When an individual is involved in some type of personal injury, such as a dog bite accident, social security disability claim or worker’s compensation claim, he or she is often thrown into a world with new legal terminology. This can prove frustrating for any person, especially if he must hear and try to understand these words and phrases while also dealing with injuries, family issues and financial difficulties.
To try to help our clients and our community become more knowledgeable about some of the terminology they may be faced with when pursuing a personal injury claim, we have included below an index of common legal terms and phrases.
Click on a term to view its definition.
A judicial proceeding brought by one party against another who is seeking redress of a wrong, protection of a right or for prevention of a wrong.
If an individual has been involved in an automobile accident or other type of personal injury case, their representing attorney will often file suit against the negligent party by bringing the matter before a court of law. By doing this, the injured person can argue in front of a judge for a full and final settlement amount.
A written, ex parte statement made by or taken under oath before an officer of the court, a notary public or other person who has been duly authorized so to act.
A plea of defense which serves as a basis for proving some new fact; in such a defense, a defendant does not simply deny a charge, but offers new evidence to avoid judgment against him. If the defendant raises an affirmative defense, he must raise it in his answer and bears the burden of proof on it.
The principle pleading on the part of the defendant in response to a plaintiff’s complaint. It may contain:
If the defendant wishes to make any compulsory counterclaims arising out of the same transaction, they must generally be pleaded in the answer as well, or they will be barred in any subsequent separate suit.
A motion that is made to challenge a ruling or decision by requesting a formal change. In a personal injury case, the individual who is injured in an automobile accident or other type of claim may choose to appeal a judge’s initial ruling. In doing so, the case will be brought in front of a higher court where another verdict will be rendered.
An affirmative defense used by the defendant (the party who is primarily negligent for causing a motorcycle accident or other type of personal injury claim) claiming that the plaintiff is partially negligent for the injuries they sustained in the incident. By claiming that the plaintiff assumes assumption of the risk, the defendant is saying that the plaintiff had knowledge of a condition or situation obviously dangerous to him and yet voluntarily exposed himself to the hazard created by defendant.
Often times, if the plaintiff is found to assume assumption of the risk, the defendant thereby relieves himself of legal responsibility for any resulting injury suffered by the other party.
In contrast, contributory negligence arises when a plaintiff fails to exercise due care, while assumption of risk arises regardless of the care used and is based fundamentally on consent.
Dishonesty or fraud in a transaction, often characterized by the intent to deceive or mislead another in order to gain some advantage.
A person or entity who receives a profit, advantage or benefit in some way. In a wrongful death case, a named beneficiary will often receive a specified inheritance from the deceased’s estate.
Anything of value, including but not limited to any advantage, preference, privilege, license or favorable decision. In terms of a personal injury claim (for example, where an individual is injured as a result of an automobile accident or medical malpractice claim) the person suffering injuries is entitled to receive financial benefits for medical bills, lost wages and property damage. In order to receive these benefits, negligence has to be attributed to another party.
A type of liability insurance that is not required by Florida law for an individual to obtain a vehicle tag. However, bodily injury liability coverage can become a crucial element for providing extra financial benefits to someone who is injured in an automobile accident or motorcycle accident. For example, if another party hits them and is found negligent, the injured party can receive financial compensation from the negligent person’s bodily injury liability coverage.
The amount of benefits the injured person can receive from this type of coverage depends on how much the at-fault party purchased in their insurance policy.
Also known as negligent acts or malpractice. This occurs when a party in a relationship who is held to a high standard of care (such as between doctor and patient and property owner and visitor) does not uphold their duty to practice safe standards.
The ability to make a rational decision based upon all available relevant facts and considerations. If an individual suffers severe injuries from a medical malpractice claim (or other type of personal injury claim) a selected individual may have to make future medical/financial decisions for them if they do not have the capacity to do so for themselves.
Causation of an injury is the third element required for liability. In a medical malpractice claim, the patient must sustain an injury as a direct result of the medical caregiver’s negligence.
Something that precedes and brings about an effect or result, typically grounds for legal action.
Types of cause include:
Direct Cause – The active, efficient cause that sets in motion a chain of events that brings about a result without the intervention of any other independent source. Direct cause is often used interchangeably with proximate cause.
Immediate Cause – The nearest cause in point of time and space; it is not necessarily the direct or proximate cause.
Intervening Cause – A type of cause that helps to produce the result, but that comes into action after the negligence of the defendant. “Intervening” is used in a time sense; it refers to later events. For example, if the defendant sets a fire with a strong wind blowing at the time, which carries the fire to the plaintiff’s property, the wind does not intervene, since it was already in operation; but if the fire is set first, and the wind springs up later, it is then an intervening cause.
