1A DIVORCE - See IRRETRIEVABLE BREAKDOWN.
1B DIVORCE - See IRRETRIEVABLE BREAKDOWN.
10-DAY HEARING - A hearing that must be held within ten days after a court enters a 209A abuse prevention order ex parte, at which the defendant has an opportunity to be heard prior to a decision by the court whether to issue a further order.
30A APPEAL - The Superior Court review of a decision by an administrative agency pursuant to G.L. c. 30A. These appeals are “on the record,” i.e., based on the record of the proceeding before the administrative agency. In most cases, no new evidence is permitted. The court has the authority to affirm, remand, vacate or reverse the agency's decision. The Housing Court also has 30A jurisdiction in certain cases.
58A HEARING - See DANGEROUSNESS HEARING.
72-HOUR HEARING - A court hearing that must be held within seventy-two hours after a court grants emergency custody of a child to the Department of Children and Families (or another agency or individual) in a care and protection case.
209A - G.L. c. 209A is the Commonwealth's abuse prevention statute, intended to protect people from domestic violence. It applies to "family or household members," defined as people who are or were married to each other, are or were residing in the same household, are or were related by blood or marriage, have a child together, or are or have been in a "substantive dating or engagement relationship." Under c. 209A, the court can issue a civil restraining order requiring, inter alia, that the defendant refrain from abusing the victim, vacate the home, have no contact with the victim and turn all firearms and firearms identification cards in to local police. Although the order, often referred to as a "209A" or a "209A order," is a civil order, violation of some provisions of the order is a crime. The District Court Department, the Boston Municipal Court Department, the Probate and Family Court Department and the Superior Court Department all have jurisdiction to issue orders under c. 209A, although the Superior Court Department cannot issue orders to people whose only connection to the batterer is a "substantive dating or engagement relationship." An ex parte order may also be issued in an emergency situation when the courts are not open.
210 CASE - See TERMINATION OF PARENTAL RIGHTS.
AB INITIO - Latin for "from the beginning," e.g., the marriage was void ab initio.
ABANDONMENT - In care and protection and termination of parental rights cases, leaving a child without any provision for support and without any person responsible for the care, custody and control of the child.
ABATE - To reduce, diminish or defer a wrong, grievance or cause of action.
ABROGATE - To annul or repeal a law, rule, or order.
ABSENTEE - See DISAPPEARED PERSON.
ABSOLUTE DATE - In divorce proceedings, the date the divorce becomes final, which is 90 days after entry of the judgment nisi. Parties are not legally divorced until the judgment nisi becomes absolute.
ABSTRACT OF CONVICTION - See REGISTRY ABSTRACT.
ABSTRACT OF TITLE - A condensed history of the ownership of land, based on documents in public records, used to determine or establish present ownership.
ABUSE OF DISCRETION - See STANDARD OF REVIEW.
ABUSE PREVENTION ORDER - See RESTRAINING ORDER, 209A.
ACCESSORY - Someone who knowingly and intentionally helps someone else commit or conceal a crime, before or after the commission of that crime. In Massachusetts, the crime has to be a felony.
ACCOMPLICE - Someone who knowingly participates or assists in the commission of a crime by someone else.
ACCOUNT - A statement of debits and credits or of receipts and payments. In probate, an annual report on the financial status of an estate.
ACCORD AND SATISFACTION -
- In civil cases: A method of settling a case in which a new contract, agreed to and performed by the parties, is substituted for the old contract which was the subject of the litigation.
- In criminal cases: In a misdemeanor case, an agreement between the defendant and he victim, often for restitution, which ends the prosecution of the case.
ACCOUNT ANNEXED - In a summary process eviction case, the rent for which the landlord is suing.
ACQUIT, ACQUITTAL - See NOT GUILTY.
ACT - A law or statute enacted by the State Legislature.
ACTION - See CASE.
- Assistant District Attorney. See DISTRICT ATTORNEY.
- See AMERICANS WITH DISABILITIES ACT.
AD DAMNUM - Latin for "to the damage." The amount of the plaintiff's claim of damages in a civil case.
AD VALOREM - Latin for "according to the value." For example, an ad valorem tax on an automobile is one where the amount of tax depends on the automobile's value.
ADDITUR - The power of a trial court to increase the amount of a damage award made by a jury as an alternative to granting a new trial.
ADJOURN (v.); ADJOURNMENT (n.) - To postpone or put off a trial, hearing or session of court indefinitely or until a later stated time.
ADJUDICATE - To make a final decision in a legal matter through the judicial process.
- In criminal cases: The formal and final judicial finding of "guilty" or "not guilty" (or "delinquent" or "not delinquent" in a juvenile case) by the court.
- In civil cases: The judgment or decree issued by the court.
- In care and protection cases: The determination by the court whether a child is in need of care and protection.
ADJUDICATORY PROCEEDING - A hearing before an administrative agency to determine rights, duties or privileges under a statute or regulation.
ADMINISTRATIVE AGENCY - A department, board, commission, division or authority of the executive branch of the government responsible for administering the law in a particular area and authorized to make regulations and/or conduct adjudicatory proceedings.
ADMINISTRATIVE HEARING OR PROCEEDING - See ADJUDICATORY PROCEEDING.
ADMINISTRATIVE INSPECTION WARRANT - A warrant issued for the inspection of a place where illegal items, such as controlled substances, hazardous materials, or other contraband, or records pertaining to them, are kept.
ADMINISTRATIVE LAW - A body of law created by the rules, regulations, orders and decisions of administrative agencies.
ADMINISTRATIVE LAW JUDGE (ALJ) - An executive branch official who presides at adjudicatory hearings of administrative agencies, formerly known as a hearing officer. Administrative law judges are not judges within the judicial branch.
ADMINISTRATIVE OFFICE OF THE TRIAL COURT (AOTC) - The AOTC was headed by the Chief Justice for Administration and Management (the CJAM) and was responsible for both managing and providing services to the seven Departments of the Trial Court, now known as the Executive Office of the Trial Court (EOTC). See OFFICE OF COURT MANAGEMENT, EXECUTIVE OFFICE OF THE TRIAL COURT.
ADMINISTRATIVE ORDERS - Orders that regulate court procedures, issued by the Executive Office of the Trial Court, a Trial Court Department, the Appeals Court or the Supreme Judicial Court.
ADMINISTRATIVE PROCEDURES ACT - A law governing practice and procedure before executive branch administrative agencies.
ADMINISTRATOR (MALE), ADMINISTRATRIX (FEMALE) - In probate law prior to the adoption of the Uniform Probate Code in Massachusetts, a person appointed by a court to administer the estate of a person who dies intestate. Since the adoption of the Uniform Probate Code in 2011, this person is referred to as a "personal representative."
ADMISSIBLE EVIDENCE - Evidence that meets all of the requirements to become part of the record in a case and so be considered by the judge and/or the jury in reaching a verdict.
ADMISSION - In a criminal prosecution, a defendant's acknowledgment of a fact or facts tending to prove guilt. Unlike a confession, an admission falls short of acknowledging all of the essential elements of the crime charged.
ADMISSION TO SUFFICIENT FACTS - A form of plea in which the defendant in a criminal case admits that the Commonwealth can produce sufficient evidence to support a conviction on the offense charged in the criminal complaint.
ADOPTION - The act by which a person takes the child of another into his or her family and makes the child, for all legal purposes, his or her own child.
ADOPTION AGENCY - A private agency licensed by the Commonwealth to place children in pre-adoptive homes and sponsor adoptions.
ADOPTION SURRENDER - A written unconditional consent to the adoption of a child by a person (usually a parent) whose agreement to the adoption is required by law. The person consenting gives up all legal rights to the child, including the right to notice of any legal proceeding involving the child. The surrender must meet the requirements of G.L. c. 210, '2. An adoption surrender is not required if parental rights have been terminated by the court.
ADOPTION AND SAFE FAMILIES ACT (ASFA) - A federal statute adopted in Massachusetts which makes the Department of Children and Families and the court responsible for making sure that children are safe and that children in foster care are moved to permanent placements as soon as possible. The act requires the court to determine whether the Department of Children and Families made reasonable efforts to avoid removing a child from his or her home, to make a plan for a permanent home for foster children within twelve months of placement in foster care, and to oversee the Department's efforts to carry out the permanent plan for the child. Often referred to as "ASFA."
ADULT - Someone who is no longer a minor. In criminal cases, until recently, an adult is a person age seventeen or older. In September, 2013, the legislature raised the age of adulthood to eighteen in criminal proceedings.
ADR - See ALTERNATIVE DISPUTE RESOLUTION.
ADVERSARIAL OR ADVERSARY PROCEEDINGS - Proceedings involving two (or more) opposing parties.
ADVERSE POSSESSION - A means of acquiring title to land belonging to another by actually, openly, notoriously, exclusively and adversely using it without the permission of the owner for a legally fixed period of time, twenty years in Massachusetts.
ADVISORY OPINION - A legal opinion given by the justices of the Supreme Judicial Court to the Senate, the House of Representatives, the Governor or the Governor’s Council "upon important questions of law, and upon solemn occasions." Massachusetts Constitution, Chapter III, Article II. Advisory opinions do not result from cases that have been litigated and appealed, so they are not binding precedent in other cases as other appellate decisions are.
AFFIANT - Someone who makes and signs an affidavit under penalties of perjury.
AFFIDAVIT - A written statement of fact made under penalties of perjury.
AFFIDAVIT DISCLOSING CARE AND CUSTODY PROCEEDINGS - A Trial Court form completed by the plaintiff in any case that may affect the custody of a minor (such as a custody proceeding, a care and protection proceeding, or a 209A proceeding.) The purpose of the affidavit is to let the court know about any other case in any court that involves the same minor. Often referred to as a "care and custody affidavit" or an "affidavit of disclosure."
AFFIDAVIT OF DISCLOSURE - See AFFIDAVIT DISCLOSING CARE AND CUSTODY PROCEEDINGS.
AFFIDAVIT OF INDIGENCY - An affidavit, usually made on a court form, stating that a person’s income is below a level set by law and that he or she is therefore unable to pay certain fees and other expenses related to the case.
AFFINITY - A close relationship that results from marriage rather than from blood, such as the relationship a spouse has to his or her in-laws.
AFFIRMATION (n.), AFFIRM (v.) - To confirm or reassert.
- A ruling by an appellate court that the judgment of a lower court is proper and should not be overturned.
- A solemn and formal declaration that a statement is true, made under the penalties of perjury but not generally referring to a deity. In certain cases, an affirmation may be substituted for an oath.
AFFIRMATIVE DEFENSE - A complete or partial defense to a civil lawsuit or criminal charges that affirms the complaint or charges but raises additional facts which, if proven by the defendant, would defeat or reduce a claim even if the complaint or charges are all proven. For example, in a civil case, an affirmative defense might be that the statute of limitations has passed and so even if everything the plaintiff says is true, the case was brought to court too late. In a criminal case, examples of affirmative defenses are self-defense, insanity, and the statute of limitations. Affirmative defenses must be raised early in the case in the responsive pleadings (e.g., the answer) or be lost altogether.
AGE OF MAJORITY - The age at which a person is considered an adult. The age of majority is generally age eighteen but not always. For example, a person must be twenty-one to purchase alcoholic beverages. See ADULT.
AGENT - A person with authority to act on behalf of someone else, known as the principal.
AGREEMENT - A written document agreed to and signed by all parties in a case which addresses issues in the case and requires the parties to do specific things. It usually becomes part of a judgment or order, which makes it enforceable by the court if a party violates it.
AKA - Also Known As.
ALIAS - Another name a person has used or by which he or she has been known, sometimes used to conceal one's true identity from others.
ALIAS EXECUTION - A duplicate of the judgment in a civil case which replaces the original document if it is lost.
ALIMONY - See SPOUSAL SUPPORT.
ALJ - See ADMINISTRATIVE LAW JUDGE.
ALLEGATION - A declaration by a party to a lawsuit, made in a pleading and stating what the party intends to prove or, more generally, a claim that is yet to be proven.
ALLOWED - Approved, accepted, sanctioned or authorized by the court, e.g., the motion was allowed.
ALTERNATE JURORS - Jurors selected in addition to the number required to decide a case, who hear all of the evidence along with the regular jurors and are available to replace any regular juror who cannot continue hearing the case or participate in deliberations. The alternates are not identified as such until immediately before the jury starts to deliberate.
ALTERNATIVE DISPUTE RESOLUTION (ADR) - A process used to resolve a dispute without litigating it in court, often referred to as ADR. Specific forms of alternative dispute resolution include arbitration, case evaluation, conciliation, dispute intervention, mediation, mini-trial, summary jury trial and early intervention.
ALTERNATIVE SERVICE - A method other than personal service of notifying the defendant or respondent in an action that a complaint or petition has been filed. Alternative service is usually done by publishing a notice in the newspaper or by mail.
AMENDMENT - A change to a pleading, document or statute.
AMERICANS WITH DISABILITIES ACT (ADA) - A federal statute establishing the rights of individuals with disabilities.
AMICUS CURIAE - Latin for "friend of the court." A person or organization who is not a party to a case but who is interested in or affected by its outcome and so is allowed by the court to make an argument or file a brief to assist the court in deciding the case.
ANCILLARY SUIT OR PROCEEDINGS - A case or proceeding growing out of and supplementary to another case, such as a case seeking enforcement of a judgment.
ANNOTATIONS - Brief summaries of cases interpreting statutes. These summaries are found in annotated collections of statutes, such as the Massachusetts General Laws Annotated. They tell the reader how the appellate courts have interpreted the statute in cases involving it.
ANNUL - To make void or of no effect. An annulled judgment or judicial proceeding has no force or authority.
ANNULMENT - An order declaring that a marriage or other agreement or contract was invalid or not legal. For example, while a divorce terminates a legal marriage, an annulment establishes that a legal marriage never existed.
ANSWER - In a civil case, the pleading in which the defendant responds to the complaint of the plaintiff.
ANTENUPTIAL - See PRENUPTIAL.
ANTIPSYCHOTIC MEDICATIONS - Drugs used to treat certain types of mental illnesses. Also referred to as "neuroleptics."
AOTC - See ADMINISTRATIVE OFFICE OF THE TRIAL COURT, EXECUTIVE OFFICE OF THE TRIAL COURT.
APPEAL - A request to have the decision of a court reviewed and changed by another court, usually a higher court.
APPEALS COURT - Created in 1972, the Massachusetts Appeals Court is an intermediate court of general appellate jurisdiction. Most appeals from Trial Court cases are filed in and decided by the Appeals Court. Some appeals are transferred directly to the Supreme Judicial Court without an Appeals Court decision, and some Appeals Court decisions are again appealed to the Supreme Judicial Court. An appeal from a conviction of first degree murder goes directly to the Supreme Judicial Court. See APPELLATE DIVISION.
- The act of coming into court, by which the defendant submits to the jurisdiction of the court.
- A document identifying the attorney of record. An attorney files an "appearance" to let the court and the other parties know that he or she is representing a specific individual. An unrepresented litigant also files an appearance, to notify the court that he or she is a party to the case but is not represented by an attorney.
APPELLANT - In a case on appeal, the party appealing a lower court's decision or judgment to a higher court, arguing that an error has been made that requires a change in the judgment or a new trial.
APPELLATE COURT - A court which reviews a lower court decision, and has the authority to vacate, affirm or reverse it and/or to return the case to the lower court for further action. In Massachusetts, the Appeals Court and the Supreme Judicial Court are appellate courts. Other courts may act as appellate courts in limited situations.
APPELLATE DIVISION - The Appellate Divisions of the District Court Department and the Boston Municipal Court Department hear appeals of civil cases, victim compensation cases and civil motor vehicle infraction cases. A decision of the Appellate Division can be appealed to the Appeals Court. The Superior Court also has an appellate division, a three-judge panel which reviews and can revise prison sentences to ensure greater consistency in sentencing among Superior Court judges.
APPELLEE - In a case on appeal, the party who did not appeal the lower court's decision, and who usually argues to the appellate court that the trial judge acted correctly. The appellee is sometimes referred to as the respondent.
APPLICATION FOR COMPLAINT - In a criminal case, the complaining police department or civilian must apply to the clerk-magistrate for a complaint alleging that a crime has been committed by the defendant. The application includes a police report and an affidavit or other written information supporting the complaint. A show cause hearing is held and if the clerk-magistrate determines that there is probable cause to believe the crime alleged has been committed by the person named in the application, a complaint is issued and a criminal case commenced. See INDICTMENT.
APPOINTMENT - The selection by a court of a person to carry out a specific responsibility, e.g., an appointment as guardian.
APPROPRIATION - Money budgeted by the Legislature for a specific public purpose.
ARBITRATION - See ALTERNATIVE DISPUTE RESOLUTION.
ARRAIGNMENT - The procedure that starts a criminal case. The defendant is informed of the specific charges and a summary of the facts alleged is generally read. If the defendant is indigent, the court appoints counsel. If bail is to be set, it is typically done at arraignment. In some cases, the court may also hear motions or take a plea at arraignment.
ARREARAGE - Money which is overdue and unpaid, often child support or rent.
ARREST WARRANT - An order issued to a law enforcement officer by a judge or clerk-magistrate, requiring the arrest of the person named.
ASFA - See ADOPTION AND SAFE FAMILIES ACT.
ASSENT - Approval of something already done.
ASSETS - Generally, the entire property belonging to a person, business, or estate. In probate matters, all of the property available to the personal representative for payment of debts, charges, and expenses, and for distribution to parties who are entitled to it.
ASSIGNMENT - Generally, the transfer of property or other legal rights from one person to another.
ASSIGNMENT OF CASES - The system or method that a court uses to designate which judge will hear a case.
ASSIGNMENT OF COUNSEL - The US Constitution requires that an attorney paid by the Commonwealth must be assigned to represent the defendant in a criminal case if the defendant is indigent and unable to afford an attorney, and if the offense with which the defendant is charged could lead to incarceration,. See COMMITTEE FOR PUBLIC COUNSEL SERVICES, INDIGENT.
ASSIGNMENT OF JUDGES - The Chief Justices of the various Trial Court Departments assign judges to sit in specific sessions. These assignments are to specific courts or even to specific courtrooms. Assignments may be made in the regular course of judicial business, or to cover vacancies, retirements, vacations or unusually long or notorious cases, or to reduce backlogs at a particular court. A judge may be appointed to one division of a Trial Court Department but assigned to sit in another division of the same Department or, less frequently, assigned to a different Trial Court Department by the Chief Justice of the Trial Court.
ASSIGNMENT OF WAGES - See GARNISHMENT.
ASSISTANT REGISTER - See JUDICIAL CASE MANAGER.
ASSOCIATE COURT OFFICER - See COURT OFFICER.
ATTACHMENT - A judicial order seizing property to make sure that the property available to pay damages awarded by a judgment. If the property involved is real estate, the attachment is filed in the Registry of Deeds so that anyone reviewing the title to the real estate is made aware of it.
ATTEST, ATTESTATION - Signing as a witness to the signing of a written document by another person.
ATTORNEY - A person admitted to the bar and so is qualified and licensed to represent the legal interests of another person. Also known as a "lawyer" or as "counsel."
ATTORNEY GENERAL - An official whose office represents the Commonwealth, its agencies, officers and commissions in all civil cases in which they are a party or are otherwise interested, or where the acts of departments, officers or commissions are questioned. The Attorney General also prosecutes certain criminal cases. In Massachusetts, the Attorney General is one of six officials elected statewide.
ATTORNEY-IN-FACT - A person authorized by another person to act in that other person=s place. An attorney-in-fact may or may not be admitted to practice in the courts.
ATTORNEY OF RECORD - The attorney who has filed an appearance in a case and therefore bears responsibility for handling the case on behalf of a party.
AUDITOR - A person appointed by the court to evaluate the true financial condition of a business or individual.
- A procedure by which evidence is made legally admissible in a court proceeding.
- Certification of the original or of a copy of a document.
AVERMENT - Something alleged or asserted in a pleading.
BAIL - A method of ensuring that the defendant in a criminal case will appear in court for future proceedings if he or she is released from jail after being arrested. The defendant or someone acting for him or her deposits money with the court or agrees to pay a certain amount (post surety.) The money is forfeited if the defendant does not appear in court as required by the court. The issue in a bail hearing is how likely the defendant is to appear in court in the future. Factors like whether the defendant is employed, the strength of the defendant’s ties to the community and other indicators of what the defendant would lose by failing to appear are also relevant. By law, dangerousness has no role to play in a bail determination, although if the prosecutor thinks the defendant is dangerous, he or she can request a hearing on whether the defendant should be held without bail. See DANGEROUSNESS HEARING.
