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alternative pleading
n. a legal fiction in which a party to a lawsuit or a defendant charged with a crime can plead two ways which are inconsistent with each other. Examples: a) someone hurt in an accident can plead that the other party was negligent or ran into him intentionally. b) "not guilty" and "not guilty by reason of insanity" (in which there is the implied admission that the defendant committed the act).
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ambiguity
n. when language has more than one meaning. If the ambiguity is obvious it is called "patent," and if there is a hidden ambiguity it is called "latent." If there is an ambiguity, and the original writer cannot effectively explain it, then the ambiguity will be decided in the light most favorable to the other party.
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amend
v. to alter or change by adding, subtracting, or substituting. One can amend a statute, a contract or a written pleading filed in a law -suit. The change is usually called an amendment. The legislature will amend a statute, the parties to a contract can amend it, and a party to a lawsuit can amend his or her own pleading. A contract can be amended only by the parties participating in the contract. If the contract is written, it can be amended only in writing (although, curiously, an oral contract can be amended orally or in writing). A pleading can be amended before it is served on the other party, by stipulation or agreement in court between the parties (actually usually between their attorneys), or upon order of the court.
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amended complaint
n. what results when the party suing (plaintiff or petitioner) changes the complaint he/she has filed. It must be in writing, and can be done before the complaint is served on any defendant, by agreement between the parties (usually their lawyers), or upon order of the court. Complaints are amended to correct facts, add new causes of action (bases for the lawsuit), substitute discovered names for persons sued as "Does," or to properly plead a cause of action (the legal basis for suing) after the court has found the complaint inadequate.
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amended pleading
n. a changed written pleading in a lawsuit, including complaint or answer to a complaint. Pleadings are amended for various reasons, including correcting facts, adding causes of action (legal bases for a suit), adding affirmative defenses, or responding to a court's finding that a pleading is inadequate as a matter of law. Amendments cannot be made willy-nilly, but only prior to being served, upon stipulation by the parties or order of the court.
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American Bar Association
n. the largest organization of American lawyers, which has no official standing, but is prestigious in formulating guidelines for the practice of law, giving direction to legislation, lobbying for the law profession, and evaluating federal judges. Less then one-third of attorneys belong to the A.B.A., and it is often dominated by the larger urban law firms and those who are interested in bar association politics. Nevertheless the A.B.A., its leaders, and its legal opinions are highly respected, and thus it is an important bellwether in legal circles. It publishes the monthly ABA Journal, books, specialized reports, and law office management manuals. The ABA holds a large annual national convention. Annual dues run as high as $225 (for attorneys with 10 years experience). Address: 750 North Lake Shore Drive, Chicago, IL 60611; tel.: (312) 988-5522.
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American Civil Liberties Union
n. a membership organization founded in 1920 to defend and protect "the rights of man set forth in the Declaration of Independence and the Constitution." The ACLU researches the legalities of public policies and actions and defends clients in court when civil liberties are in question, without charge and often as amicus curiae (friend of the court). It has committees on academic freedom, state issues, media rights, free speech and association, due process, equal rights, labor/management relations and privacy. It also finances projects on voting rights, reproductive freedom, women's rights, and lesbian and gay rights. While some people consider it to be extremely liberal, the ACLU has defended ex-Ku Klux Klan leader David Duke's right to be on the ballot and the Ku Klux Klan's right to obtain parade permits. Address: 132 West 43rd Street, New York, NY 10036; tel.: (212) 944-9800.
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American Depository Receipt
n. called in the banking trade an ADR, it is a receipt issued by American banks to Americans as a substitute for actual ownership of shares of foreign stocks. ADRs are traded on American stock exchanges and over-the-counter easily without the necessity of trading the foreign shares themselves.
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amicus curiae
n. Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. For example, the American Civil Liberties Union often files briefs on behalf of a party who contends his constitutional rights have been violated, even though the claimant has his own attorney. Friends of the Earth or the Sierra Club may file a supporting amicus curiae brief in an environmental action in which they are not actually parties. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party's presentation to the court.