Proximate Cause – A type of cause which, in natural and continuous sequence unbroken by any new independent cause, produces an event and without which the injury would not have occurred. In tort law, one’s liability is generally limited to results “proximately caused” by his conduct or omission.
Remote Cause – A type of cause which does not necessarily produce an event without which injury would not occur. Thus, a cause which is not considered to be “proximate” will be regarded as “remote.”
Superseding Cause – A type of intervening cause which is so substantially responsible for the ultimate injury that it acts to cut off the liability of preceding actors regardless of whether their prior negligence was or was not a substantial factor in bringing about the injury complained of.
Courts sometimes use “superseding” interchangeably with “intervening” in which case it does not have this meaning. Properly, the term “superseding” is limited to an intervening cause which “by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bring about.”
The combination of facts that gives a person the right to seek judicial redress or relief against another. For example, if a person is injured in an accident or other type of personal injury case they have cause of action to claim benefits on behalf of another party’s negligence.
A type of negligence where both the plaintiff and defendant share some of the fault for an accident or other incident. In a lawsuit, it means that both parties have contributed to the subject harm or loss by failing to meet the required standards of performance or care.
This may be compared to contributory negligence, where any money damages a plaintiff receives from a lawsuit may be reduced proportionate to his or her amount of contributed negligence.
An amount of money received as compensation for a plaintiff who brings a lawsuit against a defendant for negligence or harm. This amount is awarded in order to compensate the injured party for their loss, including any injuries they sustain (as seen in cases of automobile accidents or medical malpractice claims).
Compensatory damages can include receiving financial compensation for various out-of-pocket expenses such as medical costs, property damage, and lost wages as a result of the personal injury claim.
The monetary losses an injured party has suffered as a result of another’s negligence. In a personal injury claim, damages can be awarded to the injured party in the form of financial compensation for medical bills, lost wages and property damage.
Damages include physical, financial and emotional injuries.
In a lawsuit, this is the person, corporation or other entity that is sued and called upon to make satisfaction for a wrong complained of by another. In a personal injury claim, there are often multiple defendants, such as with a product liability case in which more than one entity may be responsible for injuries a person receives due to a faulty product.
A denial, answer or plea made by the defendant that opposes the truth or validity of the plaintiff’s case. The defendant may make their defense during a cross-examination or by demurrer. It is more often done by introduction of testimony or other evidence designed to refute all or part of the allegations of the plaintiff’s case.
Affirmative Defense – A plea of defense which serves as a basis for proving some new fact; in such a defense, a defendant does not simply deny a charge, but offers new evidence to avoid judgment against him. If the defendant raises an affirmative defense, he must raise it in his answer and bears the burden of proof on it.
A method of pre-trial discovery which consists of maintaining a witness statement that is taken under oath in a question-and-answer type form (as it would be in court), while also giving an opportunity to the adversary to be present and cross-examined. All of the events during a deposition are reported and transcribed steno-graphically, called an oral deposition.
Often, statements received during a deposition serve as the most common form of discovery, and may be taken of any witness (whether or not they are a party to the action).
Depositions may also be taken upon written interrogatories where the questions are propounded to the witness by the officer who is taking the deposition, called depositions on written interrogatories.
A defect in the design (or blueprints) of a product that makes it unsafe to use. Evidence of a design defect can become critical during a product liability case, when the plaintiff is seeking compensation for damages they received from the product.
The initial questioning of a witness by the party who called the witness. The purpose is to present testimony containing the factual argument the party is making. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.
Redirect Examination – the questioning of a witness by a party who called the witness after that witness has been subject to cross-examination. The purpose of redirect examination is to rebut or clarify any damaging testimony elicited on cross-examination.
In general, the redirect examination of a witness may extend to matters brought out on cross-examination, and ordinarily it should be limited to the scope of the cross-examination, although the court may permit it to go beyond the scope thereof
A state of not being fully capable of performing all functions, whether mental or physical. The term is also defined by statute for worker’s compensation and social security purposes, and may include partial, permanent, temporary or total disability.
Total Disability – As used in insurance contracts, a person’s inability to perform the material duties of some occupation for which he or she is qualified by experience or training. Absolute physical disability or helplessness is not necessary for “total disability” to exist.
The maltreatment of elderly persons inflicted upon by those in relation to them (including family members, friends and caregivers), by outside entities or as a self-inflicted act on behalf of the elder person themselves. Elder abuse is commonly seen during claims of medical malpractice and nursing home neglect, where a personal injury attorney is often contacted for legal guidance.
The time between when a person declares they are disabled and when they start to receive long-term disability benefits. Generally, this period lasts for an average of six months before benefits begin to be paid out.
Also known as The Employee Retirement Income Security Act of 1974. This is a federal legal statute that establishes minimum standards for pension plans in private industry and provides for extensive rules on thefederal income tax effects of transactions associated with employee benefit plans.
