P.A.
Abbreviation for professional association.
pactum; pact
Lat. A contract; an agreement. In civil law: A pact; an agreement without a title and without consideration which may, however, produce a civil obligation by its very nature. A “nudum pactum,” a bare agreement, is an agreement without consideration and is therefore unenforceable.
paid-in-surplus
The amount paid for a corporate stock in excess of its par value.
pain and suffering
Type of tort damages recoverable for emotional and physical trauma that the plaintiff suffered as the result of a wrong.
painting the tape
Term which refers to a means of stock manipulation, whereby an individual or a group of people trade stock without actually changing ownership, to create the artificial impression of activity surrounding that stock.
pais
(pies) Fr. Country or district. It refers to acts done outside the court and not made as part of the record (i.e., “in pais”). Trial “per pais” indicates trial “by the country” or by jury. A “matter of pais” is a matter of fact, since matters of fact are usually determined by the “country” or jury. “Estoppels in pais” are estoppels by conduct, and distinguished from estoppels by deed or record.
palimony
A court-ordered award of support similar to alimony, paid to a former partner in a nonmarital relationship.
palming off
1. Conduct which has the probable effect of deceiving the public by passing off the goods of one person as the goods of another. 2. To impose by fraud.
palpable
1. Obvious; plain; easily noticeable. 2. Easily perceptible either intellectually or through the senses.
pander
1. To pimp; to procure a person for the purposes of prostitution. 2. To exploit or cater to the lusts or prurient interests of others. “Pandering” is the crime of influencing someone to become a prostitute. In obscenity, pandering may also refer to promoting obscene material appealing to people’s prurient interests and is not protected by the First Amendment.
panel
1. A list of jurors summoned for duty. 2. A group of judges who decide a case for the entire court.
paper, papers
1. A written or printed document, instrument, or book which may be relevant to a suit, as in “papers in the case” or “papers on appeal.” 2. Any writing or printed document which the Constitution protects against unreasonable searches and seizures in regard to one’s “papers.” 3. A negotiable instrument or an evidence of debt as in “commercial paper.”
paper profit
Profit which appears on a company’s books, but which the company does not actually realize (e.g., a company may show a profit from security investments, but until it sells the securities, that profit is not realized).
par
Lat. Of equal value. In negotiable instruments, par denotes the face value of the instrument as opposed to its market value. If a share of stock has a face value equal to its market value, then the share is “at par.” If the share can be sold for more than its face value, it is “above par,” and if the share can only be sold for less than its face value, it is “below par.”
In mercantile law: “Par” is the established exchange value of the currency of one country in terms of the currency of another country (e.g., a U.S. dollar is equal to 1.20 Canadian dollars). The exchange rate may shift depending on the demand in one 320country for the currency of another.
paralegal
An assistant to a lawyer or a judge who is not an attorney in his own right. A paralegal is not licensed to practice law, but is trained to perform many of the functions of an attorney.
paramount title
A superior title. In real property, a title which is superior to that with which it is compared, meaning that the latter title is derived from the former. A title which is stronger than another or which would prevail over another title which challenges it. A paramount title indicates an immediate right of possession, and is used as a basis for the eviction of a tenant by one whose rights of possession are superior to those of a tenant. The term also applies to chattels (e.g., one who purchases a car has paramount title to it unless the car was stolen from its original owner).
paramour
A lover; a lover in an adulterous relationship.
parcel
1. A small package or bundle. 2. A contiguous portion of land in possession of, owned by, or recorded as the property of one person, claimant or company.
parcenary
The condition of holding title to lands jointly by parceners, joint heirs, before the common inheritance has been divided. A parcenary arises when several persons inherit as one heir from an ancestor.
parcener
1. A joint heir. 2. One who holds an estate with others in a parcenary.
pardon
1. An act of release or exemption by the executive authority (a president in federal cases and a governor in state cases) of a punishment which a person convicted of a crime has been sentenced to undergo. 2. An act by the governing power which lessens the punishment demanded by law for the crime and restores rights and privileges lost due to the commission of the crime.
parens patriae
(PAIR-ens PAT-ree-eye) Lat. Parent of the country. In the United States: the State, as sovereign, referring to its sovereign power of guardianship over persons under a disability like minors and insane and incompetent persons.
parent
The lawful father or mother of a child. The term is distinguished from ancestors, which refers to remote relatives as well as to immediate ones.
parental liability
Liability of parents for damages caused by their child, when the child’s tortious act results from the parents’ negligent control.
parental notification statute
Statute that requires notification of a parent before a minor may obtain an abortion. Such statutes typically contain a judicial bypass provision.
parent corporation
A corporation which owns all or a majority of the stock of another corporation so that the second corporation becomes a subsidiary of the first.
parenticide
1. The crime of murdering a parent. 2. The person who murders his/her parent.
parenting time
Term used in some states for visitation rights.
pari delicto
(PAR-ee de-LIK-to) Lat. In equal fault; in a similar offense or crime. Used when one who has participated in a wrong sues to recover in contract or tort based on that wrong, as in a suit to recover on a gambling debt. The “pari delicto” doctrine holds that courts will not enforce an invalid contract and no party can recover based on an illegal claim.
pari materia
(PAR-ee ma-TEER-ee-a) Lat. On the same matter; on the same subject. Statutes “in pari materia” deal with the same subject and must be interpreted with reference to each other.
pari passu
(PAR-ee PAS-soo) Lat. By equal steps. Equally and to the same 322degree; without preference. Used to refer to creditors who are equally entitled to receive payment from the same fund, without precedence over one another.
parish
1. In English ecclesiastical law, a territory administered by a parson, vicar, or other priest who tends to the religious needs of people therein. Hence, an ecclesiastical division of a town, city, or district under the administration of one minister or priest. 2. The members of the congregation of any church. 3. In Louisiana, a territorial governmental division of a state, corresponding to a county in other states.
parliament
The supreme legislative body of a nation.
parliamentary law, parliamentary rules
The generally accepted rules and usages which determine the procedure of legislative assemblies (e.g., the Senate) and other deliberative bodies such as board meetings or town meetings.
parody
Using a copyrighted work to create a new work that comments on or critiques the original work. Parody may be non-infringing fair use, under some circumstances.
parol
1. A word, speech; hence, oral or verbal. 2. That which is expressed or evidenced by speech alone, and not by writing.
parole
1. In criminal law, a conditional release from prison of a prisoner who has served part of his sentence, allowing the prisoner to complete his term of punishment outside the prison if he satisfactorily complies with the terms of the parole. A parole board will grant parole where there is a reasonable probability mat the parolee will not violate laws while at liberty. 2. A release from jail or confinement after one has served part of his sentence. 3. Being in a state of supervised release from prison.
parol evidence
1. Oral or verbal evidence. 2. The kind of evidence given by 323a witness in a court. 3. Evidence relating to the interpretation of an agreement that does not appear in the writing evidencing the agreement.
parol evidence rule
Rule of substantive law which states that once an agreement is reduced to writing and both parties have acknowledged this writing as the final expression of their agreement, then parol (oral) evidence of any prior or present understanding of the parties as to the terms of the agreement is inadmissible if it alters or contradicts the meaning of the written document. The basis of the rule is that a clear and unambiguous writing is the best evidence of the intent of the parties and the terms of the agreement. Agreements made subsequent to the writing, whether written or oral, are not subject to the rule. Furthermore, all evidence (whether written or oral) concerning the finality of the agreement is admissible as is evidence of fraud, duress, mistake, misrepresentation, or illegality or evidence offered to rescind or reform the contract.
parricide
1. The crime of killing one’s father; patricide. 2. The person who kills his father.
particular average
In maritime law, a loss occurring to a ship, freight, or cargo which is borne exclusively by the owner who suffers the loss and is not shared proportionately by all interested parties. “Particular average” contrasts with “general average” which is a loss to one which is compensated by the other interested parties.
particularity
The method of pleading certain claims (e.g., fraud), by setting forth a detailed account of the facts.
particulars
The details of a claim or the individual items of an account. A “bill of particulars” states the specific occurrences to be investigated in a criminal proceeding and details the offenses charged so that the defendant will be informed of the evidence that he faces. “Particulars of sale” is the document describing fairly and accurately all property to be sold 324during an auction. Copies are distributed among the bidders. See bill of particulars.
partition
1. A judicial or voluntary separation of land held by joint tenants, coparceners, or tenants-in-common so that the parties may hold their estates severally and not in union with others. When partition is not an available option, the court may order a sale of the property and distribute the income proportionate to the interest held in the property. 2. Any division of real or personal property between co-owners which leads to each owner individually possessing his interests.
partner, partnership
A partner is a member of a partnership. A partnership is a voluntary agreement between two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, with an understanding that any profit or loss shall be divided in certain proportions.
