Daniel Oran - Oran's Dictionary of the Law

338 Oblivion

Oblivion An act of forgiving and forgetting such as granting a pardon or amnesty (see those words).

Obloquy 1. Abusive language. 2. A bad reputation.

Obscene Lewd and offensive to accepted standards of decency. The “test” of whether something is obscene (as stated in the 1973 U.S. Supreme Court case of Miller v. California, 413 U.S. 15) includes such things as whether a book, movie, etc., “violates contemporary community standards,” “appeals primarily to prurient interest,” “describes sexual conduct in a patently offensive way,” “is without redeeming social importance,” etc. If a court finds speech to be obscene, it loses its protection under the freedom of speech and freedom of the press clauses of the First Amendment to the Constitution and may be banned, regulated, or prosecuted under state law.

Obscenity See obscene.

Obstructing justice Interfering by words or actions with the proper working of courts or court officials; for example, trying to keep a witness from appearing in court. This can be a crime.

Obviate Prevent or make unnecessary.

Occupancy 1. Physical possession of land or buildings, either with or without legal right or title. 2. Occupying the field.

Occupation 1. Occupancy. 2. Business or profession. 3. Occupying the field.

Occupational disease A disease that is widespread among workers in a particular job, such as “black lung” disease among miners. Workers’ compensation laws and special federal programs authorize payment for workers who contract these diseases if the disease is peculiar to the industry or if the job puts workers at high risk of contracting the disease.

Occupational Safety and Health Administration A federal agency that sets and enforces health and safety standards in many industries. The O.S.H.A. Review Commission handles appeals from O.S.H.A. rulings.

Occupying claimant act See betterment.

Occupying the field The federal government’s prohibiting all state laws in a subject area because the subject is of national importance.

Occupying the field is total federal pre-emption (see that word). Occurrence policy An insurance policy that pays for acts or losses that

occur within a specified time period even if the claim is not made within that period. Contrast claims made policy.

Odd lot 1. A number of shares of stock less than the number usually traded as a unit. This is often fewer than one hundred shares. 2. The

Offer of proof 339

odd lot doctrine in workers’ compensation law is the principle that a person is totally disabled even if the person can perform limited services, as long as the accident or injury has removed the possibility that a reasonable market for these services exists.

Odium Widespread hatred or dislike.

Of age No longer a minor. A person who has reached the legal age to sue, vote, drink, etc.

Of counsel 1. A person employed as a lawyer in a case. 2. A lawyer who helps the primary lawyer in a case. 3. A lawyer who advises a law firm or who is a temporary member.

Of course As a matter of right. Actions that a person may take in a lawsuit, either without asking the judge’s permission, or by asking and getting automatic approval.

Of grace See grace.

Of record Entered on the proper formal records. For example, “counsel of record ” is the lawyer whose name appears on the court’s records as the lawyer in a case.

Of the essence Critically important. See time is of the essence. Off Postponed indefinitely.

Off point See on point.

Off-board Describes a stock or other securities transaction that does not take place through a national securities exchange. Off-board exchanges are either between private individuals or over-the-counter.

Offense A crime or other violation of the law. An offender is a person who has committed a crime.

Offer 1. Make a proposal; present for acceptance or rejection. An “offer ” in contract law is a proposal to make a deal. To be capable of acceptance, the offer must be communicated from the person making it to the person to whom it is made, and it must be reasonably definite and certain in its terms. 2. The thing proposed in no. 1 (a “thousand dollar offer for the car”). 3. Attempt the admission (see that word) of something into evidence in a trial.

Offer of compromise An offer to settle a dispute without admitting liability.

Offer of proof When a question to a witness has not been allowed by the judge, the lawyer who wanted to ask the question may tell the judge, out of the jury’s hearing, what the answer would have been. This offer of proof creates a more complete trial record for the possible appeal of the refusal to allow the question.

340 Offering

Offering A coordinated attempt to sell a specified amount of a company’s securities. A primary offering sells previously unsold, unissued securities (“new issues”). A secondary offering resells previously issued securities. A private offering is made to a small group of persons who know something about the company. A public offering is made to the general public.

Office 1. A power to act plus a duty to act in a certain way; for example, the office of executor of an estate. 2. Short for “public office,” the description of midand upper-level elected and appointed government jobs. 3. A bureau, department, or other government agency. The place where this bureau works.

Office audit See audit.

Officer of the court A court employee such as a judge, clerk, sheriff, marshal, bailiff, and constable (see these words). Lawyers are also officers of the court and must obey court rules, be truthful in court, and generally serve the needs of justice.

Officers The persons who run and control the day-to-day operations of an organization. The officers of a corporation include a president, usually vice presidents, a treasurer, and a secretary.

