English For Lawyers

Estate - An estate consists of personal property (car, household items, and other tangible items), real property and intangible property, such as stock certificates and bank accounts, owned in the individual name of a person at the time of the person's death. It does not include life insurance proceeds (unless the estate was made the beneficiary) or other assets that pass outside the estate (like a joint tenancy asset.)

Estate Tax - Generally, a tax on the privilege of transferring property to others after a person's death. In addition to federal estate taxes, many states, including New Mexico, have their own estate taxes.

Estoppel - A person's own act, or acceptance of facts, which preclude his or her later making claims to the contrary.

Et al. - “And others.”

Et Seq. - "And the following."

Evidence - Testimony or exhibits received by the court at any stage of court proceedings.

Examination - The questioning of a witness under oath.

Exceptions - Declarations by either side in a civil or criminal case reserving the right to appeal a judge's ruling upon a motion or objection. These are no longer required to preserve error in New Mexico courts. Also, in regulatory cases, objections by either side to points made by the other side or to rulings by the agency or one of its hearing officers.

Exclusionary Rule - The rule preventing illegally obtained evidence, such as property found during an illegal search, from being used in any trial.

Execute - To complete the legal requirements (such as signing before witnesses) that make a will valid. Also, to execute a judgment or decree means to put the final judgment of the court into effect.

Executor - A personal representative, named in a will, who administers an estate.

Exempt Property - In collection, execution, and bankruptcy proceedings, this refers to certain property protected by law from the reach of creditors.

Exhibits - A document or item which is formally introduced in court and which, when accepted, is made part of the case file.

Exigent Circumstances - An emergency, demand, or need calling for immediate action or remedy that, for instance, would justify a warrantless search.

Exonerate - Removal of a charge, responsibility or duty.

Ex Parte - On behalf of only one party, without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing.

Ex Parte Communication - Communication about a lawsuit between a judge and one party, witness, attorney, or other person interested in the litigation when all of the parties are not present and the absent party did not have notice.

Ex Parte Proceeding - The legal procedure in which only one side is present or represented. It differs from the adversary system or adversary proceeding, and is only lawful in limited circumstances. For example, a hearing for a temporary restraining order.

Ex Post Facto - After the fact. The Constitution prohibits the enactment of ex post facto laws. These are laws that permit conviction and punishment for an act that was lawful at the time it was performed.

Express Warranty - An affirmation of fact or promise made by the seller to the buyer that is relied upon by the buyer in agreeing to the contract.

Expungement - Official and formal erasure of a record or partial contents of a record.

Extenuating Circumstances - Circumstances that render a crime less aggravated, heinous, or reprehensible than it would otherwise be.

Extradition - Surrender by one state to another of a person accused or convicted of an offense outside its own territory and within territorial jurisdiction of the other, with the other state which is competent to try him/her, demanding his/her surrender.

Extrinsic - Foreign, from outside sources.

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F

Family Allowance - A small amount of money set aside from the estate of the deceased. Its purpose is to provide for the surviving family members during the administration of the estate.

Felony - A crime that allows a defendant to be imprisoned for more than one year upon being found guilty.

Fiduciary - A person having a legal relationship of trust and confidence to another and having a duty to act primarily for the other's benefit: i.e., a guardian, trustee or executor.

File - To place a paper in the official custody of the clerk of court/court administrator to enter into the files or records of a case.

Filed in Open Court - Court documents entered into the file in court during legal proceedings.

Final Order - An order that ends the lawsuit between the parties, resolves the merits of the case, and leaves nothing to be done but enforcement.

Finding - Formal conclusion by a judge or regulatory agency on issues of fact. Also, a conclusion by a jury regarding a fact.

First Appearance - The initial appearance of an arrested person before a judge to determine whether or not there is probable cause for his/her arrest. Generally, the person comes before a judge within hours of the arrest. Also called initial appearance.

Foundation - Preliminary questions to a witness to establish admissibility of evidence; i.e., "laying a foundation" for admissibility.

Fraud - Intentional deception to deprive another person of property or to injure that person in some way.

Fruit of the Crime - Property acquired by means and in consequence of the commission of a crime, and sometimes constituting the subject matter of the crime.

Fruit of the Poisonous Tree - Property seized or statements made subsequent to and because of an illegal search or interrogation. Fruit of the poisonous tree is generally not admissible in evidence because it is tainted by the illegal search or interrogation.

Fugitive - A person who flees from one state to another to avoid prosecution.

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G

Garnishment - A legal proceeding in which a debtor's money, which is in the possession of another (called the garnishee), is applied to the debts of the debtor, such as when an employer garnishes a debtor's wages.