ERISA was enacted to protect the interests of employee benefit plan participants and their beneficiaries by requiring the disclosure of them to financial and other information concerning the plan; by establishing standards of conduct for plan fiduciaries; and by providing for appropriate remedies and access to the federal courts.
ERISA is sometimes used to refer to the full body of laws regulating employee benefit plans, which are found mainly in the Internal Revenue Code and ERISA itself.
Any kind of information that is used to help a judge and/or jury make a decision about the facts of a case. Types of evidence may include the testimony of witnesses, legal documents and photographs, medical records (used heavily for automobile accident cases and other personal injury claims) and damaged property.
Depending on the type of case that is presented, there are often strict rules that determine what kinds of evidence may and may not be admitted at a trial.
The testimony of a person who has special training, knowledge, skill or experience in an area relevant to resolution of the legal dispute. An expert opinion is often given for social security disability claims, when a vocational expert is asked to testify whether they believe an individual can or cannot work based on their medical conditions and limitations.
In behalf of, on the application of, one party by or for one party. An ex parte judicial proceeding is one brought for the benefit of one party only, without notice to or challenge by an adverse party. It refers to an application made by one party to a proceeding in the absence of the other. Thus, an ex parte injunction is one having been granted without the adverse party having had notice of its application. An uncontested application where notice was given is not ex parte.
A witness who has special knowledge of the subject about which he is to testify. That knowledge must generally be such as is not normally possessed by the average person. An expert witness may be called on to testify in certain types of cases, such as calling upon a medical expert for medical malpractice cases or a vocational expert for social security disability cases.
This expertise may derive from study and education, or from experience and observation. An expert witness must be qualified by the court to testify as such. To qualify, he need not have formal training, but the court must be satisfied that the testimony presented is of kind which in fact requires special knowledge, skill or experience. Such testimony, given by an expert witness, constitutes expert evidence or expert testimony. Hypothetical questions (asking the witness to assume certain stated facts) may be asked of an expert witness as a way of educating the Trier of fact in the area of the expert’s knowledge or experience.
A state law that prohibits discrimination against people with disabilities. If you believe you’ve been discriminated against at work because you’re disabled and want more information on your rights under the FEHA, contact the state Department of Fair Employment and Housing at 1-800-884-1684. In some cases, the FEHA provides more protection than the federal Americans with Disabilities Act (ADA).
A Judgment conclusively determining the rights of the parties and disposing of the entire controversy before the court, or of some separable portion thereof, so that, immediately after the judgment or an appeal there from is rendered, the only judicial business that remains is enforcement of that judgment.
The requirement that the case must be judged on the unique facts as they were at the time of the occurrence; not in retrospect or with hindsight.
The act of sending or delivering a document to an employer or a government agency as part of a legal process. The date of filing is the date the document is received.
Any knowingly false or fraudulent statement for the purpose of obtaining or denying benefits. The penalties for committing fraud are fines up to $150,000 and/or imprisonment for up to five years.
Monetary recovery in a lawsuit for injuries suffered (such as pain, suffering, inability to perform certain functions) or breach of contract for which there is no exact dollar value which can be calculated. They are distinguished from special damages, which are for specific costs, and from punitive (exemplary) damages for punishment and to set an example when malice, intent or gross negligence was a factor.
The intent to act honestly without taking an unfair advantage over another person or to fulfill a promise to act.
There is no legal duty to render assistance to another unless there is a direct caregiver-patient relationship with an individual or there is a voluntary assumption of the duty, or such a duty is specifically mandated by state law.
A time stated in a contract in which a late payment or performance may be made without penalty. Often after the grace period ends without payment or performance by the person who is supposed to pay, the contract is suspended.
To transfer real property from a title holder (grantor) or holders to another (grantee) with or without payment. However, there is an important difference between the types of deeds used. A grant deed warrants (guarantees) that the grantor (seller) has full right and title to the property, while a quitclaim deed only grants whatever the grantor owns and guarantees nothing.
A person who has been appointed by a judge to take care of a minor child or incompetent adult personally and/or manage that person’s affairs. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor’s welfare will petition the court to appoint the guardian.
Any set of circumstances which significantly increases the likelihood of a serious physical outcome. An attorney may want to examine a hazardous condition for claims involving slip and fall accidents or premises liability.
An organization certified by the Department of Industrial Relations to provide managed medical care within the workers’ compensation system.
Legal proceedings in which a judge discusses the issues in a case or receives information in order to make a decision about a dispute or a proposed settlement.
A rule that declares not admissible as evidence any statement other than that by a witness while testifying at the hearing and offered into evidence to prove the truth of the matter stated. The reason for the hearsay rule is that the credibility of the witness is the key ingredient in weighting the truth of his statement; so when that statement is made out of court, without benefit of cross-examination and without the witness’s demeanor being subject to assessment by the trier of fact (judge or jury), there is generally no adequate basis for determining whether the out-of-court statement is true. The statements may be oral or written and includes non verbal conduct intended as a substitute for words.
