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Daniel Oran - Oran's Dictionary of the Law

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368 Plea bargaining

Plea bargaining Negotiations between a prosecutor and a criminal defendant’s lawyer, attempting to resolve a criminal case without trial. For example, during plea bargaining, the defense lawyer may suggest that the defendant plead guilty in exchange for the prosecutor’s agreeing to accept a plea to a less serious charge, to drop some charges, or to promise not to request a heavy sentence from the judge.

Plead 1. Make or file a pleading or a plea. 2. Argue a case in court. Pleading 1. The process of making formal, written statements of each

side of a civil case. First the plaintiff submits a paper with “facts” and claims; then the defendant submits a paper with “facts” (and sometimes counterclaims); then the plaintiff responds; etc., until all issues and questions are clearly posed for a trial. 2. A pleading is any one of the papers mentioned in no. 1. The first one is a complaint, the response is an answer, etc. The pleadings is the sum of all these papers. Sometimes, written motions and other court papers are called pleadings, but this is not strictly correct. 3. The old forms of common law pleadings (which were so rigid that one small technical mistake could lose the suit) included a declaration, defendant’s plea, replication, rejoinder, surrejoinder, rebutter, surrebutter, etc. See theory of pleading doctrine. 4. In modern legal practice under the Federal Rules of Civil Procedure, pleading is no longer inflexible, and pleadings may be amended freely to fit facts as they develop. Modern pleadings include complaints, answers (which may include counterclaims or cross-claims), replies (or answers) to these claims, and third party complaints and answers.

Plebicite A vote by the people for or against a proposed new major law or expressing an opinion on a major public issue.

Pledge Handing over physical possession of a piece of personal property (such as a radio) to another person, who holds it as security (see that word) for a debt.

Plenary Full; complete; of every person or every thing. For example, plenary jurisdiction is the full power of a court to make decisions about all the people and property involved in a case, and a plenary session is a meeting of all the members of a legislature or other large group.

Plenipotentiary Possessing full powers. Ministers plenipotentiary are diplomatic representatives slightly below the rank of ambassador.

Plessy v. Ferguson (163 U.S. 537) The 1896 U.S. Supreme Court decision that permitted racial segregation in “separate but equal” facilities. This case was not overturned until the 1954 Brown decision.

Police power 369

Plottage The area of a piece (plot) of land. Plottage value (plottage, for short) refers to the extra value two or more pieces of land may have because they are side-by-side and can be sold as a unit.

Plow back Reinvest profits into a business rather than pay them out to owners.

Plurality The greatest number. For example, if Jane gets ten votes and Don and Mary each get seven, Jane has a plurality (the most votes), but not a majority (more than half of the votes).

Pluries Many. Many interrelated things.

Pocket part An addition to a lawbook that updates it until a bound supplement or a new edition comes out. It is found inside the back (or occasionally, front) cover, secured in a “pocket,” and should always be referred to when doing legal research.

Pocket veto See veto.

Point 1. An individual legal proposition, argument, or question raised in a lawsuit. Points and authorities is the name for a document prepared to back up a legal position taken in a lawsuit (for example, to support or oppose a motion). 2. One percent. A term used by mortgage companies to describe an initial charge made for lending money, and by bond traders for one percent of face value. 3. One unit of measure. For example, if a stock goes up in price one dollar, it has gone up “one point,” since stocks are usually expressed in dollar amounts; and a speeding violation might cost a driver “three points” towards the suspension of a driver’s license (when licenses are taken away for the accumulation of a certain number of “points” that reflect the severity of driving tickets). Also see basis point. 4. A point of error is an error used as the basis for an appeal.

Point reserved See reserve decision.

Poison pill Any of several tactics used by a company to make itself less attractive as a takeover target.

Poisonous tree See fruit of the poisonous tree doctrine.

Polar star rule The principle that the intent of a document should be determined from the document alone unless it violates laws or public policy. See also four corners rule.

Police court A local court with widely different functions in different places. Police courts usually have the power to handle minor criminal cases.

Police power The government’s right and power to set up and enforce laws to provide for the safety, health, and general welfare of

370 Policy

the people; for example, police power includes the power to license occupations such as hair cutting.

Policy 1. The general operating procedures and goals of an organization. 2. The general purpose of a statute or other law. 3. A type of lottery that involves betting on numbers; a “numbers game.” 4. Public policy is the general good of the state and its people. A contract is “against public policy” if carrying out contracts of that type is considered harmful to the public. 5. For various types of insurance policies, see insurance.

Political crime (or offense) A crime against the government, such as treason or sedition. It is often a crime of violence against the established order. Political crimes are usually excluded from extradition treaties.

