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Ab Initio

Literally, from the beginning or from the start.

The term is often used to describe an agreement that was unenforceable when first made, such as a gambling debt. See Void Ab Initio

Abate

To temporarily or permanently suspend or stop court proceedings.

A court may enter an order abating a case until some prerequisite is performed or discovery obtained. Typically, during the time of abatement, time is also suspended as if the clock was stopped until the action for which the abatement was ordered is completed.

Abatement

The process of stopping or abating. See Abate.

Abridge

To make shorter by removal of surplus, excess, or less important text. In complex cases, a party might write an abridged (condensed) version of a memorandum of law or other legal argument to serve as an introduction to the longer version that contains all the details. The abridgment is provided to give an overview so that, upon reading the unabridged version, one may have a clearer idea of what the writer intends to convey.

Abridgement

The shorter version that results from abridging. See Abridge.

Abundans cautela non nocet

There is no wrong in abundant caution. A court should not find fault with your taking extreme care in doing what you do.

This is one of the ancient maxims of our common law, intended to protect us from corruption in high places. When walking in a snake pit, tread cautiously!

For more about maxims, order our How to Win in Court Self-Help Course. 

Abuse of Discretion

In all jurisdictions judges are given discretion to decide certain matters based upon the law and facts presented. They are required to do this, however, within what is called the reasonableness test.

Abuse of Power

The act of any government official that exceeds his or her authority. This differs from abuse of discretion, in that no government official (judge, legislator, executive officer, or local bureau employee) ever has discretion to act outside his or her authority. When an officer of government acts outside his or her authority, the law provides a remedy in the writ of mandamus.

Actionable

Used to describe an injury for which one has the right to sue.

Ad Litem

Literally, "for the suit". For the purpose of the pending litigation. Occasionally courts will appoint an attorney to represent a party who cannot represent itself, e.g., an unborn child or a defaulted debtor who left town owing money on his mortgage. Such an attorney is called an attorney ad litem (properly italicized). If a guardian is appointed by the court to stand in the shoes of an incapacitated person or minor, that guardian is called a guardian ad litem, indicating that the guardian is only serving for the purpose of the present litigation.

Adhesion Contract

A lop-sided deal. An adhesion contract "takes advantage" of people in a weakened bargaining position, such as the proverbial widow on the farm in the clutches of the mustachioed villain Simon Legree. If the deal is too lop-sided, the court may award damages to the victim or disregard the contract altogether and leave the victimizer without a legal remedy.

Admission

Any fact admitted by the other side is admitted for all purposes. Defendants must either admit, deny, or allege that they have no knowledge of the allegations of the complaint.

A primary and powerful tool for discovery, is the request for admissions that can be served on any party, stating facts or the application of law to facts and demanding that the party served admit or deny. Learn how to use this powerful discovery tool with our tutorials.

Adverse

Contrary, opposed to, against.

Adverse Possession

Literally possession adverse to that of the lawful owner, i.e., occupying property (usually land) that legally belongs to someone else. In the common law, if an individual or his family moved onto the property of a landowner who did nothing to eject him, and if the occupation continued for a long time (e.g., seven years in some jurisdictions) the interloper could go to the court and obtain a decree of ownership equivalent to a deed. The non-owner was required to remain on the land continuously for the necessary period, and the property use had to be open and hostile, i.e., the would-be owner couldn't hide in a cave. The principle is alive today in some jurisdictions, where a squatter may obtain right of title by occupying the property of another in an open manner hostile to the true owner's rights (i.e., without admitting to anyone that the true owner is the proper owner). In sparsely populated Merry Olde England of the Middle Ages and in our own expanding Wild Wild West of the Nineteenth Century, this method of obtaining title to land was quite common. Squatters simply came onto some portion of the vast tracts of land that formerly were not criss-crossed by highways and communications systems and, when the requisite time established by local law had passed, they applied to the land office or the local courts for title. Today the practice is seldom seen, though it does survive in several jurisdictions in America and other parts of the world.

