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Pari Passu

On an equal footing. Both parties are being treated equally by the court. None is prejudiced. Neither has an advantage over the other.

Party

A party to a lawsuit is a plaintiff or defendant of one kind or another, i.e., a person interested in the outcome as a contestant, sometimes also called a litigant. To keep the distinction clear, legal papers may refer differently to parties and persons who are not parties, making the distinction between those directly involved (parties) and those only accessory to the lawsuit proceedings like witnesses or others who are neither suing nor being sued (persons). Of course most parties are also persons in real life, however when you refer to a party you should use the term "party". When you refer others who are not parties, you should refer to them as "persons" to keep the distinction clear. (See Person)

Pecuniary

Of or relating to money. A pecuniary interest is one that attaches only to money, as opposed to interests in real property or personal property other than money.

Interestingly, the word comes from the Latin pecunia that related to cattle, because the wealth of ancient cultures was measured more often in cattle than in gold or coin of the realm. Now the word only relates to money and specifies interests that attach solely to monetary value.

Thus a pecuniary loss is a loss of money, not goods or property.

Pendens

Latin for pending, as in lis pendens a document one may file to alert the world that a lawsuit challenges an interest in property.

Pendente Lite

Literally, pending litigation. During the legal proceedings. So long as the lawsuit continues.

Pending

Waiting to happen. Not yet existing.

Per Minas

This ancient Latin phrase is used to escribe an action taken under threat or duress. If the action taken is to enter a contract, the law will not enforce the contract, because there was no "meeting of the minds", i.e., the party threatened was not operating out of his or her own will.

Per Stirpes

This term is most commonly used in wills and trusts to identify how property should be distributed among children and their lineal descendants. (Legally adopted children are treated by the law as if born to the adoptive parents.)

Whenever the term is used, it specifies that if a beneficiary dies before the benefactor, then that beneficiary’s children split the share of their deceased parent. If one of the children dies before the benefactor and has children of his own, those children split his share only, i.e., they don’t "move up" in the lineal tree.

The following diagram shows this more clearly.

Child B and grandchild GCB3 died before the Decedent benefactor. If the will says, "in equal shares to my lineal descendants per stirpes", then Child A gets 1/2, and the GrandChildren of Child A (GCA1 and GCA2) get nothing. Child B gets nothing, of course, because he is dead. If two grandchildren of Child B are living and one is dead, each of the two living grandchildren get 1/3 of what their parent Child B would have gotten if he’d lived, i.e., 1/3 of 1/2 or 1/6. The great-grandchildren of the deceased grandchild B3 split 1/6 and take 1/12 apiece.

Peremptory Challenge

In the process of selecting jurors (called voir dire) jurors can usually be removed only for cause, i.e., there is something about the juror relevant to the proceedings that threatens to bias the juror one way or another. However, most jurisdictions allow a limited number of "peremptory challenges" whereby a juror can be removed on request without giving a reason. A party may simply not like the way a juror combs his hair or the way he fidgets in his chair. The court cannot refuse to remove jurors if peremptory challenges are used, even if no reasons are given.

Perjury

The intentional making of a false statement of a material fact under oath or affirmation. A person may lie to the court without committing perjury if he has not been first duly sworn to speak the truth. For example, a trial lawyer who gets away with "testifying" to the jury is usually not under oath, so his exaggerations or outright fabrications are not actually punishable as perjury (so beware). A witness who is first duly sworn and then knowingly makes a false statement of material fact, however, is guilty of perjury, a felony in most jurisdictions punishable by prison time.

Person

In the contemplation of civil law a person is any human entity who can exercise civil rights, such as the right to sue or be sued in civil court. The legal literature, however, opens some worm cans of thought. For example, in many states courts can be required to appoint an attorney ad-litem to represent an unborn fetus. Thus a fetus in those states is a person in the contemplation of law. Also still part of the law in many states is the unborn heir statute that provides that if the father dies before the fetus, the fetus has full rights of inheritance. Non-persons, of course, cannot inherit. Present laws on the books in many states recognized unborn humans as persons, in spite of Supreme Court rhetoric to the contrary. A corporation, trust, partnership, and similar business or legal entity (like the school board or city council) cannot be a true person in contemplation of law. If a person is a party to a lawsuit, that person should only be referred to as a party ... not as a person. (See Party)

Personal Jurisdiction

The authority of a court to command an individual or to rule in a case that will affect the status of an individual.

