located along the Coast:
Coastal State – a country that borders on an ocean or sea
Littoral State – a state that has a coast
Litigant – one of several types of plaintiffs or defendants in a court action
Technical Terms for Various Types of Litigants on the Offense:
Complainant – a person who files a formal accusation of a crime or a plaintiff in a civil suit (court of equity)
Plaintiff – a person who brings a civil suit in a court of law
prosecutor – an attorney who represents the state or federal government in criminal prosecution, or a private person who carries on a criminal or civil action
Appellant – a party who appeals a lower court’s decision, usually seeking reversal of that decision
Petitioner – a party who presents a petition to a court or other official body, especially when seeking relief
Technical Terms for Various Types of Litigants on the Defense:
appellee – a party against whom an appeal is taken from a lower court to a higher court & whose role is to respond to that appeal
Defendant – a person sued in a civil proceeding or accused in a criminal proceeding
Respondant – the party against whom an appeal is taken to a higher court; the appellee or the defendant in a suit in equity
Third-Party Defendant – a party brought into a lawsuit by the original defendant
subject-matter jurisdiction – jurisdiction over the nature of the case (the material which is the subject of a lawsuit) and the type of relief sought
in rem Jurisdiction – a court’s power to adjudicate the rights to a given piece of property (i.e. action to quiet title; civil forfeiture) as opposed to the rights of a person.
territorial jurisdiction – jurisdiction over cases arising in or involving persons residing within a defined territory
Federal, State (County, Municipal), & Tribal Courts – what’s the difference?
state courts – includes county, municipal, superior, and other courts
Jurisdiction of State Courts
municipal court – a local court whose territorial jurisdiction is limited to the municipality, and subject matter jurisdiction is confined to enforcing municipal ordinances, petty offenses, and small civil cases
Various Types of State Courts:
county court – a state court with powers and jurisdiction dictated by a state constitution or statute
State Appellate Courts; for Appealing “Superior” Court Cases
State Supreme Courts; Operate under State Constitutions & State Interests
federal courts – jurisdiction over claims arising under the U.S. Constitution, an act of Congress, or a treaty. or cases involving diversity of citizenship of parties
Article III “Constitutional Courts” – tribunals established to handle litigation, having greater independence from the other two branches of government
U.S. Supreme Court – located in Washington D.C., reviews unprecedented cases and announces Supreme Court Decisions which may be cited in court
Supreme Court Rulings Neatly Categorized:
Batson v. Kentucky (1986) – an opposing party cannot use a peremptory challenge to exclude a potential juror on the basis of race, ethnicity, or sex
Brown v. Board of Education (1954) – ended segregation in school, declaring that separate educational facilities are inherently unequal
Erie Railroad Co. v. Tompkins (1938) – In interpreting the common law, the federal court is bound by declaration of the highest state court on the state law
Supreme Court Rulings – use of highway for purpose of travel and transportation is a right which cannot be deprived (no license needed)
Supreme Court Rulings favoring Pro Se Litigants
Wallace v. Kato (2007) – for false arrest cases, the statute of limitations begins to run on the date of the arrest – not at the end of the criminal trial
U.S. Courts of Appeal for the Federal Circuit – review cases appealed from federal district courts, and in some cases from administrative agencies; aka “Circuit Courts”
U.S. Federal District Courts – original jurisdiction over virtually all cases, where the factual record is established, the only federal courts wherein attorneys examine and cross-examine witnesses; aka “Trial Courts”
U.S. Court of International Trade – nationwide jurisdiction over civil actions arising out of the customs and international trade laws of the U.S.
Article I “Legislative Courts” – have administrative, quasi-legislative, and judicial duties used for the express purpose of helping to administer specific congressional statutes
U.S. Court of Appeals for the Armed Forces – worldwide appellate jurisdiction over members of the armed forces on active duty and other persons subject to the Uniform Code of Military Justice
U.S. Court of Appeals for Veterans Claims – reviews Board of Veterans’ Appeals decisions appealed by claimants who believe the Board erred in its decision
U.S. Tax Court – a trial court to expeditiously resolve disputes between taxpayers and the Internal Revenue Service
U.S. Court of Federal Claims – Handles Complex, Often Large, Unprecedented Cases
Jurisdiction of Federal Courts:
diversity jurisdiction – jurisdiction of a federal court in all civil actions when parties are from different states (or foreign states) and the matter in controversy exceeds $75,000 in value
Diversity of Citizenship – A basis for federal-court jurisdiction that exists when (1) a case is between citizens of different states, or between a citizen of a state and an alien, and (2) the matter in controversy exceeds ~$75,000
federal-question jurisdiction – exercise of federal-court power over claims arising under the U.S. Constitution, an act of Congress, or a treaty
Tribal Courts – & Legal Information
equity jurisdiction – a court’s power to grant relief not available at law when justice so demands
Original and Appellate Jurisdiction:
appellate jurisdiction – the power of a court to review and revise a lower court’s decision
original jurisdiction – a court’s power to hear and decide a matter before any other court can review the matter
Judicial Proceedings
Terms used in Civil and Criminal Proceedings:
All About Jury Trials:
How to Demand either a Jury Trial or Bench Trial:
Jury Fee – a (usually minimal) fee that a party to a civil suit must pay the court clerk to be entitled to a jury trial
Types of Juries Available:
General Descriptive Terms for Various Types of Juries:
Foreign Jury – a jury obtained from a jurisdiction other than that in which the case is brought
Impartial Jury – a jury that has no opinion about the case at the start of the trial and that bases its verdict on competent legal evidence
Jury of Peers – a jury comprised of persons equal in status, rank, &/or character as the accused
Jury of the Vicinage – a jury from the county (“vicinity”) where the crime occurred
Mixed Jury – a jury composed of both men and women or persons of different races
Petit “Common” Jury – usually consisting of 6 or 12 persons, summoned and empaneled in the trial of a specific case
Types of Juries in Criminal Cases:
Anonymous Jury – a jury whose identities cannot be disclosed because, for example, the individual jurors may be subjected to intimidation or violence
Death-Qualified Jury – a jury that is fit to decide a case involving the death penalty because the jurors have no absolute ideological bias against capital punishment
Life-Qualified Jury – in a case involving a capital crime, a jury selected from within a jury panel wherein the judge has excluded anyone unable or unwilling to consider a sentence of life imprisonment, instead of the death penalty, if the defendant is found guilty.
Types of Juries used in Specific, Complex Cases:
Blue-Ribbon Jury – consists of persons of particular advanced education or special training in order to hear a complex civil case or to sit in a grand juries
Dual Juries – two separately impaneled juries for two (or two sets of) defendants in a single trial — some evidence being common to both defendants, and some not — in which each jury renders a separate verdict
Sheriff’s Jury – selected and summoned by a sheriff to hold inquests for various purposes (i.e. assessing damages, ascertaining the mental condition of an alleged lunatic, or to render verdict re: ownership of personal property seized under execution
Special or “Struck” Jury – usually at a party’s request, “striking a jury” from a panel drawn specifically for an unusually important or complicated case, followed by allowing parties to alternate in striking from a list any person whom she does not wish to have on the jury
Types of Juries used to Determine Cause of Death:
Coroner’s Jury – summoned by a coroner to make an inquiry into the cause of death of a person
Inquest Jury – summoned by a coroner, medical examiner, sheriff, or other ministerial officer in order to determine the cause of death which involved violence or other unlawful means
Types of Juries that Deliver Non-Binding Verdicts:
Advisory Jury – a jury impaneled in a case in which the parties are not entitled to a jury trial as a matter of right, wherein the verdict is not binding on the case
Shadow Jury – a group of mock jurors paid to observe a trial and report their reactions to a jury consultant hired by one of the litigants, to provide counsel with information about the jury’s likely reactions to the trial
Summary Jury Trial (SJT) – a court-ordered settlement technique sometimes used by the federal courts in complex cases that would otherwise require a lengthy jury trial wherein which the parties argue in a mini-trial before a mock jury, generally in order to settle the case based upon the nonbinding verdict presented by the jurors
Types of Juries used Historically:
Homage Jury – historically, a jury in a court baron, consisting of tenants who made homage to the lord
Jury de medietate linguae – historically, a jury comprised of half natives and half aliens, allowed when one of the parties is an alien (foreigner)
Jury of Matrons – a jury of “discreet and lawful women” impaneled to try a question of pregnancy, as when a woman sentenced to death pleads, in stay of execution, that she is pregnant, to determine if she is feigning pregnancy
Amendment VII – guarantees “right of trial by jury” and “common rules of evidence” for civil suits
Jury Selection Process:
Jury Panel Selection Process:
Jury Commissioner – an official who is responsible for compiling jury lists, drawing jurors for a panel, and then summoning them for duty
Jury Duty – the obligation to serve on a jury or the act thereof
Jury List – a roster of all people within a jurisdiction who possess the necessary legal qualifications for jury duty, or a list of people who have been placed on a jury panel
Jury Panel aka “Venire” – the jury (list) empaneled for the trial of a particular case
Jury Process – the papers served on or mailed to potential jurors to compel their attendance, and the procedure by which jurors are summoned and their attendance is enforced
Jury Shuffle – a process for rearranging jury panel members whereby cards are shuffled to rearrange them before voir dire (juror elimination) begins
Jury Wheel – a physical device or electronic system used for storing and randomly selecting names of potential jurors
Veniremember – a prospective juror; a member of a jury panel
Jury Selection – the process of systematically eliminating potential jurors from a jury panel:
Voir Dire (Examination) – a preliminary examination of a prospective juror by a judge or litigant(‘s counsel) to decide whether the prospect is qualified and suitable to serve on a jury
(Types of) Challenges to Eliminate Jurors:
As-Applied Challenge – a claim that a law or governmental policy, though constitutional on its face, is unconstitutional as applied, usually because of a discriminatory effect
Batson Challenge (and Batson Rule) – object that an opposing party has used a peremptory challenge to exclude a potential juror on the basis of race, ethnicity, or sex
Challenge for Cause – a party’s objection to a juror, supported by a specified reason, which should disqualify the potential juror
Peremptory Challenge – a final, absolute challenge to a juror that a party may exercise without having to give a reason
Talesmen – a juror summoned from among bystanders in the courthouse to complete a jury panel when, because of challenge or other cause, there is not a petit jury to determine a civil or criminal case because the original jury panel has been exhausted
General Legal Terms pertaining to Juries:
Jury Box – that portion of the court room in which the jury are seated during the trial of a case
Sequestration of Jury – a court order prohibiting the members of a jury from having public contact, reading newspapers, watching television (etc) while the trial is in progress until after they deliver their verdict
Jury Speech – the opening or closing statement of counsel in a jury trial
Deliberation and Verdict:
Deliberation (Deliberate) – carefully considering issues and options before making a decision or taking some action; especially, the process by which a jury reaches a verdict, as by analyzing, discussing, and weighing the evidence after closing arguments
Jury Question – a question of fact, which a jury decides, as opposed to a question of law, decided by a judge
Jury Room – the room in a courthouse wherein the jury conducts its deliberations
Jury Verdict Form – a document announcing the judgment or verdict of the jury
Polling the Jury – a procedure whereby each juror who participated in the verdict is asked individually if they support the verdict, or if they were coerced or induced into agreeing
Presiding Juror – usually elected by the jury at the start of deliberations, chairs the jury during deliberations and speaks for the jury in court by announcing the verdict
Request for Instructions – a written request to the judge for jury instructions, made by either party, usually after both sides have rested
Special Interrogatory – a written question about the facts (as a form of discovery), directed to the jury, whose answer is required to supplement a general verdict (upon request for a special verdict or special findings)
Types of Verdicts a Jury can Render:
Hung Jury – a jury that cannot reach a unanimous verdict or a verdict supported by the requisite number or jurors by the required voting margin
Jury Nullification – a jury’s knowing and deliberate refusal to apply the law, generally because the law itself is contrary to the jury’s sense of justice, morality, or fairness
Jury Pardon – a rule that permits a jury to convict a defendant of a lesser offense than the offense charged if sufficient evidence exists to convict the defendant of either offense
Jury Instructions (types) – given by a judge to a jury concerning the law of the case
“Obstructions of Justice” associated with Jury Trials:
Embracery (tampering) – the crime of attempting to corrupt, influence, instruct, or induce a judge or jury other than by evidence or arguments in open court (i.e. threats, bribes); “jury-tampering”
Jury-Fixing – illegally procuring the cooperating of one or more jurors to influence the outcome of the trial
Packing a Jury – contriving to have a jury composed of persons who are predisposed toward one side or the other
Rogue Jury – ignores the law and evidence, reaching a capricious verdict based on unrevealed, deeply held prejudices; on undue sympathy or antipathy toward a party; or on chance (as by tossing a coin), resulting in inappropriate awards, punishments, convictions, or acquittals
Separation of Jury – the failure of the officer in charge of the jury to keep them together after they have retired for deliberation, sometimes is in itself ground for a new trial
Stealth Juror – deliberately fails to disclose a relevant bias in order to qualify as a juror and bases a decision on that bias rather than on the facts and law; may be fined or prosecuted for perjury
Court Rulings, Orders, Decrees, Judgments, etc.:
Court Order – a written final judgment or interlocutory direction or command issued by a court
Types of Court Orders § 1:
Final Judgment – last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs and enforcement of the judgment
Subpoena – command a person to appear in court, subject to a penalty for failing to comply
Show Cause Order – directs a party to appear in court & explain why the party took (or failed to take) some action or why the court should or should not impose some sanction or grant some relief
Peremptory Mandamus – an absolute command to the defendant after they default on, or fail to show sufficient cause in answer to, an alternative mandamus
Additur – with the defendant’s consent, increases the jury’s award of damages to avoid a new trial on grounds of inadequate damages
Interlocutory Order – a judicial determination found within a case that does not constitute a final resolution of the whole controversy
Mandate (i)- judicial command directed to an officer of the court to enforce a court order
Mandate (ii)- order from an appellate court directing a lower court to take a specified action
Minute Order – recorded in the minutes of the court rather than directly on a case docket
Remittitur – an order requiring a Plaintiff to choose between a new trial or lowering the damages amount below what the jury had awarded
Writs – written court orders commanding the addressee to do or refrain from doing a specified act:
Various Types of Writs, Generally:
Conventional Writ – standard writ seeking damages to be recovered
Original Writs – initial writs used to commence an action – usually the Summons
Warrant – a writ used to direct or authorize someone to do an act, usually a law enforcer to make an arrest, a search, or a seizure
Subsequent Writs – Writs issued *After* Original Writs
“Patent Writs” & “Close Writs”- “Publicly-Accessible Writs” & “Classified Writs”
extraordinary writs – issued by a court exercising unusual or discretionary power; used for providing extraordinary remedies:
Writ of Certiorari – issued by an appellate court, directing a lower court to deliver the record in the case for review
writ of mandamus – issued to compel performance of a particular act by a lower court or a governmental officer or body, usually to correct a prior action or failure to act
Alternative Mandamus – issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it
Writ of Consultation – issued by an appellate court ordering a lower court to proceed in a matter the lower court previously refused to hear
Writ of Prohibition – issued by an appellate court to prevent a lower court from exceeding jurisdiction or to prevent a nonjudicial officer or entity from exercising a power
