COMMON LEGAL TERMS YOU MIGHT NOT RECOGNIZE
Adjuster - This is a person hired by an insurance company who investigates claims, reviews statements and medical records and ultimately agrees to any settlement with a claimant. An adjuster is often an employee of the insurance company, although there are also private insurance adjusters who are contracted by insurance companies to handle claims.
Affidavit - This is the written equivalent of sworn testimony. An affidavit is a document containing information that is then signed by someone who swears to the accuracy of the information typically by signing under oath before a notary public or equivalent.
Anti-Stacking - This is the part of an insurance policy that prevents you from collecting from multiple coverages just because you have several cars. In other words, you might have three cars, each with $100,000 in coverage, but you cannot “stack” those coverages to get $300,000 in coverage when there is an accident, you are limited to just the $100,000. Different states have different anti-stacking laws.
Arbitration - Arbitration is a process whereby two or more parties to a dispute present the facts and circumstances of a case to an arbitrator who makes a decision in the matter for the parties. In essence, the arbitrator acts as sort of a judge. Sometimes arbitration decisions are binding, meaning that the parties cannot challenge the decision of the arbitrator, and sometimes they are non-binding, meaning that one or more of the parties may be able to challenge the decision or possibly even disregard it altogether.
Attorney in Fact - When someone signs a power of attorney, the person to whom they give powers to act on their behalf is called an attorney in fact. An attorney in fact, despite the name, does not have to be a lawyer.
Bad Faith - This is an act committed by an insurance company or adjuster which is considered improper and designed to harass, intimidate, delay, or push a claimant into a settlement for less than their case is clearly worth. In a some states, a claimant can sue an insurance company for bad faith and recover what are often significant damages, even punitive damages. In other states, individuals cannot sue under bad faith laws. Instead, only the state’s insurance commissioner can punish the company or adjuster for acts of bad faith.
Bodily Injury Coverage - This is the insurance coverage in an automobile insurance policy that pays others for the negligence of the policyholder or others insured under the policy. In other words, if I wreck into you and it is my fault, my bodily injury coverage pays you for the injuries I caused to you. My property damage coverage would pay for the damage to your car. We often refer to the combination of bodily injury coverage and property liability coverage as “general liability coverage.”
Burden of Proof - Essentially, this is the level of convincing that one has to do in order to win their case. In other words, in order to win a case, a certain amount of evidence is required. Common levels, or burdens, of proof include prima facie case, preponderance of the evidence, reasonable certainty, clear and convincing evidence, and beyond a reasonable doubt.
Claimant - As the name suggests, this is simply someone who makes a claim to an insurance company to collect some type of insurance coverage.
Class Action - This is a case brought on behalf of a group of plaintiffs that is so large that it would be impractical to list them all individually in the case. In that situation, a few plaintiffs, called class representatives, are listed in the case on behalf of all those persons that have been wronged in a similar manner. For example, a class action might be brought by a few class representatives on behalf of themselves and all those people who purchased defective widgets and were injured by the defect.
Clear and Convincing Evidence - This is one of the burdens of proof. The meaning of clear and convincing evidence is difficult to explain. Basically, clear and convincing evidence is a level of proof greater than a preponderance of the evidence but less than beyond a reasonable doubt.
Collateral Source - A collateral source is a source of payment of bills, expenses, wages, etc. that an insured person receives from any source other than his or her own funds or those of another party to the accident. For example, if a plaintiff’s health insurance pays his or her medical bills, that health insurance is a collateral source. Similarly, if Social Security pays a plaintiff lost wages due to disability from an accident, then Social Security is a collateral source.
Common law - The system of laws based on written court decisions and customs as opposed to a civil law system which is based on codes.
