Adjudicate - This means to resolve a legal issue or issues in a lawsuit by way of a tribunal which is usually a jury or a judge, or a combination of both.  In a trial, the legal issues on both sides are adjudicated and result in an outcome.

 

Adoption -  In a stepparent adoption, the child is living with a legal parent who has remarried, and the new spouse wants to adopt. Most states have special provisions making it relatively easy for a stepparent to adopt, if the child's noncustodial parent agrees, is dead or missing, or has abandoned the child.

 

Adoptions arranged by licensed charities or publicly-funded social service agencies are called agency adoptions. Agency adoptions involve more court or welfare department involvement than do private adoptions. When a child lives at an orphanage and is adopted, the adoption is usually an agency adoption.

 

A county adoption happens when a county has custody of a child because the parents have abused, neglected or abandoned the child, or the child has been declared beyond the parents' control. These children are usually placed in foster homes while efforts are made to reunite the family. If reunification doesn't occur, the parents' rights are terminated and the child is made available for adoption.

 

When a parent fails to provide any financial assistance to, and/or communicate with, his child over a period of time, a court may deem the child abandoned by that parent. Abandonment also describes situations where a child is physically abandoned--left on a doorstep, delivered to a hospital or placed in a trash can, for example. These children are usually placed in orphanages or foster homes and made available for adoption.

 

When a parent or guardian fails to provide a child with adequate necessaries, education, supervision or general guidance, the adult may be guilty of child neglect. If child neglect is suspected, the local welfare department will conduct an investigation. In severe cases, the child will be removed from the home after a court hearing and placed in a foster home. If the parents do not improve their situation within a reasonable time (usually between six months and two years, depending on the state), the child may be taken away permanently and placed for adoption.

 

In some states, when a close relationship like that of parent and child exists between a child and an unrelated adult, the courts recognize that an equitable adoption has occurred. Often, the adult had agreed or intended to adopt the child but had not validly done so. The effect of calling the relationship an equitable adoption is that the adult must support the child and may be ordered to pay child support if the adult and child no longer live together (as would be the case if the adult and the child's legal parent split up).

 

ADR - ADR stands for Alternative Dispute Resolution and includes mechanisms for resolving disputes other than bringing a lawsuit against another party.  ADR includes Arbitration, mediation and a number of informal procedures that can help resolve disputes effectively.  These ADR solutions have arisen because of the tremendous costs, expenses and time which today’s lawsuit now requires. 

 

Originally, the court system was designed to provide a speedy and fair resolution system for disputes between parties.  Now, as the legal system becomes more unwieldy each year, businesses and individuals are searching for alternatives to litigation. Several solutions have arisen in the past decade and gained enormous popularity because they are truly quick and less costly.  These solutions have been lumped under the initials ADR.

 

There are many pros and cons to ADR.  Many critics charge that uninformed individuals may believe that they do not need an attorney in ADR without realizing that the party on the other side may have an attorney who is «advising them behind the scenes. »

 

Arbitration is one of the most well-known ADR tools.  It is significantly less complex than a lawsuit and a trial, and usually has a specific set of procedures that govern how the parties who submit their dispute to Arbitration will be required to turn over information in their case and what evidence can be used by the arbitrators to decide an outcome in the case.  There is an American Arbitration Association which has developed these rules that can be followed.  Arbitration is often a required dispute resolution mechanism that is specifically provided for in many contracts, such as stockbroker contracts, employment contracts and similar types of contracts.

 

Mediation is another popular ADR tool.  It involves the process of submitting your dispute to an impartial mediator.  The mediator’s fees are shared equally by both parties and usually the parties agree, in writing, to a binding decision from the mediator.  This means that often parties are giving up their right to a trial in front of a jury by their peers and often giving up their rights to appeals.

 

Affidavit - An affidavit is a formal statement that is signed by a party after making certain statements in the writing and which is usually signed under penalty of perjury whereby the party making the statement is declaring the statements to be truthful.

 

 

Annulment - Annulment is the means by which an action by two parties of creating a unity [marriage] under the recognized laws of marriage in a particular state, may seek to have the courts declare that the marriage in effect did not happen.  While it is a legal fiction, as event the law cannot pretend something did not happen, it returns the parties to the same set of circumstances they were in just prior to the marriage.  Marriages are annulled for many reasons depending upon state laws.  Some include lying or fraud by one party in seeking the marriage, [e.g., a person who was already married to another and ’marries’ a second person without their knowledge of the first marriage]or significant facts not known to one of the marrying parties.  State laws usually have a significant time constraint imposed on the annulment process.

 

 

Arbitration - Arbitration is one of the most well-known ADR tools.  It is significantly less complex than a lawsuit and a trial, and usually has a specific set of procedures that govern how the parties who submit their dispute to Arbitration will be required to turn over information in their case and what evidence can be used by the arbitrators to decide an outcome in the case.  There is an American Arbitration Association which has developed these rules that can be followed.  Arbitration is often a required dispute resolution mechanism that is specifically provided for in many contracts, such as stockbroker contracts, employment contracts and similar types of contracts.

 

The problem with arbitration is that it is often not voluntary and many parties would rather have a choice to face a jury in their case.  Arbitration has been criticised for having too many harsh results, and for developing into a complex body of rules that has begun to mirror the lengthy and complicated procedural rules in court cases.

 

C

 

Codicil - A codicil is simply a formal change to your original will. There are strict requirements regarding codicils which must be followed, and each state has its own requirements.  The issue with changing a will is to make sure that one can prove the person creating the will also created the codicil.  The problem is that the meaning of every will could easily be changed after the death of the person creating the will, if anyone was allowed to come in and produce a slip of paper that purported to say the person who created the will has now changed that will suing this slip of paper.  What the courts are inclined to do is to supply a strict interpretation of the law and rules in their state to make certain that a validly drafted and executed will is not changed without significant proof that the person who made the will intended to make this change. 

