Being able to effectively communicate with your personal injury lawyer can make the personal injury process less stressful for both of you. Here is a list of commonly used personal injury terms. Knowing these terms will make it easier for you to understand the personal injury process and allow you to better communicate with your lawyer.
Adjuster – the person employed (internally or externally) by the insurance company to assess your claim, evaluate your statements and medical bills, and to negotiate a settlement with you.
Arbitration – Arbitration is a process in which the parties to a personal injury suit present their individual cases to a third person (the arbitrator), who will assist them in settling their dispute outside of court. The arbitrator, acting in the capacity of a judge, will hear both sides of the case and render a decision. If agreed upon in advance, this decision will then be binding on all parties involved.
Burden of Proof – The extent to which one must go to prove a case in a court of law. It pertains to the amount and quality of evidence that must be shown to win the case. Depending on the type of case being tried, the burden of proof can range in degree from:
- Prima facie – assumed to be true unless proven otherwise
- A preponderance of the evidence – more likely to be true than not. This is the burden of proof need to win a personal injury case.
- Clear and convincing evidence – substantially more likely to be true than not
- Beyond a reasonable doubt – the highest level of proof that may be required in a court of law. It is most notably employed in criminal trials, where the prosecution must prove, with no reasonable uncertainty, that defendant is guilty of the crime that he or she has been charged with.
Claimant – The person making a claim against an insurance policy.
Class Action -A single lawsuit brought on behalf of a number of individual plaintiffs because it would be impractical to bring each case separately. Typically, a small number of individuals will be named as persons bringing suit on behalf of all person’s who have cause to sue for the same reasons.
For instance, a class action lawsuit may be initiated by members of a community group, who are suing on behalf of everyone who has fallen ill as a result of runoff from a chemical plant in their community.
Comparative Negligence – This is a standard used in personal injury cases, under which the amount of damages you are awarded will be reduced by your own percentage of fault.
For example, if you are found to be 20 percent at fault and a second party 80 percent at fault, you will be entitled to be reimbursed by the second party for 80 percent (a 20 percent reduction) of the damages you have sustained. This is in contrast to you being entitled to no compensation at all under the theory contributory negligence.
Some states follow a form of comparative negligence called to as Modified Comparative Fault-50% Bar, meaning that, if you are held 50 percent responsible or more, you will be barred from receiving any compensation for your injuries. On the other hand, if you are 49 percent responsible or less, you will be entitled to receive damages in an amount reduced by your own percentage of fault.
For example, if you are found to be 45 percent responsible, you will be entitled to 55 percent of your damages as compensation, but if you are 51 responsible you will not be entitled to any compensation at all.
Complaint – This is the formal document presented to the court and the defendant, which explains why the plaintiff is bringing a lawsuit and what damages are being sought.
Defendant – In a personal injury case, this is the person being sued.
Defense Lawyer – This is a lawyer who represents the defendant in a civil case. Contrast this to a “criminal defense lawyer” who represents the defendant in a criminal case.
Deposition – This is testimony given, under oath and before a trial begins, by the defendant, plaintiff or witnesses in personal injury trial. Depositions are commonly recorded and used later to impeach a witness’s statement to the court, or to allow testimony to be heard from witnesses who cannot be there to testify in person.
Direct Examination – Questioning of a witness conducted by a lawyer from the same side that called the witness to the stand. As opposed to ‘cross examination’, which is questioning by a lawyer for the other side.
Discovery – This is the period of time (lasting 6 months to a year) before the trial, and during which the participants in personal injury case start to collect information and evidence in an endeavor to build their cases. This consists of assessing injuries, acquiring medical records, reading police reports, taking oral depositions, assembling witnesses and taking into consideration all other aspects of the case. This is also the stage at which the parties swap offers and demands, in an effort to settle the case without having to go to trial.
Delayed Discovery Rule – This is an exception that will allow a person to initiate a lawsuit even after the statute of limitations has expired, provided that they were legitimately unaware of the injuries or damages that would entitle them to file a personal injury suit.
Economic Damages – this refers to any quantifiable losses such as the cost of medical treatment, loss of earnings, damage to property, or anything for which a dollar amount or a receipt can be produced. Because economic damages are more easily quantified, they easier to be awarded.
Expert Witness – A witness who has been certified by the court as an expert in a particular discipline, and who may be called upon to give his or her expert opinion in regards to any technical issues within that discipline.
Gap Insurance – Extra Insurance that will pay the difference between the amount your auto insurance will pay you for a car that has been totaled and the amount you still owe on the car.
General Liability Coverage – This is auto insurance that covers you for any injuries and property damage that you cause while using your car.
Independent Medical Examination (IME) – An independent medical examination is a medical examination performed by a doctor who is employed by the defense in order to see if his or her medical opinion differs from that of the plaintiff’s doctor.
Intentional Tort – An Intentional tort is an act performed by someone with the intention of hurting you. Intentional torts often have criminal implications, such as in cases of libel, slander, fraud, or assault and battery. Intention is not as easy to prove as it may seem, and usually it turns on whether or not the defendant knew that his or her actions would cause you harm.
Judgment – The outcome of a trial in which the judge proclaims the defendant liable to compensate the plaintiff for damages that he or she has sustained.
For example, if a jury awards you $1000 from the defendant, the judge will render a judgment for against the defendant, for $1000 to be paid to you. This judgment then becomes a legally binding obligation for the defendant, and can be collected upon by wage garnishment or the liquidation of the defendant’s property.