An association of two or more persons to carry on as co-owners a business for profit. A partnership may be implied by the parties’ conduct. A general partner has unlimited liability for the debts of the partnership, but also has input in the management of the partnership. A general partner is individually liable for the debts of the partnership and his personal assets may be used to pay a debt when the partnership has insufficient assets. Partnerships are regarded as a conduit and are not taxed. The individual partners report any gains or losses on their personal income tax returns where they are subject to taxation. See limited partnership.
part performance doctrine
Partial performance of an oral contract in reliance on the other party’s promised performance may act to remove the contract from the Statute of Frauds.
partus sequitur ventrem
(PAR-tuss SEK-wit-tur VEN-trem) Lat. The offspring follows the mother; the offspring of a slave belongs to the owner of the mother. A maxim of civil law, which the law of England has 325accepted for animals, but never accepted for humans.
party
1. A person officially designated as a litigant (plaintiff or defendant) in a judicial proceeding. 2. A person directly interested in the subject matter of a trial and, who, therefore, has the right to control proceedings, make a defense, assert a claim, cross-examine witnesses and appeal a judgment. With respect to litigation:
Indispensable party: One whose interest in the controversy is so essential to an equitable resolution that, in his absence, the suit cannot proceed. Federal Rule of Civil Procedure 19(b).
Necessary party: One whose interest will be affected by the suit or without whom a complete relief cannot be granted, but who need not be joined if his joinder will deprive the court of jurisdiction in the case. Federal Rule of Civil Procedure 19(a).
Party aggrieved: Any party having an interest recognized by law in a judicial proceeding and whose interest is adversely affected by a judgment is a “party aggrieved” and is entitled to appeal.
Third party: Someone other than the parties directly involved in the suit or agreement. 3. A person or entity which enters into a contract, lease, etc. 4. A political party is a group united by common political goals specifically including the nomination and election of its candidates for office.
party wall
1. A wall erected on a property boundary partly on the land of each owner as a mutual support to structures on both sides which are under different ownership. 2. A division wall between two adjacent properties belonging to two different persons and used for the mutual benefit of both parties. The wall may stand on part of the land of each owner or may stand wholly upon one lot. 3. A wall of which two neighboring owners are tenants-in-common.
par value
1. The face value of a share of stock; the value of a mortgage based on the balance owed. 2. Without discount.
pass
1. (v.) To transfer or to be transferred as in “property passing.” 2. To enact or approve as in “to pass a law.” 3. In negotiable instruments: To deliver or circulate. 4. (n.) Permission or license to go or come. 5. An authorized document allowing a designated individual to travel beyond certain boundaries which without such permission, she could not lawfully pass. 6. A ticket issued by a railroad or other transportation company allowing a designated individual to travel on certain routes or for a limited time.
passage
1. The act of passing; transit. 2. A way over land or water or through the air; a route. 3. An easement giving the right to pass over a privately owned body of water. 4. Enactment; the emergence of a bill as a law or a motion as a resolution, either when a bill has passed one or both houses of the legislature or when it has been signed by the President or Governor.
passion
In voluntary manslaughter cases, a state of mind incapable of premeditation. Passion includes any emotion such as rage, anger, or fear which leaves the mind incapable of cool reflection and is enough to lessen a murder charge to manslaughter.
passive
1. Inactive; permissive; consisting in endurance or submission rather than in action. 2. Subjected to a burden or charge. 3. Passive negligence is the failure to do something required by law and which failure amounts to a breach of the duty of care.
passive trust
A trust which gives the trustee no responsibilities or discretionary duties to perform; it may be terminated by a court of equity.
passport
Document issued by the government to citizens who travel to foreign countries. The passport identifies the citizen, requests foreign governments to allow the citizen to pass freely and safely, and entitles the citizen to the protection of his government’s 327diplomatic and consular offices. In international law during wartime, the passport grants the citizen the right to remove himself from a belligerent country without being detained on account of the war.
past consideration
In contracts, a detriment to a party occurring before contract formation is generally considered insufficient consideration to support the contract (preexisting duty rule). Past consideration is sufficient to support a negotiable instrument.
past recollection recorded
This exception to the hearsay rule permits an accurate writing, previously made or adopted by the witness when the matter was fresh in her mind and of which she had personal knowledge, to be read into evidence when the witness has insufficient recollection to testify fully and accurately. See Federal Rule of Evidence 803(5).
patent
A grant issued by the government to an inventor, giving him the exclusive right to make, use, or sell the invention for a specified number of years, constituting a legitimate monopoly.
patent defect
A defect in personal property which is plainly visible or would be discovered in the exercise of ordinary care and prudence. See U.C.C. § 2–605(1).
patent infringement
The violation of another’s patent rights. One is guilty of patent infringement when he makes, uses, or sells in an unauthorized manner an invention for which a patent exists.
patent troll
An owner who aggressively enforces her patents, especially one who has no intention of manufacturing or marketing the product covered by the patent.
paternity suit
A lawsuit brought to determine the father of a child born out of wedlock and to provide for paternal support of the child and the rights of the father regarding visitation and custody.
Patient Protection and Affordable Care Act
Federal medical insurance law that regulates the underwriting standards for medical insurance, requires some employers to provide medical insurance, requires some individuals to purchase medical insurance, and establishes subsidies for the purchase of insurance.
patricide
Murder of one’s father; parricide.
Patriot Act
Federal law giving law enforcement broad powers to gather and share information for the purpose of investigating terrorism. The full acronym is USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism).
patronage
1. Support. 2. A political office-holder’s support of political cronies, friends, and family members.
pauper
A person in poverty, who is allowed to sue and defend cases without paying court costs, or who is represented by the public defender in a criminal case.
pawn
1. To give goods or property to another (usually a pawnbroker) as security for a loan or existing debt. 2. The action of pawning goods as security. 3. The goods or property pawned.
pawnbroker
A person in the business of lending money to those who pawn goods or personal property to him as security for the loan.
payable
The amount of money which a person is under a legal obligation to pay.
payee
The person to whom money, checks, orders, promissory notes, or bills of exchange are paid.
payment
1. The performance of an obligation or promise. 2, The satisfaction of a monetary debt.
payment in due course
Payment made in good faith to the holder of an instrument at or 329after its maturity and without notice that the title is defective.
payment into court
A deposit of money or the subject matter of a suit, made to the court. The judge redistributes the deposit to the parties pursuant to the resolution of the matter.
payor
One who pays a debt, or is obligated to pay a debt (e.g., one who makes payment of an instrument such as a check).
peace
1. State of international relations opposite of war. 2. Public safety, comfort, and happiness represented by good order, obedience to the law, and public tranquility.
peaceable possession
Possession of real estate which is not disturbed by adverse suits or hostile action intended to oust the possessor.
peculation
Fraudulent misappropriation of money or property for one’s own use by one who was legally entrusted to care for it.
pecuniary
Monetary; related to money and finances. A “pecuniary loss” is one which can be valued entirely in monetary amounts.
peer
1. In old English law, the ranks of the nobility (e.g., duke, marquis, earl, baron). 2. Those in each rank sat in court as judges of those of equal rank being tried. A “jury of his peers” in America means a jury of citizens, all citizens in America being equal.
penal
Having to do with punishment or penalties.
penal action
1. A criminal prosecution. 2. Civil actions brought to enforce a penalty arbitrarily created by statute for some act or omission of the defendant (e.g., a fine or penalty payable to the aggrieved party).
penal institution
Any place of confinement for one convicted of a crime (e.g., jail, prison, house of correction, etc.).
