D

D.A.  See: District Attorney

damages  1) In a lawsuit, the harm caused to a party who is injured. 2) In a law­suit, the money awarded to one party based on injury or loss caused by the other. For either definition, there are many different types or categories of damages. (See also: compensatory damages, actual damages, special damages, general damages, exemplary damages, punitive damages, statutory damages, nominal damages)

dangerous weapon  Any object, such as a gun, knife, sword, crossbow, or slingshot, that is intrinsically capable of causing serious bodily harm to another person. The definition becomes important in cases where criminal laws attach particular consequences to crimes performed with a dangerous weapon. (See also: deadly weapon)

Darby v. United States (1941)  A U.S. Supreme Court case in which the Court, in a decision by Justice Harlan Stone, sustained the portion of the 1938 Fair Labor Standards Act prohibiting child labor and regulating wages and hours, on the basis that the federal government’s power to regulate interstate commerce included the authority to promote commerce as well as prohibit it, a position argued in a dissent by Oliver Wendell Holmes in 1916.

database  A collection of information arranged in a way to facilitate updating and retrieval. Computer databases commonly consist both of materials protected by copyright and materials that are said to be in the public domain, either because their copyright has run out or because they consist of ideas and facts that themselves do not receive copyright protection. Despite the fact that the database owner may not own any copyright interest in any of the material in the database, the structure and organization of the database itself can qualify as an original work of authorship and thus be subject to copyright protection as a compilation. (See also: compilation)

date rape  Forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted the acts by verbal refusals, denials, pleas to stop, and/or fighting back. The fact that the parties knew each other or that the woman willingly accompanied the man are not legal defenses to a charge of rape.

d.b.a. (also known as DBA)  See: doing business as

deadhand control  An attempt to keep property in the hands of chosen family members or organizations through ownership interests that vest far into the future. In the law of wills and estates, deadhand control is restricted to lives in being at the time the will is executed plus 21 years. (This is known as the rule against perpetuities.)

deadly weapon  A gun or other instrument, substance, or device, which is used or intended to be used in a way that is likely to cause death. A prosecutor who charges a defendant with ­“assault with a deadly weapon” must prove not only that the defendant ­assaulted the victim, but did so with a device that was capable of causing death. Some laws list “deadly weapons per se,” which are weapons that by themselves are likely to cause death, such as a gun, regardless of the user’s intent.

dead man’s statute  In the law of evidence, a rule that prevents a person making a claim against an estate from testifying about statements, actions, or promises made by the deceased person.

dealer  Anyone who buys goods or ­property for the purpose of selling as a business. It is important to distinguish a dealer from someone who occasionally buys and occasionally sells, since dealers may need to obtain business licenses, register with the sales tax authorities, and may not defer capital gains taxes by buying other property.

death benefit  Insurance or pension money payable to a deceased person’s designated beneficiary.

death penalty  The sentence of execution for murder and some other capital crimes. (See also: capital punishment)

death row  The portion of a prison that houses prisoners who are under death sentences and are awaiting appeals or execution.

death taxes  Taxes levied at death, based on the value of property left behind. There are two main types of death taxes in the United States: estate taxes and inheritance taxes. The federal government and some state governments impose estate taxes on decedent’s estates. And some states levy inheritance taxes on people who inherit property.

debenture  A type of bond (an interest-bearing document that serves as evidence of an investment or debt) that does not require security in the form of a mortgage or lien on a specific piece of property. Repayment of a debenture is guaranteed only by the general credit of the issuer. For example, a corporation may issue a secured bond that gives the bondholder a lien on the corporation’s factory. But if it issues a debenture, the loan is not secured by any property at all. When a corporation issues debentures, the holders are considered creditors of the corporation and are entitled to payment before shareholders if the business folds.

debit card  A card issued by a bank that combines the functions of an ATM card and a check. A debit card can be used to withdraw cash at a bank, like an ATM card. It can also be used like a check at stores, to pay for goods and services. A debit card is linked to the user’s bank account, from which money is automatically withdrawn when the card is used.

debt  1) An amount owed by one person or entity to another. 2) A cause of action in a lawsuit to recover a set amount owed by another person or entity. 3) The total of everything a person or entity owes to all creditors. For example, everything the United States government owes is collectively called “the national debt,” and that amount is made up of a number of debts.

debt collector  Someone who works in the in-house collections department of an original creditor or for a collection agency to track down debtors and get them to pay what they owe. (See also: Fair Debt Collection Practices Act)

debtor  A person or entity (such as a business) who owes money.

debtor in possession  A business that has filed for Chapter 11 bankruptcy and is allowed to continue operating during the bankruptcy process.

debt relief agency  Any person or company—including lawyers and bankruptcy petition preparers, but excluding banks, nonprofits, and government agencies—that provides advice, information, counsel, document preparation, or other services to a person who is contemplating, or filing for, bankruptcy. Under the bankruptcy law passed in 2005, debt relief agencies are subject to certain legal requirements and must provide debtors with a prescribed notice about their services.

debt-to-income ratio  The percentage of a person’s monthly gross income that is spent on paying debts, such as housing and credit card payments. Banks and lenders use this ratio to decide how much money (and on what terms) they will lend someone for a mortgage, car, or other loan. Traditionally, lenders have said that your housing costs (mort­gage principal and interest, home­owner’s insurance, and property taxes, also known as PITI) shouldn’t exceed 28% of your gross income, and that your overall debt (PITI plus car and other loan payments) shouldn’t exceed 36%.

deceased  See: decedent

decedent  A person who has died, also called the deceased.