All Types of Writs § 1:
(Writs of) Injunction – a variety of writs to command or prevent an action that the plaintiff has shown to be necessary to prevent injury
Writs for Releasing Inmates or Persons in Custody:
Writ of Deliverance – court’s order directing that a person in custody be released
Writ of Habeas Corpus – command that a prisoner (or detainee or one on probation) be brought before the court to challenge the legality of their custody & demand their release
Writs for Claiming Damages or Fining Someone Due to Breach of Written or Implied Contract:
Writ of Covenant – claim damages as a result of breach of contract, deed, or other covenant, to fine someone
Writ of Debt – to claim a fixed sum of money due to breach of written or implied contract
Writs for Recovering Property, Estates, or Damages as a Result of Loss Thereof:
Writs Pertaining to the Recovery of Land &/or Damages as a Result of Unlawful Loss of Land:
Writ of Ejectment – used for the recovery of land
Writ of Entry – allows a person wrongfully dispossessed of real property to enter & retake the property
Writ of Escheat – allows a lord to take possession of lands that had reverted to him when a tenant dies without heirs
Writ of Estrepement – to prevent waste by a tenant while a suit to recover the land is pending against the tenant (replaced by injunction)
Proprietary Writ – ownership of something is sought to be restored, whether lands, goods, or money, including writs of debt, detinue, & account
Writ of Attachment – orders legal seizure of a property or person to satisfy a creditor’s claim
writ of execution – directs officers to enforce a judgment, often, but not always, by seizing & selling the judgment debtor’s property
Writs to Recover Property (estates) of Ancestors/Relatives:
Alternative Writ or Optional Writ – command the defendant do a specified thing, or show why it has not been done or should not be done
Writ of Ne Exeat – restrain a person not to leave the jurisdiction of the court or the state
Writs Issued by Higher Courts Mandating Lower Courts:
(Writ of) executione judicii – directs a judge of an inferior court to issue execution on a judgment in that court, or return reasonable cause why the judge has delayed execution
Writ of Error – directs a lower court to deliver the record in the case for review
Writ of Certiorari – Extraordinary writ similar to Writ of Error but available when Writ of Error is not
Writs to Counteract Various Forms of Fraud:
Writ of Deceit – against one who deceives & damages another by acting in the other’s name
“Vicontiel” Writs & Writs of Capias – Directed to the Sheriff
Vicontiel (Sheriff/County) Writs founded on Torts:
(Vicontiel) Writ of Replevin – for repossession of personal property wrongfully taken or detained (withheld)
Writ of Distringas – orders the sheriff to seize jurors’ goods to compel them to appear for jury service
Writ of Exigent – to declare someone an outlaw &/or demand immediate summons
Writ of fieri facias – directs a marshal or sheriff to seize & sell a judgment debtor’s property to satisfy a money judgment
Writ of Justice – commands the Sheriff to do Justice when a Contract is breached
Writ of levari facias – order a sheriff to seize a judgment debtor’s goods & income from lands until the judgment debt is satisfied
Writ of Ventitioni – requires a sale of goods that were seized under an earlier writ
Writs of Replevin – return of property that has been taken to another county
Miscellaneous Writs:
Writ of Audita Querela – a judgment debtor seeks a rehearing due to newly discovered evidence or newly existing legal defenses
Writ of Conspiracy – to indict someone who wrongfully accused another of treason or a felony
Writ of coram nobis – correct a previous error to achieve justice when a judgment was rendered without full knowledge of the facts
Writ of Dower – to assign dower (inheritance of 1/3 of husband’s land upon his death)
Writ of Extent – seizure of property secured for the recovery of a debt
Writ of False Judgment –
Writ of Formedon – for claiming a right to an inheritance including land
Writ of Right – issued to enforce a right which exists
Uncategorized Writs
Writ of Association – directs a Clerk to assist justices & sergeants to ensure an adequate supply of commissioners for a court session
Writs that have been Abolished
History, Purpose, & Usage of Writs
Unsorted:
“Cease & Desist”; Halt Rights-Violating Activity of an Individual, Executive Branch Agency, OR Organization
“Restraining Order”; Keep Another “Person” Away from a Designated Perimeter
Dismissal – a court order for a case, motion, or prosecution to be terminated
“Stay of Execution”; Halt a Judge’s Order or Past Ruling by Submitting “Unconsidered Information” to the Federal Judicial System
“Notice of Constitutional Question”; Overturn Any Statute, Code, Ordinance (etc.) or Act of Congress Ever
“Rescission of Contract”; Exit a Written Contract if Full Terms & Conditions were Not Disclosed OR were Deceptively Confusing
Disposition –
judgment – final determination of rights and obligations of each party, or a formal declaration to the accused, with legal consequences
adjudication – may refer to the process of judicially deciding a case, or a court’s final judgment, usually made after the trial
declaratory judgment – declares conclusively the rights, duties, or status of the parties, but orders no executory or coercive relief
decree – modernly, synonymous with “judgment”
default judgment – rendered upon an omission by the defendant to take a necessary step in the action within the proper time
Ruling – a determination made during the course of a trial, or the final decision in a case
Evidence – testimony, documents, and tangible objects which prove or disprove the existence of an alleged fact
Burden of Proof –
Burden of Persuasion – a party’s duty to convince the fact-finder (judge or jury) to view the facts in a way that favors that party
Exhibit – a document, record, or other tangible object formally introduced as evidence in court
Fact – a deed; an act; that which exists and is real and true — which actually took place — not that which might not have occurred
preponderance of evidence – in civil suits, the party whose evidence is more convincing has a “preponderance of the evidence” on its side and must, as a matter of law, prevail in the lawsuit because it has met its burden of proof
Proof – the effect of evidence; the establishment of a fact by evidence
Sufficient Evidence – evidence such as will satisfy an unprejudiced mind of the truth of that which the court or jury has found to be the fact
Hearing – a judicial session, usually open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying
Administrative Law Hearings:
Daubert Hearing – conducted by federal district courts, usually before trial, to determine whether proposed expert testimony meets the federal requirements for relevance and reliability
Family Law Hearings:
Pretrial –
Deposition – a transcript of a witness’s out-of-court testimony, given under oath, usually before the hearing, in response to written interrogatories or oral examination
Interrogatories – written questions, which are a form of discovery, submitted to an opposing party in a lawsuit, or , in limited situations, to a witness in advance of trial
Pleadings – formal documents setting forth or responding to claims, allegations, denials, defenses, or charges
Pleadings (civil):
Initial Civil Pleadings:
Civil Complaint – commences the civil action, stating the basis for the court’s jurisdiction, the plaintiff’s claim, and specified demand(s) for relief
Amending or Adding Information to a Complaint that was Previously Filed
Petition – a formal written request presented to a court or other official body
Juvenile Petition – a juvenile-court petition alleging delinquent conduct by the accused
Petition for Highway – an application by property owners for the opening of a highway
Petition for Improvement – a property owner’s petition for the construction of a public improvement
Petition for Probate – to request the court to admit a will to probate
Petition in Intervention – to join the plaintiff in claiming what is sought or to join the defendant in resisting what is sought, or to take a position adverse to both the plaintiff and the defendant
Petition of Rights – for recovery of wrongfully detained property &/or person(s) held in custody
Referendum Petition – a petition demanding that newly proposed, or previously enacted, legislation be submitted to the people for their approval or rejection
Types of Petitions pertaining to Bankruptcy Court:
Types of Petitions pertaining to Patents:
Types of Petitions pertaining to Rehearings, Appeals, and Appellate Courts
Petition the Government for a Redress of Grievances
2. Answer – defendant’s first pleading, either to deny the allegations of the complaint, demur to them, agree with them, or introduce affirmative defenses intended to defeat or delay the lawsuit
Objection in Point of Law – a defensive pleading by which the defendant admits the facts alleged by the plaintiff but objects that they do not make out a legal claim
Pleadings (criminal):
Historical Pleadings Not Included or Replaced within current Fed. Rules:
Counter-Complaint – a complaint filed by a defendant against the plaintiff, alleging that the plaintiff has committed a breach and is liable to the defendant for damages
Demurrer – a pleading stating that although the facts alleged in a complaint may be true, they’re insufficient for the plaintiff to state a claim for relief or for the defendant to have to frame an answer
Demurrer Book – a record of the pleadings in an action which lead up to an issue of law; used by the court and counsel in formulating their argument as to why they came to a decision
Demurrer ore tenus – presented orally rather than as a written pleadings, often to point out a defect in the opponent’s case as grounds for a dismissal
Demurrer to Evidence – an admission that although the evidence is true, but argues that such facts do not, in law, establish a right to recover (replaced by Motion for Directed Verdict)
Demurrer to Interrogatory – when a witness refuses to answer a question, giving a reason for her refusal, she “demurs to the interrogatory”
General Demurrer – an objection pointing out a substantive defect in an opponent’s pleading (i.e. “lack of subject-matter jurisdiction”)
Speaking Demurrer – cannot be sustained because it introduces new facts not contained in the complaint
Special Demurrer – states grounds for an objection and specifically identifies the nature of the defect (i.e. the pleading is defective in form and thus violates the rules of pleading or it violates practice)
Joinder – uniting, into a single complaint, two or more elements of a lawsuit (i.e. joinder of claims; joinder of parties; joinder of issue), each of which could have been the basis for a separate suit
Joinder in Demurrer –
Joinder of Issue – a party’s written acceptance or adoption of an opponent’s issue, argument, or formerly disputed point as the basis of argument in a controversy, submitted jointly for decision
Replication – a plaintiff’s or complainant’s reply to a defendant’s answer or plea
Complaint for Modification – a post-final-decree motion asking the court to change one of its earlier orders
Issue – a material point or question arising out of the pleadings in a case, which is disputed by the parties and which they wish the court to decide
Issue of Law – a point on which the evidence is undisputed, however the parties disagree on the the law’s interpretation of the particular issue, and therefore they must rely on the court’s discretion
Every Type of Motion – request a specific ruling or order:
Legal Terms generally pertaining to Motions:
Affidavit – a voluntary declaration of facts, presenting a great deal of evidence, written down and sworn to by a declarant, usually before an officer authorized to administer oaths; a sworn statement
Discovery – in advance of trial, request documents and facts that are within the knowledge or possession of the other side
Brady Material – information or evidence that is favorable to a criminal defendant’s case and that the prosecution has a duty to disclose; the prosecution’s withholding of such information violates the defendant’s due-process rights
Jencks Act – defendant has the right to examine government papers to be better able to cross-examine or impeach government witnesses, but only after the witness has testified: 18 USC § 3500
Jurisdictional Discovery – discovery that is limited to finding facts relevant to whether the court has jurisdiction, sometimes allowed by a court prior to ruling on a motion to dismiss for lack of jurisdiction
Merits Discovery – discovery to uncover facts that support the claim or defense, or that might lead to other facts that will support the allegations of a legal proceeding
Reciprocal Discovery – the corresponding rights and duties of both sides of litigation to engage in discovery
Motion Day – a day regularly scheduled by courts or commissions to hear all motions, such as every Tuesday or the third Monday of the month
Movant – a party who makes a motion
Move – to make a motion to the court for a ruling, order, or some other judicial action
Notice of Motion – written certification that a party to a lawsuit has filed a motion or that a motion will be heard or considered by the court at a particular time; most courts require all motions to include a certificate of service, indicating that all parties have received due notice
Own Motion – a disposition made by a court or other tribunal during the course of a proceeding, without a party having requested it
Various Types of Motions, Generally:
Contradictory Motion – a motion likely to be contested or that the non-moving side should have an opportunity to contest
Cross-motion – a competing request for relief or orders similar, but contradictory to that requested by another party
Dilatory Motion – a meritless motion made solely to delay the proceedings
Enumerated Motion – directly related to the proceeding or the merits of the case
Ex Parte Motion – a motion made to the court without notice to the adverse party, that a court considers and rules on without hearing from all sides
Pretrial Motions – reschedule an appearance, request multiple forms of relief, compel discovery, suppress inadmissible evidence, etc.:
Calendar Motions – to Reschedule Court Appearances:
Motion to Advance – request an earlier hearing date
Motion to Continue – request a new trial date for a criminal case due to a logical reason (i.e. conflicted schedule, finding of new evidence, the case depends upon the rescheduling)
Motion to Reset Hearing – reschedule the hearing date
Pretrial Motions Pertaining to Transferring Venue to different court:
Motion to Transfer Venue – transfer the case to another district or county, usually due to improper jurisdiction or local prejudice
Motion to Remand – in a case that has been removed from state court to federal court, a party’s request that the federal court return the case to state court, usually because the federal court lacks jurisdiction or because the procedures for removal were not properly followed
Pretrial Motions Pertaining to Discovery:
(Pretrial) Motion to Compel Discovery – force the opponent to procure all evidence they plan to present during the proceedings
Motion for Protective Order – request the court protect you from a potentially abusive action by the other party, often pertaining to suppressing damaging evidence
Motion to Dismiss for Failure to Prosecute – dismiss case if prosecution cannot proceed, as when a critical witness or crucial evidence is missing & speedy trial deadline has passed
Motion to Suppress – prohibit the introduction of illegally obtained evidence at a criminal trial
Omnibus Motion – in Criminal cases, as a form of relief, a defense pretrial motion to suppress inadmissible evidence from being brought up during the trial
Motion in Limine – pretrial request that certain inadmissible evidence not be referred to or offered at trial
Omnibus Motion – to request multiple forms of relief
Motion to Sever – a party’s or defendant’s reasonable request to have all or some claims or defenses tried separately from those of coparties or codefendants
Byrd Affidavit – in criminal cases, a defendant’s affidavit in support of a motion to sever on the grounds that a codefendant will give exculpatory testimony for the defendant
Midtrial Motions – made during the proceedings, before the final judgment:
Midtrial Motions to Demand Opponent Amend a Vague or Incorrect Pleadings:
Motion to Strike – to delete insufficient defenses or immaterial, redundant, impertinent, or scandalous statements from an opponent’s pleading, or that that inadmissible evidence be deleted from the record & that the jury be instructed to disregard it
Motion for More Definite Statement – to request that the court require an opponent to amend a vague or ambiguous pleading to which the party cannot reasonably be required to respond
Motions to Compel Immediate Judgment (depending on various factors & Rule of Law):
Dispositive Motion – to decide a claim or case in favor of the movant without further proceedings
Ex Parte Motion – made to the court without notice to the adverse party, which the court then considers & rules on without hearing from all sides
Motion for Directed Verdict – request the court to rule in a party’s favor before the case is submitted to the jury, or after a contrary jury verdict, because there’s no legally sufficient evidentiary basis on which a jury could find for the other party
Motion for Judgment of Acquittal – upon criminal defendant’s request, at the close of the government’s presentment of evidence, to be acquitted because there’s not legally sufficient evidentiary basis. If granted, the government cannot appeal
Motion for Judgment on the Pleadings – to request the court rule in your favor based on the pleadings on file, without accepting evidence
Motion for Summary Judgment – request that the court enter judgment without a trial because the evidence is legally insufficient to support a verdict in the opponent’s favor
Motion of Course – request that the court may grant as a matter of routine, without investigating or inquiring further
Speaking Motion – to address matters not raised in the pleadings
