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.

What Is The Legal Definition Of “Debt Consolidation?”

Let’s say you take out a loan to pay for that brand new car or a mortgage to buy that beautiful new home. You never thought you would be able to afford these shiny big-ticket items! …Annnd, it turns out you actually can’t. The interest rates are too high, the payments are too frequent, and when coupled with a new kid, a cold winter with high electric bills, and the Playstation 5 you shouldn’t have put on plastic, it’s all just too much to handle.

That’s where debt consolidation comes in. The legal definition of debt consolidation is simple: a debtor takes out a new loan to pay off an old one. Sounds like it makes no sense, but when you consider the rules, everything becomes easier to understand: the new loan is often offered by a company whose job it is to save a debtor from going bankrupt, and so they offer the new loan at a reduced interest rate. You get to pay off the original loan immediately, but you’re in debt purgatory for a long time as a consequence. Whoops.

Debt consolidation is often recommended to those struggling financially as one of few alternatives to bankruptcy. It’s important to realize that this strategy is not for everyone, and the company helping someone consolidate debt doesn’t actually want the debt paid off any more than the creditor who they bought it from. The point of debt consolidation from this company’s point of view is that it helps a person relax and keeps payments steady but low so that over time the debtor will pay a pretty penny.

Sometimes this means that the original plan was the best one. Large payments with a high interest rate are scary and cause stress levels to skyrocket, but they get the job done sooner than a debt consolidator would. The same is true of those “buy now, pay later” schemes — such as the popular “Afterpay.” They make money because consumers end up paying slightly more over time and feel comfortable making those small payments for big ticket items — which means they will make more of them. This can be a great deal, when used in moderation. But some people will never use it in moderation. It’s too addictive to be safe!

Other alternatives to bankruptcy include debt settlement, lifestyle changes, or selling off all significant big-ticket assets like excess unneeded land or extra vehicles where one will do just fine. Financial ruin is often just a step away — and we mean that, literally, financial ruin is at the heels of nearly half of Americans, who can’t afford a single emergency payment of $400 — and so many of these steps are band-aids designed to get a person through the worst by delaying the problem.

A debt settlement attorney might be able to lend a helping hand with bankruptcy or any of its alternatives, but regardless of how a person gets out of debt, the real trick is making enough changes in life to keep from getting in the same mess for a second time. And that means a financial consultant is another box to check when these problems arise. 

What Is The Legal Definition Of “Insanity?”

We’ve probably all joked about committing a violent act and pleading insanity when brought forth before a judge. An insanity defense has an enormous impact on how the law is applied. A person declared legally insane would not be subject to an identical set of consequences as a person who committed a crime in a clear cognitive state.

The dictionary of law defines insanity as “a mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject to uncontrollable impulsive behavior. Insanity is distinguished from low intelligence or mental deficiency due to age or injury.”

Insanity is often invoked as a defense when the crimes are severe or the death penalty is an expected outcome for any other defense. It was thrust into the public’s eye once again over the past few months when former President Donald Trump spent the last few weeks of his administration’s time in the White House forcing through a number of controversial executions despite the threat of coronavirus spread or the fact that those to be executed might be insane or mentally incompetent.

The law specifically states that a person cannot be subject to capital punishment if they cannot be made aware of why they are being executed. The Supreme Court helped Trump push through the spate of executions up until his last days in office.

Before a person can be declared insane, they are usually placed into a medical care facility where they can be examined by psychiatrists. These individuals will then help a judge make a decision based on reports submitted in writing to clarify the person’s cognitive state. But the judge makes the final decision on who should be declared legally insane and why. A person declared insane is considered dangerous and is normally placed in a separate facility from other prisoners.

What Is The Legal Definition Of “Common Law?”

It might sound like common sense to define a phrase like “common law,” but legal terms can confuse anyone without a firm grasp of scope, connotation, or full meaning. And these terms are normally defined in confusing ways. For example, take Merriam-Webster’s dictionary definition of common-law: “1: Of, relating to, or based on the common law; 2: relating to or based on a common-law marriage.”

Don’t you love it when dictionaries use the word you’re trying to define in the definition for that word? It’s a wonderful cycle.

Merriam-Webster further defines common law as “the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the U.S. except Louisiana.”

In other words, “common law” is literally the idea of practicing common sense and common decency in certain situations where legal precedent is understood even if unwritten. For example, let’s say we struck the laws on murder from the books today. You would still know murder is wrong, and authorities would still arrest you for committing a murder. But more importantly, common law is based on innumerable interpretations from the judicial branch and jury decisions throughout a country’s history.

But before we go any further, you need to understand that in certain countries those common laws are written down. The United States is one such country. We legalize everything, no matter how obvious a criminal act something is. We provide a set frame of consequence for anything a person might do to disrupt the fabric of our society. See? Common law can be confusing after all!

For something to be ascertained as common law, legislators and judicators usually have a long process of research and review to determine what is in a community’s best interest. This process can be done at the local or state level. If there are already statutes on the books and the law is under scrutiny for some reason, then formal review occurs and legal authorities set about finding information on the law in question.