Official Gazette A weekly publication of the U.S. Patent and Trademark Office, formally listing patent and trademark applications and notices.

Official notice The same as judicial notice (see that word), except that it is granted by a hearing examiner, not a judge.

Official records Reports, statements, data files, etc., kept by a federal government agency. These may be used as evidence in a federal trial without need for the record keeper as a witness. The Official Records Act allows this same use of government documents in federal administrative proceedings. Some states have similar laws.

Officiousness Performing services or paying money where they are not needed, requested, or required. A person who does this may be called an officious intermeddler and denied payment for the actions.

Offset 1. Any claim or demand made to lessen or cancel another claim. When done in a lawsuit, it may be a setoff, a counterclaim, or a recoupment, depending on whether or not it is an entirely separate claim, whether it exceeds the original claim, and other factors. 2. An offset account is a bookkeeping device to balance one set of figures against another to make the books “come out even” at the end.

Old Age, Survivors’ and Disability Insurance The federal program, commonly known as “Social Security” and funded by employer and employee payments, that pays retirement, disability, dependent, and death benefits.

Oncale v. Sundowner Offshore Services 341

Oligarchy Government by a small group of people.

Oligopoly A situation in which a few sellers dominate the market for a particular product. Oligopsony, in contrast, is a situation in which a few buyers dominate the market.

Olograph See holograph.

Ombudsman (Swedish) 1. A person who acts as the government’s “complaint bureau” and who has the power to investigate official misconduct, help fix wrongs done by the government, and, sometimes, prosecute wrongdoers. 2. A similar person in a nongovernmental organization.

Omission 1. Leaving something out or the thing left out. 2. Failing to do something that should be done.

Omnibus (Latin) Containing two or more separate and independent things. For example, an “omnibus bill ” is a legislative bill containing proposed laws concerning two or more entirely different subjects.

Omnibus clause 1. A provision in a will (or in a judge’s order to distribute a dead person’s property) that gives out all property not specifically mentioned. 2. A provision in an auto insurance policy that extends insurance to all drivers operating the insured vehicle with the owner’s permission.

Omnis (or omne, omni, omnia, etc.) (Latin) All; as in the phrase “omnis definitio in lege periculosa ” (all legal definitions are dangerous).

Omnium The total value of several different things.

On account As a part payment for something bought or owed.

On all fours Two cases or decisions are “on all fours ” if they are generally similar and are exactly alike in all legally important ways.

On demand (or on call) Payable immediately when requested.

On its face See face.

On or about 1. On or about May first is a phrase used to avoid being pinned down to the exact May first date. 2. On or about the person means kept nearby, usually referring to a concealed weapon or hidden drugs.

On pain of At the risk of a specified punishment.

On point A law or prior case is on point if it directly applies to the facts of the present case.

On the merits See merits.

Oncale v. Sundowner Offshore Services (523 U.S. 75) The 1998 U.S. Supreme Court decision that Title VII of the federal civil rights laws prohibits same-sex workplace sexual harassment.

342 One

One “Someone by the name of” or “something called a.” A useless word when put in front of a word that needs no number; for example, “one Marcie Evans testified that . . .”

One person, one vote The rule, established in Reynolds v. Sims (377 U.S. 533 (1964)), that one house of a state legislature must be apportioned (and regularly reapportioned) by population, so that each person’s vote for a member of that house has approximately equal power.

Onerous 1. Unreasonably burdensome or one-sided. Compare with unconscionability. 2. In some countries (and in Louisiana) onerous means properly burdensome. In these countries, an onerous contract is one with benefits and burdens on both sides, and an onerous title is the right to property that is paid for or otherwise gained in exchange for something of value.

Onus probandi (Latin) Burden of proof.

Open 1. Begin. 2. Make visible or available. 3. Remove restrictions. 4. Visible or apparent. 5. With no limit as to time or as to amount. 6. For examples of these meanings, see the words following.

Open a judgment Keep a judgment from going into effect until a court can reexamine it.

Open account (or open credit) A “charge account” in which purchases (or loans) can be made without going through separate credit arrangements each time. This is often done on credit cards and “revolving charges” on which you can pay a part of what you owe each month on several different purchases. See also open-end mortgage.

Open and obvious doctrine The principle that clear dangers do not normally support lawsuits for injuries due to these dangers.

Open bid An offer to do work or supply materials (usually in the construction business) that reserves the right to lower the bid to meet the competition.

Open court 1. A court that is formally open for business that day. 2. A court that allows public spectators.

Open fields doctrine The principle that a search warrant is not usually required for a search of an open area far from an occupied building. See also curtilage.

Open listing See listing.

Open mortgage A mortgage that can be paid off without a penalty at any time before maturity (the time it ends). See also open-end mortgage and closed-end mortgage.

