Legal Terms

Legal Terms in Plain English

  1. A Jury is a group of people who decide on whether a person is guilty or not of a crime in they have been charged with.  After you have been selected as a juror you  must  either swear an oath to God or affirm to promise to do your best to be fair and open-minded. After the jury have been sworn in, the jury is said to have been empanelled. This means the court says that the 12 people are officially the jury for the trial. Once the trial starts, the court registrar reads the charges, and the lawyers  usually introduce themselves and the defendant before the trial start. The Jury become the triers of facts. Not  everyone who is called up for jury duty is chosen. The lawyers can object to you being on the jury without providing you with any reason.  The principle behind the jury system is being ‘tried’ by your peers.

  2. Ab initio translates in Latin to “from the beginning”. It is commonly used to describe the time when a contract, statute, marriage or deed first became legal. When a contract is signed and initialled  and date by all people involved it would then be  ab initio.

  3.  Abscond is a word  often used when a person fails to present themselves before the court when required. This might happen when a defendant is released on bail but does not return to court for an arranged hearing. The purpose of absconding would be to avoid service of process, arrest, or prosecution. Abscond is also used when someone leaves with another person’s money or property.

  4.  Actus reus In Latin, this translates to “guilty act”, and refers to the act or inaction that constitutes a crime. For example, the act of taking another person’s property would be the actus reus of theft. 

  5.  Affidavit
    An affidavit is a written statement written under oath. You might write an affidavit if you were applying to the family court for a change in child-care arrangements. Your affidavit would contain all the reasons why you are applying for the changes. You will have to sign your affidavit in front of an  authorised witness like a lawyer, court clerk, or justice of the peace. Your witness will ask you to either swear on the Bible or Koran or affirm to them that the contents of the affidavit are true and correct to the best of your knowledge and belief. Then your witness signs and dates the affidavit and writes the town or city where it was signed. The witness often uses a stamp with their name, whether they are a lawyer, court clerk or justice of the peace and the town they are signing it in. My stamp has Viv d’Or, Solicitor, Petone.

  6.  Arbitration is one way of resolving a dispute between 2 or more people. It is often used for companies  who do not wish to go to court.  In an arbitration case, a third party known as the ‘arbitrator’ will look at both sides of a dispute and  help the parties work towards a resolution. In some cases, the people  involved may agree to be bound by the decision  made by the arbitrator. This form of alternative dispute resolution may be used in commercial disputes or employment disputes. The parties meet in an agreed place and an agreed time.

  7.  Bail is granted to a person who has been charged with a crime when they are released custody  until their next appearance in court. Bail conditions are often applied such as reporting to a police station regularly. On movies you will often see bails at a million dollars. This is not common in New Zealand.

  8.  Bona fide In Latin, this translates to “in good faith”, which means to act honestly without any intention to deceive. Nowadays it is often used to  mean genuine. It is the opposite of mala fides, which refers to bad faith.

  9.  Burden of proof means the duty placed on a party to prove or disprove a case. For example, in a criminal case, the burden of proof is on the prosecution to prove beyond reasonable doubt that the accused is guilt. If the prosecution does not reach this  burden of proof, the accused will be found not guilty. In civil cases the burden of proof is on the balance of probabilities – as a general guide, just over 50.01%.

  10.  Caveat emptor In Latin, this translates to “let the buyer beware”. This refers to the principle that the buyer is responsible for checking the product before they purchase something. A good example would be buying goods on Trade Me where you are not protected by law if you buying from a private seller. However, the  automatic guarantees in the Consumer Guarantees Act do apply to consumer goods bought on online auction and trading sites like Trade Me only if the seller is in the business of selling. The Act covers you whether you buy from a trader through winning an auction or through buying at a fixed price (using “Buy now”).

  11.  Contract: A contract is an agreement between two or more people to either do something or refrain from doing something; this often involves a promise of something in return for something of value. There are both written and oral contracts, though written contracts have more standing. For example, if you purchased a house you would sign a sale and purchase agreement which is a contract. If you settled a grievance with your employer you would sign a Record of Settlement (a contract) which would have terms in it; for example,  both you and the employer would agree not to speak badly about  each other, and  you would both keep the contents of the settlement  contract confidential and not tell other people what was in it.