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amnesty
n. a blanket abolition of an offense by the government, with the legal result that those charged or convicted have the charge or conviction wiped out. Examples: a) the amnesty given to Confederate officials and soldiers after the Civil War, or b) President Jimmy Carter's granting amnesty (under certain conditions) to those who violated the Selective Service Act in evading the draft during the Vietnam War. The basis for amnesty is generally because the war or other conditions that made the acts criminal no longer exist or have faded in importance. Amnesty is not a pardon as some believe, since a pardon implies forgiveness, and amnesty indicates a reason to overlook or forget the offenses.
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amortization
n. a periodic payment plan to pay a debt in which the interest and a portion of the principal are included in each payment by an established mathematical formula. Most commonly it is used on a real property loan or financing of an automobile or other purchase. By figuring the interest on the declining principal and the number of years of the loan, the monthly payments are averaged and determined. Since the main portion of the early payments is interest, the principal does not decline rapidly until the latter stages of the loan term. If the amortization leaves a principal balance at the close of the time for repayment, this final lump sum is called a "balloon" payment.
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ancillary administration
n. administration of an estate's assets in another state. An "ancillary administrator" is chosen by the executor or administrator of an estate to handle the property (primarily real estate) of the deceased's estate in a state other than the one in which the estate is probated. Example: John Dunn dies in Montana where he had been living and leaves a parcel of land in downtown Columbus, Ohio. There must be ancillary administration in Ohio to obtain Ohio court approval and tax agency clearance. Technically ancillary means "aiding" or "subordinate.
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ancillary jurisdiction
n. a term used in federal courts when the court decides matters not normally under federal jurisdiction so that it can give a judgment on the entire controversy, when the main issue is a federal matter which it is authorized by law to determine.
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and
conj. this little word is important in law, particularly when compared to or. Most commonly it determines if one or both owners have to sign documents. Example: when an automobile registration reads that the title is for Barney and Sarah Oldfield, then both must sign off upon sale, but if it says "or" then only one will have to sign; if Barney dies then the title is automatically in Sarah's name if it reads "or," but not if it reads "and.
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annuity
n. 1) an annual sum paid from a policy or gift. 2) short for a purchased annuity policy which will pay dividends to the owner regularly for years or for life.
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answer
n. in law, a written pleading filed by a defendant to respond to a complaint in a lawsuit filed and served upon that defendant. An answer generally responds to each allegation in the complaint by denying or admitting it, or admitting in part and denying in part. The answer may also com- prise "affirmative defenses" including allegations which contradict the complaint or contain legal theories (like "unclean hands," "contributory negligence" or "anticipatory breach") which are intended to derail the claims in the complaint. Sometimes the answer is in the form of a "general denial," denying everything. The answer must be in typed form, follow specific rules of pleading established by law and the courts, and be filed with the court and served on the defendant within a specific statutory time (e.g. 20 or 30 days after service of the complaint). If the complaint is verified as under penalty of perjury, the answer must be also. There is a fairly steep filing fee for each defendant filing an answer. In short, if served a complaint, one should see a lawyer as soon as possible to prevent a default judgment.
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antenuptial (prenuptial) agreement
n. a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These are fairly common if either or both parties have substantial assets, children from a previous marriage, potential large inheritances, high incomes, or have been "taken" by a prior spouse.
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anticipatory breach
n. when a party to a contract repudiates (reneges on) his/her obligations under that contract before fully performing those obligations. This can be by word ("I won't deliver the rest of the goods" or "I can't make any more payments") or by action (not showing up with goods or stopping payments). The result is that the other party does not have to perform his/her obligations and cannot be liable for not doing so. This is often a defense to a lawsuit for payment or performance on a contract. One cannot repudiate his obligations and demand that the other person perform.
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antitrust laws
n. acts adopted by Congress to outlaw or restrict business practices considered to be monopolistic or which restrain interstate commerce. The Sherman Antitrust Act of 1890 declared illegal "every contract, combination?or conspiracy in restraint of trade or commerce" between states or foreign countries. The Clayton Antitrust Act of 1914, amended by the Robinson-Patman Act of 1936, prohibits discrimination among customers through pricing and disallows mergers, acquisitions or takeovers of one firm by another if the effect will "substantially lessen competition." Interstate commerce includes commerce within a state which affects the flow of that commerce, thus making it pretty broad. There are also some state laws against restraint of trade. The Antitrust Division of the U.S. Department of Justice enforces for the federal government, but private lawsuits to halt antitrust activities have become increasingly popular, particularly since attorney's fees are awarded to the winning party. This is a legal specialty which has kept some industries relatively honest and made some lawyers wealthy.