Special Motion – to seek the court’s discretion rather than ruling as a matter of course
Interlocutory Application – to seek equitable or legal relief before a final decision
Motion to Withdraw – defendant’s request for a court’s permission to change the defendant’s plea or strike an admission
Posttrial Motions – made after a final judgment is entered (i.e. challenge or alter a ruling, amend paperwork, etc.):
Motions to Request a Re-Trial, Rehearing, or Appeal:
Application for Leave to Appeal – ask an appellate court to hear an appeal when the party has no appeal by right or when the party’s time limit for an appeal by right has expired
Motion for Leave to Appeal – request an appellate court review a relevant interlocutory order that was found to be irrelevant & thus was not admitted within the previous court’s trial
Motion for New Trial – request a court to vacate its final judgment & order a new trial due to insufficient evidence, newly discovered evidence, jury misconduct, etc. Often this motion is required before raising such a matter on appeal
Motion for Rehearing – request another hearing of a case, motion, or appeal usually to consider an alleged error or omission in the courts judgment or opinion
Motion for Repleader – an unsuccessful party’s posttrial motion asking that the pleadings begin anew because the opponent joined the issue on an immaterial point
Posttrial Motions to Contest, Alter, or Attain Relief from the Judgment:
Motion for Relief from the Judgment (a) – to necessarily relieve a party from a judgment due to reasonable cause
Motion in Arrest of Judgment – a defendant’s postjudgment motion in a criminal case claiming that a substantial error appearing on the face of the record invalidates the whole proceeding & the judgment
Motion to Alter or Amend the Judgment – within 10 days after a judgment, request the court change its judgment due to obvious error of law or fact
(Posttrial) Motion to Compel Discovery – after judgment, force the opponent to procure essential evidence, usually to determine the nature of the judgment debtor’s assets or to obtain testimony for use in future proceedings
coram nobis Motion – Exonerate a Person who was Unlawfully Convicted
Show-Cause Motion – to compel a litigant to appear in court & explain why they have failed to comply with a legal requirement
Posttrial Motions pertaining to Marriage & Child Custody:
Motion for Reduction – a posttrial motion to lessen the amount of child support payments
Motion to Modify – a post-final-decree motion requesting the court to change its previous child support, visitation, or similar order
Posttrial Motions to Request a Court Amend its Paperwork to Accurately Reflect the Court’s Determination:
Motion for Relief from the Judgment (b) – to correct a clerical mistake in the judgment which incorrectly reflects the courts intentions
Motion for Resettlement – request to clarify or correct the form of an order or judgment that does not correctly state the court’s decision
Versatile Motions – circumstantially applicable pretrial, midtrial, & posttrial:
Brady Motion – a criminal defendant’s request that a court order the prosecution to turn over evidence favorable to the defendant when the evidence is relevant to the defendant’s guilt or punishment
Motion to Dismiss – due to settlement, voluntary withdrawal, or one of several procedural defects
Motion to Quash – request the court nullify process or an act instituted by the other party or previous court decision (i.e. nullify a warrant or subpoena)
Omnibus Motion – to request multiple forms of relief depending upon the circumstances
Motion to Divide the Question – to break a long or complex motion, usually one covering more than one subject, into shorter motions to be considered independently
Motion to Withdraw – attorney’s request for a court’s permission to cease representing a client
Motions pertaining exclusively to Bankruptcy, Patents, & Trademarks:
Motion to Correct Inventorship – add one or more unnamed co-inventors to a patent application
Motion to Dissolve Interference – request by the senior party to dismiss challenges to its priority as the first inventor
Motion to Lift the Stay – request to bankruptcy court to alter the automatic bankruptcy stay to allow the movant to act against the debtor’s property, as when a creditor seeks permission to foreclose on a lien because its security interest is not adequately protected
Motion for Protective Order – request the court protect you from a potentially abusive action by the other party, usually relating to protecting Trade Secrets from being open to the public through Discovery
Objections – oppose something that occurred or is about to occur: seek an immediate ruling on the point
Continuing Objection – a single objection to all the questions in a given line of questioning
Frivolous Objection – a petty, often baseless, objection
General Objection – an objection made without specifying any grounds in support of the objection
Speaking Objection – an (often prohibited) objection that contains more information (often in the form of argument) than needed by the judge to sustain or overrule it
Specific Objection – accompanied by a statement of one or more grounds in support of the objection
Standing Objection – made to an opposing lawyer’s entire line of questioning instead of repeating question-by-question objections
Vexatious Objection – made to delay, annoy, or otherwise impede a proceeding solely for tactical reasons
Civil Proceedings:
1. Process – the Plaintiff files a Complaint and Summons:
Burden of Pleading – a party’s duty to plead a matter in order for that matter to be heard in a lawsuit
Statute of Jeofails – a law permitting a litigant to correct or amend an error in a pleading without risking dismissal of the claim
Civil Complaint Form Self-Help Walkthrough
Injunctive Relief – various types of non-monetary “equitable remedies” that may be awarded by a court:
Choose which Civil Complaint Form Matches Your Case
in forma pauperis – impoverished persons may request a court fee waiver
2. Case Preparation – discovery of evidence; witness depositions and pretrial motions:
Initial Disclosure – the requirement that parties make available to each other, without first receiving a discovery request, contact information for all involved parties, a copy of all relevant documents and data compilations, a damages computation, and relevant insurance agreements
pretrial discovery (civil) – conducted before trial to reveal facts, develop evidence and prevent parties from surprising each other at trial
3. Settling Difference – parties urged to reach settlement to avoid the need for trial:
4. Trial Process – evidence is presented, and witnesses testify:
5. Closing – final findings of law and fact are concluded; judgment:
Jury Trials (civil):
Pleas (Civil Law):
Criminal Proceedings:
1. The Arrest, Search and Seizure, and Booking:
i. The Arrest – lawful or unlawful?
Types of Unlawful Arrests:
arbitrary arrest – an arrest of a person without probable cause to believe the person permitted a crime
Dragnet Arrest – a sweeping arrest of people suspected of possible involvement in criminal activity or a civil disturbance
false imprisonment – restraint of a person in a bounded area without either legal authority, justification, or consent
false arrest – unlawful restraint of one’s physical liberty under an asserted legal authority to enforce the processes of the law
10 U.S.C. (UCMJ) § 897. Art. 97. Unlawful detention
25 U.S.C. § 11.404 – False imprisonment
malicious arrest – causing an arrest by maliciously bringing a suit upon false charges, or maliciously making a false affidavit, or arresting without probable cause for an improper purpose
Supreme Court Rulings re: Unlawful Arrests/False Imprisonment
Various Forms of Lawful Arrests:
Warranted Arrest – an arrest made under authority of a warrant
Arrest Warrant – issued by a disinterested magistrate shown probable cause; directs a law-enforcement officer to arrest and take a person into custody
Return of Warrant – a return of an arrest warrant, by the officer to whom it was given, showing substantially that the officer operated within the scope of proper execution
material-witness arrest – arrest and detention of a witness to a crime for the purpose of inducing the witness to provide material evidence to investigators or prosecutors
Warrentless Arrest – a legal arrest, without a warrant, carried out by a peace officer or private citizen, when there’s absolute certainty or probable cause that a crime was committed by the suspect
civil arrest – arrest and detention of a civil-suit defendant until bail is posted or a judgment is paid; prohibited in most states
parol arrest – ordered by a judge or magistrate from the bench, without written complaint, and executed immediately; often used in cases of contempt of court, etc.
rearrest – a warrantless arrest due to escape from custody, violation of parole or probation, or failure to appear in court
turnover arrest – made by a security guard who holds the suspect, usually a shoplifter, until the police arrive and then turns the suspect over to them
Citizen’s Arrest – on grounds that (1) a public offense was committed in their presence, or (2) they have reasonable cause to believe suspect committed a felony
Probable Cause for Arrest – lawful or unlawful?
ii. Search and Seizure – reasonable or unreasonable?
search – upon probable cause, examination of a person’s body, property, or other area the person considers private, by a law enforcement officer, for the purpose of finding evidence of a crime
Search Warrant, various types of:
no-knock search warrant – a type of search warrant that authorizes exception to the knock-and-announce rule because a prior announcement would probably lead to the destruction of the objects searched for or someone(s) safety
Various Types of Lawful Warrantless Searches:
consent search – conducted after a person with the authority to do so voluntarily waives Fourth Amendment rights
seizure – the actual or constructive taking possession of a person or property by color of legal right or process
Seizure Warrant – allows law-enforcement to seize particular property, usually believed to be the fruit of a crime or an instrument used to commit a crime; often combined with a search warrant
search-warrant affidavit – sets forth facts and circumstances supporting the existence of probable cause, requesting the judge to issue the warrant
Stop-and-Frisk – brief detention, questioning, and “pat down” for a concealed weapon, with reasonable suspicion suspect committed or is about to commit a crime
iii. Booking – standard procedure:
knock-and-announce rule – officers must knock and announce their identity, authority, and purpose before entering a residence
The Fourth Amendment
4th Amendment – Supreme Court Rulings re: “Unreasonable Search and Seizure”
curtilage – the land or yard adjoining a house, usually within an enclosure; it is protected by the 4th Amendment’s guarantee against unreasonable warrantless searches
messuage – a dwelling house together with the curtilage, including any outbuildings; all protected by the 4th Amendment’s guarantee against unreasonable search and seizure
Interrogation – formal, systematic, intensive questioning by police, usually of suspects who have been arrested
Miranda rule – a criminal suspect in police custody must be informed of certain constitutional rights before being interrogated
2. Possible release on Bail, on promise to make next appearance:
Recognizance – a person’s bond or obligation to the court to appear in court to enter a plea or stand trial in a criminal case
Forfeiture of Bail – the consequence of a breach of the condition of a bail bond
3. Arraignment – defendant hears the charges and enters a plea:
Plea Colloquy – an open-court dialogue, usually just before the defendant enters a plea, where the judge ensures the defendant understands the consequences of the plea
Pleas (Criminal):
Guilty Plea – the defendant’s formal admission in court of having committed the charged offense
Alford Plea – a guilty plea, entered as part of a plea bargain, while not admitting guilt
Blind Plea – a guilty plea made without the promise of a concession from the judge or prosecutor
Plea Affidavit – a sworn, notarized, written guilty plea to a misdemeanor, traffic violation, or other lesser offense, usually submitted in absentia
No Contest (“nolo contendere”) – a plea by which the defendant does not contest or admit guilt
Not Guilty Plea – denial of having committed the charged offense
Not Guilty by Reason of Insanity – based on the insanity defense
Insanity – a mental disorder severe enough to prevent a person from having legal capacity, excusing them from criminal or civil responsibility; constitutes an Insanity Defense
Appreciation Test – requires clear, convincing evidence that at the time of the crime, the defendant suffered from a severe mental disease or defect preventing them from appreciating the wrongfulness of the conduct
Currens test – requires no more than the jury must be satisfied that as a result of mental disease or defect, the accused lacked substantial capacity to conform his conduct to the requirements of the law
Durham Test – holds that a defendant is not criminally responsible for an act that was the product of mental disease or defect
Irresistible-Impulse Test – holds that a person is not criminally responsible for an act if mental disease prevented them from controlling potentially criminal conduct
McNaghten Test – the “right and wrong test” to determine a person’s sanity
Substantial-Capacity Test – the Model Penal Code’s test for the insanity defense; determines if the person lacks substantial capacity to appreciate the criminality of the conduct or to conform their conduct to the law
Plea Bargain – a negotiated agreement between a prosecutor and defendant whereby the defendant pleads guilty or no contest to one of multiple charges, usually in exchange for a more lenient sentence or dismissal of other charges
Standing Mute – to remain silent when required to enter a plea; the equivalent of a “not guilty” plea
4. Preliminary Hearing or Grand Jury Proceedings:
Fact-Finder – one or more persons who hear testimony and review evidence to rule on a factual issue; the judge (in a bench trial) or a jury
Preliminary Hearing – any number of “Probable Cause Hearings” to determine if there’s sufficient evidence to hold trial, or if any evidence ought be suppressed due to 4th Amendment violation:
Independent-Source Hearing – a hearing to determine whether evidence was obtained illegally, and if so, whether the evidence is admissible
Information – a complaint or affidavit, made by a prosecutor, alleging probable cause to suspect a crime, in order to bind a defendant over, to await action by the grand jury
Mapp Hearing – held to determine if evidence was obtained via an illegal search and seizure, and should therefore be suppressed
Probable Cause – a reasonable amount of suspicions, supported by circumstances sufficiently strong to justify a prudent and cautious peron’s belief that certain facts are probably true
Types of Hearings pertaining Solely to Criminal Cases:
pretrial discovery (criminal) – conducted before trial to reveal facts, develop evidence and prevent parties from surprising each other at trial
Jencks Material – a prosecution witness’s written or recorded pretrial statement that a criminal defendant, upon filing a motion after the witness has testified, is entitled to have in preparing to cross-examine the witness; the statement may may be used to impeach the witness
Jencks Rule – defendant has the right to examine government papers to be better able to cross-examine or impeach government witnesses
Reverse Jencks Material – a defense witness’s written or recorded pretrial statement that a prosecutor is entitled to have, via pretrial discovery, in preparing to cross-examine the witness; discoverable statements include a witness’s signed or adopted written statement, and transcripts or recordings of the witness s oral statements, including grand-jury testimony
exclusionary rules – rules that exclude or suppress evidence obtained via unreasonable search and seizure:
Fruit-of-the-Poisonous-Tree Doctrine – evidence derived from an illegal search, arrest, or interrogation is inadmissible because the evidence (the “fruit”) was tainted by the illegality (the “poisonous tree”)
attenuation doctrine – evidence obtained by illegal means may be admissible if the connection between the evidence an the illegal means is sufficiently remote: the Fourth Amendment violation and the obtaining of the evidence are not causally related
independent-source rule – an exception to the fruit-of-the-poisonous-tree doctrine whereby evidence obtained by illegal means is admissible if that evidence is also obtained by legal means unrelated to the original illegal conduct
good-faith exception – an exception to the exclusionary rule whereby evidence obtained under a warrant later found to be invalid (especially because its not supported by probable cause) is nonetheless admissible if officers reasonably relied on the notion the warrant was valid
inevitable-discovery rule – evidence obtained indirectly from an illegal search is admissible, and the illegality is harmless, if the evidence would have been obtained nevertheless in the ordinary course of police work
primary-evidence rule – when evidence sought in an illegal search is seized during that search, the inevitable-discovery doctrine does not apply
Grand Jury – usually 16 to 23 people who sit one month to a year in ex parte proceedings, to decide whether to issue an indictment
Bill of Indictment – an instrument containing a criminal charge, presented to a grand jury by a prosecutor, used by the jury to determine if there’s enough evidence to formally charge the accused with a crime
Indictment – a formal written accusation of a felony, made by a grand jury and presented to a court for prosecution against the accused person
True Bill – an indorsement that a grand jury enters onto a bill of indictment when it indicts a criminal defendant; by writing “true bill” on the bill, the determination that a criminal charge should go before a petty jury for trial is officially indorsed by the grand jury
No Bill – an indorsement by a grand jury on a bill of indictment, indicating “not found” or “not a true bill”; the party is then discharged without further answer