Comparative Negligence - As contrasted with contributory negligence, comparative negligence is the rule that if you are in an accident that is primarily the fault of others, but you are partly to blame, your verdict should be reduced by the amount of your own negligence. For example, if someone rams into the rear of your car as you turn, and you do not have your turn signal on, a jury might find the person who hit you 80% at fault for not stopping and you 20% at fault for not using your turn signal (assuming your were supposed to be using your turn signal at the time). In that instance, whatever the jury gives you will be reduced by 20%, the amount of your own fault. Different states have varying rules regarding comparative negligence. In some states, if your fault for the accident is more than 49% (or 50% or 51% depending on the state), you cannot recover anything. In a “pure comparative” negligence state, you recover even if you are 90% at fault, there is simply 90% of your verdict cut away. So you only get 10% of the verdict.
Complaint - The document that is filed with the court that commences a lawsuit and explains to the defendant(s) what the case is about and what damages are claimed.
Consortium (Loss Of) - Loss of consortium are those losses suffered by family members of a personal injury victim. The loss of consortium suffered by a spouse typically includes the loss of help around the house, loss of a social companion, and loss of a sexual partner. The loss of consortium suffered by the children of the victim includes loss of household services, parental affections and recreation.
Contributory Negligence - This is a dreadful, archaic, outdated, and ridiculous rule that is still the law in a handful of states including Alabama, North Carolina, Virginia, Maryland and the District of Columbia. Under this rule, as contrasted with the comparative negligence rule, if you are found to be even one percent at fault in an accident, you cannot recover anything. You get zero. Clearly, this is very harsh and unfair.
Court Reporter - The court reporter is the person in the courtroom who makes a written record of everything that is said during official proceedings in the courtroom. Court reporters are sometimes referred to as stenographers. Court reporters also record testimony at depositions.
Cross Examination - When a witness is called to testify, the first attorney to ask them questions performs a “direct examination.” Other attorneys in the case then have the opportunity to ask questions related to that testimony. This is called cross examination.
Declarations Page - The document provided to you by your insurance company, usually making up part of your bill, which outlines what insurance coverages you have purchased. Declarations pages usually contain your name, a description of each vehicle covered, the types of coverages that apply to each vehicle covered, the limits of each coverage, amounts of deductibles, and perhaps a list of endorsements and discounts or surcharges applied. In addition, they usually detail the price, or premium as it is called with regard to insurance policies, that each coverage costs.
Defendant - Much like a defendant in a criminal case is being prosecuted by the state, a defendant in a civil action is the person or company being sued by someone, who is called the plaintiff.
Defense Lawyer - Here is one of the misnomers in law. Most people think of “defense lawyers” as representing criminals. However, among lawyers, the term “defense lawyer” usually refers to someone who defends defendants in civil cases, often on behalf of insurance companies. Criminal defense lawyers are usually specifically called “criminal defense lawyers” instead of just “defense lawyers.”
Demonstrative Evidence - Demonstrative evidence is non-spoken evidence that is shown to a judge or jury to help aid in explanation of something. For example, to aid the testimony of an orthopedic doctor in explaining the manner in which the plaintiff’s arm was broken, the doctor might use a model of an arm bone during his or her testimony. The model of an arm bone would be an example of demonstrative evidence.
Deposition - The testimony of a witness (party or non-party to the lawsuit), taken before trial and recorded by a court reporter (also sometimes videotaped) and typically reduced to transcript form. The deposition is used mainly to find out what a witness knows and is likely to testify to if called as a witness in court. In some situations the transcript, or parts of the transcript, will be read to the jury at trial (or the videotape played) either to impeach a witness or if a witness cannot come to court to testify in person.
Deposition Duces Tecum - A deposition in which the witness is asked to bring certain documents to the deposition to be viewed and/or copied.
Diminution in Value - When a car is damaged in an accident, but not totaled, its ultimate value for trade in or sale is reduced even if it is fully repaired. This reduction in the value of a previously damaged vehicle is called diminution in value of the vehicle.
Direct Examination - The questions asked of a witness by the person who calls the witness to the stand to testify. Questioning subsequently done by other parties’ lawyers is called cross examination.