penal law, penal code, penal statute
1. Generally, state and federal laws which define criminal offenses and create punishment of fines or imprisonment. A “penal code” is a collection of all the state’s criminal laws. 2. Laws which proscribe certain public conduct and create penalties for violation of that conduct. Laws which provide the injured party with a “right of action” for damages are called “remedial;” laws which impose penalties are “penal.”
penalty
1. Payment of a sum of money or other punishment imposed by the law for the commission of an offense or the neglect of a duty. 2. Provision in a contract or bond setting forth a sum of money as punishment for default or as security for actual damages occurring in case of default.
penalty clause
A clause in a contract requiring one who defaults to pay a specific sum to the other party or parties to the contract. Such clauses are common in loan agreements and savings instruments, among others.
pendente lite
(pen-DEN-tay leet) Lat. Pending the suit. Contingent upon the determination of the lawsuit; (e.g., in an action to determine the ownership of property, the property itself is “pendente lite”).
pendent jurisdiction
A principle of federal court jurisdiction, in which a party may join a state cause of action to a federal cause of action if the action arose from the same transaction, even if the cause would not independently meet the diversity requirements for federal jurisdiction. Now part of supplemental jurisdiction.
pending, pendency
During the occurrence of something; before the completion. A suit is said to be “pending” or in its “pendency” from its beginning until judgment is given.
pen register
A device that records the numbers dialed on a telephone. It does not detect conversations.
pension
Systematic payments made to retired persons, based on length of service and the level of past salary.
Pension Benefit Guaranty Corporation
Created in 1974 by the Employee Retirement Income Security Act of 1974 (ERISA) to guaranty pension benefits in covered private plans if the plans terminate with insufficient assets.
pensioner
The person who receives pension payments.
penumbra
1. Area or vicinity. 2. Civil liberties not explicitly guaranteed by the Bill of Rights, but implied by the Amendments.
per
Lat. By or through.
per annum
Lat. By the year (e.g., salaries, interest rates, and business growth statistics are measured “per annum”).
per autre vie
(per OWE-ter vee) Fr. For the lifetime of another person. See pur autre vie.
per capita
(per KAP-it-ta) Lat. By the head. Equally divided among all the people. 1. Used in the old law of inheritance, “per capita” means an equal division of the estate among those who stand in equal rank to the deceased; the opposite of “per stirpes.” 2. Used in statistics, “per capita income” is the average income per person in a society, calculated by dividing the total income by the number of people.
per curiam
(per KOO-ree-am or KYOO-ree-am) Lat. By the court. Term used to distinguish an opinion of the whole court from that written by any one judge; often used in brief or unimportant decisions.
per diem
Lat. By the day. Term used to signify an allowance or expense account with a specific “per diem” amount allocated for each day of service.
peremptory
Absolute; final; conclusive of the matter. E.g., the “peremptory challenge” in jury selection is the means by which each side may conclusively reject a certain number of potential jury members in a trial without giving a reason for the challenge.
peremptory writ
1. In old English law, a writ which ordered the sheriff to compel the defendant to appear in court, after the plaintiff had given the sheriff a deposit to secure the prosecution of his or her claim. Its modern day counterpart is the summons. 2. A type of mandamus requiring the subject of an order to perform the act completely and without debate.
perfect
1. (adj.) Complete and executed (e.g., a security interest is “perfected” when collateral is taken, notice is filed, or a purchase money interest in the goods (in consumer credit sales) is retained). 2. (v.) To create a perfected security interest; to “perfect.” A creditor holding a perfected security interest has priority against other creditors.
performance
1. The complete fulfillment of one’s obligations according to the contract. 2. “Part performance” is the fulfilling of only some of the contract obligations. 3. “Substantial performance” is performance of the essential purpose of the contract, although insignificant deviations from the strict obligations of the contract may remain.
performance bond
A contractor’s bond, whereby the contractor guarantees the completion of the work. Should the contractor fail to complete the work, the client may use the proceeds of the bond to pay for its completion.
peril
The risk or cause of loss which is covered by an insurance policy.
per infortunium
(per in-for-TOO-nee-um) Lat. By misfortune; by accident.
perjury
The criminal offense of making a false statement under oath in a 333legal proceeding with no sincere belief in its truth, when it is relevant to a material issue in the proceeding. Some states have broadened the reach of perjury by statute, to include any false statement made under oath in a legal instrument or legal setting (e.g., in the pleadings, affidavits, interrogations, or license applications).
permanent disability
A physical disability which causes loss of earning power and which will last or is expected to last for the rest of the disabled person’s life.
permission
Formal consent, authorization, or license without which an act would be unlawful.
permissive
Allowed; endured.
permissive counterclaim
See counterclaim.
permissive waste
Waste or damage to a building caused by a tenant’s failure to make necessary repairs. See waste.
permit
1. (n.) A license which allows some act, such as the building of a house. 2. (v.) To give permission.
per my et per tout
(per mee ay per too) Lat./Fr. By half and by all. This phrase refers to the unity in possession of a joint tenancy.
perpetuity
1. Something lasting forever. 2. Real property: The limitation of the disposition of property for longer than the life of a person then living, plus 21 years. See Rule Against Perpetuities.
per quod
Lat. Whereby. A libel or slander action is either “actionable per se” or “actionable per quod.” “Per se” means the words themselves constitute the injury; “per quod” means that special circumstances caused the injury or that special damages resulted, whereby the defendant should be liable.
per se
(per say) Lat. By itself. Considered alone; unconnected with other matters.
per se violation
A trade practice that is considered inherently anticompetitive and harmful to the public without a determination that market competition has been harmed.
person
1. An existence capable of having rights and duties, be it a human being (natural person) or a corporation (artificial person). Partnerships, associations, foreign governments, and municipalities are persons. 2. Related to the body.
personal
1. Pertaining to a human being. 2. Limited to an individual person.
personal effects
Movable property which is intimately associated with a person, often the decedent (e.g., clothing, jewelry, furniture).
personal holding company
A corporation owned by a limited number of shareholders, which earns mostly passive income such as interest, royalties, and annuities. Such companies are subject to federal personal holding company tax, which prevents high income taxpayers from using this corporate structure for tax avoidance.
personal injury
1. Injury to the body. 2. A violation of a personal right (e.g., injury to a person’s reputation).
personal judgment
A judgment imposed against a defendant, whereby the defendant must part with a specified portion of his or her assets.
personal property
All property not real estate. The two categories of personal property are “corporeal,” consisting of movable objects such as furniture or jewelry, and “incorporeal,” consisting of the interest one has in something, such as in a corporation by the ownership of stock. See chose in action, personalty.
personal recognizance
Pretrial release from custody on the arrestee’s promise to appear 335for trial. No surety bond is required.
personal representative
An executor or administrator who handles the estate of a deceased person, though, according to the intent of the user, it may also include heirs, assignees, grantees, receivers, and trustees.
personalty
Personal property; movable property; property that is not real estate. If personalty is affixed to real estate, it becomes part of the real estate if removing it would damage the realty.
per stirpes
(per SITR-peez) Lat. By the roots. In the law of inheritance, “per stirpes” means division of the property by representation according to the relative number of heirs in each class; the opposite of “per capita.” Under per stirpes, grandchildren would inherit only their parents’ share; under per capita, all grandchildren would inherit equally.
pertinent
Relevant; significant; applicable. Evidence is pertinent if it tends to prove or disprove an allegation.
per tout et non per my
(per toot ay non per mee) Lat./Fr. By all and not by the half. This phrase refers to the notion that when a man and a wife own an estate, they are neither joint tenants nor tenants in common, because they are considered to be one person by the law. Rather, they both own the estate in its entirety.
petition
A formal written request for something to be done (e.g., a petition to a court is a request to find relief for some wrong committed against one, or for authority to do something; a petition in bankruptcy is a request by a creditor or debtor to the bankruptcy court to find that a debtor is unable to pay his debts and is entitled to the provisions of the Bankruptcy Act).
petitioner
One who presents a petition to a court or any official body or office, seeking relief.
petition in bankruptcy
A petition filed in bankruptcy court, wherein an insolvent debtor seeks protections set forth by the Bankruptcy Code.