Affiant

One who gives an affidavit, i.e., the person making allegations either sworn or affirmed before an officer of the court such as a notary. The one who signs an affidavit in the presence of a notary is an affiant, as is one who gives testimony at a deposition (known more frequently as a deponent) or at a hearing or trial (known as a sworn witness). The word comes from a root referring to faith or trust, thus one who gives his affidavit is pledging himself trustworthy. In order for his trustworthiness to be relevant to the outcome of a case in court, however, the affiant must be sworn (i.e., give his solemn oath to tell the truth) or affirmed (pledge that he is aware the punishment for falsehood is the court's penalty for perjury).

Affidavit

A statement given under oath, usually written out and signed in the presence of a notary. Falsifying an affidavit subjects the affiant to the penalties of perjury. Affidavits have extremely limited use in lawsuits. In general they are not admissible evidence, and many pro se litigants (and inexperienced lawyers) find themselves in deep trouble when they try to present an affidavit as evidence of the truth of the matter asserted in the affidavit. Such evidence is inadmissible hearsay. Very few pro se litigants understand this fact, so they count on presenting affidavits to the court, only to find out at the worst possible moment that their affidavits are inadmissible hearsay. Affidavits have primarily two useful purposes. (1) Use affidavits before a deposition to lock a witness into his testimony. You can get the affidavit without noticing the other side. Once you have the affidavit and thereby know what the witness is going to say, you can set the witness for deposition, giving the other side notice ... confident the witness is not going to contradict his own affidavit. The deposition is admissible, because the other side had an opportunity to cross-examine. The affidavit is not (because the affiant was not subject to cross-examination.) (2) Use affidavits to verify pleadings, responses to discovery, and in support of oppositions to motions like summary judgment motions. The affidavit itself is not admissible. The purpose of the affidavit in such cases as this is to put a party under the penalties of perjury - not to prove the truth of the matter asserted. Please be wise. Affidavits are generally NOT admissible evidence.

Affirm

To formally attest to the truth of a statement (and thus subject oneself to the court's penalties for perjury) without giving one's oath. This practice derived from the reluctance of Quakers to swear on a Bible, since there are proscriptions in the King James version forbidding the giving of an oath. Holy Writ declares, "Swear not at all." Thus Quakers refused to be sworn prior to giving testimony in court, however they agreed to affirm their testimony, which the law accepts today from anyone reluctant to give a formal oath because whether sworn or affirmed the person thereafter giving testimony or executing an affidavit is subject to the full penalties of the law for perjury. 

Affirmation

The act of affirming. See affirm.

Aggravated Assault

An assault (q.v.) with a weapon or other means of causing grave bodily injury or death, whether or not actual contact with the victim resulted. See assault.

Agreement

A meeting of the minds. If an agreement is an exchange of promises, it constitutes a contract, a promise for a promise. If the agreement meets other requirements of law (e.g., it is not a promise to do an illegal act, etc.) it may be enforceable i.e., one party to the agreement may use the law to require the other party to perform what was promised). The fact that a document is entitled "Agreement" does not in any way diminish its effect as a binding contract. If the agreement was an exchange of promises, it is a contract.

All

Every one, omitting none. All is nothing less than all. There is no all that is greater than all. Either all is all or it is not all. All is absolute.

Allegation

An allegation is a statement of law or fact (whether true or not) made upon the record of the court. A complaint, for example, must make certain allegations of law or fact in order to survive the defendant's motion for dismissal for failure to state a cause of action.

Allege

To make an allegation. For example, a party may allege he is a resident of New York when, in fact, he has never lived anywhere but Miami, Florida.

Allonge

Technically, an allonge is an endorsement, i.e., a signature or other marking intended to act as an endorsement to an instrument such as a promissory note but made on a separate piece of paper.