If, for example a witness’s statement as to what he hears another person say is elicited to prove the truth of what that other person said it is hearsay; if however, it is elicited merely to show that the words were spoken, it is not hearsay. The witness’s answer will be admissible only to show that the other person spoke certain words and not to show the truth of what the other person said. There are many exceptions to the hearsay rule based on a combination of trustworthiness and necessity.
A promise to pay any costs or claims which may result from an agreement. Quite often this is part of a settlement agreement, in which one party is concerned that there might be unknown lawsuits or claims stemming from the situation, so the other party agrees to cover them.
A company that is created to own the stock of other corporations, thereby often controlling the management and policies of all of them.
The nearest cause in point of time and space; it is not necessarily the direct or proximate cause.
The duty to disclose as limited to those disclosures that a reasonable medical practitioner would make under the same or similar circumstances.
Injuries that are not concrete (cannot be seen or touched) such as depression, anxiety and stress. An individual may suffer from intangible injuries as a result of an automobile accident or other type of personal injury where they receive substantial injuries and/or scarring.
Any type of work that has been created by an individual’s own thought, such as inventions, literary works and artistic works. A person’s intellectual property is regulated through federal and state laws and protected through the use of patents, copyrights and trademarks.
If a person’s intellectual property has been copied or stolen by another, they can seek restitution by hiring an attorney who practices within a specialized field of intellectual property law.
In civil actions, an interrogatory is a pre-trial discovery tool in which written questions are propounded by one party and served on the adversary, who must answer by written replies made under oath. In other words, it is a chance for an attorney to either the plaintiff or defendant to ask questions of witnesses or other parties.
“Interrogatories” can only be served on parties to the action, and while not as flexible as depositions, which include opportunity of cross-examination, they are regarded as a good and inexpensive means of establishing important facts held by the adversary. The person giving a written answer must do so truthfully.
A type of cause that helps to produce the result, but that comes into action after the negligence of the defendant. “Intervening” is used in a time sense; it refers to later events. For example, if the defendant sets a fire with a strong wind blowing at the time, which carries the fire to the plaintiff’s property, the wind does not intervene, since it was already in operation; but if the fire is set first, and the wind springs up later, it is then an intervening cause.
When two or more persons are both responsible for a debt, claim or judgment. It can be important to the person making the claim, as well as to a person who is sued, who can demand that anyone with joint liability for the alleged debt or claim for damages be joined in (brought into) the lawsuit.
An official with the authority and responsibility to preside in a court, try lawsuits and make legal rulings. Judges of courts established by a state at the county, district, city or township level, gain office by election, by appointment by the Governor or by some judicial selection process in case of a vacancy.
Federal judges are appointed for life by the President of the United States with confirmation by the U.S. Senate. A senator of the same party as the President has considerable clout in recommending Federal judges from his/her home state.
The determination of a court of competent jurisdiction upon matters submitted to it. A final determination of the rights of the parties to a lawsuit.
Types of Judgment include:
Default Judgment – A judgment entered on behalf of a plaintiff when the defendant defaults, or fails to appear in the proceeding.
Final Judgment – A Judgment conclusively determining the rights of the parties and disposing of the entire controversy before the court, or of some separable portion thereof, so that, immediately after the judgment or an appeal there from is rendered, the only judicial business that remains is enforcement of that judgment.
Judgment on the Merits – Judgment rendered through analysis and adjudication of the factual issues presented, rather than by the existence of a technical or procedural defect that requires one party to prevail. A judgment on the merits is binding and issues so adjudged become subject to the force of res judicata and collateral estoppels. Judgments not rendered on the merits are frequently considered dismissed without prejudice so that the factual issues may eventually be decided upon.
Judgment rendered through analysis and adjudication of the factual issues presented, rather than by the existence of a technical or procedural defect that requires one party to prevail. A judgment on the merits is binding and issues so adjudged become subject to the force of res judicata and collateral estoppels. Judgments not rendered on the merits are frequently considered dismissed without prejudice so that the factual issues may eventually be decided upon.
A person that takes care of someone else and often is legally responsible for something.
A payment of money or property made to one in a position to open up or control a source of income for the payor.
A particular type, category, or class; the equivalent in value.
Awareness or understanding of a fact or circumstance.
The legal responsibility a party obtains when he or she causes harm or injury to another person. For example, in a car accident claim the negligent party who hit the plaintiff is liable for any injury and property damage he caused.
The procession of a case to resort to the courts to determine a legal question or matter. When a person files a claim against another party who has caused them harm in some way, he is seeking restitution through the litigation process. Often a claim may be resolved through settlement, and if not, through the trial process.