Political question An issue that a court may refuse to decide because it concerns a decision properly made by the executive or legislative branch of government and because the court has no adequate standards of review or no adequate way to enforce the court’s judgment. Most political questions are international diplomatic issues (such as whether or not a foreign country is an independent nation) that are considered by the federal courts to be best left to the president of the United States.

Political rights Rights concerning a citizen’s participation in government; for example, the right to vote.

Poll tax A tax, now illegal, paid to vote or for the right to vote. Polling the jury Individually asking each member of a jury what his or

her decision is. This is done by the judge, at the defendant’s request, immediately after the verdict.

Polls A challenge to the polls is an objection to the selection of a particular juror, made before the jury (often a grand jury) convenes.

Polygamy Having more than one wife or husband. It is a crime in the

U.S.

Polygraph A lie detector.

Ponzi scheme A fake investment company in which fake profits are paid from money paid in, so more investments, and more investors, are lured in.

Pool 1. Join together resources of individuals or companies in a common commercial venture. 2. Describes an agreement between companies to not compete and to share profits. These types of arrangements are usually illegal under antitrust acts. 3. A pot of money bet on a horse race, a football game, etc.

Possession is nine-tenths of the law 371

Pooling of interest Directly combining the balance sheets of two companies when the companies merge. (This accounting procedure disregards goodwill as a measure of the difference in company values.)

Popular Belonging to the people.

Popular name tables Reference charts that cross-reference the common name of a statute with its official name and number. For example, you could find the official name and citation of the “Sherman Act” from a popular name table.

Popular sense The meaning that persons familiar with the subject area of a statute would give to it. This is not necessarily the commonlanguage meaning of the words.

Pornographic Depicting sexual behavior to cause sexual excitement. Non-obscene (see that word) pornography is protected by the First Amendment, but child pornography is not.

Port authority Various federal, state, or interstate agencies that regulate boat traffic, promote port business, and maintain other services such as airports, tollroads, bus terminals, etc.

Port of entry A port where immigrants and imported goods may enter the country and where customs offices are located.

Portal-to-Portal Act (29 U.S.C. 251) A 1947 federal law requiring payment for some types of employees’ time getting to and from work.

Portfolio All the investments (usually stocks and other securities) held by one person or organization.

Position classification Formal job categorization and description that determines job salaries, duties, and powers.

Positive evidence See direct evidence.

Positive law Law that has been enacted by a legislature.

Posse comitatus (Latin) “The power of the state.” The group of citizens who may be gathered by the sheriff or other law officer to help enforce the law, usually on an emergency basis. It is abbreviated “posse.

Possession Control of property. For example, a tenant may have possession of land, and someone with an illegal drug in a pocket has possession.

Possession is nine-tenths of the law 1. The principle that to get a court to give you something held by another person, you must have a strong legal title to it. 2. The perception that court procedures are too costly and cumbersome to get something held by someone else even if you have a legal title to it. 3. The perception that forcible possession may defeat legal right.

372 Possessory action

Possessory action A lawsuit to gain control of property, as opposed to one that attempts to get legal ownership to property. For example, an eviction is a possessory action.

Possibility of issue See fertile octogenarian rule.

Post 1. Announce something to the public by putting up signs in prominent places; for example, giving notice of a legal proceeding by posting in town hall, announcing construction by posting a permit, or announcing that land or water is off limits to hunting by posting signs around the borders. 2. Put something in the mail. 3. See posting.

Postconviction remedies (or relief) Procedures for prisoners to challenge their convictions or sentences. These procedures include asking the convicting court to correct the sentence, habeas corpus petitions, and other forms of court action. There are federal and state laws that apply to this area.

Postdate To put a date on a document that is later than the date the document is signed.

Posthumous After death. For example, a posthumous child is one born after the death of the father.

Posting 1. Writing down an entry (such as the amount of money spent for a lamp) into an account book or writing down a financial entry by transferring information from an original record or notation. 2. The procedure a bank follows when paying a check (verifying the signature and that the account has sufficient funds, charging the account, etc.). 3. Placing a notice in a public place, such as a place legally specified for service of process, or placing a notice at the border of a private property to forbid hunting.

Postmortem (Latin) “After death.” A postmortem examination (postmortem, for short) is an autopsy (see that word).

Postnuptial agreement An agreement between spouses, such as a separation agreement or a property settlement agreement. Compare with antenuptial agreement.

Post-obit “After death.” Describes an agreement in which a borrower of a sum of money promises to repay a larger sum after the death of someone from whom the borrower expects an inheritance.

Postponement 1. Subordination of a lien, mortgage, or judgment when it would normally have priority over the lien, mortgage, or judgment now given priority. 2. A rescheduling, such as a continuance of a court proceeding.

Post-trial discovery Information gathering (such as taking a deposition) after a trial but before an appeal, often done to prepare for a possible retrial.