deceit  A deliberate misrepresentation made by someone who knew it was false and with the intent to deceive someone who justifiably relies on the falsehood. Deceit is a civil wrong (tort). (See also: fraud)

deception  See: deceit

decide  To reach a determination of who is right and wrong in a legal matter, after looking at the facts and the law. Judges, hearing officers, magistrates, and arbitrators all may decide the outcome of cases that come before them. By contrast, mediators help disputing parties reach a mutually agreeable resolution, but do not decide matters themselves.

decision  The outcome of a proceeding before a judge, arbitrator, government agency, or other legal tribunal. Decision is a general term often used interchangeably with the terms judgment or opinion. But to be precise, a judgment is the written form of the court’s decision in the clerk’s minutes or notes, and an opinion is a document setting out the reasons for reaching the decision.

declarant  A person who signs a statement or declaration alleging that the inform­ation contained in the statement is true. (Compare: affiant)

declaration  Any statement made, particularly in writing, including a ­formal statement made under penalty of ­perjury and signed by the declarant.

declaration against interest  When a nonparty witness in a lawsuit is not available to testify, a statement made by the witness that is against his or her own interest may be admitted in court as evidence as an exception to the hearsay rule. (Compare: admission)

declaration of mailing  A legal form stating that a particular document has been mailed to someone involved in a legal action (such as opposing attorneys or the clerk of the court), to prove com­pliance with court requirements. The declaration must be signed by its sender, usually under penalty of perjury.

declaration of trust  The document that creates a trust. It names a trustee and beneficiaries, sets out how trust assets are to be managed and distributed, and may list the assets that are to be held in trust. It is signed by the person creating the trust, who is usually called the grantor, settlor, or trustor. A trust declaration is also called a trust instrument.

declaration under penalty of perjury  A signed statement, sworn to be true by the signer, that will make the signer guilty of the crime of perjury if the statement is shown to be materially false—that is, the lie is relevant and significant to the case.

declaratory judgment  A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Courts are usually reluctant to hear declaratory judgment cases, preferring to wait until there has been a measurable loss. But especially in cases involving important constitutional rights, courts will step in to clarify the legal landscape. For example, many cities regulate the right to assemble by requiring permits to hold a parade. A disappointed applicant who thinks the decision-making process is unconstitutional might hold his parade anyway and challenge the ordinance after he was cited; or he might ask a court beforehand to rule on the constitutionality of the law. By going to court, the applicant may avoid a messy confrontation with the city—and perhaps a citation, as well.

declaratory relief  See: declaratory judgment

decree  An order by a judge, resolving issues in a court case. Similar to the term “judgment,” but preferred in certain types of cases, like probate matters. (See also: judgment)

decree of distribution  The final court order distributing a probate estate.

decriminalization  The repeal or amend­ment of statutes which made certain acts criminal, so that those acts no longer are crimes or subject to prosecution.

dedication  The giving of land by a private person or entity to the govern­ment, typically for a street, park, or school site, as part of and a condition of a real estate development. The local county or city (or other public body) must accept the dedication before it is complete.

dedimus potestatum  An outdated legal procedure that permitted a party to take and record the testimony of a witness before trial, but only when that testimony might otherwise be lost. For example, a party to a lawsuit might use the procedure to obtain the testimony of a witness who was terminally ill and might not be able to testify at the trial. Nowadays, the Federal Rules of Civil Procedure routinely permit the taking of testimony before trial if that testimony might otherwise be lost.

deductible  Something that is taken away or subtracted. Under an insurance policy, for example, the deductible is the maximum amount that an insured person must pay toward his own losses before he can recover from the insurer. For example, Julie’s car insurance policy has a $500 deductible. One day she forgets to set her parking brake and the car rolls backwards into a telephone pole, sustaining $2,500 in damage. Julie’s insurance company deducts $500 from the total amount and issues a check to the auto body shop for $2,000.

deductible business expense  An expenditure that is ordinary and necessary for running a business and deductible from the business’s gross receipts so that it is not counted toward taxable income.

deduction  In tax law, an amount that an individual or business can subtract from its gross income (total income) to determine its taxable income (the total income on which it owes tax). Examples of federal income tax deductions include mortgage interest, charitable contributions, and certain state taxes.

deed  A document that transfers owner­ship of real estate and is recorded in the local public land records. (See also: deed of trust, quitclaim deed, transfer-on-death deed, warranty deed)

deed in lieu of foreclosure  A means of ­escaping an overly burdensome mortgage. If a homeowner can’t make the mortgage payments and can’t find a buyer for the house, many lenders will accept ownership of the property in place of the money owed on the mortgage. Even if the lender won’t agree to accept the property, the homeowner can prepare a quitclaim deed that unilaterally transfers the homeowner’s property rights to the lender.

deed of trust  See: trust deed

deep link  A link from one website to another that bypasses the second website’s home page and takes the user directly to an internal page on the site. For example, a deep link from Yahoo! might take the user directly to a news article on a news site instead of linking to the home page of the site. (Compare: link)

de facto  Latin for “in fact.” A recognition of authority even when legal or formal requirements have not been met. (See also: de facto corporation, de jure)

de facto corporation  A business that has not completed all of the legal steps to become a corporation will be treated as a corporation by the court to shield the directors, officers, and shareholders who in good faith thought they were operating the business as a duly formed corporation. (Compare: de jure corporation)

defalcation  The failure to turn over or account for funds entrusted to one’s care. Defalcation may be, but is not necessarily, criminal or fraudulent.