BAIL BOND - The payment of money by someone other than a criminal defendant, to support a promise that the defendant will appear in court for any hearings related to the case. The person posting the bond loses the money if the defendant (sometimes called the principal) defaults and does not appear in court.
BAIL WARNING - A warning to a newly-charged criminal defendant who is being released on bail that if he or she is arrested again or charged with another crime while the case is pending, bail may be revoked and the defendant sent to jail.
BAILIFF - See COURT OFFICER.
- A general term for the legal profession, including attorneys who have passed the bar examination and been licensed by the Board of Bar Overseers to appear before the court to represent others.
- An association of members of the legal profession, e.g., the Massachusetts Bar Association.
BATTERING - See DOMESTIC VIOLENCE.
BBO - See BOARD OF BAR OVERSEERS.
BENCH TRIAL - The trial of a case before a judge without a jury.
BENCH WARRANT - An order issued by the judge ("from the bench") authorizing the arrest of a person for violating a court order.
- Someone who is entitled to receive benefits under a trust or a will.
- Someone who is entitled to receive payments under an insurance policy.
BEQUEATH - To give personal property by a will.
BEQUEST - A gift of personal property by a will.
BEYOND A REASONABLE DOUBT - See BURDEN OF PROOF.
BILL - A draft of a proposed law submitted to the legislature.
BIND - To create a legal obligation.
BIND OVER - To turn a person accused of a crime over to a sheriff or warden for imprisonment pending trial.
BIRTH RECORD OR CERTIFICATE - A formal document with a raised seal from the city or town in which a person is born, recording the facts of the birth.
BOARD OF BAR EXAMINERS - A five-member board appointed by the justices of the Supreme Judicial Court to administer bar examinations and to make recommendations to the justices regarding applicants for admission to the bar.
BOARD OF BAR OVERSEERS - The body responsible for registering attorneys admitted to the bar in Massachusetts by the Supreme Judicial Court and investigating allegations of misconduct against them. The BBO may publicly reprimand a lawyer, although only the SJC has the power to suspend or disbar an attorney.
- In criminal cases: See BAIL BOND.
- In civil cases: A person who contracts to pay if another person defaults; a surety. The surety can then try to collect from the defaulting principal. Not the same as insurance.
BOSTON MUNICIPAL COURT (BMC) - The Boston Municipal Court Department (BMC) is one of the seven departments of the Trial Court. The BMC has eight divisions, all located in Suffolk County. It has criminal jurisdiction over misdemeanors, violations of city ordinances and bylaws, and over certain preliminary proceedings in cases that fall within the jurisdiction of the Suffolk County Superior Court. In addition, the BMC has concurrent jurisdiction with the Suffolk County Superior Court over all felonies punishable by a sentence up to five years in State Prison and over some other felonies designated by statute. The BMC has civil jurisdiction over some cases arising in Suffolk County in which monetary damages or trustee process is sought, including contract and tort actions, as well as in civil cases remanded from the Suffolk County Superior Court. The BMC also has jurisdiction over small claims cases, mental health and substance abuse commitments, summary process proceedings, civil motor vehicle infraction proceedings, supplementary process proceedings, unemployment compensation appeals and abuse prevention restraining orders. The BMC's jurisdiction in Suffolk County is generally the same as that of District Courts elsewhere and statutory references to District Courts usually apply equally to the BMC. The BMC has its own appellate division to hear appeals from civil cases.
BRIEF - A written argument submitted to a court stating the facts and/or law supporting a party's side of a case. Briefs may be submitted to the court by either or both parties to a case or on appeal. A party may also have an opportunity to respond to the other party's brief in a "reply" brief. Appellate courts sometimes request or permit briefs by an amicus curiae. A brief may also be known as a "memorandum of law."
BUDGET - The annual state budget consists of funds appropriated to be spent by units of state government to pay for governmental activities. A supplemental budget provides additional funding for items not included or underfunded in the annual budget. A capital outlay budget provides, usually by the issuance of bonds, for major, long term projects, e.g., building construction.
BURDEN OF PROOF - The duty to prove a fact or facts in dispute.
- In criminal cases: The prosecutor has the responsibility to prove "beyond a reasonable doubt" that the defendant committed the offense charged.
- In civil cases: In most civil cases, the plaintiff has the responsibility to prove his or her case by a "preponderance of the evidence," meaning that it is more likely than not that the plaintiff's version of the facts is correct. In some kinds of civil cases, an intermediate burden of proof - that of "clear and convincing evidence" - applies, which requires a level of proof that is more stringent than that of a "preponderance of the evidence" but less stringent than "beyond a reasonable doubt."
BUREAU OF VITAL STATISTICS - A branch of the Department of Public Health that is the central repository for records of births, deaths and marriages occurring in Massachusetts. These records are forwarded to the Bureau by the municipal clerk in the city or town where the event occurred.
- A law enacted by a town, which has no effect outside that town.
- The internal rules of a business organization.
CALENDAR - A list of all pending cases in a court. Often used interchangeably, but improperly, with "docket."
C AND P - See CARE AND PROTECTION PETITION, CARE AND PROTECTION PROCEEDINGS.
CANONS OF ETHICS - Rules governing the professional responsibilities and conduct of attorneys, judges, clerk-magistrates and others.
CAPIAS - Latin for "that you take." A warrant for arrest issued from by the judge when a defendant in a civil case or a witness in a civil or a criminal case who has been served with a summons in hand does not appear in court when required to do so.
CARE AND CUSTODY AFFIDAVIT - See AFFIDAVIT DISCLOSING CARE AND CUSTODY PROCEEDINGS.
CARE AND PROTECTION PETITION - A petition filed in the Juvenile Court Department or the District Court Department alleging that a minor has been subjected to abuse or neglect by his or her parents or guardian.
CARE AND PROTECTION PROCEEDINGS - Proceedings conducted by the Juvenile Court Department (or the District Court Department sitting in a Juvenile Court session) to make sure that a minor is protected against physical, mental or emotional injury resulting from the absence of, or neglect or abuse by the person responsible for the child's welfare, or resulting from the inability of that person to provide for the normal physical, mental, and moral development of the child.
CARI - "Court Activity Record Information." A computerized database maintained by the Office of the Commissioner of Probation containing a record of all criminal and some civil court actions related to a particular person. A CARI report lists a particular individual's involvement as a party in all of the courts of the Commonwealth. See CORI, CJIS, WMS.
CASE - A legal dispute brought before a court. A case is also referred to as an "action," a "lawsuit," a "cause" or “a matter.”
CASE DOCKET - See DOCKET.
CASE FILE - See FILE.
CASEFLOW - The process by which a case moves through the court system, from the initial filing to final judgment and post-disposition court work.
CASE LAW - Published decisions in individual cases. When issued by an appellate court, the legal principles announced in these decisions are binding authority for lower courts and must be applied in all other cases.
CASELOAD - The number of cases assigned to a judge or session.
CAUSE OF ACTION - The legal issues underlying a case that permit a court to hear it.
CERTIFICATE OF SERVICE - A signed statement by a party making a motion or filing a pleading that all parties to the case have been properly informed that the motion or pleading has been filed, and have been served with a copy of the motion or pleading.
CERTIFICATE OF TITLE - A document attesting the ownership of personal property, e.g., an automobile.
CERTIFIED COPY - A copy of a document, order or record vouched for as an exact duplicate by the person responsible for maintaining the original.
CERTIFY - To vouch for something in writing or attest in writing to the authenticity and accuracy of a document or a copy of a document.
CERTIORARI - Latin for "to be informed of." An order, or writ, by an appellate court directing a lower court to certify and forward the record of a case to the appellate court for review. Such an appeal is sometimes referred to as a "petition for a writ of certiorari," or "cert petition."
CHAIN OF CUSTODY - Documentation of the custody of real evidence, such as drugs or weapons. The party offering an object as evidence in court must establish where the object has been from the moment it was seized until the moment it is offered as evidence in court (e.g., who carried the object from the place where it was found to the evidence locker, who signed it into the locker, who removed it from the locker and when, and who brought it into the courtroom.) This helps to ensure that the evidence has not been altered.
- Challenge for cause: To ask that a member of a venire be excused because he or she is not legally qualified under the law or the applicable rules to act as a juror in the case.
- Peremptory challenge: The right of a party to eliminate a certain limited number of potential jurors from the venire without giving any cause or reason.
- Challenge to the array or venire: To question the qualifications of an entire panel summoned for jury duty, usually because of alleged partiality or a problem with the way the panel was selected and/or summoned.
See JURY, JUROR, VENIRE.
CHANGE OF NAME - A petition for a change of a person’s name is heard in the Probate and Family Court. Court approval is not necessary to change one's name as long as the change is made for an honest purpose and without fraudulent intent. For example, people often change their names without court involvement when they get married. However, sometimes people might want or need an official document acknowledging that they have changed their names.
CHANGE OF VENUE - The transfer of a case from one court to a court in another location, either because it should have been in that other location in the first place; because it is more convenient for the parties or witnesses; or because a fair trial cannot be held in the original court location.
CHARGE TO THE JURY - See JURY INSTRUCTIONS.
CHARTER - A legislative grant establishing a city or town and organizing its government.
CHATTELS - Personal property, as distinguished from real estate.
CHIEF JUSTICE - In each of the seven Trial Court Departments, one judge is selected by the Chief Justice of the Trial Court to be the Chief Justice responsible for the administration of that Court Department. The Chief Justice of the Trial Court is selected by the Supreme Judicial Court. The Massachusetts Appeals Court and the Supreme Judicial Court each have a Chief Justice who is appointed by the Governor.
CHIEF JUSTICE FOR ADMINISTRATION AND MANAGEMENT (CJAM) - Formerly, the CJAM was responsible for the operation of and provision of support services to each of the seven Departments of the Trial Court and was appointed by the Supreme Judicial Court. By statute passed by the Legislature in 2012, the duties of CJAM are now divided between the Court Administrator and the Chief Justice of the Trial Court.
CHIEF JUSTICE OF THE TRIAL COURT (CJTC) - The Chief Justice of the Trial Court is appointed by the Supreme Judicial Court and has overall responsibility for Trial Court judicial policy. The CJTC appoints the seven departmental Chief Justices and works with them and the Court Administrator to manage the operations of the Trial Court. See EXECUTIVE OFFICE OF THE TRIAL COURT.
CHILD ABANDONMENT - In care and protection and termination of parental rights cases, leaving a child without any provision for support and without any person responsible for maintaining care, custody, and control, where reasonable efforts to locate the person responsible for the child have been unsuccessful.
CHILD ABUSE - The intentional or neglectful physical or emotional injury of a child.
CHILD BORN OUT OF WEDLOCK - See OUT OF WEDLOCK.
CHILD CUSTODY - The responsibility to care for and exercise control over a child. Child custody is awarded in a domestic relations or care and protection proceeding. Custody may be physical (referring to who will care for and control the actual body of the child) or legal (referring to who will make medical, legal, educational and other decisions regarding the child). One parent may have both physical and legal custody of a child; or the two can be split, with one parent having physical custody and the other legal; or one or both of physical and legal custody may be shared by the parents. It is not unusual for one parent to have sole physical custody of a child but to share legal custody with the other parent. The Commonwealth's Department of Children and Families or another party, such as a guardian, may also be awarded legal and/or physical custody of a child if the parents are deemed unfit.
CHILD IN NEED OF SERVICES PROCEEDING (CHINS) - See CHILD REQUIRING ASSISTANCE (CRA)
CHILD NEGLECT - The failure of the parent, guardian, or custodian of a minor to provide proper support, education, medical care, physical care, or a fit home environment.
CHILD REQUIRING ASSISTANCE (CRA) - A proceeding involving a child between the ages of six and eighteen who is habitually truant from school, repeatedly fails to obey school rules, repeatedly runs away from home and/or repeatedly fails to obey his or her parent or legal guardian. Previously called a “Child In Need of Services” or "CHINS."
CHILD SUPPORT - In domestic relations cases, payments by one parent, usually the non-custodial parent, to the other parent or a guardian with custody to meet the financial needs of a child, including medical, dental, educational, and child care expenses. The amount is set by agreement or by court order in accordance with Child Support Guidelines issued by the Trial Court. See CHILD SUPPORT GUIDELINES.
CHILD SUPPORT ENFORCEMENT DIVISION (CSED) - A bureau of the Department of Revenue (DOR) that collects child support payments from those ordered by the court to make them and distributes them to the custodial parent. Attorneys from the CSED represent custodial parents before the court to obtain child support orders.
CHILD SUPPORT GUIDELINES - Official guidelines promulgated by the Chief Justice of the Trial Court, including a mathematical formula used by the court to determine an appropriate amount of child support. Both the non-custodial parent's and the custodial parent's income are considered.
CHINS - See CHILD REQUIRING ASSISTANCE.
CIRCUMSTANTIAL EVIDENCE - Testimony that is not based on actual personal knowledge or observation of the facts, but rather is inferred from other facts. For example, if a witness testifies that the defendant came inside in a raincoat, with wet feet and an umbrella that was dripping water, the judge and/or the jury might reasonably conclude that it was raining outside.
- The court copy (original) of a "traffic ticket”, which also serves as the original complaint in a civil motor vehicle infraction case.
- A reference to a source of legal authority in a court's decision or in a brief submitted to the court by a party. Common forms of citations are to: decisions issued by other courts; statutes; regulations adopted by an administrative agency; treatises written by experts in the particular field being considered; and articles in law reviews and other journals.
- A notice issued by the court ordering the person who receives it to respond regarding a pending proceeding. It provides information about the proceeding as well as the consequences of failing to appear or respond to the citation.
CIVIL - See CIVIL ACTIONS, CASES OR LAWSUITS, CIVIL LAW.
CIVIL ACTIONS, CASES OR LAWSUITS - Generally, non-criminal cases concerning the claim of one private individual or entity (such as a corporation) against another private individual or entity or the state to protect a private civil right or to compel a civil remedy, such as the payment of money damages. Examples of civil cases include personal injury cases, consumer protection cases, evictions, and abuse prevention orders.
CIVIL CONTEMPT - See CONTEMPT OF COURT.
CIVIL LAWS -
- Laws regarding the establishment, recovery, or redress of private and civil rights, as opposed to criminal laws, which define offenses against the state.
- The body of law applied generally in civil society, as opposed to canon (church) law or military law.
CIVIL MOTOR VEHICLE INFRACTION (CMVI) - A violation of the motor vehicle laws, such as a speeding or other traffic ticket. The alleged violator may request a civil hearing before a clerk-magistrate, with the right to a de novo hearing before a judge.
CJAM - See CHIEF JUSTICE FOR ADMINISTRATION AND MANAGEMENT.
CJTC - See CHIEF JUSTICE OF THE TRIAL COURT.
CJIS - Criminal Justice Information System. A federal program operated by the FBI which collects and distributes criminal justice information to the FBI and to qualified law enforcement, criminal justice, civilian, academic, employment, and licensing agencies concerning individuals, stolen property, criminal organizations and activities, and other law enforcement-related data. See CARI, CORI, WMS.
CLAIM - See CASE.
CLAIMANT - One who makes a legal claim.
CLEAR AND CONVINCING EVIDENCE - See BURDEN OF PROOF.
CLEAR ERROR - See STANDARD OF REVIEW.
CLERK-MAGISTRATE - A clerk is an officer of the court who accepts papers like pleadings, motions, discovery, etc., for filing; issues process; and maintains court records. A magistrate is a public officer with limited judicial authority. In Massachusetts, one person may serve both functions, in the capacity of clerk-magistrate, as in the District Court, Boston Municipal Court, Housing Court and Juvenile Court Departments of the Trial Court. Clerk-magistrates are appointed by the governor.
CLERK OF COURTS - The clerk of court in the Superior Court Department is an elected position, similar to the position of clerk-magistrate. The clerk of court is an officer of the court with limited judicial authority and also runs the clerk's office, which accepts pleadings, motions, discovery, etc., for filing, issues process, and maintains and preserves court records. In addition to serving as the clerk for the Superior Court Department in a county, the clerk of courts is also the clerk for the Supreme Judicial Court if and when it operates in that county and, in counties where county government still exists, is also the clerk for the county commissioners. In Suffolk County, two clerks of court are elected, one for civil business and one for criminal business. There is also an elected clerk of the Supreme Judicial Court for Suffolk County. (The clerk of the Supreme Judicial Court is not elected but is appointed by the justices of the SJC for a five year term.)
CMR - See CODE OF MASSACHUSETTS REGULATIONS.
CMVI - See CIVIL MOTOR VEHICLE INFRACTION.
- A set of regulations relating to a particular subject matter issued by an administrative agency responsible for the area regulated, such as the Building Code.
- A set of statutes, such as the U.S. Code of federal statutes.
CODE OF MASSACHUSETTS REGULATIONS - The collection of the regulations issued by the administrative agencies of the Commonwealth.
CODICIL - A legally binding amendment to a will.
COLLATERAL (adj.) - Generally, "by the side," supplementary.
- Collateral consequences: Consequences that arise as an indirect result of conviction of a crime but not as part of the punishment imposed by the convicting court. For example, a collateral consequence of being convicted of certain crimes might be deportation or loss of one=s driver=s license, but those consequences are imposed by agencies other than the sentencing court.
- Collateral estoppel: A rule providing that when an issue of fact has been determined by a judgment in one case, the issue cannot be re-litigated in another case between the same parties. Also called "issue preclusion."
- Collateral matters: Matters related to but not legally relevant to the question before the court.
COLLATERAL (n.) -
- In criminal cases: Money or goods pledged to ensure a defendant's appearance in court.
- In civil cases: Money or goods pledged to secure payment of a debt.
- See DESCENT.
COMMISSION ON JUDICIAL CONDUCT - A nine-member commission that considers allegations of misconduct by judges or of mental or physical disability affecting a judge's performance. Three members are judges appointed by the justices of the Supreme Judicial Court, three members are lawyers appointed by the Chief Justice of the Trial Court and three members are non-lawyers appointed by the Governor.
COMMIT - The act of sending a person to a jail, prison, mental hospital or other facility pursuant to an court order.
COMMITMENT - The order by which the court directs:
- that a person go to a prison or jail in execution of a sentence (see MITTIMUS); or
- that a person go to a hospital because of mental illness.
COMMITTEE FOR PUBLIC COUNSEL SERVICES (CPCS) - The state-funded organization that provides attorneys for indigent defendants who could not otherwise afford representation in criminal cases and other cases in which the state is a party, including CRA, care and protection, termination of parental rights and other child custody cases involving the Department of Children and Families (CPCS represents parents and children in these cases) and mental health commitment cases (CPCS represents the person being committed). CPCS manages the private attorneys appointed by various courts to represent indigent parties and also has staff attorneys who provide legal services.
COMMON LAW - A system of laws which originated in England and has evolved from early days to the present, consisting of old and accepted customs, precedents and court decisions, old English statutes and other unwritten but accepted standards. Common law is the foundation for the legal system in every state of the United States except Louisiana. In Massachusetts, common law is still in effect except where it has been modified or repealed by statute.
COMMONWEALTH - A state. Four US states identify themselves as Commonwealths: Massachusetts, Pennsylvania, Virginia and Kentucky. Criminal prosecutions are brought in the name of the Commonwealth, e.g., Commonwealth v. Smith.
COMMUTATION OF SENTENCE - A reduction of a criminal sentence, e.g., from first degree murder to second degree murder. The Governor may commute a criminal sentence with the advice and consent of the Governor’s Council.
- Competent evidence: Evidence that meets all of the requirements for admission into evidence.
- Competent witness: A witness who is legally fit and qualified to give testimony in court.
- Competent court: A court that has lawful jurisdiction over the case before it. Also referred to as a "court of competent jurisdiction."
- Competent to stand trial: A defendant in a criminal case is competent to stand trial if he or she is able to understand the nature and object of the proceedings, consult with an attorney and assist in the preparation of a defense at the time of the trial. A person who is found incompetent to stand trial may be committed to a mental health facility.
- In civil cases: Someone who files a complaint, usually referred to as the plaintiff.
- In criminal cases: Someone who initiates a prosecution by filing an application for criminal process.
- In civil cases: The first paper, or pleading, filed with the court, in which the plaintiff gives the reasons for the suit.