Often it is a better practice to simply create a new will. While one realizes that this is not always possible and there are good reasons not to execute a new will, you ought to consider doing it even if it costs a bit more in legal fees. The creation of a new will, and the destruction of the old will, witnessed by others, makes a much cleaner practice and will help to avoid much confusion later.

 

Conflict of Interest - In the legal context, a conflict of interest lies in when two or more persons or entities [parties] seek to sue each other, or when two or more parties seek to enter into a transaction of some type.  In both instances, the parties’ interests may either be, or later become, different.  As such, a lawyer who is, or has, represented one party cannot fairly represent both parties with different interests.  An example would be that an attorney could represent both the husband and the wife in a divorce, but would have to be very careful, because almost everything the lawyer said would either favor the wife to the husband’s detriment or favor the husband to the wife’s detriment.  Similarly, while an attorney could represent both the buyer and the seller in a real estate transaction, it could be a huge problem to separate out the interests of each party without hurting the other.  Most attorneys will consider both of these situations, classic conflict situations and will represent only one side in the case.

 

Thus, when an attorney seeks to represent a party, or is asked to represent a party, when he, or someone connected with him in his law practice, has represented another party that somehow may be involved in the dispute or conflict with the party seeking representation.  Simply stated, an attorney cannot represent a person or entity, if he, or anyone connected with him, has represented a person or entity that may be involved in this matter.  While this is a very complicated rule and its consequences can often seem to actually deny the best representation to a party, the courts and the legal system want to be such that there a lawyer does not represent any party who may somehow be prejudiced by the representation given to another party either during or before the current litigation or legal transaction.

 

Conservatorship - Many states provide for a conservatorship under strict legal proceedings by which one person is appointed to care for the affairs of another, usually when that person cannot care for themselves, while they are alive. Other states distinguish between guardianships [care for children] and conservatorships [care for adults]. Because of the close proximity of the two concepts, both are similar in their proceedings and in this section, the terms are often used interchangeably to apply to the affairs of both children and adults. Also, each state's laws vary in the specification of court procedures for both guardianships and conservatorships. It is important to consult your state's laws, since these concepts are not interchangeable when specific state laws are involved.

 

Regardless of the definition, it should be clear what is involved in the process of a conservatorship or a guardianship is the concept of a court supervised legal process, which has many disadvantages, compared to the way these "care" services can be legally provided with some planning and attention to the law in your state.

 

Generally, the process begins when a person files a petition with the court to "open up" a conservatorship proceeding. Typically, an adult child or spouse “opens” such a proceeding for their incompetent parent or spouse.  However, the courts are full of persons claiming to "know best" about the affairs of an incompetent person. These persons often file such proceedings on their own and ask that they be put in charge of the affairs of the person who is incompetent. Sometimes a person who files for a conservatorship can be a distant relative, a case worker, a grandparent or even a healthcare facility.

Sometimes that person may not even be incompetent.  However, the person seeking to open the conservator proceeding is often seeking to control the assets and affairs of the person who they claim is incompetent. Such a proceeding usually affects the alleged incompetent person's relatives, who must take action in the courts to protect their relative's estate from such attacks.

If a conservatorship is filed with the court, the court must first make a determination if it even has jurisdiction over the matter. Usually, this is made by reviewing the exhibits attached to the petition, which may include statements from one or more certified medical specialists regarding the competency of the person.  Once a court decides to exercise jurisdiction, it becomes involved in moving the Petition along and the process can be long, drawn-out and extremely expensive.  Because there are a number of mechanisms that are “forward-looking” and which can be created at considerably less expensive while the person is still competent, it is highly recommended that conservatorships be prevented if at all possible.  Lawyers can be a significant help in creating measures that will ensure a person’s affairs will be managed if they can no longer do so themselves.

 

Contested - In the legal sense, contested means exactly that – a contest.  Most people know it better as a lawsuit, a dispute, or depending upon the parties “a war.”  Basically, contested means the likelihood or existence of some type of dispute between two or more persons or entities.  The most common example is a contested divorce, which basically means the parties have not agreed to how they will divide their marital estate, may not have agreed to who will have custody and to what extent of the children, and may not agree on what sums of money will be paid by one spouse to the other for the spouse’s care or the children’s care. 

 

Contingency - While contingency means the possibility of an event happening, in the legal sense, it usually refers to a type of fee agreement – a “contingency fee”.  This fee arrangement usually provides for the payment of a legal fee to an attorney only at the end of a lawsuit or legal battle.  Additionally, the contingency fee is paid only if the party being represented wins their case and is awarded money.  The contingency fee arrangement usually specifies that the attorney will earn a specific percentage of the recovery that a client receives in a case.

 

Typically, these fees range between 29% and 50% and are dependent upon the type of legal matter and the expected difficulty of the case.  Often, there are ranges of fees that are specified depending upon different levels of time and effort that may be expended.  Contingency fees can be any amount, but when looked at from the attorney’s perspective, they must also be reasonable.  Recall the famous Pennzoil case in which the Plaintiff’s attorney received a fee of several billion dollars.  Courts upheld that fee arrangement as reasonable given the circumstances.

 

Under most state laws, this retainer fee arrangement must be specified at the outset and must be in writing and signed by the client.  The percentages and the underlying calculating factor must also be specified [i.e., gross recovery, net recovery etc.]

 

Custody - Several legal meanings can attach to the word custody.  Typically however, the custody in the legal systems refers to either Child Custody or in the criminal context in custody.  “In custody” means essentially in jail although there are many degrees and definitions that may apply.

