— A —
Acquit — To find “not guilty” in a criminal trial.
Action — Another way of saying “lawsuit.”
Affidavit — A sworn statement by a party or witness. Many people think affidavits can be submitted to a judge or jury without the person who created the affidavit being present. Affidavits, however, can almost never be used in place of a witness at trial.
Alimony — In Maine the term alimony has been replaced by the term “spousal support.” There are many rules and exceptions to whether or not a spouse will be eligible for spousal support. As a general rule, spousal support will not be awarded to a spouse in any marriage of less than 10 years. In a marriage between 10-20 years a spouse might be awarded spousal support for one-half the length of the marriage. For example, in a 16-year marriage a court might award 8 years of spousal support. In any marriage over 20 years the court may award up the a lifetime of spousal support. Spousal support may be awarded in a monthly amount (i.e. $1,500/month) or in a lump sum (i.e. a spouse is awarded an extra $100,000 from a 401k retirement).
Allegation — An unproven claim.
Allege — To make an allegation.
Alternative dispute resolution — There are various methods of resolving disputes outside of a courtroom. Such methods sometimes have the advantage of speed and cost over traditional court processes. Two of the most common methods are mediation and arbitration. Common slang is “ADR.”
Appeal — If a party disagrees with the outcome of a hearing or trial they may have the right to ask a higher court to overturn the lower court because of some legal mistake. An appeal is not an opportunity to introduce new facts or arguments that were missed at the lower court trial.
Appellant — The party who is appealing a lower court decision is the appellant.
Arbitration — An arbitration is a method of alternative dispute resolution. Arbitration differs from mediation in that the finding of the arbitrator is binding on the parties.
Argument — At the conclusion of a trial each side sums up the facts and the law to persuade the judge or jury that their side should win.
Arraignment — After a person is charged with a crime, they are required to appear before a judge and plead “guilty” or “not guilty.” If a Defendant has a lawyer and they are only charged with a misdemeanor they can have their lawyer submit paperwork which takes the place of the arraignment.
Assault — Any unwanted touching can be an assault whether or not the touching results in injury. While the sanctions may differ, there is no technical difference between the tap of a single finger or a punch to the nose—each can be an “assault.” Assaults can be felonies or misdemeanors depending on various factors.
At issue — The problem at hand.
Attachment — After a Party is awarded money damages the next problem is how to collect it. If a defendant has no insurance by which to pay the damage award a plaintiff might have to get a special court order that allows them to take or otherwise seize property of the defendant to satisfy the judgment.
Award — When a court gives a party the item or result for which the party asked.
— B —
Bail — Bail refers to the conditions necessary to get out of jail while awaiting trial. Bail can consist of money, property or both. Often courts will be more concerned with a Defendant’s living arrangements or who will be watching a Defendant while the Defendant is out of jail. Common conditions imposed as a requirement of bail include, no contact with the alleged victim, no use of drugs or alcohol, a curfew, a specified address, or travel restrictions.
Bankruptcy — Bankruptcy refers to the process of wiping a person’s or company’s debt clean. There are different types of bankruptcies depending on what the debtor is requesting of the court. Debtors are entitled to have certain items of property exempt from bankruptcy up to certain limits.
Battery — Commonly used with assault the term battery refers to the fear that one will be touched. Battery is different from an assault in that an assault is the actual touching. Battery refers to the apprehension of being touched, prior to actual contact.
Beneficiary — A beneficiary is a person or entity who is the recipient of some award or gift.
Bequests — A bequest is a gift from a person or entity to a person or entity usually in the form of a condition of a will.
Best interest of the child — In Maine the courts determine most child contact and living arrangements based on the “best interest” standard. The court is supposed to act as a wise and kind parent in determining the child’s living arrangement in a contested divorce or parental rights action.
Beyond a reasonable doubt — The standard of proof in a criminal case.
Bifurcated trial — A bifurcated trial is a trial divided into two parts. For example, in a criminal case a trial might first determine whether the Defendant is guilty or not guilty. The second part of the trial after the first verdict will determine whether a Defendant is not criminally responsible due to a mental condition or whether certain property should be forfeited.
Bond — A bond is an insurance policy usually taken out to insure the performance of an employee or a person handling a lot of money. It sometimes is another way of saying bail.
Breach of contract — If a party to a contract does not perform pursuant to the terms of the contract this is referred to as a breach.
