What Is The Legal Definition Of “Abuse?”

What do you think when you hear the word “abuse” used in a sentence? Probably violence or neglect. You might think primarily of vulnerable children or animals whose parents or owners fail to properly take care of them. But even adults can suffer abuse. Domestic violence is a common occurrence in the United States. The definition of abuse is a varied one, legally, and spans many different practice areas.

Cornell University defines “abuse” as “generally: physically, sexually, or mentally injuring a person…Child abuse: physically sexually, or mentally injuring a child either with intent or through neglect…Substance abuse: excessively using or misusing a legal or illegal substance.”

The word can even be used in Chapter 7 bankruptcy filings! Everyone living in the United States heard the word uttered over and over during Donald Trump’s impeachment trials: “abuse of power.”

Here are a few of the relevant laws.

Child sexual abuse occurs when a person — usually an adult — has any kind of sexual activity with a minor. The age of consent varies by state, and is set at 16, 17, or 18 years old. Children below this threshold cannot legally consent to sexual activity. Child sexual abuse occurs when an adult fondles or touches a minor, speaks obscenely to a minor, exposes themselves to a minor, produces naked images of a minor, trafficks a minor, etc.

An abuse of power is not always legally defined. For example, the United States Senate could have found former President Donald Trump guilty on charges of abuse of power when articles of impeachment were introduced (they failed to do so), and it need not have occurred because Trump committed a literal crime. Abuse of power occurs when a public official loses the public’s trust, engages in corrupt activity, or commissions an unlawful act. 

Most states have numerous animal abuse laws on the books. In Virginia, for example, legal code states that “It is unlawful for any person to kill a domestic dog or cat for the purpose of obtaining the hide, fur or pelt of the dog or cat.” But this is only one law. Others generally ban animal cruelty. Most states allow animals to be killed when they become a danger to others.

Mental or emotional abuse is one of the least understood. According to the Stop Abuse Campaign, an “ACE study defines emotional abuse as a parent or other adult in the household often swearing at you, insulting you, putting you down, humiliating you, or acting in a way that made you afraid that you might be physically hurt. It’s important to notice the word ‘often’ here; a single instance of parental bad behavior is not enough to cause a lifetime of trauma for children.”

And that’s the purpose of most abuse laws — to prevent long-term trauma, especially for vulnerable sections of the population. If you’re not sure about your state’s abuse laws, you can easily search for them online or make inquiries to a personal injury or sexual abuse attorney.

What Is The Legal Definition Of “Mistrial?”

The recent verdicts of the Derek Chauvin trial — which we believe will go down in history as one of the most important trials this century — have led a number of people to question whether or not the verdicts might someday soon be overturned. During the trial itself, it was supposed that the judge might even have to declare a mistrial. But what exactly is the legal definition of the word “mistrial” and when do they occur?

According to the American Bar Association (ABA), “Mistrials are trials that are not successfully completed. They’re terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a nonjury trial.”

Some reasons that a mistrial might be declared are more common or well-known than others. For example, most people who hear about a mistrial might presume that the jury has in some way been inadvertently influenced by an outside factor or maybe even that a bias that was previously unknown has surfaced in one of the members.

Other common reasons for a mistrial include a juror’s misconduct. This might occur when a juror either voluntarily or accidentally makes contact with someone connected to the case — a one on one meeting with the judge, prosecutor, defense attorney, family member, etc. It can also occur when jurors reflect on evidence that was never presented during the trial or evidence that was deemed inadmissible by the judge.

A mistrial might also be called when the jury fails to reach a unanimous verdict. This results in a “deadlocked” jury that cannot make a decision because one or more members are holding their ground and refuse to change their vote. This is rare.

Another rare reason for a mistrial occurs after the death of a juror or attorney. In these circumstances, it’s impossible to simply “replace” the deceased with a new juror — because the new juror hasn’t heard the evidence.

What Function Does A Magistrate Judge Have In Legal Proceedings?

Most people have probably never even heard of the term magistrate judge — but they perform an important function in legal proceedings. Federal ones, that is. The United States functions by hierarchy. We have social hierarchies. We have corporate hierarchies. We have military hierarchies. We have legislative hierarchies. And we have judicial hierarchies. 

The latter looks something like this: at the top is the U.S. Supreme Court. Underneath the Supreme Court are all the federal and national laws that we must obey to stay out of federal prison. The next court is the U.S. Court of Appeal, which has the authority to overturn lower court decisions much the same way that the Supreme Court can overturn its decisions.

Even further down are the U.S. District Courts. From that point and above, everything is governed by federal bodies. Lower are the state laws, state courts, county and local laws, and local courts that we must navigate to stay out of state run jails. Generally, if you break a local law, you would expect to incur a lesser wrath (and smaller penalty) than you would if you broke a federal law. 