defamation  A false statement that harms a person’s reputation. If the statement is published, it is libel; if spoken, it is slander. Most states have retraction statutes under which a defamed person who fails to seek a retraction from the publisher, or who seeks and obtains a retraction, is limited to compensation equal to the actual (or special) damages. Public figures, including officeholders and candidates, can only prevail in defamation lawsuits if they can show that the defamation was made with knowledge that it was false or with reckless disregard for the truth. (See also: libel per se)

default  1) Failure to file an answer or other response to a summons or complaint in a lawsuit. After a certain period has passed, the plaintiff may ask the court for a default judgment, which means the defendant who failed to respond loses the case. A defendant who has a legally sufficient reason for failing to respond (for example, the defendant never received the summons) may file a motion asking the court to overturn the default judgment and allow the defendant to defend the lawsuit. 2) Failure to pay a debt or meet other obligations of a loan agreement. For example, a debtor may default on a car loan by failing to make required monthly payments or by failing to carry adequate insurance as required by the loan agreement.

default divorce  A divorce in which one party obtains a judgment of divorce based on the other party’s failure to file a response to the divorce petition. A default divorce can be obtained when one spouse truly can’t find the other or when the second spouse refuses to participate in the divorce action, or when the parties agree to enter a default as part of an uncontested divorce proceeding. (See also: uncontested divorce)

default judgment  At trial, a decision awarded to the plaintiff when a defendant fails to contest the case or comply with required procedural steps. For instance, the defendant may fail to respond to the plaintiff’s complaint within the required time, or simply neglect to show up in court. To appeal a default judgment, a defendant must first file a motion in the court that issued it, asking to have the default vacated (set aside).

defeasance  The act of rendering some­thing null and void, or a clause in a deed, lease, will, or other legal docu­ment that completely or partially negates the document if a certain condition occurs or fails to occur. For example, a will may provide that a gift of property is defeasable—that is, void—if the beneficiary fails to marry before a certain time.

defeasible remainder  A vested remainder that can be destroyed if a specific condition occurs. For example, “To Jorge, unless he gets divorced.” Jorge has a vested remainder, but it’s also a defeasible remainder because it can be taken away from him if he gets divorced.

defect  An imperfection in a product, machinery, process, or written docu­ment that makes the item unusable or harmful, such as faulty brakes in a car, or invalid, such as a deed signed by someone who does not have title to the property. A defect may also be minor, such as scratches on a car door, that lessens value or use of the item, but does not make it dangerous or useless.

defective  Incapable of fulfilling its function, due to an error or flaw.

defective title  Property ownership that is subject to claims by someone else, making it impossible to sell the property. (See also: clear title, title search)

defendant  The person against whom a lawsuit is filed. In some types of cases (such as divorce) a defendant may be called a respondent.

defense  1) A general term for the effort of an attorney representing a defendant during trial and in pretrial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) A response to a complaint, called an affirmative defense, to counter, defeat, or remove all or a part of the contentions of the plaintiff.

defense attorney  The attorney represent­ing the defendant in a lawsuit or criminal prosecution. Attorneys who regularly represent clients in civil lawsuits are often called “plaintiffs’ attorneys.”

Defense of Marriage Act (DOMA)  So-called Defense of Marriage laws define marriage as a relationship between one man and one woman, for the purpose of excluding same-sex couples from the institution of marriage. The federal DOMA prohibits the federal government from recognizing same-sex legal relationships entered into in one of the states that recognize same-sex unions. Individual states’ DOMA laws provide that those states do not allow same-sex marriage and, often, do not recognize same-sex unions from other states.

deferred compensation  An arrangement in which a portion of an employee’s income is paid at a later date than the date when it is earned. In most cases, the primary benefit is the tax deferral on the deferred income.

deficiency  1) In tax, a difference found by the IRS between a taxpayer’s reported tax liability and the amount of tax the IRS says that the taxpayer should have reported. 2) In lending, the remaining balance of the debt after the security for the loan has been sold following repossession or foreclosure.

deficiency judgment  A judgment for the amount a homeowner owes the lender after a house or other asset is foreclosed upon and sold by the creditor for less than the actual debt (mortgage or car loan, for example) that is secured by the asset. In most states, the lender can file a separate lawsuit to recover a deficiency owed by the borrower. Some states restrict deficiency judgments after a home foreclosure.

deficit  In a budget, an excess of expenditures or liabilities over revenues or assets.

defined benefit plan  A type of pension plan that promises a specific benefit upon retirement. The benefit may be a set amount (such as $1,000 per month) or may be calculated according to a formula based on, for example, years of service and average salary. (Compare: defined contribution plan)

defined contribution plan  A type of retirement plan that creates an individual account for each employee funded by contributions by the employer, the employee, or both. The amount contributed is set, either as a dollar amount or by formula (for example, a certain percentage of the employee’s earnings). Unlike a defined benefit plan, which guarantees that the employee will be paid a certain amount on retirement, a defined contribution plan guarantees the employee only the value of his or her account upon retirement: amounts contributed to the plan plus or minus investment gains or losses. A 401(k) plan is a type of defined contribution plan.

defraud  To use deceit, falsehoods, or trickery to obtain money, an object, rights, or anything of value belonging to another.

degree of kinship  The level of the relation­ship between two persons related by blood—for example parent to child, one sibling to another, grandparent to grandchild, uncle to nephew, and so on. This may become important when determining the heirs of an estate when there is no will because most states disburse intestate estates to the relatives with the closest degree of kinship to the decedent.