- In criminal cases: A written accusation, made under the penalties of perjury, that a crime has been committed and that probable cause exists to believe that the named person is guilty of the offense. A criminal complaint may be filed by the police or by a private party who files an application for criminal process with the clerk-magistrate.
COMPLAINT FOR MODIFICATION - A complaint filed to change an existing order or judgment due to a change in circumstances. For example, complaints for modification are frequently used in domestic relations cases to revise custody arrangements as the children age and their needs change.
CONCURRENT JURISDICTION - The authority of more than one Trial Court Department to hear the same type of case. For example, some crimes can be prosecuted in either the District Court or the Superior Court Departments. Summary process cases can be heard in the District Court or the Housing Court Department or, in some cases, the Superior Court Department. Termination of parental rights hearings can be held in the Juvenile Court Department, the District Court Department sitting in a Juvenile Court session or the Probate and Family Court Department.
CONCURRENT SENTENCES - In cases where a criminal defendant is sentenced to separate terms of imprisonment for two or more convictions, concurrent sentencing allows the judge to order that all sentences of imprisonment to be served simultaneously. The defendant is entitled to release from prison at the end of the longest sentence.
CONCURRING OPINION, CONCURRENCE - In a case being heard by a panel of appellate judges, an separate opinion by a judge who agrees with the decision in a case, but who would base that decision on different reasons from those stated by other members of the panel.
- The process by which private real estate is taken for public use without the owner's consent but with just compensation, pursuant to a court order; a forced sale of property to the state or a subdivision of the state for public use; a taking by eminent domain.
- The destruction of real estate or other property ordered for public health or safety reasons. In such cases, there is no taking for a public use and thus there is no compensation.
CONFESSION - A voluntary statement, either oral or written, in which a person admits to committing a criminal offense. The statement must include all of the elements of the offense, or it is not a confession but an admission.
CONSANGUINITY - A relationship created by blood. People who descend from a common ancestor, like siblings or cousins, have consanguinity.
CONSECUTIVE INTERPRETATION - A process of converting speech from one language to another in which the speaker of language A speaks, then pauses while the interpreter converts what was said to language B, and vice-versa.
CONSECUTIVE SENTENCE - In cases where a criminal defendant is sentenced to separate terms of imprisonment for two or more convictions, a consecutive sentence requires that one sentence be completed before the next one begins. Also known as an "on and after" sentence.
CONSERVATOR - A person who is appointed by a court to manage the estate of a protected person.
CONSIDERATION - See CONTRACT.
CONSPIRACY - An agreement between two or more people to commit a crime or to do a lawful act in an illegal manner. Conspiracy is a crime in Massachusetts.
CONSTABLE - An officer of a municipality who serves summonses and other forms of process.
CONSTITUTION - A fundamental law establishing and organizing a national or state government and usually setting out the basic rights of citizens and the duties and obligations of the government. The Massachusetts Constitution of 1780, drafted by John Adams, is the oldest written constitution currently in effect in the world.
CONSTITUTIONAL - A law or government action that is in agreement with the applicable principles of a constitution.
CONSULTATION FEE - A fee sometimes charged by a lawyer to meet with a potential client to discuss the facts of his or her case. The consultation is an opportunity for the lawyer to decide whether to take the case and for the potential client to decide if he or she wishes to hire the lawyer.
CONTEMNOR - One who is in contempt of court.
CONTEMPT OF COURT - An act or failure to act that violates a court order, interferes with the functioning of the court, or disrespects the authority of the court. Contempt of court can be civil or criminal, and either can involve fines and/or jail terms. Civil contempt sanctions are generally meant to make someone obey the court's orders. Criminal contempt sanctions are generally meant to punish past misconduct.
CONTESTED - A case, or a motion or other issue within a case, which is opposed, i.e., the parties cannot reach an agreement regarding it.
CONTINGENT FEE - A fee arrangement often used in personal injury cases in which the lawyer is paid a certain percentage of the money received by the client if the client wins or settles his or her case. If the client loses his or her case the lawyer does not receive a fee. Whether the case is successful or not, the client may still be responsible for the payment of costs incurred in bringing the case. In Massachusetts, a written fee agreement is required in a contingent fee case.
CONTINUANCE - Postponement of an action pending in court.
CONTINUANCE WITHOUT A FINDING (CWOF) - In a criminal case, if a judge finds there is enough evidence to support a finding of guilt, he or she can continue the case for a period of time without making a guilty finding. The charges will be dismissed without a finding of guilt at the end of that period if the defendant complies with any conditions imposed. Often referred to as a "CWOF" (pronounced "quaff").
CONTRACT - An agreement between two parties that creates a legal obligation to do or not do something because the parties have exchanged promises (e.g., I will pay you if you paint my house.) The agreement may be oral or written or implied by the parties' actions.
CONTRACT NOT TO COMPETE - An agreement between an employer and an employee that the employee will not perform work for the employer's competitors.
CONVERSION - The wrongful exercise of ownership or control over goods which belong to another.
CONVEY (v.), CONVEYANCE (n.) - The transfer of title to property from one person to another, or the documents which effect the transfer of title to property.
- (v.) To find one guilty of a crime.
- (n.) One who has been convicted of a crime.
COPYRIGHT - Legal protection given to someone who produces intellectual property (an author, musician, artist and the like) to prevent the unauthorized use or copying of an original work by others.
CORI - Criminal Offender Record Information. Data maintained by the Department of Criminal Justice Information Services detailing an individual=s criminal history, including charges and dispositions. A CORI report is a computer printout of an individual's CORI data. See CARI, CJIS, WMS.
CORI REPORT - See CORI.
CORONER - See MEDICAL EXAMINER.
CORPORATION - A business entity treated by the law as a person in some respects. A corporation can buy, own and sell property, enter into contracts, sue and be sued and be held civilly and criminally responsible for its acts. Corporations act through officers, agents and/or employees. An investor in a corporation can be held liable for the corporation's debts only to extent of his or her investment.
CORPUS DELICTI - Latin for "the body of the crime." The corpus delicti is what the prosecutor must prove (that a crime was committed) before introducing an admission or a confession into evidence.
COSTS - Many cases involve expenses in addition to attorney’s fees. These expenses are often referred to as "costs" and include such things as filing fees, service of process, deposition costs, expert witness fees, investigator fees, photocopy and telephone expenses, fees to obtain copies of medical records, etc.
COUNSEL - An attorney; one who gives advice, especially legal advice.
COUNTERCLAIM - A claim that the defendant asserts against the plaintiff in a civil case.
COUNTY - A geographical or political unit within a state. There are fourteen counties in Massachusetts: Barnstable, Berkshire, Bristol, Dukes, Essex, Franklin, Hampden, Hampshire, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk and Worcester. In some departments of the Trial Court, particularly the Superior Court and the Probate and Family Court, and to some extent the Juvenile Court, the divisions are organized by county. County government has been abolished in some counties and is of diminishing importance in others.
COUNTY COURT - The single justice session of the Supreme Judicial Court.
COURT ACTION RECORD INFORMATION - See CARI.
COURT ADMINISTRATOR - The person appointed by the Supreme Judicial Court to head the Office of Court Management (OCM), manage the non-judicial administrative functions of the Trial Court, and provide support to the judges, clerks, probation officers and clerical staff who work daily to deliver justice in the Commonwealth. OCM provides services to all Trial Court departments in the following areas: Court Capital Projects, Facilities Management, Fiscal, Human Resources, Information Services, Support Services, and Security. The Court Administrator also works closely with the Chief Justice of the Trial Court in the Executive Office of the Trial Court. See EXECUTIVE OFFICE OF THE TRIAL COURT.
COURT OFFICER - Court officers and associate court officers are responsible for order and safety in the courthouse. Together with the judge, court officers maintain order in the courtroom. They also operate the lock-up and escort people in custody through the building. Court officers also handle jurors, signing people in as they arrive for jury duty, explaining their obligations to them, escorting groups of jurors around the courthouse and otherwise attending to their needs. Associate court officers staff the entrances to each courthouse, operate metal detectors, and provide assistance to the public entering the courthouse. In other jurisdictions, court officers are frequently referred to as "bailiffs."
COURT RECORDER - See REPORTER.
COURT REPORTER - See REPORTER.
COURT RULES - Rules adopted by a court to govern its procedures. In Massachusetts, rules are issued by the Supreme Judicial Court, the Appeals Court, the Trial Court and each of the Trial Court Departments. Court rules of court must be approved by the Supreme Judicial Court.
COURT SERVICE CENTER - Court service centers provide information and assistance (but not legal advice) to self-represented litigants, attorneys, and members of the public. They improve access to justice and the efficiency of court operations by helping self-represented litigants in particular to understand and prepare for the court process.
COURT STENOGRAPHER - See REPORTER.
CPCS - See COMMITTEE FOR PUBLIC COUNSEL SERVICES.
CREDIBLE - Believable; worthy of belief or confidence; trustworthy.
CRIME - A violation of criminal law, punishable by imprisonment and/or a fine.
CRIMINAL - One who has been convicted of a crime.
CRIMINAL CASE - A lawsuit or prosecution brought by the Commonwealth or the federal government against a person or corporation as defendant, to determine whether the defendant has violated a criminal law.
CRIMINAL CONTEMPT - See CONTEMPT OF COURT.
CRIMINAL LAW - The body of law that forbids certain actions or conduct and provides for the punishment of those who engage in the forbidden actions or conduct.
CRIMINAL OFFENDER RECORD INFORMATION - See CORI.
CROSS-APPEAL - In a case on appeal, the appellee's request that the court review aspects of the lower court's decision that were not raised by the appellant, seeking to reverse, vacate, or modify those aspects, while affirming the rest of the decision.
CROSS-APPELLANT - See CROSS-APPEAL.
CROSS-CLAIM, CROSS-COMPLAINT - In a civil case involving multiple plaintiffs or multiple defendants, a claim brought by one plaintiff against another plaintiff, or by one defendant against another defendant.
CROSS EXAMINATION - The questioning of a witness at trial or deposition by a party other than the party who called the witness. Cross examination tests the truthfulness of the witness's testimony and the credibility of the witness, and further develops the testimony. See DIRECT EXAMINATION, REDIRECT EXAMINATION.
CUSTODIAL PARENT - The parent having physical custody of a child.
CUSTODY - Care and control of a thing or person. A person who is "in custody" is imprisoned or otherwise physically detained. "Child custody" refers to who has the legal right to make decisions regarding a child's care and/or who has physical control over the child.
CWOF - See CONTINUANCE WITHOUT A FINDING.
DA - See DISTRICT ATTORNEY.
DAMAGES - Money paid to a person who has been injured or damaged by the actions of another person.
DANGEROUSNESS HEARING - Normally, a criminal defendant has the right to have bail set and to be free until the charges against him or her are resolved by the court. The purpose of bail is to ensure that the defendant appear in court for any future proceedings in the case. If a prosecutor believes that a person charged with a crime is too dangerous to be set free while the charges are pending, he or she can request a hearing and move to hold the defendant without bail or release the defendant only on certain conditions (e.g., ankle bracelet, curfew, etc.) Pretrial detention or release on conditions is permitted only if the defendant is charged with a serious crimes, such as a felony that involved the use or attempted or threatened use of physical force; a domestic violence offense; a drug offense with a mandatory minimum sentence of three or more years in prison; intimidation of a witness; and certain repeat motor vehicle offenses. Also known as a "58A" hearing after the statute authorizing this procedure.
DCF - See DEPARTMENT OF CHILDREN AND FAMILIES.
DEATH CERTIFICATE - The official document, with a raised seal, prepared by the city or town where the decedent lived, recording the facts of death.
DE NOVO - Latin for "anew." To start over from the beginning. For example, a trial de novo is a new trial, usually either (1) ordered by an appellate court in a case where the trial was so flawed that the damage cannot be corrected or (2) on appeal from a decision by a clerk-magistrate to a judge, as in a CMVI or small claims case.
DECEDENT - A person who has died.
DECEDENT'S ESTATE - Property that was owned by a person at the time of his or her death.
DECLARATORY JUDGMENT - A judgment of a court determining the rights of the parties or giving the court's opinion on a legal point, without ordering that anything be done. A declaratory judgment is usually requested before the happening of (and to prevent) a specific act which could result in a claim for damages.
DECREE - A court judgment.
DEED - A document signed by the owner (the grantor) of real estate, transferring title to or ownership of the property to another (the grantee).
DEFAMATION - The deliberate and malicious injury of the reputation of another person. Defamation can be civil or criminal. Defamation in writing is called libel; oral defamation is called slander. See LIBEL, SLANDER.
DEFAULT - The failure to do what is required to be done, e.g., when a defendant in a civil case does not file an answer as required, or when a defendant in a criminal case fails to appear for a hearing in the case when required to do so.
DEFAULT JUDGMENT - A judgment entered for the plaintiff in a civil case without hearing from the defendant because the defendant has failed to do what he or she was supposed to do, such as file an answer.
DEFAULT WARRANT - A warrant for the arrest of a defendant who has failed to appear for a hearing in a criminal case. See CAPIAS.
- In civil cases: the person against whom a lawsuit is brought.
- In criminal cases: the person against whom a criminal charge is brought.
DEFENSE ATTORNEY - The attorney representing the defendant in either a civil or a criminal case.
DELIBERATE (v.), DELIBERATION (n.) -
- In criminal cases: The weighing of evidence by a jury to determine whether a defendant is guilty.
- In civil cases: The weighing of evidence by a jury to determine whether a defendant is liable and, if so, what damages are appropriate.
DELINQUENCY PROCEEDINGS - Proceedings to decide whether a child between the ages of seven and eighteen violated a law of the Commonwealth or a city ordinance or town bylaw. Delinquency proceedings are usually conducted by the Juvenile Court Department or, in a few instances, by the District Court Department. A juvenile has all of the legal and procedural protections that an adult would have if charged with the same offense. However, juvenile delinquency proceedings are private and sentencing varies from that in adult proceedings.
- The refusal of a court to grant a request presented in a petition or motion.
- In pleadings, an assertion that the allegations of the opposing party are untrue.
DEPARTMENT OF CHILDREN AND FAMILIES (DCF) - The Massachusetts administrative agency responsible for protecting minors from abuse and/or neglect. DCF has the authority to remove children from a home immediately if it believes they are in danger and can ask the Juvenile Court Department or District Court Department for custody of children in a care and protection proceeding. DCF can also seek to terminate parental rights and begin adoption proceedings in the Juvenile Court Department or the Probate and Family Court Department. DCF also operates the foster care system. Formerly known as the Department of Social Services (DSS).
DEPARTMENT OF CORRECTION (DOC) - The Massachusetts administrative agency responsible for the operation of the state prison system.
DEPARTMENT OF DEVELOPMENTAL SERVICES (DDS) - The Massachusetts administrative agency responsible for establishing standards and procedures for the reception, examination, treatment, restraint, transfer and discharge of persons who, because of inadequately developed or impaired intelligence, are substantially limited in their ability to learn or adapt. Formerly known as the Department of Mental Retardation (DMR).
DEPARTMENT OF MENTAL HEALTH (DMH) - The Massachusetts administrative agency responsible for setting the standards for the operation of mental health facilities and community residential programs and for providing clinical, rehabilitative and supportive services for adults with serious mental illness, and children and adolescents with serious mental illness or serious emotional disturbance.
DEPARTMENT OF MENTAL RETARDATION (DMR) - See DEPARTMENT OF DEVELOPMENTAL SERVICES.
DEPARTMENT OF REVENUE (DOR) - The Massachusetts administrative agency empowered to collect taxes and to aid in the collection of child support through its Child Support Enforcement Division.
DEPARTMENT OF SOCIAL SERVICES (DSS) - See DEPARTMENT OF CHILDREN AND FAMILIES (DCF).
DEPARTMENT OF YOUTH SERVICES (DYS) - The Massachusetts administrative agency responsible for providing delinquency prevention services and other services to delinquent children and youths referred to the DYS by the court, including operating detention facilities for delinquent minors.
DEPONENT - A person who answers questions under oath during a deposition.
DEPOSITION - A method of pretrial discovery in civil cases. During a deposition, the deponent is questioned under oath. Most depositions are taken without court supervision; the deponent is usually questioned by an attorney for one of the parties. A transcript or videotape, or both, is made of the deposition. The transcript or videotape may be used to support various pretrial motions, or may be admitted into evidence at trial in cases where the deponent is unable to be present in court. Depositions may also be used to impeach the testimony of a witness at trial.
DEPUTY COURT ADMINISTRATOR - Each Department of the Trial Court has a Deputy Court Administrator who works with the Chief Justice of the Department and the Court Administrator to manage that Department.
DESCENT - The passing of ownership of an estate by inheritance rather than by purchase.
- Lineal descent: Descent in a direct line, as from grandfather or grandmother, to father or mother, to son or daughter, etc.
- Collateral descent: Descent in a collateral or oblique line; that is, up to the common ancestor and then down from him or her, as from brother to brother, or between cousins.
- (v.) To give real estate in a will.
- (n.) A gift of real estate made in a will.
DEVISEE - A person given real estate under a will.
DICTUM/DICTA - Discussion in a court opinion that is not strictly necessary to support or justify the result. The appellate court and lower courts are bound by the appellate court's decision but are free to disregard the discussion in subsequent cases.
DILATORY MOTION - A motion made for the purpose of delaying the proceedings.
DIRECT EXAMINATION - The questioning of a witness at trial by the party who called the witness. See CROSS EXAMINATION.
DIRECTED VERDICT -
- In civil jury trials: After all of the plaintiff's evidence has been presented, if there is not enough evidence to support the plaintiff's claim, the judge may grant the defendant's motion to take the case out of the hands of the jury and enter a judgment ("direct a verdict") against the plaintiff.
- In criminal jury trials: At the conclusion of the Commonwealth's case or of an entire criminal jury trial, if the District Attorney has not presented enough evidence to convict the defendant, the judge may grant the defendant's motion to take the case out of the hands of the jury and enter a judgment ("direct a verdict") of not guilty. Only the defendant may move for a directed verdict in a criminal case.
DISAPPEARED PERSON - A person who has been absent from his or her residence; whose whereabouts are unknown by the person most likely to know where he or she is; and who has not communicated with that person for at least seven continuous years. Also known as an "absentee."
DISBARMENT - Removal of a lawyer's authorization to practice law because of professional misconduct or incompetence.
DISCOVERY - The process of gathering and preserving evidence prior to trial. Methods of discovery include depositions, interrogatories, requests for admissions and production of documents, as provided for in the Massachusetts Rules of Civil Procedure.
DISCRETION - The freedom to decide what should be done in a particular situation. Discretionary authority is not totally without limits; it is bound by rules and principles of law. However a judge’s decision in a matter of discretion will not be overturned by an appellate court unless his or her discretion has been exercised in an “arbitrary or capricious” way.
DISINTERESTED PARTY - A person who has nothing to gain or lose in the outcome of an action or proceeding.
DISMISS - To order a case or prosecution to be terminated; to refuse to hear it further.
DISMISSAL - An order or judgment deciding a case in favor of the defendant by terminating it without a trial. A dismissal "with prejudice" forever prevents the plaintiff in a civil case or the government in a criminal case from bringing a new case on the same claim or criminal allegations; a dismissal "without prejudice" disposes of the particular case before the court but a new case may be brought in the future based on the same claim or criminal allegations.
DISPOSITION - The outcome of a case, whether by dismissal, plea and sentence, settlement, verdict or judgment.
DISPUTE RESOLUTION SERVICE - One of a number of processes in which a neutral person is engaged to assist in the process of settling or otherwise disposing of a case without a trial. When the service is provided as a result of referral by a court, it is called "Court-Connected Dispute Resolution Service." See ALTERNATIVE DISPUTE RESOLUTION.
- Anything which may interfere with or appear to interfere with the ability of a judge to decide a case in a fair and impartial manner may disqualify the judge from hearing the case. Disqualification may be sua sponte (the judge disqualifies him- or herself) or a party to the case may move to disqualify the judge. Also referred to as "recusal."
- In contrast to a privilege, people in some kinds of relationships, such as that of husband and wife, are disqualified by law from testifying against each other in certain circumstances and regarding certain private conversations, even if both people in the relationship want the testimony admitted in the case, simply due to the nature of the relationship itself.
DISSENTING OPINION - In a case being heard by a panel of appellate judges, a written opinion explaining why a judge disagrees with the final decision of the majority of the panel.