General Damages - Compensation for the loss directly and necessarily incurred by a breach of contract.

General Jurisdiction - Refers to courts that have no limit on the types of criminal and civil cases they may hear.

Good Faith - Honest intent to act without taking an unfair advantage over another person. This term is applied to many kinds of transactions.

Good Time - A reduction in sentenced time in prison as a reward for good behavior. It usually is one-third to one-half off the maximum sentence.

Grand Jury - A jury of inquiry convened to determine whether evidence against a defendant justifies issuing an indictment; comprised of not more than 18 and not less than 15 persons, with at least 12 concurring before an indictment may be returned.

Grantor or Settlor - The person who sets up a trust. Also known as “trustor.”

Guardian - A person appointed by will or by law to assume responsibility for incompetent adults or minor children. If one parent dies, the children's guardian will usually be the other parent. If both die, it usually will be a close relative.

Guardianship - Legal right given to a person to be responsible for the food, housing, health care, and other necessities of a person deemed incapable of providing these necessities for himself/herself. A guardian also may be given responsibility for the person's financial affairs, and thus perform additionally as a conservator. See also Conservatorship.

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H

Habeas Corpus - A writ used as a means to bring a person before the court to determine whether he/she is being detained unlawfully.

Harmless Error - An error committed during a trial that was corrected or was not serious enough to affect the outcome of the trial and therefore was not sufficiently harmful (prejudicial) to require that the judgment be reversed on appeal.

Hearing -A proceeding, generally public, at which an issue of fact or law is discussed and either party has the right to be heard.

Hearsay - Testimony by a witness concerning events about which the witness has no personal knowledge. Hearsay testimony conveys not what the witness observed personally, but what others told the witness or what the witness heard others say. Hearsay is usually not admissible as evidence in court because of its unreliability.

Hung jury - Jury unable to reach a verdict. A trial ending in a hung jury results in a retrial with a new jury.

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I

Immunity - A grant by the court assuring someone that they will not face prosecution in return for their providing criminal evidence.

Impeachment of a Witness - An attack on the credibility (believability) of a witness, through evidence introduced for that purpose.

Implied Consent - Knowing indirectly (through conduct or inaction) that a person would agree or give permission. For example, in New Mexico a person who gets a driver's license has given implied consent to allow a police officer to conduct an alcohol breath or blood test, when the police suspects the person is driving while intoxicated.

Implied Warranty of Merchantability - An assumption in law that the goods are fit for the ordinary purposes for which such goods are used. This implied warranty applies to every sale by a merchant who deals in goods of the kind sold. However, if there is a warning that the goods are sold “as is,” the implied warranty does not apply.

Inadmissible - That which, under the rules of evidence, cannot be admitted or received as evidence.

In Camera - In chambers or in private. A hearing in camera takes place in the judge's office outside of the presence of the jury and the public.

Incarcerate - To confine in jail.

In-Custody Arraignments (jail cases) - Arraignment while the defendant remains in jail because defendant has not been released on bond or by other means.

Indeterminate Sentence - A sentence of imprisonment to a specified minimum and maximum period of time, specifically authorized by statute, subject to termination by a parole board or other authorized agency after the prisoner has served the minimum term.

Indicia - Signs, indications.

Indictment - The written accusation by a grand jury that charges a person named in the indictment with the violation of a law. Indictments are used for felony charges, not misdemeanors.

Indigency - Financial inability to hire a lawyer or pay court costs.

Indigent - Needy or impoverished. A defendant who can demonstrate his/her indigence to the court may be assigned a court-appointed attorney at public expense in criminal and child abuse/neglect cases, but not in other civil cases.

In Forma Pauperis - “In the manner of a pauper.” Permission given to a person to sue without payment of court costs because of indigence or poverty.

Information - An accusation against a person for a criminal offense, without an indictment; presented by the prosecution instead of a grand jury. Informations are used for felony charges, not misdemeanors.

Infra - Below.

Infraction - A violation of law not punishable by imprisonment. Minor traffic offenses generally are considered infractions.

Inheritance Tax - A state tax on property that an heir or beneficiary under a will receives from a deceased person's estate. The heir or beneficiary pays this tax.

Initial Appearance - In criminal law, the hearing at which a judge determines whether there is sufficient evidence against a person charged with a crime to hold him/her for trial. The Constitution bans secret accusations, so initial appearances are public unless the defendant asks otherwise; the accused must be present, though he/she usually does not offer evidence. Also called first appearance.