Issues in court often turn on whether the separate piece of paper is "attached" to the instrument it purports to endorse. It should be (but sometimes isn't) used when the instrument has no more "room" for an endorsement. Whether this creates a valid argument as to its effectiveness or not depends on published opinions of appellate courts controlling the trial judge in your jurisdiction.

Amicus

Simply "friend". See Amicus Brief and Amicus Curiae.

Amicus Brief

A brief filed by a "friend of the court". See amicus curiae.

Amicus Curiae

Friend of the court. With permission, persons whose interests may be affected remotely by the outcome of a case, but whose interests are not sufficiently related to the existing parties to permit them to participate in the case as co-plaintiff or co-defendant, may be allowed to file briefs with the court to assist in the determination of a just and proper outcome. Sometimes referred to simply as an amicus.

Answer

The answer in a civil lawsuit is the defendant's response that answers the complaint. In many cases, the complaint is never answered, the defendant finding some fault with the complaint and prevailing on his initial motions to dismiss or strike the complaint. If the defendant does not prevail on his motions to dismiss or strike the complaint, he is required to answer truthfully every separate allegation of the complaint or suffer a default.

Anticipatory Repudiation

An act demonstrating that a party to a contract or other obligation is not going to perform his or her part of the bargain when the time for performance is due. An example from my own case experience involved a drug store my client had sold under contract terms the buyers would pay so much every month. The payments were being made on time, however the inventory in the store was being sold off, the shelves were nearly empty, and it was obvious the buyers would not be able to pay my client once the drug store was empty. So I got an order from the court directing the Sheriff to send a deputy with me to evict everyone from the building and padlock the doors until the matter was sorted out to my client's satisfaction. The buyers were not yet in technical default but were soon to be, so the contract was anticipatorily repudiated. Also sometimes called "first breach". See Repudiation.

Any

A part. Could be the whole. At least a part. Some amount. Not none.

Appeal

When a party is disappointed with a trial judge's ruling, he may under some circumstances appeal the order to a higher court. Many people are confused about this process, however, believing one may take an appeal to the higher court for any reason, e.g., he didn't like the ruling.

In fact, appeals are decided exclusively on fixed principles of law, and the appellant's view of right and wrong will almost never have any effect on the appellate court.

Abuse of discretion is one effective basis for a favorable appellate decision.

Abuse of power is another, though much less frequent, basis for an appellate court to overturn the decision of a trial judge.

Violation of the rules of evidence is another, as when the appellant was denied due process by the trial court's refusal to allow him to present relevant testimony or where the other party was permitted to present evidence that exceeds what is permitted the rules.

The power to appeal is the lynchpin of our legal system, for by it alone parties are protected from the misplaced zeal or outright corruption of trial judges.

In order to appeal effectively, however, you must make an effective record.

Our complete tutorial collection "How to Win in Court" shows you how ... step-by-step. Know how to make an effective record (your best protection against losing at the hands of a biased judge). If you fail to make your record at the trial level, your appeal will be flatly denied. When something happens during the trial court proceedings that is contrary to what is taught by Jurisdictionary® you must make certain to object in such a way that the court record shows you have objected and why you objected. Otherwise your appeal will have no effect whatever. Again the principle of due process is seen.

Notice and an opportunity to be heard is always protected, so if you do not notice the court and object on the record at the time your opponent exceeded the rules at trial, you cannot sit back thinking you can slam-dunk him on appeal. You either object and make your record in the trial court proceedings (thus giving your opponent and the court an opportunity to cure the error, if the error is one that can be cured) or you lose your right to appeal. Only by studying the principles of law taught by Jurisdictionary® can you be assured of knowing how the game of law is played to win. 

Appellant

One who appeals, i.e., the party who carries his case to a higher court after receiving an adverse order in the lower court.

