Glossary

Glossary of Personal Injury Law Terms

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Insurance Policy Terminology

Accident Reconstruction/Accident Reconstructionist

Accident Reconstruction is a scientific procedure by which the circumstances of a traffic collision are proven or estimated by working backwards from the resulting damage and evidence. For example, the length of skid marks, the slipperiness of a road surface, and the amount of crush damage to the involved automobiles can be used to determine, or at least approximate, the speeds and/or directions of travel of the vehicles before the collision occurred. An accident reconstructionist is a person specially trained in using these procedures to determine the collision circumstances. The reconstructionist is an expert witness, usually retained by either the plaintiff or defendant in a lawsuit, who can be of great benefit in cases where fault for a collision is in dispute. Some police agencies, such as the California Highway Patrol, have their own personnel trained in accident reconstruction who will be assigned to prepare independent reconstruction reports about particularly severe traffic collisions. Do not assume, however, that the police officer who prepared your accident report is a qualified expert; most of the time he will not be.

Personal injury attorneys who are familiar with the best accident reconstruction experts have a definite edge in resolving cases.



Adjustor/Insurance Adjustor

Insurance adjustors are employees or independent contractors of insurance companies, and are given the job of settling insurance claims for as little money as possible. (This is how insurance companies turn a profit.) Remember, even the adjustor for your own insurance company is not necessarily "on your side," but rather is on his company's side, and has the overall goals of settling a claim quickly and paying out as little claim money as he can.

Each insurance company involved in a particular dispute will have one or more adjustors assigned to monitor the claim. If, for example, three different vehicles are involved in a collision, and each vehicle owner/driver has insurance, a minimum of three adjustors will be involved. Frequently, other "invisible" adjustors are also present -- the supervisors of the bottom level claim adjustors -- who may be the people with actual authority to settle cases. If you have med pay or collision coverage on your policy, there will also be separate adjustors handling these parts of your claim. Adjustors are individuals with their own quirks, and attorneys who know adjustors well and have good working relationships with them are better able to settle their clients' cases for optimum value.

Even after a lawsuit is filed, and the insurance company retains the services of an insurance defense attorney to represent their insured client, the adjustor is still present in the case, working with the defense attorney and retaining the authority to settle a case short of a jury award.



Alternative Dispute Resolution

Many courts in California and elsewhere now encourage (or even require) people involved in lawsuits to attempt to resolve their disputes through formal methods other than court trials. These methods in general are referred to as Alternative Dispute Resolution (ADR), that is, alternative to the formal court process of a trial. In California, court ordered arbitration is mandatory in nearly all civil cases before the lawsuit can be brought to trial, so it's not usually referred to as "alternative." Voluntary forms of alternative dispute resolution such as mediation or agreeing to a binding arbitration are strongly encouraged by the courts and may benefit the client in a particular case.

An experienced personal injury attorney will be thoroughly familiar with all forms of alternative dispute resolution, including the format and requirements of each method and the arbitrators and mediators likely to be involved, thus giving the attorney's clients a significant edge in resolving their claims quickly and for full value.



Arbitration/Arbitrator/Arbitration Award

An arbitration is a legal hearing, less formal than a trial, in which each side in a lawsuit or dispute offers evidence and testimony to a neutral hearing officer (the arbitrator). The arbitrator is typically an experienced attorney or a retired judge. The arbitrator will render an award in favor of one side or the other in a particular amount of money -- depending upon the type of arbitration, this award may or may not be a binding award. There are two types of arbitration hearings which typically apply to personal injury claims -- court-ordered mandatory arbitration, in which the award is not binding (but still of critical importance in resolving a case) and binding arbitration in which the award is final. The final resolution of uninsured and underinsured motorist claims is always through a binding arbitration, and any other type of dispute may also be submitted to a binding arbitration at the discretion of the parties involved.

Experienced personal injury attorneys will have been through many, many arbitration hearings for their personal injury cases (and may indeed have acted as arbitrators themselves in other people's claims), and will therefore benefit from their familiarity with the process when handling new cases.



