GLOSSARY OF TERMS

AFFIDAVIT

A written declaration or statement of facts, made voluntarily, in which the signer swears under oath before a notary public or someone authorized to take oaths (like a county clerk) that the statements in the document are true. In many states, a declaration under penalty of perjury, which does not require taking an oath, is the equivalent of an affidavit.

ATTORNEY'S FEE

Payments made to a lawyer for legal services provided, which can take several different forms: (i) hourly, (ii) per job or per diem, (iii) on contingency (the lawyer charges nothing and obtains a percentage of any money won for the client) and (iv) a retainer (the upfront amount deposited usually as part of an hourly or per job fee agreement).

ASSUMPTION OF RISK

An affirmative defense in a negligence case, in which the defendant argues that the plaintiff obviously knew of a significant risk of danger in advance, and as such, assumed liability for risk. 

BAD FAITH

The intentional refusal to fulfill a legal or contractual obligation, misleading another, or entering into an agreement without intending to or having the means to complete it. Most contracts come with an implied promise to act in good faith.

BURDEN OF PROOF

Any physical or corporeal injuryA party’s job of convincing the decision maker in a trial that the party’s version of the facts is true. In a civil trial, it means that the plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff’s version is true — that is, over 50% of the believable evidence is in the plaintiff’s favor. (That said, the burden of proof may shift to the defendant if the defendant raises a factual issue in defense to the plaintiff’s claims.) 

CATASTROPHIC INJURY

A life-changing injury that results in a person being permanently disabled, preventing them from being able to secure gainful employment

CIVIL SUIT

A lawsuit brought about by a person against another person or entity. Defendants in a civil lawsuit do not face the possibility of incarceration as a result of the case, but might be required to pay the plaintiff compensatory and punitive damages. Personal injury and wrongful death cases fall under the category of civil law.

COLLISION DAMAGE WAIVER

Rental car insurance that makes the rental car company responsible for damage to or theft of a rental car. Also known as CDW, damage waiver, and loss damage waiver, this insurance often duplicates coverage provided in a consumer’s existing auto insurance policy.

 

COLLISION INSURANCE COVERAGE

A component of car insurance that pays for damages to the insured vehicle that result from a collision with another vehicle or object. Collision insurance generally covers the amount of damage over and above an amount the insured person must pay, called the deductible amount.

COMPENSATORY DAMAGES

Money damages recovered as compensation for economic loss, awarded to plaintiffs in personal injury cases for past, present and future pain and suffering.

COMPARATIVE NEGLIGENCE

A rule of law applied in negligence cases in which responsibility and damages are based on the proportional fault of every party directly involved. 

CONTINGENT FEE

A method of paying a lawyer for legal representation by which, instead of an hourly or per job fee, the lawyer receives a percentage of the money her client obtains after settling or winning the case. 

DAMAGES

1) In a lawsuit, the harm caused to a party who is injured. 2) In a lawsuit, the money awarded to one party based on injury or loss caused by the other. For either definition, there are many different types or categories of damages

DEMAND LETTER

Correspondence from one party to a dispute to the other, stating the drafting party’s version of the facts of the dispute and making a claim for compensation or other action to resolve it. A demand letter is generally an opening gambit in an effort to settle a legal claim.

DEPOSITION

An examination and interview involving all parties in a lawsuit that takes place prior to the case going to trial. Both parties in a case are present at a deposition, along with their legal representation, a court reporter and sometimes a couple of witnesses. Attorneys from both sides ask questions of the other’s client to gain information that might help them argue the case. If a deposition is arranged, attendance by all involved parties is required by law.

DUTY OF CARE

The duty of a person or business to act toward others and the public with vigilance, caution, and prudence. Someone whose actions breach the duty of care is considered negligent, and may be sued for resulting damages.

DRIVING UNDER THE INFLUENCE (DUI)

The crime of operating a motor vehicle while under the influence of alcohol or drugs, including prescription drugs. State laws specify the level of blood alcohol content at which a person is presumed to be under the influence. Also called driving while intoxicated

DOG-BITE STATUTE

A state law that makes dog owners liable for injuries caused by their dogs, even if an owner didn’t know that the dog was likely to cause that kind of injury. More than half the states now have such dog-bite statutes.

DISCOVERY

A formal investigation — governed by court rules — that is conducted before trial by both parties. Discovery allows each party to question the other parties, and sometimes witnesses. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury; depositions, at which one party to a lawsuit has the opportunity to ask oral questions of the other party or witnesses under oath while a written transcript is made by a court reporter; and requests to produce documents, by which one party can force the other to produce physical evidence. Parties may also ask each other to admit or deny key facts in the case. Discovery allows parties to assess the strength or weakness of an opponent’s case, in order to support settlement talks and also to be sure that the parties have as much knowledge as possible for trial. Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.

EFFECTIVE DATE

The date at which a contract or statutory obligation commences. The effective date may be different than the date a contract is signed or a statute is enacted. For example, the effective date for the Copyright Act of 1976 is January 1, 1978.

