Glossary

A B C D E F G H I J L M N O P R S T W


A

Accident Reconstruction: This is application of the laws of physics to determine the cause of the crash. a An expert accident reconstructionist will usually examine the scene of the crash, the measure skid marks, assess vehicle damage, and determine the resting position of the vehicles to determine how fast the vehicles were going, what direction they were traveling and where on the road the collision occurred.

Accident reconstruction evidence is essential where there is a dispute as to how the crash occurred or one or more of the drivers died or does not have a memory of the crash.

An expert called an “Accident Reconstructionist” is generally a mechanical engineer who is specifically trained in applying the laws of physics and making judgments to determine how a crash occurred.

Adjuster or Insurance Adjuster: Adjusters are employees or agents working for an insurance company who are responsible for resolving the claim. Since the insurance company is a for-profit business, the adjuster wants to settle the claim as cheaply as they can. Statistics reveal that injury claimants who deal directly with an adjuster and resolve their injury claims without an experienced lawyer representing them, often settle their claims for a fraction of the claims real value.

Admissible Evidence: Evidence that is properly and legally admissible in a trial. It is the job of an experienced trial lawyer to produce admissible evidence at trial to successfully prove the facts of a claim.

Agreement: An agreement is reached when two parties form a bargain with each other. The agreement may impose duties and responsibilities upon each of the parties. Various forms of agreements may rise to the level of a contract which imposes certain legal obligations upon the parties.

Allegation: A written statement in a complaint which sets forth certain claims the party intends to prove.

Answers to Interrogatories: A written answer to a written question which has been asked by another party to a lawsuit. These answers are a form of testimony which are answered under oath and signed by the party. There are short time limits for providing these answers to the opposing party.

Appeal: A written request to a higher court to correct or reverse a decision made by a lower court. If a lower court made improper rulings on what evidence was admissible or incorrectly applied the law, there may be grounds for having a higher court ruled that the lower court made a fundamental mistake that prevented the parties from obtaining a fair outcome. There are strict time limits for filing a notice of appeal.

Arbitration: Arbitration is a procedure where a legal dispute is decided by a lawyer acting as a judge. Evidence is submitted to a sole arbitrator or a panel of arbitrators who decide the dispute. The decision of an arbitrator is called an award or a verdict.

Attorney-Client Privilege: Written and oral communications between a lawyer and a client are confidential and those communications are protected from disclosure. There are instances in which the attorney-client privilege may be waived if the communications are improperly disclosed. It is important to remember that what you say to your attorney is protected and may not be revealed to someone else.

B

Bad Faith: Insurance companies have a good faith duty towards their insured’s to fairly and properly evaluate a claim and to promptly pay a claim. When an insurance company breaches one of its good faith duties towards an insured, the insurance company may be exposed to additional damages for their bad faith in having a claim.

Bench Trial: A trial in which the judge decides the case rather than a jury.

Bodily Injury: A physical injury to the body.

Brief: A written document setting forth the legal arguments a party makes to the court. Far from being “brief”, most legal briefs are a thorough recitation of the facts and application of those facts to the law in an attempt to persuade a court to rule consistent with the party’s arguments.

Burden of Proof: The party that has the “burden of proof” in a civil case has the obligation to convince the judge or jury that their version of the facts it is more likely true than not. This burden of proof is often described as proving facts by a preponderance of the evidence. When bringing a civil claim against a defendant, that the plaintiff has the burden of proof in establishing that the defendant was negligent and that the defendant’s negligence was a cause of the plaintiff’s injuries. If a decision maker determines that the plaintiff has not met the burden of proof, the plaintiff loses.

C

Civil Cases: A case in which a party is seeking damages against a defendant. In contrast, a criminal case involves a governmental entity seeking to punish a defendant for violating a crime.

Closing Argument: At the close of a trial, a competent trial lawyer will orally marshal the evidence that has been presented at the trial and apply that evidence to the law to advocate for a successful verdict in favor of the client.

Comparative Negligence: A legal doctrine which reduces a plaintiff’s damages by the percentage of negligence which the jury assigns to the plaintiff. If a plaintiff is 25% negligent and a defendant is 75% negligent, the doctrine of comparative negligence reduces the plaintiff’s damages by the jury’s finding of 25% of the negligence attributable to the plaintiff.