DISTINGUISH - In a legal opinion or brief, to explain why the holding in a previously-issued opinion does not apply in the case under consideration. This is often because of a significant difference between the facts before the court and the facts in the case in which the previous holding was issued. See HOLDING.
DISTRIBUTEE - Any person who has received property of a decedent from the decedent’s personal representative other than as a creditor or purchaser.
DISTRICT ATTORNEY - In Massachusetts, an elected public officer who prosecutes criminal cases on behalf of the Commonwealth. Each county has its own District Attorney. Also referred to as the "DA", the "prosecutor" or “the Commonwealth.” Most cases are actually tried by Assistant District Attorneys, or ADAs, who may also be referred to as the “DA", the “prosecutor” or the “Commonwealth."
DISTRICT COURT - Judges of the District Court Department of the Trial Court hear criminal, civil, housing, juvenile, mental health and other types of cases, including all misdemeanors; felonies punishable by up to five years in state prison and some more serious felonies; all violations of city and town ordinances; juvenile matters in parts of the state not yet served by a division of the Juvenile Court; tort and contract cases; small claims cases; civil motor vehicle infractions; inquests; mental health and substance abuse commitments; 209A restraining orders; eviction cases (concurrently with the Housing Court Department) and other proceedings. Each division of the District Court handles cases from the specific group of cities and towns that the legislature has designated as falling within that court's jurisdiction. The District Court Department operates in everywhere in the Commonwealth except Suffolk County, where the Boston Municipal Court Department handles the same types of cases (though the Suffolk County cities of Chelsea and Revere are served by the Chelsea District Court.)
DIVERSION PROGRAM - A program that removes criminal offenders from official processing to a less formal, less adversarial, more community-based setting.
DIVISION - The geographical or political unit within which a court has venue or personal jurisdiction over the parties. For example, the Probate and Family Court and the Superior Court Departments each have fourteen Divisions, one for each county in the Commonwealth. The District Court Department has sixty-two divisions, each covering a specific geographic area. The Housing Court Department has five divisions; the Boston Municipal Court Department has eight divisions; the Juvenile Court Department has eleven divisions; and the Land Court department has one division. In addition to each of the divisions within a court department, some departments hear cases and/or provide other services at additional sites for the convenience of the public.
DIVISION OF ASSETS - A judgment which divides marital property in connection with a divorce.
DIVORCE - The legal termination of a marriage.
DOC - See DEPARTMENT OF CORRECTION.
DOCKET - A written list of all important events in connection with a case, properly called the "case docket." "Docket" is often improperly used to refer to the court's calendar.
DOMESTIC ABUSE - See DOMESTIC VIOLENCE.
DOMESTIC RELATIONS ACTION OR CASE - A legal action or case involving family issues such as divorce, annulment, paternity, child support, spousal support, custody of a minor, or visitation.
DOMESTIC RELATIONS PROTECTIVE ORDER (DRPO) - A restraining order in a domestic relations matter, issued pursuant to G.L. c. 208, ''18, 34(b); c. 209, '32; or c. 209C, ''15, 20. Similar to a 209A restraining order.
DOMESTIC VIOLENCE - A pattern of sexual, physical, emotional and/or financial abuse, perpetrated with the intent to establish and maintain control over an intimate partner or family member. Domestic abuse may include both criminal and non-criminal acts, such as emotional abuse, physical violence, threatening, stalking, destroying property, or attacking pets. The abuse may be directed at people other than the intimate partner (e.g., children) for the purpose of controlling the partner. Also referred to as "domestic abuse," "intimate partner violence," or "battering."
DOMICILE - A person's legal home; the permanent home to which a person, when absent, intends to return; the place the law recognizes as someone's legal residence for tax and other purposes.
DOR - See DEPARTMENT OF REVENUE.
DOUBLE JEOPARDY - The unconstitutional practice of putting a person at risk of being convicted and sentenced more than once for the same criminal offense.
DSS - See DEPARTMENT OF CHILDREN AND FAMILIES.
DUCES TECUM - Latin for "bring with you." On a subpoena, it means that the person subpoenaed must bring records or other specified material into court or to a deposition.
DUE PROCESS (OF LAW) - The fundamental rules that guarantee "fair play" in the conduct of legal proceedings, such as the right to meaningful notice and a hearing, the right to an impartial judge and jury, the right to present evidence on your own behalf, the right to confront your accuser, the right to be represented by an attorney, etc. The 5th and 6th Amendments to the United States Constitution guarantee due process.
DURABLE POWER OF ATTORNEY - See POWER OF ATTORNEY.
DYS - See DEPARTMENT OF YOUTH SERVICES.
EASEMENT - The right to use another's land for a specific limited purpose. For example, an easement may allow one landowner the right to cross the property of another to get access to a road, or allow a utility to lay lines on someone's private property. Easements are usually described in a deed or other document.
EMANCIPATION - The process by which an individual who is under the power and control of another is rendered free of the other's control. Most commonly refers to minors being emancipated from the custody of their parents and treated as adults.
EMINENT DOMAIN - The right of the state, including a subdivision of the state like a city or a town, to take private property for public use. Under the 5th Amendment to the US Constitution and Article X of the Massachusetts Declaration of Rights, any taking of private property by the state requires adequate compensation to the owners of the property.
EN BANC - French for "full bench." An appellate court sits en banc when all justices of that court hear and decide a particular case. The current policy of the Supreme Judicial Court is to sit en banc (with all seven justices attending) for all cases except murder appeals, which are heard by panels of five justices. The minimum number of justices required to sit to hear an appeal is four.
ENJOIN - To forbid or restrain.
EQUAL PROTECTION OF THE LAW - The 14th Amendment to the U.S. Constitution guarantees that "no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and in their pursuit of happiness." Black's Law Dictionary, 6th Ed. In other words, the law must treat similarly all people who are in similar circumstances.
1. The value of property minus the total liens and encumbrances.
2. A system of legal principles and remedies in civil cases that originated in England and survives in the modern U.S. Historically, there were two distinct courts in England - courts of law and courts of equity. Courts of law could award monetary damages in civil cases, but could give no other relief to lessen the harshness of a law in a particular situation or to prevent unjust enrichment. A party seeking relief other than monetary damages had to turn to a court of equity, which could grant non-monetary relief, such as injunctions, divorces, relief from creditors in bankruptcy, etc. There are no longer separate courts of law and equity and equitable relief is available, to a greater or lesser extent, in all Massachusetts courts. However, injunctions are still generally considered to be granted "in equity," while damages are considered remedies "at law." Different legal principles still apply to law and equity actions, and a few procedural distinctions survive, most notably the absence of a right to a jury trial in cases seeking solely equitable relief.
ESCHEAT - The transfer of a decedent's estate to the State when a person dies leaving no heirs.
- The interest a person has in real estate or personal property. For example, property that was owned by a person who has died is referred to as a decedent's estate. Property held in trust for the benefit of another is a trust estate. The property of a person or corporation that has declared bankruptcy is an estate in bankruptcy or bankrupt estate.
- The property of a decedent, trust, or other person whose affairs are subject to the Uniform Probate Code.
ESTOPPEL - The rule that a litigant may not make a claim or take a position which is inconsistent with his or her prior conduct, claim or position. For example, a person claiming the right to sell a piece of land cannot later claim a lack of authority to sell that land in a subsequent lawsuit.
EVICTION - The process by which a tenancy is terminated by a landlord and the tenant removed from rental property.
EVIDENCE - Testimony, documents, physical objects, etc., accepted by a court for the purpose of proving or disproving facts relevant to a case.
EVIDENTIARY HEARING - A hearing at which evidence is presented, as opposed to a hearing at which only matters of law are addressed.
EX PARTE - Latin for "one side only." Involving only one party to a case, without prior notice to any other party. Ex parte actions are generally allowed only in emergency situations.
- Ex Parte Communication: A communication between the court and one party to a case, made without prior notice to any other party.
- Ex Parte Injunction: An injunction issued upon the request of one party to a case, without prior notice to any other party.
- Ex Parte Motion: A motion made to the court by one party to a case without prior notice to any other party.
- Ex Parte Order: A temporary order made by the court without notice to the other side. An ex parte order is typically valid until the other side has an opportunity to appear before the court. In Massachusetts, ex parte orders are most commonly issued to prevent domestic violence under c. 209A, in which case the order is normally valid for up to ten days, until the defendant receives notice of the order and has the opportunity to be heard.
EX POST FACTO - Latin for "after the fact." An ex post facto law makes an act criminal retroactively and is unconstitutional under both the U.S. and the Massachusetts Constitutions because it inflicts punishment for acts that were not illegal when committed.
EXAMINE - In court, to question a witness.
EXCLUSIVE JURISDICTION - The power of a court over an action or person to the exclusion of all other courts.
EXCULPATORY EVIDENCE - Evidence tending to prove that a defendant is not guilty or not liable as charged or alleged.
EXECUTE - To carry out, complete or dispose of according to law.
EXECUTION - The legal paper that allows one to enforce a judgment.
- An order issued by the court to authorize a process-server to seize or take possession of real or personal property to be sold to pay a judgment.
- The carrying out of some act or course of conduct to its completion. For example, execution of a civil judgment is the carrying out of the final judgment of the court by obtaining possession of that which the judgment has awarded.
EXECUTION OF AN INSTRUMENT - The signing, sealing and delivery of a written instrument or document.
EXECUTION OF A SENTENCE - The carrying out of the sentence or punishment ordered by the court in a criminal case.
EXECUTIVE BRANCH - That branch of state government, including the Governor, responsible for executing the law and carrying out public policy.
EXECUTIVE COUNCIL - See GOVERNOR'S COUNCIL.
EXECUTIVE OFFICE OF THE TRIAL COURT (EOTC) - The EOTC includes the Chief Justice of the Trial Court and the Court Administrator and their staff, the Legal Department, the Judicial Institute, and the Department of Research & Planning. See CHIEF JUSTICE OF THE TRIAL COURT, COURT ADMINISTRATOR, OFFICE OF COURT MANAGEMENT.
EXECUTOR (MALE), EXECUTRIX (FEMALE) - In probate law prior to the adoption of the Uniform Probate Code in Massachusetts, a person named in a will to carry out its terms, that is, to execute the will. Now this person is called a "personal representative."
EXHAUSTION OF REMEDIES - The rule that a party can not appeal the decision of a lower court or an administrative agency to a higher authority until the party has used all of the procedures available in the lower court or agency to obtain the relief desired.
EXHIBIT - A document, object, or other material admitted as evidence during a trial or hearing.
EXONERATE - To free from suspicion; to show someone to be free of guilt.
EXPERT WITNESS - A witness who has special knowledge and qualifications in a particular subject area. Whether a witness is actually an expert, so that his or her testimony is admissible as evidence, is a complex issue that is determined by the judge.
EXPUNGE - To destroy or obliterate records, including criminal records, in files of any type, including computer files. Records that have been expunged are treated as if they never existed. See SEALED RECORD OR FILE.
EXTRADITION - The formal process of delivering a person found in one jurisdiction to the authorities of another jurisdiction where that person has been accused or convicted of a crime. Also known as "rendition."
EXTRAORDINARY MEDICAL TREATMENT - Highly intrusive medical treatment.
FAMILY SERVICE OFFICER - See PROBATION OFFICER.
FAULT - Responsibility, such as being at fault in a car crash (which may result in an insurance surcharge) or in a divorce. See GROUNDS FOR DIVORCE, NO FAULT DIVORCE.
FEE-GENERATING APPOINTMENT - An appointment by a court that will generate a fee for the person appointed, paid either by the court or by the party involved, such as an appointment as guardian ad litem.
FELONY - Any crime punishable by imprisonment in a state prison, even if the specific statute allows for an alternative sentence to a House of Correction. Only the Superior Court Department has the authority to order imprisonment in a state prison. The District Court Department has the jurisdiction to hear certain felony cases (those punishable by a maximum of five years or less in state prison and those listed in G.L. c. 218, '26), but only has authority to sentence a defendant to a maximum of two and a half years in a House of Correction. The Superior Court Department has jurisdiction over all other felony cases. The District Attorney decides in which court to bring a case.
FID CARD - See FIREARMS IDENTIFICATION CARD.
FIDUCIARY - A person or institution responsible for managing money or property for the benefit of another. A fiduciary is held to a high standard of care in carrying out this responsibility. Examples of fiduciaries include personal representatives, administrators, conservators, executors, guardians and trustees.
FILE (v.) - The act of submitting the legal documents pertaining to a suit to the Clerk-Magistrate, Recorder or Register of the court.
FILE, FILING (n.) - An original document submitted to the court may be referred to as a "filing" and the entire collection of documents in a case as the "case file."
FILING FEE - Money which must be paid to the office of the Clerk-Magistrate, Recorder or Register at the time a civil action is filed. In most cases, the fee can be waived for people who are indigent.
FINAL ACCOUNT - A final report of the assets, disposition of assets and liabilities of an estate, after all distributions have been made. Once the final account is submitted to the court, the court then enters a decree approving the distribution.
FINAL DECREE - A decree settling all pending issues in a case. See JUDGMENT.
FINANCIAL STATEMENT - A form summarizing a party's income and expenses, assets, liabilities and health insurance, signed by the party under the penalties of perjury and certified by an attorney, if the party is represented by an attorney.
FIREARMS IDENTIFICATION CARD - A card issued by the chief of police in the holder's hometown authorizing the holder to own and possess firearms. Often referred to as an "FID card."
FIRST JUSTICE - The judge designated to assume administrative responsibilities within a division of a court.
FIRST SESSION - A court session that handles the initial steps in cases, administrative matters and/or emergencies. For example, a first session in the Probate and Family Court Department may handle emergency and ex parte matters, 209A cases, etc. A first session in the District Court Department may handle arraignments, calling of the list, referral of cases to other sessions, walk-in emergencies such as commitments for mental illness and 209A orders, etc.
FKA - "Formerly Known As."
FLAT OR FIXED FEE - A type of attorney's fee that often applies to routine legal matters such as a simple will or an uncontested divorce. The total amount of the fee is set at the beginning of the case, regardless of how much time the attorney ends up spending on it. There may be costs in addition to the flat or fixed fee, sometimes referred to as "out-of-pocket expenses."
FORECLOSURE - See MORTGAGE.
FOREIGN JUDGMENT - A judgment issued by a non-Massachusetts court.
FOREIGN PERSONAL REPRESENTATIVE - A personal representative appointed by a non-Massachusetts court.
FOREIGN SUPPORT ORDER - A support order issued by a non-Massachusetts court.
FOREIGN WILL - The will of a decedent whose residence is outside Massachusetts.
FORFEIT (v.), FORFEITURE (n.) - Property which is lost because of the owner has committed a crime (e.g. , the pension of a public employee convicted of a crime, or a house purchased with the proceeds of a crime) or its use in the commission of a crime, such as a car or other equipment.
FORUM - A court or the jurisdiction where a court sits.
FORUM NON CONVENIENS - Latin for "inconvenient forum." A legal doctrine allowing a court to refuse to exercise its jurisdiction in a case because the convenience of the parties and/or the interests of justice would be better served if the case were tried in another court.
FOSTER CARE REVIEW - A periodic review by a Foster Care Review Panel to consider the necessity and appropriateness of services provided to a child in the legal custody of the Department of Children and Families and to the child's family, and to determine whether the tasks outlined in the service plan for the parents, child, and Department of Children and Families social worker have been fulfilled.
FOSTER CARE REVIEW PANEL - A panel conducting foster care reviews under the auspices of the Department of Children and Families' Independent Foster Care Review Unit.
FOSTER HOME - A home licensed by the Department of Children and Families for the temporary board and care of abused, neglected or delinquent children.
FRAUD - The intentional communication of an untruth for the purpose of deceiving others in order to deprive them of property, induce them to give up a legal right or injure them in some other way.
FUGITIVE - Someone who flees in an attempt to evade the consequences of a crime.
FULL FAITH AND CREDIT - A court's constitutional obligation to recognize and enforce orders, decrees, legislative acts, public records and judgments issued by the courts of other U.S. jurisdictions.
GL - See MASSACHUSETTS GENERAL LAWS.
GARNISHMENT - A court order to take part of a debtor's wages or other money before the debtor receives the money to pay an unpaid judgment obtained by a creditor. In many cases, the creditor is a custodial parent seeking child support from a non-custodial parent. Also referred to as a "wage assignment."
GENERAL COURT - The constitutional title of the State Legislature, consisting of the Senate (40 elected members) and the House of Representatives (160 elected members).
GENETIC MARKER TEST - A scientific test, commonly done on a sample of cells swabbed from the inside of the cheek. A genetic marker test is often used to examine the genetic similarities between a child, the child's mother and the alleged father of the child, to help the court determine paternity.
GOVERNOR - The elected chief executive of the executive branch of state government. The Lieutenant Governor acts as the Governor upon the Governor=s death, resignation, removal from office or absence from the Commonwealth. In such circumstances, the Lieutenant Governor is referred to as the Acting Governor.
GOVERNOR'S COUNCIL - Eight councilors elected by districts to advise the Governor in the performance of certain executive functions. The Council's two major powers at present are to approve (or reject) the Governor's appointments for judgeships and certain court clerkships and the Governor's recommendations for pardons or for the commutation of sentences. Also known as the Executive Council.
GOVERNOR'S WARRANT - A warrant issued by one state authorizing another state to take into custody a person who has fled from the issuing state to avoid prosecution or punishment for a crime.
GRAND JURY - A group of citizens that hears evidence relating to criminal complaints and accusations. The evidence is presented secretly, by the prosecutor alone; the defense does not get an opportunity to present its side of the story. The grand jury issues an indictment if satisfied that there is probable cause to believe that a crime was committed, and that the accused committed that crime. At full strength, a grand jury has twenty-three members. Thirteen members must be present for the grand jury to act and twelve votes are necessary to return an indictment.
GRANDPARENT VISITATION - The court-ordered right of grandparents to visit a grandchild whose custodial parent is not their son or daughter.
- To transfer property to another, especially real estate.
- To allow a motion or award the relief sought by a party.
GRANTEE - The person to whom a grant is made, i.e., the person who receives or buys title to real estate by deed.
GRANTOR - The person who makes a grant, i.e., the person who gives or sells title to real estate by deed.
GROUNDS FOR DIVORCE - In Massachusetts, the statutory fault grounds for divorce are adultery, impotency, utter desertion, gross and confirmed habits of intoxication, cruel and abusive treatment, prison sentence of five (5) or more years, and nonsupport.
GROUP HOME - A home licensed by the Office for Child Care Services for the temporary board and care of a group of children; by the Department of Mental Health for the board and care of mentally ill people; by the Department of Mental Retardation for mentally retarded people; or by the Department of Youth Services for delinquent children.
GUARANTOR - A person who is liable to fulfill another person's financial obligation in the event the other person fails to fulfill it. The other person is known as the principal.
GUARDIAN - A person with the legal duty and power to care for a minor or for a person who is legally incapacitated by reason of mental retardation, mental illness or physical incapacity. A guardian may be appointed by a court or designated in a will, though a guardian designated in a will must still be appointed by the court.
GUARDIAN AD LITEM - A guardian Afor the suit@ (Latin), appointed by the court to promote and protect the interests of a person affected by the litigation. Examples:
- A guardian ad litem may be appointed to represent the interests of a minor or incompetent person who is a defendant in a civil action, or who is a party to or affected by a domestic relations or juvenile court proceeding.
- A guardian ad litem may be appointed to represent the interests of any person in any proceeding in the Probate and Family Court. Sometimes a court appoints a guardian ad litem to protect the interests of an unascertained, unknown, unborn, or disappeared person.
- A guardian ad litem may be appointed by a court to investigate some aspect of the facts of a case related to a minor or incompetent person and to report back to the court regarding the results of the investigation.
GUILTY - Legally responsible for a crime.
HABEAS CORPUS - Latin for "you have the body." One of the fundamental protections of individual liberties in Anglo-American law, a writ of habeas corpus is used to bring a person who is in the custody of the state before a court or judge. It commands the sheriff or other person to produce the detainee in court so that the court may determine whether that person is being held legally.
HABEAS CORPUS AD RESPONDENUM - Latin for "you have the body to respond." A writ used to bring a prisoner from prison to court to appear as a defendant in a civil trial in another case.
HABEAS CORPUS AD TESTIFICANDUM - Latin for "you have the body to testify." A writ used to bring a prisoner from prison to court to testify in another case.
