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approach
v. short for "approach the bench," as in "may I approach, your honor," or "will counsel approach?
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approach the bench
v. an attorney's movement from the counsel table to the front of the bench (the large desk at which the judge sits) in order to speak to the judge off the record and/or out of earshot of the jury. Since the bench area is the sacred territory of the judge the attorney must ask permission as "may I approach the bench," or simply, "may I approach." If the judge consents, then opposing counsel must be allowed to come forward and participate in the conversation. The purpose can range from explaining the order of witnesses, a technical problem or the need to take a recess to go to the restroom.
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approach the witness
v. a request by an attorney to the judge for permission to go up to a witness on the witness stand to show the witness a document or exhibit. "May I approach the witness?" is the typical request, and it is almost always granted.
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appurtenant
adj. pertaining to something that attaches. In real property law this describes any right or restriction which goes with that property, such as an easement to gain access across the neighbor's parcel, or a covenant (agreement) against blocking the neighbor's view. Thus, there are references to appurtenant easement or appurtenant covenant.
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arbiter
n. in some jurisdictions the name for a referee appointed by the court to decide a question and report back to the court, which must confirm the arbiter's finding before it is binding on the parties.
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arbitrary
adj. not supported by fair or substantial cause or reason. Most often it is used in reference to a judge's ruling.
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arbitration
n. a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute. To avoid clogged court calendars the parties often agree to have the matter determined by a panel such as one provided by the American Arbitration Association (which has a specific set of rules), a retired judge, some other respected lawyer, or some organization that provides these services. Usually contract-required arbitration may be converted into a legal judgment on petition to the court, unless some party has protested that there has been a gross injustice, collusion or fraud. Many states provide for mandatory arbitration of cases on a non-binding basis in the hope that these "mini-trials" (proceedings) conducted by experienced attorneys will give the parties a clearer picture of the probable result and lead to acceptance of the arbitrator's decision.
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arbitrator
n. one who conducts an arbitration, and serves as a judge who conducts a "mini-trial," somewhat less formally than a court trial. In most cases the arbitrator is an attorney, either alone or as part of a panel. Most court jurisdictions now have lists of attorneys who serve as arbitrators. Other arbitrators come from arbitration services which provide lists from which the parties can agree on an arbitrator (many of whom are retired judges-even "People's Court" Judge Wapner is on such a panel in Los Angeles County). There is also the American Arbitration Association which usually has a panel of attorneys chosen by the association. Professional arbitration services are paid well to move cases along. There are also arbitrators who are experts on everything from construction to maritime damage. In some contracts there is a provision for such an expert-type arbitrator named by each side with a third chosen by the other two.
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arguendo
prep. Latin meaning "for the sake of argument," used by lawyers in the context of "assuming arguendo" that the facts were as the other party contends, but the law prevents the other side from prevailing. Example: "assuming arguendo" that the court finds our client, the defendant, was negligent, the other party (plaintiff) was so contributorily negligent he cannot recover damages. In short, the lawyer is not admitting anything, but wants to make a legal argument only. The word appears most commonly in appeals briefs.
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argumentative
adj. the characterization of a question asked by the opposing attorney which does not really seek information but challenges the truthfulness or credibility of the witness. Since such a question is not allowable, often it is the basis of an objection before the question is answered, much like irrelevant, immaterial or hearsay. The definition of argumentative is somewhat vague, and different judges hear it differently. A simple example would be "Do you believe you should pay your mistress' rent before catching up with delinquent child support?" or "Do you think that bloody glove just walked over there?
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arm's length
adj. the description of an agreement made by two parties freely and independently of each other, and without some special relationship, such as being a relative, having another deal on the side or one party having complete control of the other. It becomes important to determine if an agreement was freely entered into to show that the price, requirements, and other conditions were fair and real. Example: if a man sells property to his son the value set may not be the true value since it may not have been an "arm's length" transaction.
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arraign
v. to bring a criminal defendant before the court, at which time the charges are presented to him/her, the opportunity to enter a plea (or ask for a continuance to plead) is given, a determination of whether the party has a lawyer is made (or whether a lawyer needs to be appointed), if necessary setting the amount of bail, and future appearances are scheduled.
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arraignment
n. the hearing in which a person charged with a crime is arraigned in his or her first appearance before a judge. This is the initial appearance of a criminal defendant (unless continued from an earlier time) in which all the preliminaries are taken care of.
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arrears
n. money not paid when due, usually the sum of a series of unpaid amounts, such as rent, installments on an account or promissory note, or monthly child support. Sometimes these are called "arrearages.