Compensatory Damages: Damages that are intended to compensate the plaintiff for the value of the medical expenses, lost wages, lost earning capacity, pain and suffering and property damages that have been sustained as a result of a negligently caused injury.

Complaint: A written document that formally starts a lawsuit. The complaint is required to properly identify the parties to the lawsuit, identify where the wrongful acts occurred, the legal basis for claiming that the defendant’s actions were a legal basis for causing damages and an identification of the types of damages that were sustained. The formal complaint along with a formal summons must be personally served upon each defendant in a proper and timely manner in order to commence a lawsuit.

Comprehensive Automobile Insurance Coverage: This is a type of automobile insurance that pays for property damages to your motor vehicle which is caused by risks which are not related to a collision, including natural disasters such as ice sliding off a roof onto your vehicle, vandalism or theft.

Conflict of Interest: A prior professional and/or personal relationship which prevents an attorney from representing a potential client due to knowledge or information gained in a prior relationship that ethically prevents an attorney from representing the potential client. Attorneys are governed by a Rules of Professional Conduct which set forth rules which govern conflict of interest situations.

Contempt of Court: A person who fails to follow the court’s rules or violates a court order. Witnesses or attorneys who are found to be in contempt of court can be fined and/or put in jail.

Contingency Fee Agreement: A contract between an attorney and the client whereby the attorney receives a fee for their time that is contingent upon receiving money for the client. The contingent fee is a percentage of the money recovered. The contingency fee agreement also specifies that the attorney will advance costs on behalf of the client and that these costs will be deducted from the settlement after the contingent attorney’s fees have been allocated.

Court Costs: Fees which are costs associated with the use of the court system, including costs of serving the summons and complaint upon other parties, the cost for filing the summons and complaint with the court, cost for a court reporter to type up a transcription of testimony, expert witness fees and other ancillary costs that are incurred in the prosecution of a formal lawsuit. Should the case proceed to a verdict, the losing party may be taxed for some of the court costs that the winning party incurred in actually trying the lawsuit.

Cross-Examination: An examination of a witness who testifies against your interest.

D

Damages: All of the monetary claims that a person is entitled to recover in a lawsuit are generally referred to as damages. In a personal injury lawsuit, damages can include the reasonable compensation for the value of the medical expenses that a party has incurred in the past and is likely to incur in the future, the value of the wages that a party has lost as well as the value of the diminished capacity to earn money in the future, the fair compensation for the pain, suffering and disability a person has incurred and will incur in the future as a result of the injuries, and the monetary value of the lost relationship between the injured party and his/her spouse. If an individual has died as a result of a defendant’s actions, damages include the monetary value of the lost aid, comfort, society and companionship sustained by the heirs as a result of the death of their loved one.

Defense Medical Examination: A medical examination performed by a healthcare provider who has been retained by the insurance company for a defendant. It is oftentimes erroneously referred to as an “independent medical examination”, although the physicians hired by the defendant’s insurance company are often not “independent”, whose medical views are well known to the insurance company. The DME will review medical records and conduct a physical examination of the plaintiff in an attempt to minimize or eliminate the injuries and/or testify that the plaintiff was not truthful in some aspect of the examination.

Declaratory Judgment: A decision by a judge declaring the obligations and rights of the parties. Declaratory judgments are often used to determine the respective responsibilities and obligations of an insurance company and the insured party.

Defendant: The party that a plaintiff is suing for damages.

Deposition: An opportunity for opposing parties in a lawsuit to discover a witness’s testimony under oath. All attorneys are present while a witness answers oral questions of the interrogating attorney. Depositions are usually taken in an attorney’s office with a court reporter present who will transcribe the oral testimony into a written document called a transcript.

Demand: An oral or written statement made to the defendant setting forth the terms upon which the plaintiff offers to resolve the claim.

Direct Examination: An oral examination of a witness who testifies on behalf of the party who called that witness. Direct examination testimony is a form of evidence to assist the jury in understanding what that party intends to prove.

Directed Verdict: A ruling by a Judge that the evidence is so overwhelming that no reasonable jury could conclude otherwise. A directed verdict may be issued where a plaintiff has so conclusively proved an element of their damages that a jury no longer has any fact issue to decide. A directed verdict may be issued to a defendant where the plaintiff has failed to prove an essential element of their case and plaintiff therefore loses on that claim as a matter of law.