Injunction - Writ or order by a court prohibiting a specific action from being carried out by a person or group. A preliminary injunction is granted provisionally, until a full hearing can be held to determine if it should be made permanent.

Inspectorial Search - An entry into and examination of premises or vehicles by an inspector for the identification and correction of conditions dangerous to health or safety.

Instructions - Judge's explanation to the jury before it begins deliberations of the questions it must answer and the applicable law governing the case. Also called charge to the jury.

Intangible assets - Nonphysical items that have value, such as stock certificates, bonds, bank accounts, and pension benefits. Intangible assets must be taken into account in estate planning and divorce.

Interlocutory - Provisional; not final. An interlocutory order or an interlocutory appeal concerns only a part of the issues raised in a lawsuit.

Interpleader - An action in which a third person asks the Court to determine the rights of others to property held--but not owned--by the third person.

Interrogatories - Written questions asked by one party in a lawsuit for which the opposing party must provide written answers.

Intervention - An action by which a third person that may be affected by a lawsuit is permitted to become a party to the suit.

Inter Vivos Gift - A gift made during the giver's life.

Inter Vivos Trust - Another name for living trust.

Intestacy Laws - See Descent and Distribution Statutes.

Intestate - Dying without having a will.

Intestate Succession - The process by which the property of a person who has died without a will passes on to others according to the state's descent and distribution statutes. If someone dies without a will and the court uses the state's intestate succession laws, an heir who receives some of the deceased's property is an intestate heir.

Invoke the Rule - Separation and exclusion of witnesses (other than parties) from the courtroom.

Irrevocable Trust - A trust that, once set up, the grantor may not revoke.

Issue - 1. The disputed point in a disagreement between parties in a lawsuit. 2. To send out officially, as in to issue an order.

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J

Joinder - Combining charges or defendants on the same complaint. Where a crime is committed by two people, both may be charged on one complaint. Joinder also applies in civil cases, where parties and claims may be joined in one complaint.

Joint and Several Liability - A legal doctrine that makes each of the parties who are responsible for an injury liable for all the damages awarded in a lawsuit if the other responsible parties cannot pay.

Joint Tenancy - A form of legal co-ownership of property (also known as survivorship). At the death of one co-owner, the surviving co-owner becomes sole owner of the property. Tenancy by the entirety is a special form of joint tenancy between a husband and wife.

Judge - An elected or appointed public official with authority to hear and decide cases in a court of law. A judge Pro Tem is a temporary judge.

Judgment - The first disposition of a lawsuit.

Consent Judgment - Occurs when the provisions and terms of the judgment are agreed on by the parties and submitted to the court for its sanction and approval.

Default Judgment - A judgment rendered because of the defendant's failure to answer or appear.

Judgment Notwithstanding the Verdict - Judgment entered by order of the court for one party notwithstanding the jury's verdict in favor of the other party. A judgment notwithstanding the verdict may only arise after a motion for a directed verdict.

a. Judgment on the Pleadings - Judgment based on the pleadings alone. It is used when there is no dispute as to the facts of the case and one party is entitled to a judgment as a matter of law.

Summary Judgment - Judgment given on the basis of pleadings, affidavits, and exhibits presented for the record without any need for a trial. As with Judgment on the Pleadings, it is used when there is no dispute as to the facts of the case and one party is entitled to a judgment as a matter of law.

Judgment and Sentence - The official document of a judge's disposition of a case sentencing a defendant to the Department of Corrections or jail custody.

Judicial Review - The authority of a court to review the official actions of other branches of government. Also, the authority to declare unconstitutional the actions of other branches.

Jurat - Certificate of officer or person whom writing was sworn before. Typically, “jurat” is used to mean the certificate of the competent administering officer that writing was sworn to by person who signed it.

Jurisdiction - The court's legal authority to hear and resolve specific disputes. Jurisdiction is usually composed of personal jurisdiction (authority over persons) and subject matter jurisdiction (authority over types of cases.)

Jurisprudence - The study of law and the structure of the legal system.

Juror Disqualified - Juror excused from a trial.

Jury - Persons selected according to law and sworn to inquire into and declare a verdict on matters of fact. A petit jury is a trial jury, composed of 6 to 12 persons, which hears either civil or criminal cases.

Jury Array - The whole body of prospective jurors summoned to court from which the jury will be selected. Also called “Jury Panel.”

Jury List - A list containing the names of jurors empanelled to try a cause or containing the names of all the jurors summoned to attend court.

Jury Polling - The procedure by which each individual juror is asked to affirm his or her verdict in open court at the conclusion of a trial.

Jury Trial - A trial in which the jury judges the facts and the judge rules on the law.