Presentment – a written accusation returned by a grand jury on its own motion, without a prosecutor’s previous indictment request, which may be used by the prosecutor as the basis for a true bill or indictment
5. Pretrial Motions (criminal):
6. Trial – the prosecution bears the burden of proof as both sides are heard, witnesses are cross-examined; defendant found guilty or not guilty
Closing Argument – a final request to the fact-finder to consider the evidence and to apply the law in one’s favor; afterward (in a jury trial) the judge ordinarily instructs the jury on the law that governs the case
Guilt Phase – in a criminal trial, where the fact-finder determines if the defendant committed a crime
Trial by Jury (criminal):
Amendment VI – guarantees speedy, public (criminal) trial with an impartial local jury, to be informed about the accusation and be confronted with witnesses, and to have compulsory process for obtaining witnesses in one’s favor, and have assistance of counsel
Bench Trial – a trial before a judge; a “nonjury” or “juryless” trial
Opening Statement – each attorney previews of the case, the evidence to be presented, and the issue(s) at hand
Allocution – a trial judge’s formal address to a convicted defendant, to ask if they wish to make a statement or present information that could lessen or cancel the sentence
Penalty Phase – in a criminal trial, where the fact-finder determines the punishment for a defendant who has been found guilty
7. Sentencing:
Victim-Impact Statement – a statement read into the record during sentencing to inform the judge or jury of the financial, physical, and psychological impact of the crime on the victim and their family
Victim Allocution – a crime victim’s address to the court before sentencing, usually urging a harsher punishment
8. The Appeal:
Types of Property:
personal property – any movable or intangible thing that is subject to ownership and not classified as real property: i.e. money, goods, chattels, movables, a right of action, evidence of debt, stock, bond, mortgages
Movable Property – tangible or intangible property that is not land or buildings: can be moved or displaced
Chattel – visible, tangible, movable personal property:
Chattel Mortgage – an instrument which conveys a mortgage on personal property on installment, whereby the seller transfers title to the buyer but retains a lien securing the unpaid balance
Chattel Paper – a writing that shows both a monetary obligation and a security interest in or a lease of specific goods
Electronic Chattel Paper – chattel paper evidenced by a record or records consisting of information stored in an electronic medium and retrievable in perceivable form
Tangible Chattel Paper – chattel paper evidenced by a record or records consisting of information inscribed on a tangible medium
Chattel Vegetable – a movable article of a vegetable origin, such as timber, undergrowth, corn, or fruit
Local Chattel – personal property that is affixed to land
Personal Chattel – a tangible good or an intangible right (such as a patent)
Real Chattel – an interest in real property that is less than a freehold or fee, such as an estate for years in land (i.e. a leasehold)
Unique Chattel – a chattel that is absolutely irreplaceable because it is one of a kind
Intangible Movable – a physical thing that can be moved but that cannot be touched in the usual sense, such as a legal right, light, electricity, and radioactive waves
real estate (real property) – land and anything growing, attached to, or erected on it, excluding anything that may be severed without injury to the land
Immovable Property – land, and objects so firmly attached that they are regarded as part of the land
common property – real property held by two or more persons with no right of survivorship
Intellectual Property – intangible rights protecting commercially valuable products of the human intellect:
Hard Intellectual Property – excludes others from using the invention without the holder’s consent even if others find the innovation independently
Patent – the governmental grant of a right, privilege, or authority to exclude others from making, using, marketing, selling, offering for sale, or importing an invention for a specified period (20 years from the date of filing); also the name for the official document so granting)
Practice – (patents)
Office Action – pertains to patents and trademarks
Trademark – word, phrase, logo, or other sensory symbol that serves as a signature for the manufacturer or seller to distinguish its products or services from those of others and to designate the source of goods or services
Soft Intellectual Property – does not preclude independent creation by third parties:
Copyright – a property right in an original work of authorship fixed in any tangible medium of expression, giving the holder the exclusive right (for a period of time) to reproduce, adapt, distribute, perform, and display the work
Copyright Laws – Past and Present:
copyrightability test – a common judicial test for determining whether a contributor to a joint work is an author for legal purposes
Types of Copyrights:
ad interim copyright – a limited five-year US. copyright granted to the author of a foreign edition of an English language book or periodical under certain circumstances
common-law copyright – a property right that arose when the work was created, rather than when it was published
future copyright – A copyright that will come into existence upon the occurrence of a particular event
Conditions of Property:
abandoned property – wherein all right, title, claim, and possession is voluntarily surrendered, relinquished, or disclaimed by the (former) owner, and not vested in another person
found property – appears to be lost or abandoned, and is recovered by another person
absolute property – wherein the owner has full and complete title and control over
adventitious property – property coming to one from a stranger or anyone other than the paterfamilias
ancestral property (estate) – acquired by descent, especially when the owner’s family has held the property for several generations
appointive property – property interest that is subject to a power of appointment
complete property – the entirety of the rights, privileges, powers, and immunities that it is legally possible for a person to have with regard to any thing
corporeal property – can be perceived, having physical, tangible substance
distressed property – must be sold because of mortgage foreclosure or it is part of an insolvent estate
divisible property – an asset a court is statutorily permitted to divide between divorcing spouses
incorporeal property – a property interest in a legal right, having no physical (tangible) existence, but recognized at law
intangible property – an incorporeal right unrelated to a physical thing, but which evidences something of value
lost property – personal property involuntarily parted with through accident, negligence, neglect, carelessness, or inadvertence
mislaid property –
ownership – the “bundle of rights” to possess, use, manage, enjoy, &/or convey property, by the person who has both title and dominion over it
title – the legal link between a person who owns property and the property itself, without any rightful participation by any other person in any part of it
Essential Elements of Title:
custody – control or care, and obligation of safeguard, of a thing or person for inspection, preservation, or security; not possession
good (clear, marketable) title – legal and equitable title free from litigation, palpable defects, and grave doubts, not dependent upon any question of fact, and fairly deductible of record, with no outstanding interest, lien, encumbrance, or claim that could defeat or impair the interest; a person of reasonable prudence and intelligence, guided by competent legal advice, would be willing to pay fair market value
legal title – evidences apparent ownership but not necessarily full and complete title or a beneficial interest; must be marketable to be considered legally sufficient
equitable title – indicates a beneficial interest in property, recognized as ownership in equity, but not legal title, that gives the holder the right to have the legal title transferred to him
bad (defective, unmarketable) title – a reasonable buyer would refuse to accept it because of a conflicting claim, possible conflicting interests in, or litigation over the property
dormant title – an unclaimed title in real estate; a title to real estate held in abeyance, unasserted
abeyance – a lapse in succession during which no person is vested with title, although the law considers it as always potentially existing and ready to vest when a proper person in whom it may vest appears
doubtful title – open to reasonable doubt regarding any question of law or fact; would probably cause a purchaser to be involved in litigation with an adverse claimant
Transfer or Acquisition of Title:
derivative title – title that results when an already existing right is transferred to a new owner; a transferee acquires only the rights held by the transferor and no more
escheat – the right of the state to take title to property after the death of a person who has not disposed of the property by will and has left no heirs to inherit it
after-acquired title – the ownership interest in land which a person acquires after purporting to sell the property to the buyer
title – related terms:
chain of title – the ownership history of a piece of land, from its first owner to the present one
cloud on title – a defect or potential defect in the owners’ title to a piece of land arising from some claim or encumbrance (i.e. a lien, easement, court order)
Types of Ownership:
record owner – the owner of real estate or other property (e.g. stocks, bonds) at the time of question according to public or corporate records
Unqualified (Absolute) Ownership and related terms:
corporeal ownership – actual and complete ownership of land or chattels with the right to use and control
nested ownership – wherein the title is perfect; absolute ownership
perfect ownership – the complete bundle of rights to use, enjoy, and dispose of property without limitation
cross-ownership – ownership by a single person or entity of two or more related businesses such that the owner can control competition
qualified ownership (interest) – shared, restricted to a particular use, or limited in the extent of its enjoyment; less than absolute ownership
imperfect ownership – ownership party subject to a usufruct interest held by another
usufruct -the right to the use, enjoyment, profits, and avails of property belonging to another
joint ownership – undivided ownership shared by two or more persons wherein an owner’s interest, at death, passes to the surviving owner(s) by virtue of the right of survivorship
Ownership in Common – shared by two or more persons whose interests are divisible, and, at death, pass to the dead owner’s heirs or successors
Public Ownership – government owns at least 51% or controlling share of the company
Shareholders (Stockholders) – owns a proportional part (share) of a corporation’s capital, granting the right to participate in the company’s general management and to share in its net profits or earnings
Types of Shares –
Types of Shared Ownership Without Controlling Interest:
Incorporeal Ownership – ownership interest in land or chattels without the right to use or control, as with mineral rights
Stakeholder – someone who has an interest or concern in a business or enterprise, though not necessarily as an owner, and whose interest may possibly be contested
Forms of Ownership (Interest) pertaining to Trusts:
Beneficial Ownership – a beneficiary’s interest in trust property &/or a corporate shareholder’s power to buy or sell the shares
Trust Ownership – a trustee’s interest in trust property
Ownership regarding Oil & Gas:
Nonownership Theory – used in a minority of jurisdictions, holds that the owner of a severed mineral interest does not have a present right to possess the oil and gas in place but only to search for, develop, and produce it
Ownership-in-Place Theory – used in a majority of jurisdictions: holds that the owner has the right to present possession of the oil and gas, as well as the right to use the land surface to search, develop, and produce from the property, but that the interest in the minerals terminates if the oil and gas flows out from under the owner’s land
Ownership – related terms:
Bonitary Ownership – a type of equitable ownership recognized by the praetor when the property was conveyed by an informal transfer, or by a formal transfer by one who is not the true owner
Contingent Ownership – wherein title is imperfect but is capable of becoming perfect on the fulfillment of some condition
control – power or authority to manage, direct, or oversee, or physical retention of possession of an item or its maintenance in a secure place
domain – an estate in land by one who has paramount title and unqualified ownership , or the land itself rather than the ownership and control thereof
public domain – government-owned land, or a composition, devise, or process so well known and in such common use, or explicitly dedicated, so as not to be patentable
eminent domain – the power of a government to authorize the taking of private property for a public use or public purpose without the owner’s consent, conditioned upon the payment of a just compensation
dominion – ownership and control, or control and possession
Owner’s Policy – a title-insurance policy covering the owner’s title as well as the mortgagee’s interest (real estate)
Vest – to confer ownership to or give fixed right of present or future enjoyment (of property) to a person
interest – all or part of a legal or equitable claim to or right in property; a share, claim, or title
estate – the amount, degree, nature, and quality of a person’s interest in property, usually “real estate interest which may become possessory”
estate in land – the degree, quantity, nature, or extent of interest which a person has in real property
absolute estate – a full, complete estate in real property wherein the owner has complete, unqualified and unconditional possession, control, dominion, and right of disposition, which descends to his heirs upon his death, if his will does not otherwise direct
contingent estate – an estate in land that vests (transfers in ownership) only if a specified event does or does not happen
estate on condition – an (contingent) estate in land that vests, is modified, or is defeated upon the occurrence or non-occurrence of some specified event
estate on condition expressed – a contingent estate in which the condition upon which the estate will fail is stated explicitly in the granting instrument
estate on condition implied – a contingent estate having some condition that is so inseparable from the estate’s essence that it need not be expressed in words
freehold estate (interest) – an estate in land held in fee simple, fee tail, or for term of life; any real property interest that is or may become possessory
Charter Land – “freehold land” held under royal charter or deed (generally for churches and leaders)
determinable estate – an estate that is defeasible (capable of being cancelled) by operation of a special limitation
fee (simple absolute) – the broadest real property interest (estate in land) allowed by law; exclusive, hereditable ownership
Arriere Fee – a fee dependent on a superior one; a subfief
base fee (estate, tenancy) – a hereditable estate in land that may last forever, but with a qualification (limitation) annexed to it which terminates such interest if a certain event(s) occurs
Fee Simple Conditional – an estate conveyed to a man conditionally upon his having an heir
Fee Simple Subject to a Condition Subsequent – an estate subject to the grantor’s power to end the estate if some specified event happens
fee tail – a legal or equitable estate in lands that is heritable only by specified descendants of the original grantee, enduring until its current holder dies without issue, at which time it reverts to the original donor or his heirs
fee expectant – a fee tail created when land is given to a man and wife and the heirs of their bodies
Historical Types of Fee Simple Estates:
great fee – historically, in feudal law, a fee received directly from the Crown
knight’s fee – historically, the amount of land that gave rise to the obligation of knight service
lay fee – a fee interest in land held by ordinary feudal tenure, generally for use in agricultural labor, and not for religious purposes
plowman’s fee – a species of tenure for peasants or small farmers by which the land descended in equal shares to all the tenant’s sons
Quasi-Fee – an estate in fee acquired wrongfully
Types of Qualified Fee:
Fee Simple Defeasible – an estate that ends because there are no more heirs of the person to whom it is granted or because a special limitation, condition subsequent, or executory limitation takes effect
Fee Simple Determinable – an estate that will automatically end and revert to the grantor if some specified event occurs
Flying Freehold – the part of a freehold property that encroaches on another owner’s property, not on the ground but above it, as with a balcony that extends over the property line
life estate (tenancy) – held only for the duration of a specified person’s life, usually the possessor’s
estate by the curtesy – an freehold estate owned by a wife, to which the husband is entitled upon her death, as a life estate
Movable Freehold – real property capable of being increased or diminished by natural causes, such as the land a seashore owner acquires or loses as water recedes or approaches
Perpetual Freehold – an estate given to a grantee for life, and then successively to the grantee’s heirs for life
nonfreehold estate – any estate in real property without seisin; any estate except a fee simple, fee tail, or life estate
estates less than freehold – an estate for years, estate at will, or estate at sufferance:
insolvent estate – the estate of a decedent which is to be administered according to a special statutory method because its assets are insufficient to cover its debts, taxes, and administrative expenses
derivative estate – a particular interest that has been carved out of another, larger estate
Estate – legal or equitable?