Discovery: A process by which a party to a lawsuit have a right to discover the facts and the evidence known to the other parties in the lawsuit. There are specific discovery methods, including interrogatories which are written questions which require written answers under oath, written requests for production of documents, written requests for a party to make certain admissions, depositions and/or defense medical evaluations.

Dram Shop Claim: A claim against a Minnesota seller of alcoholic beverages to an obviously intoxicated patron or an illegal sale of alcohol to a person under the age of 21. If the under aged patron or the obviously intoxicated person causes injuries to another person, the injured person may bring a claim against the seller of the alcoholic beverages for the injuries caused by the illegal sale of alcohol.

E

Evidence: Any type of written or oral information that would be of assistance to a fact finder in assessing the facts. The judge must make an initial determination of whether the information is admissible based on a number of evidentiary rules before the evidence is submitted to the fact finder. There are many types of evidence including oral and written testimony, photographs and videos, documents and medical records.

Evidentiary hearing: A hearing where a judge determines whether the proposed evidence should be admitted at a trial. Lawyers present the evidence to the court out of the hearing of the jury in an attempt to convince the court that the evidence showed or should not be presented to the jury.

Expert Witness: A witnesses who is qualified to render an opinion due to their training and/or experience in a field which is not normally within the common experience of the jury. Expert witnesses include physicians, accident reconstructionist, economists, architects and engineers or other specialist within a chosen field.

F

Federal District Court: The trial court within the judicial branch of the United States government. Federal courts have authority to decide cases involving federal law, called federal question jurisdiction. Additionally, federal courts have jurisdiction to decide cases where the parties are citizens of different states and the amount in dispute is $75,000 or more, called diversity jurisdiction.

File: A client’s case is often referred to as a client’s file. Lawyers also file a claim with a court when they send the legal documents in a filing fee to a court to open the court file.

Filing Fee: A fee charged by the court for opening a court file.

G

Good Faith: The implied duty of an insurance company to exercise good faith and fair dealing in all of its dealings with an insured. The parties to a contract also have an implied duty of good faith towards each other.

Guardian ad litem: A person who has been appointed by a court to make legal decisions for a minor or an adult who is incapable of making their own decisions.

H

Health Benefits: Benefits that are paid pursuant to a health insurance policy.

Hearing: A legal proceeding before a judge to resolve some issue of evidence or law.

Hearsay Rule: A rule of evidence that precludes a party from introducing evidence of a prior statement made out of court that is now being offered in court to prove the truth of the matter asserted in the statement. The intent of the rule is to preclude the admission of evidence that is not considered trustworthy where the person that made the out-of-court statement is not available in court to be cross examined.

Hung Jury: A jury which is deadlocked and unable to arrive at a final decision. A hung jury results in the judge declaring a mistrial, requiring the parties to resolve the claim out of court or try the matter for a second time.

I

Impeaching Evidence: Evidence which tends to discredit the credibility of a witness. A witness may be impeached by showing that they previously testified to a contradictory version of the facts. A witness may also be impeached under certain rules of evidence which show that the witness has a reputation for being dishonest.

Inadmissible Evidence: Evidence which the court has determined is not sufficiently reliable enough to permit the jury to hear the evidence.

Interrogatories: Interrogatories are written questions which require a written answer under oath. They are a method of discovery which permits an opposing party to ask written questions on a variety of subjects in order to requiring the answering party to provide formal answers under oath.

Investigation: The process by which a lawyer discovers the facts and collects evidence to determine all of the legal claims available to a client. Proper investigation requires the collection of evidence and a seasoned analysis of all potential claims based on the discovered facts.

J

Judgment: A written court ruling issuing a final decision of the court based upon a jury verdict or the findings of a court. A judgment is a legally binding order which results the legal issues of the parties.

Jurisdiction: The legal authority of a court to hear and decide a case. A court must have jurisdiction over the parties to the lawsuit as well as over the subject matter of the lawsuit.

Juror: A person who serves on a jury whose job it is to decide the facts of the case consistent with the evidence presented at trial.

Jury: The group of jurors who are selected to hear the evidence and render a verdict consistent with the court’s instructions on the law. With limited exceptions, parties have a fundamental right to have a jury of their peers decide a legal dispute.

L

Lawsuit: A lawsuit is a claim that has formally been commenced by serving a summons and complaint upon a defendant.