Justiciable - Issues and claims capable of being properly examined in court.

Juvenile - A person under 18 years of age.

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K

Kangaroo Court - Term descriptive of a sham legal proceeding in which a person's rights are totally disregarded and in which the result is a foregone conclusion because of the bias of the court or other tribunal.

Knowingly and Willfully - This phrase, in reference to violation of a statute, means consciously and intentionally.

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L

Lapsed Gift - A gift made in a will to a person who has died prior to the will-maker's death.

Larceny - Obtaining property by fraud or deceit.

Law - The enforceable rules that govern individual and group conduct in a society. The law establishes standards of conduct, the procedures governing standards of conduct, and the remedies available when the standards are not adhered to.

Law Clerks - Persons trained in the law who assist judges in researching legal opinions.

Leading Question - A question that suggests the answer desired of the witness. A party generally may not ask one's own witness leading questions. Leading questions may be asked only of adverse witnesses and on cross-examination.

Legal Aid - Professional legal services available usually to persons or organizations unable to afford such services.

Leniency - Recommendation for a sentence less than the maximum allowed.

Lesser Included Offense - Any lesser offense included within the statute defining the original charge, such as a lower grade of an offense. An offense composed of some, but not all of the elements of a greater offense and which does not have any additional elements not included in the greater offense, so that it is impossible to commit the greater offense without also committing the lesser.

Letters of Administration - Legal document issued by a court that shows an administrator's legal right to take control of assets in the deceased person's name. Used when the deceased died without a will.

Letters Testamentary - Legal document issued by a court that shows an executor's legal right to take control of assets in the deceased person's name. Used when the deceased left a will.

Liable - Legally responsible.

Libel - Published words or pictures that falsely and maliciously defame a person. Libel is published defamation; slander is spoken.

Lien - A legal claim against another person's property as security for a debt. A lien does not convey ownership of the property, but gives the lien-holder a right to have his or her debt satisfied out of the proceeds of the property if the debt is not otherwise paid.

Limited Jurisdiction - Courts with limited jurisdiction may hear only certain kinds of cases and are precluded from hearing anything else. For example, small claims court may only decide cases in which the amount in controversy is below a set figure.

Lis Pendens - A pending suit. Jurisdiction, power, or control that courts acquire over property in a suit pending action and until final judgment.

Litigant - A party to a lawsuit. Litigation refers to a case, controversy, or lawsuit.

Living Trust - A trust set up and in effect during the lifetime of the grantor. Also called inter vivos trust.

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M

Magistrate - A judge whose civil and criminal jurisdiction is limited by law. In federal court, a judicial officer who is assigned numerous trial and pretrial responsibilities.

Malfeasance - Evil doing, ill conduct; the commission of some act which is positively prohibited by law.

Malicious Abuse of Process - Tort involving a litigant's malicious misuse of the power of the judiciary. The elements of this tort are: (1) initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process that would not be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to achieve an illegitimate end; and (4) damages.

Malicious Prosecution - In New Mexico, the tort of “Malicious Prosecution” no longer exists. It has been combined with “Abuse of Process” to form a new tort, “Malicious Abuse of Process.”

See Malicious Abuse of Process.

Mandamus - A writ issued by a court ordering a public official to perform an act that s/he is required to do by law under the existing state of facts.

Mandate - The official decree by a court of appeal.

Manslaughter - The unlawful killing of another without intent to kill; either voluntary (upon a sudden impulse); or involuntary (during the commission of an unlawful act not ordinarily expected to result in great bodily harm.)

Mediation - A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party, who helps them reach a resolution.

Memorialized - In writing.

Mens Rea - The “guilty mind” necessary to establish criminal responsibility.

Merchant - A person who regularly deals in goods of the kind being sold or who otherwise holds himself out as having a special knowledge of the goods sold. For example, Bob owns a clock shop and sells clocks, so he would be considered a merchant of clocks. However, if Bob sold his car to someone, he would not be considered a merchant of cars.

Merger Clause - Merger clauses state that the written document contains the entire understanding of the parties. The purpose of merger clauses is to ensure that evidence outside the written document will not be admissible in court to contradict or supplement the express terms of the written agreement.

Merits - The substantive claims and defenses raised by the parties to an action.

Minor - A person under 18 years of age.

Miranda Warning - Prior to any custodial interrogation (that is, questioning by police after a person has been deprived of his or her freedom in a significant way), a person must be advised that: (1) he has a right to remain silent; (2) any statement he does make may be used in evidence against him; (3) he has the right to the presence of an attorney; and (4) if cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires.

