Glossary Continued

Glossary of Personal Injury Law Terms

A- -B- -C- -D- -E- -F- -G- -H- -I- -J- -K- -L- -M-

-N- -O- -P- -Q- -R- -S- -T- -U- -V- -W- -X- -Y- -Z-


Insurance Policy Terminology

Lawsuit/Litigation

A lawsuit is a formal legal action made by one party or group of people (the plaintiff(s)) against another person or group of people (the defendant(s)) in which recovery is sought for damages allegedly caused to the plaintiff(s) by the defendant(s). The lawsuit is formally initiated with the filing of a complaint in the proper court of law.

"Lawsuit" is a term used to refer both to the specific documents filed with a court that start the process, as well as the entire process itself. "Litigation" refers specifically to the process.



Liability

Just saying that someone caused an injury isn't enough -- it has to be proven, and it has to meet the legal requirements to establish liability. This legal conclusion that someone is formally responsible for injuries suffered by another is far more complicated than just reading a traffic collision report to see who a police officer (who may have little or no training in either accident reconstruction or the legal requirements of liability) has concluded was the cause of an accident.

It may be necessary to establish liability for many different people/corporations/government entities involved directly or indirectly in an incident. For example, it might involve proof that one negligent person was driving a vehicle and was responsible for causing injuries, proof that a second person owned the vehicle and gave the first person permission to use it, proof that a third person or corporation employed the driver and that the driver was in the "course and scope" of his employment, and so on.

Establishing liability for injuries is every bit as important as establishing the value of the damages that the injured person suffered. An experienced personal injury attorney will carefully review all the facts of an incident and apply the law to those facts in order to prove the liability of all responsible parties.



Loss of Consortium

When a person is injured, that person's spouse may also have a valid claim for Loss of Consortium. Loss of consortium represent many things, including the spouse's loss of the injured person's assistance in caring for the family home and children, as well as the additional stress and strain placed upon the marital relationship by the physical injuries that were suffered. Loss of consortium is an element of damages that should never be ignored.



Mediation/Mediators

Mediation is a form of alternative dispute resolution similar in many ways to arbitration in that the parties to a personal injury case come together before a neutral referee (the mediator) in an effort to resolve their dispute. Unlike arbitrations, however, mediations are entirely at the discretion of the parties, so the event can be as formal or informal as desired. And unlike arbitrators, mediators are not expected to render a decision in favor of either of the parties. Rather, the mediator's place is to aid the opponents in negotiating with one another and coming to a mutually agreeable resolution for their dispute. A mediation can take place at any time in a personal injury case.

Many courts are now strongly recommending the use of mediations before a lawsuit may be brought to trial. It is critical to be properly prepared for a mediation because it is a prime opportunity for settlement of a lawsuit without the expense of a court trial. It is also extremely important to know what information should or should not be provided to an opponent at the time of a mediation. An experienced personal injury attorney will have been through many mediations already, and will therefore be thoroughly familiar both with the process and with the attorneys and retired judges who typically served as mediators.



Medical Malpractice

When a person is injured due to the negligence of a health care professional, the injured person may be able to pursue a medical malpractice claim against the negligent person and his/her employer (such as a hospital). Medical malpractice is a sub-specialty of personal injury attorneys because this type of claim has many additional rules and requirements that are not common to other types of personal injury claims.



Medical Records, Histories and Records Releases

In any insurance claim or lawsuit for injuries that a person has suffered, his/her medical records are typically the single most important piece of documentary evidence. These records, showing the treating physicians' diagnoses, prognoses, and treatments will establish what specific injuries have been sustained, will show what the long-term expectations are either for recovery from the injuries or for permanent disability, and will specify the types and costs of medical treatment that has been and will be received.

It is critically important to know which of an injured person's medical records an opposing insurance company or party to a lawsuit is entitled to receive and which other records are irrelevant and protected by the patient-physician privilege.