One type of common law that is under scrutiny based on changing circumstances is a person’s liability for car accidents. Automation is advancing quickly, and it’s not crazy to think that we’ll be living in a driverless future soon enough. Who takes liability for car accidents in that future? The manufacturer? The seller? Or the person? And under which circumstances? There is not yet any legal basis for determining the answers to these questions — but there will be. And that’s the most likely time that the scrutiny will lead to changes in car-related common law. You can visit website here for more information.

Common law results in a complex — and controversial — system of law-making and legal decisions made by lower courts, appellate courts, and the Supreme Court in the United States. And many believe this system must change.

What Is The Legal Definition Of “Double Jeopardy?”

The “Double Jeopardy” defense was popularized by the popular movie of the same name, which starred Ashley Judd and Tommy Lee Jones (and if you haven’t watched it, we highly recommend you do). The protagonist in that movie was accused of committing a murder for which she was not responsible, and decided to track down the man who framed her. Theoretically, Double Jeopardy is a legal clause that would allow her to kill him in broad daylight without any further consequences.

But would it really work?

Double Jeopardy was introduced when the Fifth Amendment was ratified. The legal definition of Double Jeopardy says that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.

The clause provides legal protection in four very specific situations. A person cannot be retried after a previous acquittal for the same crime. A person cannot be retried after a conviction for the same crime. A person cannot be retried after certain types of mistrials, specifically during which a judge acted in bad faith — but this is more of a technical reason that Double Jeopardy might be implemented. Lastly, a person cannot be punished more than once for the same crime.

Theoretically, let’s say that you were framed for murder, just like what happened in the movie Double Jeopardy. You are tried and incarcerated for that murder. You are then released. You track down the very much alive person you supposedly murdered, and then actually murder the guy. Would you get away with it?  

Probably not. It’s a great story, but the legal reasoning behind it is unsound. Double Jeopardy protects an individual from being retried for the same crime. The problem is this: no matter how you slice it, a murder on one day is a different crime than a murder on another day — even if the victim of the crime is the same person. The protagonist in the movie would still be tried and convicted (again).

Latin Legal Terms No One Would Know: Part II

In part one of our series on latin legal terms no one would know, we mentioned phrases like bona fide, actus reus, alibi, and ab initio. You probably recognized bona fide and alibi — because they’re words we use all the time thanks to TV courtroom dramas — but you probably didn’t know their exact meaning in latin or why we use them in court. Here are a few more!

Corpus delicti means “body of the crime.” This is a phrase that might be used by an LA, NYC, or DC personal injury lawyer discussing why a particular criminal act resulted in a certain set of consequences (such as death or personal injury or even financial loss). The phrase is sometimes used to indicate a particular piece of evidence that relates to a specific crime.

De facto means “in reality.” It might be used to refer to a social code of conduct, for example, that was never actually written down or codified into law. Another example occurs when a country has no official language, but one in particular is spoken more than anything other. That spoken language is the de facto national language. 

De jure means “by right.” The Old English law “prima nocta” would fall under this category because it is a “right” by law. Prima nocta refers to the right for a king to have sexual intercourse with a subject on her wedding night (but there is little evidence to support this right ever really existed: sorry Braveheart fans). 

Ex parte means “on behalf of.” This phrase refers to either a legal strategy or a judge’s decision to hold court without the involvement of the other side. A divorce court proceeding in which one parent refuses to attend the court summons might result in an ex parte judgement on behalf of the remaining parents, for example, during a child custody hearing.

Ex post facto means “after the fact.” An ex post facto ruling is applied retroactively. Let’s say, for example, that prohibition-era laws are suddenly reinstated tomorrow. If the courts turned totalitarian and decided to start arresting people ex post facto for breaking the new law, it means they could be arrested for drinking alcohol a year ago. Thankfully, the United States Constitution doesn’t not allow ex post facto laws. If Congress decides something is against the law tomorrow, you cannot legally be arrested for breaking that law yesterday.

In camera can be confusing since it’s an English “false friend” or a latin word that looks like an English word. It means “in chambers.” A judge might order a trial in camera, which means that it might take place behind closed doors (and out of the public eye). These rulings usually occur during adoption or guardianship cases.

In limine means “on the threshold.” This is a phrase used when one side of the courtroom believes that the other side is using prejudicial evidence that should be excluded from the case. For example, a 1948 Supreme Court case resulted in a ruling that a prosecutor cannot use a defendant’s past crimes in order to prove the one for which he was being tried now because that would be in limine. 

Latin Legal Terms No One Would Know: Part I

Many of us forget that the United States was built to resemble the Ancient Roman Empire. We see it in our architecture, we see it in our government’s structure, and we even see it in our obscure legal terminology. Although latin legal terms are common throughout the legal lexicon, even lawyers sometimes forget what they mean — especially if they never took Latin. By the way, if you plan to become a lawyer…it might not hurt to learn some!