de jure (deh jur-ay)  Latin for according to the law. (Compare: de facto)

de jure corporation  A corporation formed in compliance with all applicable laws. (Compare: de facto corporation)

delayed exchange  An exchange of property to put off capital gain taxes, in which the funds are placed in a binding trust for up to 180 days while the seller acquires an “exchanged” (another similar) property, pursuant to Internal Revenue Code Section 1031.

delegate  1) To assign authority to another. 2) A person chosen to attend a convention, conference, or meeting on behalf of an organization, constituency, interest group, or business.

deliberate  1) (duh-lib-er-et) Done with care, intention, or premeditation. 2) (duh-lib-er-ate) Consideration and discussion of facts, laws, and other matters, particularly by members of a jury, a panel of judges, or by any group including a legislature.

delinquent  1) A payment that is past due or not paid in full. 2) A person who disobeys rules or breaks the law such as a juvenile delinquent.

delivery  The transfer of an object, money, or document to another. To be effective, real estate deeds must be delivered, but delivery does not necessarily require that the new owner be given physical possession of the deed. If a deed is acknowledged and recorded, the law generally presumes that delivery was made.

demand  A claim or an assertion of a legal right or a right to compensation. (See also: demand letter)

demand letter  Correspondence from one party to a dispute to the other, stating the drafting party’s version of the facts of the dispute and making a claim for compensation or other action to resolve it. Often drafted by an attorney, a demand letter is generally an opening gambit in an effort to settle a legal claim.

demand note  A promissory note that’s payable any time the holder of the note makes a request. This is different from a note due at a specific time, upon occurrence of an event, or by installments.

de minimis (dee minn-uh-miss)  Trifling or of little importance. Usually refers to something so small, whether in dollar terms, importance, or severity, that the law will not consider it.

demise  Transfer of real estate by a lease or will. Traditionally, the transfer was limited to term of years but the expression has come to refer to outright gifts as well.

demonstrative evidence  Objects, pictures, models, and other devices used in a trial or hearing to demonstrate or explain facts that the party is trying to prove.

demur  Presenting a demurrer to a court.

demurrer (dee-mur-ur)  A written response to a complaint filed in a lawsuit that asks the court to dismiss the lawsuit on the grounds that even if the facts alleged in the complaint were true, there is no legal basis for the suit. A hearing before a judge will then be held to determine the validity of the demurrer. Some parts of a lawsuit may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, the judge will usually sustain the demurrer (state it is valid), but “with leave to amend” in order to correct the original complaint. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.

denial  A statement by a defendant that an allegation (claim of fact) is not true. When a defendant in a civil lawsuit files an answer to a plaintiff’s complaint, the defendant is limited to three choices: admitting, denying, or denying the allegations on the basis that he or she has no information to affirm or deny them. If a defendant denies all of the allegations, it is called a general denial. The defendant’s answer may also include affirmative defenses.

de novo (day noh-voh)  Latin for “anew,” meaning to do something over again as if for the first time. (See also: trial de novo)

Department of Homeland Security (DHS)  A government agency created in 2003 to handle immigration and other security-related matters. Within DHS’s immigration responsibilities, it oversees U.S. Citizenship and Immigration Services (USCIS, which replaced the former Immigration and Naturalization Service or INS); as well as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

Department of Labor (DOL)  A federal government agency that interprets and enforces a number of labor and employment laws, including the Occupational Safety and Health Act, the Family and Medical Leave Act, the federal minimum wage and overtime laws, and laws that govern child labor.

Department of State (DOS)  A U.S. department that handles foreign relations under the leadership of the Secretary of State. Among its many functions, DOS operates U.S. embassies and consulates in other countries. Generally, the DOS determines who is entitled to a visa or green card when an application is filed outside the United States. U.S. Citizenship and Immigration Services (USCIS), under the Department of Homeland Security, regulates immigration processing inside the United States.

dependent  1) A person receiving support from another person (such as a parent), which may qualify the party supporting the dependent for an exemption to reduce income taxes. 2) Requiring an event to occur, as the fulfillment of a contract for delivery of goods is dependent on the goods being available.

dependent care plan  A fringe benefit that eligible employees of a business can be given tax-free to care for their dependents. This expense is generally deductible to the business.

dependents benefits  A type of Social Security benefit available to spouses and minor or disabled children of retired or disabled workers who qualify for either retirement or disability benefits under the program’s rigorous qualification guidelines.

deponent  Someone whose deposition is being taken.

deportation  See: removal

depose  To question a witness or a party to a lawsuit at a deposition (testimony under oath taken outside of the court­room before trial).

deposition  The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial. A deposition is part of pretrial discovery. The testimony is recorded by the court reporter, who will prepare a transcript that can be used for pretrial preparation or in trial to contradict or refresh the memory of the witness, or be read into the record if the witness is not available.

depreciable asset  Property with a useful life of at least one year that gradually loses its value over time. A business deducts the cost of a depreciable asset over a period of time.

depreciate  In accounting, to reduce the value of an asset each year on the basis that the asset (such as equipment, a vehicle, or a structure) will eventually become obsolete, worn out, and of little value.

depreciation  The actual or theoretical gradual loss of value of an asset (particularly business equipment or buildings) through increasing age, natural wear and tear, or deterioration, even though the item may retain or even increase its replacement value due to inflation. Depreciation may be used as a business deduction for income tax reduction, spread out over the expected useful life of the asset (straight line) or at a higher rate in the early years of use (accelerated).

depreciation reserve  A business fund in which the probable replacement cost of equipment is accumulated each year over the life of the asset, so it can be replaced readily when it becomes obsolete and totally depreciated.