When you seek out attorneys for help after being charged with a crime, who you contact is dependent on where the crime was committed — and even who is charging you with the crime. Lots of small town attorneys will only handle local and state charges. When you’re charged with a federal crime, you need experienced trial attorneys. Hale & Monico is one example of a law firm that handles federal cases that are likely to end up in front of a jury.

Now climb back up the ladder until you arrive back at the district courts. According to the Utah branch of US Courts, “A U.S. magistrate judge is a judicial officer of the district court and is appointed by majority vote of the active district judges of the court. A U.S. magistrate judge is appointed based upon the recommendations of a citizen’s merit screening committee.”

Different judges are appointed depending on where they fall in the aforementioned hierarchy. For example, federal judges are nominated by the president — but it falls to Congress to certify the nomination. You’ll remember that Obama “left” hundreds of federal seats open. But in actuality, then-Senate Majority Leader Mitch McConnell used his power to block every one of them. When former president Trump entered office, he allowed Trump’s nominations to proceed. So political maneuvering plays a big role in how and what gets done.

US Courts added, “A U.S. magistrate judge exercises jurisdiction over matters assigned by statute as well as those delegated by the district judges. A full-time magistrate judge serves a term of eight years. Duties assigned to magistrate judges by district court judges may vary considerably from court to court.”

This is different from district judges, who are also nominated by the president, confirmed by the Senate, and serve for life.

What Is The Legal Definition Of “Means Test?”

Anyone filing for bankruptcy should hire a bankruptcy attorney before proceeding any further. It’s best to know the strength of your case before you head to court, which will use a “means test” to determine whether or not you are eligible for bankruptcy benefits (if indeed you can call them “benefits”.)

According to Cornell University, the legal definition of “means test” relates to Chapter 7 bankruptcy filings. Cornell describes it as “a formula that uses in bankruptcy law to decide if the debtor is eligible for Chapter 7 bankruptcy. If the debtor fails the means test, the debtor can only apply for Chapter 13 bankruptcy. The purpose of the means test is to see that if the debtor is abusing the bankruptcy system by filing Chapter 7 bankruptcy cases even though they could afford to pay at least some of their debts. Therefore, the means test is mainly testing the ability of the debtor to pay the creditor(s).

There are two steps to a successful means test. The first step measures the monthly income of the debtor at the time of filing and compares it to the census bureau’s median income in the state where bankruptcy was declared. The median income is updated yearly.

If the debtor’s income exceeds the given threshold, a second step is introduced into the equation. In this second step, required monthly expenses are subtracted from the aforementioned monthly income for a period of sixty months. Expenses included in this formula are food, clothes, health care, rent, utility costs, and costs of transportation. 

If the debtor remains exigent after these steps are followed during the means test, then bankruptcy will be successfully completed. The debtor will have to wait several years before they can apply for bankruptcy again, which means it is best to wait until all other financial options have expired before declaring Chapter 7 bankruptcy.

What Is The Legal Definition Of “Socialism?”

You might first ask why we even need a legal definition for an economic ideology, but…well, in this country we discuss communism and socialism often.

US Legal defines “socialism” as “a set of ideologies promoting an economic system in which all or most productive resources are the property of the government, in which the production and distribution of goods and services are administered primarily by the government rather than by private enterprise, and in which any remaining private production and distribution is heavily regulated by the government rather than by market processes. Central to the meaning of socialism is common ownership. This means the resources of the world being owned in common by the entire global population.”

Legal comparisons are also made from the totalitarian socialist governments in third-world countries to the socialist democratic governments more pervasive in the western developed countries. The latter countries have some of the happiest citizens in the world.

Visit website here for more information on our own “socialist” policies — which are coincidentally always popular once implemented.

Anti-socialist policies have become more common around the world as those third-world examples of totalitarian socialism show us how to take an ideology and improperly implement it. The most noteworthy were called the “Anti-Socialist Laws” and were passed in Germany after widespread support was adopted following failed attempts to assassinate a German Kaiser.

The German Social Democratic Party (or SPD) was assigned credit for the attempted assassinations, and so the laws were drafted by then-Chancellor Otto von Bismarck. They were implemented as a strong measure to reverse the popularity of the SPD through indirect means.

For example, the laws banned social-democratic group meetings and trade unions, and shuttered at least 45 different newspapers. In addition, the law banned SPD emblems.

Each of these stipulations were effectively bypassed. SPD members ran as independents instead. Media organizations simply set up shop outside of Germany in order to spread the same message to members. SPD members wore red ribbons and then red rosebuds. When people were sentenced to jail for wearing these “emblems,” a judge reversed the sentences. 

The younger generations in America have begun to embrace democratic socialist ideals more and more routinely with each new year, but laws have never outright banned socialism. More respected institutions have continued to try to debunk the classic myths — especially because most of us still believe that the ideologies of communism and socialism are interchangeable (hint: they are not). 

