Paternity Fraud Dictionary
===== BIG ONE FOR VICTIMS=============================== confidential relation n. a relationship in which one person has confidence in and relies on another because of some combination of a history of trust, older age, family connection and/or superior training and knowledge, to a point where the party relied upon dominates the situation, for good or bad. While it may include attorney and client, stockbroker and customer, real estate agent and buyer, a senior family member and an unsophisticated relative, the relationship is defined on a case-by- case basis, with reliance and dominance the key factors. In this situation, the trusting party does not have to be as vigilant or suspicious as with strangers or people who are not relied upon. The time clock (statute of limitations) to bring a lawsuit against a crook who is in a confidential relationship may not start to run until the misdeeds become extremely obvious.
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constructive fraud n. when the circumstances show that someone's actions give him/her an unfair advantage over another by unfair means (lying or not telling a buyer about defects in a product, for example), the court may decide from the methods used and the result that it should treat the situation as if there was actual fraud even if all the technical elements of fraud have not been proven.
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paternity suit n. a lawsuit, usually by a mother or child support enforcement, to prove that a named person is the father of her child (or the fetus she is carrying). Evidence of paternity may include blood tests (which can eliminate a man as a possible father), testimony about sexual relations between the woman and the alleged father, evidence of relationship of the couple during the time the woman became pregnant, admissions of fatherhood, comparison of child in looks, eye and hair color, race and, increasingly, DNA evidence. In addition to the desire to give the child a known natural father, proof of paternity will lead to the right to child support, birthing expenses and the child's inheritance from his father. The threat of a paternity suit against a man married to another woman may lead to a prompt and quiet settlement.
prostitute n. a person who receives payment for sex or other sexual acts, generally as a regular occupation.
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extrinsic fraud n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from "intrinsic fraud," which is the fraud that is the subject of a lawsuit.
intrinsic fraud n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. This is distinguished from extrinsic fraud (collateral fraud) which was a deceptive means to keeping one from enforcing his/her legal rights.
legal fiction n. a presumption of fact assumed by a court for convenience, consistency or to achieve justice.
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perjurer n. a person who intentionally lies while under an oath administered by a notary public, court clerk or other official, and thus commits the crime of perjury. A perjurer may commit perjury in oral testimony or by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, tax return) knowing the document contains false information.
perjury n. the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.
misrepresentation n. the crime of misstating facts to obtain money, goods or benefits of another to which the accused is not entitled. Examples: a person a) falsely claims to represent a charity to obtain a donation which he/she keeps; b) says a painting is a genuine Jackson Pollock when it is a fake and thus is able to sell it for a price much greater than its true value. Misrepresentation is also called "false pretenses."
false pretenses n. the crime of knowingly making untrue statements for the purpose of obtaining money or property fraudulently. This can range from claiming zircons are diamonds and turning back the odometer on a car, to falsely stating that a mine has been producing gold when it has not. It is one form of theft.
pleading n. 1) every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by state or federal statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well- organized and comprehensive.
answer n. in law, a written pleading filed by a defendant to respond to a complaint in a lawsuit filed and served upon that defendant. An answer generally responds to each allegation in the complaint by denying or admitting it, or admitting in part and denying in part. The answer may also com- prise "affirmative defenses" including allegations which contradict the complaint or contain legal theories (like "unclean hands," "contributory negligence" or "anticipatory breach") which are intended to derail the claims in the complaint. Sometimes the answer is in the form of a "general denial," denying everything. The answer must be in typed form, follow specific rules of pleading established by law and the courts, and be filed with the court and served on the defendant within a specific statutory time (e.g. 20 or 30 days after service of the complaint). If the complaint is verified as under penalty of perjury, the answer must be also. There is a fairly steep filing fee for each defendant filing an answer. In short, if served a complaint, one should see a lawyer as soon as possible to prevent a default judgment.
general denial n. a statement in an answer to a lawsuit or claim by a defendant in a lawsuit, in which the defendant denies everything alleged in the complaint without specifically denying any allegation. It reads: "Defendant denies each and every allegation contained in the complaint on file herein," or similar inclusive language. See also: answer complaint
verification n. the declaration under oath or upon penalty of perjury that a statement or pleading is true, located at the end of a document. A typical verification reads: "I declare under penalty of perjury under the laws of the State of California, that I have read the above complaint and I know it is true of my own knowledge, except as to those things stated upon information and belief, and as to those I believe it to be true. Executed January 3, 1995, at Monrovia, California. (signed) Georgia Garner, declarant." If a complaint is verified then the answer to the complaint must be verified.
oath 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.
affidavit 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.
ab initio 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.
actionable 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.
malicious prosecution 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.
malice 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
malice aforethought 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.
malfeasance 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
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.
