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Legal Terminologypain and suffering The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured plaintiff can seek compensation in the form of cold, hard cash. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work -- although sometimes these are factored in to arrive at a logical figure. palimony A non-legal term coined by journalists to describe the division of property or alimony-like support given by one member of an unmarried couple to the other after they break up. par value The face value of a stock, assigned by a corporation at the time the stock is issued. The par value is often printed on the stock certificate, but the market value of the stock may be much more or much less than par. paralegal A person who does legal work but who is not licensed to practice law or dispense legal advice. Independent paralegals (those who work directly with the public, not for lawyers) assist their customers by providing forms, helping people fill them out correctly and filing them with the proper court. partnership When used without a qualifier such as limited or limited liability, usually refers to a legal structure called a general partnership. This is a business owned by two or more people (called partners or general partners) who are personally liable for all business debts. To form a partnership, each partner normally contributes money, valuable property or labor in exchange for a partnership share, which reflects the amount contributed. Partnerships are easy to form since no registration is required with any governmental agency to create a partnership (although tax registration and other requirements to conduct business may still apply). Although not required, it is an excellent idea to prepare a written partnership agreement between the partners to define items such as ownership percentages, how profits and losses will be divided and what happens if a partner dies or becomes disabled. Partnerships themselves do not pay federal or state income taxes; rather, profits are passed through to partners who report and pay income taxes on their personal returns. See also limited partnership; limited liability partnership. party A person, corporation or other legal entity that files a lawsuit (the plaintiff or petitioner) or defends against one (the defendant or respondent). patent A legal monopoly, granted by the U.S. Patent and Trademark Office (PTO), for the use, manufacture and sale of an invention. Patents on useful devices, called utility patents, last for 20 years from the date the patent application was filed. Design patents last for 14 years from the date issued. And plant patents last for 17 years from the date issued. Patent and Trademark Office (PTO) An administrative branch of the U.S. Department of Commerce charged with overseeing and implementing the federal laws of patent and trademark.This agency is responsible for examining and issuing all patents and trademarks in the United States. patent claim A statement included in a patent application that describes the structure of an invention in precise and exact terms, using a long established formal style and precise terminology. Patent claims serve as a way for the U.S. Patent and Trademark Office (PTO) to determine whether an invention is patentable, and as a way for a court to determine whether a patent has been infringed. In concept, a patent claim marks the boundaries of the patent in the same way as the legal description in a deed specifies the boundaries of the property. patent deed The official document sent to an inventor by the U.S. Patent and Trademark Office (PTO) when that office has issued a patent for the inventor's creation. patent drawing Visual representations of an invention that are included in a patent application. Patent drawings must be included in the application unless the nature of the invention precludes such them, as would be the case with the formula for a new substance. Patent drawings should show all the features of the invention described in the application, including those features that distinguish it from prior art. patent pending The status of an invention between the time when:a utility patent application has been filed and when it is issued or rejected, or a provisional patent application has been submitted and when a subsequent patent application (filed within one year) is issued or rejected. Inventors often mark their devices patent pending to deter competitors from copying the idea or claim it as their own. patent search A search for documents that will determine whether a particular invention was novel and nonobvious when it was invented, and hence whether it may qualify for a patent. A patent search usually begins with a database of previously issued patents, and also covers other types of documents, such as journal articles and scientific papers, that describe unpatented inventions. paternity suit A lawsuit to determine the identity of the father of a child born outside of marriage, and to provide for the support of the child once the identity of the father has been determined. pay-on-death (POD) designation A way to avoid probate for bank accounts, government bonds, individual retirement accounts and, in many states, securities or a car. To create a pay-on-death designation, you simply name someone on the ownership document (such as the registration card for a bank account) to inherit the property at your death. You retain complete control of your property while you are alive, and you can change the beneficiary (payee) at any time. At your death, the property is transferred directly to the beneficiary, free of probate. PBGC See Pension Benefit Guaranty Corporation. pendente lite Latin for while the action is pending. This phrase is used to describe matters that are contingent upon the outcome of a lawsuit. For example, money may be deposited by the defendant with the court pendente lite in order to compensate the plaintiff if the defendant loses the case. If the defendant wins, she gets her money back. pension A retirement fund for employees paid for or contributed to by some employers as part of a package of compensation for the employees' work. Pensions became widespread during the Second World War, when