petit jury
A common trial jury of usually 12 persons which renders a verdict in civil and criminal cases, as opposed to a grand jury which has a greater number of persons and whose role is not to render a verdict but to determine whether an indictment is justified. Also called “petty jury.”
petit larceny
Unlawful taking and carrying away of personal property valued below an amount set by statute, with the intent to deprive its owner of its use. Also called “petty larceny.” Compare grand larceny.
petty jury
See petit jury.
petty larceny
See petit larceny.
physical fact
A fact perceived by the senses.
physician-patient privilege
The patient’s right not to disclose communications between himself and his physician, or have the physician disclose the contents of their communications. The privilege is inapplicable when the patient has put her physical condition in issue (e.g., in a personal injury action).
picket
The practice of attempting to influence someone by patrolling a location, usually with signs or placards. This is often done by labor in disputes with management to publicize grievances, to promote a strike, or to promote union membership by employees. The right to picket is constitutionally protected when done peaceably, but may be unlawful when it is not a truthful representation of the facts, or if it is dangerous to the public safety.
pickpocket
One who secretly steals money or other valuable property from the person of another.
piercing the corporate veil
Phrase referring to a court’s refusal to grant immunity to 337corporate officers or entities for their wrongful acts. Such refusal is an exception to the general rule that individuals are shielded by their corporate employers from personal liability for wrongful acts done while in the corporate purview. Courts will do so when, among other instances, the corporation is engaged in fraud.
Pierringer release
A release of one co-defendant in which the plaintiff agrees to reduce her recovery from the remaining defendants by the amount of consideration received from the released defendant. Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W. 2d 106 (1963).
pilferage
1. Stealing something of small value 2. Petty larceny. 3. Stealing a small part of something rather than the whole.
pimp
Person who procures customers for prostitutes; a panderer.
piracy
1. Act of robbery and violence committed on the high seas or in the air. 2. Infringement of copyright by making and selling unauthorized copies of a work.
P.J.
Abbreviation for “presiding judge.”
plagiarism
Copying and publishing as one’s own work all or part of the work of another. Plagiarism does not exist if work alleged to be copied is arrived at independently. Certain uses of copyrighted material are allowed under the “fair use doctrine” of the Copyright Act without the consent of the copyright owner.
plain error
Rule which requires a retrial if, during the trial, an error occurred which plainly affected the defendant’s rights and which, if uncorrected, would result in a miscarriage of justice. The retrial is compulsory even if the defendant failed to object at the time of the error.
plaintiff
1. Person who brings a lawsuit; the complainant. 2. The prosecution in a criminal case.
plain view
Unconcealed; immediately apparent. This term refers to a maxim of police search and seizure, wherein officers may seize objects which are in plain view, and are clearly evidential in nature, if the officers are justified in being in the viewing area.
plat
A map showing the boundaries and location of real estate in a town, village or subdivision, and the streets and parcels which are adjacent to the property.
plea
1. In common law pleading, a defendant’s formal response to a criminal charge or a civil suit. Pleas in equity are either “dilatory” or “peremptory.” Dilatory pleas seek to defeat the plaintiff’s case based on a matter not connected with the merits of the case. Peremptory pleas are based on the merits of the action. These equity pleas are now obsolete with the adoption of the Rules of Civil Procedure. 2. Criminal pleas are guilty, not guilty, and “nolo contendere.”
plea bargaining
Process by which a defendant’s attorney and a prosecutor bargain for a mutually satisfactory disposition of a criminal case. Often this involves the defendant’s pleading guilty to a lesser offense or to only some counts in a multi-count indictment in exchange for a lighter sentence. The plea bargain arrangement is subject to court approval.
plead
To formally answer a criminal charge or a plaintiff’s complaint in a civil action; to make a pleading.
pleading
A written statement by a plaintiff or defendant setting forth the material facts on which he bases his case. Under the Federal Rules of Civil Procedure the pleadings consist of a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint, and a third-party answer. See Federal Rule of Civil Procedure 7(a). Pleadings consist of simple, concise and direct averments of claims for relief, defenses, and 339denials. See Federal Rule of Civil Procedure 8.
pledge
1. Act of delivering personal property to a creditor to be held as security for payment of a debt or performance of an obligation. 2. The property so delivered.
plenary
Absolute; complete, full (e.g., a “plenary action” is a complete, formal action heard on the merits; a “summary proceeding” is a shortened, simplified process used to expedite the disposition of a case).
plurality
A greater number. A plurality of votes received by a winning candidate in an election with more than two candidates is greater than the number received by any other candidate. A plurality opinion of an appellate court is that opinion held by the greatest number of judges while not being a majority.
pocket veto
A situation in which an executive chooses not to approve or veto legislation that has been passed by the legislature. When the legislature adjourns, the legislation dies as a result of the executive’s inaction.
P.O.D. account
Pay on death; an account payable to person during her lifetime and upon her death, payable to another person or persons.
point
1. A proposition or question of law raised in a suit. 2. In real estate: A charge for lending money, collected at the time the loan is made, equal to 1% of the principal amount of the loan. 3. In the stock market, a point means $1; in the bond market, it means $10.
point and click agreement
A type of license to download or use software. A person gives her assent to the terms of the license by pointing and clicking on an area of a web page (usually, the words “I agree”).
point reserved
An issue which a court decides provisionally, thereby reserving it for possible future argument (e.g., at a hearing on a motion for 340a new trial), so that the matter at hand may proceed.
poison pill
A defensive tactic used to protect a corporation from a takeover. A typical poison pill defense allows shareholders to buy additional shares at a discount if one shareholder acquires a certain percentage of the corporation’s stock.
police court
1. A local or municipal court. An inferior court with jurisdiction over minor offenses.
police power
A broad, flexible term for the authority possessed by the state to regulate private actions in order to promote and maintain the public health, safety, welfare, and order.
policy
1. The general principles which guide a government’s actions; the course of action taken (e.g., foreign policy, domestic policy). 2. The intention or objective of a statute or law as distinguished from the letter of the law. “Public policy” means the public good. 3. A contract for insurance. 4. A lottery, a numbers game.
political
Related to government. Political rights or liberties are those which a citizen has to participate in government. A political crime is a crime against the government.
political party
An association of individuals united to pursue political goals, such as the nomination and election of a candidate, whose members usually possess certain common beliefs about governmental policy.
political question
A legal issue which is so political in nature that courts will decline to adjudicate, leaving it instead to the legislative or executive branches to resolve.
poll
1. (v.) To question each juror individually as to his verdict. 2. To question the electorate for the purpose of forecasting the result of an election. 3. To vote or to receive a vote. 4. (n.) A head; an individual. 5. a list of individuals, as of jurors or of 341persons who may vote in an election.
poll tax
A tax levied on certain classes of people as a prerequisite to voting. Illegal in all federal and state elections.
polyandry
The condition of a woman who has more than one living husband.
polygamy
The condition of a man or woman who has several living spouses. It is illegal in all states.
polygraph
A lie detector test. An electro-mechanical instrument that records changes in physiological processes during questioning. Polygraph results are inadmissible as evidence in some jurisdictions.
Ponzi scheme
(PON-zee or PON-zeye scheme) A type of investment fraud in which investors’ returns are paid by funds contributed by subsequent investors, rather than by a return on investments.
pool
A group or combination of persons or corporations engaged in the same business, who combine resources so as to eliminate competition among themselves or control the market. Any pooling arrangement which thwarts competition within an industry violates the Sherman Antitrust Act.
pornography
Any obscene material which appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.
positive evidence
Direct evidence that can prove a fact without any presumption (e.g., eyewitness testimony). It is distinguished from “circumstantial evidence.”
positive law
Law specifically created and enforced by a proper authority for the government of society. Also, those laws established by tacit approval of society.
positivism
The theory that one best judges a legal system by viewing its positive law.
posse
(pos-see) 1. Lat. A possibility. A thing “in posse” may possibly exist. “In esse” means it actually exists. 2. A group of persons that assists a sheriff with his duties, such as the arrest of a suspect. Same as “posse comitatus.”
posse comitatus
Lat. The power of the country. This includes all able-bodied men who may be called to assist a sheriff with his duties. Such persons have the same protection of the law that the sheriff has when they act under the sheriff’s orders. Same as “posse.”
possession
Exclusive dominion and control over property. Possession is more than actual physical custody, which is mere keeping and caring, but it involves an assertion of a right to exercise dominion and control. The two kinds of possession are “actual” and “constructive.” Someone who has direct physical control over something has actual possession of it. Constructive possession is where someone has the power and intention of exercising control over something while it is not in his actual possession. A tenant who occupies an apartment is in actual possession of it while the owner of it is in constructive possession of it.
possessory action
A lawsuit to obtain actual possession of property, as distinguished from a “petitory action” in which a plaintiff seeks to establish title. An eviction is a possessory action. See eviction.
possessory interest
The right to exert control over specific land to the exclusion of others, coupled with the intent to exercise that right.
possibility of reverter
Reverter or reversion is a future interest kept by someone who transfers property. “Possibility of reverter” is such an interest remaining only as a possibility because it is dependent on the occurrence of a future contingency. Thus, when a grantor or testator conveys an estate by 343conditional or determinable fee, there remains only the possibility of reverter because the estate does not “revert” back to her until a specified condition is breached or an event occurs.
