Legal Terms - The Law Offices of Nigel Burns


Contributory negligence: A defense to a negligence claim which prevents a party whose own negligence, or conduct falling below the standard of a reasonable person, contributed to and may have been the primary cause of their accident from recovering from another party who may have also been partially at fault.

Drug Court: Alternative courts for non-violent substance-abuse related offenders specifically tailored towards the needs of the communities they sit in. Drug courts operate under a model that involves intensive judicial supervision, mandatory drug testing, escalating sanctions and treatment to help substance abusers break their cycle of addiction and crime. Generally, these courts embrace a cooperative approach to treatment, instead of the traditional adversarial approach, and have a lower rate of recidivism, or repeat offenders.

Plea Offer: An agreement between the prosecution and the defense, which settles a criminal case, usually in exchange for a more lenient punishment. For instance, a Defendant may agree to plead guilty to manslaughter and accept a short prison sentence in exchange for the Prosecutor dropping a first degree murder charge, which potentially could have resulted in a long prison sentence for the Defendant if he would have been convicted in court.

Expungement: To destroy or erase records. This is most commonly refers to criminal records, such as misdemeanors or juvenile crimes, which some courts agree to destroy upon a petition. Expungement can create the appearance that a given case never existed.

Dismissal: The termination of a legal proceeding by a judge, before a trial or hearing. This typically results from a motion to dismiss by an opposing party, or because a party failed to proceed with an action or comply with a court order.

Preliminary Hearing: A court hearing, usual in front of a magistrate judge, to determine whether there is enough evidence to prosecute a case against an accused person.

Discovery: The formal compulsory process for gathering an exchanging information and evidence related to litigation. The most common discovery tools are: requests for admission, interrogatories, document demands, and depositions.

Legal Separation: Where a husband and wife remain married but live apart as a result of a court order, typically for a period of time before a formal divorce.

Community Property: Property which is treated as mutually owned by marital spouses or domestic partners. Each spouse or domestic partner is treated as owning a half interest in all community property.

Elder Financial Abuse: Any situation in which a trusted person, such as a caretaker or relative, steals, appropriates or otherwise uses the money or property of an elder (65 years old or older in California) or dependent adult for a wrongful purpose. For instance, elder financial abuse can be as blatant as stealing money, or as subtle as tricking an elder or dependent adult into using the money to benefit the abuser at the expense of the elder person.

Misdemeanor: A crime less serious than a felony punishable by no more than one year in jail. For example, petty theft.

Felony: A crime punishable by more than one year in jail.

Driving Under the Influence: A criminal offense for operating a motor vehicle while under the influence of drugs or alcohol. For instance, being pulled over for driving with a blood alcohol content of .08% or higher in the state of California

Wet Reckless: Generally this term refers a DUI that prosecutors may offer a person charged with a DUI. A wet reckless has several advantages to a DUI including: no mandatory sentence enhancements for repeat offenders, shorter county jail sentences, shorter probationary periods, lesser fines, no mandatory license suspensions, and shorter DUI school. However, a wet reckless will still count as a prior, for future DUI convictions, and may still result in a license suspension.

Dry Reckless: A simply misdemeanor reckless driving charge which can be negotiated for as a California DUI plea bargain. A dry reckless has several advantages over a DUI: no mandatory sentence enhancements for repeat offenders, shorter county jail sentences, shorter probation, a reduced fine, no mandatory court-ordered license suspension, no DUI school, except for a possible 6 week program. A dry reckless also has two advantages over a wet reckless: it is not treated as a prior for future DUI convictions, and less severe insurance-related consequences.

Financial Responsibility: A law which requires an individual to prove that he or she is able to pay for damages resulting from an accident.

Pain and Suffering Damages: Personal injury damages which are calculated to compensate a person for the physical or emotional distress caused by such injuries.

Child Support: The obligation of the parent who does not have custody to make periodic payments to the parent that does have custody to provide for the support and care of a child.

Child Custody: There are two general types of child custody: (1) legal custody, which is the authority to make decisions that affect the interests of a child, and (2) physical custody, or the responsibility to provide housing, food, and care for a child.

Pendente Lite Orders: Court orders which are in effect while a matter is pending. For instance, in a divorce proceeding, a pendent lite order is often used to provide for the support of the lower income spouse.

Guardianship Actions: A legal proceeding in which a court empowers an adult to care for the general welfare of a minor, including physical, medical, educational, fundamental needs, and management of minor’s property.

Conservator Actions: An action in which a person is appointed by a judge to manage the affairs of a person who does not have capacity to manage their own affairs

Restraining Orders: An order that directs a person not to do something, such as an order which directs a person not to be within 150 feet of another person.

Modifications: a change to something, or an alteration. Most commonly used in contract law in reference to changing a contractual condition.

Breach of Contract: Violation of a contractual obligation by failing to perform ones promise or interfering with another party’s performance.

Partnership Disputes: Disagreements among partners in a partnership business organization.

Business Dispute Resolution: alternative dispute resolution or other informal dispute resolution solutions for business disputes, such as mediation and arbitration.

Medical Licensing: Obtaining a license to practice medicine in the United States through State licensing boards.

Dental Licensing: Obtaining a license to practice dentistry in the United States through a State licensing board.

Commercial Licensing: licensing for certain regulated endeavors, such as charter boat licensing.

Default: The failure to perform a legal or contractual duty, such as the failure to pay a debt when it is due.

Arraignment: The first step in a criminal prosecution where the defendant goes to court to hear the charges against him or her and enter a plea.

Diversion: In criminal law, a program that provide criminal defendants the opportunity to complete certain community, educational or job training programs which, if complete, may result in the court dismissing the charges.

Deferred Judgment: A judgment which puts a convicted defendant on probation, and under which the defendant can prevent the conviction from being officially entered against him or her by successfully completing the probation.

Lien: A legal right or other interest that one party has in the property of another. For instance, in a recourse mortgage where the bank can foreclose on your home if you fail to make payments, the banks is said to have a lien on your property.

Mistrial: A trial that the judge brings to an end, without determining the actual merits of the case because of a procedural error or serious misconduct during the proceeding.

Attorneys Fees: When paying for legal services, attorney fees are the charges for the time spent by an attorney spends working on the underlying case. For instance, if a lawyer spends 3 hours righting a legal motion, and the lawyer charges $300 per hour, the attorney fees would be $900.

Comparative Fault: A system of determining legal blameworthiness and liability in personal injury cases, under which a party’s recovery is reduced by the amount they are legally at fault. For instance, California is a state that recognizes pure comparative negligence. What pure comparative negligence means in personal injury cases is that plaintiffs can recover for injuries even when they are partially at fault. Courts determine the percentage of a plaintiff's fault and subtract that from the percentage of a defendant's fault. Thus, a plaintiff's total recovery, in theory, should represent the percentage they are not at fault

Economic Damages: Purely monetary losses which are objectively verifiable, such as: medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement.

Special Damages: In breach of contract cases these are damages that one party might know either, because the other party told them, they are in the business, or had some other way of knowing.

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