Typically for the court to obtain that authority, the individual must have notice of the proceedings and be served with a summons or other official document alerting him or her that a proceeding has been commenced that will affect that person's status.

Personal Property

Personal property (also called personalty) is all property that is not real property. Personal property may be tangible or intangible. An example of tangible personal property is an automobile or diamond ring. Examples of intangible personal property are brokerage accounts or a cache of money.

Note that money is considered intangible personal property because its value is not in the inherent nature of the "stuff" it is made of but rather in the intangible value it represents, while tangible personal property possesses value that is inherent in the "stuff" of it, e.g., the diamond ring.

The nature of tangible personal property is somewhat obvious: horses, grapefruit (but not the trees in the grove where the grapefruit grow, for these are considered real property so long as they are part of the land), a coin collection (the value of which is inherent in the coins and not in their face value), or a box of breakfast cereal on the shelf. Tangible personal property is sometimes called chattel.

Intangible personal property is sometimes more difficult to identify: a beneficiary’s expectation under the will of a person not yet deceased, the unexpired term of a pre-paid lease, a seat on the New York Stock Exchange, goodwill in a going concern, and such like.

Often in court the nature of property determines how the law applies to facts presented, for the law controlling one form of property may be entirely different from the law that controls another form. For example, the rules that regulate the sale of tangible personal property are not at all the same as the rules that control the sale of real property.

Personal Representative

Person appointed by the court to administer the probate estate of deceased persons, so-called because of the duty to "represent" the dead person by carrying out obligations of the decedent to satisfy claims of creditors and then to distribute the remainder of the decedent’s estate to beneficiaries.

In some jurisdictions the term used is executor (or the feminine executrix).

Personalty

See Personal Property.

Pertinent

A thing is pertinent if it directly relates to the issues of a matter. If a thing does not relate directly to the issues it is impertinent. A term sometimes used interchangeably with relevant is material. See also relevant and dispositive.

Petition

A pleading similar to a complaint but typically seeking something other than money damages. A petition sets out the facts on which the Court’s relief should be granted, the law that gives the Court jurisdiction to grant the relief sought, and a prayer (pleading) for that relief.

Where most lawsuits begin with a complaint, actions for relief from judgment, appointment of a guardian or executor, and prayers for injunctive relief may be begun with a pleading entitled "Petition", instead of "Complaint". See pleading.

Plaintiff

The party filing suit, as opposed to the defendant.

Pleading

    Complaints and answers are pleadings. Motions and notices are not. Memoranda of law are not. Formal discovery requests are not pleadings. Only the papers that state the essentials of the plaintiff’s or defendant’s case are pleadings. Cross-complaints, counterclaims, third-party complaints, and the answers to any such complaints are pleadings. See complaint and answer.

A petition is another form of pleading, seeking relief from the court.

When a party states his case in court he is said to be pleading his case.

Plenary

Complete, total, absolute, without exception.

Possession

It’s been said, "Possession is nine-tenths of the law," however this is an error that causes many people great problems. Possession only ripens into ownership when there is a lawful vested title in the person holding possession.

Power of Attorney

A notice to third parties given by a principal to his agent designating and identifying the agent as one having the principal’s authority to act in his place and stead, i.e., on his behalf. In almost all jurisdictions, a power of attorney must be in writing, signed with formalities. Please note that third parties are not required by law to honor a power of attorney. Instead, the law will protect a third person (who has no actual notice of the invalidity of the power) who acts in reliance on the agent’s representations. Ordinary powers of attorney become invalid upon the principal’s death or mental incapacity. A durable power of attorney (one that specifically states that its validity will survive the principal’s mental incompetence and which otherwise meets the requirements of law in the state where the agent attempts to use it on his principal’s behalf) may remain valid during the principal’s mental incapacity (if given by the principal at a time when he was mentally competent) but always becomes invalid as of the principal’s death. All powers of attorney become invalid and without power when the principal dies. There are no exceptions. It is vitally important, therefore, that third persons doing business with an agent claiming to have power of attorney first ascertain that the principal is still alive (and, if the power is not a durable power) that the principal is still mentally competent.

