Glossary Of Terms

Glossary of Legal Terms

The following is a list of words and phrases that are commonly used in personal injury cases. It does not include medical terms, as those are more fully explained on medical websites such as WebMD . The purpose of providing you with this list is to help you understand the lingo used by lawyers and insurance companies. It is not meant to be a comprehensive legal dictionary.

Accident- In personal injury, accident refers to the event that causes the injury – the basis of the case. The term accident is used to describe any type of event that causes injury, whether it be a car accident, a fall, an explosion, etc.

Adjuster- This usually refers to the insurance company’s claim adjuster. The adjuster’s job is to gather the information and evaluate the claim that the injured party is making. The adjuster then decides whether or not to make a settlement offer and if so, for how much money. It is important to remember that it is the claim adjuster’s job to pay out as little of the insurance company’s money as possible. They are professionals and know far more about the law than the injured person. This is why it is crucial for injured people to have a lawyer on their side. The claim adjuster, no matter how nice he/she seems, is in the insurance company’s corner. Who will be in yours?

ADR (Alternative Dispute Resolution)- Methods to resolve a dispute without “going to court.” These methods commonly include arbitration, mediation, and settlement conferences. The goal of ADR is to resolve disputes in ways that are quicker and less expensive than the court system.

Appeal- A request for a higher court to reverse decisions made by a lower court. Because of the influence of television, people assume that after a trial, everybody gets an appeal. It is true that the losing party may file an appeal, but in fact, they are rarely granted. An appeal is not an automatic second chance to try your case. When your case comes to trial, you and your attorney must be fully prepared to put your best case forward  in front of the jury. Relying on an appeal is almost always a long shot.

Arbitration- An arbitration is a process to resolve a dispute without using the court/jury system. It can be a quicker and more efficient way to resolve a dispute but, this is not the case  in every situation. In a basic arbitration, both sides will present their case, with testimony and evidence, to an arbitrator. The arbitrator is usually a retired judge or lawyer. The arbitration usually takes place in an office setting, as opposed to a courtroom. An arbitration is more casual (but no less important) than a trial. After the evidence is presented, the arbitrator makes a decision that both sides agree to accept. In personal injury, arbitrations are typically done by agreement of both sides of the dispute. In cases of uninsured or under-insured motorist claims, arbitration is mandatory.

Bad Faith- This term applies to actions made by a person’s own insurance company. For instance, let’s say you are rear ended by a car without insurance but you have uninsured motorist insurance. If your insurance company wrongfully denies your claim or does not treat you fairly, it is said they are dealing “in bad faith.”  In certain circumstances, it is possible to sue your own insurance company for bad faith (although the technical term is “violation of the covenant of good faith and fair dealing”). The term bad faith is also commonly used in negotiating, when an insurance company is making an unreasonably low offer.  In that case, the term bad faith is commonly used.

Bench Trial- A court proceeding without a jury. In a bench trial, the judge makes the final decisions. In most personal injury cases, the trial will be in front of a jury.

Burden of Proof- The amount of proof required to prove a fact in court. Most people have heard of “beyond a reasonable doubt,” which is the burden of proof required in criminal court to find the defendant guilty. In a personal injury case, the burden of proof is called a “preponderance of the evidence,” which means more likely than not. For example, if you are claiming the defendant ran a red light and hit your car, you win if you can prove it is more likely than not that the defendant ran the red light. You do not have to prove he definitely ran the red light. Preponderance of the evidence is a lower burden than “beyond a reasonable doubt.”

Civil Action- A case that is properly brought in civil court, as opposed to criminal court. Personal injury lawsuits are civil actions.

Colossus- A computer program used by some insurance companies to value a claim. Basically, information about your case is put into the program, such as the amount of the medical bills, the diagnostic codes, and whether or not you had previous injuries. The computer does some calculations and spits out a number. This is what the insurance company offers to settle your case. Unfortunately, since the program does not take into account the fact you are an individual human being with unique injuries, the offer to settle is often insultingly low.