Misdemeanor - An offense punishable by not more than one year in county jail and/or $1,000 fine.

Mistrial - An invalid trial, caused by fundamental error or inability of a jury to reach a verdict. When a mistrial is declared, the trial must start again from the selection of the jury.

Mitigating Circumstances - Those facts which do not constitute a justification or excuse for an offense but which may be considered as reasons for reducing the degree of blame.

Mitigation - Reduction of penalty or punishment.

Moot - A moot case or a moot point is one not subject to a judicial determination because it involves an abstract question, because there is no actual controversy, or because the issues no longer exist. Mootness usually refers to a court's refusal to consider a case because the issue involved has been resolved prior to the court's decision, leaving nothing that would be affected by the court's decision.

Motion - Oral or written request made by a party to an action before, during, or after a trial, upon which a court issues a ruling or order.

Motion in Limine - A motion made outside the presence of a jury requesting that the court not allow certain evidence that might prejudice the jury. Usually heard before trial begins.

Motion to Expunge - A motion to delete material from official court records, such as a record of juvenile conviction.

Motion to Mitigate Sentence - A motion to reduce the sentence.

Motion to Seal - A motion to close records to public inspection.

Motion to Suppress - A motion to prevent admission of evidence in a case.

Murder - The unlawful killing of a human being with deliberate intent to kill. Murder in the first degree is characterized by premeditation; murder in the second degree is characterized by a sudden and instantaneous intent to kill or to cause injury without caring whether the injury kills or not.

Mutuality - A meeting of the minds of contracting parties regarding the material terms of the agreement.

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N

Necessarily Included Offense - Where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense; sometimes referred to as lesser included offense.

Negligence - Failure to exercise the degree of care that a reasonable person would exercise under the same circumstances.

Next Friend - One acting without formal appointment as guardian for the benefit of an infant, a person of unsound mind not judicially declared incompetent, or other person under some disability.

No-Contest Clause - Language in a will providing that a person who makes a legal challenge to the will's validity will be disinherited.

No Contest Plea - See Nolo Contendere.

No-Fault Proceedings - A civil case in which parties may resolve their dispute without a formal finding of error or fault.

Nolle Prosequi - The prosecutor declines to prosecute, but may still initiate prosecution within the time allowed by law.

Nolo Contendere - No contest. A plea through which the defendant does not admit guilt, but which has the same legal effect as a plea of guilty in a criminal case. However, the no contest plea may not be used in a civil action related to the criminal charge to prove the defendant's civil liability. For example, a plea of nolo contendere for a traffic citation that resulted from an accident cannot be used to convince a judge in a civil case that the defendant is guilty of causing an accident.

Non-jury trial - A case tried by a judge on the facts as well as the law.

No Probable Cause - Insufficient grounds to hold the person who was arrested.

Notice - Formal notification to the party that has been sued that a civil lawsuit has been filed. Also, any form of notification of a legal proceeding or filing of a document.

Notice of Lis Pendens - A notice filed on public records to warn all persons that the title to certain property is in litigation, and that if they purchase or lease that property they are in danger of being bound by an adverse judgment. The notice is for the purpose of preserving rights pending litigation.

Nuisance - An unreasonable, unwarranted, or unlawful use of one's property that annoys, disturbs, or inconveniences another in the use of his or her property. Violation of an ordinance that forbids annoyance of the public in general.

Nunc Pro Tunc - An entry made now for an act done previously and to have the effect as if it were done on a prior date.

Nuncupative Will - An oral (unwritten) will.

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O

Oaths - Sworn attestations required in court, usually administered by the in-court clerk.

Objection - The process by which one party tries to prevent the introduction of evidence or the use of a procedure at a hearing. An objection is either sustained (allowed) or overruled by the judge.

Offense - A violation of a municipal ordinance or state statute.

Offer - An expression of willingness to enter into a bargain that is definite and certain in its terms and that is communicated to the offeree. Once accepted, the offer is transformed into a contractual obligation.

Offeree - The person to whom an offer is made.

Offeror - The person who makes an offer.

Opening Statement - The initial statement made by attorneys for each side, outlining the facts each intends to establish during the trial.

Opinion - A judge's written explanation of a decision of the court or of a majority of judges. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the decision of the court but offers further comment or different reasoning. A per curiam opinion is an unsigned opinion “of the court.''

Oral Argument - An opportunity for lawyers to summarize their positions before the court and also to answer the judges' questions.

Order - A written or oral command from a court directing or forbidding an action.

Ordinance - A law adopted by the governing body of a municipality or county.