Praecipe

A writ or order of the court directing the clerk to take some certain action.

Prejudice

To judge before evidence. If a case is dismissed with prejudice, the action cannot be brought again. If a case is dismissed without prejudice, the action can be re-filed at a later time (provided no statute of limitations or other right of action terminating event takes place before the case is re-filed).

Evidence may be excluded on the basis that its probative value is substantially outweighed by the danger of unfair prejudice.

Preponderance of the Evidence

The standard of proof in most civil cases, as opposed to criminal cases where the standard of proof is much higher. See greater weight of the evidence and burden.

Preposterous

Outside the reach of reason. Incapable of being called reasonable. That which only a fool would believe, yet something that could nonetheless be true. The law has subtleties such as this to make us humble. Even the most preposterous story has been found to be true in actual cases. If truth is the goal we seek, then the fact that testimony is preposterous should not eclipse the possibility of its truth. Perhaps we need to raise our judicial sights to see beyond mere expedience to discover what is truly just. Preposterous stories may have a statistically improbable chance of being true, yet preposterous stories abound, and many of them are found to be completely true! This should tell us something. We should be careful in the dispensation of our courts’ power. Innocent people can and do get hurt.

Presumption

Presumptions in law arise from presentation of facts that give rise to the presumption, whereupon the burden of proof shifts to the party against whom the presumption is made. Thereafter the burdened party must prove the presumption is false. Initially, however, the party seeking to establish the presumption must obtain a ruling of the court on preliminary evidence that gives rise to the presumption.

For example, in a will contest where a decedent leaves millions to his stockbroker, instead of to his own children or other blood relatives (whom the law presumes to be the natural objects of the decedent’s bounty), if the parties challenging the will can persuade the court to enter an order finding (1) that the stockbroker occupied a confidential relationship with the decedent, (2) that the stockbroker was active in procuring the will, and (3) that the stockbroker was not a person whom the law would expect to be a natural object of the decedent’s bounty, a presumption arises that shifts the burden of proof to the stockbroker to prove he did not unduly influence the decedent to make his will.

Presumptions are not inferences, q.v., which should be carefully distinguished.

Prima Facie

Clear on its face. The term literally means "at first sight".

A prima facie case is one clear on its face, self-evident from a consideration of its pleading and the evidence thus far introduced so that, unless offset by substantial countervailing evidence presented by the other side, sufficient to gain a favorable verdict without more. Such cases shift the burden of proof, because unless the other side can discredit the prima facie case with a greater weight of the evidence, judgment must be rendered for the case that’s clear on its face, i.e., meritorious and worthy of relief without presentation of anything more.

Pro Hac Vice

Taking the place of for this occasion. Most often used to describe the status of a lawyer who is permitted to appear on behalf of his client in a court outside his jurisdiction, e.g., an attorney admitted to practice law in Florida who is permitted to appear before a Chicago court to defend a client who resides in Florida but is being sued for damages alleged to have been caused by him in Illinois. Typically counsel appearing pro hac vice are required to associate with counsel admitted to practice in the foreign court so the court’s time and limited resources are not taken up by the lack of the substitute attorney’s knowledge of local rules, etc.

Pro Per

Abbreviated form of in propria persona, a term denoting those appearing in court without an attorney, i.e., appearing in their own proper person. See also pro se.

Pro Se

Literally "for self". A party who appears in court for himself or herself without an attorney is said to be pro se and is called a pro se party or pro se litigant.

In general, individual persons always have the right to appear pro se, either as plaintiff or defendant. Corporations, trusts, estates, guardianships, and other legal entities typically are not allowed to appear pro se but are required to be represented by licensed legal counsel. See also pro per.