An employee-paid benefit program offered by a private insurance carrier designed to provide income replacement in the event you become disabled due to an illness or injury and cannot perform the duties of your normal job (own occupation), or maybe any job, for a long period of time (6 months or longer). LTD begins where short-term disability (STD) leaves off. Once STD benefits expire (generally after three to six months), the LTD policy pays a percentage of your salary, depending on the policy. You will then receive benefits for two to five years or until you turn 65. There is generally a 24 month benefit Limitation for Disability due to Mental Disorders or other Limited Conditions. Most LTD plans are governed by ERISA (federal law) and are complicated. Claims are offset by certain “other deductible income” available to the employee. Other deductible income includes but is not limited to: work earnings; sick leave; workers’ compensation; state disability income; Social Security; disability and retirement benefits under a State’s retirement plan; other group insurance benefits; third party settlements and any amounts received by compromise, settlement or other methods. To learn more, please visit our ERISA Disability Claims page.
The amount of pay someone has lost due to being out of work for an injury or illness. If an individual hires a personal injury attorney to represent him, the attorney can often help to retrieve these lost wages.
A defect in the method of assembling a product that makes it unsafe to use. If an individual suffers harm or injury from a product with a manufacturing defect, they may have a viable product liability claim.
Most commonly referred to as an event where a large number of individuals file a claim against one single product. This can include suits filed on behalf of victims of environmental disasters and deadly prescription drugs. Many mass tort claims are regulated under specific state laws.
A method of settling disputes outside of a court setting. In mediation, a neutral third party (called a mediator) listens to both sides and acts as a link between the parties. The goal is for the mediator to help both parties come to a mutually-agreeable resolution so that the claim does not have to be taken to court.
Medical professional negligence that occurs when a medical caregiver’s level of conduct falls below the appropriate standard of care for that caregiver. Malpractice is the failure to exercise that degree of care as is used by reasonably prudent health care providers of like qualifications in the same or similar circumstances.
The failure of a medical provider to meet this acceptable standard of care must cause or substantially contribute to the patient injury to result in liability in order for medical negligence to occur.
A requirement that one injured by reason of another’s tort or breach of an agreement exercise reasonable diligence and ordinary care to avoid aggravating the injury or increasing the damages. The term also refers to a defendant’s request to the court for a reduction in damages owed to the plaintiff, a request that the defendant justifies by reason of some evidence that shows the plaintiff not entitled to the full amount that might otherwise be awarded to him.
Duty to Mitigate Damages – Not actually a duty in the sense that its breach will give rise to a cause of action against the person who violates it. Rather it expresses the general rule that one who was wronged must act reasonably to avoid or limit losses or be precluded from recovering damages that could reasonably have been avoided. In this sense the rule has been termed a “rule of avoidable consequences” rather than a duty to mitigate damages. Thus, if a wrongfully discharged employee failed to look for alternative work and work was readily available of the same kind that was the subject of the breached contract, the employer would be allowed to deduct what the earnings could have been from the damages claimed.
A body of water, mainly used for business and commercial transportation, that is deep, wide and slow enough for a vessel to pass through with no obstructions.
Failure to exercise that degree of care which a person of ordinary prudence (a “reasonable” person) would exercise under the same circumstances. The term refers to conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It does not comprehend conduct recklessly disregardful of the interests of others, nor does it include intentional infliction of injury on another. Unless the actor is a child, the standard of conduct to which the person must conform to avoid being negligent is that of a reasonable person under like circumstances.
Negligent conduct may involve either a) an act that the actor as a reasonable person should recognize as involving an unreasonable risk of causing an invasion of an interest of another, or b) a failure to do an act necessary for the protection or assistance of another and which the actor is under a duty to perform.
Comparative Negligence – The allocation of responsibility for damages incurred between the plaintiff and the defendant, based on the relative negligence of the two; the reduction of the damages to be recovered by the negligent plaintiff in proportion to his fault.
A type of negligence that occurs when an individual intentionally fails to exercise reasonable care and caution while fulfilling their supervisory duties. Although it can be separated into its own category, a person may fall victim to negligent supervision while under the care of a nursing home or hospital.
A body of water that is shallower in nature and is used for more recreational purposes.
A workers’ compensation document you get from the insurance company that must be completed by both you and the insurance company. This is the document used to provide payment for education under the supplemental job displacement benefit program.
In a workers’ compensation claim, these are measurements, direct observations and test results that a treating physician can say in order to contribute to your permanent disability.
A form you get from the insurance company during a workers’ compensation claim if you were injured in 2004 or later and your treating physician reports you have a permanent disability and; your employer is offering modified or alternative work instead of a supplemental job displacement benefit.
This form also explains how your permanent disability payments may be lowered by 15 percent because your employer is returning you to work.
