Everybody wants to be a lawyer, but to be a lawyer you have to know the language of lawyers: Legalese. So every few days, I post a new word or term from this mysterious and esoteric language. This page features words from previous entries.



Venire

Have you ever been a venireman (or woman)? You probably have if you've been called for jury duty. The panel of people they pull from the jury pool, from which a jury in a particular case is selected, is the venire (ven-EYE-ree). The examination of the potential jurors by the judge and lawyers in the case is called the voir dire (vwah-deer).

Interpleader

Normally a lawsuit is filed by a claimant, for example, a creditor against a debtor. But, suppose you hold funds for which there are two or more claimants, and you don't know who's the rightful party. To resolve the issue and protect yourself, you could file a suit against the claimants, who would then fight it out between themselves which has the rightful claim. This type of civil action is called an interpleader.

BGB

Here's a legal term you may not find easy to drop at a cocktail party, and if you do, you might just get a few odd stares. BGB stands for the Bürgerliches Gesetzbuch. Burgerwho? The German Civil Code. The French were the first to codify the Roman law which is in force in most of Europe. Adopted in 1900, the BGB became a different model for codification. While the French Civil Code was written to be read by ordinary people, the BGB is more technical. The BGB survived the Nazi era and was in effect in both East and West Germany during the separation. At almost 110 years old, the BGB is still the law in Germany. Japan, China, and Korea are among the other countries that have adopted the BGB.

Equity

Equity provides civil remedies not allowed by the common law applied in the regular courts of ancient England and in this country. The usual remedy in common law is monetary damages, but equity offered other remedies such as injunction or specific performance. This system of law developed under the Lord Chancellor (who was a clergyman in the olden days), probably from the time of King Edward I, c. 1300 A.D. Although most states no longer have separate chancery courts, equitable remedies still exist, exercised through regular courts. Among these remedies are probate, adoptions, guardianships, injunction, divorce, and trust. There is no right to a jury in equity cases.

Habeas Corpus

Habeas Corpus is one of a class of special civil actions called extraordinary writs. Other extraordinary writs include mandamus, quo warranto, and certiorari. The most typical case in which habeas corpus is used is when a person is or argues he is unlawfully jailed. The writ requires the official holding the person (the corpus or body) to prove that his imprisonment is lawful. This is not the only case, however, that habeas corpus might be sought.

During the Vietnam War, many draftees who claimed to be conscientious objectors (CO's) filed for habeas corpus to secure their release from the service.

The earliest recorded use of the writ was in 1305 A.D. While the writ of habeas corpus is considered one of the most sacred of legal rights inherited from the English common law, the president can suspend the writ of habeas corpus, as the U.S. Constitution provides, "when in cases of rebellion or invasion, the public safety may require it."

Mandamus

If a public official or government agency does not do what it is required to do by law, a person who has standing may petition a court for a writ of mandamus. Mandamus (man-day-mus) falls into the same class of "extraordinary writs" as habeas corpus and quo warranto.

By granting the writ (mandamus means "We command"), the court commands the respondent official or agency to perform a legal duty. Suppose it's the other way around? The official or agency does something it is not legally empowered to do. In this case the remedy is a writ of quo warranto.

Some states have abolished the writs of mandamus and quo warranto. The writs have also been suppressed as a procedural matter in federal courts. Causes of action in the nature of mandamus and quo warranto are usually handled as ordinary civil actions in these jurisdictions. However, Florida and federal courts have the power to issue these and all other writs necessary to complete the exercise of their jurisdiction.

Perhaps the most important case in American judicial history, Marbury v. Madison, which established the principle of judicial review (the judicial power to declare a law unconstitutional), was brought before the U.S. Supreme Court on a petition for a writ of mandamus.

Misprision

When Martha Stewart got out of jail, did she misprision? Ah... no.

Misprision (note that it's spelled -ion) has its roots in a word that means, basically, to make a mistake. It rhymes with precision. The word is found in the terms misprision of felony and misprision of treason. These are common law crimes against the concealment of a felony (or treason) by someone with knowledge but not himself involved in the crime as an accessory.

Federal statutes include both misprision of felony and misprision of treason. Florida has a misprision of treason statute. If you have knowledge of treason, you are required to report it to the governor, a justice of the Supreme Court, or a circuit court judge.

Malfeasance

Was the mayor's action malfeasance or misfeasance?

These terms are sometimes confused. If the mayor took an action which is unlawful or if she didn't have the legal authority to do the action, this is malfeasance.