Liability: Liability is a term used to determine another person or entity’ is responsibility for causing damages. In civil cases, liability is established by proving that the defendant was negligent, that is the defendant failed to do what a reasonable prudent person would have done or did something that a reasonable prudent person would not have done. Liability is established by an experienced trial lawyer proving through admissible evidence that the defendant was negligent and that their negligence was a legal cause of the plaintiff’s injuries.

Liability Coverage: Insurance coverage provided to an insured to pay for damages caused by their negligent acts. Automobile liability coverage is insurance provided to owners and permissive users of an automobile who are negligent in their use of the automobile and caused injuries to others. Homeowners liability coverage is insurance coverage provided to homeowners to pay damages to others caused by their negligent acts.

Libel: A written defamatory statement which causes damage to a person’s reputation.

Litigant: A party in a lawsuit.

Litigation: A general term for the entire process of a lawsuit.

Loss of Consortium: The legal term for damages sustained by a non-injured spouse as a result of the injured spouse’s damages. Loss of consortium may include the loss of services the injured spouse is no longer able to provide to the non-injured spouse because of the injury, including the inability to maintain a household or care for children, as well as the impact of the injured spouse’s injury upon the marital relationship. It is a separate element of damages for the non-injured spouse.

M

Mandatory: Anything that is required. Most courts require some form of mandatory mediation to be completed by the litigants before the case may proceed to a jury trial.

Mediation: This is a process where the parties agree upon a neutral lawyer, called a mediator, whose job it is facilitate the parties in an attempt to amicably resolve the claim. The parties submit confidential information to the mediator who then meets with the parties in an attempt to reach a written settlement of the claim. The vast bulk of claims are settled by way of mediation.

Medical Malpractice: Medical malpractice is a claim against a health care professional that damages were caused by the failure of the health care professional to exercise the degree of care, skill and judgment that would normally be exercised by similarly situated healthcare professionals.

Medical Payments Coverage: This is a form of automobile insurance coverage that pays for the reasonable and necessary health care costs incurred by an insured for treatment of injuries arising out of the operation, maintenance or use of the motor vehicle.

Medical Records: Medical records are the written documents kept by health care providers. When a person commenced a lawsuit, they place the medical condition of the injured parts of their body at issue in the lawsuit. Whether the plaintiff had previously injured that part of the body is relevant and the insurance company will want to obtain all of the plaintiff’s prior medical records. It is important to have an experienced lawyer limit access to only the medical records which are relevant to the lawsuit.

Medicare: A form of health insurance established by the federal government to assist older citizens. Various portions of the Medicare plans cover hospital costs, physician costs and drug prescription costs. Absent a few exceptions, treatment expenses paid by Medicare must be repaid out of any recovery obtained in a personal injury lawsuit.

Mistrial: A trial that ends with a hung jury or a trial that is preempted by a judge due to errors that have been committed in the trial which prevent

Motion: A written or oral request to a judge to resolve an issue in the lawsuit. An experienced trial lawyer may file a motion to preclude the opposing party from introducing certain evidence at trial or to compel another party to produce information which has been requested. A motion is typically heard at a hearing and ultimately decided by a judge who generally issues a written Order which resolves the issue that was the subject of the motion.

Motion for Summary Judgment: A motion in which a party represents to the court that there are no genuine issues of material fact regarding the motion and that given those facts, the moving party is entitled to a judgment as a matter of law. Defendants file a motion for summary judgment if based on the facts presented in the motion they believe that no reasonable jury could decide in the plaintiff’s favor.

N

Negligence: The failure of a party to do what a reasonable prudent person would have done in a similar situation or doing an act that a reasonable prudent person would not have done in a similar situation. All personal injury lawsuits require that the plaintiff prove that the defendant was negligent and that the defendant’s negligence was the legal cause of their injuries. If a plaintiff fails to prove that the defendant was negligent, the plaintiff loses. If the plaintiff is more negligent than a defendant, the plaintiff cannot recover against that defendant.

No Fault Insurance: A form of automobile insurance mandated by state law that requires that a party’s own insurance company pay for medical expenses and lost wages incurred by the injured party. The general purpose of the law is to mandate that all citizens have this type of insurance if they are involved in an automobile injury in order to provide payment for needed medical care and payment of lost wages, up to certain defined limits without the necessity of starting a lawsuit.