For example, The Washington Post recently published an article about five of the biggest myths relating to socialism. They included: the idea that socialism is only one ideology (it has many that are incompatible with one another), the idea that socialism and democracy can’t co-mingle, the sentiment that socialisms want to abolish markets or give all private property to the government, that socialism is always doomed to collapse (Scandinavian countries all meet the definition of socialism, and they are extremely successful examples), and that socialism is a magic solution to all the world’s woes (it is not).

What Is The Legal Definition Of “Fair And Equitable?”

The phrase “fair and equitable” is primarily used in two practice areas: bankruptcy law and family law. It’s also misunderstood by clients — almost more so than any other legal term on our books. Mostly, that’s because many people confuse the word “equitable” with “equality” or “equal.” And these are very different concepts. So what does fair and equitable actually mean? 

For simplicity’s sake, let’s pretend for a moment that the word “fair” is just tacked on for no reason. According to The Law Dictionary, the legal definition of “equitable” is: “just, based on fairness and not legal technicalities; refers to positive remedies (orders to do something, not money damages) employed by the courts to solve disputes or give relief.”

To be perfectly clear, the word equitable has very little to do with the word equal. For example, equal distribution of marital properties means each divorced spouse gets an equal cut of the assets. If the former couple had $1 million in a joint account, it gets sliced down the middle, and each party walks away with $500,000.

Equitable distribution works differently.

Many different factors could go into making a divorce equitable: the amount of time that the couple was married, retirement, earning potential, children, taxes, etc. Two parents with roughly the same earning potential who agree to split childcare 50/50 and each spend equal amounts of time with their children might benefit from an arrangement that is both equal and equitable simultaneously.

But this usually isn’t the case. Let’s say one parent is the breadwinner. They make a million dollars a month. The second parent makes $500 a month. An equitable solution is the solution that best serves both parents based on their needs — not what is technically fair or equal. 

For example, say you give a kid who scraped their knees a Band-Aid. You give another kid a Band-Aid after they broke their arm. This distribution of resources is not equal — but not equitable. The kid with the broken arm needs a cast.

What Is The Legal Definition Of “Unprofessional Conduct?”

“Unprofessional conduct” is a legal phrase, the meaning of which is dependent on the situation relating to its use. When you hear the phrase, you might think of a retail store worker talking back to their boss, speaking unapologetically or rudely to a customer, or maybe even showing off a tattoo they could just as easily cover up. And that might be how a retail establishment might define unprofessional conduct in its own “code” of conduct — that set of guidelines given to every employee at the time of orientation.

But legally, it means something different.

“Unprofessional conduct” is defined by Law Insider as “one or more acts of misconduct; one or more acts of immorality, moral turpitude or inappropriate behavior involving a minor; or commission of a crime involving a minor. A criminal conviction is not an essential element of determining whether or not a particular act constitutes unprofessional conduct.”

A second definition of the phrase says unprofessional conduct “means conduct unbecoming a licensee or detrimental to the best interests of the public, including conduct contrary to recognized standards of ethics of the licensee’s profession or conduct that endangers the health, safety or welfare of a patient or client.”

One example wherein the phrase might be used occurs most often in civil litigation. Let’s say a former employee for one of the aforementioned retail establishments would like to sue for wrongful termination. They say that they approached the employer about not being provided with legally mandated break periods, after which the employer fired the employee. This is called retaliation, and is illegal — which would mean that the termination was unjustified.

Now let’s say the employer fires back, saying something like: “No, we fired the employee for drawing swastikas all over the break room walls during a break.”

In this particular instance — and supposing what the employer says is true — the court would rule in favor of the defendant, and against the plaintiff, in part because the plaintiff’s unprofessional conduct is unbecoming of a professional workplace — and perhaps even endangers other employees in the process.

Another example (which made the news recently) occurred in Volusia County when fire chief Ken Fustin was fired for unprofessional conduct. He had harassed and verbally accosted another county official, Joseph Pozza — and was foolish enough to go off on the tirade in public during lunch at a Daytona Beach Cracker Barrel restaurant.

Apparently Fustin said, “You want to see unprofessional, we can step outside right now and I will show you what unprofessional looks like.”

Fortunately for our purposes, he’s done exactly that! This is a perfect example of “unprofessional conduct” that can result in a lost job or even legal action. When you threaten another person or another person feels threatened by your words, this meets both the definition of unprofessional conduct and assault. He could quite literally have been charged with a crime.

What Is The Legal Definition Of “Undue Influence?”

The legal term “undue influence” is a complex one, in part because it is so unclearly defined. The American Bar Association (ABA) has quite literally written research analyses of the term such that it remains difficult to define even to this day. The ABA has essentially determined that while a basic legal definition does exist, determining actual undue influence in relation to a court case can be more a matter of judicial interpretation than a literal one.