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.
material representation 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.
moral certainty 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.
motion for a new trial n. a request made by the loser for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge sitting without a jury obviously came to an incorrect result. This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial. Such a motion is seldom granted (particularly if the judge heard the case without a jury) unless there is some very clear error which any judge would recognize. Some lawyers feel the motion helps add to the record of argument leading to an appeal of the case to an appeals court.
motion for a summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on testimony recorded outside court, affidavits (declarations under penalty of perjury), depositions, admissions of fact and/or answers to written interrogatories, claiming that all factual and legal issues can be decided in the moving party's favor. These alleged facts are accompanied by a written legal brief (points and authorities) in support of the motion. The opposing party needs to show by affidavits, written declarations or points and authorities (written legal argument in support of the motion) that there are "triable issues of fact" and/or of law by points and authorities. If there are any triable issues the motion must be denied and the case can go to trial. Sometimes, if there are several claims (causes of action) such a motion may cause the judge to find (decide) that some causes of action can be decided under the motion, leaving fewer matters actually to be tried. The paper- work on both sides is complex, burdensome and in many states, based on strict procedures. See also: motion
gross negligence n. carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil. If one has borrowed or contracted to take care of another's property, then gross negligence is the failure to actively take the care one would of his/her own property. If gross negligence is found by the trier of fact (judge or jury), it can result in the award of punitive damages on top of general and special damages.
de facto adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.
deceit n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.
deception n. the act of misleading another through intentionally false statements or fraudulent actions. See also: deceit fraud
defraud v. to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another. See also: fraud
diligence n. reasonable care or attention to a matter, which is good enough to avoid a claim of negligence, or is a fair attempt (as in due diligence in a process server's attempt to locate someone).
DNA n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the famous "double helix") in the nucleus of each living cell, the combination of which determines each individual's hereditary characteristics. In law, the importance is the discovery that each person's DNA is different and is found in each living cell, so blood, hair, skin or any part of the body can be used to identify and distinguish an individual from all other people. DNA testing can result in proof of one's involvement or lack of involvement in a crime scene. While recent DNA tests have proved a convicted killer on death row did not commit a crime and resulted in his release, current debate concerns whether DNA evidence is scientifically certain enough to be admitted in trials. The trend is strongly in favor of admission.
duty of care n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
case law n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law," which is the statutes and codes (laws) enacted by legislative bodies; "regulatory law," which is regulations required by agencies based on statutes; and in some states, the common law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes. See also: case system precedent
case of first impression n. a case in which a question of interpretation of law is presented which has never arisen before in any reported case. Sometimes, it is only of first impression in the particular state or jurisdiction, so decisions from other states or the federal courts may be examined as a guideline.
certiorari n. (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision. Certiorari is most commonly used by the U.S. Supreme Court, which is selective about which cases it will hear on appeal. To appeal to the Supreme Court one applies to the Supreme Court for a writ of certiorari, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest. By denying such a writ the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases).
civil rights n. those rights guaranteed by the Bill of Rights, the 13th and 14th Amendments to the Constitution, including the right to due process, equal treatment under the law of all people regarding enjoyment of life, liberty, property, and protection. Positive civil rights include the right to vote, the opportunity to enjoy the benefits of a democratic society, such as equal access to public schools, recreation, transportation, public facilities, and housing, and equal and fair treatment by law enforcement and the courts. See also: Bill of Rights civil civil liberties Place this dictionary on your site
Bill of Rights
n. the first ten amendments to the federal Constitution demanded by
several states in return for ratifying the Constitution, since the
failure to protect these rights was a glaring omission in the
Constitution as adopted in convention in 1787. Adopted and ratified
in 1791, the Bill of Rights are: First: Prohibits laws establishing a
religion (separation of church and state), and bans laws which would
restrict freedom of religion, speech, press (now interpreted as
covering all media), right to peaceably assemble and petition the
government. Second: A "well regulated Militia, being necessary to the
security of a free state, the right of the people to keep and bear
Arms, shall not be infringed." This is often claimed as giving the
unfettered right of individuals to own guns, but is actually limited
to the right of "the" people, meaning the body politic or the public
as a group, to bear arms as militiamen Third: No quartering of
soldiers in private homes without the owner's consent. Fourth: No
unreasonable search and seizures, no warrants without probable cause,
and such warrants must be upon "oath or affirmation" and describe the
place to be searched or the person or things to be taken. Fifth:
Prohibits criminal charges for death penalty ("capital punishment")
or any other "infamous" crime (felony) without indictment by a Grand
Jury except under martial law in the time of war or "public danger";
no person may be tried twice for the same offense; no one may be
compelled to be a witness against himself ("taking the Fifth"), no
one can be deprived of life, liberty or property without "due process
of law"; no taking of property for public use (eminent domain)
without just compensation. These rights have become applicable to
states through the 14th Amendment as well as state constitutions.