equitable estate – an estate or interest in property recognized only in equity, especially a trust
equitable life estate – an equitable estate (interest) in real or personal property that lasts for the life of the holder of the estate (e.g. a life estate held by a trust beneficiary)
legal estate – an interest (estate in property) recognized by and enforced in law rather than in equity
estate by purchase – an estate acquired by any method except descent
Number of Persons Holding an Estate, and the Manner in Which its Held:
estate in severalty – held by a tenant separately, without any other person being joined or connected in interest
concurrent estate – ownership or possession of property by two or more persons at the same time
Types of Estates Held as a Security, as Collateral, or to Satisfy a Debt:
estate by elegit – held by a judgment creditor, entitling the creditor to the rents and profits from land owned by the debtor until the debt is paid
estate by statute staple – an estate held under a bond as security for a commercial debt, giving the lender a possessory right in the land of a debtor who failed to repay a loan
estate in gage – an estate that has been pledged as security for a debt
Types of Interest:
beneficial interest – a right or expectancy of value, worth, or use in property one does not own.(i.e a trust or estate) as opposed to legal title; a beneficiary’s interest
Carried Interest – the share of any profits produced by a partnership’s investment, paid to the general partner as compensation for managing the investment
Contingent Interest – an interest that the holder may enjoy only upon the occurrence of a condition precedent
Defeasible Interest – an interest that the holder may enjoy until the occurrence of a condition
Direct Interest – a certain, absolute interest
encumbrance – any property right (claim or liability) that is not ownership interest (e.g.. lien, mortgage, easement), attached to real property (or the title or record thereof), that may lessen its value
Entailed Interest – an interest that devolves through lineal descendants only as a result of a fee tail
Equitable Interest – held by virtue of an equitable title or claimed on equitable grounds, such as the interest held by a trust beneficiary
Security Interest – an interest in personal property or fixtures which secures payment or performance of an obligation, or with respect to real property, a mortgage or other lien
Types of Controlling Interest:
Absolute Interest – not subject to any condition
Controlling Interest – sufficient ownership of stock in a company to control policy and management; especially, a greater-than-50% ownership interest in an enterprise
Entire Interest – a whole interest or right, without diminution
Types of Heritable Interest in Land:
tenancy – possession or occupancy of real or personal property by right or title:
Various Forms of Tenancy:
Cotenancy – a tenancy with two or more cotenants who both have the right of undivided possession of the property as a whole:
joint estate (tenancy) – held by two more more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship
estate in partnership – a joint estate that is vested in the members of a partnership when real estate is purchased with partnership funds and for partnership purposes
tenancy (estate) by the entirety – an (tenancy and) estate in land or in personal property that exists between husband and wife; jointly owned with right to survivorship
Tenancy in Common – a tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship
tenancy (estate) at sufferance – when a person who was in lawful possession of property wrongfully remains as a holdover after their interest has expired, when their right to possession has ended
periodic tenancy – tenancy where no definite time is agreed upon and the rate is fixed at so much per month (year, etc.)
tenancy (estate) at will – the tenant holds possession with the landlord’s consent but without fixed terms; may be terminated by either party upon fair notice
tenancy (estate) for a term – an interest (estate) securing a tenancy, arising from an agreement or lease (or other contract) which must expire at a certain period, fixed in advance
tenancy attendant on the inheritance – a tenancy for a term vested in a trustee in trust for the owner of the inheritance, as a form of personal property to the trustee
tenancy in gross – a tenancy for a term that is unattached or disconnected from the estate or inheritance, such as one that is in the hands of some third party having no interest in the inheritance
possession – detention or use of a physical thing with intent to hold it as one’s own; asserting dominion
adverse possession – continuous, exclusive, hostile, open, notorious enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim; the doctrine by which title or easement may be obtained by doing so for a specified period of time
acquiescence – a tacit (silent, implied) approval or at least an indication of lack of disapproval
Adverse Possession – related terms:
adverse claim – in adverse possession, a claim to possession which is hostile to the true owner
adverse enjoyment – possession or use of land under a claim of right against the property owner
adverse user – using real property in an “open, notorious, hostile manner” under a claim of right, contrary to the interests of the true owner
claim of right (title, ownership) – entry and occupation of land with intent to claim and hold it for one’s own
occupying claimant – someone who claims the right under a statute to recover for the cost of improvements done to land that is later found not to belong to the person
Occupying Claimant (Betterment) Acts – statutes which provide a recovery by an occupying claimant, since dispossessed by the true owner, for improvements made while occupying the premises in the belief that he had good title
improvement (betterment) – an addition to property (usually real estate), whether permanent or not, that increases its value and goes beyond repair or restoration
improvement lien – A lien recognized in equity in a proper case for the benefit of one who clims compensation for an improvement made on the land of another. 27 Am
presumed grant – a theoretical basis for the acquisition of title or prescriptive right, by adverse use
title by prescription (adverse title) – a title acquired by prescription (or adverse possession)
prescription (prescription) – acquisition of title to a thing by open, continuous possession over a statutory period, or the extinction of a title or right by failure to claim or exercise it over a long period
negative (extinctive) prescription – extinction of a title or right by failure to claim or exercise it over a long period
period of prescription – the period fixed by local law as sufficient for obtaining or extinguishing a right through lapse of time, and other circumstances
positive (acquisitive) prescription – acquisition of title to a thing by open and continuous possession over a statutory period
prescription acts – statutes establishing the periods of time required for various rights or titles to be acquired by prescription
prescriptive right – a right obtained by prescription
tacking – adding one’s own period of land possession to a prior possessor’s in order to establish continuous adverse possession for the statutory period
“Rights” Associated w/ Adverse Possession, Prescriptive Easements:
right of entry – the right to take or resume possession of real property in a peaceable manner, including entering onto another person’s property for a special purpose, without committing a trespass
right of possession – a person’s right to occupy and enjoy property
Forms of Possession that pertain to Adverse Possession:
actual possession – in adverse possession cases, actual entry upon the premises, actual occupancy such as to indicate exclusive ownership
exclusive possession – possession of land by a claimant for himself, as his own, and not for another
hostile possession – open, notorious possession of land under a claim of an exclusive right thereto, including against the record owner’s claim
open and notorious possession – possession of real property that is so conspicuous its considered as sufficient notice to a reasonable landowner that their land is subject to an adverse user (adverse possession)
interruption of possession (or prescription) – a break in the continuity of the possession of an adverse claimant in order to restore constructive possession to the owner
(action for) ejectment – a legal action by which a title holder who has been dispossessed and suffered damages seeks to recover possession, damages, and costs
dispossessor (disseissor) – someone who wrongfully deprives another of the freehold possession of property
eviction – the act or process of legally dispossessing a person of land or rental property
actual eviction – physical expulsion (dispossession) of a person from land or rental property, as distinguished from constructive eviction
eviction by paramount title – eviction by judicially establishing title superior to that under which the possessor claims, by evidence of one’s deed
summary eviction – a prompt, juryless trial (for an eviction) using a simplified legal procedure
forcible entry and detainer – (1) entry onto real property peaceably in the possession of another, against his will, without authority of law, by actual or threat of force, followed by the withholding of such property; or (2) a quick and simple legal proceeding for regaining possession of real property from someone who has wrongfully taken, or refused to surrender, possession (or their right to possession has expired or been lawfully terminated)
unlawful detainer – unjustifiable retention of the possession of real property by one whose original entry was lawful
adverse possession statutes (by state):
California Adverse Possession Statutes (CCP §§ 1159 – 1179a) – Summary Proceedings for Obtaining Possession of Real Property in Certain Cases
California Adverse Possession Statutes (CCP §§ 315-330) – The Time of Commencing Actions for the Recovery of Real Property
California Adverse Possession Statutes (CIV §§ 1000-1002, 1006-1009) – Modes in Which Property May Be Acquired (Occupancy)
constructive adverse possession – a type of adverse possession in which the claim arises from the claimant’s payment of taxes under color of right rather than by actual possession of the land
constructive possession (possession in law) – control or dominion over a property without actual possession or custody of it, or possession of an entire property by virtue of occupying a portion of it
lawful possession – possession based on a good-faith belief in and claim of right
natural possession – physical detention or control over a thing, as by occupying a building or cultivating farmland, with or without intent to keep it permanently
occupancy – holding, possessing, or residing in or on something, especially a dwelling or land, coupled with the performance of act(s) to manifest a claim of exclusive control, and to indicate to the public that the actor has appropriated the land, with intent to obtain legal ownership
legal instruments – formal documents evidencing the granting of right(s) and/or an agreement (duties, entitlements, & liabilities):
contract – a written agreement between two or more parties creating obligations enforceable &/or recognized at law:
Forfeiture Clause – a contractual provision stating that, under certain circumstances, one party must forfeit something to the other
Types of Contracts § 1:
Absolute Simulated Contract – a simulated contract that the parties intend to be wholly ineffective
Accessory Contract – entered into primarily for the purpose of carrying out a principal contract; especially for the purpose of obtaining by surety, mortgage, etc
Adhesion Contract – a standard-form contract prepared by one party, to be signed by another party in a weaker position, usually a consumer, who adheres to the contract with little choice about the terms
Aleatory Contract – where at least one party’s performance depends on some uncertain event that is beyond the control of the parties involved (i.e. insurance contracts and life annuities)
Alternative Contract – the performing party may elect to perform one of two or more specified acts to satisfy the obligation, usually permitting that party to choose the manner of performance
Assessment Contract – wherein the payment of a benefit is dependent on the collection of an assessment levied on persons holding similar contracts
Best Efforts Contract – wherein a party undertakes to use best efforts to fulfill the promises made rather than to achieve a specific result
Bilateral Contract – wherein each party promises a performance, so that each party is an obligor on that party’s own promise
Blanket Contract – covers a group of products, goods, or services for a fixed period
Bona Fide Contract – wherein equity may intervene to correct inequalities and to adjust matters according to the parties’ intentions
Build-to-Print Contract – requires the contractor to build a product according to exact technical specifications provided by the customer
Certain Contract – performed in a stipulated manner
Jury Wheel –
Collateral Contract – a side agreement made before or at the same time that relates to a contract that, if unintegrated, can be supplemented by evidence of the side agreement
Commutative Contract – at the time it is formed, the parties’ obligations and advantages are certain and determinate so that nonperformance by either affords a defense to the other
Conditional Contract – enforceable only if another agreement is performed or if another particular prerequisite or condition is satisfied
Consensual Contract – arising from the mere consensus of the parties, without any formal or symbolic acts performed to fix the obligation
Construction Contract – sets forth the specifications for a building project’s construction, usually secured by performance and payment bonds to protect the owner and the subcontractors
Consumer Contract – between a merchant seller and an individual who buys or contracts to buy goods to ensure the buyer intends to use them primarily for personal, family, or household purposes
Bottomry – a contract executed by the master of a vessel, promising repayment of advances made to supply the ship plus interest: the performance is secured by a pledge. of the “bottom” of the ship (the ship itself): payment of principal and interest are risks of the lender, as repayment depends upon successful voyage
Continuing Contract – calls for periodic performances
Contract for Sale – for the present transfer of property for a price, or to sell goods at a future time
Contract for Services – for a job undertaken by an independent contractor, as opposed to an employee
Contract in Restraint of Trade – limits the free exercise of business or trade (esp. stipulating that one who sells a business cannot open a similar business within a specified distance of the business being sold)
Contract of Pledge – wherein a debtor gives a creditor property to hold as security for a debt or the performance of a promise
Contract of Record – declared by a court and entered into the court’s record (not a true contract)
Writ of Justice – command to the sheriff to do justice between the parties when a Contract is breached
Rescission of Contract – a remedy to undo an unjust contract or to undo by mutual agreement
negotiable instrument – formal document signed by the maker or drawer; with a promise or order to pay, on demand or at a certain time, an amount of money, to order or to bearer
Drawers, Drawees, and Makers (Negotiable Instruments):
Drawee – the person upon whom a draft or bill of exchange is drawn; the person to whom the paper is presented for acceptance and payment (the drawee is always a bank)
Drawer – someone who directs a person or entity, usually a bank, to pay a sum of money stated in a draft or bill of exchange (i.e. a person who writes a check)
maker – one who obligates himself by entering into a contract, executing (signing) a promissory note, drawing a bill of exchange, or, in the case of lawmakers, framing, promulgating, or ordaining
Accommodation Maker – the drawer of a bill, or the maker of a note as a surety, to which he has put his name for the purpose of accommodating, by a loan of his credit, some other person who is to provide for the bill or note when it falls due
Prime Maker – The person who is primarily liable on a note or other negotiable instrument
Surety – a person who promises to pay the debt or to satisfy the obligation of another person (the principal); as opposed to the obligation of the guarantor, the obligation of a surety is both primary and absolute; that is, not depending upon a default by the principal
Negotiable Instruments – related terms:
negotiable – capable of being transferred by delivery or indorsement when the transferee takes the instrument for value, in good faith, and without notice of conflicting title claims or defenses
Transfer – negotiation of an instrument according to the forms of law: the four methods of transfer are by indorsement, by delivery, by assignment, and by operation of law:
Assignment – the transfer of property or right in property, or the instrument of such transfer
Assignee – a person to whom a property right is assigned, that is, the one to whom an assignment is made
Assignor – a person who transfers property rights or powers to another by assignment, whether he be an original owner or an assigner
The four methods of transfer:
delivery – the (actual, constructive, or symbolic) voluntary transfer of possession
indorsement – the signing of one’s name on the back of a negotiable instrument, to transfer title to the paper to another person, usually to guarantee payment
Acceptor – a person or entity that accepts a negotiable instrument and trust binds himself to its payment or performance
indorser – a person who transfers a negotiable instrument by indorsement
Indorsee – a person to whom a negotiable instrument is transferred by indorsement
operation of law – the means by which a right or a liability is created for a party through law, not by contract, act, or intent of a person
Transferee – a person to whom a transfer is made
Transferor – a person who makes a transfer