In litigation, a statement made by the attorney for each party after the jury has been selected and before any evidence has been presented. A defendant may reserve an opening statement until after the conclusion of the plaintiff’s case. An opening statement outlines for the jury the evidence that each party intends to present and informs the jury of the party’s theory of the case.
The explanation of a court’s judgment. When a trial court judgment is appealed to a court of appeals, the appeals judge’s opinion will be detailed, citing case precedents, analyzing the facts, the applicable law and the arguments of the attorneys for the parties.
Since appeals courts have anywhere from three to nine judges, there are often “dissenting opinions” which disagree with the majority opinion, and “concurring opinions” which agree with the result, but apply different emphasis, precedents or logic to reach the determination.
In a personal injury claim, “pain and suffering” is a common term used to describe non-economic damages that may be awarded to victims. Rather than economic (monetary) losses, pain and suffering refers to loss of physical health and emotional damage a person may receive as a result of being victimized to an automobile accident or motorcycle crash.
Automobile insurance that covers 80% of an injured party’s medical bills and 60% of any lost wages they receive (up to the amount stated in his or her purchased policy limits). To learn more about the insurance process or how your bills are paid after being involved in an automobile accident, please visit Who Pays My Medical Bills and Lost Wages?
A person who is the executer of a deceased’s estate; They are often appointed to handle the deceased’s affairs and can make claims on behalf of the deceased. Typically, attorneys will deal with a personal representative when a victim of an automobile accident or other type of personal injury claim pass away as a result of another person’s negligence. This type of claim is often referred to as a wrongful death case.
The one who initially brings a lawsuit against someone else who has negligently caused him or her harm or injury. By filing a claim against the negligent party the plaintiff, in a personal action, seeks a remedy in a court of justice for an injury to, or a withholding of, his rights.
In a personal injury claim, the plaintiff is the party seeking restitution for injuries and damages received from another party’s negligence (seen commonly in automobile accident claims and medical malpractice claims).
There may also be multiple plaintiffs in a case and plaintiffs may be entities such as corporations.
Statements, in logical and legal form, of the facts that constitute a plaintiff’s cause of action and a defendant’s ground of defense. They are either allegations by the parties affirming or denying certain matters of fact, or other statements by them in support or derogation of certain principles of law, which are intended to have the effect of disclosing to the court or jury the real matter in dispute.
Modern code procedure often includes only a complaint an answer, and where necessary, a reply to the answer. Pleadings may be on the merits, and thus peremptory, or else they may be based on some other ground which prevents the case from going to the jury, in which case they are referred to as dilatory pleas. Modern procedure permits liberal amendments to leadings and thus defects in pleadings will directly affect a party’s case only in rare instances.
A legal principle outlining the degree of liability a property owner or renter maintains for injuries or accidents that happen on his or her property. There is a specific field of law, called premises liability law, which holds property owners accountable for issues of liability. The specifics of this law and how cases are determined varies from state to state, but most property owners are typically held to a reasonable standard of care for any visitors to their property. To learn more, please visit our Premises Liability page.
This is a type of insurance required by Florida law (at least $10,000 coverage) for an individual to obtain a tag for his or her vehicle. It goes toward compensating a victim of any property that was damaged as a result of an automobile accident or motorcycle accident, such as damage to vehicles, mailboxes and houses. The amount of benefits received from this coverage depends on how much the at-fault party purchased in their insurance policy.
A type of damages that can be awarded to victims of personal injury claims (such as automobile accident claims or medical malpractice claims). These damages are awarded in such a way that they exceed total direct, compensatory damages in order to act as a punishment for the negligent party. In other words, the plaintiff is awarded a monetary amount over what their direct medical bills and other costs total, in order to punish the defendant and deter them from acting in a similar negligent manner in the future.
A worker who has been hurt on the job and is entitled to vocational rehabilitation benefits through workers’ compensation. This benefit applies only if you were injured before Jan. 1, 2004.
An independent physician certified by the Department of Workers’ Compensation Medical Unit to perform medical evaluations.
A person trained and able to evaluate, counsel, and place disabled workers in new jobs. Also called a rehabilitation counselor.
A situation in which two parties have an obligation as if there was a contract, although the technical requirements of a contract have not been fulfilled.
In a lawsuit or criminal prosecution, this is an issue of fact in which the truth or falsity (or a mix of the two) must be determined by the “trier of fact” (the jury or the judge in a non-jury trial) in order to reach a decision in the case.
A “question of fact” may also be raised in a motion for summary judgment which asks the court to determine whether there are any questions of fact to be tried, allowing the judge to rule on the case (usually to dismiss the complaint) at that point without a trial.
“Questions of fact” are distinguished from “questions of law,” which can only be decided by the judge.
Latin meaning “something for something,” to identify what each party to an agreement expects from the other, sometimes called mutual consideration.