Praecipe 373

Poundage 1. A charge imposed on an item according to its weight. 2. Impoundment, or an amount paid to end an impoundment. 3. Describes fees paid to a sheriff or other public official who conducts a court-ordered execution on property. The fees are usually a percentage of the property’s value or selling price.

Pourover A will that gives some money or property to an existing trust is called a pourover will, and a trust that does the same thing is a pourover trust.

Poverty affidavit A document signed under oath that a person is poor enough to qualify for public assistance, a free lawyer, waiver of court fees, etc.

Power 1. The right to do something. 2. The ability to do something. 3. A combination of no. 1 and no. 2. For example, a power of acceptance is the right and ability of a person who has been made an offer to agree to the offer’s terms and create a binding contract. For specific powers, such as the commerce power under the commerce clause and reserved powers under reserved, see those words. 4. A power coupled with an interest is a power to take an action that affects something in which you have an interest (see that word). This is a stronger right than a power or interest alone.

Power of appointment The power to decide who gets certain money or property or how it will be used. This power is usually given to a specific person in a deed or will.

Power of attorney A document authorizing a person to act as attorney in fact for the person signing the document.

Power of sale The right of a mortgage holder or mortgage trustee to sell the real estate secured by the mortgage if payments are not made.

Pp. Pages.

Practicable A stuffy word meaning “feasible”; can be done.

Practice 1. Custom, habit, or an act regularly repeated. 2. Formal court procedure; the way a lawsuit is taken to and through court as opposed to what it is about. For example, a practice manual is a book of forms and procedures to use in pleading and court practice, and practice rules (or acts) are rules of court practice such as the Federal rules (see that word). 3. Engage in a profession, such as law. 4. Doing things that are only permitted to be done by a member of a profession. For example, giving legal advice or arguing a case in court is the practice of law.

Praecipe (Latin) A formal request that the court clerk take some action. Any motion that can be granted by the signature of a court clerk

374 Praedial

without a judge’s approval. A lawyer can “enter an appearance” in a case by praecipe. [pronounce: pres-i-pee]

Praedial 1. “From the ground.” Crops, trees, and other plants. 2. A praedial servitude is a requirement put on one piece of land that it may be used in some way by the owner of another piece of land. [pronounce: pred-i-al]

Prayer Request. That part of a legal pleading (such as a complaint) that asks for relief (help, money, specific court action, an action from the other side, etc.).

Preamble An introduction (usually saying why a document, such as a statute, was written).

Preappointed evidence Proof that is required in advance. For example, a statute may say that proof of a certain crime requires preappointed evidence of a specific set of facts.

Precatory Expressing a wish; advisory only; not legally binding in most situations. [pronounce: prek-a-tory]

Precedent 1. A court decision on a question of law (how the law affects the case) that is binding authority (see that word) on lower courts in the same court system for cases in which those courts must decide a similar question of law involving similar facts. (Some legal scholars include as precedent court decisions that are merely persuasive authority.) The U.S. court system is based on judges making decisions supported by past precedent, rather than by the logic of the judge alone. See stare decisis. 2. Something that must happen before something else may happen; see condition precedent. [pronounce: press-i-dent]

Precept 1. A command by a person in authority, usually in the form of a written order or warrant from a judge to a peace officer. 2. A rule of conduct.

Precinct A police or election district within a city or county.

Precipe See praecipe.

Preclusion order A judge’s order, issued when one side in a lawsuit doesn’t produce something requested in discovery, which forbids that side from making (or opposing) legal arguments based on what was not produced.

Precognition The examination of a witness before trial.

Precontract A contract that keeps you from entering into a similar contract with someone else.

Predatory intent Describes lowering prices (usually to below cost) solely to put a competitor out of business.

Prejudice 375

Predial See praedial.

Predisposition Previous tendency or desire. See entrapment.

Pre-emption 1. Describes the first right to buy something. For example, pre-emptive rights are the rights of some stockholders to have the first opportunity to buy any new stock the company issues. Also see right of first refusal. 2. Describes the first right to do anything. For example, when the federal government pre-empts the field by passing laws in a subject area, the states may not pass conflicting laws and sometimes may not pass any laws on the subject at all.

Preexisting duty rule The rule that the promise or performance of something already promised, or the threat of nonperformance, is not consideration for a contract change.

Preference 1. A creditor’s right to be paid by a debtor before nonpreferred creditors are paid. 2. The act of an insolvent (broke) debtor in paying off a creditor more than a fair share of what is left. For example, if John owes Mary ten dollars and Don ten dollars, but has only ten dollars left and pays it all to Mary, this is a preference. If a debtor gives a creditor preference shortly before going into bankruptcy, the bankruptcy court may be able to get that money back so that it can be divided fairly.

Preferential shop A place of business where union members will be hired first and laid off last.