Sixth: Rights of criminal defendants to a speedy and public trial,
impartial local jury, information on the nature and cause of
accusation, confront witnesses against him, right to subpena
witnesses, and have counsel. Seventh: Juries may be demanded in civil
cases (over $20) and the jury shall be trier of the fact in such
cases as required by Common Law. Eighth: No excessive bail, excessive
fines or "cruel and unusual punishment." Note that denial of bail in
murder cases or when the accused may flee is not "excessive," and
capital punishment (like the gas chamber) may be cruel but not
necessarily unusual. inth: Stating these rights shall not be
construed to deny that other rights are retained by the people.
Tenth: Powers given to the United States (central government) and not
prohibited to the states, are reserved to the states or to the people.
class action n. a lawsuit filed by one or more people on behalf of themselves and a larger group of people "who are similarly situated." Examples might include: all women who have suffered from defective contraceptive devices or breast implants, all those overcharged by a public utility during a particular period, or all those who were underpaid by an employer in violation of the Fair Labor Standards Act. If a class action is successful, a period of time is given for those who can prove they fit the class to file claims to participate in the judgment amount. Class actions are difficult and expensive to file and follow through, but the results can be helpful to people who could not afford to carry a suit alone. They can force businesses that have caused broad damage or have a "public be damned" attitude to change their practices and/or pay for damages. They often result in high fees for the winning attorneys, although often attorneys do not collect a fee at the beginning of a class action suit but might charge a contingent fee (such as one-third of the final judgment), which, occasionally, can be millions of dollars. Such fees usually require court approval.
collateral attack n. a legal action to challenge a ruling in another case. For example, Joe Parenti has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paternity in the divorce action.
collusion n. where two persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating. Collusion can include secret price or wage fixing, secret rebates, or pretending to be independent of each other when actually conspiring together for their joint ends. It can range from small-town shopkeepers or heirs to a grandma's estate, to gigantic electronics companies or big league baseball team owners. See also: fraud
color of law n. the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exists. An outstanding example is found in the civil rights acts which penalize law enforcement officers for violating civil rights by making arrests "under color of law" of peaceful protesters or to disrupt voter registration. It could apply to phony traffic arrests in order to raise revenue from fines or extort payoffs to forget the ticket.
conclusion of fact n. in a trial, the final result of an analysis of the facts presented in evidence, made by the trier of fact (a jury or by the judge if there is no jury). When a judge is the trier of fact he/she will present orally in open court or in a written judgment his/her findings of fact to support his/her decision. In most cases either party is entitled to written conclusion of facts if requested. See also: finding judgment
conclusion of law n. a judge's final decision on a question of law which has been raised in a trial or a court hearing, particularly those issues which are vital to reaching a statement. These may be presented orally by the judge in open court, but are often contained in a written judgment in support of his/her judgment such as an award of damages or denial of a petition. In most cases either party is entitled to written conclusions of law if requested. See also: judgment
attorney-client privilege n. the requirement that an attorney may not reveal communications, conversations and letters between himself/ herself and his/her client, under the theory that a person should be able to speak freely and honestly with his/her attorney without fear of future revelation. In a trial, deposition, and written questions (interrogatories), the attorney is required and the client is entitled to refuse to answer any question or produce any document which was part of the attorney- client contact. The problem sometimes arises as to whether the conversation was in an attorney-client relationship. If a man tells his neighbor who happens to be an attorney that he embezzled funds, is he doing so while seeking legal advice or just chatting over the fence (which is the test)? If a document was prepared as part of the legal preparation for a client, it usually is a "work product" and is also privileged. Similar privileges exist between pastor and parishioner and doctor and patient.
attorney's work product n. written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in court or otherwise revealed to the other side. Sometimes there is a question as to whether documents were prepared by the attorney and/or the client for their use in the case preparation or are documents which are independent and legitimate evidence.
work product n. the writings, notes, memoranda, reports on conversations with the client or witness, research and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial. A "work product" may not be demanded or subpenaed by the opposing party, as are documents, letters by and from third parties and other evidence, since the work product reflects the confidential strategy, tactics and theories to be employed by the attorney.
consequential damages n. damages claimed and/or awarded in a lawsuit which were caused as a direct foreseeable result of wrongdoing.
equitable estoppel n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: "he who seeks equity, must do equity." Example: Larry Landlord rents space to Dora Dressmaker in his shopping center but falsely tells her a Sears store will be a tenant and will draw customers to the project. He does not tell her a new freeway is going to divert traffic from the center. When she fails to pay her rent due to lack of business, Landlord sues her for breach of lease. Dressmaker may claim he is equitably estopped.