Act of 2009, H.R. 1708). Neither bill passed in the House of Representatives during 2009. FURTHER READINGS Altman, Nancy J. 2009. “Social Security and Intergenera- tional Justice.” George Washington Law Review. 77 (September). Matheny, Ken. 2003. “Social Security Disability and the Older Worker: A Proposal for Reform.” Georgetown Journal on Poverty Law & Policy 10 (winter). Nickles, Don. 1999. “Retiring in America: Why the United States Needs a New Kind of Social Security for the New Millennium.” Harvard Journal on Legislation 36 (winter). Social Security Advisory Board. 2001. Social Security Disability: The Basics. Mechanicsburg: Pennsylvania Bar Institute. Social Security and SSI Disability. 1999. New York: Practising Law Institute. CROSS REFE RENCES Disability Discrimination; Elder Law; Health Insurance; Senior Citizens; Social Security. OLMSTEAD V. UNITED STATES Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), was the first case concerning the issue of whether messages passing over telephone wires are within the constitutional protection against unreasonable searches and seizures. In Olmstead, several individuals were con- victed of a conspiracy to violate the National Prohibition Act (41 Stat. 305) by illegally possessing, transporting, and importing intoxi- cating liquors, maintaining nuisances, and selling intoxicating liquors. The information leading to the discovery of the conspiracy was, for the most part, obtained through the interception of messages on the telephones of the conspirators by four federal prohibition officers. Wires were placed along the ordinary telephone wires from the homes of four of the defendants and along the wires that led to their main office of operation. The insertion of the wires was made without any trespass having been committed on any of the defendants’ property, because it was done in the basement of the large office building and in the streets near the residences. The SUPREME COURT held that messages passing over telephone wires were not within the protection against unreasonable searches and seizures. The eavesdropper needed to have physically trespassed in order for evidence procured by WIRETAPPING to have been obtained unconstitutionally. The Court reasoned that, since there was no entry of the homes or offices of the defendants, there was no physical TRESPASS. In addition, in spite of the fact that the evidence leading to the conviction was obtained in violation of a state statute that made it a misde- meanor to intercept telegraphic or telephonic messages, the Court indicated that the statute did not declare that evidence obtained in such manner would be inadmissible, and it was not inadmissible under COMMON LAW. Subsequently the Olmstead case was over- ruled in the case of Katz v. U.S. , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and the physical trespass doctrine abandoned. The holding in Olmstead is thus no longer the law. Under current law, in order for ELECTRONIC SURVEILLANCE to be constitutionally permissible, it must be done pursuant to the prior authorization by a co urt. In addition, since Katz, the existence of a privac y interest within the Fourt h Amendment’s protective ambit has been understood to depend upon whether the individual asserting the interest has demon- strated a subjective expectation of privacy and whether society would accept that expectation as reasonable. v OLNEY, RICHARD In the late nineteenth century, t he Massachus etts- born attorney Richard Olney exerted a powerful influence over domestic and international affairs. From 1893 to 1895, Olney served as U.S. attorney general under President GROVER CLEVELAND and, from 1895 to 1897, as SECRETARY OF STATE . A nationalist with a forceful personal- ity who took a broad view of federal power, Olney is remembered for two important actions during his public career that had long-lasting implications for U.S. law. First, as attorney general, he used the office in 1894 to break a strike by railway workers that hampered the delivery of mail nationwide. The outcome affected the rights of workers for more than a quarter of a century, thrust Olney into the national spotlight, and earned him the enmity of LABOR UNIONS. Second, after becoming secre- tary of state, he resolved a conflict between Venezuela and England that shaped U.S. foreign policy well into the twentieth century. Born in Oxford, Massachusetts, on September 15, 1835, Olney was educated at Brown Univer- sity and Harvard Law School. Admitted to the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 348 OLMSTEAD V. UNITED STATES Boston bar in 1859, he established a successful law practice and earned recognition for his work with railroads. A brief political career followed with his election to the Massachusetts state legislature, where he served one term between 1873 and 1874. In 1893 he was appointed U.S. attorney general at the start of the second and deeply troubled administration of President Cleveland. The president became mired in public controversies, and his new attorney general would be at the heart of one of the worst. When Olney assumed his duties in the DEPARTMENT OF JUSTICE, the nation was suffering from an economic depression. The Pullman Company, a Chicago-based railroad, cut its workers’ pay to near-starvation wages but went on paying dividends to its shareholders. In 1894 the company’s laborers staged a strike that spread nationwide under the auspices of the nascent American Railway Union: everywhere, railroad workers refused to handle Pullman train cars. Tensions escalated when railroad owners began firing the workers, and violence was threatened. The General Managers Associa- tion, a trade organization representing railroads, appealed to the Cleveland administration for federal intervention. Because the strike had prevented the deliv- ery of U.S. mails, Cleveland and Olney had to intervene. Olney had little sympathy for the workers. His first idea was to use the U.S. Army to crush them. Instead he sent 5000 special deputies to restore order. When riots followed, Olney arrested and prosecuted union leaders on grounds of conspiracy, and he won a sweeping federal court INJUNCTION to prevent workers from interfering with the railroads’ operation. Appealing to the U.S. Supreme Court in 1895, union president EUGENE V. DEBS lost his case, and the strike was broken (In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092). The Court’s sanction of the injunction was a great boon to U.S. corporations, which thereafter sought court injunctions to break strikes until the practice was restrained during the 1930s. Nonetheless, Olney and Cleveland paid a high political price in the polls for their widely unpopular actions. In 1895, toward the end of the Cleveland administration, the president appointed Olney secretary of state. At once Olney faced a foreign ▼▼ ▼▼ Richard Olney 1835–1917 18251825 18751875 19001900 19251925 18501850 ❖ 1835 Born, Oxford, Mass. 1917 Died, Boston, Mass. 1914–18 World War I ◆ 1859 Admitted to Boston bar 1861–65 U.S. Civil War 1873–74 Served in Mass. state legislature ❖ 1893–95 Served as U.S. attorney general ◆◆ ◆ 1894 Authorized special deputies to break Pullman workers strike 1898 Spanish-American War resulted in Spain ceding Puerto Rico, the Philippines, and Guam to U.S. and independence for Cuba 1895 Ordered Britain to enter arbitration to settle boundary dispute between Venezuela and British Guiana (settled in 1899) 1895–97 Served as secretary of state ◆ ◆ 1903 Panama Canal treaty signed, construction of Panama Canal begun 1914 Panama Canal opened for traffic Richard Olney. GETTY IMAGES TODAY THE UNITED STATES IS PRACTICALLY SOVEREIGN ON THIS CONTINENT AND ITS FIAT IS LAW UPON THE SUBJECTS TO WHICH IT CONFINES ITS INTERPOSITION . —RICHARD OLNEY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OLNEY, RICHARD 349 policy crisis: the conflict between Venezuela and Great Britain over the Venezuela-British Guiana boundary. As much a believer in U.S. suprem- acy as he was in federal power at home, Olney ordered Britain to enter ARBITRATION with Venezuela. His order relied on a broad reading of the MONROE DOCTRINE. As the basis of U.S. foreign policy in the nineteenth century, the Monroe Doctrine essentially preserved U.S. independence in the Western Hemisphere. Although the doctrine prohibited foreign inter- vention in Latin American nations, Olney believed it permitted U.S. intervention to stop European interference w ith Latin American affairs. Britain ultimately resolved its conflict with Venezuela through arbitration in 1899. But the broader impact of Olney’s views came later. His interpretation came to be known as the Olney Corollary to the Monroe Doctrine and was influential in the foreign policy of President THEODORE ROOSEVELT. Olney left office in 1897 at the end of the unpopular Cleveland administration. Returning to private practice, he was touted as a possible presidential candidate in 1904, but he did not run. He died in Boston on April 8, 1917. FURTHER READINGS Brodsky, Alyn. 2000. Grover Cleveland: A Study in Character. New York: Truman Talley. Eggert, Gerald G. 1974. Richard Olney: Evolution of a Statesman. State College, PA: Pennsylvania State Univ. Press. James, Henry. 2005. Richard Olney and His Public Service. Whitefish, MT: Kessinger. Jeffers, H. Paul. 2000. An Honest President: The Life and Presidencies of Grover Cleveland. New York: Morrow/ Avon. CROSS REFE RENCES Cleveland, Stephen Grover; Debs, Eugene Victor; Labor Union; Monroe Doctrine. OLOGRAPH See HOLOGRAPH. OMBUDSPERSON A public official who acts as an impartial intermediary between the public and government or bureaucracy, or an employee of an organization who mediates disputes between employee s and management. The Swedish legislature first created the position of ombudsperson in the early 1800s; the literal translation of ombudsperson is “an investigator of citizen complaints.” This official was considered to be a person of “known legal ability and outstanding integrity” and was chosen by the Swedish parliament to serve a four-year term. In modern times, an ombudsperson addresses concerns (such as administrative abuse or maladministration) that citizens or groups have about organizations or bureaucracies. In these situations , the ombudsperson acts as an impartial mediator between the two parties, providing a less threatening type of dispute resolution. For the ombudsperson to help reduce friction between citizens and the government, he or she must be viewed as trustworthy