 

EMOTIONAL DISTRESS

Suffering in response to an experience caused by the negligence or intentional acts of another; a basis for a claim of damages in a lawsuit brought for such an injury. Originally damages for emotional distress were awardable only in conjunction with damages for actual physical harm, but recently some courts have recognized a right to an award of money damages for emotional distress without physical injury or contact. In sexual harassment and defamation claims, emotional distress can sometimes be the only harmful result. Professional testimony by a therapist or psychiatrist may be required to validate the existence and depth of the distress and place a dollar value upon it.

EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)

A federal law that sets minimum standards for pension plans and health benefit plans, to protect the employees covered by these plans. ERISA requires plans to provide certain information to plan participants, imposes responsibilities on those who manage and control the plans, and requires plans to establish procedures for participants to get benefits from their plans, including an appeals process.

ESCROW

The holding of funds or documents by a neutral third party prior to closing a sale. For example, buyers and sellers of real estate commonly hire an escrow agent to facilitate the transfer. Business sales also sometimes involve escrow arrangements.  An escrow account may also refer to an IOLTA account that holds money for personal injury settlements until such time as those funds are available for disbursement.

FAIR MARKET VALUE

The amount for which property would sell on the open market. This is distinguished from “replacement value,” which is the cost of duplicating the property.

FINAL SETTLEMENT

An agreement reached by the parties to a lawsuit, usually in writing or read into the record in court, settling all issues. Usually there are elements of compromise, waiver of any right to reopen or appeal the matter even if there is information found later which would change matters (such as recurrence of a problem with an injury), mutual release of any further claim by each party, a statement that neither side is admitting fault, and some action or payment by one or both sides. In short, the case is over, provided the parties do what they are supposed to do according to the final settlement’s terms.

INSURED

The person or entity who is covered by an insurance policy.

INSURANCE

A contract in which the insured pays a fee to the insurance company, and in exchange, the insurance company agrees to pay the beneficiary of the policy a given amount if specific events occur. For example, life insurance pays a beneficiary on the death of the insured, auto insurance pays the beneficiary if the insured gets into an auto accident, and health insurance pays for health care if the insured gets sick. There are many, many kinds of insurance including: life insurance, auto insurance, health insurance, mortgage insurance, unemployment insurance, accident insurance, burial insurance, cargo insurance, fire insurance, title insurance.

LIMITED POWER OF ATTORNEY

A power of attorney that gives the agent power to handle only a specified matter — for example, to sign papers completing a single business transaction or property transfer.

LEIN

A creditor’s legal claim against particular property owned by a debtor as security for a debt. Liens the debtor agrees to, called security interests, include mortgages, home equity loans, car loans, and personal loans for which the debtor pledges property as collateral. Nonconsensual liens are liens placed on property without the debtor’s consent, and include tax liens, judgment liens (liens a creditor obtains by suing and getting a court judgment against the debtor), and mechanics’ liens (liens filed by a contractor who worked on the debtor’s house but didn’t get paid).  Liens may also be held by medical providers rendering services in connection with a personal injury case.

LIABILITY

1) In law, the state of being liable — that is, legally accountable for an act or omission. 2) In business, money owed by a business to others, such as payroll taxes, a court judgment, an account payable, or a loan debt.

LIABILITY INSURANCE COVERAGE

Insurance that provides compensation to third parties who are injured or whose property is damaged due to the fault of the insurance holder. You may have liability insurance for your car or your home, or to cover actions you take in the course of your profession. Liability policies are sometimes called “third-party policies.”

MAXIMUM MEDICAL IMPROVEMENT

When a doctor finds that a patient’s condition has improved as much as it is going to with treatment. At this point, the patient is evaluated for a permanent disability.

MEDICAL PAYMENTS BENEFITS (MP OR MEDPAY)

An optional additional coverage that can be elected when purchasing an insurance policy which can be used to pay medical bills resulting from an accident, similar to health insurance for accidents only.  In the State of Georgia, Medpay benefits are primary coverage before health insurance for medical treatment related to an accident. Some health insurance policies will not cover treatment related to an accident until proof of no Medpay or exhausted Medpay benefits is provided.

MUNICIPAL COURT

A court that typically has authority over minor criminal matters, traffic tickets, and civil lawsuits where a relatively small amount of money is at stake. The rules vary from state to state; in some states, courts that handle minor local matters have other names.

MITIGATION OF DAMAGES

The requirement that someone injured by another’s negligence or breach of contract must take reasonable steps to reduce the damages, injury, or cost, and to prevent them from getting worse. If a tenant breaks a lease and moves out without legal justification, a landlord must try to re-rent the property reasonably quickly and keep his or losses to a minimum — that, is to mitigate damages. In another context, a person claiming to have been injured by another motorist should seek medical help and not let the problem worsen.

NEGLIGENCE

circumstances, or taking action that such a reasonable person would not, resulting in unintentional harm to another. Negligence forms a common basis for civil litigation, with plaintiffs suing for damages based on a variety of injuries, including physical or property damage. The injured party (plaintiff) must prove: 1) that the allegedly negligent defendant had a duty to the injured party or to the general public, 2) that the defendant’s action (or failure to act) was not what a reasonably prudent person would have done, and 3) that the damages were directly (“proximately”) caused by the negligence. An added factor in the formula for determining negligence is whether the damages were “reasonably foreseeable” at the time of the alleged carelessness.

