Saturday, April 18, 2015

Legal Definitions - P


Pain and suffering – How most non-lawyers, and some lawyers, describe their experience in court.

Paralegal – A non-lawyer with specialized training, who performs routine tasks requiring some knowledge of the law and legal procedures. Some paralegals are employed by a law office, and others work freelance for various lawyers. I've been a lawyer for almost half my life, and I know paralegals who know more about the law than I do. A good paralegal is worth MORE, in my opinion, than most lawyers are worth.

Peremptory challenge – Each party in a jury trial may “thank and excuse” a certain number of potential jurors without having to give any specific reason. These challenges cannot be used for invalid reasons, such as to exclude all women or black persons from the jury, but can otherwise be used just because the party or attorney “doesn't think that person will vote in my favor, no matter what the facts.” At the start of a case, the parties also have the right to file a peremptory challenge against ONE judge without giving a reason. There are several judges in the courthouses where I practice, that I will “file paper on” [exercise my peremptory challenge], because those judges do NOT afford landlords a fair trial. I can only do this once per case tho [additional challenges must be for cause, like the judge is related to a party or attorney], so I have to be careful to weigh the risk that I paper a bad judge and am randomly assigned to a worse judge.

Personal property – The pile of “junk” that tenants leave behind when they move out. Some of my clients have had to pay more than $25,000 to trash-out companies to remove the abandoned personal property of a single bad tenant/prior owner.  These people give new meaning to the word hoarder.

Plaintiff – the person or entity who filed the complaint, thereby starting a case. In an eviction case, almost all plaintiffs are landlords or new owners of foreclosed properties.

Preponderance of the evidence – One of three legal burdens that the prosecution/plaintiff has, in order to prove his case. (1) Criminal cases require beyond a reasonable doubt, which does NOT mean 99.99%, it just means that all reasonable doubts must be resolved in favor of the defendant. For example, if two solutions can be the result of the facts presented, and one of those solutions means the defendant did NOT do the act, then judgment must be in favor of the defendant. Obviously, “not guilty” is not the same as “innocent.” It just means the prosecution did not prove the case beyond a reasonable doubt. (2) Clear and convincing evidence is required for certain cases, like probate, child custody, and paternity, and for the resolution of certain motions [like whether a bankruptcy case was filed in good faith]. Some people attempt to place a percentage on this burden, something like 80%, but there is no legal percentage, it is just “substantially more probable as true than not true.” (3) Preponderance of the evidence means more probable than not. This is not the same as 51%, but is 50% plus a feather-weight. The scales must just barely tip in favor of the person who has the burden of proof. In most civil cases, the plaintiff has the burden of proof [defendants have the burden for most affirmative defenses], so if the evidence is 50/50, the plaintiff loses. Evictions are theoretically governed by preponderance standards, altho in some areas, especially rent-controlled jurisdictions, most juries, and even some judges [snarl], will thumb their noses at the requirements and use the clear and convincing standard.

Pro bono – An attorney providing legal services without pay. Most states, including CA, either request or require attorneys to work a certain number of pro bono hours per year, to help the poor or “less fortunate” among us. Sometimes my clients want it also, usually after I've already done the work and they decide they don't want to pay me. Most of the time, those are my ex-clients.

Process server – A person who serves legal papers to another person or entity, usually by personal delivery. For example, a Notice or a Summons and Complaint. Some defendants evade service, requiring process servers to get creative in finding the persons and serving them. One of the process servers my firm uses has even served celebrity defendants at the Grammy awards [“Congratulations on your nomination! Here's a paper to remember me by....”]. Here's a link of a process server serving a celebrity at a public event.


  1. I really don't like the terminology "not guilty" because, as you point out, legally speaking, it's not intended as a declaration of innocence. And yet the term "guilty" has moral connotations beyond what a court might declare. It would be better to say, "Not proven" or "Guilt not proven."

    1. I agree with you, but that's what we have. The only real way to get "innocent" is to find the real perpetrator and get him to confess. [And that doesn't always work either.]