Discovery - The process whereby each party to a lawsuit finds out information and receives copies of documents and records related to a lawsuit from the other parties. The most common discovery tools include interrogatories, requests for production of documents, requests for admissions, and depositions.
Discovery Rule - An exception to statutes of limitations that sometimes allows someone to file a lawsuit beyond the statute of limitations period if they had no reasonable way of discovering that they had the right to bring the lawsuit previously.
Economic Damages - Economic damages, also sometimes called “special damages” or “specials” are damages that can be easily quantified by a monetary figure, such as medical bills, lost wages, property damage, and the like. This is contrasted with non-economic damages which cannot easily be quantified, such as pain and suffering and emotional distress.
Excess Coverage - Also commonly called “secondary coverage” is insurance that does not apply until some other coverage, often called “primary coverage” has been used up. In other words, in a state where the insurance follows the car, if you are driving my car and have an accident that is your fault, my insurance will be primary and pay for the injuries you caused. However, if my policy is not big enough to pay all the damages, your policy (if you have one) might then step in and pay the “excess” after mine has run out. My insurance is “primary”, and yours is “secondary” or “excess.”
Exhibit - This is any type of physical evidence used in a trial and shown to the jury. It might include things such as medical records and invoices, photographs of the damaged vehicles, photographs of injuries, or possibly even the car itself. If an exhibit is “admitted into evidence” then the jury may usually take it to the jury room with them to use during deliberations.
Expert Witness - As contrasted with fact witnesses, witnesses who are certified by the judge as experts on a given subject may give opinions to the jury regarding technical issues that are within their area of expertise.
Fact Witness - As contrasted with expert witnesses, fact witnesses testify only about things that they have experienced. Opinions by fact witnesses are limited only to issues that any person would be qualified to give an opinion on, such as whether another person appeared to be happy or appeared to be drunk.
First Party Insurance Benefits - These are insurance benefits paid to an injured person from an insurance policy that was purchased by the injured person, or under which the injured person is otherwise an insured, as opposed to the tortfeasor’s insurance. The tortfeasor’s insurance would pay “third party insurance benefits.”
Functional Capacity Evaluation - This is a test, usually performed by a physical therapist or orthopedic doctor, to determine to what extent injuries have limited your ability to move your arms and legs, lift heavy objects, and function without pain. This is often used to determine a percentage amount that a person has become disabled because of injuries.
Friendly Lawsuit - This is a lawsuit between parties who are not adversaries in reality. For example, if a wife is injured by the negligence of her husband in an auto accident, she might sue him to get insurance benefits even though the outcome ultimately may benefit both of them. Or if a passenger is injured in an accident that was the fault of the driver, who is a friend, this might result in a friendly lawsuit.
Gap Insurance - If a vehicle is declared a total loss, and the amount owed on the loan for the vehicle is greater than the value of the car, gap insurance pays the difference in order to pay off the loan.
General Liability Coverage - The insurance coverage that pays for liability incurred by the insured. This coverage includes liability for both bodily injury and property damage caused by the negligence of the insured.
Guardian Ad Litem - A person appointed by a judge to represent the interests of another person. For example, if a child has a lawsuit against a parent for negligence in a car accident, the judge might appoint a guardian ad litem for the child to represent the interests of the child and make sure the child’s interests are treated fairly.
Hearsay - According to the Federal Rules of Evidence(801(c)), hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Despite what many people think, hearsay is sometimes allowed in court.
Hostile Witness - Sometimes a witness is asked a question over and over and never actually answers the question directly. If this happens repeatedly, the judge may declare the witness as a hostile witness, which gives the attorney the right to ask leading, yes or no questions, even on direct examination, and the witness is ordered by the judge to answer the yes or no questions directly.
Hung Jury - If a jury cannot reach an agreement on a verdict the judge may eventually declare the jury to be hung. If this happens, there is a mistrial and the case must be tried again to a different jury.