Jurisdiction – The geographical or legal boundaries of a court’s (or system of courts’) authority. In other words, the geographical location in which a court is authorized to rule and the type of cases it is authorized to hear.
Jury Instructions – These are instructions given by the judge to the jury explaining how they are to process the evidence and information that they have acquired during the course of the trial.
See the next post in this series for even more useful personal injury terms.
Letter of Protection – This is a letter from the plaintiff’s personal injury lawyer to his or her doctor and stating that if the doctor agrees to provide ongoing treatment to the plaintiff, and/or hold off on collecting any medical bills, the lawyer will pay the doctor directly from the funds received from the lawsuit, before any funds are disbursed to the plaintiff.
Litigation – The procedures and legal actions involved in a lawsuit.
Loss of Earning Capacity – Loss of earning capacity refers to your diminished ability to perform your job as well as you did before you were injured. This is typically an issue if you have ongoing or permanent injuries that will affect your ability to work, if at all.
For example a permanent or ongoing injury that limits your ability to stand for more than a few minutes will negatively affect your ability to perform most tasks and thus reduce your ability to be gainfully employed.
Maximum Degree of Medical Improvement – The point when your doctors say that your injuries have improved as much as they are ever going to improve.
Mediation -This is a process in which two or more parties present their individual cases to a mediator who will assist them in settling a dispute outside of court. In contrast to an arbitration, a mediator makes no decisions in the matter. Instead, he or she only assists in the capacity of a referee.
Motion – A written or oral request that asks the judge to take action on a particular matter regarding the case. For instance, a defense lawyer may file a motion requesting that the judge dismiss the case against his client for lack of evidence.
Negligence – Behaving in a manner that is careless or that is without regard for your own well-being or the well-being of others. More technically, a breach of a the legal duty you have in regards to others.
No-fault – As it pertains to personal injury cases, no-fault means that it is not necessary to prove that someone has behaved negligently in order for you to be compensated for your injuries and losses. No-fault insurance will pay you regardless of who was at fault.
Non-Economic Damages – These are damages, such as pain and suffering and emotional trauma, for which a precise economic value is hard to determine. Because plaintiffs and insurance companies seldom concur on this point, the judge or jury in personal injury case must often make this determination, based on range variables
Parties – This refers to the plaintiff and/or defendant in a lawsuit.
Personal Injury – A personal injury is an injury caused to you by someone who was behaving negligently.
Plaintiff – The plaintiff is the person bringing a lawsuit against the defendant(s).
Preponderance of the Evidence – This refers to a burden of proof that requires the probability of the evidence being true and accurate to be higher than the probability of it being false or inaccurate. This is the level of proof typically required in civil actions and is higher in degree than prima facie evidence, but less than beyond a reasonable doubt (required in criminal cases).
Proximate Cause – In personal injury law, this refers to the primary cause of a person’s injuries.
Release – An agreement signed by a party to a civil action that absolves the other party from any future liability in regard to the matter, and that precludes the case from being reopened.
Statute – A law created by a legislative act.
Statute of Limitations – This refers to the length of time following an accident during which an injured person may file a personal injury lawsuit to seek compensation for his or her injuries. Generally, once this time has passed, the injured party will be forever barred from filing a lawsuit against the party responsible for the accident.
The statute of limitations starts the day you are injured and varies in length depending on the type of personal injury case you want to file. Consult with an experienced personal injury lawyer for more precise information regarding the statute of limitations for your particular personal injury case.
Statutory Law – A law created by a legislative body, as opposed to “common law” which is created by judicial action.
Structured Settlement -A settlement that will be paid to you in installments and over time. For example, a settlement that pays you $50,000 a year for the next 10 years.
Subrogation – The right enjoyed by your insurance company to be reimbursed by the tortfeasor for expenses (medical bills, car rental, etc.) that they have paid on your behalf. In many cases, the insurance company has the right to collect from the tortfeasor any money you receive in your settlement with them.
Summary Judgment – A decision made by a judge in a personal injury trial that ends the case because the plaintiff does not have enough evidence to possibly win the case.
Third Party Benefits – Insurance benefit paid to you by another person’s insurance policy.
Tort – A tort is an act that breaches the legal duty that a person has to you or another. For example, a person who drives recklessly and causes an accident, has breached his duty to drive in a responsible manner and to avoid causing injury to others, and thus has committed a tortious act.
Tortfeasor – A person who has behaved negligently in the eyes of the law and is responsible for your personal injury. For instance, a person who runs a stop sign and cause an accident with you, is guilty of committing a tortious act and is referred to as a tortfeasor.
Underinsured Motorist Coverage – Insurance that compensates you when you have been injured in an auto accident caused by someone who does not have enough insurance to cover the full amount of your claim.
For example, if you have been awarded $75, 000 in damages and the person who caused the accident is only insured up to $50,000, your underinsured motorist policy will pay you the $25,000 difference between what his policy pays and the actual amount of your.
Uninsured Motorist Coverage – Insurance that compensates you when you have been injured in an auto accident caused by someone who is not insured.
Verdict – The final judgment decided by a judge or jury in a court of law.
If you have been involved in an accident in which suffered damages to your person or property, consult with a personal injury lawyer as soon as possible. An experienced personal injury lawyer will assist you in seeking the compensation you are entitled to receive.