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.

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:

1. If the deceased did not die immediately, then compensation for certain damages sustained by the deceased may be pursued by their estate.
   
2. 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.