Overrule - A judge's decision not to allow an objection. Also, a decision by a higher court finding that a lower court decision was in error.

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P

Parens Patriae - The doctrine under which the court protects the interests of a juvenile.

Parol Evidence - Oral evidence.

Parol Evidence Rule - When a written agreement is intended to be a complete and final document, then the terms of the agreement cannot be altered by evidence of oral (parol) agreements that purport to change, explain, or contradict the written agreement.

Parole - The supervised conditional release of a prisoner before the expiration of his/her sentence. If the parolee observes the conditions, he/she need not serve the rest of his/her term.

Party - A person, business, organization or government agency involved in the prosecution or defense of a legal proceeding.

Patent - A government grant giving an inventor the exclusive right to make or sell his/her invention for a term of years.

Penalty Assessment - Procedure in which traffic offender is allowed to mail in a fine (plead guilty by mail). Points may be assessed against the person's driving record for penalty assessment offenses.

Peremptory Challenge - The right to challenge a judge or prospective juror without assigning a reason for the challenge.

Perjury - The criminal offense of making a false statement under oath.

Permanent Injunction - A court order requiring that some action be taken or that some party refrain from taking action for an indefinite period.

Personal Jurisdiction - Power which a court has over the defendant's person and which a court must have before it can enter a judgment affecting the defendant's rights.

Per Se Law - In the Motor Vehicle Code, the per se crime is driving with a blood alcohol level of.08 or greater, as established through a valid testing procedure. No proof is required to show that the defendant was under the influence since the law concludes that driving with a blood alcohol content (BAC) of.08 or greater is driving while intoxicated. (DWI can be proved by other evidence even if a defendant's BAC is less than.08.)

Personal Property - Tangible physical property (such as cars, clothing, furniture and jewelry) and intangible personal property (such as bank accounts). This does not include real property such as land or rights in land.

Personal Recognizance - In criminal proceedings, the pretrial release of a defendant without bail upon his/her promise to return to court. See also Release on Own Recognizance.

Personal Representative - The person that administers an estate. If named in a will, that person's title is an executor. If there is no valid will, that person's title is an administrator.

Petitioner - The person filing an action in a court of original jurisdiction. Also, the person who appeals the judgment of a lower court. The opposing party is called the respondent.

Petty Misdemeanor - A crime that allows less than six months of jail time upon conviction.

Plaintiff - The person/business/organization/agency that files the complaint in a civil lawsuit. Also called the complainant.

Plain View Doctrine - The doctrine that permits a law enforcement officer to lawfully seize incriminating evidence not specifically sought but readily visible in the course of a valid search.

Plea - (1) Defendant's answer to the charge - guilty, not guilty, nolo contendere or Alford plea.

(2) In a criminal proceeding, the defendant's declaration in open court that he or she is guilty or not guilty. The defendant's answer to the charges made in the indictment or information.

Plea Agreement - An agreement between the prosecutor and the defendant, presented for the court's approval, regarding the sentence the defendant should serve upon a plea of guilty, an Alford plea, or a no contest plea. Typically, the defendant pleads guilty in exchange for some form of leniency. For example, the defendant may plead to lesser charges so that the penalties are diminished. Or, the defendant may plead to some, but not all of the charges so that others are dropped. The agreement may include sentencing recommendations. Such bargains are not binding on the court.

Plea Bargaining or Plea Negotiating - The process through which an accused person and a prosecutor negotiate a mutually satisfactory disposition of a case. The Court is not privy to the actual negotiations, but is presented with a plea agreement for its approval or rejection.

Pleadings - The written statements of fact and law filed by the parties to a lawsuit.

Points or Point Information - Penalty points imposed by the Motor Vehicles Division after conviction of a traffic offense.

Polling the Jury - The act, after a jury verdict has been announced, of asking jurors individually whether they agree with the verdict.

Pour-Over Will - A will that leaves some or all estate assets to a trust established before the will-maker's death.

Prejudice - Unfair harm to one party.

Power of Attorney - Formal authorization of a person to act in the interests of another who is incapable of managing his or her own affairs or property.

Preliminary Hearing - See “Initial Appearance.”

Preliminary Injunction - Court order requiring action or forbidding action until a decision can be made whether to issue a permanent injunction. It differs from a temporary restraining order.

Pre-Sentence Investigation - A background investigation of the defendant by the Department of Corrections, returnable to the sentencing judge on or before a certain date.