POOSSLQ
Census Bureau acronym for “persons of opposite sex sharing living quarters.” While intended to refer only to unmarried couples, the literal definition includes married couples as well.
Postal Regulatory Commission
An independent agency established to regulate and determine postage rates.
post-conviction relief proceedings
Procedure in which a convicted prisoner may challenge alleged constitutional violations, after the defendant has exhausted the normal review process. Also “PCR actions.”
post date
To date an instrument, such as a check, later than the actual date on which it is signed. This does not affect the negotiability of the instrument. U.C.C. § 3–114.
post hoc ergo propter hoc
(post hock air-go PROP-ter hock) Lat. After this, therefore because of this. This term refers to the fiction that because one event happened after another, the preceding event caused the subsequent event.
posthumous child
Child born after the death of its father.
posting
1. The act of mailing an object or document. 2. The act of displaying for public view. 3. The procedure by which a bank pays a negotiable instrument (e.g., a check) and records its payment.
post mortem
Lat. After death. Term usually refers to an autopsy; an examination of a dead body.
postnuptial agreement
Agreement between spouses made after marriage regarding division of property upon occurrence of event, such as divorce or separation.
post-trial motions
Motions permitted after trial ends (e.g., motion for new trial).
pot
Slang for marijuana.
potentia non est nisi ad bonum
(poe-TEN-shee-a non est NEE-see ad BOW-num) Lat. Power does not exist, except for the public good.
pourover
A provision in a will which directs the distribution of money or other valuables into a previously established trust. This term less often refers to a provision in a trust placing the assets of the trust into a will.
power
The right, ability, or authority to do something, such as to change a legal relation or to dispose of property. Powers are classified as “naked” and “coupled with an interest” (e.g., when authority is granted to a stranger to dispose of property in which the stranger had and continues to have no interest, the authority is “naked power;” authority granted to a person who has a present or future interest in property is called power “coupled with an interest”). See also constitutional power, corporate power.
power of appointment
Authority given to a person (donee) by deed or will to dispose of property, or interest therein, vested in someone other than himself. A donee with “general power of appointment” is unrestricted as to whom he may appoint to receive the property. “Special power of appointment” limits the donee’s choice of beneficiaries. See power.
power of attorney
Document by which a person (principal) grants authority to another (agent) to perform specified acts on the principal’s behalf. Also called “letter of attorney” and “warrant of attorney.”
power coupled with an interest
A power or right to perform an act, accompanied by an interest in the property which is subject to the power.
power of acceptance
An offeree’s capacity to create a binding contract upon accepting the terms of an offer.
practice
1. Custom; habit; usual procedure. 2. Court procedure (i.e., the 345formal steps of a judicial proceeding). 3. (v.) To engage in a profession, such as medicine or law.
praecipe
(PREE-sip-ee) 1. A command; an order; a written note ordering a person to do something or show cause why he should not. 2. A note stating the particulars of a writ one wishes to be issued by a court officer (e.g., for summons). 3. An order to the clerk of the trial court ordering preparation of the trial record for review by an appellate court.
prayer (for relief)
1. The request made by a person seeking relief, or redress of an alleged wrong. 2. The part of a pleading in which a request for relief is made.
preamble
A clause at the beginning of a constitution, statute, document, or ordinance which states the purpose for its enactment. A preamble is explanatory and is not an essential part of a document.
precatory words
Words expressing advice, recommendation, wish, or request, rather than those that command. Term is used to describe certain language in a trust or will. A “precatory trust” is one that uses such language. It can be interpreted as being unenforceable due to its mild, nonobligatory language; or it can be held as a valid, enforceable trust if the language on the whole might be construed as imperative and the subject of the request and the person(s) intended to benefit from it are clear.
precedent
1. A previously decided case which is used as an example or authority for similar cases which subsequently arise. (See stare decisis.) 2. A rule of law established for a certain type of case. 3. A “precedent condition” or “condition precedent” is a condition that must exist before something, such as a contract or an estate, can take effect.
preceding estate
An estate after which a future interest arises.
precept
An order, command, or writ given by one in authority to another to perform a duty within his power; a warrant; a process (e.g., a precept is given by a judge to the police to bring a person to court).
precinct
A police or election district.
predecessor
One who goes or has gone before another; correlative of “successor.”
preemption
1. A doctrine based on the Supremacy Clause of the U.S. Constitution (Article VI, clause 2) which holds that federal legislation overrides state legislation when both deal with the same subject matter. 2. Act of buying something, such as stock, before all others.
preemptive rights
A stockholder’s privilege to buy issues of the corporation’s new stock, and thereby maintain a constant percentage of ownership.
preference
Act of preferring one over another, especially as in an insolvent’s payment of some of his creditors over others.
preferential transfer
Transfer to a creditor by an insolvent debtor shortly before the debtor files bankruptcy. A creditor who receives a preferential transfer receives a greater share of the debtor’s assets than he would otherwise be entitled to receive.
preferred stock
Type of capital stock of a corporation that gives its holder priority over common stockholders in the distribution of dividends, or of company assets upon dissolution. Shares of this stock are called “preferred shares.”
prejudice
1. Bias; preconceived opinion; a leaning in the mind toward one side of an issue without justification. 2. Prejudice in a judge refers to a mental disposition he has toward a party to the litigation and not toward its subject matter. It renders him unable to make an impartial decision. 3473. Detriment, deprivation of a right or interest, as in a change of position for the worse after relying on another’s promise.
prejudicial error
Error by a court which detrimentally affects the legal rights of a party and which, if uncorrected, would result in a miscarriage of justice. This may be grounds for a new trial or for a reversal of a decision of a lower court. Same as “reversible error.”
preliminary hearing
An initial hearing conducted to determine whether probable cause exists to justify holding a person for trial. In felony cases, it is a hearing conducted before an indictment. Same as “preliminary examination.”
premeditation
Thinking about and deciding to do something before doing it; plotting. The thought may be for any length of time. It is one of the elements of first-degree murder. See malice aforethought.
premise
The underlying proposition upon which an argument or conclusion is based.
premises
1. Land, building, and the surrounding environs (e.g., in criminal law, a search warrant covers the premises owned by the suspect; in insurance law, insurance covers the premises. 2. In workers’ compensation: Wherever business activity occurs. 3. The statements or clauses put before (e.g., in pleading, the “premises” are the earlier clauses in the pleading).
premises liability
The legal responsibility of the owner or occupier of land for injuries occurring to people on the land.
premium
1. The amount paid by the insured for an insurance policy. 2. The excess of the market price of stock over its par value. 3. A reward; bonus.
prenuptial agreement
An agreement entered into by prospective spouses which sets 348forth the financial and property rights of both in anticipation of death or divorce; antenuptial agreement.
preparation
In criminal law, consists of planning or arranging means or acts necessary for commission of crime. Contrast attempt offense, which requires conduct actually directed toward commission after preparation.
preponderance
In civil litigation, when all the evidence more clearly and more probably favors one side than the other, that side has established a “preponderance of the evidence” which satisfies its burden of proof.
preponderance of the evidence
Standard of proof necessary to prevail at judgment in a civil action. When one proves something to the preponderance of the evidence, it is more likely to be true than not.