and neutral; the process will not work if one party believes that the ombudsperson is taking the side of the other party. Ombudsperson s are boun d by the oath of the Ombudsman’s Association, which requires neutrality and confidentiality, requirements that are necessary to create trust between the persons involved in a dispute and the ombudsperson. The power of the ombudsperson lies in his or her ability to investigate complaints of wrongdo- ing and then notify the public or the relevant government agencies, or both, of the findings. However, an ombudsperson cannot change or make laws, enforce any recommendations, or change administrative actions or decisions. At the government level, the ombudsperson is appointed by the legislature of the state or county in which he or she serves. The ombudsperson typically has some law training, although a law degree is not required, and the ombudsperson must be free of any political loyalties. The goal of the ombudsperson is to facilitate the communication between the public and the government and help create solutions to problems that arise between the two parties, rather than punishing the wrongdoer. These solutions are aimed at reducing the possibility of similar problems arising in the future. Friction between the public and the govern- ment often can be attributed to the ways in which laws or legislative policies are enforced. In these cases, the ombudsperson can try to reduce the friction by finding a more satisfactory method of carrying out the law. For example, even though police officers may legally enter a workplace to arrest an employee on criminal charges, this practice can embarrass the employee and threaten his or her job, even if charges are later dropped. In this situation, the ombudsperson would most GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 350 OLOGRAPH likely confer with the police department to see whether arrests for non-felonies could be made safely outside the workplace. The ombudsperson’sroleinstateandfederal governments is not always well defined. One exception is the ombudsperson for the DEPART- MENT OF HOMELAND SECURITY Citizenship and IMMIGRATION Services (CIS Ombudsperson). Established under section 452 of the Homeland Security Act of 2002, the CIS Ombudsman reports directly to the Deputy Secretary of the Department of Homeland Security (DHS). The primary objectives of the CIS Ombudsman are to: (1) assist individuals and employers in resolving problems with the United States Citizenship and Immigration Services (USCIS); (2) identify areas in which individuals and employers have pro- blems in dealing with the USCIS; and (3) propose changes in the administrative practices of the USCIS in an effort to mitigate problems. Guided by these objectives, the CIS Om- budsman operates in a unique role, advocating on behalf of the public for efficient and responsive immigration services while support- ing White House efforts to serve the public effectively. The CIS Ombudsman functions as both a public advocate and a public servant. In fulfilling these responsibilities, the CIS Om- budsman seeks to provide recommendations to resolve problems encou ntered by individuals and employers that: (1) ensure natio nal security and the integrity of the legal immi gration system; (2) increase efficiencies in administering citizenship and immigration services; and (3) improve cus tomer service in rendering citizen- ship and immigration services. Although most ombudspersons in the United States work for federal, state, and local governments, companies also employ a signifi- cant number of ombudspersons. Corporate ombudspersons serve as the point of contact for dispute resolution between employer and employee and between fellow employees. The corporate ombudsperson, who is typically a senior official within the company, helps employees work through a variety of work- related conflicts, such as dissatisfaction with salary, unethical behavior such as theft or FRAUD, terminations, DISCRIMINATION, and SEXUAL HARASS- MENT . In recent years, issues such as government contract compliance and WHISTLEBLOWING have also been handled by corporate ombudspersons. The corporate ombudsperson’s position arose from corporations’ desire to increase the job satisfaction of their employees, improve the communication between employees and man- agement, and avoid LITIGATION. More than 200 private corporations employ more than 1,000 individuals as ombudspersons. On average, a corporate ombudsperson will handle 200 to 300 cases per year and deal with 2 to 8 percent of the corporate workforce. The methods that a corporate ombudsper- son may use include responsive listening, investigation, mediation, direct resolution, and upward feedback to management. The ombuds- person al lows an employee to voice concerns and advises or counsels the employee on the best way to deal with the situation. If necessary, the ombudsperson can investigate the situation further, as is often the case in allegations of sexual harassment. However, because of the variety of situations a corporate ombudsperson deals with, and because corporate cultures vary from one company to another, there is no standard job description or authority level for corporate ombudspersons. Other organizations