derelict  Something or someone who is abandoned, such as a ship left to drift at sea or a homeless person ignored by family and society.

dereliction  1) Abandoning possession, which is sometimes used in the phrase “dereliction of duty.” It includes abandoning a ship, which then becomes a derelict which salvagers can board. 2) Increase of land due to gradual lowering of a tide line (which means the land is building up).

derivation of citizenship  An immigration law concept allowing children who already have U.S. green cards to obtain U.S. citizenship automatically, in most cases when one or both parents become naturalized U.S. citizens. The exact requirements depend on what laws were in effect during certain key events, in most cases the year in which the parent naturalized.

derivative  A financial instrument whose value is based on the value of an underlying security, such as a commodity, currency, or bond. The most common derivatives are futures, options, and swaps. They are used to manage risk and fluctuations in the value of the underlying security but are often risky and complicated investments.

derivative action  A lawsuit brought by a shareholder against the corporation’s directors, other shareholders of the corporation, or a third party for failure of management or fraud. The suing shareholder sues on behalf of the corporation (usually because the directors are failing to exercise their authority for the benefit of the company), and any proceeds of a successful action are awarded to the corporation and not to the suing shareholder.

derivative work  In copyright, a new creative work based upon an existing work. To be separately protected under copyright law, a derivative must include sufficient original creative work. Examples of derivative works include a translation of a book, a toy based on a cartoon character, or a movie script based on a novel.

descent  The passing of estate property through inheritance, either by law or through estate planning—as opposed to acquisition of property through other means, such as purchase.

descent and distribution  The rules by which an estate is distributed after the owner’s death. This may occur according to the decedent’s estate plan or according to intestate laws if the decedent died without an estate plan.

descriptive mark  A trademark or service mark that describes some characteristic of the product or service with which it is associated. For instance, “Jiffy Lube” describes a purportedly fast lube service. Descriptive trademarks are harder to protect, at least until the owner can demonstrate that consumers associate the mark with the source of the goods or services (a status referred to as a secondary meaning). (See also: secondary meaning, Supplemental Register)

desert  To intentionally abandon a person or thing.

desertion  The voluntary abandonment of one spouse by the other, without the abandoned spouse’s consent. Commonly, desertion occurs when a spouse leaves the marital home for a specified length of time. Desertion is grounds for divorce in states with fault divorce. Desertion can also be the basis for a court to grant an adoption where a parent has deserted a child for a specified period of time. (See also: abandonment)

design patent  A patent granted for a new design that is not obvious to those in the field of design, and that is used for ornamental reasons—that is, the design does not affect the functioning of the underlying device. Design patents last for 14 years from the date the patent is issued. (Compare: utility patent)

detain  See: imprison

determinable  1) Capable of being determined by a court. 2) Capable of being terminated on the occurrence of a particular event, usually used to describe an interest in real estate.

determinate sentence  A jail or prison sentence that is definite and not subject to review by a parole board or other agency. For example, a sentence of six months in the county jail is determinate, because the prisoner will spend no more than six months (minus time off for good behavior, in some situations). By contrast, an indeterminate sentence (such as 20 years to life) has a minimum term but the release date, if any, will be chosen by a parole board as it periodically reviews the case. (Compare: indeterminate sentence)

deuce  A slang term originating in California for a drunk driving violation.

devise  An old legal term that is generally used to refer to real estate left to someone under the terms of a will, or to the act of leaving such real estate. In some states, devise now applies to any kind of property left by will, making it identical to the term bequest. (Compare: bequest, legacy)

devisee  A person or entity who inherits real estate under the terms of a will. (Compare: legatee)

devisor  Someone who leaves real estate by will. (See also: testator)

devolution  The transfer of rights, powers, or an office (public or private) from one person or government to another.

devolve  When property is automatically transferred from one party to another by operation of law, without any act required of either past or present owner. The most common example is passing of title to the natural heir of a person upon his death.

dicta  The plural of dictum.

dictum  A remark, statement, or observa­tion of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it. Dictum is an abbreviation of the Latin phrase “obiter dictum,” which means a remark by the way, or an aside.

Digital Millennium Copyright Act  A federal statute that addresses a number of copyright issues created by the use of new technology and the Internet including digital rights management (methods for stopping infringement), and certain rights and privileges (safe harbors) that protect Internet Service Providers.

digital signature  See: electronic signature

diligence  Reasonable care or attention to a matter.

dilution  When a famous trademark or service mark is used in a context in which the mark’s reputation for quality is tarnished or its distinction is blurred. For example, the use of the word Candyland for a pornographic site on the Internet diluted the reputation of the Candyland mark for the well-known children’s game, even though the traditional basis for trademark infringement (probable customer confusion) wasn’t an issue.

diminished capacity  An impaired mental condition, caused by disease, trauma, or intoxication but short of insanity, that can reduce the criminal responsibility of a defendant. Not all states allow defendants to offer this plea in response to criminal charges.

diminution in value  A way of assessing damages after a breach of a contract, which measures the difference between the value of the property as it was contractually promised and the value of the property as it currently exists or was constructed.

direct and proximate cause  The immediate reason that something happened that caused harm to another person. The words are often used together, as in “The defendant’s negligent act in running the red light was the direct and proximate cause of the plaintiff’s injuries.” (See also: legal cause)

directed trust  A trust in which certain assets are managed by someone other than the trustee. For example, someone might set up a trust and name a bank’s trust department as trustee, but specify in the trust document that a business held in trust be managed by someone else. The outside manager goes by different names in different states: a cotrustee, special trustee, trust protector, or adviser. Directed trusts are authorized by law in about 30 states. Most hold at least $1 million in assets, and often much more.