Immunities - Sometimes the law provides that certain people or entities may not be sued by certain other people or entities. In that case, the person who cannot be sued is said to have immunity from the lawsuit. For example, “sovereign immunity” applies in some states where it is not permissible to sue the state. In many states, employers cannot be sued by their employees for injuries suffered on the job because those injuries are covered by the state’s workers compensation system. In that case, the employer is “immune” from lawsuits by employees for injuries sustained on the job.
Impeachment - The discrediting of a witness by making it appear that the witness’s testimony is not reliable. Common methods of impeachment include showing that the witness made a statement in the past that is different from what the witness is saying at trial, so as to make it appear either that the witness is lying or has a bad memory, or in some instances, as allowed by law, pointing out that the witness has been convicted of a certain crime or crimes and therefore is not trustworthy.
Independent Medical Examination (IME) - Also sometimes called a Defense Medical Examination (DME), this is a medical examination performed by a doctor hired by the insurance company or attorney for a tortfeasor/defendant. This is often done to make the insurance company or attorney feel more assured that the claimant’s doctors are not making up or exaggerating injuries because they have a close relationship to the claimant and want to see them get lots of money in their claim. Unfortunately, it commonly has the opposite effect in that the doctors chosen by insurance companies are often known to be very cynical and make findings that tend to be in favor of the insurance company and against the injured claimant.
Intentional Tort - This is a specific type of tort which is committed not accidentally, but on purpose. Often intentional torts are also crimes, such as assault and battery and theft, and also include the torts of fraud and defamation, among others.
Judgment - This generally refers to an order of a judge saying that one person has to pay another person money (or does not have to, depending on the verdict). This is what results from a trial. For example, if you have a jury trial and the jury gives you one thousand dollars against John Smith, the judge would issue you a judgment against John Smith in the amount of one thousand dollars. You can often then have John Smith’s wages garnished (withheld) or property sold or record the Judgment as a lien on John Smith’s property or property that he may get in the future until the judgment is paid off.
Jurisdiction - This term refers to the geographical area and/or subject matter covered by a court. In other words, jurisdiction refers to what types of cases can be filed in the court and also where the events giving rise to the case must have occurred in order to be permissible to file in that court. The breadth of the term can vary. In other words, one might refer to the “jurisdiction” of a court, or on a broader scale refer to the “jurisdiction” of all courts within a state or the even broader scale of the “jurisdiction” of the United States legal system.
Jurisprudence - Sometimes this term is used as a philosophical term and sometimes it is used as a technical legal term. As a philosophical term, jurisprudence refers to the reasoning, purpose, or moral basis of laws and systems of law. As a technical term, jurisprudence refers to a body of law. For example, one might say that the jurisprudence of New York provides that it is negligent to talk on a cell phone without a headset while driving a car.
Jury Instructions - The instructions given by the judge to the jury at the end of a trial which explain the law to the jury and indicate how the facts, as determined by the jury, should be applied to the law in order to reach a verdict.
Jury Nullification - Sometimes juries do not appear to follow the law or the overwhelming evidence and instead make their decisions based on emotional or other reasons. This failure to decide the case based on the law and the facts is called jury nullification.
Leading Questions - Leading questions are questions which suggest an answer. For example, “you ran the stop sign, didn’t you?” is a leading question, whereas “did you run the stop sign?” is not a leading question. In the first example, the answer, yes, is suggested. In the second, the question is asked without suggesting the answer to the witness.
Learned Treatise - A book, or treatise, which provides information relevant to a case and is generally recognized as being a trusted source of information. For example, the Oxford Dictionary may be considered a learned treatise for the purpose of defining the meaning of a word.
Letter of Protection - A letter given by an injured person’s attorney to the injured person’s doctor which promises the doctor that if any money is made in the case, that the attorney will issue payment out of the money received directly to the doctor for his or her bills before releasing any money to the injured person.