Suretyship – a contractual relation, resulting from a primary, original, absolute, and unconditional engagement, whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal
principal – the person for whose debt or default a surety is responsible under a contract of suretyship
Types of Negotiable Instruments:
bill of exchange (aka “draft”) – an unconditional written order (often a check) signed by the drawer, directing the drawee or payor to pay a sum of money, on demand or at a definite time, to a third person (either the payee or the bearer)
presentment – the formal production of a negotiable instrument as a demand to “accept” or “pay” to the payor by or on behalf of the holder
presentment for acceptance – production of a negotiable instrument, to the drawee, acceptor, or maker, for his acceptance and agreement to pay the bill, usually at some time in the future
presentment for payment – production of a negotiable instrument, by the holder, to the drawee, acceptor, or maker, on or after the date the instrument matures, to demand payment
Security – any interest or instrument relating to finances
mortgage – a conveyance of title to property given as security for the payment of a debt or performance of a duty, that will become void upon payment or performance according to the stipulated terms
Stock – a proportional part of a corporation’s capital represented by the number of equal units (or shares) owned, granting the holder the right to participate in the company’s general management and to share in its net profits or earnings
bond – a written promise acknowledging the obligation to pay a debt; either as money or to perform some act if certain circumstances occur or a certain time elapses
Bonds that ensure obligation to pay money if a certain event takes place:
Examples of Indemnity and Penal Bonds:
Appeal Bond – a bond that an appellate court may require from an appellant in a civil case to ensure payment of the costs of appeal, as a condition to bringing an appeal or staying execution of the judgment appealed from
Attachment Bond – a bond a defendant gives to recover attached property; the plaintiff then looks to the bond issuer to satisfy a judgment against the defendant
Bid Bond – a type of performance bond filed in public construction projects in order to indemnify the public against the consequences of a bidder’s failure to follow through on the bid
Completion Bond – a surety bond guaranteeing payment of the cost of completing a construction contract if the contractor fails to complete it in accordance with the terms of the contract
Peace Bond – a bond that a court requires as security to be posted by a person who has breached or threatened to commit a breach the peace
Fidelity Bond – a bond in the form of an insurance contract which indemnifies an employer or business for loss due to embezzlement, larceny, or gross negligence by an employee or other person holding a position of trust
Indemnity Bond – a bond to reimburse the holder for any actual or claimed loss caused by the issuer’s or some other person’s conduct
Penal Bond – a bond conditioned upon the performance of duties of office, or other obligations undertaken by the principal obligor in the bond or collateral things to be done by him
Penal Sum – the monetary amount specified as a penalty in a penal bond
Surety Bond – a bond that secures the performance of an obligation
Bail Bond – a bond given to a court by a criminal defendant’s surety to guarantee the defendant will duly appear in court and, if the defendant is jailed, to obtain the defendant’s release from confinement
Performance Bond – a contractor’s bond which guarantees that the contractor will perform the contract, and usually provides that if the contractor defaults and fails to complete the contract, the surety can itself complete the contract or pay damages up to the limit of the bond
Fiduciary Bond – a type of performance bond required of a trustee, administrator, executor, guardian. conservator, or other fiduciary to ensure the proper performance of duties, as a condition for managing an estate
Legal Terms pertaining to Bonds:
Indemnity – a duty to make good any loss, damage, or liability incurred by another, or the right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty
Indemnify – to compensate or reimburse a person for a past or future loss or damage caused by one’s own or a third party’s act or default
Indemnitee – someone who receives indemnity from another
Indemnitor – a person whom indemnifies another
Obligation – a formal, binding agreement (bond) or acknowledgment of a liability to pay a certain amount, or to perform, or forbear from performing, a certain duty for a particular person(s), whether the duty is imposed by law, contract, promise, oath, duty, or moral responsibility
Obligee – the person to whom the duty of an obligation is owed, to whom a bond is made payable, and who is entitled to enforce a guaranty; a promisee, creditor, or donor beneficiary
creditor – a person or entity with a definite claim against another, to whom a debt is owed by a debtor; an obligee
Obligor – a person who has undertaken an obligation; a promisor or debtor
Joint Obligor – a person liable with one or more others on a negotiable instrument or a contract; a person liable on a joint obligation or a joint and several obligation; a joint obligor
Principal Obligor – someone who is under a duty of indemnity
Bottomry Bond – a contract for the loan of money on a ship, usually at extraordinary interest, for maritime risks encountered during a certain period or for a certain voyage, which can be enforced only if the vessel survives the voyage
Investment Bonds – bonds that represent debt and pay interest:
Debenture – a voucher for an indebtedness, issued by a corporation, and though unsecured, it is secured only by the debtor’s earning power based on a pledge of income, not by a lien on any specific asset
Investment bonds issued by corporations:
Convertible Bond – a bond or debenture issued with the privilege of converting them into other securities, usually the common stock of the issuing corporation
Coupon Bond – a bond in which the interest, which is payable separately from the principal, is represented by detachable coupons
Government Bonds – various types of investment bonds issued by governments:
Municipal Bond – a tax-exempt, negotiable bond which serves as an evidence of indebtedness issued as one of a series of instruments issued at the same time by a nonfederal government or governmental unit in order to finance state or local improvements
Guaranteed Bond – a bond issued by a corporation and guaranteed by a third party (sometimes by a parent corporation)
Junk Bond – a bond that pays interest at a high rate because of significant risks — often issued to raise money quickly in order to buy the shares of another company
Registered Bond – a bond or security which specifies a person entitled to the security or to the rights it evidences and the transfer of which may be registered upon books maintained for that purpose or on behalf of an issuer
Serial Bonds – bonds of a corporation or a municipality issued at the same time but redeemable at different specified dates
Term Bond – bonds issued at one time, all of which fall due at one time
lien – a legal right or proprietary interest a creditor retains in property until the debt &/or duty that it secures is satisfied:
Types of Liens utilized by Professionals § 1:
Accountant’s Lien – the right of an accountant to retain a client’s papers until the accountant’s fees have been paid
Agister’s Lien – a lien upon an animal provided by contract or statute for the benefit of a person who has fed or cared for the animal (an agister)
Agricultural Lien – a statutory lien that protects a seller of farming equipment by giving the seller a lien on crops grown with the equipment
Architect’s Lien – a statutory lien on real property in favor of an architect who has drawn the plans for and supervised the construction of improvements on the property
Attorney’s Lien – the right of an attorney to hold or retain a client’s money or property or to encumber money payable to the client until the attorney’s fees have been properly determined and paid
Charging Lien – an attorney’s lien to secure their fee, on a specified property in the debtor’s possession, acquired from from the claim that the attorney has helped the client perfect, as through a judgment or settlement
Retaining Lien – an attorney’s to retain possession of a client’s papers, books, documents, securities, moneys, and property as security for the general balance due to him until the client has paid for the attorney’s services
Auctioneer’s Lien – the right of an auctioneer to retain property, goods, and documents held on the seller’s behalf until the winning bidder has paid all that is owed
Banker’s Lien – the right of a bank to satisfy a customer’s matured debt by seizing the customer’s money or property in the bank’s possession
Carrier’s Lien – a carrier’s right to retain possession of cargo until the owner of the cargo pays its shipping costs
Demurrage Lien – the lien of a carrier by ship or rail upon a shipment for unpaid demurrage (delay in shipping) charges
Hospital Lien – asserted by a hospital against any judgment, compromise, or settlement received by a hospital patient either from a third person who caused the patient’s injuries or from the third person’s insurer, to recover the costs of emergency and ongoing medical and other services
Undertaking – a written promise, pledge, or engagement which binds the signatory to an obligation; unlike a bond, the principal isn’t required to sign
guaranty – a written promise to answer for the debt, default, or miscarriage of another person, provided such person does not respond by payment or performance
guarantor – someone who makes a guaranty or gives security for a debt, either guaranteeing payment or collection if the principal debtor defaults
charging instrument – any of three formal legal documents used to officially charge someone with a crime
covenant – a formal agreement or promise, usually in a contract or deed, to do or not do a particular act; a compact or stipulation
deed – a written instrument conveying real property or an interest therein
fiduciary relationships – one person has a duty to act with a high degree of care for the benefit of another(s) on matters within the scope of the relationship
Fiduciary – someone owes to another the duties of good faith, loyalty, due care, & disclosure in managing another’s money or property
Guardian/Ward Fiduciary Relationship – one person with legal authority has duty to care for another’s person or property, especially because of the other’s infancy, incapacity, or disability
Guardian – someone who has the legal authority and duty to care for another’s person or property, especially because of the other’s infancy, incapacity, or disability
Ward – a person, usually a minor, who is under a guardian’s charge or protection
Settlor/Trustee/Beneficiary Fiduciary Relationship – one person must act with a high degree of care (fiduciary-trustee) in managing the estate of whoever sets up the trust (Settlor) in a manner that benefits a Beneficiary or Beneficiaries
Settlor – the creator of a trust, who becomes so by conveying or transferring property to another (the trustee) to hold in trust for a third person (the beneficiary)
Trust – a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary)
Trustee – someone with legal title to property that holds it in trust, with duties to convert to cash all debts and securities that are not qualified legal investments, to reinvest the cash in proper securities, to protect & preserve the trust property, and to ensure that it is employed solely for the beneficiary
Beneficiary – someone who is designated to receive something as a result of a legal arrangement or instrument
master and servant relationship – same as employer-employee relationship, similar but not identical to a principal-agent relationship
principal and agent –
agency – a fiduciary relationship which arises when one person (a principal) manifests assent to another (an agent) that the agent will act on the principal’s behalf, subject to the principal’s control, and. the agent manifests assent or otherwise consents to do so
administrative (government) agency – a single officer, board, bureau, commission, office, or department of the executive branch of government, with the authority to implement and administer particular legislation
administrative law – governs the organization and operation of (executive and independent) administrative agencies, and their relations to legislature, executive, the judiciary, and the public
agent –
Fed. Rules Simplified
Federal Rules of Civil Procedure- Simplified:
Fed. Rules Civil Proc. Titles I through Title VI:
Title I- Scope of Rules; Form of Action
Rule 1– Scope and Purpose
Rule 2– One Form of Action
Title II– Commencing an Action; Service of Process; Pleadings, Motions, & Orders
* Rule 3– Commencing a Civil Action: Filing a Complaint *
* Rule 4– Serving a ‘Summons’ to the Defendant(s) *
Rules 4(a) and (b) – Clerk of Court must Sign & Seal the Summons
Rules 4(d) and (k) – Notice of Lawsuit & Request to Waive Service of Summons
Rule (c), and (e) through (m) – How to Serve the Summons to the Defendant
Rule 4(e) – Serving an Individual Within a Judicial District of the United States.
Rule 4(f) – Serving an Individual in a Foreign Country.
Rule 4(g) – Serving a Minor or an Incompetent Person.
Rule 4(h) – Serving a Corporation, Partnership, or Association.
Rule 4(i) – Serving the United States and its Agencies, Corporations, Officers, or Employees.
Rule 4(j) – Serving a Foreign, State, or Local Government.
Rule 4.1– Serving Other Process
Rule 5- Serving and Filing Pleadings and Other Papers
Rule 5.1– Constitutional Challenge to a Statute
Rule 5.2– Privacy Protection for Filings Made with the Court
Rule 6– Computing and Extending Time; Time for Motion Papers
Title III- Pleadings & Motions
Rules 7 through 11:
Rule 7– Pleadings Allowed; Form of Motions and Other Papers
Rule 7.1– Disclosure Statement
Rule 8 – General Rules of Pleading
Rule 9 – Pleading Special Matters
Rule 10 – Form of Pleadings
Rule 11 – Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
Rules 12 through 16:
Rule 12 – Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Rule 13 – Counterclaim and Crossclaim
Rule 14 – Third-Party Practice
Rule 15 – Amended and Supplemental Pleadings
Rule 16 – Pretrial Conferences; Scheduling; Management
Title IV- Parties
Rule 17 – Plaintiff and Defendant; Capacity; Public Officers
Rule 18 – Joinder of Claims
Rule 19 – Required Joinder of Parties
Rule 20 – Permissive Joinder of Parties
Rule 21 – Misjoinder and Nonjoinder of Parties
Rule 22 – Interpleader
Rule 23- Class Actions
Rule 23.1 – Derivative Actions
Rule 23.2 – Actions Relating to Unincorporated Associations
Rule 24 – Intervention
Rule 25 – Substitution of Parties
Title V- Disclosures & Discovery
Rule 26 – Duty to Disclose; General Provisions Governing Discovery
Rule 27 – Depositions to Perpetuate Testimony
Rule 28 – Persons Before Whom Depositions May Be Taken
Rule 29 – Stipulations About Discovery Procedure
Rule 30 – Depositions by Oral Examination
Rule 31 – Depositions by Written Questions
Rule 32 – Using Depositions in Court Proceedings
Rule 33 – Interrogatories to Parties
Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 35 – Physical and Mental Examinations
Rule 36 – Requests for Admission
Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Title VI- Trials
Rule 38 – Right to a Jury Trial; Demand
Rule 39 – Trial by Jury or by the Court
Rule 40 – Scheduling Cases for Trial
Rule 41 – Dismissal of Actions
Rule 42 – Consolidation; Separate Trials
Rule 43 – Taking Testimony
Rule 44 – Proving an Official Record
Rule 44.1 – Determining Foreign Law
Rule 45 – Subpoena
Rule 46 – Objecting to a Ruling or Order
Rule 47 – Selecting Jurors
Rule 48 – Number of Jurors; Verdict; Polling
Rule 49 – Special Verdict; General Verdict and Questions
Rule 50 – Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
Rule 51 – Instructions to the Jury; Objections; Preserving a Claim of Error
Rule 52 – Findings and Conclusions by the Court; Judgment on Partial Findings
Rule 53 – Masters
Fed. Rules Civil Proc. Titles VII through Title XIII:
Title VII- Judgment
Rule 54 – Judgment; Costs
Rule 55 – Default; Default Judgment
Rule 56 – Summary Judgment
Rule 57 – Declaratory Judgment
Rule 58 – Entering Judgment
Rule 59 – New Trial; Altering or Amending a Judgment
Rule 60 – Relief from a Judgment or Order
Rule 61 – Harmless Error
Rule 62 – Stay of Proceedings to Enforce a Judgment
Rule 62.1 – Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal
Rule 63 – Judge’s Inability to Proceed
Title VIII- Provisional & Final Remedies
Rule 64 – Seizing a Person or Property
Rule 65 – Injunctions and Restraining Orders
Rule 65.1 – Proceedings Against a Surety
Rule 66 – Receivers
Rule 67 – Deposit into Court
Rule 68 – Offer of Judgment
Rule 69 – Execution
Rule 70 – Enforcing a Judgment for a Specific Act
Rule 71 – Enforcing Relief For or Against a Nonparty
Title IX- Special Proceedings
Rule 71.1 – Condemning Real or Personal Property
Rule 72 – Magistrate Judges: Pretrial Order
Rule 73 – Magistrate Judges: Trial by Consent; Appeal
Title X- District Courts & Clerks: Conducting Business; Issuing Orders
Rule 77 – Conducting Business; Clerk’s Authority; Notice of an Order or Judgment
Rule 78 – Hearing Motions; Submission on Briefs
Rule 79 – Records Kept by the Clerk
Rule 80 – Stenographic Transcript as Evidence
Title XI- General Provisions
Rule 81– Applicability of the Rules in General; Removed Actions
Rule 82 – Jurisdiction and Venue Unaffected
Rule 83 – Rules by District Courts; Judge’s Directives
Rule 84 – Forms [Abrogated]
Rule 85 – Title
Rule 86 – Effective Dates
XIII- Supplemental Rules for Admiralty or Maritime Claims & Asset Forfeiture Actions
Rule A – Scope of Rules
Rule B – In Personam Actions: Attachment and Garnishment
Rule C – In Rem Actions: Special Provisions
Rule D – Possessory, Petitory, and Partition Actions
Rule E – Actions in Rem and Quasi in Rem: General Provisions
Rule F– Limitation of Liability
Rule G– Forfeiture Actions in Rem
Federal Rules of Criminal Procedure- Simplified:
Title I – Applicability
Rule 1. Scope; Definitions
Rule 2. Interpretation
Title II – Preliminary Proceedings
Rule 3. The Complaint