According to the ABA, many states define undue influence like this: “Undue influence occurs when a fiduciary or confidential relationship exists in which one person substitutes his own will for that of the influenced person’s will.” This definition is mostly relatable to probate law, a practice area which helps determine what happens to a deceased person’s assets when no will or last testament are left behind to make the dissemination of those assets easier.

The ABA also describes undue influence as a concept most often relatable to probate or seen in certain types of cases that involve petitioning for guardianship. 

A more simplistic Oxford dictionary definition defines the phrase like this: “Influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.”

For example, a personal caretaker might unduly influence an elderly person experiencing dementia, amnesia, or Alzheimer’s disease in order to compel the elderly person to alter a will to favor the caretaker. A recent media example of undue influence is notable in the Netflix film I Care A Lot.

Another example of undue influence occurs when a beneficiary is suddenly excluded from a will — say, for instance, the favorite child’s inheritance suddenly vanishes and the will favors the neighbor down the street who routinely borrows a cup of sugar but holds no real relationship to the person whose will is left behind.

What Is The Legal Definition Of “Affidavit?”

An “Affidavit” is often used in court when attorneys present evidence to mount a case either for the plaintiff or against a defendant. These documents are signed by witnesses who have a connection to the case in some capacity. They are considered sworn testimony by the court, and knowingly signing an affidavit presenting incorrect or misconstrued information is tantamount to perjury, and can result in serious charges. 

There are three basic components to a written affidavit

The first component is called a commencement. This is the legal clause that prefaces the information contained later in the document, and it basically lets the signee know that their signature means that the information contained within the document is true — and that knowingly signing the document when information contained within the document is not true will result in “penalty under perjury, fine, or imprisonment” under the law.

The second component is called the attestation clause or jurat. This is the date when the signee took the oath.

The last component are the signatures of both the witness for whom the affidavit was written up and the author who wrote it up. Authenticated affidavits should always include the venue where the proceedings were carried out.

Many countries have their own versions of this document. For example, under Australia law a signed affidavit carries the same weight as unsworn testimony. Under India’s legal code, courts do not assume the right to hold affidavits as evidence. However, they can be used as evidence if a court makes such an order. Under Ireland’s law, affidavits are not held to a religious oath as in other countries, instead asking signees to make a “statement of truth.”

In the United States, an affidavit signed by someone who is currently deceased may still be used by the court as a presumption of fact. Old affidavits might be used by the court to “refresh” a material witness’s memory if the relevant events occurred too long ago. Anyone who signs an affidavit in the United States might be asked to take the witness stand should a court proceeding occur. 

Affidavits are required for a number of reasons. For example, when a person applied for social security disability insurance (SSDI), then they might require a sworn affidavit from a doctor who can legally affirm that they are indeed disabled and unable to work. Other professionals might also sign these affidavits. Military officers who are not medical doctors but who practice medicine are allowed to sign such affidavits depending on the jurisdiction. Visit website here for more information on how disability affidavits work. Laws vary by state.

One important fact about affidavits is that the acceptance of a signed and sworn affidavit by one jurisdiction does not confirm its affirmation by another jurisdiction. Sometimes, more than one affidavit attesting to the same facts might need to be signed when two jurisdictions require that information be presented in court.

What Is The Legal Definition Of “Gag Order?”

Have you ever watched a TV courtroom drama (and no, Judge Judy does not count — even though we don’t consider it “real,” it’s not a drama either) and wondered what some of the commonly uttered phrases mean? The phrase “gag order” is thrown around all the time. It’s jargon, but rarely explained to the audience. But many people who have served on juries have also heard the phrase.

The legal definition of “gag order” according to Merriam-Webster’s legal dictionary is this: “A judicial ruling barring public disclosure or discussion (as by the press) of information related to a case.”

For example, juries themselves are usually subject to a gag order. Jury selection is a process to determine a group of 12 unbiased individuals who will perform their function in court diligently, respectfully, and professionally — which means they’re also legally required to keep quiet when they go home at night. This is especially important for bigger cases that stretch days and days. 

But there are plenty of other situations in which a person might be constrained by a gag order. One recent article in the Washington Examiner shed light on many journalists’ request of Joe Biden that he lift a gag order put on federal employees by the Trump administration.

President Matthew Hall of the Society of Professional Journalists said, “These rules, exacerbated under the Trump administration, amount to extreme censorship and damage everyone’s understanding of government. They literally threaten people’s lives.”

The purpose of a gag order is to ensure a fair trial for all parties, and they are only applied in cases where a threat to this end might exist should the public receive information about the trial. In addition to juries, a gag order is most often placed upon reporters, lawyers, witnesses, and other parties who are present in court during a case hearing.