that employ ombud- spersons are hospitals, school districts, and universities. More than 100 colleges and univer- sities employ an ombudsperson, and more than 4,000 hospitals offer ombudsperson services for patients. Many small businesses also have an office that handles client or citizen complaints and functions as an ombudsperson’s office. Confidentiality is critical to the success of an ombudsperson, regardless of whether the om- budsperson serves a governmental entity or a non-governmental entity. If either party to a dispute believes that their concerns are not being heard in confidence, communication with the ombudsperson will decline, and the possi- bility of resolving a problem will also decline. However, ombudspersons are not required to maintain confidentiality regarding criminal behavior or conduct that threatens employee safety or company assets. The question of whether an ombudsperson’s communications with a party to a dispute are privileged (that is, whether they may be protected from disclosure in court) is determined by courts on a case-by-case basis. Several cases have recognized an ombudsperson’sprivilege,includ- ing Shabazz v. Scurr, 662 F. Supp. 90 (S.D. Iowa 1987), which involved communications to a prison ombudsperson, and Kientzy v. McDonnell Douglas Corp., 133 F.R.D. 570 (E.D. Mo. 1991), which involved a corporate ombudsperson. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OMBUDSPERSON 351 FURTHER READINGS Green, Mark T., and Laurel W. Eisner. 1998. “The Public Advocate for New York City: An Analysis of the Country’s Only Elected Ombudsman.” New York Law School Law Review 42 (summer-fall). Gregory, Roy, and Philip Giddings, eds. 2000. Righting Wrongs: The Ombudsman in Six Continents. Washing- ton, D.C.: IOS Press. Hidén, Mikael. 1973. The Ombudsman in Finland: The First Fifty Years. Trans. by Aaron Bell. Berkeley, Calif.: Institute of Governmental Studies. Rowat, Donald C., ed. 1965. The Ombudsman: Citizen’s Defender. London: George Allen and Unwin. Thompson, Brenda V. 1992. “Corporate Ombudsmen and Privileged Communications: Should Employee Com- munications to Corporate Ombudsmen Be Entitled to Privilege?” Univ. of Cincinnati Law Review 61 (fall). Wibbenmeyer, Kevin L. 1991. “Privileged Communication Extended to the Corporate Ombudsman-Employee Relationship via Federal Rule of Evidence 501.” Journal of Dispute Resolution (fall). Zagoria, Sam. 1988. The Ombudsman: How Good Govern- ments Handle Citizens’ Grievances. Cabin John, Md.: Seven Locks. CROSS REFE RENCES Administrative Law and Procedure; Alternative Dispute Resolution. OMNIBUS [ Latin, For all; containing two or more independent matters. ] A term frequently used in reference to a legislative bill composed of two or more general subjects that is designed to compel the executive to approve provisions that he or she would otherwise reject but that he or she signs into law to prevent the defeat of the entire bill. Laws governing the FEDERAL BUDGET are typically omnibus bills; for example, the Omni- bus Consoli dated Rescissions and Appropria- tions Act of 1996 (110 Stat. 1321). ON DEMAND Payable immediately on request. A note that is payable on demand is one that is to be paid the moment payment is requested by the individual who has legal possession thereof. Also termed “on call.” CROSS REFE RENCE Commercial Paper. ON OR ABOUT Near; approximately; without significant variance from an agreed date. The phrase on or about is used to avoid being bound to a more precise statement than is required by law. For example, when an individual seeks to purchase a home, the date when the transaction is closed and the legal title and possession are transferred from seller to buyer is ordinarily scheduled on or about a particular date. The phrase is used to indicate that the parties recognize the fact that, although the exact date might not be convenient for both of them, the transaction should be completed as close to that date as is practicable. ON POINT Directly applicable or dispositive of the matter under consider ation. Relevant to the matter at hand. A statute or case is “on point” if it has direct application to the facts of a case currently before a tribunal for determination. Also called “in point” or apposite. ONE PERSON, ONE VOTE The principle that all citizens, regardless of where they reside in a state, are entitled to equal legislative representation. This principle was enunciated by the Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). The Court ruled that a state’s apportionment plan for seats in both houses of a BICAMERAL state legislature must allocate seats on a population basis so that the voting power of each voter be as equal as possible to that of any other voter. More recently, in 2004, the Court affirmed a Georgia district court’s judgment that a state legislative reapportionment scheme violated the one-person, one-vote principal enshrined in the EQUAL PROTECTION Clause, citing the lower court’s finding of “a deliberate and systematic policy of favoring rural and inner-city interests at the expense of suburban areas north, east, and west of Atlanta” as well as “an intentional effort to allow INCUMBENT Democrats to main- tain or increase their delegation, primarily by systematically underpopulating the districts held by incumbent Democrats, by overpopulat- ing those of Republicans, and by deliberately pairing numerous Republican incumbents against one another.” Cox v. Larios 542 U.S. 947, 124 S.Ct. 2806 (2004). CROSS REFERENCE Baker v. Carr. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 352 OMNIBUS v O'NEILL, THOMAS PHILLIP, JR. In many ways, Democrat Tip O’Neill epito- mized the cigar-smoking, deal-making Ameri- can politician of a bygone era. A tough, gregarious leader, O’Neill was the formidable Speaker of the U.S. House of Representatives from 1977 to 1986. He was a die-h ard liberal whose commitment to America’s poor and working class remained undiminished through- out his 35 years in Washington, D.C. When O’Neill died of cardiac arrest at age 81 on January 5, 1994, President BILL CLINTON eulo- gized him as one of the nation’s most promi- nent and loyal champions of American workers and as a man who genuinely loved politics and people. Thomas Phillip “Tip” O’Neill Jr. was born December 9, 1912, in a working-class section of Cambridge, Massachusetts. His Irish Catholic father, Thomas O’Neill Sr., was a bricklayer and member of the Cambridge City Council. His mother, Rose Tolan O’Neill, died when O’Neill was just one year old. At an early age, O’Neill developed a passion for politics. When he was 15 years old, he spent hours working on Democrat Alfred E. Smith’s unsuccessful presidential campaign against HERBERT HOOVER. During his senior year at Boston College, O’Neill ran for public office for the first time. He entered the race for the Cambridge City Council and lost by a mere 150 votes. This early defeat taught the young candidate a valuable lesson about politics. Taking his local support for granted , O’Neill had failed to campaign in his own North Cambridge neigh- borhood. The voters from his district resented his neglect and did not back him as strongly as expected. O ’Neill never repeated this tactical error. After the city council loss, O’Neill’s father reportedly observed, “All politics is local.” For years, O’Neill quoted his father’s maxim and applied it to his work. In 1936, the year he graduated from college, O’Neill enjoyed his first victory at the polls. Thomas “Tip” O’Neill. AP IMAGES ▼▼ ▼▼ Thomas Phillip O’Neill Jr. 1912–1994 19001900 19501950 19751975 20002000 19251925 ❖ 1912 Born, Cambridge, Mass. 1936 Graduated from Boston College 1914–18 World War I 1939–45 World War II 1936–52 Served in Mass. House 1948–52 Served as speaker of Mass. House 1950–53 Korean War 1952–86 Served in U.S. House 1961–73 Vietnam War 1964 Voted “yes” on Gulf of Tonkin Resolution, which escalated U.S. involvement in Vietnam 1972 Elected majority leader of the House 1978 House ethics committee investigation of influence peddling scandal 1977–86 Served as Speaker of the House 1987 Man of the House memoirs published 1991 Awarded the Presidential Medal of Freedom by President George H.W. Bush 1994 Died, Boston, Mass. ◆◆◆◆◆◆❖ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION O’ NEILL, THOMAS PHILLIP, JR. 353 Using the political leverage of jobs and favors, he won a seat in the Massachusetts House of Representatives, from the North Cambridge district. O’Neill served in the state legislature for 16 years. In 1952 he launched into national politics and was elected to the U.S. House of Representatives, beginning a congressional ca- reer that included an appointment as majority whip in 1971 and election as majority leader in 1972. He reached the pinnacle of legislative power in 1976 when he rose to the House speakership. Outgoing and outspoken, O’Neill was known for his partisanship and for his skillful use of power. He embodied the liberal politics of the DEMOCRATIC PARTY during the late twenti- eth century. His support of federal social programs was unbending. As the political right grew in power, O’Neill fought conservative proposals such as a balanced budget because they threatened the education, housing, and WELFARE programs he cherished. As Speaker of the House, O’Neill led Congress during the administrations of Pre- sidents JIMMY CARTER, a Democrat, and RONALD REAGAN , a Republican. O’Neill did not respect Reagan’s intellectual capabilities or his conser- vative policies. After clashing repeatedly with Reagan during his two terms in the White House, O’Neill called his fellow Irishman the least knowledgeable president he had ever worked with in 35 years in the nation’s capit ol. The two were polar opposites on nearly every political issue, particularly the government’s role in American life. O’Neill’s leg islative legacy includes a code of ethics for House members and a drive to impeach President RICHARD M. NIXON.O’Neill also was among the first Democrats to speak out against the VIETNAM WAR during the 1960s. He once told an interviewer that the only vote in his congressional career that he regretted was his affirmative vote on the GULF OF TONKIN RESOLU- TION in 1964. (The resolution increased Ameri- can troop involvement in Southeast Asia.) Partisan to a fault, O’Neill had voted for the measure because he felt duty bound to support the Democratic president, LYNDON B. JOHNSON. While in office, O’ Neill shared a bachelor apartment in Washington, D.C. with Represen- tative Edward