 
Legal Terms To
help you better understand the terms and phrases associated with personal injury
cases, please feel free to review the online glossary we have assembled below.
- Attorney-Client
Privilege
- Generally,
all communications between an attorney and their client are privileged--that is,
they are entirely confidential, being given special protection under the law,
and no one else (particularly their opponents in a lawsuit) are entitled to gain
access to them. This is referred to as the attorney-client privilege. Also, most
documents produced by an attorney and his staff in regard to the client's case
are also privileged. This is referred to as the attorney work-product privilege.
Oftentimes, a defense
attorney may, through the discovery process, seek to acquire access to these documents
developed by the personal injury attorney and his client. There are only very
narrow and specific instances where they are entitled to do so. However, it is
the job of the personal injury attorney to know these exceptions and to zealously
guard the confidentiality of these documents and the privacy of his clients.
- Case Evaluation
- One of the most difficult
challenges for a private individual handling his or her own personal injury claim
is to know what their claim is worth. Most people simply don't feel comfortable
in the bargaining process to settle a claim. And even those people who are comfortable
with it are at a great disadvantage if they have no real idea where to start bargaining
from. Likewise, an attorney who is inexperienced or unfamiliar with personal injury
law may not yet have developed the necessary feel for the value of a client's
case, and may not yet be familiar with the many resources available to help evaluate
a claim.
Personal
injury attorneys who are well-experienced in resolving personal injury claims
will have developed the knowledge of how particular factors will influence the
value of a claim--things such as comparative negligence issues (in which more
than one person was at fault for an accident), punitive damages issues (in which
the actions of a defendant, such as a drunk driver, were particularly reprehensible),
and pre-existing medical conditions of the claimant which may either increase
or decrease the value of their claim. Experienced
personal injury attorneys will also have access to resources (some at considerable
expense), both in book form and on-line, which give them up-to-date details about
the claim value of particular types of injuries. They should have an extensive,
up-to-date library with medical and legal information for evaluating claims. -
Claimant
-
The claimant in a personal injury case is the person (or persons) injured as a
result of the negligence of one or more other parties. If a formal lawsuit is
filed, the claimant becomes the plaintiff in the lawsuit and the negligent party
becomes the defendant.
An
insurance claim is the formal beginning of a personal injury case, and is made
when the personal injury attorney informs an insurance company (or a self-insured
business or government entity) that the injured person will be seeking compensation
for damages that were sustained. It
is very important when making an insurance claim to know what information must
be given to an insurance company, what information need not be given, and what
information should never be given. Providing more information than required by
law may seriously damage the value of a personal injury claim.
- Contingent Fee Agreement
-
When an injured person hires a personal injury attorney to represent them in a
personal injury claim or lawsuit, they both sign a contingent fee agreement. This
is a document which is essentially the employment contract with the attorney that
lays out in detail all of the terms of that employment. "Contingent fee"
refers to the fact that the personal injury attorney is being hired on the basis
that they will only receive a fee from the client contingent upon the client receiving
money from the person(s) causing their injuries. This means that the personal
injury attorney only receives payment from the client when the attorney has secured
a settlement, binding arbitration award, or jury verdict for the client. This
allows even clients of very modest means to hire the very best attorneys for their
cases. A good personal injury attorney will be experienced in all phases of case
work, and will be able to properly guide the client's case while it is an insurance
claim, and, if necessary, on through the stages of lawsuit, discovery, arbitration,
mediation, and/or trial.
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Damages
- Damages are awarded in various categories. Compensatory damages
compensate the plaintiff for actual dollar-value losses (e.g., medical expenses,
both past and future), lost income, loss of future earning capacity, etc. General
damages, which are also a form of compensatory damages, cover more intangible
losses, such as pain, suffering, humiliation, the loss of enjoyment of life as
well as grief suffered from the loss of a loved one. Punitive damages (which are
rare) serve to punish a defendant for extreme behavior and which serve to deter
others from similar conduct.