Life Care Plan - This is a report outlining the moneys that will have to be spent to care for a person throughout the remainder of their life due to injuries which are permanent or long term in nature.
Lis Pendens - Sometimes a plaintiff has reason to believe that a defendant being sued might try to sell his or her real property so that if the plaintiff wins, the plaintiff cannot obtain a lien against the real property. If there is a real threat that the defendant might do this, some states allow plaintiffs to file what is called a lis pendens. This is a notice attached to the chain of title of the defendant’s real property that puts potential purchasers on notice that there is a lawsuit pending. If a lis pendens is properly filed, and someone purchases the property anyway, the plaintiff still might be able to have the property sold to pay the verdict, even though someone other than the defendant now owns it.
Litigation - The steps and processes involved with a lawsuit is called litigation.
Loss of Earning Capacity - The quantified loss of a person’s ability to earn wages because of an injury. For example, a surgeon who normally does 50% examinations and 50% surgeries and has a hand injury might have a 50% or more loss of capacity to earn wages and therefore a 50% loss of earning capacity. Someone who is completely paralyzed from an injury would of course have a 100% loss of earning capacity and therefore be “totally disabled.”
Maximum Degree of Medical Improvement - This does not always mean that a claimant is fully healed. Rather, it refers to the point when an injured person’s doctor says that they have gotten as better as they are going to get and this is how they will be for the rest of their life.
Mediation- A meeting between parties to a lawsuit and a mediator whereby the mediator, unlike an arbitrator, makes no decision in the case but simply attempts to help the parties to reach a settlement agreement.
Med-Pay/PIP - This is a type of no-fault insurance that pays your medical bills, related to an accident (and sometimes lost wages). It is first party insurance, so it comes from your own policy, or if you are in someone else’s car, the owner’s policy. It is not paid by the tortfeasor. In some states, if you collect your medical bills from the tortfeasor, you often have to pay back some or all of the med-pay that was paid on your behalf. The theory is that if you got to keep both, you would be paid twice. In some states, you never have to pay back med-pay, but usually in those states, you cannot collect the cost of a medical bill from both med-pay and the tortfeasor. In other words, in those states, the tortfeasor gets a credit for the med-pay paid on your behalf.
Mistrial - A mistrial occurs when something occurs that prevents the trial from continuing any further, and the trial must therefore be restarted again at a different time with a different jury. Sometimes this occurs when one of the attorneys or parties becomes injured or very ill during a trial so that it cannot continue at that time. It can also occur when something happens to taint the jury. For example, an attorney might say something to the jury which the judge had forbidden or is otherwise improper. If having heard this information would prevent the jury from making a fair decision, a mistrial may be declared by the judge.
Motion - Any request by an attorney for the judge to take some action on a matter is called a motion. For example, an attorney might make a motion asking the judge to prevent another attorney from showing a certain document to the jury. The judge then makes a decision about the motion and that decision is called a “ruling.” A motion can be made in writing or orally in court.
Motions In Limine - These are motions filed shortly before a trial begins and typically involve issues related to the trial itself such as motions to prevent certain documents from being shown to the jury or to prevent a witness from saying something not permitted by the court rules.
Negligence - Basically, doing something careless. More technically, doing an act in breach of a duty imposed upon you by law with regard to your actions toward others. The most common duty is that everyone must act in a reasonably prudent manner toward others.
No-fault - Most personal injury lawsuits require a showing that another person was at fault for the injury - that they were in some manner negligent. In a “no fault” situation, liability is imposed, so to speak, without regard to who is at fault or whether anyone in particular is at fault.
Non-Economic Damages - Sometimes also referred to as “general damages,” and in contrast to economic damages, non-economic damages are those damages for which a dollar amount cannot specifically be assigned. For example, unlike medical bills, a specific dollar amount cannot be assigned to pain and suffering, embarrassment, annoyance, and the like. It is usually up to the claimant to decide how much this is worth to them in trying to settle a claim, or up to the jury if the case goes to trial.