Bolan d of Massachusetts. His wife, Mildred (“Millie”), and their five children stayed in the home district. According to Capitol Hill legend, the refrigerator in the men’s apartment was stocked mostly with diet soft drinks, beer, and cigars. O’Neill did not survive more than a quarter century in Washington, D.C., without some tarnish to his reputation. In 1978 he was criticized for accepting favors from Tongsun Park, an influence-peddling rice merchant from South Korea. An ethics committee investigation concluded that O’Neill had shown bad judgment in allowing Park to throw parties for him. The committee cleared O’Neill of any illegalities. O’Neill retired from Congress in 1987. He subsequently spent most of his time in Washington, D.C., or at Cape Cod with his wife. O’Neill wrote a best-selling book about his experiences in Washington, entitled Man of the House, and starred in popular commercials for credit cards. He died January 5, 1994, in Boston, Massachusetts. O’Neill was a throwback to an earlier era of backroom politics on Capitol Hill. The colorful Massachusetts congressman was a master at pressuring representatives to pass or block key legislation. O’Neill enjoyed a national reputation but remained loyal to the constituents back home. He is remembered as an unapologetic liberal, proud of his role in assisting the poor, the unemployed, and the least privileged Americans. He was one of the last and most highly regarded of the old-style American politicians. FURTHER READINGS Farrell, John Aloysius. 2001. Tip O’Neill and the Democratic Century. Boston: Back Bay. O’Neill, Thomas P. 1987. Man of the House: The Life and Political Memoirs of Speaker Tip O’Neill with Novak. New York: Random House. O’Neill, Tip, and Gary Hymel. 1995. All Politics is Local and Other Rules of the Game. Cincinnati: Adams Media. ONUS PROBANDI [Latin, The burden of proof.] In the strict sense, a term used to indicate that if no evidence is set forth by the party who has the burden of proof–that is, the duty to establish the existence of facts in support of a disputed issue–then the issue must be found against that party. Often shortened to onus. OPEN To make accessible, visible, or available; to submit to review, examination, or inquiry through the elimination of restrictions or impediments. YOU CAN TEACH AN OLD DOG NEW TRICKS —IF THE OLD DOG WANTS TO LEARN . —THOMAS “TIP” O’N EILL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 354 ONUS PROBANDI OPEN ACCOUNT An unpaid or unsettled account, which can take the form of ongoing charges by a seller and payments by a buyer; an account with a balance that has not been ascertained, that is kept open in anticipation of future transactions. A type of credit extended by a seller to a buyer that permits the buyer to make purchases without a note or security and is based on an evaluation of the buyer’s credit. A contractual obligation that may be modified by subsequent agreement of the parties, either by expressed consent or by consent implied from the conduct of the parties, provided the agreement changing the contractual obligat ion is based upon independent consideration. OPEN BID An offer to perform a contract, generally of a construction nature, in which the bidder reserves the right to reduce his or her bid to compete with a lower bid. OPEN COURT Common law requires a trial in open court; “open court” means a court to which the public has a right to be admitted. This term may mean either a court that has been formally convened and declared open for the transaction of its proper judicial business or a court that is freely open to spectators. In the interest of promoting access to justice, many state constitutions contain “open courts” provisions, whereby would-be litigants can count on the state’s courts to be open and available to them in matters of legal need. Article 1, Section 14 of the Missouri Constitu- tion, for example, provides, that “every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.” OPEN-END CONTRACT An agreement that allows a buyer to make purchases over a period of time without a change in the price or terms by the seller, such as when exact quantities are not known in advance. A minimum and maximum number of units available for purchase must be stated in the contract. OPEN-END CREDIT A type of revolving account that permits an individual to pay, on a monthly basis, only a portion of the total amount due. A creditor may anticipate repeated purchases from this customer, and the creditor may also impose a periodic finance charge on the customer’s remaining balance. The available amount of credit (set in advance by the creditor) may be used by the customer to the extent that their balance is paid. This type of CONSUMER CREDIT is frequently used in conjunction with bank and department store credit cards. OPEN-END MORTGAGE A mortgage that allows the borrowing of addi- tional sums, often on the condition that a stated ratio of collateral value to the debt be maintained. A mortgage that provides for future advances on the mortgage and which so increases the amount of the mortgage. The most commonly known form of an open-end mortgage is an equity line on a residence. An open-end mortage takes precedence over subsequent grantees of the mortgaged