Comparative Negligence- Often two people will be responsible for an injury. For instance, if you trip over a big crack in the sidewalk while talking on your cell phone, a jury may find the city negligent for allowing such a dangerous condition to exist on the sidewalk, but they may also find you comparatively negligent for not looking out for where you were walking. Even in this simple example, the city is responsible to pay for the injuries caused by their share of negligence.

Complaint- The complaint is the legal paperwork that begins the lawsuit. Once the complaint is filed with the court, the lawsuit has begun.

Contingency Fee Agreement- When you hire a personal injury attorney, the contract you sign is called a retainer. Normally personal injury attorneys only get paid if they collect money on behalf of their clients. Attorneys take a percentage of the money they collect as their fee. This is called the contingency fee, and it should be clearly spelled out in the retainer. Typically, but not always, the fee ranges from 33% to 45%. The fee is negotiable between you and your attorney.

Cost- A cost is money spent by your attorney on your behalf. In most personal injury cases, the attorney will agree to pay the costs on behalf of the client and collect them when the case is over, hopefully out of the money collected from the defendant. Even in a small personal injury case, costs can add up to many thousands of dollars.

Damages- The amount of money the injured person is seeking from the other side. Damages are broken up into two categories, economic and non-economic. Economic damages are those that we can put an actual price tag on like medical bills and loss of earnings. Non-economic damages are those without a specific price tag and include money for pain, suffering, emotional distress, and every other harm caused by the defendant.

Dangerous Condition- This term is used in the context of slip/trip and fall cases. If you trip or slip on someone’s property, the question is whether or not there was a “dangerous condition.” The mere fact that you fell on someone else’s  property does not automatically mean it is their fault. Determining if there was a dangerous condition or not requires the analysis of many factors. If you trip or fall, make sure to give your attorney all of the facts so that a proper analysis can be made.

Defendant- The party that is accused of causing the personal injury. Before the lawsuit is filed, the defendant is also referred to as the “insured.” After the lawsuit begins, the party who is being sued is called the defendant.

Defense Medical Exam (DME)- Once a lawsuit is filed, the defense has a right to have the injured party examined by one or more doctors of the defense’s choice. For instance, if you are claiming you fell and injured your back, the defense may send you to an orthopedic surgeon for an evaluation. Although it would be nice to believe the doctor is giving a neutral, unbiased opinion, the fact is that the doctor chosen by the defense is actually a member of the defense team. When being examined at a DME, keep in mind who is paying  the doctor (they are). Don’t be surprised when he finds you were never even injured in the first place. Your attorney should have a representative from the law office accompany you to your DME examination.

Deposition- A statement taken under oath during the course of a lawsuit. Both sides of the lawsuit take depositions of the parties and witnesses. In a personal injury lawsuit, the defense attorney will take the deposition of the injured party. This deposition usually takes place in the defense attorney’s office. You, the injured party, will be there with your attorney, the defense attorney, and a court reporter. The defense attorney will ask you many questions and you will be required to give your best, honest answers. The deposition is a vitally important part of your case, and you must be well prepared by your attorney before it begins.

Distribution- After a case resolves, a check will normally be issued from the defendant’s insurance company to your attorney. At that point, the attorney will take his fee, reimburse any costs, pay all of the medical providers and lien holders, and give the remaining money to the client. This process is called the “distribution.” An accounting of where all the money is going is called a “distribution sheet.” The distribution sheet should be given to the client along with the check.

Dog Bite- If a person gets bitten by a dog, the case is simply referred to as a “dog bite case.” The most important factor in proceeding with a dog bite case is determining whether or not the dog owner has homeowner or renters insurance. Unfortunately, many dog owners do not have the proper insurance, so although a person is bitten by a dog, the dog owner will not have enough money to pay for the injuries caused by the dog.

Expert Witness- In a modern jury trial, winning or losing the case often depends on the expert witness. Expert witnesses are highly paid professionals who help explain your case to a jury. These experts include doctors, accident reconstructionists, bio-mechanical engineers, accountants, life care planners, or any other professional hired by your attorney to help your case. The fees charged by expert witnesses can quickly add up to tens of thousands of dollars.