they were commonly used as lures because there were more jobs than workers. Pension Benefit Guaranty Corporation (PBGC) A public, nonprofit insurance fund that provides some limited coverage against bankrupt pension funds. Should a pension fund be unable to pay all its obligations to its retirees, the PBGC may pay some of the pension fund's unfulfilled obligations. The PBGC covers only defined benefit retirement plans and only vested benefits. per capita Under a will, the most common method of determining what share of property each beneficiary gets when one of the beneficiaries dies before the willmaker, leaving children of his or her own. For example, Fred leaves his house jointly to his son Alan and his daughter Julie. But Alan dies before Fred, leaving two young children. If Fred’s will states that heirs of a deceased beneficiary are to receive the property per capita, Julie and the two grandchildren will each take a third. If, on the other hand, Fred’s will states that heirs of a deceased beneficiary are to receive the property per stirpes, Julie will receive one-half of the property, and Alan’s two children will share his half in equal shares (through Alan by right of representation). per stirpes Under a will, a method of determining who inherits property when a joint beneficiary has died before the willmaker, leaving living children of his or her own. For example, Fred leaves his house jointly to his son Alan and his daughter Julie. But Alan dies before Fred, leaving two young children. If Fred’s will states that heirs of a deceased beneficiary are to receive the property per stirpes, Julie will receive one-half of the property, and Alan’s two children will share his half in equal shares (through Alan by right of representation). If, on the other hand, Fred’s will states that the property is to be divided per capita, Julie and the two grandchildren will each take a third. peremptory challenge During jury selection, an opportunity for a party to a lawsuit to dismiss or excuse a potential juror without having to give a valid reason, as would be the case when a juror is challenged for cause. Depending on court rules, each party typically gets to make from five to 15 peremptory challenges. Although parties may generally use their peremptory challenges as they see fit, the U.S. Constitution has been interpreted to prohibit their use to eliminate all jurors of a particular race or gender from a jury. permanent resident A non-U.S. citizen who has been given permission to make his or her permanent home in the United States. If you acquire permanent residence, you will be issued a green card to prove it. The terms permanent resident and green card holder mean exactly the same thing. You cannot be a permanent resident without a green card and you cannot have a green card without being a permanent resident. As a permanent resident, you may travel as much as you like, but your place of residence must be the United States and you must keep that residence on a permanent basis. If you leave the United States and stay away for more than a year, you risk losing your green card. personal injury An injury not to property, but to your body, mind or emotions. For example, if you slip and fall on a banana peel in the grocery store, personal injury covers any actual physical harm (broken leg and bruises) you suffered in the fall as well as the humiliation of falling in public, but not the harm of shattering your watch. personal injury recovery The amount that comes from a lawsuit or insurance settlement to compensate someone for physical and mental suffering, including injury to body, injury to reputation or both. personal property All property other than land and buildings attached to land. Cars, bank accounts, wages, securities, a small business, furniture, insurance policies, jewelry, patents, pets and season baseball tickets are all examples of personal property. Personal property may also be called personal effects, movable property, goods and chattel, and personalty. Compare real estate. personal representative See executor. petition A formal written request made to a court, asking for an order or ruling on a particular matter. For example, if you want to be appointed conservator for an elderly relative, you must file a petition with a court. See also complaint. petition (immigration) A formal request for a green card or a specific nonimmigrant (temporary) visa. In many cases, the petition must be filed by someone sponsoring the immigrant, such as a family member or employer. After the petition is approved, the immigrant may submit the actual visa or green card application. petitioner A person who initiates a lawsuit. A synonym for plaintiff, used almost universally in some states and in others for certain types of lawsuits, most commonly divorce and other family law cases. petitioner (immigration) A U.S. resident or business who makes a formal request that a foreign national be allowed to enter the United States. The petitioner must be an immediate relative who is either a U.S. citizen or green card holder or your prospective U.S. employer. No one else may act as your petitioner. Almost all green card categories and some types of nonimmigrant visa categories require you to have a petitioner. physical custody The right and obligation of a parent to have his child live with him. Compare legal custody. physical incapacity The inability of a spouse to engage in sexual intercourse with the other spouse. In some states, physical incapacity is a ground for an annulment or fault divorce, assuming the incapacity was not disclosed to the other spouse before the marriage. piercing the veil A judicial doctrine that allows a plaintiff to hold otherwise immune corporate officers and directors personally liable for damages caused by a corporation under their control. The veil is pierced when officers have acted intentionally and illegally, or when their actions exceeded the power given them by the company's articles of incorporation. plagiarism Passing off someone else's work as your own, whether word for word or merely the creative ideas. This can amount to copyright infringement if permission has not been obtained from the copyright owner for use of the expressive elements of the work. Even if permission is granted, putting your name on someone else's work is still plagiarism and is unethical within artistic, scientific, academic and political communities. plaintiff The person, corporation or other legal entity that initiates a lawsuit. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff. Compare defendant, respondent. plant patent A patent issued for new strains of asexually reproducing plants. Plant patents last for 17 years from the date the patent issues. plea The defendant's formal answer to criminal charges. Typically defendants enter one of the following pleas: guilty, not guilty or nolo contendere. A plea is usually entered when charges are formally brought (at arraignment). plea bargain A negotiation between the defense and prosecution (and sometimes the judge) that settles a criminal case. The defendant typically pleads guilty to a lesser crime (or fewer charges) than originally charged, in exchange for a guaranteed sentence that is shorter than what the defendant could face if convicted at trial. The prosecution gets the certainty of a conviction and a known sentence; the defendant avoids the risk of a higher sentence; and the judge gets to move on to other cases. pleading A statement of the plaintiff's case or the defendant's defense, set out in generally accepted legal language and format. Today, in many states, the need to plead a case by drafting legal jargon -- or borrowing from a legal form book -- and printing it on numbered legal paper has been replaced by the use of pre-printed forms. In this case, creating a proper pleading consists principally of checking the correct boxes and filling in the requested information. PMI See private mortgage insurance. POD See pay-on-death designation. poison pill A strategy for avoiding a hostile takeover. A company offers low-price stock to its current shareholders in order to make it more expensive for another company to buy them out. post hoc Part of the Latin phrase post hoc, ergo propter hoc, which means after this, therefore because of this. The phrase represents the faulty logic of assuming that one thing was caused by another merely because it followed that prior event in time. pot trust A trust for children in which the trustee decides how to spend money on each child, taking money out of the trust to meet each child's specific needs. One important advantage of a pot trust over separate trusts is that it allows the trustee to provide for one child's unforeseen need, such as a medical emergency. But a pot trust can also make the trustee's life difficult by requiring choices about disbursing funds to the various children. A pot trust ends when the youngest child reaches a certain age, usually 18 or 21. pour-over will A will that pours over property into a trust when the will maker dies. Property left through the will must go through probate before it goes into the trust. power of appointment The legal authority to decide who will receive someone else's property, usually property held in a trust. Most trustees can distribute the income from a trust only according to the terms of the trust, but a trustee with a power of appointment can choose the beneficiaries, sometimes from a list of candidates specified by the grantor. For example, Karin creates a trust with power of appointment to benefit either the local art museum, symphony, library or park, depending on the trustee's assessment of need. power of attorney A document that gives another person legal authority to act on your behalf. If you create such a document, you are called the principal, and the person to whom you give this authority is called your attorney-in-fact. If you make a durable power of attorney, the document will continue in effect even if you become incapacitated. For examples, see durable power of attorney for finances; durable power of attorney for healthcare. PPA See provisional patent application. prayer for relief What the plaintiff asks of the court -- for example, the plaintiff may ask for an award of monetary damages, an injunction to make the defendant stop a certain activity, or both. precedent A legal principle or rule created by one or more decisions of a state or federal appellate court. These rules provide a point of reference or authority for judges deciding similar issues in later cases. Lower courts must apply these rules when faced with similar legal issues. For example, if the Montana Supreme Court decides that a certain type of employment contract overly restricts the right of the employee to quit and get another job, all other Montana courts must apply this same rule. predeceased spouse In the law of wills, a spouse who dies before the will maker while still married to him or her. preference A payment made by a debtor to a creditor within a defined period prior to filing for bankruptcy -- within three months for arms-length creditors (regular commercial creditors) and within one year for insider creditors (friends, family members, and business associates). Because a preference gives the creditor who received the payment an edge over other creditors in the bankruptcy case, the trustee can recover the preference (the amount of the payment) and distribute it among all of the creditors. preliminary injunction See injunction. premarital agreement An agreement made by a couple before marriage that controls certain aspects of their relationship, usually the management and ownership of property, and sometimes whether alimony will be paid if the couple later divorces. Courts usually honor premarital agreements unless one person shows that the agreement was likely to promote divorce, was written with the intention of divorcing or was entered into unfairly. A premarital agreement may also be known as a prenuptial agreement. prenuptial agreement See premarital agreement. presumed abuse In a Chapter 7 bankruptcy, when the debtor's current monthly income exceeds the family median income for his or her state and he or she cannot pass the means test, the court will presume that the debtor has sufficient income to fund a Chapter 13 plan. In this situation, the debtor will not be allowed to proceed with a Chapter 7 bankruptcy unless the debtor can prove that he or she is not abusing the Chapter 7 