Brief — A brief is a legal argument usually contained in a special kind of bound booklet and usually submitted to an appellate court.
Burden of proof — In any case it is important to determine who has the obligation to prove their case. It is a common reaction when speaking to criminal Defendants that they say “how am I going to prove I did not do it?” What they do not understand is that the State has the burden of proving their case. A criminal Defendant does not have to prove anything. Likewise, in a negligence case (i.e. a car accident) a person seeking money or the plaintiff has to prove that they should get the money.
— C —
Capital felony — A capital felony refers to a criminal case in which a Defendant can get the death penalty. While Maine has abolished the death penalty, certain federal crimes including crimes committed in Maine within federal jurisdiction, can still result in death.
Cause of action — A cause of action refers to the essence of a claim by one party against another.
Certify — To affirm that something is true.
Charge — A charge refers to a certain crime laid out in a complaint or indictment against a criminal Defendant.
Child support — In Maine, all child support is covered by the Child Support Guidelines contained in the Maine statutes. Child support is based on a formula which largely depends on the percentage of income each party can contribute to the support of the couple’s child or children.
Civil action — Any cause or complaint by one party against another for money damages or to require one party or another to do or refrain from doing a thing.
Claim — A claim is an allegation by one party against another that some wrong has been done.
Comparative negligence — In a case in which one party has been alleged to have been negligent, the party defending the case might claim that the Plaintiff was at fault because they themselves did something that helped cause the accident. The Defendant then asks the jury or Judge to compare the relative negligence of the parties to see if the Plaintiff’s negligence might excuse the Defendant’s negligence.
Compensation — Compensation is usually the amount of money damages awarded to a party in a civil case.
Compensatory damages — See compensation.
Complaint — A complaint in a civil case is the initial filing by a Plaintiff which alerts the Defendant as to the wrongs which the Plaintiff alleges the Defendant has committed. In a criminal case, a complaint is a charging document issued early on in a misdemeanor or felony case which allows the State to put a Defendant into the Court system until further action is necessary.
Complex litigation — In a lawsuit involving multiple parties or unusual claims, special rules might apply to help simplify otherwise unmanageable complexity.
Conservatorship — If an individual is not able to manage their own affairs, a conservator might be appointed by the Probate Court to handle that individual’s financial affairs. A conservator has a fiduciary relationship with the person being protected and is usually in charge of financial matters.
Contract — An agreement between two or more parties.
Contributory negligence — See comparative negligence.
Conviction — If a Defendant is found guilty of a crime they are convicted.
Corroborate — Evidence or testimony which helps demonstrate that a claim or testimony is true.
Counterclaim — Upon receiving a complaint from a Plaintiff a Defendant might file a counterclaim which is essentially a complaint directed back at the Plaintiff alleging they also have committed some wrong.
Custody — Maine Law does not refer to custody. However, this term is widely used and misused by both clients, lawyers, and the courts. Custody really usually refers to two things. First, custody refers to who the child lives with most of the time. Second, custody refers to who has decision making authority over the child. See also parental rights and responsibilities and visitation.
— D —
Damages — Damages refers to the amount of money or other compensation which is awarded to a Plaintiff in a successful civil case.
Defamation — Defamation refers to spoken untrues about a person which an individual “publishes” to a third person and which damages an individuals reputation.
Default — If a party to a case fails to answer a claim, the court may simply assume they do not object and award the person making the claim a relief that they seek.
Defendant — The Defendant in a criminal case is the person accused of a crime. In a civil case the person from who a Plaintiff seeks money or other relief is the Defendant.
Deposition — A deposition is sworn testimony taken before a court reporter and which can be made in to a transcript to be used at court or in future court documents.
Discovery (disclosure) — Discovery refers to two things: (1) the process of requesting information from another party or (2) a material resulting from any such request.
Dismissal without prejudice — In some cases, a court can dismiss a case without precluding the party bringing the case again later. While courts value finality there are limited circumstances in which the parties or the court would agree that a case can be brought a second time.
Disposition — A disposition is simply the end result of some court action.
Dissolution of marriage — A dissolution of marriage occurs when a court grants a final divorce.
Domicile — A domicile is where somebody lives.
— E —
Easement — The right to use land, even though you do not own it.
Eminent domain — The government’s power to take property from its citizens.
Enjoin — To prohibit someone from doing something, found in an injunction.