Notarize - The act of placing a signature and stamp on a document by a notary public indicating that the document is authentic or that the signature of the person who signed it is authentic, that the person’s signature was made under oath as to the truth of the information in the document, or any of the other functions that a notary might perform under the notary law of the notary’s state.
Notary Public - A person permitted by law to notarize documents or perform other notarial acts as provide by state notary law.
Objection - When an attorney believes that another attorney is taking an action that is contrary to the law or rules of the court, the attorney makes an objection to the action of the other attorney. The judge must then decide whether the action is indeed improper. For example, an attorney might ask a witness what he or she heard someone else say. This may be a reason to make an objection that the question asks for information that is hearsay.
Order - Simply put, an order is a decision or instruction given by a judge. An order can be in either written or oral form. For example, a judge might order a defendant to produce documents or might order that certain evidence is inadmissible.
Parties - Anybody who is either a plaintiff or a defendant in a lawsuit is said to be a party to the lawsuit.
Peremptory Challenge - During jury selection, each party is typically allowed to reject a certain number of potential jurors for any reason other than discrimination on the basis of race, gender, etc. These rejections are called peremptory challenges.
Personal Injury - For purposes of this book, a personal injury is an injury caused by the improper actions or inactions of another person.
Personal Injury Protection - see Med-pay/PIP.
Plaintiff - The plaintiff is the person in a lawsuit who is making claims against the defendant(s).
Power of Attorney - A document that someone (who must be mentally competent at the time) signs which gives another person the legal authority to make decisions or take actions on their behalf. The document must clearly spell out what powers are given, such as writing checks, withdrawing money from bank accounts, selling property, bringing and settling lawsuits, etc. Sometimes powers of attorney are designed so that the powers begin immediately and last for a specified time or indefinitely until revoked. In contrast sometimes powers of attorney are designed so that the powers do not begin unless or until the person becomes mentally incompetent or otherwise unable to perform those acts themselves. A medical power of attorney is a similar document which gives another person the power to make medical decisions if the maker becomes unable to make those decisions himself or herself. The person given powers under a power of attorney is called an “attorney in fact” but does not have to be a lawyer, despite the title.
Preponderance of the Evidence - One of the levels or burdens of proof and the one that most typically applies to a personal injury case. A preponderance of the evidence is less than clear and convincing evidence or beyond a reasonable doubt levels and is a level of proof that falls in one person’s favor even ever so slightly over another’s favor. There are many ways to describe this level of proof. Sometimes it is said that a preponderance of the evidence is 50% plus anything. Sometimes a scale (the old fashioned kind with two hanging sides, like the scales of justice) is used for explanation wherein a preponderance of the evidence is anything, even as little as a feather, that tips the scales toward one side or another. So if the evidence is precisely equal, 50/50 for both sides, then neither side has a preponderance of the evidence. But if there is even the slightest tip toward one side, beyond 50%, then there is a preponderance of the evidence.
Prima Facie Case - In every lawsuit the plaintiff is required to prove certain things by a preponderance of the evidence. It is the jury’s job to decide if the plaintiff has proven those things by a preponderance of the evidence. For example, in order to win, a plaintiff might have to prove four things by a preponderance of the evidence. As such, the plaintiff must offer evidence of each of those four things for the jury to consider and determine if the preponderance is met. The offering of evidence of each of the four things that have to be proved is called making a prima facie case. If the plaintiff only puts on evidence to cover three of the four things that have to be proven, then the plaintiff has not made a prima facie case and the judge will dismiss the case without the jury even considering the evidence. Thus, by the end of the plaintiff’s case, he or she must offer evidence of each of those four things. It is the jury’s job to decide if the plaintiff has proven by a preponderance of the evidence that the evidence of his or her causes of action is true. A prima facie case just means that there is some evidence to cover each of the four required elements.