directed verdict  A ruling by a judge, typically made after the plaintiff has presented all of its evidence but before the defendant puts on its case, that awards judgment to the defendant. A directed verdict is usually made because the judge concludes the plaintiff has failed to offer the minimum amount of evidence to prove the case even if there were no opposition. In other words, the judge is saying that, as a matter of law, no reasonable jury could decide in the plaintiff’s favor. In a criminal case, a directed verdict is a judgment of acquittal for the defendant.

direct evidence  Real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.

direct examination  At trial, the initial questioning of a party or witness by the side that called him or her to testify. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your opponent’s version. Good direct examination seeks to prove all facts necessary to satisfy the plaintiff’s legal claims or causes of action—for example, that the defendant breached a valid contract and, as a result, the plaintiff suffered a loss.

direct inheritance  Property left outright to a person, rather than put into a trust or account. For those who qualify for SSI or Medicaid, direct inheritance may cause a reduction or elimination of those benefits because the inheritance is counted as income in the month received and as a resource in the following months. Property left to a special needs trust is not counted as direct inheritance.

directive to physicians  See: living will

director  A member of the governing board of a corporation, typically elected at an annual meeting of the shareholders. As a group, the directors are responsible for making important business decisions—especially those that legally bind the corporation—leaving day-to-day management to the corporation’s officers and employees. For example, a decision to borrow money, lease an office, or buy real property would normally be authorized by the board of directors.

disability  1) For purposes of antidiscrimination law, a physical or mental ^­impairment that substantially limits one or more major life activities. 2) A legal impediment to taking a certain action, such as being a minor who cannot legally enter into a contract.

disability benefits  Money available from Social Security to benefit those younger than 65 who qualify because of their work and earning record and who meet the program’s medical guidelines defining disability. The benefits are roughly equal to those available in Social Security retirement benefits.

disallowance  A finding by the IRS after an audit that a business or individual taxpayer was not entitled to a deduction or other tax benefit claimed on a tax return.

disbar  The removal of an attorney’s license to practice law. This penalty is usually invoked by the state bar association where the attorney is licensed to practice and will prohibit the attorney from practicing law before the courts in that state or from giving advice for a fee to clients. Causes of disbarment include: a felony involving “moral turpitude,” forgery, fraud, a history of dishonesty, consistent lack of attention to clients, alcoholism or drug abuse which affect the attorney’s ability to practice, theft of funds, or any pattern of violation of the professional code of ethics.

disbarment  See: disbar

discharge  1) To perform one’s legal duties or meet one’s obligations. 2) To fire someone from a job. 3) In bankruptcy, an order of the court that wipes out all dischargeable debts.

discharge (of debts)  In bankruptcy, the bankruptcy court’s action, at the end of the case, to wipe out the debts of the person or business that filed for bankruptcy. Once a debt is discharged, the debtor no longer owes it, and the creditor may no longer take action to collect it.

discharge (of personal representative)  A court order releasing the personal representative (administrator or executor) from any further duties connected with the probate of an estate. This typically occurs when the duties have been completed but may happen sooner if the executor or administrator wishes to withdraw or is dismissed.

dischargeable debts  Debts that can be wiped out in bankruptcy, such as credit card debts, medical bills, and back rent. (Compare: nondischargeable debts)

discharge in bankruptcy  See: bankruptcy discharge

disclaim  1) To refuse or give away a claim or a right to something. For example, if your aunt leaves you a white elephant in her will and you don’t want it, you can refuse the gift by disclaiming your ownership rights. 2) To deny responsibility for a claim or act. For example, a merchant that sells goods secondhand may disclaim responsibility for a product’s defects by selling it as is.

disclaimer  1) A contractual provision in which one party renounces or refuses a right or a responsibility. 2) A formal statement by a patent or trademark owner that it does not claim certain intellectual property rights. 3) An irrevocable refusal to accept property that has been left by will, trust, or other method, sometimes used in estate planning to reduce overall taxes paid by a family. (See also: intellectual property)

disclaimer trust  A kind of bypass trust that gives the surviving spouse the option of not splitting the trust after the first spouse’s death if it’s not necessary to save on estate tax. A surviving spouse may disclaim (decline to accept) some trust property; that property goes into the bypass trust.

disclosure  The making known of a fact that had previously been hidden; a revelation. For example, in many states you must disclose major physical defects in a house you are selling, such as a leaky roof or potential flooding problem; and in all states, you must disclose the presence of lead-based paint hazards in buildings constructed before 1978.

discount  Payment of less than the full or regular amount of the price for goods or services or less than the amount due on a promissory note.

discovery  A formal investigation—governed by court rules—that is conducted before trial by both parties. Discovery allows each party to question the other parties, and sometimes witnesses. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury; depositions, at which one party to a lawsuit has the opportunity to ask oral questions of the other party or witnesses under oath while a written transcript is made by a court reporter; and requests to produce documents, by which one party can force the other to produce physical evidence. Parties may also ask each other to admit or deny key facts in the case. Discovery allows parties to assess the strength or weakness of an opponent’s case, in order to support settlement talks and also to be sure that the parties have as much knowledge as possible for trial. Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.

discretion  The power of a judge, public official, or private party to make decisions based on his or her opinion within general legal guidelines. Discretion is often granted under a contract, trust, or will. Examples: 1) A judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial. 2) A trustee or executor of an estate may have discretion to divide assets among the beneficiaries. 3) A district attorney may have discretion to charge a crime as a misdemeanor or felony. 4) A governor may have discretion to grant a pardon. 5) A planning commission may use its discretion when deciding whether or not to grant a variance to a zoning ordinance.