  12.  De facto In Latin, this translates to “in fact”. This is used to describe practices that exist in reality even if not strictly legally recognized. And example would be when couples live together but have not gone through a marriage ceremony.

  13.  Diligence is reasonable care or attention given to a matter; for instance, looking both ways before proceeding after stopping at a stop sign, washing your hands before cooking food in a restaurant or operating in a hospital or checking brakes and other mechanical components on tour buses at regular intervals. Due diligence denotes what a normal, responsible person would do under the same conditions.

  14.  Disbursements are the fees that are paid out as part of legal services by a legal service provider on behalf of the client. Typically, the legal service provider will list disbursements in their invoice to a client and claim it back in due course. An example of a disbursement would be the payment of filing fee with the Employment Relations Authority or some other court made by the lawyer on behalf of their client. Another example would be payments made by the lawyer on a client’s behalf to a local authority for property information as part of the house-buying process.

  15.  Discovery is a process before trial that allows parties to gather information and documents from each other that will be pertinent to the trial. This will allow them to argue their case more effectively.

  16.  Duty of care is an  obligation imposed on one person to take reasonable care towards another person. It is an essential component of the tort of negligence.

  17.  Enduring Powers of Attorney (Personal or Property)  An enduring power of attorney (EPA) EPA is a legal document that gives someone else the authority to act for a person – called the ‘Donor’ – if they are no longer able to make decisions for themselves. If you have an EPA, someone you trust that you chose, called your ‘Attorney’, will legally be able to make decisions about your finances, your property, and your care and welfare if you are not able to.   Property EPA’s cover money and assets and can come into effect before the donor loses mental capacity. There may be more than one attorney for this EPA. Personal Care And Welfare covers health, accommodation, and associated care decisions, and comes into effect only if a medical professional decides the donor has become ‘mentally incapable’. There may only be one attorney for the Personal Care and Welfare EPA but other people the donor nominates can ask for information from the attorney.

  18.  Force majeure In French, this translates to “superior force”. This refers to a type of clause in a contract which releases parties from their contractual obligations where an unforeseeable and extraordinary event occurs, such that carrying out the contract is either impossible or radically different from what the parties initially intended.  A force majeure would be a natural catastrophe that occurs beyond human control, for which no one can be held responsible. These are also referred to  as An Act of God, a phrase which dates back to the 13th century and was used to refer to acts that people believed God had undertaken. Now, it is usually used in relation to the force majeure clause, to serve as an event that releases the parties from their contractual obligations. The Christchurch earthquake would be an example.

  19.  Habeas corpus In Latin, this translates to “you shall have the body”. It is a court order, often directed to the public authorities, to bring a detained person before the court for a hearing to determine the legality of the person’s detention. It prevents public authorities from detaining individuals without legitimate reasons.

  20.  Hearsay is evidence given in court by a witness about something that he/she heard about but did not personally witness. Such evidence is not admissible in court – this means that it cannot be taken into consideration by the court as evidence.

  21.  In loco parentis In Latin, this translates to “in the place of a parent” and refers to someone who assumes parental responsibilities for a young person but is not that person’s parent.

  22.  In pari delicto In Latin, this translates to “in equal offense”. This refers to a situation where both parties in a case are equally at fault.

  23.  Injunction is a court order compelling someone to do or refrain from doing an act. The failure to comply with an injunction may result in civil or criminal penalties, such as fines or even imprisonment.

  24.  Interim order A temporary court order made while a trial is still ongoing, which is meant to stay in force until a final order is passed at the end of the trial. For example, a court may make an interim order that a child is to stay with his/her mother rather than his/her father while divorce proceedings are ongoing.

  25.  Intestate
    It is not uncommon for a person to die without leaving a will. When this happens, the deceased person is said to have died intestate. There are laws in place to handle cases when an individual dies intestate and their estate has to be  distributed. Assets are typically divided between relatives, although it is possible to instruct a legal expert to challenge the division of an estate.