 

Child custody or “custody matters” involve the issues surrounding who has the right to care and control of a child or children.  It is most often associated with a divorce or a petition for divorce, and involves the request by both parties [although they may agree on this issue] to be awarded custody of the child, children or one or more children. Whoever is awarded the rights to the custody of the child is not usually given special rights over and above those of the other parent, although many mistakenly believe this is the case.  Indeed, the other party is usually awarded the absolute parental control that they would exercise if the parties were together as to the child’s care and control.  Simply because the parent with custody would not allow the child to do a particular act or engage in a particular behavior, does not mean that parent can prohibit the other parent from doing so.  Custody is specified in a divorce decree in most cases, and governs the amount of time, or specific times, that each parent has responsibility for the affairs of the child. 

 

Today, it is very common for courts to award Joint Custody, which gives neither parent the outright custody and requires them, usually under specified conditions, to exercise joint control of the decisions pertaining to the child. 

 

D

 

Disclaimer - Disclaimer is a statement, written or oral, that purports to limit the responsibility for any cause or effect relating to an event.  Simply stated, manufacturers often provide disclaimers that they are not responsible for harm or injury if a product is not assembled properly or used in its proper form. 

 

It is important to remember that courts do not always agree with written disclaimers and there are thousands of cases involving illegal or legal disclaimers.  You should consult an attorney if you have been asked to sing a disclaimer or if you receive one that impacts you in some manner.  It may or may not be valid.

 

Discrimination - Discrimination in the legal sense has become a huge area of both laws and court decisions.  There are so many kinds of discrimination today that it is confusing as to whether the law will prohibit or not certain types of discrimination. Since most discrimination, by its nature can be unfair to one or more parties or entities, it is important to know which areas of law are recognized as providing some relief from discrimination.  The safe rule is that if you cannot find a law or court decision declaring the discrimination legal or illegal, it is likely not a recognizable type of discrimination.

 

The most common forms of discrimination are those actions taken by persons or entities that are based on a person’s race, sex, creed, religion, nationality, and age.  A person suffering from a recognizable form of discrimination is often provided a means by which they can sue and recover damages from a person or entity engaging in such actions.

 

Discrimination on the basis of one of the recognized bases is usually prohibited by law, particularly by the laws and constitutional provisions of both the United States and many individual states.  However, even among these recognizable bases of discrimination, there are many acts that are not considered discrimination.  In fact, depending upon where you live in the United States, may determine whether the law recognizes certain actions as discriminatory or not.

As you might expect, each state also defines what it thinks to be discriminatory actions differently.

 

E

 

Elder Law - Elder Law refers to the body of law and preventative legal measures undertaken to care for the elder parents of adult children.  However, there are all types of legal issues for elder adults and care should not be limited to just those parents who have adult children taking care of them.  The entire body of Elder Law should be considered by any adult, in any state, who may be currently be functioning well in the areas of health, finances and legal affairs, but who may someday become incapacitated in some manner so as to need another person to act on their behalf in some, or all, of those affairs.

 

Elder law issues embody those legal measures that can be taken before incapacity and those legal events and results that may happen if preventative legal action is not taken at the appropriate time.

 

Escrow - Escrow is defined as a situation that involves an impartial third party [person or entity] that will agree to hold certain property, materials documents or other items for parties who are engaged in some type of transfer, such as a purchase or sale.  Escrow is needed because a buyer of a company cannot in today’s society feel safe giving the money to the seller to purchase some item, without getting, at the same time, the title and legal documents surrounding the item, in return for the money at the same time.  To facilitate such a purchase/sale, the seller would transfer the title and documents surrounding the item to a third party [escrow agent] and the buyer will transfer the money to the escrow agent.  The escrow agent will hold the title and the money in an impartial account, called escrow.  At a designated time the escrow agent will transfer the parts of the transaction due to each party in the transaction, thereby ensuring that no party will receive their part of the purchase/sale prior to the other. 

 

Escrow can also prevent the loss of money paid by a purchaser if the property being purchased is not what it is supposed to be.  Likewise the seller can effectively avoid transferring the property to the buyer in a case where the “check may not clear” or similar events.

 

Eviction - Being evicted or having an eviction occur usually means that a person is asking a court to order another party to leave the premises in which they are living, working or residing. Most commonly an eviction describes the legal proceeding that is filed by a landlord to remove a tenant from the premises being rented by the tenant.  The most common reason for an eviction is for non-payment of the full amount of the rent which is owed.  However, there are many reasons that a tenant could face eviction proceedings.

 

Typically, evictions are governed by specific and detailed state law provisions.  In addition, many cities are governed by a further set of rules and regulations that specify the nature of the eviction proceedings.  These separate bodies of law can either work together or in opposition to each other, and it is important for a tenant who may be being evicted to understand both the state and local laws governing evictions.

 

Extradite - This means a legal proceeding resulting in an order sometimes to return a person who is under the jurisdiction of one state or country to the jurisdiction of another state or country.  It happens most often in the law with persons charged with criminal activity, and immigrants who are allegedly not in the country, in which they have been apprehended, legally.

 

F

 

Felony - A felony has a separate definition in each state and under the federal laws, but it basically means a serious crime.  Typically, this includes murder, robbery, rape, and a number of similar crimes.  However, one cannot know with certainty whether a crime is a felony unless one researches the definition of that crime in each state or under the laws of the United States.  Many crimes may be felonies in one state and misdemeanors in others.

 

Typically, but not always, these are crimes that are punishable by a jail term.