Privileges - Sometimes, information that someone is told by another person is privileged, meaning that the person cannot be forced to reveal that information. For example, information that people tell their attorneys which is not common knowledge may be privileged, as is medical information between a doctor and a patient. States vary as to what relationships and information is privileged. Some other privileges that apply in some states are clergy/penitent privilege, husband/wife privilege, and counselor/patient privilege.
Prothonotary - An old fashioned term, still used by some courts, to refer to the clerk of the court.
Proximate Cause - An event can have many causes, some more connected to it than others. However, in order for someone to be liable for causing injuries to another, their actions must be a proximate cause of the injuries. In other words, it has to be one of the primary causes of the injury, with more than just a minor connection.
Punitive Damages - These are damages assessed against a party to punish that party for committing particularly bad conduct and to hopefully deter them and others from committing similar behavior in the future.
Records Release - This is a document that you sign allowing someone else, your attorney for example, to get confidential records about you, such as medical records or employment records.
Release - Generally, an agreement not to take any further legal action against someone with regard to a particular legal matter. When parties settle, typically one party will pay another party and the party who is paid thereby agrees to not take any further legal action regarding the matter that was settled. This agreement is usually reduced to writing in the form of a “release.”
Reserve - The amount of money that an insurer estimates it will have to pay in a claim for expenses such as attorney fees, costs, payments for property damage and personal injury damages, and so on. This amount is often updated as new facts are learned or as injuries and prognosis become more clear. The significance to insurance companies of reserves is that insurance companies are entitled to invest money collected in the form of premiums in the stock market and other investments. However, the law requires that the insurance company keep an amount of money available on hand to pay claims. Reserves serve as the estimates of those claims and therefore the amount that the insurance company must have on hand and not stuck in investments.
Rebuttal Witness - Generally, the plaintiff presents all of his or her witnesses and then the defendant presents all of his or her witnesses, and then the case is over. However, on a limited basis, the plaintiff may call additional witnesses, called rebuttal witnesses, after the defendant has presented all of his or her witnesses, for the sole purpose of contradicting something that a defendant’s witness said but that was not covered during the plaintiff’s presentation of witnesses.
Remittitur - Sometimes a judge believes that the verdict of a jury is an unreasonably large amount of money. In that case, the judge could set aside the jury’s verdict and order a new trial, or the judge can reduce the amount of the verdict him or herself. If a reduction is made, it is called a remittitur.
Res Ipsa Loquitur - In some rare cases, it can be assumed that a defendant was negligent even though there is no specific proof or explanation as to how or why. In that case, the plaintiff does not have to prove that the defendant was negligent, as it is presumed. Res ipsa loquitur translates loosely from Latin as “the thing speaks for itself.” For example, suppose that an airplane crashes and the passengers are killed. Because, absent inclement weather, airplanes usually do not just fall out of the sky without either negligent maintenance, a negligent product defect, or negligent piloting, a family member bringing a wrongful death claim may ask the judge to presume that either the airline or the manufacturer was negligent, even though evidence of a specific act of negligence cannot be proved.
Rule of 7 - Traditionally, and in many states still today, there are presumptions based on age as to whether a child can be found negligent. Under the traditional rule, called the rule of 7, a child up to age 7 was conclusively presumed incapable of negligence, a child from 7 to 14 was presumed incapable of negligence, but could be found negligent if it was proved that he or she was more mature than the typical child of their age, and a child over 14 could be found negligent just like an adult.
Ruling - A generic term to refer to the decision of a judge on an issue or by the judge. For example, one might say that the judge made a ruling in favor of the plaintiff on a motion. Rulings are often presented as part of an “order.”
Sequester (Witness/Jury) - To sequester a witness means to disallow them from the courtroom during the testimony of other witnesses so that they do not hear other testimony before they testify. To sequester a jury means to forbid them from going home during the trial so that they do not get tainted by hearing news stories or discussing the case with others during the breaks from trial.