Rule 4. Arrest Warrant or Summons on a Complaint
Rule 4.1 Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means
Rule 5. Initial Appearance
Rule 5.1 Preliminary Hearing
Title III – The Grand Jury, the Indictment, and the Information
Rule 6. The Grand Jury
Rule 7. The Indictment and the Information
Rule 8. Joinder of Offenses or Defendants
Rule 9. Arrest Warrant or Summons on an Indictment or Information
Title IV – The Arraignment and Preparation for Trial
Rule 10. Arraignment
Rule 11. Pleas
Rule 12. Pleadings and Pretrial Motions
Rule 12.1. Notice of an Alibi Defense
Rule 12.2. Notice of an Insanity Defense; Mental Examination
Rule 12.3. Notice of a Public-Authority Defense
Rule 12.4. Disclosure Statement
Rule 13. Joint Trial of Separate Cases
Rule 14. Relief from Prejudicial Joinder
Rule 15. Depositions
Rule 16. Discovery and Inspection
Rule 17. Subpoena
Rule 17.1. Pretrial Conference
Title V – Venue
Rule 18. Place of Prosecution and Trial
Rule 19. [Reserved]
Rule 20. Transfer for Plea and Sentence
Rule 21. Transfer for Trial
Title VI – Trial
Rule 23. Jury or Nonjury Trial
Rule 24. Trial Jurors
Rule 25. Judge’s Disability
Rule 26. Taking Testimony
Rule 26.1 Foreign Law Determination
Rule 26.2 Producing a Witness’s Statement
Rule 26.3 Mistrial
Rule 27. Proving an Official Record
Rule 28. Interpreters
Rule 29. Motion for a Judgment of Acquittal
Rule 29.1 Closing Argument
Rule 30. Jury Instructions
Rule 31. Jury Verdict
Title VII – Post-Conviction Procedures
Rule 32. Sentencing and Judgment
Rule 32.1 Revoking or Modifying Probation or Supervised Release
Rule 32.2 Criminal Forfeiture
Rule 33. New Trial
Rule 34. Arresting Judgment
Rule 35. Correcting or Reducing a Sentence
Rule 36. Clerical Error
Rule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal
Rule 38. Staying a Sentence or a Disability
Title VIII – Supplementary and Special Proceedings
Rule 40. Arrest for Failing to Appear in Another District or for Violating Conditions of Release Set in Another District
Rule 41. Search and Seizure
Rule 42. Criminal Contempt
Title IX – General Provisions
Rule 43. Defendant’s Presence
Rule 44. Right to and Appointment of Counsel
Rule 45. Computing and Extending Time
Rule 46. Release from Custody; Supervising Detention
Rule 47. Motions and Supporting Affidavits
Rule 48. Dismissal
Rule 49. Serving and Filing Papers
Rule 49.1 Privacy Protection For Filings Made with the Court
Rule 50. Prompt Disposition
Rule 51. Preserving Claimed Error
Rule 52. Harmless and Plain Error
Rule 53. Courtroom Photographing and Broadcasting Prohibited
Rule 55. Records
Rule 56. When Court Is Open
Rule 57. District Court Rules
Rule 58. Petty Offenses and Other Misdemeanors
Rule 59. Matters Before a Magistrate Judge
Rule 60. Victim’s Rights
Rule 61. Title
Federal Rules of Evidence- Simplified:
Article I- General Provisions
Rule 101 – Scope; Definitions
Rule 102 – Purpose
Rule 103 – Rulings on Evidence
Rule 104 – Preliminary Questions
Rule 105 – Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
Rule 106 – Remainder of or Related Writings or Recorded Statements
Article II- Judicial Notice
Rule 201 – Judicial Notice of Adjudicative Facts
Article III- Presumptions in Civil Cases
Rule 301 – Presumptions in Civil Cases Generally
Rule 302 – Applying State Law to Presumptions in Civil Cases
Article IV- Relevance and Its Limits
Rule 401 – Test for Relevant Evidence
Rule 402 – General Admissibility of Relevant Evidence
Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
Rule 404 – Character Evidence; Crimes or Other Acts
Rule 405 – Methods of Proving Character
Rule 406 – Habit; Routine Practice
Rule 407 – Subsequent Remedial Measures
Rule 408 – Compromise Offers and Negotiations
Rule 409 – Offers to Pay Medical and Similar Expenses
Rule 410 – Pleas, Plea Discussions, and Related Statements
Rule 411 – Liability Insurance
Rule 412 – Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition
Rule 413 – Similar Crimes in Sexual-Assault Cases
Rule 414 – Similar Crimes in Child Molestation Cases
Rule 415 – Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
Article V- Privileges
Rule 502 – Attorney-Client Privilege and Work Product; Limitations on Waiver
Rule 501 – Privilege in General
Article VI- Witnesses
Rule 601 – Competency to Testify in General
Rule 602 – Need for Personal Knowledge
Rule 603 – Oath or Affirmation to Testify Truthfully
Rule 604 – Interpreter
Rule 605 – Judge’s Competency as a Witness
Rule 606 – Juror’s Competency as a Witness
Rule 607 – Who May Impeach a Witness
Rule 608 – A Witness’s Character for Truthfulness or Untruthfulness
Rule 609 – Impeachment by Evidence of a Criminal Conviction
Rule 610 – Religious Beliefs or Opinions
Rule 611 – Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612 – Writing Used to Refresh a Witness’s Memory
Rule 613 – Witness’s Prior Statement
Rule 614 – Court’s Calling or Examining a Witness
Rule 615 – Excluding Witnesses
Article VII- Opinions and Expert Testimony
Rule 701 – Opinion Testimony by Lay Witnesses
Rule 702 – Testimony by Expert Witnesses
Rule 703 – Bases of an Expert
Rule 704 – Opinion on an Ultimate Issue
Rule 705 – Disclosing the Facts or Data Underlying an Expert
Rule 706 – Court-Appointed Expert Witnesses
Article VIII- Hearsay
Rule 801- Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802 – The Rule Against Hearsay
Rule 803 – Exceptions to the Rule Against Hearsay
Rule 804 – Hearsay Exceptions; Declarant Unavailable
Rule 805 – Hearsay Within Hearsay
Rule 806 – Attacking and Supporting the Declarant
Rule 807 – Residual Exception
Article IX- Authentication and Identification
Rule 901 – Authenticating or Identifying Evidence
Rule 902 – Evidence That Is Self-Authenticating
Rule 903 – Subscribing Witness
Article X- Contents of Writings, Recordings, and Photographers
Rule 1001 – Definitions That Apply to This Article
Rule 1002 – Requirement of the Original
Rule 1003 – Admissibility of Duplicates
Rule 1004 – Admissibility of Other Evidence of Content
Rule 1005 – Copies of Public Records to Prove Content
Rule 1006 – Summaries to Prove Content
Rule 1007 – Testimony or Statement of a Party to Prove Content
Rule 1008 – Functions of the Court and Jury
Article XI- Miscellaneous Rules
Rule 1101 – Applicability of the Rules
Rule 1102 – Amendments
Rule 1103 – Title
Federally-Recommended Law Dictionaries Used to Help Build This Site:
“Barron’s Law Dictionary Third Edition” by Steven H. Hifis (1975, 1991)
Ballantine’s Law Dictionary with Pronunciations 3rd Ed. (1930, 1969)
Ballantine’s Law Dictionary Legal Assistant Edition (1994)
Black’s Law Dictionary Deluxe Tenth Edition (2014)
“Essential Supreme Court Decisions” (16th Ed.) by John R. Vile (2014)
“The Law Enforcement Handbook” by Desmond Rowland and James Bailey (1983, 1994)
“Constitution of the United States; Its Sources and Application” by Thomas James Norton (1941)
Uncategorized:
Civil Law Guide
Criminal Law Self-Help:
Classifications of Laws, Crimes, and Punishments:
Types of Laws:
Code – the published statutes of a jurisdiction, arranged in a systematic form by chapters and sections
Model Penal Code – a proposed criminal code prepared jointly by the Commission on Uniform State Laws and the American Law Institute, used as the basis for criminal-law revision by many states
Penal Code – the published criminal statutes of a jurisdiction, usually defining and categorizing offenses, and setting forth their respective punishments
Uniform Commercial Code – a uniform statute that governs commercial transactions, adopted in some form by every state and the District of Columbia
United States Code – the official codification of general and permanent laws enacted by congress
Court Rules – regulations having the force of law and governing practice and procedure in the various courts
Ordinance – a municipal regulation, usually forbidding or restricting an activity
Policy – A standard course of action that has been officially established by an organization, business, political party
Public Policy – the policy (course of action) in relation to the administration of the law, to protect and promote the general welfare of the public
Statute – a legislation (aka act or law) enacted by any lawmaking body, such as a legislature, administrative board, or municipal court
Varying Degrees of Crimes:
Misdemeanor – less serious than a felony, usually punished by fine, penalty, forfeiture, or a brief term in jail
Offense – synonymous with “crime”
Bailable Offense – a criminal charge for which a defendant may be released from custody after providing proper security
indictable offense – a crime that can be prosecuted by indictment, usually only felonies or serious misdemeanors
substantive offense – a crime that is complete in itself and not dependent on another crime for one of its elements
Felony – a serious crime usually punished by more than one year in prison, or death
Infraction – a violation, usually of a rule, regulation, or local ordinance, not punishable by incarceration
Legal Terms used in Assessing Types of Crimes:
Corrupt – subverting the instrumentalities of government to personal profit; impeding or obstructing the administration of justice
malice – intent to commit a wrongful act; reckless disregard of the law or of a person’s legal rights
express malice – intent to kill or inflict injury arising from a deliberate, rational mind, or, in defamation cases, uttering or publishing a defamatory statement that is false, or with reckless disregard about whether the statement is true
malice aforethought – intent to kill or injure, or deliberate commission of a dangerous or deadly act in disregard of peoples’ lives or safety
unjustifiable – legally or morally unacceptable; devoid of any good reason that would provide an excuse or defense
Simple – (of a crime) not aggravated
Aggravated – a more serious crime due to violence, presence of a deadly weapon, or intent to commit another crime
Types of Punishments:
Fine – a monetary penalty imposed as punishment upon a person convicted of a crime
Forfeiture – a divestiture of property without compensation, in consequence of a default or an offense
penalty – punishment imposed on a wrongdoer, usually in the form of imprisonment or fine
Restitution – in cases of unjust enrichment (i.e. fraud, theft), compensation paid by a criminal to a victim, ordered as part of a sentence or as a condition of probation
Unjust Enrichment – unlawful, unjustifiable retention of property, without consent from the transferor(s), for which the beneficiary must make restitution or recompense
action de in rem verso – an action for unjust enrichment wherein the plaintiff must show (i) an enrichment was bestowed (ii) it caused an impoverishment (iii) there is no justification (iv) the plaintiff has no other adequate remedy at law, including no remedy under an express or implied contract
Various Crimes and corresponding laws § 1:
Color of Law Crimes – abuse of authority by government employees:
18 U.S.C. § 242 – Deprivation of Rights Under Color of Law
Color of Law Crimes – related terms:
state action – action by state or local government, or conduct sanctioned by state or local authorities, such as the enforcement of a restrictive covenant; such action may potentially violate a person’s rights
Deprivation of Rights – Federal and State Statutes:
Deprivation of Rights Statute (California) – Cal 2 PEN § 422.6
Extortion – the unlawful taking by an officer of the law, by color of his office, of any money or thing of value not due to him, or taking more than is due, or taking it before it is due
18 U.S.C. § 872 – Extortion by officers or employees of the United States
False Statements, Writings, Concealments, etc., by Government Employees:
18 U.S. C. § 1001 – Statements or entries generally
28 U.S.C. § 1746 – Unsworn declarations under penalty of perjury
Perjury and False Swearing – lying under Oath of Office, in an Affidavit, in a judicial proceeding or administrative proceeding, or to an Insurer
42 U.S.C. § 1621 – Perjury generally (Perjury of Oath)
Crimes Necessarily Committed by Two or More Persons:
Conspiracy – two or more persons operating in tandem, directly or indirectly, to perform an criminal act using lawful means, or a lawful objective using criminal means
18 U.S.C. § 241 – “Conspiracy against rights”
Rules and Doctrines pertaining to Conspiracy Cases:
coconspirator’s rule – an exception to the hearsay rule: one conspirator’s acts and statements, if made during and in furtherance of the conspiracy, are admissible against a codefendant even if made in the codefendant’s absence
Corrupt-Motive Doctrine – a defunct rule that conspiracy is punishable only if the agreement was entered into with an evil purpose, not merely an intent to do the illegal act
Wharton’s rule – an agreement by two or more persons to commit a crime cannot be prosecuted as a conspiracy if it was committed mutually, and not involving anyone other than themselves
withdrawal from conspiracy – a conspirator who withdraws from a conspiracy before it is carried out may avoid prosecution if she discloses the conspiracy to law enforcement authorities
42 U.S.C. § 1985 – “Conspiracy to Interfere with Civil Rights” – 2 or more persons depriving rights
42 U.S.C. § 1986 – “Action for Neglect to Prevent” – powerful code works together with “Conspiracy to Interfere with Civil Rights”
Racketeering – a pattern of illegal activity (i.e. bribery, extortion, fraud, murder) carried out as part of an enterprise owned or controlled by the conspirators
RICO Laws – criminalizes racketeering that affects interstate commerce or persons or businesses engaged in interstate commerce
18 U.S.C. § 2 “Aiding & Abetting” – knowingly and willingly assisting a crime
Fraud – concealing a fact or misleading, to induce someone(s) to part with property or surrender a legal right
Legal Terms that pertain to Fraud:
Badges of Fraud – suspicious circumstances that indicate the possibility of fraud
Statute of Frauds – a statute (based on the English Statute of Frauds) designed to prevent fraud and perjury by requiring certain contracts to be in writing and signed by the party to be charged
Actual Fraud – intentionally or recklessly concealing a fact or misleading, in a way that injures another(s)
advance-fee fraud – persuading victimes to pay a “fee” in anticipation of receiving a larger benefit which isn’t delivered
affinity fraud – tailoring a fraud to target members of a particular group
Bank Fraud – attempting to defraud a financial institution (i.e. to obtain property owned by or under control)
18 U.S.C. § 1344. Bank fraud
bankruptcy fraud – fraudulent acts (i.e. destroying, withholding, or falsifying documents, concealing assets) to defeat bankruptcy-code provisions
18 U.S.C. § 152. Concealment of assets; false oaths and claims; bribery
consumer fraud – intentional deceptive acts or practices,or false pretense, promise, or misrepresentation, to induce someone(s) to buy something
Extrinsic Fraud – intentional misrepresentation or deception which deprives someone(s) of informed consent, full participation, or due process
Constructive Fraud – unintentional deception or misrepresentation which injures another
Embezzlement – fraudulent taking of personal property to which one is entrusted, especially as a fiduciary
Fraudulent Conversion – an essential element of the crime of embezzlement: appropriation of money or other property to one’s personal use after obtaining lawful possession of it, or using it for the benefit of anyone other than its owner
fraudulent misrepresentation – words spoken or written while knowing that they are false in order to deceive and induce action in reliance
Mail Fraud – using the U.S. Postal Service to make false representations in order to obtain money or anything else of value
Theft – taking something to which one is not entitled, by any means
Larceny – the unlawful taking and carrying away of someone else’s tangible personal property with the intent to deprive the possessor of it permanently
Grand Larceny – larceny of property worth more than a specified value (usually $100); the minimum differs from state to state
Various Types (and degrees) of Larceny (and corresponding laws):
robbery – the felony of stealing from a person (body) or in the person’s presence, with violence or intimidation (aggravated larceny)
Intellectual-Property Crime – illegally copying and selling someone else’s intellectual property
Environmental Crimes – harm to air, water, soil quality, or endangered species:
42 U.S.C. §7 401 – Clean Air Act of 1963 and Subsequent Amendments
Homicide – the killing of another human
Criminal (felonious) Homicide:
Murder – the killing of a human being with malice aforethought
first degree murder – willful, deliberate, or premeditated murder, or murder committed during the course of another dangerous felony
felony murder – occurs during the commission of a dangerous felony (often limited to rape, kidnapping, robbery, burglary, and arson)
felony-murder rule – death which occurs by accident or chance during the course of the commission of a felony is first degree murder
murder by torture – murder preceded by intentional infliction of pain and suffering on the victim
third degree murder – a wrong that does not constitute first or second degree murder; few states have third degree murder within their legal codes
second degree murder – committed with intent to kill, but not premeditated or deliberate
depraved-heart murder – a murder resulting from an act so reckless and careless of the safety of others, it demonstrates the perpetrator’s complete lack of regard for human life
Manslaughter – the unlawful killing of a human being without malice aforethought
Involuntary Manslaughter – homicide with no intention to kill or do grievous bodily harm, but committed with criminal negligence or during the commission of a crime not included within the felony-murder rule
voluntary manslaugher – homicide committed with provocation or in the heat of passion
Heat of Passion – rage, terror, or furious anger suddenly aroused by another person’s words or actions, thereby reducing a murder charge to manslaughter
Noncriminal (nonfelonious) Homicide:
Excusable Homicide – homicide by accident or self-defense
Justifiable Homicide – the killing of another person in self-defense, to prevent a crime or a criminal’s escape, or as execution for a capital crime
Rules of Self-Defense – justifiable or unjustifiable?