HABE - A slang verb referring to the use of a writ of habeas corpus to bring a prisoner into court. The person produced is said to have been "habed" into court.
HARMLESS ERROR - An error committed in the course of a trial that does not justify reversal of the verdict on appeal.
HEALTHCARE PROXY - A written instrument signed by one person giving another person authority to make decisions relating to healthcare in the event the person signing becomes unable to make his or her own decisions.
HEARING - A formal proceeding that is much the same as a trial and may result in the issuance of a final order.
HEARSAY EVIDENCE - Testimony in court about a statement made outside of court, offered to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible, although there are numerous exceptions to the rule against hearsay.
HEIR - A person who under law would inherit from an estate if the decedent did not leave a will. A person has no heir(s) until his or her death. A surviving spouse is an heir and his or her rights are superior to those of any other heirs.
HOLDING - The legally binding conclusions in an opinion or ruling that are necessary to decide the issue under consideration. Unlike dicta, the holding cannot be disregarded in future cases (except by the same or a higher court, which can but rarely does reverse a holding), and must be followed by lower courts. See DISTINGUISH, PRECEDENT.
HOLOGRAPHIC WILL - An unwitnessed will with the portions describing how the property is to be distributed are in the handwriting of the decedent, signed and dated by the decedent.
HOMESTEAD - A declaration filed with the Registry of Deeds by the owner of land that protects the residence, land and buildings named from the claims of creditors, who cannot force the sale of the property to satisfy the owner's debts.
HOSTILE WITNESS - A witness who exhibits such antagonism toward the party who called him or her to testify that the court allows the calling party to conduct cross-examination of the witness. Normally, a party is only allowed to do direct examination of that party’s own witnesses and the opposing party does cross-examination.
HOURLY FEE - A form of attorney's fee arrangement with a client in which the lawyer charges by the hour. The hourly rate varies from lawyer to lawyer.
HOUSE OF CORRECTION - A county detention facility administered by a sheriff which holds criminal defendants and people convicted of crimes. In most counties, the county jail and the house of correction are the same facility. Pre-trial detainees (defendants who are not granted bail or are not able to post bail while they await trial on the charges against them), material witnesses and people committed for contempt of court are housed at the jail. People who are convicted of a misdemeanor or are convicted of a felony in the District Court Department serve their sentences in the House of Correction.
HOUSING COURT DEPARTMENT - One of the seven Trial Court Departments in the Commonwealth. There are five divisions of the Housing Court Department, all of which have concurrent jurisdiction with both the District Court Department and the Superior Court Department to hear cases involving the use of real estate and activities that affect the health, welfare and safety of any resident, occupant, user or member of the public, including eviction cases and cases seeking enforcement of building, health and sanitary codes.
HOUSING SPECIALIST - An official of the Housing Court Department appointed to assist the judges of that department. Housing specialists must be knowledgeable in the maintenance, repair and rehabilitation of dwelling units, applicable state and federal laws, landlord/tenant problems and the availability of funding and services to resolve such problems. They also provide mediation services in some types of cases.
ICWA - See INDIAN CHILD WELFARE ACT.
ILLEGITIMATE CHILD - See OUT OF WEDLOCK.
IMPANEL - To select the members of a jury from a venire.
- To cast doubt on the credibility (believability or truthfulness) of a witness.
- To remove from public office in accordance with the Constitution, statutes, laws or other authority.
IMPEACHMENT - The constitutional procedure whereby the Senate, after impeachment (accusation) by the House of Representatives, may remove a state officer, including a judge, from office.
IMPLEAD - See THIRD PARTY COMPLAINT.
IMPOUND - To keep some or all of the papers, documents or exhibits in a case separate from the case file and unavailable to the public. Impoundment must be ordered by a judge and is normally allowed only on motion, and only if the moving party shows that allowing public access to the information in question would be harmful, but some material in some types of cases is automatically impounded.
IN CAMERA - Latin for "in chambers" or "in private."
- In camera examination: A judge's review of documents in the judge's chambers prior to issuing a ruling regarding their admissibility or use.
- In camera hearing: A hearing held in the judge's chambers or in the courtroom with the public excluded.
IN FORMA PAUPERIS - Latin for "in the form of a pauper." Permission given to an indigent person to proceed without paying any court costs or fees associated with a legal action or claim.
IN HAND - In some cases, a summons, subpoena or other document must literally be placed in the hand of the person to whom it is addressed in order to be properly served, referred to as "in hand" service of process.
IN PERSONAM JURISDICTION - See JURISDICTION.
IN REM - Latin for "regarding the thing." An in rem action is an action concerning title to property, usually real estate (as opposed to an action in personam or against a person.) Two elements are necessary to obtain in rem jurisdiction: (1) the property must be located in the Commonwealth and (2) adequate notice must be given to all parties having an interest in the property.
INADMISSIBLE - See ADMISSIBLE EVIDENCE.
INCAPACITATED PERSON (IP) - A minor or a person who is legally considered to be unable to care for themselves and who has been placed under the care of a guardian. Prior to the adoption of the Uniform Probate Code in Massachusetts, an incapacitated person was known as a ward.
INCARCERATION - Commitment to a detention facility such as a prison or house of correction.
INCOME WITHHOLDING - Child support or other court-ordered payments taken from the paycheck of the person required to make the payments (the “obligor”) by the employer and sent directly to the obligee (the person to whom the money is owed) by the employer. See WAGE ASSIGNMENT, GARNISHMENT.
INCOMPETENT EVIDENCE - Inadmissible evidence.
INCOMPETENT TO STAND TRIAL - See COMPETENT.
INCONVENIENT FORUM - See FORUM NON CONVENIENS.
INCULPATORY EVIDENCE - Evidence which tends to incriminate the accused or prove that the accused committed the offense or acts charged or alleged.
INDIAN CHILD WELFARE ACT (ICWA) - A federal law affecting care and protection proceedings and termination of parental rights cases involving Native American children who are members of or eligible to become members of a federally recognized Indian tribe. It places additional notice, procedural, and evidentiary requirements on the petitioner as well as the court in these cases.
INDICIA - Signs or indications of the existence of a fact. Facts that give rise to inferences. For example, some indicia of credibility might be the witness's demeanor, the consistency of his or her testimony, and whether there is any corroborating evidence of the fact in dispute. Similar to circumstantial evidence.
INDICTMENT - A formal accusation voted by a grand jury at the request of a prosecutor which charges a person with a crime. The grand jury indictment replaces the application for a complaint in felony cases. Also called a "true bill" (or a "no bill" if the grand jury fails to indict.)
INDIGENT - Impoverished; needy; poor; without funds. Many court fees are waived for people who are indigent and file an affidavit of indigency. In a criminal case, counsel is appointed for an indigent defendant.
INFERIOR COURT - Lower court. Any court subordinate to a higher appellate court in a particular judicial system.
INFRACTION - The violation of a statute, code or ordinance which is treated as a civil offense rather than a criminal offense and is punishable only by a fine.
INHERITANCE - Property received from someone who dies, whether through a will or as required by law if there is no will (called "intestate succession".)
INITIATIVE - A procedure begun the collection of signatures of a required number of voters in support of a petition to place on the ballot a question asking whether to enact a statute or to amend the state constitution.
INJUNCTION - An order requiring a person to do something or to stop doing something that threatens to cause or does cause irreparable injury to another. A preliminary injunction is granted while the case is going on to stop a party from doing or continuing to do some act until the rights of the parties are fully determined. A preliminary injunction may become permanent once the issues are adjudicated. A permanent injunction remains in force forever unless and until modified by a subsequent order of a court.
INNOCENT - A non-legal term indicating that a person did not commit a crime and bears no responsibility for the offense charged. In contrast, the legal term "not guilty" means that there is not enough admissible evidence to convict a person of the crime charged, regardless of whether he or she actually committed the crime. A "not guilty" verdict simply means that the prosecution failed to meet its legal burden of proof.
INQUEST - An evidentiary hearing presided over by a judge of the District Court Department inquiring into the manner of death of someone who has been killed or has died suddenly or under unusual circumstances. An inquest can be requested by the Attorney General or a District Attorney, or, less frequently, by the Medical Examiner. It may result in an indictment or take the place of an indictment if the court finds that a crime has been committed.
INSANITY - A defense to a criminal prosecution; a legal term, not a medical term. In Massachusetts, a person is not responsible for criminal conduct if at the time of that conduct, as a result of mental disease or defect, he or she lacks substantial capacity to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law.
INSTRUMENT - A formal written legal document, such as a contract, bond, lease or will.
INTER VIVOS - Latin for Abetween living people. Usually refers to a type of trust which is created and funded during the life of the person creating it (as opposed to a trust which is created and funded in a will.)
INTERIM BOND - A bond set by a police officer when a person is arrested for a misdemeanor offense without a warrant. A misdemeanor warrant may also have an interim bond endorsed on it by the issuing judge or magistrate. An interim bond allows the defendant to be released pending arraignment.
INTERIM ORDER - See TEMPORARY ORDER.
- Interlocutory order: An order that decides a legal or procedural point or matter during a lawsuit but is not a final decision of the case.
- Interlocutory appeal: The appeal of an interlocutory order prior to a final decision in the case. In general, appellate courts are reluctant to rule on interlocutory appeals.
INTERPLEADER - On occasion, two or more people claim the same thing from a third party, and the third-party does not know who has the better claim. If one claimant brings a law suit against the third party, the third party may bring all of the other claimant(s) into the suit in a process called "interpleading." This allows all of the claims to be resolved at once, in a single legal action, so that the third party is not exposed to multiple lawsuits related to the same set of facts.
INTERPRETER - Someone who converts spoken words from one language to another.
INTERROGATORIES - A set of written questions about the facts of a case posed by one party to the other as part of the discovery process. The answers to interrogatories must be given in writing and under oath in accordance with the Massachusetts Rules of Civil Procedure.
INTERSTATE - Involving two or more states.
INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN - An agreement among all fifty states, the District of Columbia, and the U.S. Virgin Islands that a state agency will not send a child to another state for foster care or other substitute care without the receiving state having an opportunity to investigate the placement and approve or disapprove of it. The sending agency might be the Department of Children and Families or the court or another state agency or entity.
INTERSTATE COMPACT ON JUVENILES - An agreement among all fifty states, the District of Columbia, and the U.S. Virgin Islands to cooperate with the return from one state to another of delinquent juveniles who have escaped from a detention facility or non-delinquent juveniles who have run away from home. The agreement also permits a delinquent juvenile within one state to be placed on probation or parole in another state if the juvenile intends to reside in that state.
INTERSTATE INCOME WITHHOLDING ORDER - An order entered to enforce child support obligations by withholding income earned in one state to satisfy a child support order of another state.
INTESTATE - Dying without having made a valid will. When someone dies intestate, distribution of the estate is determined by statute.
INTESTATE SUCCESSION - The statutory scheme for determining who inherits property when a person dies without having made a valid will.
INVENTORY - A list of the assets of a decedent or incapacitated person that are subject to management by a fiduciary.
IP - See INCAPACITATED PERSON.
IRRETRIEVABLE BREAKDOWN - A ground for divorce which does not assign fault to either party. If the parties agree on the grounds for divorce and have a written agreement on all issues (including child custody, child support, alimony and the division of assets), a divorce for irretrievable breakdown may be granted based on a joint petition for divorce pursuant to G.L. c. 208, '1A, often referred to as a "1A divorce." If the parties are unable to reach an agreement prior to filing for divorce, one person can file a complaint for divorce alleging irretrievable breakdown of the marriage, pursuant to G.L. c. 208, '1B, often referred to as a "1B divorce."
- Of a person: All of the person=s lineal descendants of all generations.
- In a pleading: A single, certain, and material point, which is in dispute and is raised in the pleadings of the parties to a lawsuit.
ISSUE PRECLUSION - See COLLATERAL ESTOPPEL.
JNOV - See JUDGMENT NOTWITHSTANDING THE VERDICT.
JAIL - See HOUSE OF CORRECTION.
JENKINS HEARING - A hearing which must be held within twenty-four hours after a person is arrested without a warrant to determine whether that person will be released on bail or personal recognizance. If the arrestee is to be held solely because of the arrest and not because of any other outstanding warrant or other case, there must be a finding of probable cause to hold him or her. The hearing is called a Jenkins hearing after the case in which the Supreme Judicial Court announced this requirement. Jenkins hearings can be conducted by a judge or by a clerk-magistrate or assistant clerk-magistrate.
JOB SEARCH ORDER - A court order requiring a party to look for employment and provide proof that he or she has in fact looked for employment as required, usually to the Probation Department.
JOINT CUSTODY - See SHARED CUSTODY.
JOINT PETITION FOR DIVORCE - A petition filed by spouses together who agree on all issues pertaining to a divorce, including the grounds for divorce, the division of marital property and all issues related to the children (if any).
JOINT PHYSICAL CUSTODY - See SHARED CUSTODY.
JUDGE - A public official who presides over cases in a court of law and decides cases except those decided by a jury. In Massachusetts, judges are appointed by the Governor. The titles "judge" and "justice" are often used interchangeably, though in Massachusetts the statutes use the term "justice."
JUDGMENT - The decision of a court disposing of a case, almost always issued in writing. The written judgment is sometimes accompanied by a written discussion of the facts and law supporting the court's decision.
JUDGMENT ABSOLUTE - The final judgment in a divorce, which enters automatically 90 days after the judgment nisi unless objections are filed.
JUDGMENT NISI - Latin for "unless." A judgment by the Probate and Family Court which dissolves a marriage and addresses custody and marital property issues "unless" it is challenged during the nisi period. The nisi period ends and the judgment becomes absolute, or final, after 90 days.
JUDGMENT NOTWITHSTANDING THE VERDICT - A judgment that reverses a jury's verdict, granted when a judge determines that the jury verdict has no reasonable support in fact or is contrary to the law. This is often referred to as a "JNOV" or "Judgment NOV."
JUDGMENT NOV - See JUDGMENT NOTWITHSTANDING THE VERDICT.
JUDICIAL CASE MANAGER - Formerly known as "assistant registers", judicial case managers are appointed by the First Justice in each Division of the Probate and Family Court. Their duties may vary from division to division but courtroom duties generally include calling cases, swearing in witnesses, keeping statistics, entering exhibits, checking files for trial readiness and keeping cases moving in an orderly fashion. Judicial case managers also review stipulations, uncontested domestic relations and probate matters and make recommendations regarding these matters to judges. They may also advise judges, attorneys and the general public on procedural matters.
JUDICIAL NOMINATING COMMISSION - A group appointed by the Governor to solicit, interview, evaluate and recommend candidates for the positions of judge and clerk-magistrate, often referred to as the "JNC".
JUDICIAL RECALL - A statutory process for the temporary assignment of judicial duties to a retired judge. Recalled judges are paid on a per diem basis for the performance of judicial duties.
JUDICIAL RESPONSE SYSTEM - A system operated by the Trial Court that makes judges available at all times on an emergency basis. All judges in the Commonwealth serve on Judicial Response, most for a week at a time approximately once nine months. They are available to the police by beeper and telephone at night, on weekends and on holidays. Judges on Judicial Response issue temporary restraining orders under c. 209A, make emergency mental health commitments, issue search warrants, and handle other emergency situations.
JURISDICTION - A court's authority to decide cases. Some examples of types of a court's jurisdiction are:
- Subject Matter Jurisdiction: The authority to hear a particular type of case. For example, the Probate and Family Court has jurisdiction over divorce cases, and the District Court and the Housing Court have jurisdiction over small claims cases.
- Personal Jurisdiction: The legal power of a court to render a judgment against a particular person or corporation in a proceeding, also called "in personam" jurisdiction.
- Geographic Jurisdiction: Similar to venue, but geographic jurisdiction cannot be waived. For example, by statute the divisions of the Housing Court Department have jurisdiction only over disputes arising in a particular geographic area.
- Appellate Jurisdiction: The authority to hear appeals of a particular type of case.
JURY - A group of people (usually six or twelve, depending on the court and the type of case) sworn to consider the evidence presented by the parties, determine issues of fact, and deliver a verdict in a trial. Types of juries include the trial jury, also known as a "petit jury," and the grand jury.
JURY CHARGE - See JURY INSTRUCTIONS.
JURY COMMISSIONER - The officer responsible for administering the jury system. The jury commissioner is appointed by the Supreme Judicial Court and is responsible for scheduling citizens of the Commonwealth to appear for jury duty in a particular court on a particular day and for prosecuting those who fail to appear when required to do so.
JURY INSTRUCTIONS - Instructions given by the judge to the jury regarding the law that applies to the case being heard by the jury. Also known as the "charge to the jury" or "jury charge."
JURY PANEL - The group of prospective jurors from which the trial jury is chosen, also known as a venire.
JURY TRIAL - A trial in which a jury determines issues of fact, applies the law to the facts, and delivers a verdict. See BENCH TRIAL.
JUSTICE - See JUDGE.
JUVENILE - A person under the age of eighteen.
JUVENILE COURT - A Department of the Trial Court that has general jurisdiction over delinquency proceedings; child requiring assistance (CRA) cases (formerly known as child in need of services (CHINS) cases); care and protection petitions (C&Ps); cases involving an adult contributing to the delinquency of a minor; adoptions; guardianships; termination of parental rights proceedings and youthful offender cases. The Juvenile Court Department was created by the Court Reorganization Act of 1992. There are eleven divisions in this Department, with forty-one judges sitting in more than forty locations.
JUVENILE DELINQUENCY PROCEEDINGS - See DELINQUENCY PROCEEDINGS.
KIN - Anyone related to a person (including a deceased person) by blood.
LAND COURT - A Department of the Trial Court and the only court of its type in the United States, other than Hawaii. The judges of the Land Court hear cases statewide involving, among other things, the registration of title and disputes about title to real estate; taxes on real estate; certain aspects of mortgage foreclosures; appeals from the decisions of local zoning and planning boards; and permits for the use or development of real estate.
LAND DAMAGE CASE - In the Superior Court, an action brought to determine the fair market value of real estate taken by eminent domain.
LANDLORD - The person or entity, usually the owner, that controls and rents real estate to others in return for the payment of money.
LAR - See LIMITED ASSISTANCE REPRESENTATION.
LAWSUIT - See CASE.
LAWYER - See ATTORNEY.
LAWYER FOR THE DAY - A volunteer lawyer available in some courts to speak to individual litigants at the courthouse and provide limited legal advice at no cost.
LAWYER REFERRAL SERVICE - An organization that provides individuals looking for legal assistance with the names of lawyers who might be able to represent them. Typically, a local, county or state bar association will be a source of lawyer referrals.
LEASE - A contract or agreement for the rental of real or personal property for a specific period of time. In the case of real estate, the lease gives rise to the relationship of landlord (the "lessor") and tenant (the "lessee").
LEGACY - Personal property left by will to another.
LEGAL CUSTODY - See JOINT CUSTODY, CHILD CUSTODY.
LEGAL SERVICES PROGRAM - An organization that provides free legal assistance in certain types of cases to individuals meeting income eligibility requirements.
LEGATEE - A person who receives property under a will.
LEGISLATIVE ADDRESS - A procedure for removing state officers, including judges, from office. Unlike impeachment, legislative address does not require a finding of mal-administration or misconduct in office. However, legislative address requires the combined action of the House of Representatives, the Senate and the Governor with the advice and consent of the Governor’s Council.
LEGISLATIVE HISTORY - The background of a statute, including reports of committees of the Legislature and prior versions of the bill, which helps an appellate court determine what the Legislature intended.
LEGISLATIVE INTENT - The intent of the Legislature in enacting a statute. Courts may use an ambiguous statute=s legislative history in order to ascertain what the Legislature was trying to accomplish when it enacted the statute.
LEGISLATURE - The branch of state government authorized to enact laws (statutes) and to appropriate funds for public purposes.
LESSEE - Someone who leases property.
LESSER INCLUDED OFFENSE - A crime the elements of which are also elements of another crime, but the other crime has one or more additional elements. Examples: assault and battery is a lesser included offense of indecent assault and battery; voluntary manslaughter is a lesser included offense of murder; possession of cocaine and possession of cocaine with intent to distribute are both lesser included offenses of trafficking in cocaine.
LESSOR - Someone who offers property to be leased.
LIABLE - Obligated by law; responsible for. In a civil case, a defendant is "liable" or "not liable" for the damages sought, rather than "guilty" or "not guilty" as in a criminal case.