Operative words 343

Open order An order placed by a customer with a broker to buy stock, other securities, or commodities at or below a certain price. The order remains active until canceled.

Open policy An unvalued policy. See valued policy.

Open price term An unspecified price in a contract. Although the failure to specify a price may invalidate a contract, an open price term will not invalidate a sale of goods between businesses if the price is based on a standard market indicator or if the persons intend “reasonable price” to be set at time of delivery.

Open shop A business where nonunion persons may work.

Open-end company A mutual fund.

Open-end contract A requirements contract.

Open-end mortgage A mortgage (see that word) allowing future borrowing (often of unspecified amounts but with a total dollar ceiling) against the same collateral. See also open account, open mortgage, and closed-end mortgage.

Open-end settlement An agreement under which workers’ compensation benefits are paid until a person can work again.

Opening statements The introductory statements made at the start of a trial by lawyers for each side. The lawyers typically explain the version of the facts best supporting their side of the case, how these facts will be proved, and how they think the law applies to the case.

Operating Relating to the running of a business. Operating expenses include such things as rent and electricity required to keep a business running normally. Operating profit is sales minus the cost of the goods sold and operating expenses. Net operating assets is the worth of assets (such as machines) used in the ordinary course of business minus the business tax deductions taken for depreciation on the assets and minus business bad debts. Net operating income (or loss) is income (or loss) minus depreciation deductions taken for operating assets, but not yet accounting for any interest gained or income taxes paid. Operating margin is net operating income divided by sales. Also, an operating lease is a short-term business lease that can be canceled.

Operation of law Describes the automatic effect some laws have on rights and responsibilities. For example, the wife of a man who dies without a will may gain ownership of her husband’s property (under intestate succession laws) by operation of law without taking any action.

Operative words (or part) That part of the text of a document (such as the granting clause of a deed) by which rights are actually created

344 Opinion

or transferred. The legal “heart” of a document, as opposed to its introduction, explanations, etc.

Opinion 1. A judge’s statement of the decision he or she has reached in a case. 2. A judge’s statement about the conclusions of that judge and other judges who agree with the judge in a case. A majority opinion is written when over half the judges in a case agree about both the result and the reasoning used to reach that result. A plurality opinion is written when a majority of the judges agree with the result, but not with the reasoning. A concurring opinion agrees with the result, but not the reasoning. A dissenting or minority opinion disagrees with the result. (Concurring, dissenting, and minority opinions are all separate opinions.) A per curiam opinion is unanimous and anonymous. A memorandum opinion is unanimous and briefly states only the result. 3. A document prepared by a lawyer for a client that gives the lawyer’s conclusions about how the law applies to a set of facts in which the client is interested.

Opinion evidence Evidence of what a witness thinks, believes, or concludes about facts, rather than what the witness saw, heard, etc. Opinion evidence is usually accepted only from an expert witness (see that word).

Opportunity cost The profit you could get by investing your money, rather than putting it into a particular project. See hurdle rate.

Oppression 1. Unconscionability. 2. Duress. 3. Harm (usually bodily harm) done by a public official acting beyond the scope of authority.

Opprobrium Shame or disgrace.

Option 1. A contract in which one person pays money for the right to buy something from, or sell something to, another person at a certain price and within a certain time period. For example, a commodity option gives a person the right to buy (a “call ”) or the right to sell (a “put ”) a certain commodity (such as a ton of rice) at a certain price (the “striking ” price) by a certain time. The option holder pays a fee (a “premium ”) for this right and may use (“exercise ”) it or not depending on market conditions. A combined right to either buy or sell is called a straddle. And an option sold by a person who owns no stock or commodities to back it up is called a naked option. 2. Any right to choose, such as the right to pick from a list of ways an annuity benefit can be paid.

Optional bond A callable bond.

Optional writ A show cause order.

Organic 345

Oral argument The presentation of each side of a case before an appeals court. The presentation typically involves oral statements by a lawyer, interrupted by questions from the judges.

Oral contract A contract that is not entirely in writing or not in writing at all. (Similarly, an oral will is either partly in writing or not in writing at all.)

Ordeal An ancient form of trial in England by which God was supposed to make the decision. Ordeals were by fire or water and uniformly nasty. The cold water ordeal, for example, involved throwing a tied-up person into a pond. Floating meant guilt (and often death); sinking meant innocence (and often death).