However, if the mayor took an action which she may do legally, but did it in an illegal manner, this is misfeasance. If she failed to take an action she was required to do by law, this is nonfeasance.

Both malfeasance and misfeasance are grounds for recall of a public official in Florida. Private individuals can also be guilty of malfeasance or misfeasance, however; in Florida contractors can be sued for negligence, malfeasance, or misfeasance.

Statutes at Large

What was the first law passed by the U.S. Congress? You could find out by looking in the Statutes at Large. The first law is entitled "An Act to regulate the Time and Manner of administering certain Oaths" and it was passed June 1st, 1789. Officially cited 1 Stat. 23, parts of this law are still in effect.

All of the laws passed by Congress are recorded in the Statutes at Large. It is the most official version of any federal law. The law provides that the Statutes at Large volumes are legal evidence of the laws contained in them and will be accepted as proof of those laws in any court in the United States.

Many federal laws are also codified in the United States Code (USC). Some titles of the USC have been approved by Congress and are considered positive (actually enacted) law; while other titles are only compilations. In the latter case, the proper citation of the law would be the Statutes at Large.

Due Process

Everyone has heard the term due process of law. Yet, as fundamental as due process is to American constitutional law, the concept of due process is virtually unknown in legal systems not derived from the English law. In fact, we can trace the term to the Magna Carta signed by Edward III in 1354 which stated "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." Note the similarity of this language to the U.S. Constitution: "No person shall be ... deprived of life, liberty, or property, without due process of law ...."

But what does due process mean? In a literal sense it means just what it says, due process. No person can be denied a right without process: sufficient notice of the causes and opportunity to be heard. But in a series of complicated Supreme Court cases, the concept of due process has taken on a broader meaning in American constitutional law, essentially that of fundamental fairness and substantial justice.

Letters of Marque

Letters of marque and reprisal were all but forgotten concepts until 9/11. In fact, LMR's were last issued by the U.S. in World War II, when the Goodyear Blimp was granted a warrant to patrol for enemy subs in the Pacific. Before that, during the War of 1812, the U.S. commissioned privateers to hunt down British ships.

Essentially this is what a letter of marque is: a commission or warrant issued to a private party (referred to in the olden days as a privateer) to commit acts of piracy against vessels of an enemy state. The Declaration of Paris in 1856 outlawed privateering, but guess which country didn't sign on? However, the U.S. generally adhered to the treaty until 1941.

What's this have to do with 9/11? Because proposals were floated in Congress to issue LMR's to "privateers" to hunt down Osama Bin Laden and Al-Qaeda members. The theory was that Al-Qaeda had committed "air piracy" and that Congress had the power under the Constitution to authorize the president to issue LMR's to private parties to help out in the War on Terror. A similar proposal was made to fight Somali pirates. The war clause of the U.S. Constitution provides that Congress shall have power to "grant Letters of Marque and Reprisal."

Certiorari

A group of local firefighters has filed a petition with the U.S. Supreme Court for a writ of certiorari. That's because they sued the city but lost their suit in the lower federal courts. Now they want the Supreme Court to review the lower court decisions and reverse them in their favor. Certiorari is the most common way to appeal to the High Court.

If the justices issue a writ of certiorari they "grant cert," meaning that they agree to hear arguments from both the petitioners and respondents. Otherwise they "deny cert." They will certainly deny cert if they don't find a case or controversy worthy of appeal, in effect, upholding the lower court decision. Usually, if the Court grants cert, the case is set for oral arguments from both sides. But the fact that the Court grants cert doesn't mean that the petitioners will necessarily prevail.

There are a few cases in which the U.S. Supreme Court acts as a trial court, rather than an appellate court. This is called "original jurisdiction." This would be the case, for example, when one state sues another. But the power of the Supreme Court to hear cases on appeal from lower federal courts or to issue writs of certiorari has been long established. The Supreme Court can even review state court decisions that involve federal or constitutional issues.

Mortmain

This entry is inspired by A.Word.A.Day, which included the word in a recent newsletter.

Anglo-American law does not favor ownership of land in perpetuity. So early English kings from the time of Edward I passed Statutes of Mortmain, prohibiting anyone from donating land to the church. Because the church never dies, land was in effect held forever, denying the Crown estate taxes and escheat (land reverts to the state if no heirs). The mortmain laws were later repealed.

Mortmain (pronounced MORT MAIN) also has a non-legal usage. It means: "The often stifling influence of the past on the present and the living." The word is derived from a Latin phrase meaning "dead hand" and shares roots with such words as manage, maintain, maneuver, manufacture, manuscript, and command, according to A.Word.A.Day.