prerogative
An exclusive power or privilege, exhibited by an official or branch of government (e.g., the power to veto legislation is the president’s prerogative).
prerogative writ
In the old common law, discretionary writs of the court issued not as a matter of right but for good cause (e.g., writs of mandamus, certiorari, procedendo, quo warranto, and habeas corpus). Today, many of these writs are specifically established and regulated by statute, and the old discretionary prerogative writs are abolished.
prescription
1. Remedy for disease; drugs and medicine. 2. The process of acquiring an easement (the right to use part of another’s property, water, or light) by continuous use, rather than by asking the owner of the property. “Prescription” applies to easements as “adverse possession” applies to real property.
present
Now existing; now occurring (e.g., a “present estate” is one in which the owner now possesses the estate; a “present sale” is one in which the property exchanges 349hands when the contract is made).
pre-sentence report
The report prepared by a probation department to assist the court in passing sentence on a convicted defendant.
presentment
1. A written accusation made by the grand jury, instructing the prosecutor to issue an indictment against the accused. 2. The production of a negotiable instrument (e.g., a check) to the party liable for payment or to the drawee for acceptance.
present recollection revived
The use of a writing to refresh a witness’s present recollection of a past event. The writing is not admissible evidence.
presents
Term used in a legal document to designate that document (e.g., “By these presents the parties agree ….”).
president
1. Chief officer or executive of an organization or corporation who presides at meetings, administers the business of the organization, and supervises employees. 2. Chief executive of a nation or state, usually elected by the citizens (e.g., President of the United States).
presumed intent
One is presumed to intend the natural and probable consequences of her voluntary acts (e.g., criminal intent can be presumed from the act, except in specific intent crimes).
presumption
In litigation, an assumption of fact arising from a basic fact and based on a rule of law, created by statute or by the courts. The presumption is a rule of evidence that shifts the burden of proof or the burden of producing evidence to the party against whom the presumption is made, to prove that the fact assumed is not true (e.g., in a criminal trial, the defendant is entitled to the presumption of innocence (based on a rule of law) and the prosecutor must prove him guilty).
Presumptions are either “conclusive” or “rebuttable.” Conclusive presumptions are, as a matter of law, final against the parties and the opposing party may 350introduce no evidence on the matter. Rebuttable presumptions may be attacked by the opposing party, who may introduce evidence on the matter.
presumption of innocence
The maxim that a person is innocent of a crime until proven guilty.
presumptive evidence
Prima facie evidence, or evidence that is not conclusive, which is treated as true until and unless it is rebutted by other evidence (e.g., evidence which a statute regards as presumptive of another fact unless rebutted). Also “prima facie evidence.”
pretermitted heir
Offspring of the testator omitted in the testator’s will or born after the will was made. Some states provide by statute that the pre-termitted heir be included in the distribution of the testator’s property.
pretrial conference
1. In a civil suit, a conference held after pleadings and before the trial, wherein parties outline the issues to be tried, the evidence to be introduced, and discovery procedures. 2. In a criminal case, this conference takes place after indictment and before the trial, and is much more narrow in scope because of the defendant’s right against self-incrimination.
pretrial intervention
Rehabilitation procedure in which selected criminal defendants are excused from prosecution and placed instead in remedial, probationary programs. Upon completion of the “PTL” program, a charge is erased from the defendant’s record.
prevailing party
The party in whose favor a legal judgment is rendered.
prevarication
Evasion of the truth; deceitful conduct.
preventive detention
Pretrial confinement imposed on a party while awaiting trial. Preventive detention is generally imposed against criminal defendants who have threatened to escape, or against mentally ill defendants who pose a risk to 351themselves or others and are thus held without bail.
price
The amount a seller charges for his goods or a buyer pays for goods purchased; consideration given for goods received.
price discrimination
The practice of selling the same product to different buyers at different prices. Price discrimination is prohibited under the Clayton Act where it interferes with fair competition, unless costs of production are different between the buyers, the products are obsolete, or the price was lowered in good faith to meet the competition.
price fixing
The cooperative and unlawful setting of prices by manufacturers or dealers in a market. Such activity violates the Sherman Antitrust Act.
priest-penitent privilege
One’s right not to disclose communications between oneself and a member of the clergy, or have the clergy member disclose the contents of their communications.
primae impressionis
(PREE-mai im-pres-see-OWN-is) Lat. First impression.
prima facie
(PRIME-a FAY-shee) Lat. On its face. Describing a fact convincing on its face, without any further proof of validity.
prima facie case
A case in which the plaintiff has presented sufficient evidence to entitle him to a decision by the judge or jury; a case which compels a favorable decision when no contrary or rebutting evidence is presented.
prima facie tort
An unjustified intentional infliction of harm that results in damage to another person, by doing something that would otherwise be lawful.
primary
1. First in time or importance. 2. Elections.
primary caregiver
The parent who has had the greatest responsibility for the 352day-to-day care and rearing of a minor child. The laws in many states give preference to the parent who is the primary caregiver when determining the physical custody of a child.
primary evidence
Original or “best evidence” which is the most satisfactory way of proving a point in issue (e.g., the real gun in a murder case, the eyewitness’s testimony, or the original contract).
primogeniture
(pry-mo-JEN-i-chur) Ancient common law rule of inheritance in which the eldest son of the deceased would inherit all the property. By contrast, “gavelkind” inheritance gave all sons an equal share.
principal
1. Most important or highest in rank. 2. In agency law: one who directs or allows another to act for his benefit, subject to his direction and control. The principal may be “disclosed” (known to third parties); “partially disclosed” (when third parties know only that the agent is acting for some principal); or “undisclosed” (when third parties do not know that the agent is acting for any principal). 3. In criminal law: one who commits a crime, as opposed to an “accessory,” who may aid the crime but is not present at the commission of the crime. 4. In commercial law: the amount of the loan or investment, not including any interest. 5. In trust law: the money and property in the trust, not including any profit. 6. In the law of guaranty and surety: the one who is obligated to perform a contract which the surety guarantees.
principle
A fundamental rule or doctrine of law which guides judicial decisions.
prior appropriation
Rule that allows the earliest riparian landowner who uses water to take all she can use before other landowners have a right to it.
prior inconsistent statement
In evidence, statements made by a witness which contradict his or her testimony in court. Such statements may be used to impeach the witness.
priority
A legal preference; a right to go first (e.g., in a bankruptcy action, creditors with “priority” are entitled to the first proceeds of the assets).
prior lien
A first or superior lien, which is not necessarily antecedent in time.
prior restraint
The governmental prohibition of a publication or speech prior to its expression. The First Amendment bars such restraint in all but the most extreme circumstances.
prisoner
One who is forcibly held in captivity.
privacy
The right to be let alone, protected by law. The various rights of privacy include the confidentiality of private communications and letters, the freedom to make personal decisions (e.g., marriage and abortion), the right to enjoy private property, and the interest against false publicity. Some states provide for penalties and civil remedies for breach of privacy.
private attorney general
A person who brings a lawsuit that benefits a large number of people or that vindicates an important public policy and is important to the public as a whole. A private attorney general is often entitled to recover her attorney’s fees in the litigation.
private judge
An individual hired by private parties to act as a judge and resolve a dispute.
private nuisance
Interference with one’s use and enjoyment of his own property, through unreasonable or unlawful means.
private offering
The sale of a security directly to a private person or favored clients such as large institutional investors, outside of a public offering.
privatization
Turning a governmental activity or function over to private individuals or businesses.
privies
Those joined together in interest or in relation to a thing (e.g., privies to contract (those who signed the contract), privies to estate (lessor and lessee), or privies of blood (blood relatives)).
privilege
1. Some advantage or benefit enjoyed by one person or a particular group of persons; a benefit which all citizens do not share. 2. A specific immunity (e.g., physician-patient privilege).
privileged communication
Statements made by one person or another which may be withheld as confidential by that other person when he is a witness in court regarding the conversation (e.g., patient-physician, clientattorney, penitent-priest, or husband-wife communications are protected).
privilege from arrest
The privilege, granted by government, of specific persons to be immune from arrest for certain acts.