Attorneys

For the purposes of personal injury cases (as opposed to divorce attorneys, probate attorneys, tax attorneys, etc.), attorneys come in two types: the plaintiffs' personal injury attorney (PI attorney/ plaintiff's attorney), and the insurance defense attorney (defense attorney). Personal injury attorneys are paid by their clients out of the proceeds collected on their behalf via jury verdicts, arbitration awards, and/or settlements. These fees are specified by the contingent fee agreement that the client and attorney signed when the case was begun. Insurance defense attorneys are paid by insurance companies to represent the companies' "insureds," the negligent persons who have insurance policies and who are being sued as the defendants in personal injury lawsuits. These defense attorneys technically represent the defendants, but are actually being paid by the defendants' insurance company.

Other attorneys may also become temporarily involved in personal injury cases as neutral parties such as arbitrators or mediators.

An experienced personal injury attorney should be able both to add value to his/her clients' claims and to handle efficiently the many complicated aspects of their cases. They are usually members of several professional organizations -- Edward A. Smith is a member of the American Trial Lawyers Association, the California Consumer Attorneys, and the Sacramento Consumer Attorneys organizations.



Attorney-Client and Attorney Work-Product Privilege

Generally, all communications between an attorney and his/her client are privileged -- that is, they are entirely confidential, being given special protection under the law, and no one else (particularly their opponents in a lawsuit) are entitled to gain access to them. This is referred to as the attorney-client privilege. Also, most documents produced by an attorney and his staff in regard to the client's case are also privileged -- the attorney work-product privilege.

Often times, however, a defense attorney may seek to acquire access to these documents through the discovery process. There are only very narrow and specific instances where they are entitled to do so, however, and it is the job of a personal injury attorney to know these exceptions and to zealously guard the confidentiality of the documents and the privacy of his clients.



Case Evaluation/Claim Evaluation

One of the most difficult challenges for the private individual handling his or her own personal injury claim is to know what their claim is worth. Some people simply don't feel comfortable in the bargaining process necessary to settle a claim, but even those people who are comfortable with it are at a great disadvantage if they have no real idea where to start bargaining from. Likewise, an attorney who is inexperienced or unfamiliar with personal injury law may not yet have developed the necessary feel for the value of a client's case, and may not yet be familiar with the many resources available to help evaluate a claim.

Personal injury attorneys who are well-experienced in resolving personal injury claims will have developed the knowledge of how particular factors will influence the value of a claim -- things such as comparative negligence issues (in which more than one person was at fault for an accident), punitive damages issues (in which the actions of a defendant, such as a drunk driver, were particularly reprehensible), and pre-existing medical conditions of the claimant which may either increase or decrease the value of their claim.

Experienced attorneys will also have access to resources, both in book form and on-line, which give them up-to-date details about the claim value of particular types of injuries. At the Law Offices of Edward A. Smith, we have an extensive library with medical and legal information for evaluating claims. We also make use of thousands of on-line sites that give us access to the very latest medical research and legal decisions that influence claim values. Some of these online sites are available for free and listed here. For other sites we pay considerable fees so that we can meet our commitment to having the best information possible for our clients.



Claim/Claimant

The claimant in a personal injury case is the person(s) injured as a result of the negligence of one or more other parties. If a formal lawsuit is filed, the claimant becomes the plaintiff in the lawsuit and the negligent party becomes the defendant.

An insurance claim is made when an injured person or his/her personal injury attorney informs an insurance company (or a self-insured business or government entity) that the injured person will be seeking compensation for damages that were sustained.

The insurance claim is the formal beginning of a personal injury case. It is initiated when an injured person (or his/her attorney) contacts the negligent party's insurance company to inform them that a claim for damages is being made against the person or company they have insured. An insurance claim may also be made with an injured person's own insurance company for the payment of medical expenses, vehicle damage, etc., or if the negligent party is uninsured.