An opposing insurance adjustor will usually seek to have an injured person sign a "medical records release" as soon as possible so that the insurance company can go on a "fishing expedition" through the injured person's records to see what they might turn up in the way of potentially embarrassing (and often irrelevant) information. For this reason especially, it is important to consult with a personal injury attorney as soon as possible to determine what type of record release is or is not proper. Similarly, once a case is in litigation, a defense attorney will attempt to subpoena the medical records of every one of the plaintiff's physicians that can be determined. Again, it is important for the personal injury attorney to carefully guard his client's privacy by limiting these subpoenas to only those records that are relevant.



Medical Reports

Reports that may be requested from doctors regarding an injured person's medical conditions will be in one of three different varieties: a report requested from a treating physician, a report prepared by a doctor who has conducted an independent medical examination (IME) of the injured person, or a report prepared by an expert witness doctor hired by one side or another in a lawsuit (other than for an IME).

Any type of medical report will cost money, so it will usually only be requested in an instance where the medical evidence is particularly complicated, unclear, or disputed. For example, a report might be requested from a treating physician if the doctor's own records aren't completely clear on certain important points. A personal injury attorney will usually advance to his/her client the cost of any necessary medical reports as an element of the case costs.



Occupation Rehabilitation/Vocational Expert/Rehab Expert

Unfortunately, a person who has sustained an injury may be prevented either permanently or for an extended period of time from returning to their normal occupation and/or specific job duties. If it is necessary for an injured person to either substantially change his/her job duties or to seek an entirely new line of work, there are professionals referred to as occupational or vocational rehabilitation specialists who can be of great help. These experts are familiar with the physical requirements of all occupations and can help find types of work for which the injured person may be best suited. These professionals are also acquainted with the types and costs of job re-training programs that are available.

Occupational rehabilitation specialists are often hired as expert witnesses by personal injury attorneys because the long-term employment prospects of a permanently injured person and the costs of re-training are often a very large portion of the monetary damages in a personal injury case.



Paralegal

Paralegals, often referred to interchangeably as "legal assistants," handle much of the day-to-day work in a personal injury case, including preparing standard correspondence, reviewing records, summarizing deposition transcripts, and generally assisting the attorney in preparing the case for settlement demand, arbitration, and/or trial. Most states do not currently require that paralegals or legal assistants have formal training or certification, but those paralegals who are certified have additional proof of training for their work. Other paralegals rely on their long-term experience rather than certification. Either type can provide valuable aid for the experienced personal injury attorney who has learned to rely upon them.



Physician-Patient Privilege

The records that a physician has regarding his/her patients, as well as any communications between the doctor and patients have a special degree of confidentiality under the law referred to as the "patient-physician privilege." When an injured person brings a personal injury lawsuit to recover for their damages, they waive this confidentiality, but only to a certain specific degree -- only as to medical records relating legally to the injuries they have suffered. An experienced personal injury attorney will carefully guard his client's medical confidentiality for all medical matters not properly relating to the issues of the lawsuit. This is very important, because insurance adjustors and defense attorneys will often seek access to all of an injured person's medical histories -- an inattentive person handling his or her own claim may inadvertently give access to more of their records than is necessary.



Plaintiffs and Defendants

When a personal injury lawsuit is filed with a court, it will specifically name the people, corporations, business organizations, and government entities involved in the case. The person or persons who suffered injury and are seeking recovery for damages by filing the lawsuit are referred to as the "plaintiffs." (If recovery was sought prior to the lawsuit by way of an insurance claim, these people would have been referred to as the "claimants.") The person or persons who are alleged to have caused the injury are named in the lawsuit as "defendants." In a personal injury case resulting from a traffic accident, for example, the defendants may include parties such as the negligent operator of a motor vehicle, the owner of the vehicle, the driver's employer (if the driver was on-the-job), a public entity that may have responsibility for an improperly designed roadway or malfunctioning traffic signal, and so on. It is very important not to overlook any possible defendants, because if they are not brought into a lawsuit in a timely manner, the injured person's right to recover from them may be lost forever.