NEGLIGENCE PER SE

Negligence due to the violation of a public duty, such as high speed driving.

NEGOTIATION

A give-and-take discussion that attempts to reach an agreement or settle a dispute.

NOTARIZE

Certification by a notary public to establish the authenticity of a signature on a legal document. Many legal documents, such as deeds and powers of attorney, must be notarized.

PAIN AND SUFFERING

Compensation for physical pain, mental anguish, and loss of enjoyment of life caused by a defendant’s wrongful actions. Pain and suffering includes physical pain and discomfort; negative emotions such as anger, fear, anxiety, humiliation, and shock; and decreased ability to enjoy life, including sleep disturbances, sexual dysfunction, lack of energy, inability to engage in hobbies, and loss of appetite. Pain and suffering is an element of damages commonly sought in personal injury lawsuits. The dollar value of damages for pain and suffering is subjective, as distinguished from medical bills, future medical costs and lost wages which can be calculated, called “special damages.”

PERSONAL INJURY RECOVERY

The amount that comes from a lawsuit or insurance settlement to compensate someone for physical and mental suffering, including injury to body, injury to reputation, or both.

PERSONAL INJURY

Injury to a person’s physical and/or mental well being. For example, if you slip and fall on a banana peel in the grocery store, personal injury covers any actual physical harm (broken leg and bruises) you suffered in the fall as well as the humiliation of falling in public, but not the harm of shattering your watch.

PLAINTIFF

The person, estate, corporation, or other legal entity that initiates a lawsuit seeking damages, enforcement of a contract, or a court determination of rights. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff.

POLICY LIMITS

The limits of coverage of an insurance policy

PREPONDERANCE OF THE EVIDENCE

In contrast to criminal cases, in which defendants must be found “guilty beyond a reasonable doubt,” civil cases only require a “preponderance of evidence,” meaning that evidence must show that events surrounding the lawsuit “most likely” happened or didn’t happen. In a personal injury or wrongful death case, a plaintiff must present evidence to show that it is more likely than not that their injuries or family member’s death resulted from the negligence or misconduct of the defendant.

PROPERTY DAMAGE

Damage to personal property, usually referring to a vehicle damage.

PUNITIVE DAMAGES

Damages added to a settlement or to a compensatory damages award that serve as extra punishment for a defendant guilty of severe and willful misconduct, such as drunk driving or fleeing the scene of an accident.

RECOVERY

Money awarded to a plaintiff in a personal injury or wrongful death case.

 

SETTLEMENT

An agreement reached between both parties in a lawsuit, prior to the case going to trial or before a decision is reached in a trial. Settlements negotiated in personal injury and wrongful death cases typically involve both parties agreeing that the defendant will pay a specified amount of money to the plaintiff.

SPECIAL DAMAGES

Damages that compensate the plaintiff for quantifiable monetary losses such as medical bills and the cost to repair damaged property (direct losses) and lost earnings (consequential damages). Distinguished from general damages, for which there is no exact dollar value to the plaintiff’s losses.

STATUTE OF LIMITATIONS

A measurable amount of time designating the deadline by which legal proceedings must begin following an event.

SUBROGATION

Assuming the legal rights of someone whose debts or expenses have been paid. For example, subrogation occurs when an insurance company that has paid off its injured claimant takes the legal rights the claimant has against a third party that caused the injury, and sues that third party.

TORT LAWS

Laws protecting those who have suffered personal injury because of someone else’s carelessness, negligence or misconduct

UNINSURED MOTORIST CLAUSE

A clause in an automobile insurance policy that provides that if the owner or a passenger suffers any injury because of the actions of a driver of another vehicle who does not have liability insurance, the insurance company will pay its insured’s actual damages.

UNINSURED / UNDERINSURED MOTORIST COVERAGE (UM / UIM)

An optional additional coverage that can be elected when purchasing an insurance policy and may supplement the at-fault’s insurance coverage

WHIPLASH

A common neck or back injury, often suffered in automobile accidents in which the head and/or upper back is snapped back and forth suddenly and violently. The injury is to the “soft tissues” and sometimes to the vertebrae, does not always evidence itself for a day or two, and can cause pain and disability for periods up to a year. The degree of injury and the pain and suffering from whiplash are often in dispute in claims and lawsuits for damages due to negligent driving.

WRONGFUL DEATH

The death of any person that is caused by the careless, negligent or reckless act of another. In a wrongful death case, family members of the deceased seek monetary damages from the person or entity responsible for the death. Monetary damages are determined based on a number of factors, including the earning potential of the deceased, the number of dependents the deceased had, the deceased’s prior life expectancy, medical bills arising from the act that ultimately led to the death, and funeral expenses.

*RESOURCES:

Definitions taken in whole or in part from Black’s Law Dictionary and Nolo.com

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