n. 1) a swearing to tell the truth, the whole truth and nothing but the truth, which would subject the oath-taker to a prosecution for
the crime of perjury if he/she knowingly lies in a statement either orally in a trial or deposition or in writing. Traditionally, the
oath concludes "so help me God," but the approval of a supreme being is often omitted. Criminal perjury charges are rare, however, since
the person stating the untruth will almost always claim error, mistake, loss of memory or opinion. At the beginning of any testimony
by a witness, the clerk or court reporter administers an oath to the witness. 2) The "swearing in" of a person assuming a public office,
sometimes called the "oath of office." 3) sworn commitment of allegiance, as to one's country.
n. 1) any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a
County Clerk), that the statements in the document are true. 2) in many states a declaration under penalty of perjury, which does not
require the oath-taking before a notary, is the equivalent of an affidavit.
prep. lawyer Latin for "from the start," as "it was legal ab initio."
abuse of process
n. the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper
untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is
intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to
discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.
adj. when enough facts or circumstances exist to meet the legal requirements to file a legitimate lawsuit. If the facts required to prove a case cannot be alleged in the complaint, the case is not "actionable" and the client and his/her attorney should not file
a suit. Of course, whether many cases are actionable is a matter of judgment and interpretation of the facts and/or law, resulting in many lawsuits that clog the courts. Incidentally, if a case is filed which is clearly not actionable, it may result in a lawsuit against
the filer of the original suit for malicious prosecution by the defendant after he/she has won the original suit.
n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys' fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of
spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and
general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution
cannot be filed until the original lawsuit is decided in favor of the victim.
n. a conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the
other's well-being. Often the mean nature of the act itself implies malice, without the party saying "I did it because I was mad at him, and I hated him," which would be express malice. Malice is an element in first degree murder. In a lawsuit for defamation (libel and slander) the existence of malice may increase the judgment to include general damages. Proof of malice is absolutely necessary for
a "public figure" to win a lawsuit for defamation.
See also: defamation libel malice aforethought malicious prosecution murder public figure slander
n. 1) the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. 2) a general evil and depraved state of mind in which the person is unconcerned for the lives of others. Thus, if a person uses a gun to hold up a bank and an innocent bystander is killed in a shoot-out with police, there is malice aforethought.
n. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality or knowingly exceeding authority for improper reasons. Malfeasance is distinguished from "misfeasance," which is committing
a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing. Example: a city manager putting his indigent cousin on the city payroll at a wage the manager knows is above that allowed and/or letting him file false time cards is malfeasance;
putting his able cousin on the payroll which, unknown to him, is a violation of an anti-nepotism statute is misfeasance. This distinction can apply to corporate officers, public officials,
trustees and others cloaked with responsibility.See also: misfeasance
n. management of a business, public office or other responsibility in which there are errors and an unfortunate result through mistake or
carelessness, but without evil intent and/or violation of law. Misfeasance is distinguished from "malfeasance," which is intentional
conduct in violation of the law.
malum in se
(mal-uhm in say) adv. Latin referring to an act that is "wrong in itself," in its very nature being illegal because it violates the natural, moral or public principles of a civilized society. In criminal law it is one of the collection of crimes which are
traditional and not just created by statute, which are "malum prohibitum." Example: murder, rape, burglary and robbery are malum in se, while violations of the Securities and Exchange Act or most "white collar crimes" are malum prohibitum.
(mal-uhm prohibit-uhm) adj. Latin meaning "wrong due to being prohibited," which refers to crimes made so by statute, compared to crimes based on English common law and obvious violations of society's standards which are defined as malum in se. Statutory
crimes include criminal violations of regulatory acts, "white collar crimes" such as improper use of insider information, issuance of stocks,
without a permit which are intentionally not supported by real assets and tax avoidance.
n. a convincing statement made to induce someone to enter into a contract or agreement to which the person would not have agreed without that assertion. Thus, if the material representation proves not to be true or to be misleading, the contract can be rescinded or
cancelled without liability.
n. in a criminal trial, the reasonable belief (but falling short of absolute certainty) of the trier of the fact (jury or judge sitting without a jury) that the evidence shows the defendant is guilty. Moral certainty is another way of saying "beyond a reasonable doubt."
Since there is no exact measure of certainty it is always somewhat subjective and based on "reasonable" opinions of judge and/or jury.