 

Frozen Assets - A person’s assets may be seized by others, or threatened to be seized by others, most often under a court’s order of some type.  To the extent that a court order is issued in a legal proceeding that orders one person or entity to turn over some or all of their assets to another person or entity, this order can be served on a person or entity with custody of that person’s assets.  If the entity or person with custody of the assets will not act with respect to those assets thereby denying the “owner” access to these assets, the assets can be said to be frozen. 

 

The most common example is where a bank is ordered to “freeze the assets” of a depositor and the bank is given a copy of a court order that requires the bank to freeze these assets and not allow the “owner” access to them.  The bank will usually only act pursuant to a court order and will not “take any risks or chances”, because if it does, it may be sued by the party presenting it with the order for not acting to hold the person’s assets.

 

Banks and other entities, will almost always require that they be presented with a court order to freeze a person’s accounts, otherwise they will usually not take this action.

 

Frozen Asset situations usually arise in civil cases, when there has been a judgment, or other court order, that is in favor of the person seeking the assets to be frozen, and it often helps a person with such a judgment or order to collect the monies owed to them.  In criminal cases, the “fruits of the crime” are often frozen when they can be found, so as to deny the alleged defendant access to the benefits of their criminal action.

 

G

 

Garnishment - Garnishment is a legal proceeding that is governed by state law and which contains very specific procedures that require some person or entity to withhold a portion of another person’s income.  The most popular form of garnishment is a wage garnishment that arises in the employment context.  This is where a third party [person or entity] who has gone through a legal proceeding and has received a judgment or court order that wards that third party a sum of money against the person employed.  By filing a notice of this court order with the employee’s employer, the employer is required by law in many cases to withhold a portion of that employee’s wages from each paycheck until the amount is paid. 

 

An employee has many legal excuses that can be presented to an employer [but which often requires a court action] that can either reduce the amount garnished [withheld] from a paycheck or even, in some cases, eliminates any such withholding entirely.  Many states do not even permit wage garnishments as a form of collecting judgments because of a perceived inherent unfairness of taking someone’s paycheck monies, before they ever receive the money and exercise their choice to either pay, or not to pay, that third party to whom the money is owed.

 

Guardianship - Many states consider guardianships to be legal proceedings by which one person is appointed to care for the affairs of another, usually when those people cannot care for themselves, while they are alive. Other states distinguish between guardianships [care for children] and conservatorships [care for adults]. Because of the close proximity of the two concepts, both are similar in their proceedings and the terms are often used interchangeably to apply to the affairs of both children and adults. Also, each state's laws vary in the specification of court procedures for both guardianships and conservatorships. It is important to consult your state's laws, since these concepts are not interchangeable when specific state laws are involved.

Regardless of the definition, it should be clear what is involved in the process of a conservatorship or a guardianship is the concept of a court supervised legal process, which has many disadvantages, compared to the way these "care" services can be legally provided with some planning and attention to the law in your state.

H

 

Healthcare Power of Attorney - A health care power of attorney is a legal document that seeks to appoint another person, or entity to make medical decisions for that person if that  person is  unable to do so him/her self.

 

I

 

Jurisdiction - Jurisdiction is a term that describes the authority, or lack of authority, of a locality, state or country to impose its laws and regulations upon a person or persons.

 

As an illustration, if a person lives in Pennsylvania that person may be subject to taxes imposes by the state, county and city in which they live.  Because they live in the United States, they are also subject to the tax laws of the United States.  Thus, it is said that Pennsylvania has the jurisdiction over that person for tax issues related to the state, county and city taxes.  If that person refuses to pay a school tax or trash tax or a state income tax, the state, county or city affected can sue the individual and demonstrate to the court that because the person lives in that area, it has jurisdiction over that person.

 

In any lawsuit, it is required to be demonstrated that the court be shown that it can exercise jurisdiction over a particular person or entity who is either suing or being sued. No matter what that court does or rules may have no effect on a person who successfully opposes the allegations over jurisdiction over the person.

 

L

 

Lemon law (Pet/Auto) - Lemon laws are most frequently associated with vehicles, and in most states with new vehicles.  State law may seek to include or exclude older vehicles, boats, motorcycles trailers, trucks, and related vehicles.  Each state’s lemon law is a specifically created state law right that is designed to protect buyers of covered vehicles from purchasing a vehicle that evidences a serious problem or problem that is generally recurring.

 

The theory behind lemon laws is that the manufacturer has the upper hand over a consumer in most cases, as it can keep requiring that a vehicle that has a problem be returned for repeated repairs.   Before lemon laws, consumers were forced to be “stuck with a lemon” that no one had an incentive to fix.

 

Lemon Laws now require that after a certain numbers of returns to the garage for the same problem, that the car can be declared a “lemon” and that car, if it cannot be fixed, must be replaced by the manufacturer.  This puts the burden of fixing on the manufacturer, but depending upon the state laws, it is not always easy to enforce these provisions.

 

Many states’ laws require revisits for the same problems numerous times and that each time the problem be documented.  Additionally, many states require a second and third opinion be obtained by the consumer to support their claim of a “lemon”. Often, consumers end up abandoning these “lemon law” claims as they are either too onerous or too expensive to pursue.

 

Some states have enacted similar provisions for the purchase of pets that are ill or suffering from permanent and/or serious medical conditions.  State laws govern these and your state’s law should be consulted if you have this problem.

 

Libel - Libel is a charge which is actionable in court if proven, that a person or entity has made a false accusation about another person or entity in writing and published that writing.  There are very specific case law examples in each state in the United States that will help one determine what constitutes libel. 