privileges and immunities
The basic rights common to all U.S. citizens, as established by the Privileges and Immunities Clause in Article 4 of the Constitution, and reinforced in the Privileges and Immunities Clause of the 14th Amendment. These provisions guarantee that when citizens move from one state to another, they may enjoy the same rights as the native citizens of that state.
privity
A relationship of common interests or common legal rights (e.g., a privity of contract is required in a breach of contract action; the defendant must be a party in interest to the plaintiffs contract).
privy
One person who has privity with another.
pro
Lat. For.
probable cause
The existence of certain facts which would lead a person of reasonable intelligence and prudence to believe that a crime has been committed. Probable cause 355is required before an arrest or search warrant is issued by the judge.
probate
The legal procedure necessary to prove that a will was legally made; more generally, the whole legal process having to do with legal administration of wills and estates.
probation
In criminal law, the sentence imposed by the judge when the defendant is not imprisoned but instead is required to report periodically to the probation officer who supervises the probation, ensuring that the person on probation is productively employed and out of trouble with the law. “Parole,” in contrast, is release of the defendant after he has served part of his prison sentence.
probative
Serving to establish or prove the truth.
pro bono publico
(pro bone-o PUB-lik-o) Lat. For the public good (e.g., a lawyer engaged in “pro bono publico” activities represents, without charge, those who cannot afford legal services).
procedendo
(pro-she-DEN-do) Lat. Duty to have proceeded. Refers to a superior court writ commanding an inferior court to proceed to judgment. Also “remand.”
procedural due process
Constitutional guarantee that a person whose right to life, liberty or property is to be affected is entitled to reasonable notice and an opportunity to he heard and present a defense to the proposed action before a fair and impartial decision-maker. See due process of law.
procedure
The process by which lawsuits are resolved; the rules regulating the pleadings, service of process, trial practice, evidence, and appeal. In contrast, “substantive” rules create and define legal rights and duties.
proceedings
The events which take place in court connected with a lawsuit. More generally, all the actions of 356legal officials (judges, clerks, magistrates, officers) from the commencement of a lawsuit until the enforcement of the final judgment.
process
1. The formal papers used to notify a defendant in a civil suit that he must appear at trial. 2. The method by which a court exercises its jurisdiction over persons or property connected with the action.
proclamation
1. An official announcement, usually made by a high government official (e.g., president, governor). 2. The document containing such a public declaration. 3. A bailiff’s declaration that something is about to be done.
proctor
1. Person appointed to manage another’s affairs or to represent him in court; a procurator, attorney, or proxy. 2. Originally, an officer who performed the duties of an attorney in ecclesiastical or admiralty courts.
procuration
1. Act by which one person gives another authority to act in his behalf; agency; proxy. 2. Act of procuring a person for sexual purposes.
procurator
An agent; attorney; proctor; anyone who, under power of attorney, acts in another’s behalf. See proctor, procuration.
produce
1. (v.) To show; to bring forth; to furnish, such as to produce evidence. 2. To yield, as in to produce dividends. 3. (n.) Something that grows or is found in the earth (e.g., fruits, vegetables, gas, oil).
product liability
Responsibility which manufacturers and sellers of merchandise have to persons injured or damaged due to defects in their products. The manufacturer or seller is liable even though he has not been negligent (i.e., he is “strictly liable”). See strict liability.
professional corporation (P.C.)
A corporation established for the purpose of practicing a profession 357(e.g., lawyers, accountants, doctors).
proffer
To offer or present, as in to produce and offer a document to support a cause of action.
profiling
A law enforcement officer’s use of impermissible factors such as race or ethnicity as grounds to stop or detain a person.
profit
Gain, benefit, or advantage realized in money or money’s worth. In business transactions, it is the difference between income and expenditures. “Gross profit” is the money made from the sale of goods minus the cost of the goods to the seller, excluding expenses and taxes. “Net profit” is money made from the sale of goods minus all costs to the seller.
profit à prendre
(PROF-fit a PRAWN-dre) Fr. A right to enter another’s land and to profit from the removal of designated products it yields, such as minerals, trees, or game.
profiteering
Practice of acquiring excessive profits. This is usually done by taking advantage of unusual circumstances, and thus the term carries a derogatory connotation.
profit sharing plan
An employee benefit plan that allows eligible employees to share directly in the employer’s profits.
pro forma
Lat. As a matter of form, or for the sake of form. Term is used to mean a decree or judgment was rendered to facilitate further proceedings, not because it was necessarily right. It is also used to describe financial statements that are based on assumed or anticipated facts.
pro hac vice
(pro hak VEE-chay) Lat. For this one particular occasion. Courts may permit certain acts on a “pro hac vice” basis (e.g., allowing an out-of-state attorney to argue a single case), although such an act generally violates a jurisdiction’s norms.
prohibition
Short for a “writ of prohibition.” An order issued by a court of superior jurisdiction to an inferior court or quasi-judicial tribunal preventing the latter from dealing with matters outside its jurisdiction.
prolixity
The use of unnecessary words; the state of being verbose. Applied especially to wordiness in pleadings and affidavits. Adj. is “prolix.”
promise
An expression of an intention to do or not do something. A promise binds a person in honor, conscience, or law, and it may be written or oral. A promise made by deed is called a “covenant.” A reciprocal exchange of promises, or a promise made in exchange for consideration, is called an “agreement.”
promissory estoppel
Doctrine in equity that states that a promise is binding if the person who made it (promisor) could reasonably expect another (promisee) to rely upon it in a substantial way, and that the promisee did indeed rely upon it. The promisor is “estopped,” or barred, from denying his promise created a contract, even though one has not been made in the normal way. See estoppel.
promissory note
A negotiable instrument by which the maker unconditionally promises to pay a sum of money. It may be made out “to the order of” a person named on it or simply to “bearer,” and it may be payable on demand or by a specified date.
promoter
Person who takes the initial steps in the formation of a corporation. These steps include issuing a prospectus, writing a charter, and selling stock.
promulgation
1. Publication. 2. Act of officially announcing.
proof
1. The result of evidence; that evidence which establishes the existence of a fact, that which is required to convince a judge or jury as to the truth of something. (For distinction between proof 359and evidence, see evidence.) 2. Summary of the oral testimony a witness is expected to give at trial. This testimony is given to the witness’s counsel before trial to guide counsel during the trial.
property
1. The exclusive right one has to possess, use, enjoy, and dispose of anything he owns. 2. Anything that is owned, be it land, personalty, or an incorporeal right. 3. In criminal law, property means anything that has value. 4. When used in reference to trusts, an interest in something and not the thing itself. See personal property, real property, community property, chattel.
property settlement
The division of marital property upon divorce, either by a court-sanctioned agreement between the parties or by a court ruling.
proportional representation
A voting system that guarantees that minority interests will be represented in the government.
proposal
An offer; an expression of intention to do something. A proposal is not always an offer, but may only be an initial statement made for consideration by another. When this is the case, a proposal does not ripen into a contract as an offer does.
propound
To propose; to offer; to put something forth for consideration (e.g., to propound a will is to offer it to the probate court with the request it be declared valid).
proprietary
1. Owned exclusively. 2. Belonging to a corporation or individual.
proprietary functions
Acts performed by a municipality or state for the particular benefit of its citizens (e.g., owning and operating a parking garage). Contrast with governmental functions.
proprietor
The one who exclusively owns a proprietorship; owner.
pro rata
Lat. According to the rate; in proportion to some rate or standard; proportionately (e.g., an insolvent may have his assets 360divided among his creditors on a “pro rata” basis, meaning each would receive payment in equal proportion to what he is owed).
pro rate
To divide, distribute, or assess proportionately. See pro rata.
prorogation
1. Act of putting off something to another day, especially a legislative or court session. (See continuance.) 2. Civil law: An agreement to extend time beyond which was previously allowed.
pro se
(pro say) Lat. For himself; in her own behalf. A person who appears in court “pro se” does not have a lawyer and represents herself.
prosecution
1. The process of initiating and proceeding with a criminal or civil lawsuit; process of trying formal charges against an alleged offender. Verb is “prosecute.” 2. The government’s side of a criminal suit. See prosecutor.
