Legal Terms

June 2, 2015

When I go to the doctor I wonder why medicine uses so many terms I don’t understand. Then, I look in the mirror, as many legal terms have no evident meaning for lay people. Herewith, some terms and their meanings.

Fiduciary is an adjective and a noun, used to describe a relationship a special trust. In certain circumstances the law establishes a fiduciary duty. For example, trustees owe to trust beneficiaries a fiduciary duty, attorneys have a fiduciary relationship with their clients, and partners owe to one another a fiduciary duty. Board members also owe to nonprofits a fiduciary duty. Translation? The terms of the duty vary, depending on the relationship, but they include duties of loyalty, care, and honesty. As a noun, a Fiduciary is a person whose relationship with another creates fiduciary duties. Guardians, conservators, and personal representatives are all fiduciaries.

Guardian ad litem means “guardian for the case.” In Arizona, parents are natural guardians for their children. Guardians serve in the parental role for minors when parents are unavailable, and they act on behalf of incapacitated persons. A guardian ad litem, on the other hand, acts in an advisory capacity in an individual case, and only for purposes of the case. The role is filled in Juvenile Court proceedings and, on occasion, in other cases.

Habeas corpus means, translated, deliver the body. By writ, a court can require to “deliver the body.” In practice habeas corpus provides a means for releasing a prisoner when appeals have been exhausted but good reason exists. Article I, Section 9 provides: “The privilege of the writ of habeas corpus shall not be suspended, except when in cases of rebellion or invasion the public safety may require it.”

Of counsel is a term seen on many law firm letterheads. There’s no precise meaning. Traditionally, someone at or near the end of a successful career became of counsel. Now, though, it amounts to: (a) not a partner/shareholder; and (b) not an associate.

P.C., at the end of a law firm’s name, does not stand for Pima County. (Easy for my non-Tucson readers to poo-poo this notion!) Prior to the 1970s, attorneys—and many other professionals—could not use the corporate form to operate their businesses. Professional corporations, PCs for short, came into existence. They allow professionals to use the corporate form, but they do not protect professionals, as shareholders, from liability for their and other professionals’ acts. So, P.C. owners are not personally liability for the electric and gas bills, but they cannot avoid liability for malpractice claims.

Res judicata means “thing done.” When a civil case is over it’s over. (Over isn’t over only when the Court which decided the case lacked subject matter jurisdiction, or where the defendant never received proper notice of the suit.*) That means the case cannot be re-litigated in another suit. A related principle, collateral estoppels, bars parties and those whose roles are closely related from re-litigating an issue already decided in a prior suit between those people.

Subpoena and subpoena duces tecum are Latin terms which mean show up and up and show up with papers. The origin of subpoena is under penalty; thus, it’s not a good idea to ignore a subpoena. A subpoena requests demands testimony under oath. Testimony may be required in a deposition—usually in an attorney’s office—or in court. Often, a subpoena duces tecum will simply require the delivery of documents. (Depositions, by the way, involve oral testimony, under oath, given somewhere other than the courtroom.)



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