retreat rule – unless at home or at work, a victim of assault generally has a duty to retreat instead of using deadly force, so long as there is a safe avenue of escape
Obstruction of Justice – impeding or hindering the administration of justice (i.e. tampering with evidence, witness, juror, or judge)
Trespass – a misfeasance, transgression, or offense which damages another’s person, health, reputation, or property
Burglary – breaking and entering any building with the intent to commit a felony (i.e. larceny, murder)
forcible entry (and detainer) – entry upon real property peaceably in the possession of another, against his will, without authority of law, by actual force or threat of potentially employing force
Election Fraud and Electioneering (Crimes)
Corrupt Practices Acts – federal and state statutes that regulate expenditures by candidates for election, and contributions to their election campaigns
Gerrymandering – manipulating boundary lines of political districts to give an unfair advantage to one political party or to dilute the political strength of voters of a particular race, color, or national origin
Delineational Gerrymandering – gerrymandering by varying the districts’ shape, generally by methods known as cracking, packing, and stacking
Lobbying – addressing or soliciting members of a legislative body, in the lobby off the chamber or elsewhere, for the purpose of influencing their votes
Treason – attempting to overthrow one’s state or the United States, either by making or inciting war against the government or by materially supporting its enemies
Bribery – the corrupt payment, receipt, or solicitation of anything of value with intent to influence the action of a public official
18 U.S.C. § 201 – Bribery of public officials and witnesses
Subversion – the process of overthrowing, destroying, or corrupting the government, often through infiltration to undermine domestic policy
File a Criminal Complaint:
History: The First Civil Law Code in the U.S.
Police Jury – the governing body of a parish
Uncategorized Cases
Kern Cty. Sheriff’s Deputies Disregard Couple’s Adverse Possession Claim, Arrest on False Pretenses, and Dispossess Them of Property
Las Vegas – Evidence of More Than One Shooter, Plausible Motive, Additional Potential Suspects. Recent Leaks May be a Diversion
Wilson v. COUNTY OF NEVADA
Event #3: I filed 2 Liability Claims w/ The City of Grass Valley
Wilson v. County of Nevada Video Footage
Event #1: Footage & Transcript from 5-17-14 (aka “Pack the Courtroom!” pre-trial documentary pt.1)
Event #2: Footage & Transcript from 5-21-14 (aka “Pack the Courtroom!” pre-trial documentary pt. 2)
Event #4: June 25th, 2014: The Pre-Trial Hearing: “Right to Audio Record Hearing & Trial Illegally Denied Under Nevada County Superior Courthouse’s Faulty Media Policy”
Event #5: I posted both “Pack the Courtroom!” documentaries within this In-Depth “Evidence Webpage” that was available to The Public before to Trial
Civil Law and Criminal Law – what’s the difference?
Time Limits for Filing Cases:
Laches – unreasonable delay in pursuing a right or claim, thus causing a court to deny relief that would otherwise be granted
Nonclaim Statute – sets a time limit for creditors to bring claims against a decedent’s estate; usually not subject to toiling and not waivable
statute of limitations – sets time limits for civil actions or criminal prosecutions to be filed
accrual of cause of action – a cause of action generally accrues at the time of the injury, not at the time the damage is discovered
accrual rule – delays the limitations period to when the plaintiff discovers the facts which form the bases for a cause of action (often in fraud cases)
cause of action – a group of operative facts which give rise to one or more bases for suing
identity of causes of action – two actions asserting the same rights, demanding the same relief, and founded on the same fact
joinder of causes of action – union of two or more causes of action, each of which could be made the basis of a separate suit, in the same complaint, declaration, bill, or petition
misjoinder of causes of action – improper joining of two or more causes of action which should not be joined due to the lack of consistency between the causes
separate counts – Two or more charges of distinct offenses in an indictment or information, each count being in contemplation of the law a separate indictment, and constituting a separate cause of action
splitting causes of action – bringing separate actions upon separate and distinct causes of action against the same person instead of joining all causes in one action
occurrence rule – a limitations period that begins to run when the alleged wrongful act or omission occurs; applies in most breach-of-contract claims
discovery rule – delays the limitations period for injuries that are difficult to detect (i.e. medical malpractice) to when the plaintiff discovers (or reasonably should have discovered) the injury
Statutes of Limitations for Federal Cases:
statute of limitations for federal conspiracy cases – five or more years
statute of limitations for federal non-capital offenses – five years
Supreme Court Rulings re: Statute of Limitations:
suspension of statute of limitations (“tolling the statute”) – circumstances that suspend or interrupt of the statute of limitations
equitable tolling – the statute of limitations will not bar a claim if the plaintiff did not discover the injury until after the limitations period ended, or extraordinary circumstances prevented earlier filing
tolling agreement – an agreement between a potential plaintiff and a potential defendant by which the defendant agrees to extend the limitations period on the plaintiff’s claim so that they have more time to resolve their dispute without litigation
Statute of Repose – unlike a statute of limitations, establishes a maximum period of time in which an action can be brought, whether or not there has been an injury
Representing Yourself “Pro Se” and Assisting Others as a Non-Lawyer:
Lawyer? Attorney? Counselor? What’s the Difference?
Attorney – an attorney at law or attorney in fact; unless otherwise indicated, generally means attorney at law
attorney at law – an officer of the court, licensed to practice law; a lawyer
barrister – in England or Northern Ireland, a lawyer who is admitted to plead at the bar and who may argue cases in superior courts; similar function as an American trial lawyer
District Attorney – an appointed, or, usually elected public officer who conducts actions, generally criminal prosecutions, on behalf of his state in his district, usually a county
United States District Attorney – a lawyer appointed by the President to represent, under the direction of the Attorney General, the federal government in proceedings within a federal district.
prosecuting attorney – an elected or appointed attorney at law, who serves as a public officer, to conduct criminal prosecutions on behalf of his jurisdiction
Attorney General – chief law officer of a state or of the United States; advises the government on legal matters and represents it in litigation
attorney-in-fact – one who is authorized, via a power of attorney, to act as legal agent in order to transact business, on behalf of his principal
attorney’s fee – the charge for services (i.e. hourly fee, flat fee, or contingent fee)
Private Attorney General’s Act – enables private attorneys who bring lawsuits in the public interest to collect attorney’s fees
42 U.S.C. § 1988. Proceedings in vindication of civil rights
Newman v. Piggie Park Enterprises, Inc., (1968) – one who succeeds in obtaining an injunction under Title II of the Civil Rights Act of 1964 should ordinarily recover an attorney’s fee under § 204(b)
power of attorney – an instrument granting someone authority to act as agent or attorney-in-fact for the grantor, thus creating an agency relationship
counselor – a lawyer or barrister, a term usually used to reference one who is acting as a courtroom advocate
Last-Link Doctrine – the rule that an attorney need not divulge nonprivileged information protected by the attorney-client privilege, especially if it could lead to indictment or conviction
solicitor – an attorney at law acting as head of the law department of a municipal corporation or other division of government; in England, similar to a paralegal
Good Samaritan Action – brought by a person or group for the benefit of all or part of a community; often immunizes those acting in good faith from liability
equity-of-the-statute rule – a statute should be interpreted according to the legislators’ purpose and intent, even if this interpretation goes well beyond the literal meaning of the text
golden rule (1) the doctrine that legal terms should be taken into context to avoid absurdity or inconsistency; or (2) an argument given to jurors to consider a litigant’s position
purposivism – texts are to be interpreted to achieve the social, economic, and political objectives that drafters had in mind
Filing against Government Agencies and/or Employees:
Determine: Did the Officer follow or violate Protocol?
Wrongful Death – a death caused by someone’s negligent or willful act or omission
File Records Requests to Gather All the Facts:
Effective Terms for Successful Fact-Finding:
File – a lawyer’s complete record of a case
Inquiry – A seeking of information; an examination or investigation
Investigation – trying to find out the truth about something, such as a crime, accident, or historical issue via a systematic examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method
Record – information that is inscribed on a tangible medium or that, having been stored in an electronic or other medium, is retrievable in perceivable form
How to Obtain a Law Enforcement Investigation Report
How to Perform a FOIA Requests to obtain information from a federal agencies
Officers are Considered “Employees in Law Enforcement Activities”
Privacy Act of 1974 – obtain records “that pertain to you”
Filing against a State or Local Employees and/or Agencies:
42 U.S.C. § 1983. Civil action for deprivation of rights
Amendment: ‘A Coalition of Nations for Human Rights’
Land Grants & Resources Issued for Productive, Eco-Wise Homesteaders & Sustainability Projects
Petition: Allow Citizens to Register With More Than One Political Party
Radio Interviews on “Treaty Talk” Radio
Heavy Hitters – build a Landmark case to Mandate
Build Cases to Challenge & Bust Monopolies
Class-Action Lawsuits, Monopoly-Busting, and
Mandatory Class Action – a class action in which the court does not allow class members to opt out
Miscellaneous Uncategorized Terms:
Claim Jumping – taking advantage of the failure of a person who is mining public land to perfect her claim in the manner required by law, by perfecting a claim at the same location in order to obtain it for oneself
Claim of Right – an entry upon land with the intent to claim and hold it for one’s own, even though the claimant does not have title to the land and has no right to be on it
Claim of Right Doctrine – the tax law doctrine that a taxpayer who receives money that he may have to repay, because his right to retain it is in dispute, must nonetheless pay income tax on it for the tax year in which it was received
First Amendment considerations arise when you are openly recording the activities of police officers (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.
Currently, the following U.S. Courts of Appeals have recognized the First Amendment right to record the police and/or other public officials:
First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”);
Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”).
Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”).
Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).
Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police)
Adkins v. Limtiaco, _ Fed. App’x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
The Appellate Division of the Superior Court of New Jersey likewise recognized the existence of such a right in Ramos v. Flowers, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012), relying heavily on the First Circuit’s reasoning in the Glik case.
Even if you are not within these jurisdictions, the 14th Amendment guarantees “equal protections of the laws” from one State to another. So, if one State recognizes a right, it would be discrimination & a violation of one’s rights to deny someone in another State those same protections. This isn’t to say that your right to film will not be violated- in all probability it will happen to some people until individuals begin actually building their own cases & filing against officials to hold them accountable. So long as officers don’t have anyone filing against them for these types of violations, they will likely continue to violate without this liability imposed on them.
No court has rejected the existence of such a right. Furthermore, the United States Department of Justice has openly stated its position that the First Amendment protects all U.S. citizens who record the activities of the police in public, and has intervened in at least one civil rights lawsuit against police officers to support that First Amendment right. See Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888-BEL (D. Md. Statement of Interest filed January 10, 2012).
NOTE: The First Amendment right to record does NOT give you the right to interfere in the performance of officials’ duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights.[1]
The following music video by B. Dolan featuring Toki Wright, Jasiri X, Buddy Peace, & Sage Francis is called “FILM THE POLICE”[2]: caution contains some instances of foul language:
[1]: Digital Media Law Project, “Recording Police Officers and Public Officials”: www.dmlp.org/legal-guide/recording-police-officers-and-public-officials
[2]: “FILM THE POLICE” B. Dolan ft. Toki Wright, Jasiri X, Buddy Peace, Sage Francis #FILMTHEPOLICE: www.youtube.com/watch?v=hyT1buoyTnY
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July 19, 2013 adraghastar@gmail.com	1 Comment
equitable tolling – the doctrine wherein a statute of limitations will not bar a claim if the plaintiff did not discover the injury until after the limitations period ended, or extraordinary circumstances prevented earlier filing
statute of limitations for conspiracy cases – usually 5+ years
False Arrest &/or Imprisonment – an arrest and/or restraint and/or imprisonment made without proper legal authority
comparative negligence doctrine – reduces a plaintiff’s recovery proportionally to the plaintiff’s degree of fault in causing the damage, rather than barring recovery completely
Government Torts – committed by a government employee, agent, or instrumentality:
Tort-of-Another Doctrine – in some states, a statutory rule authorizing courts to award litigation related expenses (i.e. attorney’s fees) to a prevailing party forced to bring or defend a lawsuit against a third party for a tort committed by someone else who refused, after notice, to bring or defend the lawsuit
respondeat superior – the doctrine wherein liability is imposed upon an employer for the acts of its employees committed in the course and scope of their employment, or on a principal for the acts of their agent(s)
extrajudicial remedy – a remedy not obtained from a court, obtained outside a court
suit – a broader term than “action” for a judicial proceeding of a civil kind, in pursuit of a legal or equitable remedy
Types of Crimes (and corresponding laws) § 1:
Color of Law Crimes – abuse of authority by government employees
false arrest – unlawful restraint of the physical liberty of another under an asserted legal authority to enforce the processes of the law
Crimes Generally Committed by Two or More Persons Working Together:
Conspiracy – an agreement by two or more persons, to reach an objective by unlawful means; any action or conduct that furthers the agreement
18 U.S.C. § 241. Conspiracy against rights
U.S. Code Title 18 § 2: “Aiding & Abetting” – knowingly & willingly assisting a crime
Robbery – the felony of stealing from a person (body) or in the person’s presence, with use violence or intimidation (aggravated larceny)
Types of Crimes and Corresponding Laws § 2:
Environmental Crimes – harm to air, water, soil quality, or to endangered species
forcible entry (and detainer) – entry on real property peaceably in the possession of another, against his will, without authority of law, by actual force or threat of potentially employing force
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