Homeowners Insurance- This type of insurance protects a homeowner from acts of negligence made by residents of the household. In personal injury, this is important in situations where a person gets injured at someone’s home. For instance, if you go to someone’s home and trip over torn carpet and get injured, their homeowners insurance will cover your injury claim. The same is true in the event of a dog bite. If the owner of the dog has homeowners insurance, that insurance company will be responsible to pay for the damage caused by the dog bite.

Interrogatory- Written question asked during the course of a lawsuit. Once a lawsuit begins, the defense attorney will send interrogatories to your attorney for you to answer. These interrogatories  are written questions that you must do your best to answer truthfully. After answering these interrogatories, you will then sign a verification form promising the answers are truthful. Your attorney will finalize the answers and put them in the proper legal form.

Jury- In a personal injury lawsuit, if the case does not settle, eventually the facts will be decided by a jury. In State court, the jury will consist of 12 members of the community, who are chosen during a process called “jury selection.” This happens at the beginning of trial. During trial, the jury hears all of the evidence and is instructed on the law. Then, the jury will be asked to answer certain questions on a form called a “verdict.” It takes at least 9 jurors to agree on the answer to each question.

Liability- The question in a personal injury case is usually whether or not the defendant has any liability, or is liable, for the injury. For example, if you go to a store and trip and fall over your own shoe laces, the store in not liable for your injuries. Just because you fell on their property does not make it their fault. On the other hand, if you slip in a puddle of water caused by a dripping freezer, the store probably is liable for your injuries because the floor was slippery. In this context, the term “liable” can be substituted for the term “responsible.”

Lien- In personal injury cases, a lien usually refers to an agreement of a medical provider to accept payment for medical bills after the case is resolved. There are many other types of liens, but this is the standard meaning in personal injury.  For example, if after an accident you need medical treatment but don’t have health insurance, the doctor may treat you “on a lien.” This means she will bill you for the services, but you do not have to pay until your case is over. If you do have health insurance, and they pay the medical provider, then your health insurance company may have a lien on your case for the amount they paid. Liens can be very tricky. Your attorney is responsible for resolving all of the liens before the case is concluded.

Med-Pay- A part of an insurance policy that pays for medical bills regardless of who is at fault in the accident. For instance, even if you cause an accident, your med-pay will pay your medical bills up to a certain amount of money, depending on how much coverage you buy. We suggest that everybody purchase this type of insurance, as it is very inexpensive and can be very helpful in paying medical bills while the lawyers are trying to figure out who caused the accident.

Mediation- A form of Alternative Dispute Resolution (ADR). A mediation will most likely be held in the office of one of the attorneys or the mediator. The mediator is a neutral person, usually a lawyer not connected with the case or a retired judge. The mediator’s job is to get the case settled for an amount of money both sides agree on. There are many techniques used by mediators so no two mediations are exactly alike. However, the mediator does not make decisions in the case. He or she does not decide who is right. The mediation process allows the parties to go back and forth with facts and numbers, but at the end of the day, if you do not think the other side is offering enough money, you can just walk away. Mediation is most effective when both sides agree to mediate the case. However, many courts order cases to mediation, even if one or both sides are not interested.

Medical Malpractice- Lawsuits against medical providers for professional negligence are called medical malpractice (“med-mal”) lawsuits. Doctors and other medical providers have a great deal of protection in California, so despite what you’ve heard on the news, lawsuits against them are quite difficult. In fact, only a handful of specialized attorneys frequently practice in this area.

Mitigation- In personal injury, mitigation refers to the injured person’s duty to not make the damages worse. For example, if you fell and hurt your knee and your doctor tells you to stay off it for 48 hours, but instead you walk around Disneyland, which causes your knee to be even worse the next day, you did not mitigate your damages. The defendant may not be responsible for your knee getting worse because you allowed it to happen. The best way to avoid this completely is to follow medical advice after an injury. You should get back to work as soon as you reasonably can but not before you feel ready and your doctor says you can.