A standard that applies to business owners in order to help find who is at fault for slip and fall accidents within a business facility. The standard states that owners are not guarantors of every person’s safety that enter their establishment, but to be reasonably careful and aware of conditions that may be unsafe. If a business owner is aware of an unsafe condition in their store or on their property but do not take care of the problem or warn visitors, they are most commonly found liable for the visitor’s injuries. This standard is often upheld for victims of a slip and fall claim.
An ordinary presumption which must, as a matter of law, be made once certain facts have been proved, and which is thus said to establish a prima facie conclusion; it may be rebutted or overcome through the introduction of contrary evidence but if it is not, it becomes conclusive. After rebutting evidence is introduced, under prevailing doctrine the competing facts are weighed on their own merits, without further reference to the presumption.
The questioning of a witness by a party who called the witness after that witness has been subject to cross-examination. The purpose of redirect examination is to rebut or clarify any damaging testimony elicited on cross-examination.
In general, the redirect examination of a witness may extend to matters brought out on cross-examination, and ordinarily it should be limited to the scope of the cross-examination, although the court may permit it to go beyond the scope thereof.
A type of cause which does not necessarily produce an event without which injury would not occur. Thus, a cause which is not considered to be “proximate” will be regarded as “remote.”
Meaning “the thing speaks for itself”. A rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided: (1) the occurrence is the kind of thing that does not ordinarily happen without negligence; (2) the occurrence must have been caused by an agency or instrumentality within the exclusive control of the defendant; (3) the occurrence was not due to contribution or voluntary action by the plaintiff. The rule may not apply when direct evidence of negligence exists. The procedural effect of successfully invoking the doctrine is to shift the burden of going forward with the evidence, which normally attaches to the plaintiff, to the defendant, who is thereby charged with introducing evidence to refute the presumption of negligence which has been created.
The right of a vehicle or pedestrian to proceed on the road, while others yield. Right of way statutes give preference to one of two vehicles (or between a vehicle and a pedestrian) when they are attempting to pass over the same part of the road at the same time.
Often, when an individual seeks compensation for injuries he or she sustains from an automobile accident, motorcycle accident or bicycle accident, the hired attorney will likely determine which party had the right of way at the time of the crash.
A systems approach to the prevention of medical malpractice claims; involves identification of system problems as well as identification of patients who may sue. Process includes identification, analysis and treatment of risks.
Generally, the conclusive fixing or resolving of a matter; the arrangement of a final disposition of it. In other words, a settlement is a compromise achieved by the adverse parties in a civil suit before final judgment, whereby they agree between themselves upon their respective rights and obligations, thus eliminating the necessity of judicial resolution of the controversy. Although many people associate the act of suing someone with “taking them to court”, many types of claims (especially within personal injury) are settled before being brought to litigation. This means that the parties agree on a settlement amount between themselves.
The uniform standard of behavior upon which the theory of negligence is based. The standard of care requires the actor to do what the “reasonable person of ordinary prudence” would do in the actor’s place. If the actor’s conduct falls below the standard that a reasonable person would conform to under like circumstances, the actor may be liable for injuries or damages resulting from his or her conduct.
The standard of care is commonly applied to medical malpractice claims, in which doctors and other care givers are held to a certain standard within the medical field.
A declaration of fact; an allegation by a witness. The main types of statements include:
Closing Statement – In litigation, a summation made by the attorney, at the end of the case, which sets forth that client’s case.
Opening Statement – In litigation, a statement made by the attorney for each party after the jury has been selected and before any evidence has been presented. A defendant may reserve an opening statement until after the conclusion of the plaintiff’s case. An opening statement outlines for the jury the evidence that each party intends to present and informs the jury of the party’s theory of the case.
A law which sets the maximum period in which one can wait before filing a lawsuit, depending on the type of case or claim. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is forever barred.
Sometimes statute of limitations run from the date of injury, no matter when the injury was said to be discovered by the victim.
A law which sets an arbitrary time limit that a party can bring suit against another party who is liable for negligence expires.
Strict liability refers to holding an individual who is legally responsibility for another’s injury liable for those injuries.
A summons issued under authority of a court to compel the appearance of a witness at a judicial proceeding, the disobedience of which may be punishable as contempt of court.
Subpoena Duces Tecum – Meaning, “under penalty you shall take it with you”. A type of subpoena issued by a court at the request of one of the parties to a suit requiring a witness to bring to court or to a deposition any relevant documents that are under the witness’ control.
Meaning, “under penalty you shall take it with you”. A type of subpoena issued by a court at the request of one of the parties to a suit requiring a witness to bring to court or to a deposition any relevant documents that are under the witness’ control.