Every involved insurance company should be promptly notified if a claim is being made. In fact, in most instances, a person injured in a traffic accident has a duty to notify their own insurance company within a certain period of time, or the insurer may deny their subsequent claims.

It is very important when making an insurance claim to know what information must be given to an insurance company, what information need not be given, and what information should never be given. Providing more information than required by law may seriously damage the value of a personal injury claim in the long run.



Code of Civil Procedure

The Code of Civil Procedure is the section of the California state statutes that contains most of the information about how civil lawsuits proceed. It includes information about when and how complaints are filed to begin lawsuits, when and how they must be served on defendants by a process server, how a defendant or his attorney must respond to the lawsuit, the procedures both sides may use in the discovery process, and, in general, most of the steps that must be taken as a case proceeds either to a settlement, an arbitration, or a trial.

A private individual who plans to try handling their own personal injury lawsuit must make themselves thoroughly familiar with these rules or find themselves at a very severe disadvantage. Or, if a personal injury attorney is being retained, the individual must make certain that the attorney is experienced and familiar with these rules.



Complaint

A complaint is the legal document filed with a court that formally begins a lawsuit. It will lay out in very general terms the circumstances of the incident that forms the basis of the lawsuit, and it will also describe in broad terms the nature of the damages suffered by the claimant. The complaint will specify who the parties to the case are -- the plaintiff(s) and defendant(s). It is vital that these parties are specified correctly in the complaint, and any errors must be corrected quickly or the case may be seriously damaged.

When the personal injury attorney is ready to formally bring the defendant(s) into a case, the attorney will have the complaint served upon the defendant(s) by a process server. There are very specific rules and deadlines for having this done which must be observed.



Contingent Fee Agreement

When an injured person hires a personal injury attorney to represent them in a personal injury claim or lawsuit, they both sign a contingent fee agreement. This document is essentially the employment contract for the attorney and should lay out in detail all of the terms of that employment. "Contingent fee" refers to the fact that personal injury attorneys in California are almost always hired on the basis that they will only receive a fee from the client contingent upon the client receiving money from the person(s) causing their injuries. The amount of the attorney's fee is completely open to negotiation with the client, although certain fee agreement are regulated by law -- California law limits attorney's fees in most cases handled for children to 25% of the total sum recovered. Fees may also vary depending upon the stage at which a case is resolved -- most attorneys will charge a higher percentage fee for a case that proceeds to arbitration, mediation, or trial, because the amount of work required of the attorney is much greater in such a case.

The contingent fee agreement should also lay out such details as who is responsible for the costs of the case and how any money collected for the client is to be distributed. Most personal injury attorneys will advance the case costs to the client and will be reimbursed for these costs out of the proceeds of the case. Case costs include such things as court fees, charges for acquiring copies of the client's relevant medical records, witness fees and expert witness fees, deposition fees, et cetera.

Because of efficiencies of operation, the Law Offices of Edward A. Smith is able to offer discounted rates on personal injury cases taken in via our Web site if the client is willing to communicate with us through the case via e-mail.



Court-Ordered Mandatory Arbitration

This is a type of arbitration that takes place in most civil lawsuits in California as a required step before a trial occurs, because the court hopes that arbitration will help resolve lawsuits without the time and expense of a formal trial. The arbitrator's award is generally not binding upon the parties involved in the lawsuit (either party has a period of time to reject the award -- if they do not do so the award becomes binding), however an award that is favorable to one side or the other will provide important additional leverage in trying to settle a lawsuit.

It is vital to be properly prepared for an arbitration of this kind -- this is one of the primary responsibilities of a personal injury attorney when the client's case has moved into litigation.