bankruptcy remedy. presumption of innocence One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each element of the crime charged. pretermitted heir A child or spouse who is not mentioned in a will and whom the court believes was accidentally overlooked by the person who made the will. For example, a child born or adopted after the will is made may be deemed a pretermitted heir. If the court determines that an heir was accidentally omitted, that heir is entitled to receive the same share of the estate as she would have if the deceased had died without a will. A pretermitted heir is sometimes called an omitted heir. prima facie Latin for on its face. A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial. For example, if you can show that someone intentionally touched you in a harmful or offensive way and caused some injury to you, you have established a prima facie case of battery. However, this does not mean that you automatically win your case. The defendant would win if he could show that you consented to the harmful or offensive touching. principal (1) When creating a power of attorney or other legal document, the person who appoints an attorney-in-fact or agent to act on his or her behalf. (2) In criminal law, the main perpetrator of a crime. (3) In commercial law, the total amount of a loan, not including any capitalized fees or interest. (4) In the law of trusts, the property of the trust, as opposed to the income generated by that property. The principal is also known as the trust corpus; that's Latin for body. For example, Arthur establishes a new trust with $100,000, with interest and other income payable to Merlin; the $100,000 is the trust principal or corpus. Principal Register The list on which distinctive trademarks and service marks approved for federal regulation are placed. The benefits of getting a mark placed on the principal register include the notice to potential copiers that your mark is protected, the right to sue to stop copying, and the right to have the mark considered immune from legal challenge after five years. Registration also means that an infringer will be considered a willful infringer in case of an infringement lawsuit, which makes it a lot easier to collect large damages and possibly attorney fees. prior art All previous inventions in the field of an invention for which a patent is being sought. Prior art is used by the Patent and TM Office to decide whether the invention is sufficiently unique and non-intuitive to qualify for patent protection. priority debt A type of debt that is paid first if there are distributions made from the bankruptcy estate in a Chapter 7 bankruptcy, and must be paid in full in a Chapter 13 bankruptcy. Priority debts include alimony and child support, fees owed to the trustee and the attorney in the bankruptcy case, and wages owed to employees. private mortgage insurance (PMI) Insurance that reimburses a mortgage lender if the buyer defaults on the loan and the foreclosure sale price is less than the amount owed the lender (the mortgage plus the costs of the sale). A home buyer who makes less than a 20% down payment may have to purchase PMI. privileged communication See confidential communication. pro hac vice Latin meaning for this one particular occasion. The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried. pro per A term derived from the Latin in propria, meaning for one's self, used in some states to describe a person who handles her own case without a lawyer. In other states, the term pro se is used. When a nonlawyer files his own legal papers, he is expected to write in pro per at the bottom of the heading on the first page. pro se A Latin phrase meaning for himself or in one's own behalf. This term denotes a person who represents herself in court. It is used in some states in place of in pro per and has the same meaning. probable cause The amount and quality of information police must have before they can arrest or search without a warrant or that a judge must have before she will sign a search warrant allowing the police to conduct a search or arrest a suspect. Reliable information must show that it's more likely than not that a crime has occurred and the suspect is involved. probate The court process following a person's death that includes proving the authenticity of the deceased person's will appointing someone to handle the deceased person's affairs identifying and inventorying the deceased person's property paying debts and taxes identifying heirs, and distributing the deceased person's property according to the will or, if there is no will, according to state law. Formal court-supervised probate is a costly, time-consuming process -- a windfall for lawyers -- which is best avoided if possible. probate court A specialized court or division of a state trial court that considers only cases concerning the distribution of deceased persons' estate. Called surrogate court in New York and several other states, this court normally examines the authenticity of a will -- or if a person dies intestate, figures out who receives her property under state law. It then oversees a procedure to pay the deceased person's debts and to distribute her assets to the proper inheritors. See probate. proceeds for damaged exempt property In a bankruptcy proceeding, money collected through insurance, arbitration, mediation, settlement or a lawsuit to pay for exempt property that's no longer exemptible because it has been damaged or destroyed. professional corporation A legal structure authorized by state law for a fairly narrow list of licensed professions, including lawyers, doctors, accountants, many types of higher-level health providers and often architects. Unlike a regular corporation, a professional corporation does not absolve a professional for personal liability for her own negligence or malpractice. The main reason why groups of professions choose this organizational structure is that, unlike a general partnership, owners are not personally liable for the malpractice of other owners. In some states, limited liability partnerships offer this same benefit and may be more desirable for other reasons. promissory estoppel See estoppel.
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