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arrest
v. 1) to take or hold a suspected criminal with legal authority, as by a law enforcement officer. An arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. Once the arrest has been made, the officer must give the arrestee his/her rights ("Miranda rights") at the first practical moment, and either cite the person to appear in court or bring him/her in to jail. A person arrested must be brought before a judge for arraignment in a short time (e.g. within two business days), and have his/her bail set. A private "security guard" cannot actually arrest someone except by citizen's arrest, but can hold someone briefly until a law officer is summoned. A "citizen's arrest" can be made by any person when a crime has been committed in his/her presence. However, such self-help arrests can lead to lawsuits for "false arrest" if proved to be mistaken, unjustified or involving unnecessary holding. 2) to delay the enforcement of a judgment by a judge while errors in the record are corrected.
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arrest warrant
n. a judge's order to law enforcement officers to arrest and bring to jail a person charged with a crime, also called a warrant of arrest. The warrant is issued upon a sworn declaration by the district attorney, a police officer or an alleged victim that the accused person committed a crime.
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arson
n. the felony crime of intentionally burning a house or other building. The perpetrators range from mentally ill pyromaniacs to store owners hoping to get insurance proceeds. Historically, arson meant just the burning of a house, but now covers any structure. A death resulting from arson is murder.
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article
n. a paragraph or section of any writing such as each portion of a will, corporate charter (articles of incorporation), or different sections of a statute.
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articles of impeachment
n. the charges brought (filed) to impeach a public official. In regard to the President, Vice President and federal judges, the articles are prepared and voted upon by the House of Representatives, and if it votes to charge the official with a crime, the trial is held by the Senate.
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articles of incorporation
n. the basic charter of a corporation which spells out the name, basic purpose, incorporators, amount and types of stock which may be issued, and any special characteristics such as being non-profit. Each state has its own system of approval of articles, prohibits names which are confusingly similar to those of existing corporations (so an incorporator can test the name by applying to reserve the name), sets specific requirements for non-profits (charitable, religious, educational, public benefit, and so forth), and regulates the issuance of shares of stock. Articles must be signed by the incorporating person or persons or by the first board of directors. Major stock issuances require application to the Securities and Exchange Commission. The starting point for filing and approval of articles of incorporation is usually the state's Secretary of State. There will be a fee and, often, a deposit of an estimated first year's taxes.
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as is
adj. description of a condition in a sales contract in which the buyer agrees to take the property (e.g. house, horse, auto, or appliance) without the right to complain if it is faulty. However, the buyer must have had the right to reasonable inspection, so that he/she has a chance to find any obvious deficiency. Intentionally hiding a known defect will make a seller liable for fraud and serves to cancel the "as is" provision.
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assault
1) v. the threat or attempt to strike another, whether successful or not, provided the target is aware of the danger. The assaulter must be reasonably capable of carrying through the attack. In some states if the assault is with a deadly weapon (such as sniping with a rifle), the intended victim does not need to know of the peril. Other state laws distinguish between different degrees (first or second) of assault depending on whether there is actual hitting, injury or just a threat. "Aggravated assault" is an attack connected with the commission of another crime, such as beating a clerk during a robbery or a particularly vicious attack. 2) n. the act of committing an assault, as in "there was an assault down on Third Avenue." Assault is both a criminal wrong, for which one may be charged and tried, and civil wrong for which the target may sue for damages due to the assault, including for mental distress.
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assault and battery
n. the combination of the two crimes of threat (assault) and actual beating (battery). They are both also intentional civil wrongs for which the party attacked may file a suit for damages.
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assess
v. to set a value on property, usually for the purpose of calculating real property taxes. The assessed value is multiplied by the tax rate to determine the annual tax bill. This function is usually performed by employees of the County Assessor. In California, under Proposition 13, the new assessment can only take place upon sale of real property.
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asset
n. generally any item of property that has monetary value, including articles with only sentimental value (particularly in the estates of the dead). Assets are shown in balance sheets of businesses and inventories of probate estates. There are current assets (which includes accounts receivable), fixed assets (basic equipment and structures), and such intangibles as business good will and rights to market a product.
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assign
1) v. to transfer to another person any asset such as real property or a valuable right such as a contract or promissory note. 2) n. the person (assignee) who receives a piece of property by purchase, gift or by will. The word often shows up in contracts and wills.
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assigned risk
n. a person whose official driving record (accidents and tickets) is so poor that he/she cannot purchase commercial auto insurance, and must be assigned to a state operated or designated insurance program at high rates.
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assignee
n. a person to whom property is transferred by sale or gift, particularly real property.
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assignment
n. the act of transferring an interest in property or some right (such as contract benefits) to another. It is used commonly by lawyers, accountants, business people, title companies and others dealing with property.
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assignment for benefit of creditors
n. a method used for a debtor to work out a payment schedule to his/her creditors through a trustee who receives directly a portion of the debtor's income on a regular basis to pay the debtor's bills.
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Legal Dictionary
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