A subpoena duces tecum is a writ made out to a witness requiring the production of certain types of documents or pertinent evidence during a subsequent proceeding.

A priori means “from what comes before.” This type of argument is akin to starting a sentence with the words: “Needless to say…” It means the idea is obvious, given, or need not be elaborated upon.

Ab initio means “from the beginning.” If something is declared ab initio, it means that the point in fact was always fact, from when the case first kicked off until now. The phrase is used to contrast certain legal points made that are true only when they are first stated. Good, now you’re confused. But ab initio is most often used when the word “void” precedes it. In other words, when an agreement is voided “ab initio,” it legally never existed in the first place. 

Alibi literally means “in another place.”

Actus reus means “a guilty act.” Crimes committed in actus reus refer to those that are voluntary in nature or occur through deliberate intent. Self-defense does not fall into this category.

Bona fide means “in good faith.” A bona fide act is one made in good faith and without malicious intent. Even when something untoward occurs, so to speak, a company that caused the problem might have its actions described as bona fide.

What Is The Legal Definition Of “Debt Settlement?”

Debt settlement confuses some people because it goes by other synonyms like “debt reduction” or “debt negotiation” or even “debt resolution.” They all mean the same thing. There are a number of means through which the process of debt settlement occurs, but in general the legal definition of debt settlement revolves around the act of settling debts through negotiation with a creditor. 

Because creditors realize that sometimes people dig themselves a hole with no way out (financially speaking, of course), they agree to forgive a portion of the debt. This is done because the creditor isn’t going to be paid through other means, and the debtor cannot pay through other means. Often, the agreement involves a single payment. The agreement is always written and signed by both parties because it is a legally binding contract.

Creditors are accustomed to dealing with debtors who cannot pay the full amount. For them, there are two options: pay off a debtor’s debt to a third party or seek payment without a middleman. If they go through a third party, the third party will seek to have the debt paid through more aggressive means.

Most banks choose the third-party option but other banks — like Bank of America — will usually attempt to acquire payment through other legal means such as civil litigation.

Debt settlement is often an alternative to declaring bankruptcy, although each method has its own advantages and disadvantages. 

How does a debt settlement transpire? Generally, the debtor will make the choice to reach a debt settlement either with the help of an attorney or by oneself. Either the debtor or the debtor’s representative will do their best to provide an honest evaluation of the financial situation that led to this meeting.

The debt settlement agency would make a sneaky arrangement that usually works like this: First, the debtor would agree to pay the debt settlement agency instead of paying their bills. These payments would usually be less than the payments owed to the creditor — and they would instead be put into a savings account. Eventually, when there is enough in the savings account, the debt settlement agency would contact the creditor to make a deal to reduce or eliminate the debtor’s debt. 

One portion of the money in the account goes to paying the creditor, while a smaller portion goes to the debt settlement agency. 

Keep in mind that a debt settlement agency isn’t always a part of this process. Some debtors prefer to eliminate the need for a middleman just like creditors who do the same.

There are two key advantages to debt settlement: You avoid bankruptcy and you pay less of the overall debt. But there are potential disadvantages as well. First, the settlement agency might not be able to reach a deal with the creditor. Second, the creditor could litigate (like Bank of America often does). Third, a person’s credit score will plummet during this process. And last but not least: if the debt settlement process fails, then the interest on the original amount will result in an even larger amount than the debtor would have paid in the first place.

What Is The Legal Definition Of “Impeachment?”

Even though our country has now impeached three presidents four times, there is still a disconnect between the term “impeachment” and its actual definition. For whatever reason, most of us are still confused. For example, many people remember the impeachment proceedings for former President Bill Clinton, but they don’t actually realize he was impeached. That’s because they believe impeachment means removal, when in fact that’s not the case at all.

The legal definition of the word “impeachment” according to Cornell University is: “The process of charging a public official, such as a U.S. president or a federal judge, with a crime or misconduct, which results in a trial by the senate to determine whether the official should be removed from office.”

Basically, the choice to impeach a president simply means that the United States House of Representatives has decided to bring charges against a president (although other bodies reserve the right to impeach different types of public officials). Senators notably cannot be impeached — they must be removed by other members of Congress, which makes the likelihood of it ever happening very low. Historically, senators have only been removed during the Civil War.

That means former President Donald J. Trump has been impeached twice. He was not convicted of “high crimes and misdemeanors” (another oft-misunderstood phrase) — but the lack of a conviction doesn’t nullify the impeachment. He was and always will be impeached. Because conviction requires two-thirds of the Senate, it isn’t likely to happen this time around either, even though many Republican senators have voiced distaste or open blame for the former president’s conduct. 

Legally, Trump’s lawyers will likely argue that it is unconstitutional to try a president who has already left office. But Trump was still in office when he was impeached, and the Senate is legally required to hold a trial once articles of impeachment are transferred — and this is also not without precedent. The argument is therefore flawed.