Service of Process - The process of serving certain documents upon people or businesses. For example, when someone files a lawsuit, the complaint and summons (process) must be served upon the defendant(s).
Single Limits Policy - An insurance policy that provides one maximum amount of money that it will potentially pay out, rather than being broken down into separate per person/per accident/property damage categories.
Subpoena - A court document commanding a person to be at a certain place at a certain time. Failing to abide by a subpoena can result in possible criminal punishment if the person does not have a good reason for failing to comply.
Subpoena Duces Tecum - A subpoena that commands a person to be at a certain place at a certain time and to bring certain specified documents with them as well.
Summons - In most states, the document that is served upon a defendant along with a complaint and commands the defendant to file an answer within a certain specified period of time.
Statute - A law, in written form, created by a legislative body rather than a court.
Statute of Limitations - The time limit within which a lawsuit must be filed. Limits vary by state and within each state vary by type of case. For example, the statute of limitations for an auto accident might be two years. That means that the victim must sue the at fault driver within two years or the right to sue is lost.
Statutory law - This is law that is created by the government, in the form of statutes that are published in book form. It is different from case law, or common law, that is found in opinions written by courts.
Structured Settlement - A settlement that is to be paid over time rather than immediately and all at once. For example, a structured settlement might be designed to pay the plaintiff $100,000 per year for twenty years.
Subrogation - Sometimes when an insurance company or other entity pays medical or other expenses on your behalf, they are entitled to get their money back if you collect money from the tortfeasor This is called a right of subrogation. It is simply the right of the payor to be paid back in certain circumstances.
Summary Judgment - Sometimes a judge determines that the plaintiff does not have enough evidence to continue in a lawsuit. It might be that the plaintiff is unable to present minimal evidence to cover each required element of the claim or that the judge rules that because the evidence is so sparse that no reasonable jury could possibly find in favor of the plaintiff. If that is the case, the judge may award summary judgment to the defendant, thereby ending the case.
Third Party Benefits - Benefits paid to a person by an insurance policy that the person receiving the benefits did not purchase himself or herself. If your insurance policy pays you, it is a first party benefit. If the defendant’s insurance policy pays you, it is a third party benefit.
Tort - A tort is a breach of the law by one person against another person in the form of a legally wrongful act which causes an injury.
Tortfeasor - A tortfeasor is simply someone who commits a tort. For example, if another car runs into your car, and it is the other driver’s fault, the other driver has committed a tort, and is therefore called a tortfeasor.
Trier of Fact - Whoever decides what the true facts are, or who is telling the truth. If a case is tried to a jury, the jury is the trier of fact. If a case is tried to a judge alone, the judge is the trier of fact.
Underinsured Motorist Coverage - This is a type of insurance that pays you, up to your limits of coverage or the amount of your claim or judgment, whichever is lower, whenever a tortfeasor does not have enough insurance to pay the entire value of your claim or judgment. For example, if you are in an accident and you have a claim with a settlement value of $100,000, and the tortfeasor only has $50,000 in coverage, your underinsured motorist coverage, if you have any, will pay the additional $50,000 or your limit if it is less than $50,000.
Uninsured Motorist Coverage - This type of insurance coverage is available to you when you are in an accident that is the fault of another person who does not have any insurance at all.
Verdict - The ultimate decision rendered by the jury, or if tried to the judge, by the judge.
Verdict Form - The document given to the jury to fill out during their deliberations. The verdict form contains questions which the jury answers and together comprise the jury’s verdict.
Verification - A document wherein someone swears under oath (notarized) that the information contained in another document is true to the best of his or her knowledge.
Voir Dire - When selecting a jury, the attorneys are often allowed to ask questions to potential jurors in order to determine if the jurors have biases that might tend to favor one side or another. This process of questioning potential jurors is called voir dire.