Damages -- Compensatory/General/Punitive

This term refers both to the description of actual losses that a plaintiff has experienced, e.g., "the plaintiff has suffered the following damages: broken left leg, sprained left shoulder. . . .," as well as the measure of these losses as established in monetary terms. Damages come in three categories:

  • Compensatory damages which measure actual dollar-value losses for such things as medical expenses, lost income, loss of future earning capacity, etc.
  • General damages, better known as "pain and suffering" damages, which include the emotional trauma from physical injuries, pain, humiliation, etc.
  • Punitive damages, or exemplary damages, which are designed to punish a defendant whose behavior in causing the plaintiff's injuries was especially egregious.


Deposition

A deposition is a form of discovery in which a plaintiff, a defendant, a witness, or an expert witness with relevant information about a lawsuit is formally questioned under oath by the attorneys representing all parties in the lawsuit. The deposition is similar to the giving of oral testimony in a trial, but takes place under less formal circumstances, usually in the office of one or another of the attorneys. The testimony is transcribed into a written format by a court reporter whose costs are passed on to the attorney (and his/her client) who scheduled the deposition.



Discovery

After a lawsuit is begun, all parties to the case have the right to use certain formal procedures to discover relevant evidence possessed by the other parties or by independent witnesses. These procedures include the use of depositions, interrogatories, requests for production of documents, and demands for independent medical examinations, among others. This process as a whole is referred to as "discovery" or the "discovery process," and is regulated in California by specific sections of the Code of Civil Procedure.



Economist

An economist is a type of expert witness who may sometimes be used in cases where it is difficult to express an injured person's future monetary losses in simple, present day dollar terms. These particular damages may include such things as lost ability to earn wages in the future (loss of future earning capacity) and/or the costs of long-term future medical care required by their injuries. An economist can take these future dollar figures and, through calculations that may involve such things as work-life expectancy data, long-term interest rate information, and other economic details, provide a present day dollar value for the losses.



Expert Witnesses

Expert witnesses are individuals trained in some particular specialty, such as medicine, engineering, accident reconstruction, or economics. By virtue of this training they are qualified to render "expert opinions" or "expert testimony" regarding the facts of a case. Some expert witnesses may have had direct involvement in the personal injury case prior to the beginning of a lawsuit, such as a treating physician (who directly provided medical care to an injured person) or a police investigator at a traffic collision who is fully trained in accident reconstruction (although very few officers actually have more than minimal training in this specialty). Most expert witnesses, however, are hired by one side or the other in a personal injury case for the purpose of analyzing complex information that falls within their area of expertise.

Expert witnesses may be vital to a personal injury case's successful conclusion, especially in cases where the facts are highly disputed or particularly complicated. As personal injury attorneys gain experience in their specialty, they will become more and more familiar with whom the most qualified and respected expert witnesses are. The experienced attorney is therefore in a much better position to determine whether hiring experts is necessary in a given case, and if so, just which experts should be retained.



Fast Track Court Systems

During the late 1980s and early 1990s, California courts changed over to a new set of timelines for the resolution of civil lawsuits. These new rules have been generally referred to as "fast track," and require that nearly all civil lawsuits be promptly processed through the court system. All California counties have now adopted the "fast track" rules.

Very stringent deadlines have been established for all the major stages in a civil lawsuit after the initial complaint is filed with the court. These include deadlines for having a process server deliver the complaint to the defendant(s), deadlines for the defendant(s) to respond in court, deadlines for the completion of the discovery process, deadlines for completion of arbitration and/or mediation in the case, and finally, deadlines for the trial of the lawsuit.



Government Tort Claims

The negligent parties in a personal injury case may include individual persons, may include corporate or other business entities that employed negligent persons, and may also include governmental entities (cities, counties, states, etc.) that employed negligent persons. In those California cases where governmental entities are involved, special rules must be followed as described in the Government Tort Claims Act. The most important of these rules requires that a "claim for damages," prepared in a specific manner, must be filed with the governmental entity within 180 days after the injury occurred. This is a deadline that is separate from the usual statute of limitations that must be observed for personal injury cases, and it can easily be overlooked if a claimant or an attorney is unfamiliar with the requirement of the Tort Claims Act.