prosecutor
Public official who prosecutes a person accused of a crime. A prosecutor acts as the trial lawyer on behalf of the government and may be elected or appointed. A prosecutor for the state is called a District Attorney, County Attorney, or State’s Attorney depending on the jurisdiction. A federal prosecutor is called a U.S. Attorney.
prospective
Concerned with or related to the future. A prospective law applies to situations in the future, as opposed to a retrospective or retroactive law which encompasses the past.
prospectus
1. A document published by a company that describes the company and the securities it offers for sale to the public. By law, a prospectus must be furnished to a potential buyer before he purchases any securities. 2. More broadly, prospectus means any communication, either printed or broadcast, that offers securities for sale or confirms the sale of securities.
prostitute
One who engages in sexual activity for pay.
prostitution
Act of offering, agreeing to, or actually engaging in sexual intercourse, or any unlawful sex act, for pay.
pro tanto
(pro TAN-to) Lat. For so much; to such an extent. 1. Partial payment on a claim. 2. Commonly used to describe the government’s partial payment for property taken under right of eminent domain.
protect
To prevent from being injured, attacked, or harmed.
protected activity
Conduct that a person may engage in without lawful retaliation (e.g., cooperating with a discrimination investigation against an employer).
protected class
In employment discrimination law, a group of people protected from discrimination based on their membership in the class. Protected classes under federal law include race, color, sex, national origin, religion, age, pregnancy, genetic makeup, or disability.
protective custody
The holding of a person by authorities, to protect him or her from either self-inflicted harm or harm by another.
protective order
1. Any court order intended to protect a party from abuse or harassment by another person. 2. An order limiting the scope or methods of pre-trial discovery.
pro tem
Lat. Short for “pro tempore,” for the time being; temporarily (e.g., a mayor who serves “pro tem” serves on a provisional basis until he, or someone else, is officially elected).
protest
1. Written expression of disagreement with the legality or justice of a payment, or the amount of a payment, made to protect oneself against the effects one’s payment would imply (e.g., taxes are sometimes paid in full but under protest, protecting the taxpayer’s right to have his taxes readjusted). 2. Statement 362written by a notary public at the request of a holder of a negotiable instrument, that states the instrument was presented for payment or acceptance, and that same was refused. In the statement, the notary “protests” against all parties to the instrument, and declares them liable for losses or damage due to their “refusal of payment or acceptance.” 3. A statement written by an importer contesting the amount of the duty charged on his goods. 4. Maritime law: A written statement by the master of a vessel stating the weather-related or natural causes of damage to his ship or cargo.
prothonotary
Title sometimes given to a chief clerk or registrar of a court.
protocols
1. First or original drafts of an agreement between countries or records of preliminary negotiations. 2. Accepted methods of procedure among diplomats or heads of state. 3. Ceremonial rules and procedures. 4. Formalities.
province
1. A colony or geographical division of a country (e.g., the Canadian province of Quebec). 2. Duty, function, power, responsibility, or sphere of activity of a profession.
provisional
Temporary; preliminary; made or existing for a time or until something further is done; tentative (e.g., provisional remedy is a court order which helps to enforce the law on a temporary basis).
proviso
“It being provided;” condition or stipulation; qualification; limitation. Usually a clause in a contract, statute, deed, or lease which imposes a condition that must be met in order for the instrument to be valid.
provocation
1. An act by one person that incites or influences a second person to perform a particular act, usually an illegal one. 2. An act by one person that so enrages a second person that he loses self-control and commits an act he would not ordinarily commit.
Provocation may reduce the severity of a crime, such as reducing murder to manslaughter.
proximate cause
1. Something that produces a result in the natural sequence of events and without which the result could not have occurred. One’s liability is generally limited to results “proximately caused” by his actions. 2. Real cause; direct cause; legal cause.
proxy
Person who is authorized by another person to act for him, usually to vote for him at a meeting (e.g., one permitted to vote for a shareholder of a corporation). Written authorization given by one person to another so that the second can act for the first.
proxy statement
Information required by the S.E.C. that must be given to stockholders prior to solicitation of their shares.
prudent person rule
Investment principle that states that a fiduciary may buy securities that any prudent person of discretion and intelligence would buy, in order to earn a reasonable income and preserve capital. In some states where this rule is eschewed, fiduciaries must buy securities from an established seller or broker.
prurient interest
A shameful or morbid interest in sex, nudity, or excretion. See obscenity.
public
1. All of the citizens of a state, nation, city, or community. 2. That which belongs to the people at large. 3. That which affects, or is open to or related to all persons, as distinguished from private. 4. The body politic.
publication
1. Making public; the offering of anything to the public at large. 2. In defamation law, the communication of defamatory material to someone other than the person defamed. 3. A printed book, circular, magazine, or newspaper. 4. The acknowledgment by a testator in the presence of witnesses that an instrument is his last will.
public defender
An attorney paid by the government to defend indigent criminal defendants.
public domain
1. Land owned by the government, as opposed to private property. 2. Free for anyone to use; not protected by patent or copyright.
public figure
Figures who have achieved public fame or notoriety (e.g., athletes, entertainment celebrities, artists). Public figures must prove actual malice on the part of the press, in order to win damages in a defamation action.
public forum
A place open to the public that has been designated or has traditionally been used for free speech and expression.
public policy
Flexible, vague term often meaning “what is good for (or will not harm) the general public;” principle of law holding that no person can do that which has a tendency to harm the general public.
public property
That which is owned or controlled by the government and/or dedicated to public use.
public safety exception
Exception to the Miranda rule that allows law enforcement officers to ask questions of a detained person if there is an immediate need to protect the public (e.g., “Where’s the gun?”) without first advising the person of his right to remain silent.
public use
The use of government-condemned property in such a way that it confers a benefit to the whole community. The government must prove that a proposed taking is for a public use before it may invoke eminent domain.
public utility
A privately owned business which is granted the exclusive right to provide an important service to a particular area, and therefore must adhere to government regulation of some of its business practices (e.g., pricing).
publish
1. To make or effect a publication. 2. To give publicity to. 3. To print for general circulation. 4. To print a manuscript.
puffing
Statement made by a seller which is not a representation of fact, but rather an exaggeration concerning the quality of goods; generally bragging about the product rather than a legally binding representation.
punishment
Penalty imposed for wrongdoing by authority of the law (e.g., a fine or incarceration).
punitive damages
Award of damages not related to actual harm caused to plaintiff, but instead intended to punish the defendant and deter future wrongdoing. Usually awarded when a tort is aggravated by evil motives, actual malice, deliberate violence, or oppression. Also called “exemplary damages” or “vindictive damages.”
pur autre vie
(purr OWE-ter vee) Fr. For or during the life of another. Also “per autre vie.” An “estate pur autre vie” is an estate held for the life of a third person.
purchase
1. To acquire title to property by voluntary act and agreement and for valuable consideration; to buy. 2. Acquisition of property by any means other than by descent.
“Purchase” includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property. U.C.C. § 1–201(32).
purchase money security interest (PMSI)
A security interest in goods sold retained by the seller or a lender to secure a loan of the purchase price. See U.C.C. § 9–107.
purchaser
One who obtains real or personal property in exchange for valuable consideration.
purge
1. To cleanse; clear. 2. To exonerate from some criminal charge or imputation of guilt or from a contempt.
purloin
To pilfer, steal, filch, commit larceny.
purport
1. (v.) To imply; claim; mean; convey; give the impression. 2. (n.) The meaning, intent, purpose, or objective of something.
purposely
Intentionally or deliberately; not accidentally.
pursuit of happiness
The right to apply one’s energies so as to maximize his or her prosperity and enjoyment of life, within the bounds of the law. This right is mentioned in the Declaration of Independence as an “inalienable” right.
purview
1. The purpose, scope, and design of a statute or other enacted law. 2. The enacting part of an act, as distinguished from other parts such as the preamble.
putative
Reputed; supposed; commonly esteemed; believed; assumed (e.g., a putative father is the man believed to be the father of a child born out of wedlock).
pyramiding
The use of investment profits from securities to finance new holdings.
pyramid scheme
A business model that charges participants a fee for participation, and then promises additional payment as they recruit new participants, and as those participants in turn recruit other participants. A pyramid scheme is unsustainable, due to the large number of participants who must be recruited in order for the scheme to remain profitable.