Pre-Sentence Report - A report designed to assist the judge in passing sentence on a convicted defendant. Such reports should contain at least the following: (1) complete description of the situation surrounding the criminal activity; (2) offender's educational background; (3) offender's employment background; (4) offender's social history; (5) residence history of the offender; (6) offender's medical history; (7) information about environment to which the offender will return; (8) information about any resources available to assist the offender; (9) probation officer's view of the offender's motivations and ambitions; (10) full description of the offender's criminal record; and (11) recommendation as to disposition.

Pretermitted Child - A child born after a will is executed, who is not provided for by the will. New Mexico law provides for a share of estate property to go to such children.

Pretrial Conference - A meeting between the judge and the lawyers involved in a lawsuit to narrow the issues in the suit, agree on what will be presented at the trial, and explore the possibility of settling the case without a trial.

Pretrial Intervention - Programs to aid certain qualifying criminal defendants by diverting them from prosecution and enrolling them in rehabilitative programs. Upon successful completion of the required program(s), the criminal case is dismissed. Pretrial intervention is most often used in substance abuse and domestic violence where the crime charged is the defendant's first offense.

Pretrial Release - Release by sheriff's personnel after arrest and before any court appearance, but with a court appearance date.

Precedent - A previously decided case that guides the decision of future cases; source of common law.

Preponderance of the evidence - Evidence that is of greater weight or more convincing than the evidence that is offered in opposition to it. The amount of evidence that must be presented to prevail in most civil actions.

Presentment - Declaration or document issued by a grand jury that either makes a neutral report or notes misdeeds by officials charged with specified public duties. It ordinarily does not include formal criminal charges.

Prima Facie - Presumably. A fact presumed to be true unless disproved by some evidence to the contrary. Evidence that will prevail until contradicted and overcome by other evidence. A prima facie case is one in which the plaintiff has presented sufficient evidence to require the defendant to go forward with his or her case. In other words, the plaintiff will prevail if the defendant does not rebut the plaintiff's case.

Principal - The person primarily liable; the person for whom performance of an obligation a surety has become bound.

Privilege - A right, power, or immunity held by a person or class beyond the course of law, such as the privilege against self-incrimination under the Fifth Amendment.

Probable Cause - The evidence required before a person or property may be searched or seized by law enforcement and before a search or arrest warrant may be issued.

Probable Cause to Arrest exists when the facts and circumstances within the officers' knowledge and of which the officers had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that the suspect has committed or is committing a crime.

Probable Cause to search exists when the facts and circumstances within the officers' knowledge and of which the officers had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that evidence of a crime will be found in the location identified.

Probate - The court-supervised process by which a will is determined to be the will-maker's final statement regarding how the will maker wants his/her property distributed. It also confirms the appointment of the personal representative of the estate. Probate also means the process by which assets are gathered; applied to pay debts, taxes, and the expenses of administration; and distributed to those designated as beneficiaries in the will.

In Chapter 12 of our Probate Judges Manual is the Probate Glossary that includes legal terms specific to probate court in New Mexico.

Probate Court - The court with jurisdiction to supervise estate administration.

Probate Estate - Estate property that may be disposed of by a will.

Probation - A procedure under which a defendant convicted of a crime is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions.

Probative Value - Evidence has "probative value" if it tends to prove an issue. It is evidence that furnishes, establishes, or contributes toward proof.

Pro Bono Publico - For the public good. Lawyers representing clients without a fee are said to be working pro bono publico.

Promissory Estoppel - Equitable doctrine allowing the court to enforce a promise even though a valid contract was not formed when a person reasonably acted in reliance on that promise. Promissory Estoppel allows the court to compensate the person for their expenditures and/or to avoid the unjust enrichment of the other party.

Property Bond - A signature bond secured by mortgage or real property.

Pro Se - In one's own behalf, commonly used to refer to a party representing himself or herself in a court action, instead of being represented by an attorney.

Prosecutor - A trial lawyer representing the government in a criminal case and the interests of the state in civil matters. In criminal cases, the prosecutor has the responsibility of deciding who and when to prosecute.

Proximate Cause - The act that caused an event to occur. A person generally is liable only if an injury was proximately caused by his/her action or by his/her failure to act when he/she had a duty to act.

Public Defender - A court-appointed attorney for those defendants who are declared indigent.

Punitive Damages - Damages awarded over and above compensatory damages in order to punish the defendant for malicious, wanton, willful, reckless, oppressive, or fraudulent conduct. Punitive damages are imposed to compensate the Plaintiff for mental anguish, shame, degradation, or other aggravations beyond actual damages.

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Q

Quash - To vacate or void a summons, subpoena, etc.

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R

Real Property - Land, buildings, and other improvements affixed to the land.