-
Defective Product
- A "defective product" is one that causes
injury to a person because of some defect in the product (e.g., manufacturing
defect, design defect, or inadequate warning). Product liability litigation and
claims are usually more complicated than ordinary cases because of the necessity
of securing experts in the field from which the product was manufactured. These
experts can show alternative designs, and can demonstrate that the manufacturer
could have prevented the injury by making modifications, installing safety guards,
or having designed a completely different product.
-
Deposition
- A deposition is a form of discovery in which a plaintiff,
a defendant, a witness, or an expert witness with relevant information about a
lawsuit is formally questioned under oath by the attorneys representing all parties
in the lawsuit. The deposition is similar to the giving of oral testimony in a
trial, but takes place under less formal circumstances and in advance of a trial.
The deposition is typically before a court reporter and the witness is subjected
to examination by attorneys for all parties.
-
Discovery
- The use of depositions, interrogatories, requests for production
of documents, requests for admissions, and demands for independent medical examinations,
and other procedures to discover relevant evidence possessed by the other parties
or by independent witnesses.
- Expert
Witnesses
- Expert
witnesses are individuals trained in some particular specialty, such as medicine,
engineering, accident reconstruction, or economics. By virtue of this training
they are qualified to render "expert opinions" or "expert testimony"
regarding the facts of a case. Some expert witnesses may have had direct involvement
in the personal injury case prior to the beginning of a lawsuit, such as a treating
physician (who directly provided medical care to an injured person) or a police
officer at a traffic accident scene who has been trained in accident reconstruction
(although very few officers actually have more than minimal training in this specialty).
Most expert witnesses, however, are hired by one side or the other in a personal
injury case for the purpose of analyzing complex information that falls within
their area of expertise.
Expert
witnesses may be vital to a personal injury case's successful conclusion, especially
in cases where the facts are highly disputed or particularly complicated. As personal
injury attorneys gain experience in their specialty, they will become more and
more familiar with who the most qualified and respected expert witnesses are.
The experienced attorney is therefore in a much better position to determine whether
hiring experts is necessary in a given case, and if so, just which experts should
be retained. -
Insurance Defense Attorney
- When the negligent parties in a personal
injury claim become the defendants in a lawsuit and the formal complaint is served
upon them, their insurance company will secure the services of a defense attorney
to represent their interests. The defense attorney is legally representing the
defendant, but is actually being paid by the insurance company. This can occasionally
produce conflicts of interest which an experienced personal injury attorney can
make use of to his client's benefit.
-
Investigator
- Often, a personal injury case will require more extensive
investigation. An experienced personal injury law firm can properly provide a
private investigator for collection of additional evidence, such as witness statements,
photographs of an accident site, or background research and/or location of potential
defendant(s).
-
Lawsuit
- A lawsuit is a formal legal action made by the injured party
(the plaintiff) against another accused negligent person or corporation (the defendant)
in which recovery is sought for damages suffered by the plaintiff. The lawsuit
is formally initiated with the filing of a complaint in the proper court of law.
- Liability
- Just stating that someone
caused an injury isn't enough. It has to be proven, and it has to meet the legal
requirements to establish liability. This legal conclusion, that someone is formally
responsible for injuries suffered by another, is far more complicated than just
reading a traffic collision report to see whom a police officer has concluded
was the cause of an accident.
It
may be necessary to establish liability for many different people, corporations,
or government entities involved directly or indirectly in an incident. For example,
it might involve proof that one negligent person was driving a vehicle and was
responsible for causing injuries, proof that a second person owned the vehicle
and gave the first person permission to use it, proof that a third person or corporation
employed the driver and that the driver was in the "course and scope"
of his employment, and so on. Establishing
liability for injuries is every bit as important as establishing the value of
the damages that the injured person has suffered. An experienced personal injury
attorney will carefully review all the facts of an incident and apply the law
to those facts in order to prove the liability of all responsible parties.