property, even if fully paid off, as long as it is left open. OPEN LISTING A type of real estate listing contract whereby any agent who has a right to participate in the open listing is entitled to a commission if he or she produces the sale. OPEN SHOP A business in which uni on and nonunion workers are employed. A business in which union membership is not a condition of securing or maintaining employment. The laws under which such businesses operate are also known as “Right to Work” laws. The term open shop is frequently used to imply that the operator of this type of shop is, in effect, exercising DISCRIMINATION against trade unions and hampering their advancement through the employment of nonunion employees. CROSS REFERENCE Labor Union. OPENING STATEMENT The opening statement is an introductory state- ment made by the attorneys for each side at the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OPENING STATEMENT 355 start of a trial. The opening statement, although not mandatory, is seldom waived because it offers a valuable opportunity to provide an overview of the case to the jury and to explain the anticipated proof that will be presented during the course of the trial. The primary purpose of an opening state- ment is to apprise the trier of fact, whether jury or court, of the issues in question and to summarize the evidence that the party intends to offer during the trial. The SUPREME COURT has characterized an opening statement as “ordi- narily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence” (Best v. District of Columbia, 291 U.S. 411, 54 S. Ct. 487, 78 L. Ed. 882 [1934]). Most practitioners and legal scholars agree that an effective opening statement is vital to the trial process. The importance of an opening statement has been established by studies that showed that 80 percent of jurors’ ultimate conclusions with respect to the verdict corre- sponded with their tentative opinion after opening statements. This is because an effective opening statement establishes the facts of the case and sets forth a legal theory and explana- tion for why the attorney’s client should prevail. An opening statement may be either a matter of right or a privilege depending on applicable state and local laws. A party may waive its option of presenting an opening statement because opening statements are not mandatory. If a party chooses to give an opening statement, the party with the BURDEN OF PROOF will usually present its opening statement first. In a civil case, this means that the plaintiff’s attorney presents an opening statement first. In a criminal case, the burden of proof rests on the prosecution. Therefore, the prosecution will be first to present an opening statement. The defense may present its opening statement after the PLAINTIFF or prosecution has given its opening statement. The defense also has the option of reserving the opening statement until after the plaintiff has presented its case. Courts have discretion to direct a different order of presentation of opening statements if it finds good reasons for such change in order. Opening statements allow attorneys for each side to introduce themselves and to introduce the parties involved in the lawsuit. Additionally, attorneys will usually outline the important facts of the case during the opening statement to assist the jury in understanding the evidence that will be presented during the trial. An opening statement generally contains a brief explanation of the applicable law and a request for verdict. In a request for verdict, the attorney explains the verdict sought and explains the facts that will support the verdict. A well- planned opening statement serves as a road map of the trial. Opening statements are often informal and narrative in form. The attorney tells the client’s story and explains to the jury what the evidence will show. An opening statement, however, does not constitute evidence, and the jury cannot rely on it in reaching a verdict. The opening statement should be brief and general rather than long and detailed. An attorney is limited in what he or she can say during an opening statement. An attorney may not discuss inadmissible evidence. This is especially true where the evidence was ruled inadmissible in a pretrial motion hearing. The attorney must reasonably believe that the matters stated will be supported by the evidence. In addition, statements that are purely argumentative are not proper during opening statements. An attorney may not assert personal opinions, comment about the evidence, or comment about the credibility of a witness during an opening statement. Prosecutors are given latitude during open- ing statements to comment on the evidence they expect to be presented at trial and to employ oratorical flair in so doing (Common- wealth v. Kennedy, 598 Pa. 621, 959 A.2d 916 [2008]). However, a PROSECUTOR is prohibited from conveying his or her personal belief concerning critical issues at trial, including whether the prosecutor personally believes the DEFENDANT is guilty or innocent. Nor may a prosecutor comment on a defendant’s decision against answering questions during police interrogation before trial, as any such comment would undermine the right to remain silent guaranteed by the FIFTH AMENDMENT