discretionary trust  A common type of trust that grants the trustee broad power to decide when and how much income or property to distribute to a beneficiary.

discrimination  To treat similarly situated people differently on the basis of a protected characteristic, such as race, gender, or disability.

dishonor  To refuse to pay the face amount of a check or the amount due on a promissory note.

disinherit  To deliberately prevent some­one from inheriting something. This is usually done by a provision in a will stating that someone who would ordinarily inherit property—a close family member, for example—should not receive it. In most states, you cannot completely disinherit your spouse; a surviving spouse has the right to claim a portion (usually one-third to one-half) of the deceased spouse’s estate. With a few exceptions, however, you can expressly disinherit children.

disinheritance  The act by which one refuses to leave property to a would-be heir.

disinterested witness  A witness who has no personal interest in the case.

disjunctive allegations  Claims by some­one who files a lawsuit that that one thing or another occurred, and in criminal case that the accused committed one crime or another. Such allegations are not allowed because the defendant is entitled to know what allegations to defend against.

dismiss  1) In a court setting, a judge may dismiss or throw out all or a portion of a plaintiff’s lawsuit without further evidence or testimony upon being persuaded that the plaintiff has not and cannot prove the case. This judgment may be made before or at anytime during the trial. The judge may independently decide to dismiss or may do so in response to a motion by the defendant. Also, the plaintiff may voluntarily dismiss an action before or during trial if the case is settled, if it is not provable, or if trial strategy dictates getting rid of a weak claim. A defendant may also be dismissed from a lawsuit, meaning the suit is dropped against that party. 2) To discharge or let an employee go.

dismissal  See: dismiss

dismissal without prejudice  When a case is dismissed without prejudice, it leaves the plaintiff free to bring another suit based on the same grounds, for example if the defendant doesn’t follow through on the terms of a settlement. (Compare: dismissal with prejudice)

dismissal with prejudice  When a lawsuit is dismissed with prejudice, the court is saying that it has made a final determination on the merits of the case, and that the plaintiff is therefore forbidden from filing another lawsuit based on the same grounds. (Compare: dismissal without prejudice)

disorderly conduct  Behavior that disturbs others, including minor criminal offenses such as public drunkenness, loitering, and breach of the peace.

disorderly house  A place of illegal gambling or a house of prostitution.

disparate impact  When a facially neutral policy disproportionately affects one group, this can be the basis of a discrimination lawsuit if the group affected is protected by discrimination laws (such as race, sex, or age). For example, an employer’s policy requiring all employees have the ability to lift 50 pounds could disproportionately affect women. Unless the employer had a good reason for such a policy, it could be discriminatory, even though it doesn’t explicitly exclude women.

disparate treatment  When two individ­uals are treated different based on their status or membership in a protected class.

disposable income  In bankruptcy, the difference between a debtor’s current monthly income and allowable expenses. The law assumes the debtor could pay this amount into a Chapter 13 repayment plan each month. (See also: current monthly income)

disposing mind and memory  See: sound mind and memory

disposition  1) The court’s final deter­mination of a lawsuit or criminal charge. 2) The act of transferring care, possession, or ownership to another, such as by deed or will.

dispossess  To eject someone from real property, either legally or by self help.

dispute  The assertion of conflicting claims or rights between parties involved in a legal proceeding, such as a lawsuit, mediation, or arbitration.

dispute resolution  See: alternative dispute resolution

disregarding the corporate entity  See: piercing the veil

dissent  A stated disagreement with prevailing thought. Also, the opinion of a judge of a court of appeals, including the U.S. Supreme Court, that disagrees with the majority opinion.

dissenting opinion  The opinion of a judge who does not agree with the majority opinion. (See also: dissent)

dissolution  The process of dissolving (ending) a marriage or a business. (See also: divorce, dissolution of corporation)

dissolution of corporation  Termination of a corporation with the Secretary of State or state corporations division by filing documents to withdraw the corporation as a business entity. Dissolution can either be started voluntarily, by resolution of the shareholders, or involuntarily, for not paying corporate taxes or some other action of the government.

dissolution of marriage  Another term for a divorce, used in many states.

distinctive trademark  A standard of trademark protection. Trademarks and service marks are judged on a spectrum of distinctiveness. The most unusual (in the context of their use) are considered the most memorable. Distinctive marks typically consist of terms that are fanciful or coined (Maalox or Xerox), arbitrary (Penguin for books, Arrow for shirts), or suggestive (Accuride tires). Distinctive marks receive maximum judicial protection under state and federal laws. Trademarks that describe some aspect of the goods or services are not considered distinctive and cannot acquire federal registration absent proof that consumers associate the goods or services with the mark (known as secondary meaning). (See also: secondary meaning)

distinguish  To differentiate the ruling in one case from another even though both may have similarities of fact.

distress  The seizure of another’s property in order to obtain payment for money owed.

distribute  To give assets, usually from an estate or trust, to the people who are entitled to receive them under the terms of a will, trust document, state law, or beneficiary designation.

distributee  Someone who receives something. Usually, the term refers to someone who inherits property from a deceased person (a distribution from the deceased person’s estate) or receives distributions from a trust. Also called a beneficiary.

distribution  Transferring at least some assets of an estate or trust to beneficiaries or paying out profits or assets of a corporation or other business to its owners.

distribution of profits  The withdrawal of profits from a partnership or LLC by a partner or LLC member.