Plaintiffs' Personal Injury Attorney (PI Attorney)

That's us!! The PI attorney is dedicated to representing clients who have suffered physical and emotional injuries resulting from the negligence (or intentional actions) of other people and/or corporations. A PI attorney is hired by an injured person when both the injured person and the attorney have signed a Contingent Fee Agreement, which states the conditions of the attorney's employment by and representation of the client. In most cases, the PI attorney only receives payment from the client when the attorney has secured a settlement, binding arbitration award, or jury verdict for the client. This allows even clients of very modest means to hire the very best attorneys for their cases. A good personal injury attorney will be experienced in all phases of case work, and will be able to properly guide the client's case while it is an insurance claim, and, if necessary, on through the stages of lawsuit, discovery, arbitration, mediation, and/or trial.



Process Server

Certain legal documents are required to be delivered or "served" by a person specially certified to do this -- a process server. In particular, a process server will be used to serve a complaint, summons, and the other paperwork that formally initiates a lawsuit on each and every defendant in the case. A process server will also often be used to serve subpoenas on witnesses who are not parties to an action, such as independent eyewitnesses. Many process servers are also investigators, and vice versa.

Since it's so important to have these tasks accomplished quickly and accurately, experienced personal injury attorneys will be familiar with and employ process servers who are skilled at their work.



Product Liability

When a person is injured as the result of a defective product, they may have a product liability claim against such people and corporations as the manufacturer of the product and any or all wholesalers and retailers of the product as it moved from the manufacturer to the end user. This chain of responsibility can be very complex, and in such cases it is vitally important to identify all potential defendants as early as possible. Also, if a particular product has resulted in product liability cases in the past, thorough research can turn up a great deal of information to speed new cases to successful conclusion.

Experienced personal injury attorneys will have ready access to databases and information exchange forums regarding a wide variety of product liability data.



Property Damage

In addition to their physical injuries, a personal injury claimant will often also have a claim for damage that was caused to their property. Usually, this involves damage to their automobile in a traffic collision, the costs of a rental vehicle, and sometimes also involves damage to property that was in the vehicle at the time of the collision and damaged as a result.

There are usually two paths that can be followed to resolve a property damage claim. First, the client may choose to resolve the claim through their own insurance company. This is usually a faster and simpler process than the second path, which is to present the claim to the negligent driver's insurance company, however the client may be stuck with a deductible of hundreds of dollars or more under his/her own policy. In this instance, the deductible has to be recovered from the negligent driver or his insurance company.

There are no set rules for evaluating damage to a vehicle -- it's always a good idea to get repair estimates from two or more auto repair shops, but once one or more estimates are submitted to the insurance adjustor (whether for your own insurance company or the other driver's) it all comes down to a bargaining process with the adjustor. If you've done your research well, or if your personal injury attorney has done it for you, you will have a much better idea of the value of your vehicle and the damage that was caused to it. This will put you in a much better position when it comes time to settle your property damage claim.

At the Law Offices of Edward A. Smith, we usually handle the settlement of property damage claims as a courtesy to our clients -- we normally charge no fees on any property damage money that we recover for our clients.



Proposition 213



Request for Production of Documents

A request for production of documents is a form of discovery permitted by the California Code of Civil Procedure. It allows any party to a lawsuit to demand that another party in the case provide to them documentary, photographic, or other physical evidence relevant to the case. Both the Request for Production and the formal response to it must follow specific formats and deadlines specified in the law, or the party incorrectly making or responding to the demand may become subject to significant penalties. An experienced personal injury attorney will be fully aware of these requirements as well as which types of documents should or should not be provided. Protecting the privacy of privileged or irrelevant documents is one of the attorney's primary duties on behalf of the client.



Settlement

A "settlement" refers to the resolution of a claim or lawsuit at any stage prior to a jury verdict or a binding arbitration award. It simply means that the involved parties have decided to "settle" their dispute at some agreed upon value. This is done entirely at the discretion of the people involved, however once a settlement agreement is entered into it becomes binding upon the parties.