Negligence- Negligence is doing something that a reasonable person would not do or not doing something that a reasonable person would do. In personal injury, the basis of the case is negligence. When you get rear-ended on the freeway, the other driver was negligent for not stopping in time. If you are at a store and slip on a puddle of water that had been there for a long time, the store is negligent because they should have cleaned it up. On the other hand, if you dart out in front of a moving car that had no chance to avoid hitting you, that driver is probably not negligent, even though you were injured. Whenever you are injured, you should ask an attorney to determine if anyone was negligent. The negligent party may not always be obvious to the untrained person.

Plaintiff- In a personal injury case, the injured party who files the lawsuit.

Policy Limit- This refers to the amount of insurance the defendant has to cover the claim of injury. In auto insurance, the minimal amount of insurance for injury is called 15/30. This means the insurance company will pay a maximum of $15,000 to an injured person or a maximum of $30,000 to all injured people in the accident. In a 15/30 policy, no matter what the injuries are, and no matter how high your medical bills are, the total paid will only be $15,000 to any one person. Other common policy limits include 25/50, 30/60, 50/100, and 100/300. If you are badly injured, you want the defendant to have as high a policy as possible. Since so many people are badly injured in car accidents every year, we strongly recommend that everyone have their own uninsured/under-insured policy, which pays you in the event you get hurt and the other driver either has no insurance or insufficient insurance. The amount of the defendant’s insurance policy is a critical piece of information in every personal injury case. It is uncommon to collect more money than the available policy limit.

Preponderance of the evidence- See Burden of Proof.

Property Damage- In personal injury, this usually refers to the damage done to your car and personal property in an accident, as opposed to bodily injury which is damage done to you. Property damage claims should be resolved by your attorney without any charge to you.

Proposition 213 (Also Prop 213 or just 213)- This law states that the operator of a motor vehicle must have liability insurance. If he does not, for any reason, there are penalties if that person is involved in an accident. If you drive without insurance and are involved in an accident that is not your fault (unless the defendant is convicted of drunk driving), you can only recover money for medical bills and loss of earnings. For instance, if you are driving without insurance and get severely rear-ended, causing you to lose an eye in the accident, but your medical bills are only a few thousand dollars, you will not be allowed to collect any money for your missing eye, just the medical bills. This is a severe penalty and the reason why every driver must have liability insurance. Not just every driver, every vehicle owner as well. Proposition 213 is far more complex than what is explained here, but he bottom line is that if you drive a car, you better have insurance.

Products Liability- This refers to cases and injuries caused by the manufacture or sale of goods. For example, if you are climbing a new ladder and it buckles underneath you because it was improperly made, the case would be called a products liability case against the seller and the maker of the ladder. The analysis of a product liability case is often complex and should be left to your lawyer.

Settlement- When two sides come to an agreement to resolve a case. In personal injury, this will usually involve money from the insurance company in exchange for a release signed by the injured party. The attorney will then begin the process of distribution (see Distribution).

Statute of Limitations- In most personal injury cases, the injured party must file a lawsuit within 2 years of the accident. If the claim is against a governmental entity, the time is shortened to 180 days. However, statute of limitations is a very complex area of law and can only be fully evaluated by an attorney. Even in personal injury, there are situations where the statute of limitations may be longer or shorter.

Tort- A non contract wrong committed against a person or property. Personal injury cases are tort cases.

Uninsured/under-insured motorist insurance (UM/UIM)- UM insurance provides money to you if you are involved in an auto accident and the other party either has no insurance or not enough insurance to pay for your damages. All drivers should have at least $100,000 of UM insurance. It is a very inexpensive addition to your insurance policy. This insurance protects you against irresponsible drivers who do not carry enough insurance. When there is claim against your UM carrier that can not be resolved by negotiation, the UM claim will be resolved with binding arbitration.

Wrongful Death- The name of the lawsuit brought by relatives of someone who dies as a result of another party’s negligence. The lawsuit is usually brought by the spouse, children, or parents of the victim.