One of the most important responsibilities attorneys have is to educate clients about the law. Without being informed about the law, how it might be applied in your case and how the legal system operates, you can’t make wise decisions about how your case should proceed. We regularly communicate with our clients about their cases in a way that isn’t too technical or confusing.
In case some legal jargon slips through when you talk to your attorney, here’s a translation guide. All professions and industries have their own language and vocabulary, and that’s especially true of the legal profession. Here are some of the more important terms you may read or hear if you’re involved in a personal injury case.
Plaintiff – The person or people filing the lawsuit. This can be the injured party, parents on behalf of an injured child, a guardian filing for someone so injured they’re not competent to make their own decisions, or immediate family members of a person killed by the injuries caused in the accident.
Defendant – The person or party being sued who may be held legally and financially responsible for the accident and the injuries caused by it, whether they bear complete or partial responsibility. This can be an individual, employer whose worker caused the accident, company that sold a dangerous product or government agency. In nearly all personal injury cases, the defendant carries insurance to pay for the legal defense of the claim, a settlement or verdict. Though a lawsuit may take a lot of time, effort and energy for a defendant, it’s usually the insurance company paying the defense attorney and for a settlement or verdict.
Negligence – This is the legal theory used in most personal injury cases. This generally boils down to the plaintiff showing that the defendant owed the plaintiff a legal obligation or duty to do something or refrain from doing something; that the defendant failed to live up to that obligation and breached its duty; that the defendant under the facts and applicable laws caused the accident which caused injuries or damages; and that under the law the plaintiff has an obligation to compensate the plaintiff for them.
Damages – The measure of harm to the plaintiff due to the accident. Showing damages is necessary to a successful lawsuit. Someone may have caused an accident, but if no harm was caused (no damages incurred), there’s no basis for a lawsuit. Damages can include compensation for harm done in the past, present and future including lost pay, medical bills, pain, suffering, permanent physical impairment or scarring and the negative impact on personal relationships. If a defendant’s action is extremely negligent and done with disregard to the health and safety of others, there may be punitive damages. These are awarded in relatively few cases and are meant to punish the defendant to discourage it, and others in a similar position, from doing the same thing again.
Defenses – Given the facts of the case and/or applicable law, there may be valid reasons why the defendant is not obligated to pay the plaintiff’s damages. A partial defense may not excuse it from responsibility but would reduce the amount of money it needs to pay.
Liability – Under the facts and law, the party may be obligated to compensate the injured party. It failed or breached its duties or obligations in the situation and either lacks defenses or its defenses may not be sufficient to overcome the plaintiff’s case.
Litigation – This is a general term for the legal process from the time a lawsuit is filed until it’s finally resolved. There are many steps to the process, which can be lengthy, time consuming, energy draining and expensive, which is why nearly all personal injury cases settle without having to go through the entire legal process.
Discovery – This is a critical part of litigation. When we take a case, we investigate the accident to find as many of the relevant facts as we can; we then try to settle the case based on those facts with the insurance company. If that fails, a lawsuit is filed and an early part of the litigation process is discovery. This involves the parties asking each other for facts, information or anything in each other’s possession that may be relevant to the case. After discovery is over, both sides should have a good idea of what really happened, what the case is worth and the chances of success or failure at a trial.
Depositions – They are a part of the discovery process, in which the parties, witnesses and potential witnesses in a trial answer questions under oath, posed by attorneys on both sides. Often, important information is learned and attorneys on both sides get a good idea of how well witnesses may do if they’re called to testify at a trial.
Settlement – Nearly all personal injury cases are resolved through negotiation. This settlement could happen before a lawsuit is filed or any time afterward. As time passes, one party or another may understand the weaknesses and strengths of the case and decide to avoid the uncertainty that comes with a trial. They would rather go with the certainty of a settlement than take the risks of going to trial and not getting the desired outcome.
Insurance fraud – A person lies or falsifies evidence to create a bogus personal injury claim in the hopes of obtaining a settlement from an insurance company or a favorable verdict at a trial. This is a crime, which may result in incarceration for the person trying to accomplish it. No reputable, ethical lawyer will represent someone trying to engage in fraud.
Here we have just scratched the surface. Legal dictionaries contain hundreds of pages. The important thing is that if you’re involved in a lawsuit and have questions or don’t understand something, ask your attorney. We will be happy to answer you. We can’t do our jobs in protecting your interests and legal rights if you don’t have a good grip on what’s going on and why.
A personal injury case doesn’t belong to the attorney -- it belongs to the plaintiff. We work for you. Though attorneys normally make decisions on tactical and procedural issues, the client makes important overall decisions on the direction, goals and outcome of the case. Those decisions can’t be properly made if you don’t understand the language used, the case, the applicable law and the legal process.