A type of intervening cause which is so substantially responsible for the ultimate injury that it acts to cut off the liability of preceding actors regardless of whether their prior negligence was or was not a substantial factor in bringing about the injury complained of.
ly with “intervening” in which case it does not have this meaning. Properly, the term “superseding” is limited to an intervening cause which “by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bring about.”
Items that are concrete; products that can be physically seen or touched. In a personal injury claim, an individual who has been harmed by another person’s negligence may seek compensation for damages to such tangible property as their car, motorcycle or bicycle.
Payments you get if you lose wages because your injury prevents you from doing your usual job while recovering
Payments you get if you can do some work while recovering, but you earn less than before the injury.
Payments you get if you cannot work at all while recovering from an accident or injury.
A wrong; a private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or other private relationship. The essential elements of a tort are the existence of a legal duty owed by a defendant to a plaintiff, breach of that duty, and a causal relation between defendant’s conduct and the resulting damage to plaintiff.
In personal injury, a tort claim is a claim made against another driver or vehicle owner for negligence. This claim is made by the plaintiff, the individual or party that was injured as a result of the automobile accident.
As used in insurance contracts, a person’s inability to perform the material duties of some occupation for which he or she is qualified by experience or training. Absolute physical disability or helplessness is not necessary for “total disability” to exist.
A monetary benefit given to cover your out-of-pocket expenses for mileage, parking and toll fees related to an injury or accident claim. This will usually come to you as a reimbursement.
The doctor having overall responsibility for treatment of your work injury or illness. This physician writes medical reports that may affect the amount of your settlement benefits (based off of his or her observations of your injuries).
A contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated, on the theory that he/she was misled, lacked information or signed under duress or misunderstanding.
The amount of pressure which one uses to force someone to execute a will leaving assets in a particular way, to make a direct gift while alive or to sign a contract. The key element is that the influence was so great that the testator (will writer), donor (gift giver) or party to the contract had lost the ability to exercise his/her judgment and could not refuse to give in to the pressure. Evidence of such dominance of another’s mind may result in invalidation of the will, gift or contract by a court if the will, gift or contract is challenged.
A type of insurance coverage that can be purchased separately from the common personal injury protection (PIP) or bodily injury liability insurance coverage. Underinsured motorist insurance will help provide a victim of a motor vehicle accident more payment of medical bills if the at-fault party’s liability insurance does not cover the remainder of the bills. This takes effect after the injured party’s PIP and excess medical payment coverage is exhausted and after the at-fault party’s liability coverage is exhausted (used up entirely).
To learn more about how your insurance coverage works when in an accident, please visit the Who Pays My Medical Bills and Lost Wages page.
A fund, run by the Department of Workers’ Compensation, through which an injured worker’s benefits can be paid if his or her employer is illegally uninsured for workers’ compensation.
A type of insurance coverage that can be purchased separately from the common personal injury protection (PIP) or bodily injury liability insurance coverage. When a motor vehicle accident occurs, if the at-fault party did not maintain liability insurance at the time of the crash, this coverage is collected from the injured party’s insurance company after their PIP and excess medical payment coverage have been exhausted (used up entirely). To learn more about how your insurance coverage works when in an accident, please visit the Who Pays My Medical Bills and Lost Wages page.
The process used by insurance companies to decide whether to authorize and pay for treatment recommended by your treating physician or another doctor.
A type of workers’ compensation benefit that includes job placement counseling to help you find another job and potential retraining and a vocational rehabilitation maintenance allowance. If you were injured before 2004 and are permanently unable to do your usual job, and your employer does not offer other work, you qualify for this benefit.
Payments given to individuals hurt on the job to help them with living expenses while participating in vocational rehabilitation.
If you have a permanent disability, this is the person or entity that helps you develop a return to work strategy. They evaluate you, provide counseling and help you get ready to work. A VRTWC must have at least an undergraduate degree in any field and three or more years of full time experience.
Meaning, “to speak the truth”. A vior dire examination usually refers to the examination by the court or by the attorneys of prospective jurors, to determine their qualification for jury service, to determine if cause exists for challenge (i.e., to excuse) particular jurors, and to provide information about the jurors so that the parties can exercise their statutory preemptory challenges (objections to particular jurors without the need for any cause to be stated). A voir dire examination during the trial refers to a hearing out of the presence and hearing of the jury by the court upon some issue of fact or law that requires an initial determination by the court or upon which the court must rule as a matter of law alone.
A product defect resulting from the product not having sufficient instructions or warnings about its use, making users susceptible to injury if used improperly. A person who has been injured as a result of a warning defect may have suitable grounds to file a product liability claim and seek help from a personal injury attorney.
A board that consists of 24 local offices throughout the state where disagreements over workers’ compensation benefits are initially heard by workers’ compensation judges.
A doctor’s description of the work you can and cannot do. Work restrictions help protect you from further injury.
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