- Mediation
- Mediation is a form of
alternative dispute resolution, similar in many ways to arbitration in that the
parties to a personal injury case come together before a neutral referee (the
mediator) in an effort to resolve their dispute. Unlike arbitrations, however,
mediations are entirely at the discretion of the parties, so the event can be
as formal or informal as desired. And unlike arbitrators, mediators are not expected
to render a decision in favor of either of the parties. Rather, the mediator's
place is to aid the opponents in negotiating with one another and coming to a
mutually agreeable resolution for their dispute. A mediation can take place at
any time in a personal injury case.
Many
courts are now strongly recommending the use of mediations before a lawsuit may
be brought to trial. It is critical to be properly prepared for a mediation because
it is a prime opportunity for settlement of a lawsuit without the expense of a
court trial. It is also extremely important to know what information should or
should not be provided to an opponent at the time of a mediation. An experienced
personal injury attorney will have been through many mediations already, and will
therefore be thoroughly familiar both with the process and with the attorneys
and retired judges who typically served as mediators. -
Medical Malpractice
- When a person is injured due to the negligence of
a health care provider (e.g., doctor or hospital), the injured person may pursue
a medical malpractice claim. This type of claim has many additional rules and
requirements that are not common to other types of serious injury claims. Many
attorneys are not experienced in this field of litigation. An experienced personal
injury attorney will have handled (and won) many of these cases.
- Medical Records
- In a personal
injury lawsuit or insurance claim, the injured person's medical records are typically
the single most important piece of documentary evidence. These records, showing
the treating physicians' diagnoses, prognoses, and treatments will establish what
specific injuries have been sustained, will show what the long-term expectations
are either for recovery from the injuries or for permanent disability, and will
specify the types and costs of medical treatment that has been and will be received.
It is critically
important to know which of an injured person's medical records an opposing insurance
company or party to a lawsuit is entitled to receive and which other records are
irrelevant and protected by the patient-physician privilege. An
insurance adjustor will usually seek to have the injured person sign a "medical
records release" as soon as possible so that the insurance company can go
on a "fishing expedition" through the injured person's records to see
what they might turn up in the way of potentially embarrassing (and often irrelevant)
information. For this reason especially, it is important to consult with a personal
injury attorney as soon as possible to determine what type of record release is
or is not proper. Similarly, once a case is in litigation, a defense attorney
will attempt to subpoena the medical records of every one of the plaintiff's physicians.
Again, it is important that the personal injury attorney carefully guard his client's
privacy by limiting these subpoenas to only those records that are relevant.
- Negligence
-
Negligence typically means that an individual's conduct falls below a legally
recognized standard of taking reasonable care under the circumstances. People
or corporations do not necessarily intend to cause injury to another person. Instead,
liability develops from careless or thoughtless conduct, or a failure to act when
a reasonable person under the circumstances would have so acted. Negligence is
the basis for liability in the majority of serious injury lawsuits, including
automobile accidents and medical malpractice.
-
Personal Injury Attorney
- A professional personal injury attorney (sometimes
referred to as a PI attorney) is dedicated to representing clients who have suffered
physical and emotional injuries resulting from the negligence (or intentional
actions) of other people and/or corporations. A personal injury attorney is hired
by an injured person when both the injured person and the attorney have signed
a Contingent Fee Agreement, which states the conditions of the attorney's employment
by and representation of the client. In most cases, the personal injury attorney
only receives payment from the client when the attorney has secured a settlement,
binding arbitration award, or jury verdict for the client. This allows even clients
of very modest means to hire the very best attorneys for their cases. A good personal
injury attorney will be experienced in all phases of case work, and will be able
to properly guide the client's case while it is an insurance claim, and, if necessary,
on through the stages of lawsuit, discovery, arbitration, mediation, and/or trial.
- Physician-Patient Privilege
-
The records that a physician has regarding his or her patients, as well as any
communications between the doctor and patient have a special degree of confidentiality
under the law referred to as the "patient-physician privilege." When
an injured person files a personal injury lawsuit with a court to recover for
their damages, the injured person waives this confidentiality--but only to a certain
specific degree. Only medical records relating legally to the injuries they have
suffered can be released. An experienced personal injury attorney will carefully
guard his client's medical confidentiality for all medical matters not relating
to the lawsuit. This is very important, because insurance adjustors and defense
attorneys will often seek access to all of an injured person's medical histories--an
inattentive person handling his or her own claim may inadvertently give access
to more of their medical records than is necessary.