 

The problem with libel and recovering damages from everyone who ever wrote anything false about another person is the United States Constitutional right of Freedom of Speech.  Needless to say, there are many exceptions created that enable persons or entities to write untruths that do not constitute libel under a particular states’ laws.  One general category is where a person speaks untruths of another that are designed to be secrets and are not published.  Another category is when a person or entity is deemed to be a Public Figure, at which time certain statements can be written about that person because they are considered to be in the public eye.

 

Lien - This is a legally binding document that can be filed on property, including but not limited to real estate, that will prevent the sale of the property or which will require that upon the sale of the property, a specified amount of the proceeds will be withheld and given to the person or entity filing the lien.

 

Liens are filed with a government agency, usually the city or county court, that are published for all to see, to protect a person or entity’s interest in that piece of property.  One of the most common examples is a lien filed by a contractor on a piece of property on which that contractor has performed certain work and has not yet been paid.  This means that the person who may desire to sell the property, even if it is years later, may not be able to sell the property without the money being withheld to pay the lien.

 

Liens are not always based on court orders and can often create a number of problems particularly in the sale of real estate. It is important to give a line your immediate attention if one arises, and you may even want to check to make certain one has not been filed on your property before you are ready to sell it.

 

Litigation - Litigation is the term that describes the process of suing a person or entity from the time the lawsuit is filed until the time it ends.  It has no real legal significance other than as a term that describes the stage of a dispute, i.e., “we are in litigation.”  This means the parties are at some stage of suing each other and defending themselves before a court.

 

Living Will - By creating a Living Will, a person who is of sound mind and is not incapacitated, declares their wishes in writing as to the medical procedures to be performed if they were to become terminally ill. With some exceptions, it should be remembered that a Living Will is generally only effective when a person is terminally ill and cannot communicate his/her wishes to a family or their physicians.

Unlike a will, which requires that a person die before it becomes effective, a Living Will is designed for the sole purpose to be effective before death.  In fact, this document may give health professionals the security they need to be able to honor your wishes, since they are extremely reluctant to even consider your wishes when you are suffering from a terminal illness.  Hospitals and doctors could be subject to possible lawsuits if they were to make decisions for a terminally ill patient.

 

For example, they cannot simply disconnect life-support procedures because a terminally ill person tells them too.  As incredible as it sounds, if the family does not wish these procedures to be disconnected, the hospital may decide the terminally ill person is not of sound mind enough for them to rely on the terminally ill person's wishes.  The hospital or doctors do not want to be sued by the family for disconnecting a person's life-support and thereby, in effect, causing the "wrongful death" of that person.  While the hospital may still ultimately win its case, it is much easier for the hospital to simply ignore the wishes of the terminally ill person, and take no action, thereby allowing them to remain on life-support systems for years in some cases.

While we can all be critical of our legal system, the author has found that it is best to prepare for how it is working now, regardless of whether it is working well or poorly, and seek to change the system in the future where necessary.  Regardless of your personal opinions, if a parent or child were to become mentally incapacitated right now, the hospital would likely not disconnect the support system in the absence of a clear expression of the incapacitated person's desires.  So it is best to prevent the problem, and surprisingly, it is easy to do so, and to ensure your own wishes are upheld.

With a Living Will, you can decide the exact circumstances for disconnecting any life-support treatment.  You can also specify who among your family or friends and doctors will have the power to decide when to make a decision to disconnect life-support systems.

 

 

M

 

Malpractice - Like doctors, malpractice lawsuits can be filed against attorneys for committing mistakes in their representation of clients.  Malpractice actions often involve situations where attorneys make mistakes in many instances including, but not limited to, filing actions after the Statute of Limitations has run, giving the other side documents that are not supposed to be released, drafting provisions in documents that enable a party to avoid making payments despite having received certain items for which payment was intended and related matters.  Errors in knowing the law can result in malpractice actions, and even where office staff makes an error, it can be attributed to the attorney for failing to properly oversee the staff.

 

Mandate – Mandate is a complicated court proceeding that arises infrequently in the public context and involves court orders requiring public officials to perform an act or to take certain action.  These are governed by state law and often involve constitutional law principles, since you have a court [one body of government] ordering a legislator or executive [another body of government] to do something.

 

Mediation - Originally, the court system was designed to provide a speedy and fair resolution system for disputes between parties.  Now, as the legal system becomes more unwieldy each year, businesses and individuals are searching for alternatives to litigation. Several solutions have arisen in the past decade and gained enormous popularity because they are truly quick and less costly.  These solutions have been lumped under the initials ADR.

 

ADR stands for Alternative Dispute Resolution and includes mechanisms for resolving disputes other than bringing a lawsuit against another party.  ADR includes Arbitration, mediation and a number of informal procedures that can help resolve disputes effectively.  These ADR solutions have arisen because of the tremendous costs, expenses and time which today’s lawsuit now requires. 

 

There are many pros and cons to ADR.  Many critics charge that uninformed individuals may believe that they do not need an attorney in ADR without realizing that the party on the other side may have an attorney who is “advising them behind the scenes.”

 

Mediation is a popular ADR tool.  It involves the process of submitting your dispute to an impartial mediator.  Often, the procedures are informal and the process is conducted in just a few hours or days. There are often no lawyers involved [although there can be] and the procedures are surprisingly minimal.  The mediator’s fees are shared equally by both parties and usually the parties agree, in writing, to a binding decision from the mediator. 

 

Critics have indicated that mediation sounds great, but many do not understand that with binding mediation, parties may not understand that they are giving up their right to a trial in front of a jury by their peers and often giving up their rights to appeals.

