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Waiver
    A voluntary, deemed, or assumed abandonment of some right. In many proceedings, if no objection is raised to an act of the opposing party, the court may deem that a waiver has occurred. The longer one delays acting, the more likely the court will impose a waiver. Of course a waiver can be voluntary and express, as when one waives his right to cross-examine a witness.

Ward
    One who is in the custody of another. A prisoner is ward of his warden. A person under the protection of a court-ordered guardianship is ward of his guardian. An orphan is generally a ward of the state or of the institution responsible for the orphan's custody and welfare. Children who are not orphans or abandoned to the state are usually in the custody of and therefore wards of one or both of their parents.
    A ward is not necessarily under the complete control of another, but someone other than the ward is always legally responsible for the ward's welfare and, therefore, that person is legally answerable to the state in regard to the ward's welfare.

Willful
    With intent, i.e., intending to take an action rather than doing so accidentially.
    "She entered the plaintiff's property willfully, in spite of the 'No Trespassing' sign she admitted seeing before she crossed the boundary."
    The issue of "intent" often determines whether or not a person is liable for damages resulting from his or her acts. If the act is unintentional (, i.e., not willful) there may in some cases be no liability, while if intentional (willful) the actor may be responsible for not only the plaintiff's actual damages but also for punitive damages to punish him or her for having either an evil intent or reckless disregard for the consequences to others.
    Keep in mind it is the intent to do the act that counts, not intent to cause the injury. If one intends an act (i.e., if he acts willfully) then he is responsible for the plaintiff's damages - whether or  not he intended to cause damages.

With Prejudice
    When a notice or offer or admission is made with prejudice, the party giving the notice, offer, or admission is bound by the consequence. For example, if a party dismisses his lawsuit with prejudice he cannot re-file against any of the same parties upon the same causes of action arising from the same or even similar fact circumstances. By filing a "Notice Of Dismissal With Prejudice" he waives all rights he might otherwise have had to re-file the lawsuit at a later time. Whenever you are settling with another party who, in consideration of some payment or agreement, promises to dismiss his lawsuit against you, make certain he does so "with prejudice" and that his notice of dismissal includes those very words. See Without Prejudice next.

Without Prejudice
    When a notice or offer or admission is made "without prejudice", the party giving the notice, offer, or admission is not bound by the consequence. For example, if a party dismisses his lawsuit without prejudice he may re-file against any of the same parties on the same causes of action arising from the same or similar fact circumstances. By filing a "Notice Of Dismissal Withour Prejudice" he does not waive his right to re-file the lawsuit at a later time. Whenever you are settling with another party who, in consideration of some payment or agreement, requests you to dismiss your lawsuit against him, and you have any doubt as to whether or not he will follow-through on the promises he made to get you to dismiss the suit, do so "without prejudice" and make certain you notice of dismissal includes those very words. Then, if he doesn't do what he promised, you can file the lawsuit again.
    A surprising number of people list their mailing address in various peculiar ways ending with the words "without prejudice", presumably because they think giving their mailing address somehow binds them to some obligation, however inasmuch as listing one's mailing address has no legal consequence other than the hoped for possibility you may receive your mail at that address, adding "without prejudice" has no effect other than to label the person as a bit peculiar.

Writ
    An order of the court enforcing the law or its separate orders by directing that some act be performed, as opposed to an order of judgment declaring a debt (as in a case for damages in tort or breach of contract) or enjoining some future action (as in a case to enforce the terms of an agreement or to prevent one person from causing or threatening harm to another). There were in the common law many different types of writs. A few still in use are listed hereinafter. Writs are obtained by motions or petitions to a court having jurisdiction over the matter.

Writ of Assistance
    A writ ordering a law enforcement officer (e.g., a sheriff) to enforce a prior writ or other order of the court.

Writ of Attachment
    A writ ordering a law enforcement officer (e.g., a sheriff) to attach property obtained by fraud for delivery to the person rightfully entitled to possession.

Writ of Certiorari
    A writ ordering certification (i.e., examination) of the rulings of a lower court during proceedings at the trial level. When an aggrieved party believes during the proceedings of his case that the lower court has violated the rules of court, for example, he or she may petition the higher court for a writ of certiorari to examine what the lower court has done and, if the appellate court finds there has been an abuse of power or abuse of discretion, an order may be issued reversing the lower court's decision or remanding the matter back to the trial judge for further proceedings consistent with the appellate court's ruling.

Writ of Garnishment
    A writ ordering a person who owes a judgment debtor money to pay the judgment creditor instead. When a party wins a judgment for money damages against another who is owed money by a third person (e.g., an employer or person obligated to the debtor pursuant to a promissory note or contract) the court can order the third person to pay the judgment creditor in satisfaction of the judgment. Writs of garnishment may be issued to banks holding cash in accounts of the judgment debtor or to employers of the judgment debtor. If the amount an employer owes is insufficient to satisfy the judgment, a continuing writ may be issued directing the employer to withdraw all but a set minimum sum from the employee's wages each pay period, paying the employee the minimum amount and paying the rest of the debtor's wages to the judgment creditor until the judgment is satisfied. 

Writ of Habeas Corpus
    A writ ordering a law enforcement officer (e.g., a warden, sheriff, or local police officer holding a prisoner) to give answer on the public record explaining by what authority he or she is holding the prisoner (e.g., "having the body") in detention. Motions for writs of habeas corpus are used to challenge the right of the state to continue detaining a prisoner. In some situations an individual may be imprisoned after conviction and there is later discovered evidence to be brought before the court, or the conviction may have resulted from a judge's abuse of discretion. An accused may be wrongfully sentenced to serve a term longer than the law provides, and the writ will bring this fact before the court to re-examine the sentence. The writ has been used to challenge the conditions of detention centers, requiring that such conditions be improved or the detention center closed. 

Writ of Mandamus
    A writ ordering a government official (regardless of branch or level) to give an answer on the public record explaining by what authority he or she is acting in a particular situation or requiring such person to act in accordance with his or her lawful authority. Thus, if the mayor of a town refuses to convene the city council, an aggrieved citizen can move the local court of competent jurisdiction to issue a write of mandamus requiring the mayor to act in accordance with his or her legal function. Or, if the mayor takes it upon himself or herself to act as a judge and jury, directing the local police chief to put people in jail at his or her command, a motion for writ of mandamus will move the court to issue an order directing the mayor to explain by what authority he or she is having people jailed without due process of law.

Writ of Possession
    A writ ordering a law enforcement officer (e.g., a sheriff) to give possession of property to the person lawfully entitled to possession and, if necessary to remove the offending party by force.

Writ of Prohibition
    An extraordinary writ issued by a higher court ordering a lower court to act according to law or to desist acting contrary to law.

Writ of Quo Warranto
    A writ ordering a government official (regardless of branch or level) to give an answer on the public record explaining by what authority he or she is acting in a particular situation. Thus, if the mayor of a town takes it upon himself or herself to act as a judge, directing local police to put people in jail at his or her command, a motion for writ of quo warranto will move the court to issue an order directing the mayor to explain by what authority he or she is having people jailed without due process of law.

Writ of Replevin
    A writ ordering a law enforcement officer (e.g., a sheriff) to recover personal property from one person and give it to another. When one person is wrongfully in possession of the property of another (e.g., by theft or default on a rental contract) the aggrieved party can petition the court for a writ of replevin to test the right of the party in possession and, if justice demands, to authorize the exercise of legal force to recover the wrongfully detained property.

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07/30/2004 10:48 AM