Appellate

The term used to describe a court or tribunal convened to hear an appeal. Although most state "supreme courts" are appellate courts, this term usually applies only to the court one level above the court in which the case in question has been heard. In Florida, for example (nearly all states follow Florida's court system), an appeal from the county court is taken in the circuit court. Appeals from the circuit court are taken to the district court of appeals. Appeals from the district court of appeals may be appealable to the state's supreme court, however state supreme court appeals are limited to a very particular class of cases. Consult your local state laws for details.

Appellee

The one against whom an appeal is filed, i.e., the party who must answer allegations of the appellant in appellate court proceedings.

Arbitration

A proceeding to settle disputes without a judge and, for the most part, without much opportunity to challenge the outcome if it doesn't go the way you hope.

Instead of a judge and evidence rules and objections you can enforce, a professional arbitrator who is supposed to be unbiased (and therein lies the rub) decides who wins.

Many small-print clauses in contracts you sign with businesses include a provision that all disputes must be settled by an arbitrator. You do not have to sign these agreements. You can draw a line through those provisions, initial the mark-out, and make a copy for yourself so you aren't caught in the arbitration web and have confidence that if a problem arises you can take it before a judge and have all the tools and weapons my course provides to control the outcome.

Arraignment

Usually the initial in-court proceeding in criminal cases wherein the court is required to inform the accused with the charge(s) and hear the accused's plea ... guilty, not guilty, or no contest (also known as nolo contendre, which is "no contest" in Latin).

At this stage the accused needs to know if the "elements" of the alleged crime apply to his actions, because it is upon those elements that his defense depends. If any element of the alleged crime is missing, the accused is by law not guilty.

The prosecutor must prove each and every essential element of the alleged crime beyond and to the exclusion of any reasonable doubt, i.e., the burden of proof is on the state.

At the conclusion of an arraignment the accused may be allowed to go free, may be required to post bail, or may be jailed immediately pending trial and further proceedings.

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Assault

Assault is any offer or threat to touch another (whether or not such touching is offensive) against the other person's consent. To be actionable at law it must be accompanied with the present ability to actually touch the other and not be merely a threat to do so at some future time or under a particular set of circumstances not at the moment existing. That is to say, for an assault to be actionable it must appear to a reasonable person that the touching is imminent and not conditional. See battery and aggravated assault.

Assistance

See Writ of Assistance.

Attachment

See Writ of Attachment.

Attest

To make a statement, to allege.

Attorney

Literally, one to whom a responsibility has been entrusted and authority transferred. The word comes from an older term that means "to turn", as one turns over a duty to another who then stands in his shoes. Today the word is synonymous with lawyer. See attorney-at-law and attorney-in-fact.

Attorney-at-Law

One who appears in court or otherwise represents the interests of his or her client as a lawyer and is a member of the bar, i.e., admitted to practice as a lawyer and not a layperson holding power of attorney.

Attorney-in-Fact

One holding power of attorney authorizing him to act as agent on behalf of his principal. Though an attorney-in-fact may, by virtue of his power of attorney, stand in the shoes of his principal to deal with third parties, he may not represent his principal in court unless he is also a member of the bar admitted to practice as a lawyer. Also, third persons are not required to honor his power of attorney, i.e., the power authorizes him but does not require others to honor his demands. See power of attorney.

Attornment

The act by which a tenant agrees to become obligated to a new owner of the land. Seldom used today. The word has nothing to do with attorneys.

Authority

Power to act in the name of law. The power of every judge, every legislator, every executive officer of constitutional governments derives from the will of the people acting through due process subject to The Rule of Law. Those who act outside this authority are lawless and, by their rebellion to law, are unworthy of power. One of the perpetual struggles of mankind has been the competition (sometimes by armed conflict) between those who seek to exercise power without the authority of law (acting out of pride or personal whim without regard to the rights of others) and those who seek to establish and preserve governments wherein all officers regardless of branch (judicial, legislative, executive) are required to obey laws established according to fixed rules of common law called maxims. See The Rule of Law.