District Attorney (DA)  A lawyer who is elected or chosen by local govern­ment officials to represent the state government in criminal cases brought in a designated county or judicial district. A DA’s duties typically include reviewing police arrest reports, deciding whether to bring criminal charges against arrested people, and prosecuting criminal cases in court. The DA may also supervise other attorneys, called Deputy District Attorneys or Assistant District Attorneys. In some states, a District Attorney may be called a Prosecuting Attorney, County Attorney, or State’s Attorney. In the federal system, the equivalent to the DA is a United States Attorney. The country has many U.S. Attorneys, each appointed by the president, who supervise regional offices staffed with prosecutors called Assistant United States Attorneys.

district court  1) in the federal court system, a trial court for federal cases in a court district, which is all or a portion of a state. Thus, if you file suit in federal court, your case will normally be heard in federal district court. 2) A local court in some states. States may also group their appellate courts into districts—for example, The First District Court of Appeal.

disturbance of the peace  See: breach of the peace

disturbing the peace  See: breach of the peace

diversion  In a criminal case, an alter­native procedure in which the case is handled outside of the court, instead as part of the normal criminal justice system. A defendant who agrees to be diverted will escape the criminal charges altogether if he successfully completes the rehabilitation program and stays out of trouble for a specified time. Only very minor offenses, typically drug possession cases, are eligible for diversion; and defendants must show that they are good candidates for rehabilitation before being diverted.

diversity jurisdiction  The power of the federal courts to decide civil disputes between citizens of different states, provided the amount the plaintiff seeks in damages exceeds an amount set by Congress (currently $75,000). The so-called citizens may include companies incorporated or doing business in different states or a citizen of a foreign country. However, note that the federal courts traditionally refuse to exercise their diversity jurisdiction over cases involving domestic relations and probate.

diversity of citizenship  A basis for taking a lawsuit to federal court, in which the opposing parties are citizens of different states (including corporations incorporated or doing business in different states) or one is a citizen of a foreign country. It’s also required that the amount in controversy exceed a statutory amount.

Diversity Visa Program (the Lottery)  Every year, the U.S. Department of State allows people from certain countries who have sent the fewest immigrants to the U.S. in recent years, and who meet specified educational and financial criteria, to enter a lottery program. The “winners,” who are randomly selected, may then apply for a U.S. green card (permanent residence).

divestiture  The disposition or sale of an asset by a company or government entity. It may be voluntary or ordered by a court.

divestment  The disposal or reduction of an investment or business interest, for financial, legal, or ethical reasons.

dividend  A portion of profits distributed by a corporation to its shareholders based on the type of stock and number of shares owned. Dividends are usually paid in cash, though they may also be paid in the form of additional shares of stock or other property. The amount of a dividend is established by the corporation’s board of directors; however, state laws often restrict a corporation’s ability to declare dividends by requiring a minimum level of profits or assets before the dividend can be approved.

divorce  The legal termination of a marriage. All states require a spouse to identify a legal reason for requesting a divorce when that spouse files the divorce papers with the court. These reasons are referred to as grounds for a divorce. (See also: dissolution, no-fault divorce, fault divorce)

divorce agreement  An agreement made by a divorcing couple regarding the division of property, custody and visit­ation of the children, child support, and alimony. The agreement must be put in writing, signed by the parties, and accepted by the court. (See also: marital settlement agreement)

DNA  Deoxyribonucleic acid, a double chain of chromosomes in the nucleus of each living cell, whose combination determines each individual’s hereditary characteristics. Because each person’s DNA is different and is found in each living cell, testing the DNA of a person and comparing that to the DNA found on a drop of blood, hair, or other body substance, can be used to help identify the perpetrator of a criminal act. DNA tests performed on physical evidence years after a trial have repeatedly proved that convicted people on death row did not commit the crimes for which they were sentenced.

docket  See: court calendar

doctor-patient privilege  See: physician-patient privilege

doctrine of equivalents  A form of patent infringement that occurs when an invention performs substantially the same function in substantially the same manner and obtains the same result as a patented invention. As a result of a Supreme Court decision, the doctrine of equivalents must be applied on an element-by-element basis to the patent claims. (See also: patent claims)

document  Usually, a paper with writing on it. Technically, a document could be any item with a message imprinted on it, such as a piece of wood on which someone scratched out a will.

documentary evidence  A document—for example, a contract, deed, or will—that is offered as evidence at a trial or hearing. Before being admitted as evidence, it must be proved that the document is genuine. This is called “laying a foundation.”

documentation  The act of providing documents or supporting records or evidence. For example, any tangible proof that substantiates an item on a tax return, such as a canceled check for an expense claimed as a deduction.

dog-bite statute  A state law that makes dog owners liable for injuries caused by their dogs, even if an owner didn’t know that the dog was likely to cause that kind of injury. More than half the states now have such dog-bite statutes. (Compare: one-bite rule)

doing business  Carrying on business activities, especially a company doing business in a foreign state. Whether an out-of-state company will be subject to another state’s laws will depend on whether it does business within that state. (See also: long-arm statute)

doing business as (DBA)   A situation in which a business owner operates a company under a name different from its legal name. The owner must file a fictitious name statement, dba state­ment, or an assumed name statement with the appropriate agency—for example, the county clerk or Secretary of State—that records the names of the business’s owners. This enables consumers to discover the names of the business owner(s), which is important if a consumer needs to sue the business.

DOMA  See: Defense of Marriage Act

 We hope you enjoyed this material.  The rest of the book is available for purchase.