Reasonable Belief - Probable cause. The facts and circumstances within an arresting officer's knowledge, and of which s/he had reasonably trustworthy information, sufficient in themselves to justify a person of average caution in believing that a crime has been or is being committed. Facts sufficient to justify a warrantless arrest.

Reasonable Doubt - Such a doubt as would cause a careful person to hesitate before acting in matters of importance to himself/herself.

Reasonable Person - A phrase used to denote a hypothetical person who exercises the qualities of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own interest and the interests of others. This term is commonly used in torts, where the test of negligence is based on either a failure to do something that a reasonable person, guided by considerations that ordinarily regulate conduct, would do, or on the doing of something that a reasonable and prudent (wise) person would not do.

Reasonable Suspicion - Level of suspicion required to justify law enforcement investigation, but not arrest or search. A lower level of suspicion or evidence than probable cause. An officer has reasonable suspicion when the officer is aware of specific, articulable facts, together with rational inferences from those facts, which, when judged objectively, would lead a reasonable person to believe that criminal activity occurred or was occurring.

Rebut - To introduce evidence disproving other evidence previously given or reestablishing the credibility of challenged evidence.

Rebuttal - Evidence that is offered by a party after he has rested his case and after the opponent has rested in order to contradict and explain the opponent's evidence.

Rebuttal Witnesses - Witnesses introduced to explain, repel, counteract, or disprove facts given in evidence by the adverse party.

Recall Order - Court order recalling a warrant or capias (writ requiring an officer to take a named defendant into custody).

Record - All the documents and evidence plus transcripts of oral proceedings in a case.

Recusal - The voluntary action by a judge to remove himself or herself from presiding in a given case because of self-interest, bias, conflict, or prejudice. Also, the process by which a judge is disqualified from a case because a party objects.

Redirect Examination - Opportunity to present rebuttal evidence after one's evidence has been subjected to cross-examination.

Redress - To set right; to remedy; to compensate; to remove the causes of a grievance.

Referee - A person to whom the court refers a pending case to take testimony, hear the parties,

and report back to the court. A referee is an officer with judicial powers who serves as an arm of the court, but whose final decision is subject to court approval. Also called “special master,” “special commissioner,” or “hearing officer.”

Rehearing - Another hearing of a civil or criminal case or motion by the same court in which the matter was originally decided in order to bring to the court's attention an error, omission, or oversight in the first consideration.

Release - Discharge from confinement or custody.

Release On Own Recognizance - Release of a person from custody without the payment of any bail or posting of bond, upon the promise to return to court.

Remand - To send a dispute back to the court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court's ruling.

Remedy - Legal or judicial means by which a right or privilege is enforced or the violation of a right or privilege is prevented, redressed, or compensated.

Remittitur - The reduction by a judge of the damages awarded by a jury.

Removal - The transfer of a state case to federal court for trial.

Rendition - Transfer of a fugitive from the asylum state to the demanding state.

Replevin - A legal action for the recovery of a possession that has been wrongfully taken.

Reply - The response by a party to charges raised in a pleading by the other party.

Request for Production - A formal court process by which one party requests that another produce certain documents or other tangible items.

Rescission - Cancellation of a contract.

Res Judicata - A thing or matter already decided by a court. A final judgment on the merits is conclusive as to the rights of the parties and is an absolute bar to a later action involving the same claim, demand, or cause of action. Res judicata bars relitigation of the same cause of action between the same parties where there is a prior judgment. By comparison, collateral estoppel bars relitigation of a particular issue or determinative fact. Compare Collateral Estoppel.

Respondent - The person against whom an appeal is taken. See Petitioner.

Rest - A party is said to rest or rest its case when it has presented all the evidence it intends to offer.

Restitution - Either financial reimbursement to the victim or community service imposed by the court for a crime committed.

Retainer - Act of the client in employing the attorney or counsel; also denotes the fee which the client pays when he/she retains the attorney.

Return of service - A certificate of affidavit by the person who has served process upon a party to an action, reflecting the date and place of service.

Reversal - An action of a higher court in setting aside or revoking a lower court decision.

Reversible Error - An error during a trial or hearing sufficiently harmful to justify reversing the judgment of a lower court.

Revocable Trust - A trust that the grantor may change or revoke.

Revocation (of Driver's License) - Judicial termination of a driver's license and privilege to drive after conviction of DWI. The license shall not be renewed or restored for the duration of the revocation, except that an application for a new license may be presented and acted upon by the division after the expiration of at least one year after date of revocation. This kind of revocation is distinguished from an administrative revocation, in which the Motor Vehicle Division may terminate a driver's license for up to one year.

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