Order 1. A written command or direction given by a judge. For example, a restraining order is a judicial command to a person to temporarily stop a certain action or course of conduct. 2. A command given by a public official. 3. “To the order of ” is a direction to pay something. These words (or “pay to the bearer”) are necessary to make a document a negotiable instrument (see that word). A document with these words on it is called order paper. 4. For “order nisi,” see nisi. 5. “Order of the coif” is an award, often for law school achievement. 6. Instructions to buy or sell something. In stock sales, for example, a “day order ” is an instruction from a customer to a broker to buy or sell a stock on one particular day only; a “limit order ” is an instruction to buy only under a certain price or sell only over it; a “market order ” is an instruction to buy or sell right away at the current market price; a “scale order ” is an instruction to buy or sell a certain amount of stock at each of several price levels; and a “split order ” is an instruction to buy or sell some stock when it reaches one price and some when it reaches another. For stop order, see that word.

Ordinance 1. A local or city law, rule, or regulation. 2. A name occasionally used for an important statute, such as the Ordinance of 1787 (providing for the government of the Northwest Territory).

Ordinary Regular or usual. This word means the same thing in most legal and nonlegal contexts. In tax law, however, ordinary income means income from business profits, wages, interest, dividends, etc., as opposed to income from the sale of things. See capital gains tax.

Organic Basic. For example, an organic act or statute is a law that gives self-government to a geographical area or that establishes an administrative agency, and organic law is the basic, fundamental law of a government, such as its constitution.

346 Organization

Organization Any group of persons with legal or formal ties.

Organized labor Workers represented by labor unions.

Original document rule The rule that the best evidence (see best evidence rule) of what a document says is the original document. A copy may not be acceptable for use in court, especially if the original is available.

Original jurisdiction The power of a court to take a case, try it, and decide it (as opposed to appellate jurisdiction, the power of a court to hear and decide an appeal).

Original package doctrine The federal rule that a state can tax an imported item only after the original package is broken because this takes the item out of interstate commerce.

Origination fee A charge for finding, placing, or giving a loan.

Orphans court Probate court.

Ostensible Apparent. For ostensible authority, see apparent authority.

Ouster Throwing someone off land who has a right to possess it. [pronounce: ow-ster]

Outcome test When a case is in federal court solely because of diversity of citizenship (see that word), the result should be the same as it would be in the proper state court. If it is not, an appeals court may decide that the trial judge used the wrong law to decide the case or otherwise acted incorrectly.

Out-of-court settlement A private compromise or agreement that ends a lawsuit without official help from, or orders by, the judge.

Out-of-pocket 1. Describes a small cash payment. 2. Describes a loss measured by the difference between the price paid for an item and the (lower true) value of that item. The “out-of-pocket rule” allows this to be the measure of damages when something has been bought as a result of fraudulent statements. 3. Describes payments that must be made by a contractor before the job is completed or describes all costs except the contractor’s own time.

Output contract An agreement in which a manufacturing company agrees to sell everything it makes to one buyer, and the buyer agrees to take it all. This is a valid contract even though the amounts are indefinite. Compare with requirements contract.

Outs Conditions or promises which, if not complied with by a customer, allow a banker or a company to get out of a deal.

Outside director See director.

Overrule 347

Outside salesperson A person whose full-time job is making sales from a location different from the employer’s place of business.

Outstanding 1. Still unpaid; not yet collected. 2. Remaining in existence; not brought in or gathered up.

Outstroke A mineshaft that penetrates into someone else’s adjoining property.

Over 1. Continued from one time or day to another. For example, when a court case gets a continuance, the case is said to be “over ” (to another day, to an unspecified time, etc.). 2. Shifting or passing on from one person or thing to another. For example, a “gift over ” or “estate over ” takes place when someone leaves property in a will first to one person and then to another person (if the first one should die after a certain number of years, etc.). 3. See the “over” words that follow and see over-the-counter.

Overbreadth A law will be declared void for overbreadth if it attempts to punish speech or conduct that is protected by the Constitution and if it is impossible to eliminate the unconstitutional part of the law without invalidating the whole law.

Overdraft (or overdraw) Taking out more money by check from a bank account than you have in the account.

Overhead 1. Fixed charges (see that word) and all those costs that cannot be allocated to a particular department or product. 2. An overhead rate is calculated by apportioning fixed costs to the costs of producing products and services.

Overissue Putting out more shares of a company’s stock than are permitted by the company’s incorporation papers or by the law.

Overlying right A landowner’s right to take and use water from under the surface of his or her own land.

Overreaching Taking unfair commercial advantage by fraud or unconscionability.

Override 1. Set aside; for example, the U.S. Congress may override the president’s veto of a bill by a two-thirds vote of both houses, causing the bill to become law without presidential signature. 2. A commission paid to a supervisor when an employee makes a sale or a commission paid to a real estate (see that word) agent when a landowner sells directly to a purchaser who was found by the agent before the listing was ended.

Overrule 1. To reject or supercede. For example, a case is overruled when the same court, or a higher court in the same system, rejects the legal principles on which the case was based. This ends the case’s