LIBEL - Injury to a person's character or reputation in print, writing, pictures, or signs. See DEFAMATION, SLANDER.
- Government permission to own or use something or to engage in an activity.
- Permission to use or copy copyrighted material.
- Permission to copy a patented object.
LICENSED PREMISES - Real estate on or in which someone is authorized to engage in regulated activity, e.g., to sell alcoholic beverages.
LIEN - A claim against property to secure a debt or other obligation. If the property involved is real estate, the lien may be recorded in the Registry of Deeds so that anyone checking the title to the property will know that someone has a claim to it. See ATTACHMENT.
LIMITED ASSISTANCE REPRESENTATION - Legal services provided under an agreement between the client and the lawyer that the lawyer will perform only specific tasks on the case, and the client will be responsible for other tasks.
LIMITED GUARDIAN - A guardian whose power over the incapacitated person has been limited by a court's order.
LINE-UP - A police procedure by which a suspect in a crime is exhibited with other similar-appearing people to determine whether a witness can identify the suspect as the perpetrator.
LIS PENDENS - Latin for "suit pending." When real estate is the subject of litigation, a "notice of lis pendens" may be filed with the Register of Deeds in the county where the property is located, warning people that the property is subject to litigation and that they may be bound by the court's judgment regarding the property.
LITIGANT - A party to a lawsuit.
LITIGATION - The process of resolving a dispute in court.
LONG ARM STATUTE - A law (G.L. c. 223A) that allows a court to assert personal jurisdiction over a person who is outside of the Commonwealth of Massachusetts under certain circumstances.
MAGISTRATE - See CLERK-MAGISTRATE.
MAJORITY - More than half, e.g., at least four of the Supreme Judicial Court's seven justices.
MAJORITY OPINION - A written opinion announcing the court's decision in any case decided by more than one judge. The majority opinion explains the reasoning followed by a majority of the justices who heard the case, and its holding is binding on the lower courts in future cases.
MAKE WHOLE - See RESTITUTION.
MAL-ADMINISTRATION/MISCONDUCT IN OFFICE - Grounds for removing a state officer, including a judge, from office through the impeachment process.
MALFEASANCE - The intentionally improper performance of some act or duty. See MISFEASANCE.
- In law: Deliberately and knowingly breaking the law without legal justification or excuse.
- In slander and libel cases: Deliberately making a false statement about another with evil intent or in reckless disregard of its falsity. A private person bringing a slander or libel suit does not have to prove malice, but a public figure with special prominence or notoriety in society, such as an athlete, actor, politician or criminal, must prove malice.
MANDAMUS - Latin for "we command." A written order requiring the person to whom it is addressed, often a public official, to do some specified act, generally connected with an official duty.
MANDATED REPORTER - A person required by law to report suspected child abuse or child neglect to the Department of Children and Families. Mandated reporters are usually people who come in contact with children as part of their work, like medical personnel and teachers, or law enforcement personnel, or court employees like probation officers and clerk-magistrates, but not judges.
MANDATORY MINIMUM - When a person is convicted of certain crimes specified by statute, a judge is required by statute to impose a specific minimum sentence, narrowing or removing the judge's discretion to determine the sentence.
MANDATORY RETIREMENT AMENDMENT - A 1972 amendment to the Massachusetts Constitution requiring all Massachusetts judges to retire at age seventy. Previously, Massachusetts judges were appointed to serve "for life during good behavior."
MARGINALLY INDIGENT - A criminal defendant who is unable to afford the complete cost of legal representation, but is able to contribute something toward his or her representation. A judge decides how much a marginally indigent defendant should contribute to his or her defense.
MARITAL PROPERTY - Property belonging to spouses which is divided between them if the spouses divorce.
MASSACHUSETTS CORRECTIONAL INSTITUTION (MCI) - See STATE PRISON.
MASSACHUSETTS GENERAL LAWS (MGL) - Statutes of general and continuing application, as opposed to session laws.
MASSACHUSETTS GENERAL LAWS ANNOTATED (MGLA) - A series of volumes containing the text of Massachusetts statutes, plus brief references to cases and legal commentaries discussing them.
MASSCOURTS – The Trial Court’s electronic docketing and case management system.
MASTER - A person appointed by the court to hear and summarize the merits of a case, or pass judgment subject to approval of the court, usually an attorney or a retired judge. The master reports facts to the court and may examine parties under oath.
MATERIAL - Important, substantial.
MATERIAL WITNESS - A witness who can provide important testimony that is perhaps not available from any other source.
MCI - See STATE PRISON.
MEDICAL EXAMINER - A public official appointed by the governor to inquire into the cause and circumstances of certain deaths, including violent, unexpected, public or other unusual or suspicious deaths. Also known as a "coroner."
MEMORANDUM OF LAW - See BRIEF.
MENTAL ILLNESS - A substantial disorder of thought or mood which significantly impairs a person’s judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
MENTAL RETARDATION - Intellectual abilities significantly below average.
METRICS – A type of measurement used to gauge some quantifiable component of an organization’s performance. In the Trial Court, that might mean data on how often cases get continued or how many cases get resolved within time standards, as a measure of how cases flow through the system.
MGL - See MASSACHUSETTS GENERAL LAWS.
MGLA - See MASSACHUSETTS GENERAL LAWS ANNOTATED.
MILITARY AFFIDAVIT - A form used to indicate whether a party to a case is in the military of the United States or its allies. The federal Service Members’ Civil Relief Act requires the court to appoint a military attorney to give notice to any service member involved in civil litigation.
MINOR - In most cases, a person under the age of eighteen. In some cases, a person under the age of twenty-one. Whether someone is a "minor" is determined by the circumstances of the case and the law that applies to that case.
MIRANDA WARNING - A warning and statement of rights given by police prior to questioning a person in their custody who was arrested for committing a crime. The Miranda warning advises the arrestee of the right to remain silent, the right to an attorney and the right to have an attorney appointed if he or she cannot afford one. It also warns that any statement given may be used against him or her in court. The name refers to Miranda v. Arizona, 348 US 436 (1966), a U.S. Supreme Court case in which the court outlined the information the police must give to those in their custody. Arrestees who have been given the required warnings are sometimes said to have been "Mirandized."
MIRANDIZE - See MIRANDA WARNING.
MISDEMEANOR - Any crime not punishable by a sentence to a state prison. Both the District Court and the Superior Court have jurisdiction over all misdemeanor cases, though the vast majority are heard in District Court.
MISFEASANCE - The negligently improper performance of some act or duty. See MALFEASANCE.
MISTRIAL - A trial terminated prior to a verdict, usually due to a significant damaging error in the proceedings or the inability of the jury to agree upon a verdict.
MITT - See MITTIMUS.
MITTIMUS - Latin for "we send":
- A writ presented to the keeper of a jail or prison, directing the keeper to receive and hold an offender awaiting trial or sentence. Often referred to as a A"mitt."
- A writ directing the transfer of records from one court to another.
MODIFICATION – See COMPLAINT FOR MODIFICATION.
- Moot case: A case in which the issue raised has been resolved, leaving no dispute which would be affected by the court's decision. A moot case will usually not be heard any further or decided by the court.
- Moot court: A "practice court' for students learning to argue using hypothetical cases or for attorneys preparing for oral argument in actual cases.
MORTGAGE - A lien on real estate to secure the performance of some obligation. The lien is discharged upon payment or performance as agreed. In modern times, most real estate owners borrow money from a bank to purchase the property. The bank receives a mortgage in exchange for the loan and can take ownership of the property in a process called foreclosure if the property owner fails to repay the loan as agreed.
MORTGAGEE - Someone who holds a mortgage; the creditor, often a bank.
MORTGAGOR - The maker of a mortgage; the debtor, often a homeowner.
MOTION - A request made to a court in the course of a legal case seeking an order or decision on some aspect of the case. The person making the motion is known as the "moving party." Motions may be made in writing or orally. For example:
- Motion in limine: Latin for "at the threshold." A motion made before trial to determine ahead of time whether a particular piece of evidence will be admissible at trial.
- Motion to compel: A motion seeking to force the other party to comply with a discovery request.
- Motion to suppress: A motion made before a criminal trial asking the court to exclude evidence that will be offered by the prosecutor at trial because it was obtained in violation of the defendant's constitutional rights.
- Motion to quash C See QUASH.
MOTION JUDGE - The judge who decides a motion before a trial (such as a motion to suppress or a motion to dismiss) but who may or may not hear the actual trial. An appellate court may need to distinguish between the motion judge and the trial judge, depending on whose decision is before the appellate court.
MOTION SESSION - A court session exclusively devoted to hearing and deciding motions.
MOVING PARTY - The party who makes a motion.
MUNICIPAL CHARTER - A legislative document authorizing the establishment and organization of a municipal government.
MUNICIPALITY - Local government, a city or a town.
NEUTRAL PERSON - As used in the area of dispute resolution, an individual engaged as an impartial third party to provide dispute resolution services. A neutral person could be a mediator, an arbitrator, a case evaluator or a conciliator. A neutral person could also be a court employee such as a master, clerk, clerk-magistrate, register, recorder, family service officer, housing specialist, probation officer or other person when that person is engaged as an impartial third party to provide dispute resolution services.
NCP - See NON-CUSTODIAL PARENT
NE EXEAT - Latin for "you may not exit." An order forbidding the person to whom it is addressed to leave the country, the state or the jurisdiction of the court.
NEUROLEPTICS - See ANTIPSYCHOTIC MEDICATIONS
NEXT FRIEND - Similar to a guardian ad litem, a next friend may be appointed by the court to represent, defend or prosecute the interests of a minor or incompetent person. A child's parents may also file suit as the child's next friend without a court appointment. Sometimes referred to as acting "on behalf of" or "OBO" the minor or incompetent person.
NEXT OF KIN - A person’s closest blood relative, as defined by local law.
NIGHTTIME - In criminal cases, one hour after sunset on one day until one hour before sunrise on the next day.
NISI - See JUDGMENT NISI
NO CONTACT ORDER - An order prohibiting someone from having contact with another person, often the victim of or a witness to a crime.
NO FAULT - A case which is decided without making a determination as to which party is at fault. For example, a no fault divorce can be granted simply because the parties wish to be divorced, without requiring one party to prove that the other committed adultery, was cruel and abusive, or otherwise caused the end of the marriage.
NO FAULT INSURANCE - A type of automobile insurance which pays for damage regardless of who was at fault.
NOL PROS - See NOLLE PROSEQUI.
NOLLE PROSEQUI - Latin for "no further prosecution." A formal declaration made on the court record that the prosecutor will not further prosecute the case. Sometimes referred to as a "nol pros" and sometimes noted on the docket as "NP."
NOLO CONTENDERE - Latin for "I will not contest it." A statement made in court by the defendant in a criminal case that is not an admission of guilt, as in a "guilty plea," but does indicate that the defendant is ready to accept conviction and sentence rather than go to trial. A guilty plea requires the defendant to tell the court exactly what he or she did. When a defendant pleads nolo contendere, there is no such requirement. This allows the defendant to avoid an admission that might create civil liability if a civil action is pending or may be filed later.
NON-CUSTODIAL PARENT (NCP) - The parent who does not have physical custody of a child. Usually refers to the parent with whom the child does not live, although the non-custodial parent may have shared legal custody of the child.
NONFEASANCE - The failure to perform some act or duty which ought to be performed.
NOT GUILTY -
- A plea entered by a defendant in a criminal case, indicating that the defendant is not admitting to the charges and that the Commonwealth will have to prove them in order to convict the defendant.
- A verdict of a jury or judge in a criminal case. A "not guilty" verdict is not a finding that the defendant is innocent of the charges but rather indicates that the Commonwealth has failed to meet its legal burden of proof beyond a reasonable doubt.
NOTARY, NOTARY PUBLIC - A person who is authorized by the Commonwealth to administer oaths and certify the authenticity of signatures, and who must have and use a seal or stamp. Notaries do not have to be attorneys. A notary is different from a “notario”, which is a Spanish-language term for a certain type of lawyer practicing in a Spanish-speaking legal system. Notarios are not authorized to practice law or give legal advice in the United States (unless they are also attorneys.)
- Notice of appeal: The written notice filed by a party to request that an appellate court review a decision or judgment made by a Trial Court. The original is filed with the Trial Court Department or Division where the case originated, which prepares the record on appeal to send to the appellate court. The Massachusetts Rules of Criminal and/or Civil Procedure dictate how a party properly files a notice of appeal.
- Notice of hearing: A written notice to a party of the time, date, place, and subject matter of an upcoming court proceeding.
- Notice to quit: A written notice by a landlord to a tenant demanding that the tenant vacate the property. The notice to quit terminates the tenancy. Depending on the grounds for the eviction, the notice to quit will give the tenant a specific number of days to move out of the premises. A properly served notice to quit is required in most cases before a tenant can be evicted.
NP - See NOLLE PROSEQUI.
NUNC PRO TUNC - Latin for "now for then."
- Nunc pro tunc order: An order allowing an act to be done now, although it is past the time it should have been done, to be effective retroactively to when it should have been done (then)
- Nunc pro tunc amendment: An amendment given retroactive effect by court order.
- Nunc pro tunc filing: The filing of a pleading to take effect retroactively to an earlier time.
OATH - A declaration of the truth of a statement, made under penalties of perjury and generally invoking the Deity's name.
OBITER DICTUM - See DICTUM.
OBLIGOR – A person required by court order to make a payment to another.
OBLIGEE – A person who receives a payment from another pursuant to a court order.
OBO (ON BEHALF OF) - See NEXT FRIEND.
OCP - See OFFICE OF THE COMMISSIONER OF PROBATION.
OFFENSE - A crime or a violation of an ordinance.
OFFICE - A person's right and accompanying duty to exercise a public function.
OFFICE OF COURT MANAGEMENT – The office headed by the Court Administrator responsible for managing many aspects of Trial Court operations, providing services to all Trial Court departments in the following areas: Court Capital Projects, Facilities Management, Fiscal, Human Resources, Information Services, Support Services, and Security. See EXECUTIVE OFFICE OF THE TRIAL COURT.
OFFICE OF THE COMMISSIONER OF PROBATION - The office responsible for administering the probation system in the Commonwealth.
OFFICE OF THE JURY COMMISSIONER – The office responsible for administering the jury system in the Commonwealth, including scheduling jurors and prosecuting people who fail to serve on jury duty as required by law.
OFFICER - A person holding an office of trust, command or authority in a corporation, government or other institution or organization.
ON AND AFTER SENTENCE - See CONSECUTIVE SENTENCE.
ON BEHALF OF - See NEXT FRIEND.
ONE DAY, ONE TRIAL - The Massachusetts system for summoning and using jurors. Each person called for jury duty spends no more than one day waiting to be selected for a jury and, if selected, serves only for the length of one trial, however long that trial might last.
ONE TRIAL SYSTEM - See DE NOVO.
OPEN ADOPTION - An adoption allowing the biological parents to maintain contact with a child surrendered for adoption by agreement with the adoptive parents.
OPEN ADOPTION AGREEMENT - See POST-ADOPTION CONTACT OR COMMUNICATION AGREEMENT.
OPINION - See CONCURRING OPINION, DISSENTING OPINION, MAJORITY OPINION.
ORAL ARGUMENT - Time allotted by a court for the parties to argue their side of the case orally, directly to the judge(s.) Oral argument could be regarding a motion or regarding an appeal. At trial, the attorneys often make closing arguments, summarizing the evidence and arguing to the judge and/or the jury for a particular outcome. In an appellate court, oral argument is usually fifteen minutes per side. In first degree murder cases, each side is given thirty minutes. Many motions and appeals are decided without oral argument, based on the written arguments (briefs or memoranda) submitted by the parties.
ORDER - A command or directive of the court.
ORDER AFTER NOTICE - In an abuse prevention case under c. 209A, the order issued by the court after a hearing at which both the defendant and the victim have an opportunity to present evidence. The hearing must be held within ten days of the issuance of an ex parte order and is often referred to as a “ten-day hearing.” The initial order after notice can last for up to one year and can be extended for additional one-year terms or can be made permanent after the first year.
ORDER OF PRETRIAL DETENTION - See DANGEROUSNESS HEARING.
ORDINANCE - A local law or regulation enacted by a city, having no effect outside that city.
OUT OF WEDLOCK CHILD - A child born to parents who are not married to each other. Formerly referred to as an "illegitimate child."
- See JURY PANEL, VENIRE.
- Rather than have all of the justices on an appellate court hear and decide each case that comes before the court, justices may sit in panels of three (in the Appeals Court) or five (in the Supreme Judicial Court) to hear and decide cases. Both the Appeals Court and the Supreme Judicial Court typically hear cases in panels. In some instances, all of the justices on an appellate court hear a case. This is called sitting en banc.
PARDON - To excuse someone from the consequences of a criminal act. Usually, the chief executive (the Governor or President) has the authority to pardon, sometimes with the consent of another body, such as the Governor’s Council in Massachusetts.
PARENS PATRIAE DOCTRINE - Latin for "parent of the country." The inherent power and authority of the state to protect people who are legally unable to manage their own affairs, such as minors and people found to be incompetent.
PARENTING PLAN – A plan designed and agreed to by two parents who do not live together regarding their parenting of the children they have in common, including how much time each parent will spend with the child, how decisions will be made regarding the child and other details.
PAROLE - Conditional release from prison before the end of a sentence. If the parolee observes the conditions, he or she need not serve the rest of his or her term. Parole is granted by a state agency called the Parole Board and is supervised by a parole officer.
PAROLE BOARD - The state agency responsible for hearing and deciding requests by prisoners to be released on parole.
PARTITION - The division of real estate among two or more interested parties.
PARTNERSHIP - An association of two or more persons as co-owners of a business for profit. Partners share profits or losses, control and management of a business enterprise.
- A person concerned with or taking part in a matter or transaction, such as a party to a contract.
- A person by or against whom a lawsuit is brought, i.e., the plaintiff or defendant.
PATENT - Protection given to an inventor to protect against unauthorized use or copying of an invention.
PATERNITY - Fatherhood.
PATERNITY SUIT - A suit to establish whether a particular person is a child's biological father.
PENDENTE LITE - Latin for "during litigation."
PER CAPITA - Latin for "by the head." A method of dividing an estate equally among a given number of people; the opposite of per stirpes.
PER STIRPES - Latin for "by roots or stocks." A method of dividing an estate by right of representation where a group of distributees take the share to which their deceased ancestor would have been entitled, such as where children take the share to which their parent would have been entitled if the parent were still alive; the opposite of per capita.
PEREMPTORY CHALLENGE - See CHALLENGE.
PERJURY - A deliberate lie told in a judicial proceeding or a legal document by a person sworn or otherwise under a legal obligation to tell the truth. A statement made “under penalty of perjury” is a sworn statement for which the person making it can be prosecuted for the crime of perjury if the statement is discovered to be deliberately false.
PERMANENCY HEARING - A hearing to determine and monitor implementation of a permanency plan for a child in the custody of the Department of Children and Families. The first hearing must take place within one year of a child's placement in state foster care and every twelve months thereafter.
PERMANENCY PLAN - A plan determined by the Juvenile Court for a child who is the subject of a child welfare proceeding and who is in the custody of the Department of Children and Families. The plan must address whether, and if applicable, when: (1) the child will be returned to the parent; (2) the child will be placed for adoption and the steps the Department will take to free the child for adoption; (3) the child will have a legal guardian appointed; or (4) the child will be placed in another planned permanent living arrangement.
PERMANENT INJUNCTION - See INJUNCTION.
PERSONAL PROPERTY - Any property except real estate.
PERSONAL RECOGNIZANCE - See RELEASE ON RECOGNIZANCE.
PERSONAL REPRESENTATIVE - Under the Uniform Probate Code, an executor, administrator, successor personal representative, special administrator, special personal representative or other person who performs essentially the same function under the law governing their status. See ADMINISTRATOR, EXECUTOR.
PETIT JURY - See JURY.
PETITION - A written request to the court, often initiating a court action; also the document in which the request is made.
PETITIONER - The person who files a petition requesting or initiating a court action. The other party is usually called the "respondent," though in some cases, such as a joint petition for divorce, both parties are referred to as the petitioner.
PETITION FOR DEPOSIT - A pleading in which a fiduciary requests authorization to deposit funds in a bank account in the name of the First Justice of the Probate and Family Court for the benefit of a minor or of an heir whose whereabouts are unknown.