to the U.S. Constitution (State v. Mayo, 301 Wis.2d 642, 734 N.W.2d 115 [2007]). Remarks made during an opening statement that violate these rules GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 356 OPENING STATEMENT may result in a MI STRIAL if the trial court finds that the defendant was irreparably prejudiced by the remarks and that the jury cannot be reasonably expected to disregard them. In Evans v. Commonwealth, 2009 W L 1451935 (2009), the Supreme Court of Kentucky ruled that a defendant charged with MURDER was not entitled to a mistrial based on an opening statement declaring that the defendant had escaped from jail. The mention of the escape was brief, the trial court had instructed the jury not to consider the statement about the escape for any purpose, and there was no reason to believe that the jury was unable to follow the instruc- tion, the court found. Objections by opposing counsel during an opening statemen t are appropriate where the attorney presenting the opening statement engages in improper conduct. If the attorney fails to object to the inappropriate conduct, the objection is deemed waived, and the attorney cannot complain of such misconduct later in the trial. A court usually has the discretion to employ one of several remedies for misconduc t during an opening statement. The most common remedy for misconduct during an opening statement is jury admonition, where the judge simply instructs the jury to disregard the improper statement. Where misconduct is more serious, however, the following remedies may be available: (1) counsel may be cited for misconduct or CONTEMPT; (2) a mistrial may be declared; (3) a new trial may be ordered; (4) an appeal may be taken based on the misconduct. An attorney can make damaging statements during the opening statement that legally bind the client. Such statements, known as admis- sions, are not limited to the opening statement but can occur throughout the LITIGATION pro- cess. Attorneys must use caution during the opening statement to avoid making damaging admissions. The court may decide the case after the opening statement and before the jury ever has the opportunity to hear the evidence. A court can properly take the case from the jury where it is clear from the opening statement that the plaintiff cannot succeed on the merits or that the defendant has no valid defense. This resolution is usually accomplished by an attor- ney bringing a motion for a DIRECTED VERDICT. Taking the case from the jury is an extreme measure and exercised with great caution. Courts favor allowing a case to be tried on its merits and rarely grant a directed verdict after the opening statement. A strong opening statemen t will have a lasting impact on the trier of fact. It is often the jury’s first introduction to the parties, the issues, and the trial procedure. The opening statement begins the process of persuasion, the ultimate goal of which is a favorable verdict. FURTHER READINGS Association of Trial Lawyers of America. 2001. “Opening Statement: Laying a Foundation.” Trial 37 (February). Clarke, Mercer. 2002. “Opening Statement from the Defense Perspective.” Trial Advocate Quarterly 21 (spring). Holmes, Grace W., and Mary I. Hiniker, eds. 1987. Trial Techniques: Opening Statements and Closing Arguments. Ann Arbor, Mich.: Institute of Continuing Legal Education. OPERATION OF LAW The manner in which an individual acquires certain rights or liabilities through no act or cooperation of his or her own, but merely by the application of the established legal rules to the particular transaction. For example, when an individual dies intestate, the laws of DESCENT AND DISTRIBUTION provide for the inheritanc e of the estate by the heir. The property of the decedent is said to be transferred by operation of law. OPINION See COURT OPINION. OPINION EVIDENCE Evidence of what the witness thinks, believes, or infers in regard to facts in dispute (generally on matters regarding science, medicine, or another pertinent learned field of specialty), as distin- guished from personal knowledge of the facts themselves. Non-federal rules of evidence vary from state to state. In federal matters, Rule 701 of the FEDERAL RULES OF EVIDENCE restricts the admissibility of opinions of lay (i.e., non-expert) witnesses to those that are both rationally based on percep- tions and helpful to a clear understanding of the testimony with regard to a fact at issue. Under Federal Rule 702, when this type of evidence is expressed by a qualified expert witness, it may be used only if scientific, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OPINION EVIDENCE 357 . Federal Rule 70 2, when this type of evidence is expressed by a qualified expert witness, it may be used only if scientific, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OPINION EVIDENCE 3 57 . each side at the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OPENING STATEMENT 355 start of a trial. The opening statement, although not mandatory, is seldom waived because it offers a valuable. U.S. Constitution (State v. Mayo, 301 Wis.2d 642, 73 4 N.W.2d 115 [20 07] ). Remarks made during an opening statement that violate these rules GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 356 OPENING STATEMENT may