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What Do These Personal Injury Legal Terms Mean?

Learning key terms from personal injury law will deepen your understanding of your caseIf you’ve suffered a personal injury and you are pursuing a legal claim for damages then you will likely hear many legal terms during the course of your case. It is important to understand what these terms mean so that you can make informed decisions about protecting your legal rights and recovery.

Some of the terms that you might hear include:

  • Affidavit: A written document where the person who signs the document swears under oath that everything contained in the document is true.
  • Answer: The formal pleading that the defendant files in court in response to the plaintiff’s complaint. In the answer, the defendant may admit or deny each of the plaintiff’s allegations and it may include the defenses that the defendant will be raising. As is the case with all court pleadings, the answer must comply with the court’s specific requirements.
  • Class action: A lawsuit filed on behalf of a group of people who have suffered similar injuries because of similar circumstances against a common defendant. For example, a group of people who have suffered similar medical side effects because of a defective medical product or medication may be able to join a class action and share the costs of litigation against a large pharmaceutical manufacturer.
  • Comparative negligence: This applies to accident cases when more than one party was at fault for causing the accident. A percentage of fault is applied to each at fault party. A party that was less than 51% responsible for the accident may recover damages, but damages may be reduced by the percentage of fault attributed to that party.
  • Complaint: The formal pleading filed by the plaintiff to begin a personal injury lawsuit. The complaint sets forth the factual and legal basis for the lawsuit and, as with all court pleadings, it must comply with the court’s specific requirements.
  • Contingency fee: A way of paying attorney’s fees. In a contingency fee agreement, the party being represented by a lawyer agrees to pay the lawyer a certain percentage of any settlement or court verdict. If there is no settlement or favorable court verdict, then the lawyer does not get paid for his services.
  • Counterclaim: A legal claim raised by a defendant against a plaintiff. Counterclaims may be included in the defendant’s answer to the plaintiff’s complaint in some states. In other states, the counterclaim must be filed separately and may be referred to as a cross claim.
  • Damages: The amount of compensation that a plaintiff may recover in a personal injury lawsuit or settlement. Damages may include—but may not be limited to—compensation for past, current and future medical bills, lost income, out-of-pocket costs, pain, and suffering that resulted from the personal injury.
  • Defendant: The party being sued. The defendant is named in the complaint. In some cases the defendant may also be known as the respondent.
  • Demand letter: In a personal injury case, a demand letter is typically sent from the person who was injured (or his attorney) to an insurance company. It is often the starting point of formal negotiations with the insurance company. A demand letter should include why the insured is legally responsible for paying damages and documentation of those damages.
  • Deposition: Part of the pre-trial discovery process. Depositions are oral testimony from a witness or party to the lawsuit that occurs under oath before a court reporter but outside of the courtroom. The person being deposed answers questions from one or more attorneys. The deposition may be used to further the investigation and may be used in trial.
  • Discovery: The investigation that takes place by a party to the lawsuit, or the party’s lawyer, before trial. Discovery may include—but may not be limited to—depositions, interrogatories, and requests for production of documents. The discovery process allows all parties to the personal injury case to learn as much as possible about the case before going to trial. That way they can go to trial fully informed or settle for a fair amount prior to trial.
  • Docket: The court calendar.
  • Expert witness: A specialist who may be allowed to provide an opinion at trial. Generally, witnesses cannot testify about their opinions; however, expert witnesses may testify about their opinions. An expert witness in a personal injury case could include an accident reconstructionist, a doctor, a nurse, or another professional.
  • Interrogatories: Written questions that are sent from one party in a lawsuit to another party in a lawsuit. These questions are part of the discovery process and must be answered under oath or penalty of perjury. Typically, there is a set amount of time to answer interrogatories.
  • Medical malpractice: When a doctor, hospital or other medical care provider is negligent and that negligence results in patient harm. Some examples of medical malpractice include failure to diagnose, failure to provide treatment, and surgical errors. Not every medical mistake is medical malpractice, however. The elements of negligence must be met to establish medical malpractice.
  • Motion: A formal request made by a party to a lawsuit to a judge seeking an order or judgment. There are many different kinds of motions that may be filed. Some examples include motions to dismiss, motions for summary judgment, and motions in limine.
  • Negligence: Four elements must be satisfied in order for legal negligence to have occurred. This includes: that the person or party who committed the negligence owed the person who was hurt a duty of care; that the person who committed the negligence breached the duty of care; that the breach of the duty of care caused the injury; and that the person who was hurt has sustained damages for which legal relief may be granted.
  • Negligent security: A legal cause of action that may occur when a property owner fails to provide reasonable security to someone to whom the property owner owed a duty of care and when that person is injured as a result of the property owner’s breach of the duty of care.
  • Nursing home abuse: A legal cause of action that may occur when a nursing home or nursing home staff, physically, financially, or emotionally hurt a nursing home resident purposefully or neglectfully.
  • Non-economic damages: Injuries that are difficult to calculate in dollar figures. Non-economic damages include things such as physical pain and emotional suffering. Injured parties may recover for non-economic damages in personal injury lawsuits, but they must establish the value of those damages.
  • Plaintiff: The party bringing the lawsuit and seeking damages from the named defendant(s) because of a legal cause of action.
  • Service of process: The delivery of legal documents.
  • Settlement: A binding agreement to end the lawsuit prior to trial. Damages are typically agreed upon in a written document and that document typically precludes further legal action and future damages.
  • Standing: The legal authority to bring a lawsuit. Legally competent adults who have been injured due to someone else’s negligence have standing to bring a lawsuit. The parent or legal guardian of minors and mentally incompetent adults may need to bring lawsuits on behalf of children or mentally incompetent adults who have been hurt. Additionally, the estate may have standing to bring a wrongful death lawsuit on behalf of someone who died because of another party’s negligence.
  • Statute of limitations: The amount of time that you have to bring a lawsuit. This differs based on the cause of action or type of lawsuit that you are bringing, and the state in which you bringing the claim.
  • Subpoena: An order of the court for a witness or party to the lawsuit to appear somewhere to testify or produce evidence.
  • Tort: A wrongful act that results in injury and allows the injured party to bring a lawsuit. Torts include both negligent and intentional causes of action.
  • Verdict: The decision of the jury which is accepted by the trial judge.
  • Wrongful death: A negligence case in which the injury suffered is death.

If you have any question about how these terms—or any other terms—apply to your specific case, then you should not hesitate to ask your attorney for clarification.

Jason F. Abraham
Managing Partner, Hupy and Abraham