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apparent authority
n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been given authority by the principal, then the principal is stuck for the acts of anyone he allows to appear to have authority. This "apparent authority" can be given by providing Joe Slobovia (who has no authority to contract) with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Joe had authority to act for the company. Then the contract or the price quote given by Joe and accepted by a third party is binding on the company. Apparent authority may also arise when Joe works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss.
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appeal
1) v. to ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling. After the lower court judgment is entered into the record, the losing party (appellant) must file a notice of appeal, request transcripts or other records of the trial court (or agree with the other party on an "agreed-upon statement"), file briefs with the appeals court citing legal reasons for over-turning the ruling, and show how those reasons (usually other appeal decisions called "precedents") relate to the facts in the case. No new evidence is admitted on appeal, for it is strictly a legal argument. The other party (Respondent or appellee) usually files a responsive brief countering these arguments. The appellant then can counter that response with a final brief. If desired by either party, they will then argue the case before the appeals court, which may sustain the original ruling, reverse it, send it back to the trial court, or reverse in part and confirm in part. For state cases there are Supreme Courts (called Courts of Appeal in New York and Maryland) which are the highest appeals courts, and most states have lower appeals courts as well. For Federal cases there are Federal Courts of Appeal in ten different "circuits," and above them is the Supreme Court, which selectively hears only a few appeals at the highest level. 2) n. the name for the process of appealing, as in "he has filed an appeal.
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appear
v. for a party or an attorney to show up in court.
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appearance
n. the act of a party or an attorney showing up in court. Once it is established that an attorney represents the person (by filing a notice of appearance or representation or actually appearing), the lawyer may make an appearance for the client on some matters without the client being present. An attorney makes a "special appearance" when he/she is appearing only for the purpose of what is before the court that day-such as arraignment of one charged with a crime. If an attorney makes a "general appearance" he or she is telling the court that the client is definitely his or hers and the court can proceed. In the future that attorney will be required to represent the client. Some appearances are voluntary, but most are compulsory and are by notice to the party or, if represented, to his/her attorney. There are variations on appearance rules in states, federal courts, local court procedures, and according to the desires of particular judges.
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appellant
n. the party who appeals a trial court decision he/she/it has lost.
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appellate court
n. a court of appeals which hears appeals from lower court decisions. The term is often used in legal briefs to describe a court of appeals.
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appellee
n. in some jurisdictions the name used for the party who has won at the trial court level, but the loser (appellant) has appealed the decision to a higher court. Thus the appellee has to file a response to the legal brief filed by the appellant. In many jurisdictions the appellee is called the "respondent.
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appraise
v. to professionally evaluate the value of property includ- ing real estate, jewelry, antique furniture, securities, or in certain cases the loss of value (or cost of replacement) due to damage. This may be necessary in determining the value of the estate of someone who has died, particularly when the items must be divided among the beneficiaries, to determine the value of assets for insurance coverage, to divide partnership assets, set a sales price, determine taxes, or make insurance claims.
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appraiser
n. a professional who makes appraisals of the value of property. Some specialize in real property, and others in other types of assets from rugs to rings. A careful, well-trained and practical appraiser may be more important than any other professional in a transaction, since one who grossly undervalues or overvalues property (or has no knowledge of true value) can wreak havoc. Where possible, a person should ask for a profile of other clients and training, and ask whether the appraiser is "MAI" (Member, Appraisal Institute).
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appreciate
v. to increase in value over a period of time through the natural course of events, including inflation, greater rarity, or public acceptance. This can include real property, jewelry, rare books, art works or securities.
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appreciation
n. the increase in value through the natural course of events as distinguished from improvements or additions.
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Legal Dictionary
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