 

Medical Negligence - Medical negligence is also called Medical Malpractice and it embodies an established body of law in each state, and with federal medical facilities, that allows a person to recover for injuries they receive when a physician makes a mistake with respect to treatment of an individual.  Medical Malpractice statues and case law interpretations of these laws are numerous and depend on each state’s laws.  There are a number of specific provisions in each state, that may be vastly different from those in other states, with respect to what the damages should be when a physician commits an action that is a mistake.

 

In any such case, there are also a number of requirements that must be met before a lawsuit is filed against a physician, some of which can be costly or can preclude a lawsuit being brought at all.

 

Medicare - As it is currently proscribed, Medicare has two parts and each part has its own set of rules. Part A governs the provisions under which acute care in hospitals is rendered and also allows limited coverage for skilled nursing care, home care and hospice care. Part B governs all of the coverages and limitations dealing with physicians, outpatient care, all types of diagnostic tests, and all medical treatment.

Part A is paid by employer and employee contributions. Part B is paid by general tax revenues from the United States federal income tax, but not in full.  The remaining portion is paid in the form of a set monthly Medicare premium paid by the eligible participants.

The key to understanding the legal aspects of Medicare coverage is to understand the requirements set by statute in order to receive Medicare payments. You must be 65 years old and eligible under the Social Security rules. However, you may also be eligible to receive Medicare if you are under 65, if you are entitled to Social Security and you are disabled for 24 months. You may also receive Medicare if you are suffering from end-stage renal disease.

It is important to know that you are not entitled to Medicare at age 62, (unless you qualify under the disabled or disease exceptions) even if you elect to receive Social Security payments earlier. It is also important to note that there are no financial requirements associated with Medicare.  One must understand that Medicaid is different from Medicare and has both broader coverage than Medicare and strict financial requirements.

 

Misdemeanor - A misdemeanor has a separate definition in each state and under the federal laws, but it basically means a crime, although not the most serious type of crime.  Typically, misdemeanors include acts such as small drug possession, trespassing, purchasing liquor under age, drinking and driving, but usually do not include crimes such as murder, robbery, rape, and those similar crimes.  However, one cannot know with certainty whether a crime is a misdemeanor or felony unless one researches the definition of that crime in each state or under the laws of the United States.  Many crimes may be felonies in one state and misdemeanors in others.

 

Typically, but not always, these are crimes that are punishable by a fine and also a jail term under one year.

 

P

 

Power of Attorney - There is a vehicle by which you can specify that a person or persons has the power to act in your behalf. This is called a Power of Attorney.  Unlike the Durable Power of Attorney and Durable Power of Attorney For Healthcare, a General Power of Attorney is deemed, in most states, to be voided at either the death or incapacity of the person making the Power of Attorney, sometimes called the Principal.  Thus, giving a person the power to act for you under a Power of Attorney will not give them the right to act on your behalf after your death, or if you ever become incapacitated.

However, while you are of sound mind or alive, you can give another adult the power to perform many legal duties for you. This is called a General Power of Attorney.  Or, you can give an adult the power to act in one or more specific instances for you.  This is called a Specific or Special Power of Attorney. 

If you create a General Power of Attorney, you ought to be careful to state exactly what acts might be performed by the person you are appointing as your agent.  Also, you should remember that when creating a Power of Attorney, you should consult the laws of your state to determine whether you need witnesses or a Notary Public, or in some cases, both, to attest to your signature in creating the document.  Your Plan Attorney can be of assistance in this area and will be able to provide the guidance needed to determine the form required in your state for a Power of Attorney.

Should you decide to revoke this Power of Attorney, you can do so at any time.  However, you ought to be careful for your own protection to send a copy of the Revocation to anyone with whom your agent might have been dealing at the time of the revocation.  Many lawsuits have emerged when the agent ignored the Revocation and continued to act on your behalf.  Your notification, preferably sent by Certified Mail, Return Receipt Requested, might help to notify the party who is relying on your agent that the agent no longer has the power to act for you.  If the party with whom the agent is dealing receives this Revocation and continues to act, both he/she and the agent may be liable to you for any damages which you suffered. 

Probate - After you die it is critical to understand that your estate, either with or without a will, most likely will end up in a court probate proceeding.  Probate Court is the court that is charged with making a determination if a valid will exists for a deceased person and who should be appointed to be in charge of administering the affairs of that deceased’s estate.  Because the person is deceased, that person cannot come into court and tell a judge exactly what he/she wanted to do with each asset they owned.  Instead, the court must rely on what the deceased said and did when they were alive to determine how to divide that person’s estate. 

The Probate Court is charged with determining if a will is valid, if a will has been revoked or amended, where the actual property of the deceased is, and what debts and obligations must be paid prior to distributing the assets of the deceased.

Probate Court is usually expensive and lengthy and proper planning can often make Probate Court unnecessary.  It would be helpful to learn how to do this.

Pro Bono - This usually refers to legal work performed by an attorney at no charge to the client. LAP’s attorney network does not contain Pro Bono attorneys.

 

Promissory Note - This is legal document that evidences the fact that one person or entity owes another person or entity money.  Usually, the Promissory Note sets forth the terms of repayment along with the payment of an additional sum called interest, and the date by which said sum of money plus interest will be paid.  Whether it will be repaid in a lump sum or in installments is usually specified, along with the amount of any installments.

 

R

 

Relinquish (custody) - Relinquish Custody means to give us ones’ rights to the control and supervision of children when used in this context.  It does not mean to give u future parental rights or concerns and may only be a device to ensure that one parent is making the daily custodial choices for a child.

 

Repossession - This is a state law governed procedure whereby property can be taken back by the person from whom it was purchased in the event that the property is not being paid for by the buyer.

 

Repossession is commonly talked about in the vehicle sense, that is, repossessing a car for non-payment of the monthly car payment, but it may also arise with a number of other pieces of property.