An experienced personal injury attorney will always have the twin goals of settling a client's case efficiently and at a full and fair value.



Settlement Demand

The settlement demand is often the most important document ever prepared in a personal injury claim. If the case settles before a lawsuit is filed, it is usually as the result of a settlement demand that the attorney has prepared and delivered to the opposing insurance adjustor. And even if the case does not resolve after a settlement demand is prepared, the demand can often set the tone for continuing attempts at settlement as case goes forward into litigation.

When a personal injury attorney prepares a settlement demand, he or she must carefully analyze all factors that relate to liability (how and why the other parties are responsible for the injuries) and damages, including the actual injuries that were suffered, past and future medical expenses, past and future wage loss, and general damages (often referred to as pain and suffering).

There are a great many factors that can affect the value of a personal injury claim, and all of these must be carefully weighed in order to present a settlement demand that is high enough to achieve a full-value settlement for the client, but not so ridiculously high that the insurance adjustor dismisses it out of hand. Many people who attempt to resolve their own claims without knowing what the claim is worth will either present a demand that is either too low to get them what they deserve or too high to be taken seriously.



Statute of Limitations

California law generally requires that a person who has suffered a personal injury must file a lawsuit within one year after the date of injury or lose forever their rights to sue for compensation. Therefore, if an injury claim has not settled within one year, a lawsuit must be filed to protect the injured person's rights.

It is important to be aware that this one-year statute of limitations does not apply in all cases. Situations involving claims against government entities or medical malpractice claims, for example, have much shorter time limitations which must be observed. Uninsured and underinsured motorist claims have other requirements that must be followed to prevent a claimant's loss of right to recover.

Claims involving minors as plaintiffs sometimes have a longer statute of limitations although a minor only has one year if he is bringing an uninsured or underinsured motorist claim.



Subpoena

When a lawsuit is filed by a plaintiff and delivered to the defendant(s) by a process server, these people can automatically require one another to respond to certain types of discovery and to appear at certain types of hearings. There may be many other people, however, who have information that is relevant to the case but who are not actually "parties" to the action (i.e., plaintiffs or defendants). These may include, for example, independent eyewitnesses to a traffic accident, treating physicians who have provided medical care to the injured person(s), and/or a police officer who may have prepared a traffic collision report. In order to compel these independent persons to appear and testify at a deposition, arbitration, or trial, or to provide copies of written documents in their possession, they must be served with a subpoena requiring them to do so.

Client Reviews
  • Me and my wife; had a car accident. We were amazed how easy, professional, friendly attorney Ed Smith is along with his staff. Everybody is amazing. Thank you so much, we are very impressed!
    Sincerely, Alex & Dinah M. ★★★★★
  • Ed Smith and his office team took on a difficult personal injury case on my behalf and for the passenger in my car. Ed is a top- notch attorney. His staff couldn't have been more helpful and kind. No need to look elsewhere. I give Ed Smith my highest recommendation. Beverly ★★★★★
  • Ed and Robert have been taking great care of my husband and I for the past 5+ years. They are always there when you have a problem and a quick resolution! Even when the issues have nothing to do with them. They are willing to help ease the pain off your shoulders. They are as good as it gets! Thank you again for everything. Annie T. ★★★★★
  • Very professional. Great team, staff and service all around. Mr Smith was very honest, straight forward with his advice. He gives the word "attorney" an honest reputation. I will seek his council anytime, and would recommend him at the drop of a dime. Jeremy M. ★★★★★
  • I would highly recommend Ed Smith to any friends or family in need of a personal injury attorney. Ed, and his staff, are very caring on top of being very experienced in this field. The staff always keeps you informed of the status of your case and they are always easy to reach by phone. Shannon D. ★★★★★
  • Edward Smith law offices provide competent, thorough, and personable help for victims of personal injury. When you first meet the staff you know you contacted the right office. This law office treats clients like people. I recommend this office to anyone seeking representation regarding personal injury. David M. ★★★★★