Preferential voting An election in which voters may (or must) list first, second, third, etc., choices. If no one gets over half the first place votes, second place choices are added in (then, if needed, third place, etc.) until someone gets over 50 percent of the votes.

Preferred risk A person who pays lower premiums for insurance (because of a good safety record, not smoking, etc.).

Preferred stock See stock.

Prehire agreement An agreement by which a union may bargain with an employer even though it has not proved that it represents a majority of the employees.

Prejudice 1. Bias; a preconceived opinion. Leaning towards one side in a dispute for reasons other than an evaluation of the justice of that side’s position. 2. A judge’s bias for or against a party in a case, rather than an opinion about the subject of the case. 3. If a case is dismissed with prejudice, it cannot be brought back into court again. 4. Substantially and improperly harmful to rights. For example, prejudicial error is serious enough and wrong enough to be appealed, and prejudicial publicity includes news reports that deprive a defendant of a fair trial.

376 Preliminary complaint

Preliminary complaint The process in some states by which a court can conduct a probable cause (see that word) hearing for binding over a criminal defendant to another court that has the power to hold criminal trials. See preliminary hearing.

Preliminary evidence 1. Those facts needed to begin a hearing or trial; not necessarily those needed to ultimately win. 2. Facts required to be shown before other things are admissible.

Preliminary hearing 1. The first court proceeding on a criminal charge, in federal courts and many state courts, by a magistrate or a judge to decide whether there is enough evidence for the government to continue with the case and to require the defendant to post bail or be held for trial. It is also called a preliminary examination, probable cause hearing, and bind over hearing. 2. In some states, a preliminary hearing is a court session for hearing motions before the actual trial.

Preliminary injunction See injunction.

Premeditation Thinking about something before doing it; thinking in advance about how to commit a crime.

Premises 1. Buildings and the surrounding land under the same control. 2. The part of a document that explains the “who, what, where, how, and when” of a transaction and precedes the words actually putting the transaction into effect. 3. The basis for a logical deduction. The facts or arguments upon which a conclusion is based.

Premium 1. The money paid for insurance coverage. 2. An extra amount of money paid to buy something; a bonus. 3. The amount by which a stock or other security sells above its par (face or nominal) value.

Prenuptial agreement An antenuptial agreement.

Prepaid expense Any expense or debt paid before it is due or incurred. Prepaying expenses may have special tax consequences.

Prepaid income Money received, but not yet earned or due. Prepaying income may have special tax consequences.

Prepaid legal services See panel.

Prepayment penalty Extra money that must be paid if you pay off a loan early. This is said to compensate the lender for lost interest or extra paperwork.

Preponderance of evidence The greater weight of evidence, not as to quantity (in number of witnesses or facts) but as to quality (believability and greater weight of important facts proved). This is a standard of proof, generally used in civil lawsuits. It is not as high a stan-

Presentment (or presentation) 377

dard as clear and convincing evidence or beyond a reasonable doubt.

Prerogative 1. A special privilege. 2. Special official power.

Prerogative writs Writs a court will issue only under special circumstances. These include, for example, writs of mandamus and habeas corpus (see those words). In most courts, prerogative writs are no longer used, but have been replaced by regular motions or complaints.

Prescription 1. A method of getting legal ownership of personal property (everything but land) by keeping it in your possession openly, continuously, and with a claim that it belongs to you. This must be done for a length of time set by state law. 2. The right of access to a path, a waterway, light, open air, etc., that is gained because of longtime continuous use. 3. An order or direction. Not proscription.

Presence “View,” “earshot,” or general observation. A police officer may make an arrest without a warrant if the offense was committed in the officer’s presence. This may include hearing a disturbance at a distance or finding out in many other direct, immediate ways that there was an offense committed and that a particular person probably did it.

Present 1. Immediate; for example, a present interest is a property interest that gives the owner the right to immediate use or possession of the property. Compare with future interest. 2. See presentment.

Present recollection revived (or present memory refreshed) See recollection.

Present sense impression A statement made during or immediately after an event by a participant or an observer. A person may testify about someone else’s present sense impression, even though such testimony is hearsay, in those courts that recognize the “present sense exception” to the hearsay rule.

Present worth (or value) The value of future payments, earnings, or debts discounted to their value today (as if a sum of money were invested today to make the future payments).

Presentence investigation An investigation by court-appointed social workers, probation officers, etc., into a criminal’s background to determine the criminal’s prospects for rehabilitation. The report of the investigation, which usually includes recommendations, is considered by a judge at a presentence (or sentencing) hearing.

Presentment (or presentation) 1. A grand jury’s charging a person with a crime that it has investigated itself (not by an indictment given to it by a prosecutor). In some states it is a suggestion to the prosecutor, not a formal charge. 2. Offering for payment a negotiable instrument, such as a check.

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