PETITION FOR REMOVAL OF FIDUCIARY - A pleading filed by an heir or next of kin for the removal of a fiduciary who is alleged to be unsuitable.
PHYSICAL CUSTODY - See CUSTODY, CHILD CUSTODY.
PLAINTIFF - The person who initiates a civil case by filing the complaint.
PLEA - The defendant's response to a criminal charge (e.g., guilty, not guilty, nolo contendere).
PLEA-BARGAINING - In criminal cases, a process of negotiation between the prosecutor and the defendant that resolves the case without a trial. The two sides agree on a sentence to be recommended to the judge in exchange for the defendant's plea of guilty.
PLEADINGS - In a civil action, the papers that set forth the parties' claims and defenses. The plaintiff's pleadings state his or her claims against the defendant. The defendant's pleadings state his or her defenses to the plaintiff's claims and any counterclaims he or she may have. There are other, less common, types of pleadings, such as a third-party complaint.
POLICE PROSECUTOR - A police officer assigned to prosecute criminal cases. Once common in the Boston Municipal and District Court Departments, police prosecutors have generally been replaced by assistant district attorneys.
POST-ADOPTION CONTACT OR COMMUNICATION AGREEMENT - An enforceable agreement between the birth parents and the adoptive parents of a child to allow for the exchange of information regarding the child and/or visitation after the adoption decree is entered. The agreement must meet the statutory provisions of G.L. c. 210, '6C in order to be enforceable. A Post-Adoption Contact and Communication Agreement is often referred to as an "Open Adoption Agreement."
POWER OF ATTORNEY - A written instrument appointing and authorizing a person to act in the place of another. Someone holding a power of attorney is called an "attorney-in-fact," and may or may not be a lawyer. A "durable power of attorney" is one which becomes or remains effective if the person granting it later becomes disabled or dies.
PRECEDENT - Earlier appellate decisions, or holdings, which control, in whole or in part, the issue currently before a court. Precedent is sometimes referred to by its Latin name, stare decisis, which refers to the binding nature of precedent. See HOLDING.
- Binding precedent: In Massachusetts, decisions by the Supreme Judicial Court, which must be followed by all Massachusetts courts in cases in which similar issues arise, unless distinguished or overruled.
- Persuasive precedent: Case law from courts other than the Supreme Judicial Court, including decisions by the Appeals Court, the federal First Circuit Court of Appeals, and the appellate courts of other states. Persuasive precedent is binding in the particular case in which the decision was made and gives guidance on how a court should handle the same or a similar issue arising in other cases.
PRECLUSION - See RES JUDICATA, COLLATERAL ESTOPPEL.
PREJUDICIAL ERROR - An error in the course of a trial serious enough to require an appellate court to reverse the judgment. Also known as "reversible error."
PRENUPTIAL - Made or done before marriage. Usually refers to an agreement regarding how marital assets are to be distributed upon the death of one of the marriage partners or if the parties divorce. Also known as "antenuptial."
PREPONDERANCE, PREPONDERANCE OF THE EVIDENCE - See BURDEN OF PROOF.
PRELIMINARY INJUNCTION - See INJUNCTION.
PRESENTENCE REPORT - A written report prepared by a Probation Officer on the family and personal history of a defendant in a criminal case, evaluating the crime and its ramifications, and making recommendations as to the sentence. A presentence report is required in all felony cases and is used by the judge as a guide in determining the sentence.
PRESIDING JUDGE - The judge conducting a hearing or trial or in charge of a case.
PRETRIAL CONFERENCE - A hearing conducted by the judge or a clerk-magistrate with the attorneys and any self-represented litigants to resolve, narrow or reduce the number of issues that must be tried.
PRETRIAL DETAINEE - A criminal defendant who has been denied bail or is unable to post the bail set and so is being held in a jail until trial.
PRETRIAL HEARING - See PRETRIAL CONFERENCE.
PRIMA FACIE - Latin for "at first sight"; “on the face of it.”
- Prima facie case: The facts that establish a party's right to relief if no evidence to the contrary is offered by the other party.
- Prima facie evidence: Evidence that is sufficient to prove a fact unless overcome by other evidence.
- A person who has permitted or directed another (an agent) to act for his or her benefit.
- A person responsible for paying a debt.
- Property, as opposed to the income from the property. The term often refers to property put into a trust or to the amount of a loan, not including the interest.
PRIVILEGED COMMUNICATION - A communication protected from forced disclosure during a case unless the privilege is waived. Usually a communication is privileged if it is between people in a special relationship protected by statute or common law, such as between an attorney and a client or a patient and a therapist.
PRO BONO - Short for pro bono publico, Latin for "for the public good." Usually used to describe legal services provided to a client free of charge.
PRO SE - Latin for "for oneself." Usually used to describe a litigant who represents himself or herself in court without a lawyer.
PROBABLE CAUSE - In criminal cases, reasonable grounds for believing that the facts justify issuing an arrest or search warrant or a criminal complaint, or taking other legal action.
PROBABLE CAUSE HEARING - A hearing to determine whether there is probable cause to hold a criminal defendant charged by complaint in District Court for trial, and more particularly, whether there is probable cause to bind over the defendant for indictment and trial in the Superior Court. The hearing must take place as soon as possible (usually within ten days of arraignment). The defendant is entitled to representation by an attorney, evidence is presented and witnesses may be examined. If the crime charged in the complaint is within the District Court's jurisdiction, the judge must announce at the outset whether the hearing is a trial on the merits of the case, or a probable cause hearing. In order to bind a defendant over for indictment and trial in the Superior Court, the judge must find that there is probable cause to believe the defendant is guilty of the crime charged.
PROBATE - The court proceeding by which the assets of a deceased person's estate are transferred to the heirs.
PROBATE AND FAMILY COURT - The Department of the Trial Court with jurisdiction over family-related matters such as divorce, separate support, paternity, child support, custody, visitation, adoption, termination of parental rights and abuse prevention and probate matters such as wills, trusts, administrations, guardianships, medical treatment cases, conservatorships and change of names.
PROBATE ASSETS - Any property, real and/or personal, tangible and/or intangible, owned by a deceased person at the time of his or her death in his or her own name alone or as a tenant in common, except those assets which are subject to transfer on death by other mechanisms. For example, a house owned by the deceased person would be a probate asset, but survivor benefits under a retirement plan are non-probate assets because the beneficiary is named by the decedent prior to his or her death; the benefits go to the beneficiary without involvement by the court.
PROBATION - A defendant convicted of a criminal offense may be ordered to serve some or all of the sentence "on probation" as opposed to being incarcerated. The defendant is released but is subject to conditions set by the judge and usually supervised by a Probation Officer. If a person violates the conditions of probation, the probation can be revoked and the probationer incarcerated.
PROBATION OFFICER - An employee within the Office of the Commissioner of Probation who, on the criminal side, supervises the activities of people on probation, and who, on the civil side, may perform investigations and provide dispute intervention services, depending on the case and the court Department.
PROBATION REVOCATION - The process by which a probationer is brought before the court for violating the terms of probation. A probation revocation hearing can result in the imposition of a sentence to incarceration. Often referred to as a "probation surrender" or "surrender" hearing.
PROBATION SURRENDER - See PROBATION REVOCATION.
PROBATIONER - A person who is on probation.
PROBLEM-SOLVING COURT – See SPECIALTY COURT.
PROCEEDING - Any hearing or court appearance related to the adjudication of a case.
PROCESS - An order to appear in court or to enforce a judgment. Subpoenas and summonses are examples of process.
PROCESS SERVER - A person, usually a constable or a deputy sheriff, authorized to deliver a summons or complaint to a person being sued or to deliver a subpoena to a witness.
PRODUCTION OF DOCUMENTS - A form of discovery in which one party is required to produce documents and other items related to the case for review by the other party.
PROPERTY - Anything that may be the subject of ownership.
PROSECUTOR - An attorney who represents the Commonwealth in a criminal case.
PROTECTED PERSON – A person for whom a conservator has been appointed.
PROTECTIVE PROCEEDINGS – A proceeding for appointment of a conservator to manage the estate of a protected person.
PUBLIC ADMINISTRATOR - The person who is named to temporarily administer the estate of an intestate decedent who has no known next of kin living in the state. Public Administrators are appointed for each county, by the Governor, for a term of five years. They are temporarily in charge of the decedent's property until a personal administrator is appointed.
PUBLIC DEFENDER - An attorney paid by the Commonwealth to represent an indigent defendant in a criminal case. In Massachusetts, the Committee for Public Counsel Services has staff attorneys paid by the Commonwealth to represent indigent defendants, and also trains and supervises attorneys in private practice who are paid by the case.
PUBLIC DOMAIN - Belonging to or open and available to the public, not subject to a copyright.
PURCHASE-MONEY MORTGAGE - A mortgage on land given by the buyer to the seller concurrently with the conveyance of that land as collateral for the unpaid balance of the purchase price.
PUTATIVE - Alleged; supposed, e.g., the putative father in a paternity case.
QDRO - See QUALIFIED DOMESTIC RELATIONS ORDER.
QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) - An order by a Probate and Family Court judge, usually issued pursuant to a Judgment of Divorce, directing an employer (or former employer) to divide a retirement plan that is subject to the restrictions of the Employee Retirement Income Security Act (ERISA). This order is often referred to as a QDRO, pronounced "cwadro".
QUANTUM MERUIT - Latin for "as much as he deserves." A legal action requesting payment for the value of work performed even in the absence of a formal contract.
QUASH - To nullify an order. For example, a motion to quash a subpoena is a request by a party or a witness that the court modify or cancel the subpoena.
QUITCLAIM DEED - A deed that guarantees that real estate is free of encumbrances (like liens or claims) made by the seller
QUID PRO QUO - Latin for "this for that." The giving of one thing of value for another.
QUO WARRANTO - Latin for "by what authority" or "by what warrant". A writ used to determine the right of an individual to exercise authority, usually brought by the Attorney General to test a person's claim of right to hold public office.
REAL ESTATE - Land and whatever is erected or growing upon it or affixed to it. Also called "real property" or "realty."
REAL PROPERTY - See REAL PROPERTY.
REALTY - See REAL ESTATE.
RECEIVER - A fiduciary appointed by the court to collect, manage, distribute and account for the assets of a person or corporation who is absent from the Commonwealth or who is otherwise unable to properly manage the assets of a business or an estate.
RECESS - A brief time set by the judge when those in court, including the jury, are excused from the courtroom. The judge usually leaves the bench during a recess.
RECIDIVISM - Going back to a previous behavior, especially criminal behavior.
RECOGNIZANCE - See PERSONAL RECOGNIZANCE.
- (n.) The word-for-word (verbatim) account by the official court reporter or an official
audio tape of all proceedings in the courtroom.
- (v.) To register a deed for real estate in the Registry of Deeds.
RECORD ON APPEAL - The pleadings, motions, exhibits, orders and/or decrees filed in a case in the Trial Court, a copy of the docket entries, the findings of the trial judge and a transcript of the testimony taken in the case. These materials are forwarded to the appellate court when a case is appealed.
RECORDER - The official in the Land Court who serves a role similar to that of a clerk-magistrate in other Departments of the Trial Court. The Recorder maintains the records of the court, and also hears and decides certain kinds of cases.
RECUSAL - See DISQUALIFICATION.
REDIRECT, REDIRECT EXAMINATION – Once the opposing party has conducted cross-examination of a witness, the party calling the witness has the right to conduct further direct examination of the witness to clarify and elaborate on testimony given on cross-examination. Redirect can be conducted only on areas covered on cross-examination.
REDUCED FEE PANEL - A list of lawyers who may represent people involved in civil cases at a lower cost than usual, depending on the type of case and the income of the individual seeking representation.
REFERENDUM - A procedure allowing individuals or groups to collect the signatures of voters on a petition to place a question on the ballot in an election. See INITIATIVE.
REGISTER OF DEEDS - The elected official responsible for maintaining a county’s Registry of Deeds, where records of real estate ownership are kept. Some counties are divided into parts, each having a Register of Deeds.
REGISTER OF PROBATE - The elected official in the Probate and Family Court of each county who serves a role similar to that of a clerk in other Departments of the Trial Court. The Register's office is referred to as the Registry of Probate. The case files in domestic relations, probate and other cases over which the Probate and Family Court has jurisdiction are kept there.
REGISTERED LAND - Real estate, the title to which has been certified by the Land Court in a case before that court following procedures set by statute.
REGISTRY ABSTRACT - Most often, a summary of the court's finding on a moving motor vehicle violation. The term commonly refers to the form that the courts send to the Registry of Motor Vehicles to notify it of action on a case, including defaults.
REGISTRY OF DEEDS - See REGISTER OF DEEDS.
REGISTRY OF PROBATE - See REGISTER OF PROBATE.
REGULATION - A rule or order with the force of law issued by an administrative agency rather than by the Legislature.
RELEASE-ON-RECOGNIZANCE (ROR) - The pretrial release of an arrested person who has promised in writing to appear for court at a later date, without a requirement that cash or surety be deposited with the court.
RELEVANT - Pertinent or applicable to a matter in question.
RELIEF - The assistance, damages or benefit that a plaintiff seeks from the court.
- The remnant of an estate, the distribution of which is not provided for in a will.
- Assets held in a trust after all of the named beneficiaries have died.
REMAINDERMAN - A person who is named to receive the remainder of an estate.
REMAND - To send a case back to the court from which it originated for further proceedings. Usually ordered by an appellate court with instructions as to what further proceedings are required in the lower court.
REMITTITUR - An order reducing a damages award by a jury that the judge considers excessive.
REMOVAL - The transfer of a case from one court to another court.
REMOVAL OF DEFAULT - The cancellation of a default judgment, restoring the case to its status before the defendant defaulted.
RENDITION - See EXTRADITION.
REPLEVIN - A civil action to recover or repossess property unlawfully taken or held by another and to obtain damages suffered as a result of the unlawful taking or holding of the property, now abolished in Massachusetts.
- A person responsible for making a verbatim record of everything said in the courtroom during a hearing or trial, including the questions addressed to, and answers made by, witnesses, usually for the purpose of preparing a verbatim transcript, using manual shorthand, a stenotype machine or a stenomask. Also known as a “court reporter,” “court recorder,” or “court stenographer.”
- A court official responsible for compiling, indexing and publishing the written opinions of a court.
REQUEST FOR ADMISSIONS - A method of discovery by which one party lists facts related to a case and asks the other party to either admit or deny that the facts listed are true.
REQUEST FOR PRODUCTION OF DOCUMENTS - See PRODUCTION OF DOCUMENTS.
RES GESTAE - Latin for "things done." In general, res gestae is an exception to the rule against admitting hearsay evidence.
- A matter incidental to the main or principal fact, which helps explain that fact.
- Acts and words which are so related to an occurrence as to appear to be evoked and prompted by it.
- Res gestae witness: A person taking part in and/or witnessing a crime who may have personal knowledge concerning the crime or the defendant's possible involvement.
RES JUDICATA - Latin for "a thing adjudicated.” Refers to the principle that a party to a case is bound by a valid, final judgment in that case. A party cannot relitigate claims that were or could have been raised and decided in a completed case against the same opposing party in a new case. Also called "claim preclusion."
RESCRIPT - The appellate court order to the trial court that tells the trial court what to do with the case. Common rescripts are "judgment affirmed," "judgment reversed," "judgment vacated," etc.
RESCRIPT OPINION - A brief, unsigned appellate opinion.
RESIDENCE - The place where a person presently lives, not necessarily the person=s permanent home or domicile.
RESIDUE - The part of an estate remaining after all debts, charges and legacies have been paid.
RESOLVE, RESOLUTION - An expression of legislative opinion or intention; a special law not intended to be included in the General Laws.
RESPONDENT - A party against whom a motion or petition is filed.
- In criminal cases: Money that a convicted defendant is required to pay to the victim to compensate for damage suffered as a result of the crime.
- In civil cases: The amount of money necessary to restore a party to the party's position prior to suffering the wrong, sometimes referred to as making the party "whole."
RESTRAINING ORDER - A court order that a person stop doing or continuing to do something that threatens or causes irreparable injury to another. In Massachusetts, the term is often used to refer to an order issued pursuant to G.L. c. 209A to protect an individual from violence and abuse by an intimate partner, family member or other person in a special relationship as defined by statute. A restraining order can be temporary or permanent.
RETAINER - A down payment on the total bill for legal services, usually used in cases where the attorney is being paid an hourly rate.
RETURN DAY - The specific day set by the court on which the parties to a case must appear in court for a hearing and/or respond to an event in the case in writing.
RETURN OF SERVICE - A report by a sheriff, deputy sheriff or process server recording the manner in which he or she served a process or order of the court. The return of service is filed with the court to prove that service was made.
REVERSE - To set aside, annul or vacate a judgment on appeal.
REVERSIBLE ERROR - See PREJUDICIAL ERROR.
REVOCATION - Generally, to annul or cancel something or to take something back.
REVOCATION OF WILL - The annulment or rendering inoperative of a will by some subsequent act of the testator.
REVOCATION OF PROBATION - See PROBATION REVOCATION.
RIGHT OF REPRESENTATION - See PER STIRPES.
ROR - See RELEASE ON RECOGNIZANCE.
RULES OF STATUTORY CONSTRUCTION - Legal principles used by a court to decide what a statute means. For example, the words used must be given their ordinary meaning and the statute must be read consistently with related laws. The goal is to carry out, as much as possible, the intent of the Legislature. There are many rules of statutory construction.
SAFE KEEPING OF WILL - The deposit of a will with the Probate and Family Court in the county in which the testator/rix lives to keep until the testator/rix either dies or wishes to change the will. A fee is charged.
SATISFACTION - A written acknowledgment of receipt of payment or performance of a judgment which is filed with the court.
SATISFY A JUDGMENT - Pay the damages ordered as part of a judgment in a civil case.
SEALED RECORD OR FILE - An adult criminal or juvenile delinquency record which is closed and cannot be examined by anyone except by order of the court. See EXPUNGE.
SEARCH WARRANT - A written order issued by a judge or clerk-magistrate which allows the police to search a specific place for specific evidence. To get the warrant, the police must show that there is probable cause to believe that the object(s) sought will be found in the place(s) to be searched. With limited exceptions, evidence discovered by the police searching without a warrant cannot be used in court.
SECTION 35 COMMITMENT - A commitment to a drug treatment facility made when a court determines that a person's alcohol or drug abuse is a danger to him- or herself or to others and requires a safe and secure intervention. Family members, blood relatives, police officers and physicians can petition a court for this commitment.
SENTENCE - The punishment imposed following a conviction in a criminal proceeding.
SEPARATION - A judgment by a court that two married people may live separately while remaining husband and wife, and declaring the rights and obligations of the parties while they are separated.
SEPARATION AGREEMENT - A contract between spouses who have separated documenting their agreement on issues relating to child custody, property division, child support, alimony, etc. This contract is usually submitted to the court by the parties to a divorce case for approval by the court.
SEPARATION OF POWERS - The principle that government powers should be allocated to three separate branches of government - the executive, the legislative and the judicial branches - so that no one branch of government has all of the power. The United States Constitution and all of the state constitutions include separation of powers provisions.
SEQUESTER - See SEQUESTRATION.
- Sequestration of jury: An order directing that a jury be isolated from contact with the public and the media during a trial and/or during deliberations, designed to prevent jurors from being improperly influenced by factors outside of the control of the court.
- Sequestration of witnesses: An order directing that a witness to stay outside the courtroom and not discuss testimony with others until the witness is called to testify, designed to prevent witnesses from being influenced by the testimony of other witnesses.
SERVICE OF PROCESS - The delivery of writs, orders or other documents to the party to whom they are addressed, usually by a process server (a constable or a deputy sheriff.) Forms of service include:
- In-hand service: Delivering the documents directly into the hand of the addressee.
- Last and usual service: Leaving the documents at the last and usual residence of the addressee.
- Service by publication: Publishing the summons or other notice as a legal advertisement in a designated newspaper, used when the party to be served is absent or is a nonresident.
SERVICE PLAN - A plan drawn up by the Department of Children and Families describing the services to be provided to a family to resolve a crisis. Service plans are often introduced into evidence in termination of parental rights, care and protection and adoption cases to show the efforts the Department has made to keep the family together.