 

Because state law if very specific in the area of allowing a party to take back from another the property being used by that person, one should consult these specific provisions to determine if a piece of property can be repossessed, or to determine if a repossession can be opposed or contested.

 

Retain - In the legal sense when one hires a lawyer to work for them, or another, one is retaining an attorney.  Many states require that any lawyer who is retained by a client provide a retainer agreement that is in writing and clearly specifies the terms under which the attorney will act for the client, including the amount of any retainer agreement.

 

Retainer - A retainer usually is an abbreviated term for retainer agreement or retainer fee.  A Retainer fee means the amount of money paid to an attorney in advance of the attorney working for a client that will be deposited into the attorney’s trust account and then, as the attorney bills the client for his/her time on the case, a transfer into the attorney’s business account is made of the funds that will be applied for the attorney’s work.  Often, clients will be asked to keep the Retainer Fee at a certain level throughout the litigation, and any unused amounts will be returned to the client when the matter ceases.

 

A Retainer Agreement specifies the terms and conditions of the work the Attorney will perform for the client and the amount of the Retainer fee.

 

S

 

Separation - Many questions arise about whether a couple can obtain a legal separation instead of a divorce, and what the differences may be in those two proceedings.  Generally, separations are informal, that is, the couple simply decides to live on their own under some informal agreement with respect to property, alimony and/or child support and custody.  These are often the most problematic from a legal standpoint, because there is usually no written agreement about any of the items such as support of the spouses, property ownership, child support or custody.  Thus, when something goes wrong, it is often difficult to determine a proper resolution.  However, many couples decide on this type of arrangement as it offers the best prospects for reconciliation.

Legal Separations, however, are legal proceedings, where the couple petitions the court to declare them separated legally, but does not dissolve the marriage.  Almost all of the proceedings performed in a divorce are present and the time and money invested by the couple is almost identical, depending upon state laws.

Legal Separation is becoming less frequent since many states have determined that formal separations are to be treated as if they were divorces in reality.  Thus, the separation agreement or process is required which involves court or legal filings, waiting periods and usually agreements addressing divisive issues.  The result is that there is really no advantage to a formal Legal Separation, except in some complicated tax or related cases. Generally, couples with specific reasons for doing so (usually related to high profile marriages or wealthy) obtain Legal Separations.

Separation between married couples is not a legal or formal process, and is different from a formal Legal Separation.  Couples who decide to separate their living conditions or other marital duties and responsibilities should exercise much caution, since they are treated as if they are still married for all intents and purposes, by entities or persons such as creditors, banks, employers, insurance companies, credit card companies and other such entities.  This means that while you and your spouse may consider yourselves separated, and even in some cases not married, the law does not.  Thus, your spouse's credit card debts will likely still be considered your own.  Your spouse would be able to withdraw funds from your marital bank accounts, and you must continue to pay bills, even if your spouse is the beneficiary of the bill, or face serious credit and/or foreclosure problems. 

 

Slander - Slander is a charge which is actionable in court if proven, that a person or entity has made a false accusation about another person or entity in writing and published that statement.  There are very specific case law examples in each state in the United States that will help one determine what constitutes slander. 

 

The problem with slander and recovering damages from everyone who ever wrote anything false about another person is the United States Constitutional right of Freedom of Speech.  Needless to say, there are many exceptions created that enable persons or entities to state untruths that do not constitute slander under a particular states’ laws.  One general category is where a person speaks untruths of another that are designed to be secrets and are not published.  Another category is when a person or entity is deemed to be a Public Figure, at which time certain statements can be written about that person because they are considered to be in the public eye.

 

 

Small Claims - The Small Claims Court is designed to enable persons to avoid incurring attorneys fees for representation in disputes where the attorneys fees might cost more than the amount of the lawsuit. Thus, it is the preferred court to bring a lawsuit against a person or entity when the amount of the lawsuit is under $5,000.00.

Before you begin to analyze the amount of the lawsuit, you should remember that since you cannot have an attorney in small claims in most instances, you will be representing yourself. Thus, you will be doing everything from start to finish and you will be spending your own time.  While certain tasks might be delegated, it is a good idea to control each aspect of your case.  You will not, absent special circumstances, be allowed to have another person appear and argue your case in court.  If you are handicapped, check the rules regarding any special procedures with the Small Claims Court clerk. Also, if you are one of several parties being sued, or having an interest in this case, you might allow the other person suing, or being sued with you, to do most of the talking, but you must appear and you must file any papers required of you.

If you are being used in Small Claims Court, your failure to appear is the same as forfeiting a game.  If you are being sued and fail to appear in court, or fail to file certain documents, a judgment may be entered against you.  If you are suing another person and you fail to appear or file certain documents your case may be dismissed and you cannot collect against whom you filed the lawsuit.

In every lawsuit, whether large or small, many aspects of the lawsuit are governed by the amount of the lawsuit.  It makes no sense to pay a $5,000 retainer fee to an attorney to sue a person for causing $35.00 damage to your car door.  Likewise, it makes no sense to hire such a lawyer to sue the cleaners for a new blouse worth $150.00 which was lost by the cleaners. 

The Small Claims Court is designed to accept cases, without attorneys representing the parties, for less than a certain amount of money, usually $5,000.00. You should call your local Small Claims Court Clerk to find the actual limits in your state.