The claim deadline may also be overlooked if the case has not been thoroughly and promptly investigated. For example, suppose that two vehicles collide in the middle of an intersection. It may initially be assumed that one driver was negligent, even though he insisted he had a green light to proceed. If a prompt investigation revealed, however, a number of witnesses insisting that both drivers had green lights, and if this were to lead to an examination of the signal light system that provided evidence of signal light malfunction, then the governmental entity responsible for maintaining the signal lights might be brought into the case as a negligent party. This would require the filing of a "claim for damages" with the governmental entity which could have been overlooked by a hasty and incomplete investigation.

A good attorney will thoroughly examine all the circumstances surrounding an incident so that all negligent parties, including government entities, can be included in the case.



Independent Medical Examinations (IME)

The independent medical examination, or IME, is a form of discovery allowed by the California Code of Civil Procedure. Essentially, it provides that the defendants in a personal injury case have the right to have an injured plaintiff examined once by a doctor of the defendants' own choosing. Supposedly, this doctor is "independent," but as a practical matter he/she is an expert witness who has been hired by the defendants to conduct the exam and write a report that highlights medical facts favorable to the defendants and unfavorable to the injured plaintiff.

Although it is the defendants' right to have an IME conducted, there are many limitations to an IME that a plaintiff may properly insist upon. For example, it is appropriate to limit the medical examination to those parts of the plaintiff's body which were injured in their accident. If the personal injury attorney does not zealously guard the client's right to privacy, an IME doctor may examine the plaintiff in ways that have absolutely nothing to do with the injuries claimed. It is also proper for a plaintiff to refuse any forms of examination that are painful or intrusive and to refuse to discuss aspects of their medical histories that are irrelevant to the injuries they have suffered.

If plaintiffs and their attorneys do not carefully guard the plaintiffs' right of privacy by insisting that the rules for IMEs be followed exactly, then the examining doctor will happily engage in a "fishing expedition" to turn up as many embarrassing and irrelevant facts as possible.



Insurance Defense Attorney

When the negligent parties in a personal injury claim become the defendants in a lawsuit and the formal complaint is served upon them, their insurance company will secure the services of a defense attorney to represent their interests. The defense attorney is legally representing the defendant, but is actually being paid by his/her insurance company. This can occasionally produce conflicts of interest which an experienced personal injury attorney can make use of to his client's benefit.

Also, since many insurance companies will contract with particular law firms to handle all of their insurance defense cases within a given region, the defense attorneys who work for these firms will become very familiar to experienced personal injury attorneys. This knowledge of the defense attorneys and their individual personalities and quirks will give an experienced PI attorney an important advantage in resolving cases in which they are involved.



Interrogatories

Interrogatories are a form of discovery allowed under the California Code of Civil Procedure. They consist of written questions which one party to a lawsuit presents to another opposing party, who must answer the questions under penalty of perjury within a certain time period. Interrogatories will usually consist of a number of general information questions regarding the answering person's name, address, employment information, educational history, etc., as well as more specific questions regarding how the injury occurred, prior medical history, current medical expenses and other monetary damages.

As with any other form of discovery, interrogatories must be responded to within a given time period and in a specific format as required by the law. Failure to promptly or correctly respond to interrogatories can result in court-imposed penalties including monetary fines and limitations upon what evidence a party may present in the lawsuit. It is equally important to provide no more information that what is precisely required by the interrogatories that have been asked and to know what types of questions may be impermissible to ask. In both these areas, the skills of an experienced personal injury attorney can greatly reduce the amount of work required of the answering person and carefully craft the responses so as to provide only the specific, relevant information required and no more.



Investigator

Often a personal injury case will require more extensive investigation than can be properly provided by an attorney's in-house staff. In such instances, the attorney will often hire a private investigator for collection of additional evidence, such as witness statements, photographs of an accident site, or background research and/or location of potential defendant. Many private investigators will also act as process servers. The costs for these investigative services will normally be advanced to the client by the personal injury attorney, to be later reimbursed as a case cost under the contingent fee agreement.



 
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