  26.  Joint tenancy A form of property ownership where the entirety of the property is simultaneously owned by all the tenants. An important consequence of joint tenancy is that if one joint tenant passes away, the deceased tenant’s ownership interest is extinguished. This means no tenant(owner) can their ownership interest in the property to anyone else. It stays in the ownership of the remaining tenants.

  27.  Jurisdiction The power of a court to hear and decide on a case. Jurisdiction may be determined based on, for example, the subject matter of the case (criminal or civil) or the amount of money involved in the case (e.g., in New Zealand  the Small Claims Tribunal can only hear claims  up to $30,000. So, you wouldn’t go straight to the Court of Appeal unless you had lost your case in the High Court.

  28.  Legal “Due Diligence ” actually means a complete and appropriate review of documentations and facts by a potential buyer or its agents before purchasing an asset or engaging in business with a prospect.  It is not, for example,  the legal equivalent of  kicking the tyres on a car before purchasing it. It is the legal equivalent to taking the car to a garage, having it checked over completely and thoroughly by an experienced mechanic, and personally checking out every part of the car that did not require the expertise of the garage mechanic. It is  a full and complete review using lawyers and CPAs to assist so that when due diligence is done, all that the purchaser knows all they need to know before engaging in business with or buying a company or other asset or piece of property is complete.

  29.  Litigation The process of bringing and arguing a case in court. This is compared to alternative means of dispute resolution, such as arbitration or mediation.

  30.  Locus standi In Latin, this translates to “place of standing”. It refers to the right or capacity to bring an action in court. If a person does not have locus standi, the court will not even begin to consider the substance of the case.

  31. Mediation A form of dispute resolution, where parties discuss their dispute with each other with the assistance of a mediator, in hopes of resolving the dispute amicably. This is a popular form of reaching agreement. The Employment Relations Authority in New Zealand always direct parties to mediation before they hear their case.

  32.  Mens rea In Latin, this translates to “guilty mind”, and refers to a person’s mental state that makes them  carry out a crime. Common mental states are intention, knowledge or foresight. For example, taking another person’s property with the knowledge that it does not belong to you will make the act a crime.

  33.  Obiter dicta In Latin, this translates to “by the way”. It refers to parts of the legal judgment that are not essential to the final decision, and therefore do not form part of the precedent set by the case. It is the opposite of ratio decidendi.

  34.  Pleadings are written statements submitted by parties to a court case, in which they state the facts and laws that support their legal case. In New Zealand  the most common types of pleadings are the statement of claim, defence, reply and counterclaim.

  35.  Precedent A previous case which has similar legal questions and facts as the present case, which will help in determining the outcome of the present case. Certain types of precedents are binding, which means that not only does the precedent help in deciding the case, the court must apply and follow the precedent set. 

  36. Prima facie In Latin, this translates to “at first look” or “on its face” and refers to evidence that is accepted as sufficient to prove a particular fact, unless rebutted by contrary evidence. For example; there is a prima facie case of professional misconduct against the lawyer, translated means on the face of it, there is legally sufficient to establish a fact or a case unless otherwise  disproved.

  37.  Pro bono In Latin, this is short for pro bono publico and translates to “for the public good”. This refers to legal work which is done for free. Most  lawyers help charities or people who cannot afford a lawyer in the interests of access to justice.

  38.  Remand  When someone is held in custody while they wait for their trial or sentencing it’s called being on remand. A remand prisoner could be held in police cells, court cells, psychiatric facilities or in prison. People on remand are kept separate from sentenced prisoners, in units or wings only for remand prisoners. Any time spent on remand is taken off a person’s total sentence time.

  39.  Res judicata In Latin, this translates to “a matter judged”. It refers to a matter that has been properly deliberated and decided by a court and therefore may not be further pursued by the parties. The purpose of this rule is to provide finality to the law. 

  40.  Stare decisis In Latin, this translates to “to stand by things decided”. This refers to the principle that where the cases are similar, a precedent set by a higher court must be followed by a lower court or a court of the same rank. For example, the District Court and the High Court must follow the precedents set by the Court of Appeal. However, Supreme Court being the highest court in New Zealand  is not bound by its own precedents.

  41.  statute: a written law passed by a legislative body. You can find all current law by going to www.legislation.govt.nz.

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