Thus, if your case involves an amount of $1,000.00 and you feel that a person owes you this amount, you may want to sue in Small Claims Court.  This will enable a judge to decide if you are right or wrong, and settle the matter.  Such an amount might be just right for Small Claims, since it is certainly too little of an amount to retain an attorney to handle.  If the amount for which you are suing is a little over the jurisdictional limit, for example the limit is $2,500 and you have lost $3,000, you might consider the following analysis.  First, it is possible, but unlikely the Small Claims court judge will award more than the $2,500.00, assuming you won everything.  [Always ask, even if the judge refuses, just in case he might say yes].  So in order to recover the full $3,000.00 you might have to hire an attorney.  But, most reputable attorneys will not bring a lawsuit, which may involve several years of legal wrangling, for under several thousand dollar retainer fees.  You should check with your Plan Attorney for the exact fees.

In short, you may spend several thousand dollars to attempt to win $3,000.00.  While this may be your desire, it certainly makes no sense economically.  You may easily end up spending more than you recover.  Also, the time spent in recovering any money award might be several years depending upon your local court backlog.

For this reason, it is worth it to reconsider Small Claims.  Even though you may lose $500.00 of the amount you are seeking, you might still recover $2,500.00 in a short period of time, usually ninety days or less and not have any legal expenses, except the charges associated with filing your lawsuit.

Also, if the amount for which you are suing is under $100.00, you may want to consider whether it is worth it to sue at all, for several reasons.  First, the filing fees might cost close to this amount and if you lost, you might be out of pocket twice the amount of money.

Second, the American [Civil] Legal System is not a system founded on the principle of punishment.  That is, it is not a good system to simply maintain a lawsuit just to get even with someone.  Nor does it punish very well.  Most Americans believe that "I want to sue that person and punish him/her for not paying me and causing me grief."  While it depends on the type of matter, most cases in small claims court, and most lawsuits in general, will not punish a person for not paying.  The court may order him/her to pay, and sometimes award interest and fees to the person who had to sue, but the courts, in most cases, will not award a fee to punish. [Of course there are exceptions to this general rule].

 

Statute of Limitations - Because some certainty for citizens of a state is necessary, states have enacted many Statutes of Limitation.  These Statues specify specific time periods during which a person or entity can be sued for either their actions or for the transactions in which they are involved.  By limiting the time period by which a person or entity can sue another person or entity, the courts are able to give some end to legal matters.  It is important to note that either the lawsuit must be filed within this time or be forever lost [with certain exceptions].

 

A common example is that when a person is involved in an accident, the state law gives them a specific time period in which to sue, or lose their claim.  States are different with statutes of Limitation ranging from one year to five years, and including certain lesser periods if government agencies are involved in the accident [Notice of claim must be filed in 60 days in certain jurisdictions]. 

 

Subpoena - A subpoena is a court order instructing a specific person to appear at a specific time before a specific court.  In order to compel a person to participate in a court proceeding as either a witness or a party, that person must be subpoenaed to appear in court.  If you are summoning a person to appear in court as a party to a lawsuit, this action is called a Summons in some jurisdictions.  If the person is a witness or has some other connection to the case that person cannot be compelled to come to court without a subpoena, although they can certainly voluntarily come to court. [It may be up to the court if they testify, however].

 

The need for a subpoena is highlighted if the person does not appear.  The subpoena is tendered to the court, a bench warrant is issued for the arrest of the person and the police are empowered to literally arrest the person and bring them into court. 

 

Summons - A summons is a court order instructing a specific person to appear at a specific time before a specific court.  In order to compel a person to participate in a court proceeding as either a witness or a party, that person must be either summoned or subpoenaed to appear in court.  If you are summoning a person to appear in court as a party to a lawsuit, this action is called a Summons in some jurisdictions.  Sometimes a traffic citation is called a summons.

 

If the person is a party to either a criminal, traffic or civil case, they are issued a Summons to appear in court as indicated.

 

If the person is a witness or has some other connection to a case that person cannot be compelled to come to court without a subpoena, although they can certainly voluntarily come to court. [It may be up to the court if they testify, however].

 

The need for a summons, like a subpoena, is highlighted if the person does not appear.  The summons is tendered to the court, a bench warrant is issued for the arrest of the person and the police are empowered to literally arrest the person and bring them into court.  Also, a summons can form the basis of putting the court on notice that the party received the summons to come to court, and did not come to defend themselves.  As a result, a court can, but may not, order a judgment for the appearing party in the amount the appearing party asked for, because the other party did not appear and defend themselves. 

 

T

 

Tort - A tort is a name for all types of cases in the field of law that involves injuries of one by another.  Torts may define acts of negligence or intentional acts and may involve different levels of recklessness or disregard.  They may even include acts that a state or government has defined as a strict liability case [it happened regardless of fault, so therefore one is liable].  Torts include negligence, battery, slander and numerous other acts that cause, or may cause, harm to another.

 

TRO - TRO stands for Temporary Restraining Order.  This is an order that is signed by a court upon the request of a party either to an existing lawsuit or action, or to the filing of a new lawsuit.  TROs usually involve emergency situations, and are often requested and awarded in cases where the harm that is being caused, will cause irreparable injury to a person or entity.  For example, the tearing down of an historical building to make room for a highway might be a good reason for someone to seek a TRO, since once the building is lost, so is its value as an historical marker, regardless of its monetary value.

Additionally, TROs are often sought in domestic violence or other such case, where the person can be arrested if the order of the court [usually to stay away from another person] is violated.    

 

W

 

WILL- A document in which a person specifies the method to be applied in the management and distribution of his estate after his death.

A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. At Common Law, an instrument disposing of Personal Property was called a "testament," whereas a will disposed of real property. Over time the distinction has disappeared so that a will, sometimes called a "last will and testament," disposes of both real and personal property.

If a person does not leave a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of Descent and Distribution of the state in which the person resided. Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, or mistake.

A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes or with whom he is unacquainted. A will allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards a person's right to select an individual to serve as guardian to raise his young children in the event of his death.