Attorneys, insurance companies, and court staff use a lot of “legal speak” that sounds important and confusing. And if you aren’t well-versed in “legalese” it can be hard to navigate and understand even the most basic of documents. Here are the most common terms you can expect to see during a personal injury litigation, of any type:
- Litigation – literally, the act of filing and participating in a lawsuit. Litigation begins with the formal filing of a claim and continues through settlement – either out of court or after a jury verdict has been reached
- Negligence – the failure to exercise reasonable care or acting in a way that an ordinary, prudent person would not. In personal injury, negligence must typically meet four main criteria:
- The defendant must owe or have owed a duty of care to the injured party (the plaintiff)A breach of that duty occurredThe breach “proximately caused” that damageThe injured party (plaintiff) suffered damages – injury, property damage, or other calculable damages
- Gross negligence – a significant departure from the standard of care or reasonable care an otherwise ordinary, prudent person would exercise; willful, wanton, or reckless behavior that leads to significant injury and/or death
- Punitive damages – otherwise known as punishment damages; these are extra damages added to compensation calculations once gross negligence has been established. The hope is that this financial “punishment” will prevent future occurrences from the same defendant
- Proximate cause – a sufficient link between a defendant’s actions and the harm that was caused to occur; this means an act must not only be an actual cause (the harm wouldn’t have happened “but for” the defendant’s negligent or grossly negligent action) but also that the harm was a direct result of the action, not a remote possibility
- Mechanism of harm – the way damage was caused to the body; in a motor vehicle case this will be noted in the medical records as how a person was injured due to the forces of the collision; for a medical malpractice claim, it might be the deviation from normal standard of care
- Negligence – the failure to exercise reasonable care or acting in a way that an ordinary, prudent person would not. In personal injury, negligence must typically meet four main criteria:
- Recovery/compensation – the “value” of a case; the financial restitution that a plaintiff can receive if their personal injury claim results in settlement or favorable jury verdict
- Policy Limits – simply, the highest amount of available recovery as outlined in an insurance policy. For instance, most people choose the lowest available coverage on their insurance policy in Texas; this sets the policy limits at $30,000/$60,000 – $30,000 for an individual and up to $60,000 for total occupants (the $60,000 will be divided amongst all claimants in the suitLiens – a formal document usually filed by hospitals or other medical treatment facilities or certain government entities; this is a right to keep document detailing the facility’s or entity’s right to reclaim certain monies owed that were paid on behalf of the plaintiff
- Typically filed most by: hospitals, Child Support, Medicare, Medicaid, and potentially a plaintiff’s own medical insurance or other insurance provider, if said provider paid any monies to the plaintiff for medical treatment or replacement of property
- Uninsured motorist (UM) – a driver without liability insurance of any kind
- Underinsured motorist (UIM) – a driver with too little liability insurance, which would not cover the total cost of the claim against them
- Both of these types of insurance are something you, as the claimant/plaintiff, should have on your personal insurance coverage
- Economic loss – purely financial loss, such as lost profits, repairs, out of pocket expenses; these losses are not accompanied by medical bills or other expenses
- Non-economic loss – subjective loss, such as pain and suffering, mental or emotional pain and anguish, loss of consortium (loss of companionship of a spouse or partner), and disfigurement; intangible and difficult to quantify
- Contingency fee – how most personal injury attorneys are paid; unless there is a settlement, all fees and expenses are absorbed by the law firm. This amount will be listed in the contract you sign when you choose representation; in Texas, this is typically 33.3% of total settlement before suit is filed and 40% of total settlement after suit is filed
- Typically this will be calculated this way: settlement occurs; funds are sent to your attorney; outstanding medical expenses and liens will be accounted for and paid; expenses and fees will be calculated and removed; client receives the remaining funds after the firm has ensure no further outstanding bills or liens
- Policy Limits – simply, the highest amount of available recovery as outlined in an insurance policy. For instance, most people choose the lowest available coverage on their insurance policy in Texas; this sets the policy limits at $30,000/$60,000 – $30,000 for an individual and up to $60,000 for total occupants (the $60,000 will be divided amongst all claimants in the suitLiens – a formal document usually filed by hospitals or other medical treatment facilities or certain government entities; this is a right to keep document detailing the facility’s or entity’s right to reclaim certain monies owed that were paid on behalf of the plaintiff
- Medical malpractice – negligence by a health care provider or facility that deviates from the established standard of care for such providers and facilities that results in harm or death to a patient
- This can include misdiagnosis, surgical errors, improper medication, or lack of care to noted problem areas during care for another, known issue
- Four elements must be established before a medical malpractice claim can be brought – a duty of care; breach of that duty; causation linking the breach to the injury; and damages suffered
- These elements must be noted in the medical records by a contracted, independent medical examiner – Texas requires that medical malpractice claims must include a “positive” report from a retained, practicing expert in the area of medicine being reviewed (a positive report is one that notes all four elements)
- Discovery – the investigative phase of litigation or the documents that are produced during investigation
- Private investigator – an independent contractor/expert that might be hired to give an opinion on aspects of the case or to find individuals. Private investigators are often security experts or former police officers skilled in tracking down information through various methods
- Recorded statement – a statement taken during the course of an investigation. Typically requested or taken by insurance companies during the investigation or review of motor vehicle crashes, this can also be asked of any witness to any personal injury. Recorded statements can be taken in person, over the phone, or virtually through services such as Zoom
- Certified crash report – an official copy of the crash report produced by the responding officer to the scene of a motor vehicle crash. A certified copy is the final, official report filed with the state and signed and sealed by the Police Chief of the county or city in which it is filed
- Failure to yield – simply, the failure of the offending party to “yield” or give ground to the damaged party. The responding officer may note this for either vehicle involved in the crash; unless the officer witnessed the crash directly, they have only the stories of the persons involved to go by. This can help establish liability in a case but is in no way a definitive reason for a negligence claim
- At fault – the driver or bad actor who caused the wreck
- Contributing factor – a variety of factors that influenced the events of a car wreck. This can be weather (rain, snow, sleet); road conditions (foggy, wet, icy); construction; or condition of traffic around the wreck in question
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