Probable Cause

Probable cause is a state of facts that gives rise to a reasonable presumption that a crime has been committed or that a civil cause of action has arisen. Since the definition requires use of the term reasonable, probable cause does not exist where it is unreasonable to conclude from the known facts that a crime has been committed or cause of action has arisen, i.e., probable cause does not exist because someone "feels" like it or because someone claims, "I just know he did it." Probable cause should be based only on solid evidence and sworn testimony ... not on opinion, hearsay, or vain imaginings.

Probate

Probate matters are judicial proceedings to determine the rights and interests of persons who may have a claim to assets of a deceased person. The term derives from a word meaning to prove, and the proceedings are primarily used to prove who has a right to the decedent’s property and who does not. At the close of probate proceedings, if they are handled properly, the rights of all persons who do not appear and present their claims are forever foreclosed.

Probative

Able to determine proof. The probative value of evidence is its ability to prove or disprove a fact. If the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence, the court may exclude such evidence as inadmissible.

Profer

Same as proffer, q.v.

Proffer

As a noun, a proffer is a thing offered or presented for approval, something submitted to be tested, as evidence is submitted to a jury as proof. As a verb, a proffer is the act of offering or presenting for approval. The word is similar to "offer" but suggests that the thing offered is presented in an attempt to make a proof. Sometimes spelled "profer", the term is properly used not in the sense of an ordinary offer, as when one offers to hold another’s jacket or offers to perform some service in exchange for money or goods, but rather in the sense that a small boy falsely accused might offer proof that he was at his neighbor’s house when a baseball came crashing through the kitchen window. In this sense, a courtroom lawyer proffers evidence as proof of some proposition. Such an offer is called a proffer. Litigants who have the burden of proof must sooner or later proffer evidence in support of their case by presenting the court with credible, relevant evidence. A trial lawyer might proffer a witness, for example, or present some official, self-proving government document as proof of some fact he must establish to meet his burden of proof.

Prohibit

To forbid upon threat of penalty. To direct a person not to do a thing based on consequences created by law.

Prohibition

Of course this term is frequently used to refer to those days in the early Twentieth Century when law forbade the sale and consumption of alcoholic beverages. In general, the term means the act of law that prohibits.

See Writ of Prohibition.

Promise

An offer to do something.

If I offer to guard your henhouse while you’re away on vacation, and you make no offer in return, there has been no exchange of promises. The law says I have gratuitously promised, and the law will not enforce my gratuitous promise, i.e., the law will not enforce a gift.

If you offer me twenty dollars to guard your henhouse and I accept your offer by promising to sit on your back porch with a shotgun while you’re away, there has been an exchange of promises and a contract is formed. If I fail to guard your chickens and a fox gets in and kills a few, you have a cause of action against me for breach of contract. On the other hand, if I dutifully sit on your back porch all week and you refuse to pay my twenty dollars, I have a cause of action against you for breach of contract.

The contract arose from our exchange of promises, this for that, quid pro quo.

Unless there is a promise for a promise, however, i.e., an exchange of promises that constitutes a meeting of the minds and an agreement between the parties is reached, there is no contract, and the law has no power.

Promissory Note

A negotiable instrument evidencing the existence of a promise to pay money. Promissory notes are intangible personal property, just like money, but they are not legal tender.

Proof

The heart of everything we hope for as justice at the hands of men. Where the rubber hits the road. The nitty-gritty of the nitty-gritty. Where man declares by the agency of his courts what is, i.e., where the collective proposes to declare the truth of a matter on the public record.

Proof is the purpose of courts. If a court is convened for any purpose other than to find the truth and prove it, that court is convened contrary to the will of man and acts in open contempt for all that human life aspires to. The purpose of courts is to prove the allegations of one party against another, to establish truth on the public record ... and this they should do according to law or be restructured at once in accordance with reason and the will of man. Proof is the duty of all courts. Proof and nothing short of it.

A proof is that singular outcome resulting from logical analysis of the facts in evidence. A proper proof does not admit of any other "proof", for a true proof is the only outcome that can result from logical analysis of the facts in evidence.