- Plaintiffs
and Defendants
- When a personal injury lawsuit is filed with a court,
it will name the people, corporations, business organizations, and government
entities involved in the case. The individual who has suffered injury and is seeking
recovery for damages by filing the lawsuit is referred to as the "plaintiff."
If recovery is sought, prior to the lawsuit, by way of an insurance claim, the
individual is referred to as a "claimant." The person (or persons) who
are alleged to have caused the injury are named in the lawsuit as "defendants."
For example, in an automobile accident personal injury case, the defendants may
include parties such as the negligent operator of a motor vehicle, the owner of
the vehicle, the driver's employer (if the driver was on-the-job), a public entity
that may have had responsibility for an improperly designed roadway or malfunctioning
traffic signal, and so on. It is very important not to overlook any possible defendants,
because if they are not brought into a lawsuit in a timely manner, the injured
person's right to recover from them may be forever lost.
-
- Settlement
- A "settlement"
refers to the resolution of a claim or lawsuit at any stage, prior to a jury verdict
or a binding arbitration award. This simply means that the involved parties have
decided to "settle" their dispute at some agreed upon value. This is
done entirely at the discretion of the people involved. However, once a settlement
agreement is entered into, it becomes binding upon the parties.
-
An experienced personal
injury attorney will always have two goals for settling a client's case: to do
so efficiently (at the least cost to the client) and at a full and fair value.
- Settlement
Demand
- The
"settlement demand" is often the most important document prepared in
a personal injury claim. If the case settles before a lawsuit is filed, it is
usually as the result of a settlement demand that the attorney has prepared and
delivered to the opposing insurance adjustor. And even if the case does not resolve
after a settlement demand is prepared, the demand can often set the tone for continuing
attempts at settlement as case goes forward into litigation.
When
a personal injury attorney prepares a settlement demand, they must carefully analyze
all factors that relate to liability (how and why the other parties are responsible
for the injuries) and damages, including the actual injuries that were suffered,
past and future medical expenses, past and future wage loss, and general damages
(often referred to as "pain and suffering"). There
are a great many factors that can affect the value of a personal injury claim,
and all of these must be carefully weighed in order to present a settlement demand
that is high enough to achieve a full-value settlement for the client, but not
so ridiculously high that the insurance adjustor dismisses it out of hand. Many
people who attempt to resolve their own claims without knowing what the claim
is worth will either present a demand that is either too low to get them what
they deserve or too high to be taken seriously. -
Statute of Limitations
- A statute of limitations is an established legal
deadline that requires a person who has suffered a serious injury to file a lawsuit
within a certain time after the date of injury or lose forever his or her rights
to sue for compensation.
- Trial
- Many cases do not settle
out of court. For whatever reason, the opposing sides just don't see eye-to-eye
on important issues of liability and/or damages. Typically, the case has already
gone through the filing of a lawsuit, discovery, settlement demand stage, arbitration
and/or mediation, and is now ready for the formal conclusion of the court process--a
trial and a jury verdict.
There
is no stage in the entire process of resolving a personal injury claim in which
an individual claimant or an inexperienced attorney will be more vulnerable at--than
at trial. The personal injury attorney must be completely familiar with both the
statewide rules and the rules of the local court that may apply to trial scheduling,
jury selection, introduction of evidence, questioning of witnesses, requests for
jury instructions, and so on. - Wrongful
Death
- When
a person dies due to the negligence of someone else, a "wrongful death claim"
results. The rules for wrongful death insurance claims and wrongful death lawsuits
are generally the same as for claims and lawsuits resulting from non-fatal injuries.
However there are at least two important factors which are different:
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- If
the deceased did not die immediately, then compensation for certain damages sustained
by the deceased may be pursued by their estate.
- It
must be determined which of the deceased person's surviving relatives are entitled
to receive compensation by way of a wrongful death claim or lawsuit.
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