SERVICE MEMBERS CIVIL RELIEF ACT (SCRA) - A federal statute (formerly known as the Soldiers and Sailors Civil Relief Act) that protects people in the military from being sued while in active military service of their country and for up to a year after active duty. Because of the SCRA, certain additional steps are required in some cases in Massachusetts courts. For example, when a bank wishes to foreclose a mortgage, it must file a petition under the Act in state court to establish whether the property owner is in the military; if so, the proceeding will be suspended. Similarly, in certain matters in the Probate and Family Court, the plaintiff must file a military affidavit stating the military status of the other party or parties to the case.
SESSIONS CLERK - A court employee who works in the courtroom assisting the judge running the court session.
SESSION LAW - A law passed by the legislature that is not of general application and is not included in the Massachusetts General Laws.
SETTLEMENT - The resolution of a case or dispute before going to trial.
SHARED CUSTODY - In a domestic relations proceeding, one or both of the following:
- the children live with one parent part of the time and with the other parent part of the time (usually referred to as "joint physical custody"); and/or
- the parents make decisions on important issues dealing with the children together (usually referred to as "shared legal custody.")
SHERIFF - An elected county law enforcement officer who has the authority to execute all lawful writs, process, and orders, and to appoint deputies to act in the same capacity. The sheriff also operates the county jail and house of correction, and in some counties operates a community corrections center.
SHOW CAUSE HEARING - A hearing conducted by a clerk-magistrate or judge in which the complainant in a criminal case, usually a police officer, is required to show sufficient facts to establish that there is probable cause to believe that a crime has been committed and that therefore a criminal complaint should be issued against a defendant.
SIMULTANEOUS INTERPRETATION C A process of converting spoken words from one language to another in which the interpreter converts the words spoken from language A to language B as they are being spoken, so that the speaker does not need to pause to wait for the interpretation to occur.
SINGLE JUSTICE - Justices of the Appeals Court and the Supreme Judicial Court sit alone in a "single justice session" in addition to sitting in panels and sitting en banc. The single justice may review and decide a variety of cases, including interlocutory orders, orders for injunctive relief and matters within the SJC's original jurisdiction, such as bar admissions and discipline, extraordinary writs, etc. A single justice may report a matter to the full bench and a party unhappy with the single justice's decision may appeal to the full bench. Associate Justices typically sit as single justice for a month at a time. The Chief Justice does not sit as a single justice.
SJC - See SUPREME JUDICIAL COURT.
SLANDER - Injury to a person's character or reputation by the spoken word. See DEFAMATION, LIBEL.
SLAPP - See STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION.
SMALL CLAIMS - A special process for resolving civil cases in which the amount of damages claimed usually does not exceed $7,000.00. Small claims cases are heard by a clerk-magistrate or assistant clerk-magistrate, without a jury and usually without attorneys. The defendant may appeal the decision to a judge.
SOLDIERS AND SAILORS PETITION - See SERVICEMEMBERS CIVIL RELIEF ACT.
SOLE CUSTODY - See CHILD CUSTODY.
SPECIAL LAW - A law of limited applicability not intended for inclusion in the General Laws.
SPECIALTY COURT – A court session addressing a specific issue or condition, for example, substance abuse, mental health or homelessness, in a focused way, with intensive supervision and active involvement by the judge, probation, treatment and service providers, attorneys and others, sometimes referred to as “problem-solving courts.”
SPECIFIC PERFORMANCE ORDER - An order directing a party to a contract to do what the party contracted to do. Generally used when the thing or service contracted for is unique, such as real estate, so that money damages for breach of contract would be inadequate.
SPENDTHRIFT - A person who by excessive drinking, gaming, idleness, or debauchery of any kind spends, wastes, or lessens his or her estate and exposes himself or herself or his or her family to want or suffering, or exposes the state to charges or expenses for the support of himself or herself or his or her family.
SPENDTHRIFT TRUST - A trust created to provide for a spendthrift while at the same time protecting the funds from his or her improvidence or incapacity.
SPOUSAL ELECTION - A surviving spouse's choice between accepting the provisions of a will or claiming instead the portion of the estate for by statute.
SPOUSAL SUPPORT - A sum of money that a court orders paid by one spouse to the other for support, aid, or maintenance in a separation or divorce. An award of spousal support does not include child support. Also known as "alimony."
SPOUSE - Gender-neutral term for husband or wife.
STALKING - Willful repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel that way.
STANDARD OF REVIEW - The legal standard applied by an appellate court to decide whether the court or administrative agency whose ruling or decision is being reviewed should be reversed. Some common standards:
- Clear Error: A trial judge's finding of fact will not be reversed in the absence of clear error, because those findings are based on the judge's assessment of the credibility of the witnesses who were seen and heard by the judge and not by the appellate court.
- Abuse of Discretion: A trial judge's judgment will not be reversed when it is reasonable, even though an appellate court might have ruled otherwise, since the ruling is a "judgment call" that is for the judge to make.
- Error of Law: A trial judge will be reversed for an error of law in some circumstances.
STANDING - A litigant with "standing" is someone who has a legally protected interest in the case.
STARE DECISIS - See PRECEDENT.
STATE PRISON - A correctional facility (Massachusetts Correctional Institution or MCI) operated by the Department of Corrections. Only the Superior Court can sentence someone to state prison.
STATUS OFFENSE - An activity that would not be considered a violation of the law if committed by an adult, but that may cause a minor to be brought before the Juvenile Court, such as being a runaway, being truant from school, etc.
STATUTE OF FRAUDS - A legal rule that certain types of contracts, such as real estate sales agreements, must be in writing or they will not be enforced by the courts.
STATUTE OF LIMITATIONS -
- In civil cases: A law requiring that a civil case must be begun within a certain period of time after the alleged injury or damage occurred.
- In criminal cases: A law requiring that a prosecution for a criminal act must be begun within a certain period of time after the alleged crime occurred.
STATUTE OF REPOSE - A statute setting out the time limits within which an action for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real estate must be begun.
STATUTES - Laws enacted by a legislature. In Massachusetts, state statutes are collected in the Massachusetts General Laws (MGL) or Massachusetts General Laws Annotated (MGLA). Federal statutes are found in the United States Code (USC) or United States Code Annotated (USCA).
STATUTORY CONSTRUCTION - The process of determining the meaning of a legislative act through the application of accepted legal principals. See RULES OF STATUTORY CONSTRUCTION.
STAY - The suspension of a judicial proceeding by court order. For example, a stay pending appeal stops the execution of a sentence or judgment until an appellate court has reviewed the matter.
STIP - See STIPULATION.
STIPULATION - An agreement between opposing parties on any matter relating to the proceedings, e.g., to extend the time to answer, to adjourn the trial date, to admit certain facts at the trial, to dismiss the case, etc. The stipulation may require court approval to be effective. Facts that are stipulated need not be proved by evidence at trial. Sometimes referred to as a "stip."
STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION - Litigation intended to discourage or punish dissent or disagreement, commonly referred to as a SLAPP suit. In Massachusetts, the anti-SLAPP statute is G.L. c. 231, '59H.
SUA SPONTE - Latin for 'on its own.' A court acts sua sponte when it takes action voluntarily, without first being requested to act by a party to the case.
SUBPOENA - Latin for 'under penalty.' A writ or order to require attendance by a witness or the production of documents at a hearing or a deposition, with a penalty for failure to do so.
SUBPOENA DUCES TECUM - See DUCES TECUM.
SUBROGATION - The substitution of one person in the place of another in connection with a legal right. Most commonly used in civil cases where an injured person has been paid by an insurance company (subrogee); the insurance company can then use the policy holder=s right to recover damages to seek reimbursement from the party that caused the damage for which the insurance company paid.
SUBROGEE - See SUBROGATION.
SUBSTANCE ABUSE - As administratively defined by the Supreme Judicial Court, substance abuse is the "chronic and habitual ingestion of drugs or alcohol to the extent that (i) such use substantially injures a person's health or substantially interferes with his or her social or economic functioning, or (ii) a person has lost the power of self-control over the use of drugs or alcohol. It is a chronic, relapsing disorder requiring ongoing rather than episodic intervention. It is predictable, progressive, symptomatic and treatable." (Supreme Judicial Court, Standards on Substance Abuse, Introduction; Adopted March 30, 1995).
SUBSTITUTED JUDGMENT HEARING - A hearing to determine whether a person is competent to make medical decisions, including a decision to reject medical treatment. If the court determines that the person is incompetent, the court will make a decision regarding medical treatment by substituting its judgment for that of the incompetent person, after determining what decision the incompetent person would make if he or she were competent.
SUCCESSOR - A person who replaces or follows another, taking over all functions, rights, and responsibilities.
SUMMARY JUDGMENT - A pre-trial procedure in which a party tries to avoid a civil trial by showing that there is no genuine conflict about the facts of the case requiring a judge or jury to determine what the facts are and that, assuming those facts to be true, the law entitles that party to a favorable judgment.
SUMMARY PROCESS C The process by which a landlord terminates a tenancy and evicts the tenant from rental property. Summary process cases are usually heard in Housing Court or District Court, though the Superior Court also has jurisdiction if the landlord claims that the tenant owes more than $25,000 in rent.
SUMMONS - A notice to a party stating that a case has been filed and that the party must appear in court on a specific date and at a specific time to answer the complaint. The summons also describes the consequences of failing to comply.
SUPERIOR COURT - The Superior Court, one of the seven Trial Court Departments, is the Commonwealth's court of general jurisdiction. It operates sessions in fourteen counties of the Commonwealth. It has fifteen elected clerks (Suffolk County has a civil clerk and a criminal clerk.) Civil cases seeking more than $25,000.00 and cases in which equitable relief is sought must be brought in Superior Court. First degree murder cases must be brought in Superior Court, which also has jurisdiction over all other criminal cases, though most cases involving less significant crimes are heard in other courts, such as the District Court, the Boston Municipal Court or the Juvenile Court. The Superior Court has original jurisdiction in actions involving labor disputes where injunctive relief is sought; the exclusive authority to convene medical malpractice tribunals; and appellate jurisdiction over certain administrative agency proceedings.
SUPPLEMENTARY PROCESS - A civil procedure used by a creditor to enforce a judgment against a debtor, in which the court determines whether the debtor has the ability to pay the judgment and, if so, issues a payment order.
SUPPORT ORDER - In a domestic relations proceeding, an order for payment of money to meet the ongoing financial needs of a child, spouse, or former spouse. Support may also include health care and educational expenses.
SUPPRESS - See MOTION TO SUPPRESS.
SUPREME JUDICIAL COURT (SJC) - The highest appellate court in the Commonwealth of Massachusetts and the only "constitutional" court, that is, the only court established by the state constitution rather than by statute. The SJC has final authority regarding the decisions of all lower courts, and has "superintendency" power over the administration of the lower courts. The SJC has a chief justice and six associate justices who generally sit in panels of five to hear and decide cases. The SJC also runs a single justice session in which one justice, assigned on a rotating basis, hears certain types of appeals.
SURETY - A person or corporation who agrees to fulfill another person's financial obligation if the other person, known as the principal, fails to fulfill it.
SURRENDER - See ADOPTION SURRENDER, PROBATION REVOCATION.
TAKE - As used in probate law, to acquire title or to be entitled to an estate, such as when a person is entitled to "take" under a will.
- The appropriation of privately owned property by the state for public use, also known as "eminent domain."
- The appropriation of real estate by a city or town because the owner has not paid real estate taxes on the property.
TEMPORARY GUARDIAN - See GUARDIAN.
TEMPORARY ORDER - An order issued in the early stages of a domestic relations case to ensure that any children involved are cared for appropriately and that both parties have enough money to take care of themselves and any children. The order remains in effect until there is a trial or an agreement that results in a judgment that divides any assets, orders spousal support and/or child support, and establishes custody and visitation arrangements.
TEMPORARY RESTRAINING ORDER - See RESTRAINING ORDER, INJUNCTION, 209A.
TENANT - A person who rents or occupies real estate belonging to another for a temporary period.
TENANT-AT-WILL - A tenant who occupies rental property without a written lease, paying the landlord an agreed-upon rent. Unlike a tenancy under a lease, which terminates when the term of the lease terminates, a tenancy-at-will continues indefinitely, until either the landlord or the tenant gives notice to the other party that the tenancy is being terminated.
TENANT-AT-SUFFERANCE - A tenant who has been ordered evicted by a court but who stays in the property temporarily. For example, a court may order the tenancy terminated and the tenant evicted but give the tenant thirty days to move out. During that thirty-day period, the tenant is a tenant-at-sufferance and is expected to pay for the use and occupancy of the premises. May also refer to a tenant who stays in the property after a lease ends.
- The holding of an office.
- Guaranteed permanent employment after a probationary period, usually in the area of higher education.
- The fixed or limited period for which an individual is intended to hold a particular office or position.
- The length of time for which a prison or house of correction sentence is imposed.
TERMINATION OF PARENTAL RIGHTS - A proceeding to determine if a person=s right to parent a child should be terminated, making the child legally free for adoption, or terminating the parent=s right to notice of any custody proceedings involving the child. These cases are commonly referred to as A210 cases@ after G.L. c. 210, '3, the statute that governs them.
TESTATE - Died having made a will. See INTESTATE.
TESTATE SUCCESSION - Inheritance of a decedent's property as stated in the decedent's will.
TESTATOR (MALE), TESTATRIX (FEMALE) - Someone who has made a will.
TESTIMONY - The statement of a witness, made under the penalties of perjury, which is offered as evidence.
THIRD-PARTY COMPLAINT - A procedure in a civil case which allows a defendant to implead, or bring in, another party who may be liable to the defendant to pay or help pay any judgment for the plaintiff in the case. The procedure avoids a separate action by the defendant against the third party by combining both cases in one.
- Ownership of property. A person who owns property is said to have title to it.
- A division of a code or collection of statutes or regulations. For example, the U.S. Code is divided into groups of statutes on a particular topic, each with a separate title.
TITLE IV-D - A federally-supported program to ensure that child support is paid, administered through the Department of Revenue=s Child Support Enforcement Division.
TORT - An injury or wrong committed against the person or property of another, in violation of a duty established by law, such as a personal injury case. Tort cases are civil cases.
TRANSCRIPT - The verbatim (word-for-word) written record of proceedings in a trial or hearing.
TRANSLATOR - Someone who converts a written document from one language to another.
TRIAL - A hearing before a judge and/or a jury at which evidence is taken and witnesses are examined with the aim of resolving the issues between the parties.
TRIAL COURT -
- The court where a trial takes place, as opposed to an appellate court, which reviews the actions of the trial court to determine whether it was in compliance with the law.
- In Massachusetts, the umbrella organization that combines seven trial-level departments into a single administrative entity. The seven departments that comprise the Massachusetts Trial Court are the Boston Municipal Court, the District Court, the Superior Court, the Probate and Family Court, the Juvenile Court, the Housing Court and the Land Court.
TRIAL DE NOVO - See DE NOVO.
TRUE BILL - See INDICTMENT.
TRUST - The right to real or personal property held by one party (the trustee) for the benefit of another (the beneficiary).
TRUSTEE - The person legally responsible for holding the right to property established by a trust.
TRUSTEE PROCESS - A form of attachment in which the plaintiff/creditor seeks to secure property of the defendant/debtor which is held by a third party, such as a bank, in order to ensure that the property is available to satisfy a judgment.
UNBUNDLING - See LIMITED ASSISTANCE REPRESENTATION.
UNCONTESTED - A case or motion which is not opposed.
UNCONSTITUTIONAL - A law or governmental act which violates applicable constitution principles.
UNDER ADVISEMENT - Under consideration. When a matter has been heard by a judge but the judge has not yet rendered a decision, the judge is said to have taken the matter "under advisement."
UIFSA - See UNIFORM INTERSTATE FAMILY SUPPORT ACT.
UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) - A federal statute requiring all states to use similar procedures in child support actions that involve parents living in different states or on tribal lands.
US CODE - The collection of federal statutes.
UNSATISFIED JUDGMENT - See SATISFY A JUDGMENT.
- A vacate order requires one party to move out of a home shared with the other party., often issued as part of a 209A order or in the course of a divorce.
- An order or judgment is vacated when it is annulled or otherwise removed, either by the issuing judge or by an appellate court.
VENDEE - A buyer; a person to whom something is sold.
VENDOR - A seller; a person who sells something.
VENIRE - Latin for "to come." Technically, a writ summoning prospective jurors; popularly refers to the group of jurors summoned from which a jury is selected.
VENUE - The jurisdiction (county or other geographical area) in which court proceedings may be instituted.
VERBATIM - See TRANSCRIPT.
VERDICT - Latin for a "true declaration." A final decision by a jury. The equivalent term for a judge's decision is "judgment."
VERIFICATION - A person's declaration under penalty of perjury that statements of fact in a document or pleading are true.
VERIFIED STATEMENT - A statement that contains a verification by the party submitting it.
VERSUS - Latin for "toward" or "against". Usually abbreviated as "v." or "vs" in case names, e.g., Commonwealth v. Smith.
VICTIM-WITNESS ADVOCATE - An employee of the District Attorney=s Office who assists the victim of a crime and/or witnesses to a crime during the prosecution of the case.
VISITATION - The court-ordered right to spend specified amounts of time with a child.
VOID - Null; with no legal or binding effect.
VOIDABLE - Effective unless rejected or voided; something which because of a legal defect may be voided but does not have to be voided; which may be accepted despite that defect.
VOIR DIRE - French for "to speak the truth." The preliminary examination of the qualifications and potential biases of prospective witnesses or jurors.
WAGE ASSIGNMENT - See GARNISHMENT.
WAIVE, WAIVER - To give up a right, claim, or privilege.
WARD - See INCAPACITATED PERSON.
WARRANT - A written order issued by a court permitting law enforcement personnel to arrest a person or search a place. Kinds of warrants include arrest warrants, bench warrants, fugitive warrants, search warrants and warrants of apprehension.
WARRANT MANAGEMENT SYSTEM (WMS) - A computerized database maintained by the Trial Court containing all arrest and default warrants issued by the Trial Court. WMS can be accessed by individual courts and by law enforcement officers, to determine whether a particular individual is wanted by any court in the Commonwealth. WMS is being integrated into MassCourts as MassCourts gets implemented throughout the Trial Court.
WARRANT OF APPREHENSION - A warrant permitting the police to bring a person before the court if it is reasonable to believe (1) that the person would not appear if summoned and (2) that any further delay would present an immediate danger to the physical well-being of the person. Usually issued in the context of mental health or substance abuse commitment proceedings.
WARRANT RECALL - A procedure for removing a cancelled warrant from the Warrant Management System to avoid repeated or mistaken arrests.
WARRANTY - A guarantee.
- Warranty of Fitness: A guarantee by a seller that goods are suitable for the purpose of the buyer.
- Warranty of Habitability: A landlord's guarantee that premises are fit for habitation.
- Warranty of Merchantability: Seller's guarantee that the product sold is reasonably fit for its ordinary use.
WARRANTY DEED - A deed that guarantees a clear title to the purchaser of real estate.
WASTE - The abuse or destructive use of property by a person in rightful possession of that property.
WIDOW (FEMALE), WIDOWER (MALE) - A person whose spouse has died and who has not remarried.
WIDOW'S ALLOWANCE - A portion of an estate that the widow or widower may ask the court to advance before the estate is ready for distribution, for the care of him- or herself and/or the children.
WILL - A written document disposing of a person's property at the time of death. A will includes any codicil.
WISP (WRITTEN INFORMATION SECURITY PROGRAM) – The rules that prevent disclosure of non-public documents held by the Massachusetts courts that contain personal information.
WITH PREJUDICE - See DISMISSAL.
WITHDRAWAL OF APPEARANCE - A document filed by an attorney to indicate that he or she will no longer be representing a party. In many situations, an attorney may not withdraw his or her appearance without permission from the court.
WITHOUT PREJUDICE - See DISMISSAL.
WITNESS - Someone who gives testimony under oath as to what he or she has seen, heard or otherwise observed. See EXPERT WITNESS.
WMS - See WARRANT MANAGEMENT SYSTEM.
WRIT - An order issued by a court requiring that something be done or giving authority to do a specified act.
YOUTHFUL OFFENDER - In Massachusetts, a person between the ages of fourteen and eighteen who has committed an offense that would be punishable by imprisonment in the state prison if the person were an adult and who has (a) previously been committed to the Department of Youth Services or (b) committed an offense which involves the infliction of or threat of serious bodily harm or (c) committed certain other offenses. A Youthful Offender may be subject to sentencing as an adult or as a juvenile. Often referred to as a "YO"
YO - See YOUTHFUL OFFENDER.
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