No proper proof can possibly be established on any foundation other than fact. If the facts in evidence do not support a particular proof, the proof must fail. If the facts in evidence support the proof and no other reasonable conclusion can be reached from a logical analysis of the facts, then and only then is the proof properly established. This is what proofs are.

A proof is most easily established on direct fact evidence, i.e., facts in evidence that support the proof directly without resort to the making of inferences as is required to reach a proof established on circumstantial evidence.

If no direct fact evidence exists to support a proof directly, the proof may be established from circumstances, however a proof established on circumstantial evidence must be quite completely as certain as a proof based on direct facts; reason compels it to be so. Therefore, where a proof is sought to be established from circumstantial evidence, the inference drawn from circumstances must be the only possible inference that can be logically derived from the circumstances, i.e., no contrary reasonable inference can be consistent with the circumstantial facts in evidence. Only a single reasonable inference can be considered. If multiple contrary inferences can be reasonably drawn from the circumstances, the proof must fail. The inference offered must lead directly to the sought after proof, and no direct fact evidence can exist that is contrary to the inference in any way or the inference must fail. No inference can be used to establish a proof on circumstantial evidence if any direct fact is contrary to the inference, nor can any inference be properly established from another inference.

Unless absolute certainty of proof can be established, no verdict should be entered. Any verdict entered without certainty of proof properly derived from a logical analysis of the facts in evidence is unjust by definition.

Many courts today miss this distinction, and untold misery results when innocent people are caught in the clumsy web of misinformation and the intentional abuse of the legal process by parties more intent on getting their way than seeing justice done. The only repair for this problem is a more general, widespread knowledge about the law and its processes. Every courtroom should be a theatre in which the search for truth is held to the highest possible standards. Any proof that is not certain is no proof at all. Just as in geometry, where proofs must stand solely on underlying facts that are susceptible of no alternative logical interpretation, so in a court of law every proof should stand on facts alone and be susceptible of no reasonable alternative proof.

The words proof and evidence should not be used interchangeably. Evidence is not proof, and proof is not evidence. A proper proof results from a logical analysis of evidence and stands as the only reasonable conclusion that can be reached from the evidence ... otherwise it is not proof but conjecture based on supposition, which should have no place in the verdicts of our courts of law.

Proximate

Directly resulting. Proximate damages are those directly resulting from some cause and not merely an indirect result of some remote initial event.

For example, if someone kicks you in the shin and breaks your leg, your medical bills are damages resulting from the kick. To recover money in a lawsuit for your injuries, however, it may be necessary to prove that your damages were proximately, and not merely indirectly or remotely, caused by the other party’s wrongful act. Perhaps your shin bone was already cracked or was unusually brittle due to advanced osteoporosis or other disease. Unless your injuries proximately resulted from the kick, you may not recover ... or you may be limited to a recovery for only that portion of your injury that was the proximate result of the kick, and not those resulting from your preexisting deteriorated condition.

If an unruly child sets off a firecracker in a train station, where a luggage cart next to you has been negligently stacked too highly with suitcases and hatboxes that fall on your head when bumped by a nearby passenger frightened at the sudden noise, the issue of proximate cause arises. "What," the court may ask, "was the proximate cause of the injuries you sustained when the boxes fell on your head? Was it the unruly boy with his noise-making explosives? Was it the careless station manager who permitted the luggage cart to be stacked too highly? Or was it the exceptionally nervous fellow traveler awaiting the train?"

The more proximate a cause, the more likely is the recovery of money damages for your injury.

Punitive Damage

Punitive damage is money awarded to plaintiff in CERTAIN cases where the defendant should be "punished" for being willfully malicious or grossly negligent.

Punitive damage may be awarded in any case, if the jury deems appropriate under the circumstances presented by the evidence.

A statute may provide for punitive damage (e.g., fraud cases) but it is NOT "generally available" except where defendant was willful and malicious or grossly negligent.

Purge

Literally to expel or drive out, as one might purge one's memory of a bad thought by drinking a gallon of tequila each day for several months!

As used in the legal context the term usually applies to removing records from a file. A person convicted of a misdemeanor may, for example, in some states obtain a court order to have his or her record purged.