Equitable action — A claim in court that is based on principles of fairness and justice, rather than a particular written law.
Equitable distribution — A fair division of property in a divorce that is not necessarily equal.
Estate — Everything that someone owns.
Eviction — The court process of terminating a tenant’s lease and having the person removed from the property if necessary.
Evidence — Information that is presented to a judge or jury to prove your assertion or claim.
Ex parte — Without the knowledge of the other parties.
Executor — The person appointed by the probate court to distribute somebody’s estate after they die. In Maine, this person is called a personal representative.
Express warranty — A promise that is made and is enforceable, often found in a contract so that the other party may rely upon its truthfulness.
— F —
Fair preponderance — When something is more likely than not.
Family relations counselor — A counselor who specializes in helping couples or parents.
Felony — Any crime for which the person can be sent to prison for more than one year.
Felony Murder — The killing of another person during the commission of, or attempted commission, of a felony. Any accomplice may be charged with felony murder for any death caused by any accomplice in the underlying felony, even if they did not directly participate in causing the person’s death.
Fiduciary — Someone empowered to act for someone else, who has a high level of duty and obligation. Examples are a trustee, personal representative, guardian or power of attorney.
Foreclosure — A court proceeding against a person that has defaulted on his or her obligation to pay a debt, such as a mortgage on real estate.
— G —
Garnish — Withholding wages by an employer to pay the employee’s debt to a third party
Good faith — To be honest and sincere in your intentions or beliefs.
Grand jury — In order to prosecute a citizen for a felony, the constitution requires that the prosecution to get the permission of the grand jury to bring the case to court. The grand jury is a panel of citizens who meet in secret with only the prosecutor and his witnesses. The rules of evidence do not apply. If the grand jury votes to allow the prosecutor to bring the case to trial, that permission is called an “indictment.” As a practical matter prosecutors use grand juries as a tool to investigate cases by subpoenaing witnesses who would not otherwise speak to them to the grand jury panel. Grand juries almost always indict if the prosecution requests it. It’s an old joke that a prosecutor could get a grand jury to indict a ham sandwich.
Guardian — If a minor or disabled person is unable to look after their affairs a court might appoint them a guardian to control their affairs.
Guardian ad litem — An officer who is usually (but not always) an attorney appointed by the court to look after the best interests of the children in a family law case. Guardians (often called “GALS”) are empowered to speak with witnesses, speak with the children and make recommendations to the court. Courts will often allow GALS to present information to the court which is otherwise against the rules of evidence. Commonly, for example, the GAL can tell the court what the children would say if they were called to court. This is done so as to avoid exposing children to the conflict inherent in court.
Guardianship — When a person is appointed by a court to make personal decisions for a minor or an incapacitated person.
— H —
Hearing — A proceeding before a court or other decision-maker, typically to decide a particular issue in litigation.
— I —
Implied consent — When you can infer from a person’s action or inaction, such as silence, that they are in agreement.
Implied warranty — Promises that are made by a seller, even if not stated. For example, you can assume when you buy something that it will be fit for the particular purpose it was sold for. Some warranties exist even if the seller says something is sold “as is.”
Income withholding order — An order issued by the court to a person’s employer directing the employer to withhold wages to pay child support or alimony obligations.
Incompetency — When someone is unable to understand or comprehend the natural consequences of their actions. This may arise in the criminal context, where a person is unable to understand the charges against them and therefore unable to assist an attorney in their defense. It may also be an issue in determining whether a contract is valid.
Injunction — A court order prohibiting someone from doing something.
Intestate — How we describe the estate of a person who dies without a valid will.
Investigatory grand jury — A special grand Jury with powers to call witnesses and subpoena documents in order to investigate the commission of a crime independent of a prosecutor.
Irreconcilable differences — A term sometimes used to describe why people are getting divorced. It means that the spouses either cannot or will not agree or change.
Irrevocable trust — A trust that cannot be revoked or modified.
— J —
Judgment — A decision made by a court.
— K —
Knowingly — In a criminal case this means that the prosecutor must prove that the defendant knew it was practically certain that his or her conduct would cause a particular result.
— R —
Real property — Land and anything attached to it, such as buildings, trees and landscaping.
— T —
Trust — An arrangement where one person holds property for the benefit of another person.
Trustee — The person who holds trust property for the benefit of another person.