Super-Injunction

Much of American law is inherited from England. Let's hope this is one area of evolving British law that stays over there.

British courts issue prior restraint orders enjoining newspapers or broadcasters from running a story that may be false or libelous before the paper hits the street. Sometimes courts issue these injunctions on behalf of the police or prosecuting authorities, when publication would cause a substantial risk of serious prejudice to a trial or investigation.

A new wrinkle in this area of law is the super-injunction, which not only prevents publication of a story, but makes the injunction itself secret. In other words, not only can the newspaper not report the story but is prevented from saying why. The use of the super-injunction became the subject of considerable public controversy recently when news sources in the U.K. could not report that a British M.P. had tabled a question in Parliament relating to Trafigura, an oil trading firm that had previously obtained a super-injunction against the Guardian newspaper. But the BBC also did not report the story because super-injunctions have been held to be effective even against news-reporting organizations which had not been served with the injunction.

In this case, as it happened, the Guardian obtained a High Court hearing challenging the injunction, and the ban was lifted, but not before quite a rumble about it in the British blog world.

Brady Notice

You may have seen this term recently in the newspapers. The local public defender is accusing the prosecutor of failing to give Brady Notice in a number of cases. Is this news about Greg and Marcia?

Nope. "Brady material" is information or evidence that the prosecutor has that could help the defendant in a criminal case with his defense. It could be exculpatory or might have a bearing on the sentence. Failure to give the defense counsel notice of such material is a denial of due process.

The term is derived from a 1963 Supreme Court case, Brady v. Maryland. Brady and another man were tried separately for murder, and both were convicted. The prosecutor had failed, however, to tell Brady's attorney that the other defendant had confessed to being the actual killer. While Brady participated in the robbery and was clearly guilty of murder in the first degree under Maryland law, his sentence could have been reduced by the jury to life imprisonment. The evidence withheld by the prosecutor, while it would not have changed the verdict, might have tended to reduce the penalty imposed by the jury in the case.

Dictum

Issues are very important in law. That's because cases are supposed to be decided on issues relevant to the case. For example, the fact that an accused is a "good boy" is not relevant to a determination of his guilt or innocence.

In appellate courts, decisions are made, at least in theory, on the basis of narrowly defined issues. The issues to be decided are x and y, not x, y, and z, where z represents issues not necessary to the final disposition of the case on appeal.

If the issue before the appellate court is whether a state legislature can pay a clergyman with public funds to deliver the invocation at each session without violating the Establishment Clause, and the wording of the prayer is not an issue essential to the disposition of the appeal, but the court nonetheless discusses it and other issues, these pronouncements are known as dicta.

Dictum (pl. dicta) is derived from the Latin term obiter dictum, which means, roughly, "and by the way...."

Why are dicta important? Because lawyers and judges in subsequent cases may use dicta to forecast how a higher court may rule on cases involving these issues.

Mens Rea

Whether a crime is murder or manslaughter depends in part on the intent of the perpetrator. This is a subject of a principle of law called mens rea, or literally, mental state.

As stated by Hall in his treatise General Principles of Criminal Law "The principle of mens rea is the ultimate evaluation of criminal conduct and, because of that, it is deeply involved in theories of punishment, mental disease, negligence, strict liability and other current issues. Its paramount role in penal theory also results from the fact that mens rea is the fusion ('concurrence') of the elementary functions of intelligence and volition."

Intent will probably play a role in the outcome of the Michael Brewer case. Did the boys intend to kill or cause great bodily harm to Michael (attempted murder) or did they intend only to scare him? In this case the boys could be found guilty of a "lesser offense" like aggravated battery, which is a felony of the second degree in Florida.

The jury will decide based on the judge's instructions, the physical evidence, and testimony at the trial.

Scienter

The previous entry was mens rea. As it relates to criminal law, mens rea essentially means intent, that is, what the criminal intended to do when he committed the crime. Did the criminal have "specific intent" to kill the victim or did he just intend to injure him? Did the criminal intend to take the victim's property forever or just "borrow" it?

Not all criminal offenses have intent or mens rea as an element. For example, a law may specify that a person commits a crime if he knows or should have known a certain fact or condition. This is the approach of the gifts provision of our ethics code which provides that a city official shall not solicit or accept a gift from any person or entity that the official "knows, or has reason to believe," is a developer, city contractor, or someone who seeks payment from the city.

What a person knew or should of known when he committed the act is scienter, pronounced sci (as in science) enter.