No-Fault Tort Thresholds: In order to successfully pursue a personal injury automobile collision claim against a defendant, a Minnesota plaintiff must prove that they meet one of the following five tort thresholds: 1) death; 2) permanent disfigurement; 3) reasonable and necessary medical expenses in excess of $4000 (excluding certain diagnostic tests); 4) 60 days of disability; or 5) permanent injury.

Notarize: A written documentation by a notary public to establish the signature of a person on a document. Interrogatories must be sworn to under oath and properly notarized by a notary public.

Notary Public: A licensed public official who is authorized to administer oaths and authenticate the signature of an individual on a document by placing a notary public’s seal and signature on the document.

O

Oath: An oral statement that you will tell the truth or a representation that you have told the truth and have given your oath to a notary public.

Objection: An oral statement that a party objects to the introduction of some evidence. If the objection is sustained, the evidence is not admitted. If the objection is overruled by the judge, the evidence is admitted.

Offer: An oral or written proposal to a party. In the personal injury context, it is a defendant’s response to a demand for money.

Opening Statement: A statement made by the plaintiffs attorney at the start of the trial which informs the jury of the scope and nature of the claim and a summary of the evidence which the party intends to prove to prove the claim. A defendant is also entitled to make an opening statement to inform the jury as to why the claim should fail and outlined the evidence which the defendant believes will defeat the claim.

Order: A written decision of a judge, usually after a hearing on a motion. It controls an aspect of how that case will be resolved.

P

Peremptory Challenge: Each party in a civil lawsuit is usually entitled to excuse three jurors from sitting on a jury without any valid reason. Jurors may also be excused for cause if there is a valid reason that they may not be fair to the parties. There is no limit to the number of jurors that may be excused for cause.

Personal Injury: An injury sustained by a person to their body. It includes the physical injuries sustained as well as the fear and/or emotional harm sustained to an individual.

Physician-Patient Privilege: A privilege which protects communications between a physician and a patient and prevents disclosure of the patient’s medical records. This privilege is waived to the extent that the patient commences a lawsuit which asserts that portions of their body have been injured.

Plaintiff: The plaintiff in a personal injury lawsuit is the party who is making a claim against a defendant for damages caused by the defendant’s negligence.

Pleading: A formal document which describes the basis for the plaintiff’s claim or the legal basis for the defendant’s answer, as well as various discovery doc

Pro Se: A Latin expression which means “on your own behalf”. The term is used to describe a person who represents himself in court.

Product Liability: A type of claim where a person is injured by a defective and unreasonably dangerous product of some type. The obligation of a product designer and manufacturer is to eliminate all foreseeable defects from a product so that it can be used in a safe manner. If a plaintiff is injured by a defective and unreasonably dangerous product, they may pursue a product liability claim against the product designer and/or product manufacturer.

Property Damages: These are damages sustained to a person’s property, including damages to the vehicle and other personal property injured in a collision. Property damages are also defined as damages that can be recovered under a policy of property insurance.

Punitive Damages: In contrast to compensatory damages, punitive damages are designed to punish a defendant for engaging in intentional and/or willful conduct in order to deter the defendant and others from engaging in similar conduct.

R

Requests for Admission: A form of written discovery that requires another party to admit or deny certain facts.

Retainer: An advance fee paid by a client to secure a lawyer’s services.

S

Settlement: A final resolution of the claim which has been agreed to by all parties to the lawsuit.

Special Damages: Damages that can mathematically be calculated, including property damages, medical expenses and lost wages.

Statute of Limitations: A mandatory time limit during which a party must proper way commenced a lawsuit. If a lawsuit is not properly commenced within the statute of limitations period, the claim will be considered to stale and will be barred. The general statute of limitations for an automobile collision in Minnesota requires that a lawsuit be commenced within six years from the date of the collision, or it will be barred. A general statute of limitations for an automobile collision in Wisconsin requires that a lawsuit must be properly commenced within three years from the date of the collision, or it will be barred. Separate statutes of limitations apply to product liability claims, wrongful death claims, property insurance claims and medical malpractice claims, among others. It is important therefore that you contact an experienced trial lawyer as soon as possible to preserve your legal rights.

Subpoena: This is a court order compelling a person to provide testimony or produce documents within their possession.

Summons: A legal document that is served with a complaint which notifies the defendant that they are required to provide a written answer to the complaint within a timely fashion.

T

Testimony: To testify under oath in an affidavit, at a deposition or in court.

Tort: An injury to a person caused by another person who has violated accepted norms good behavior. The failure of a defendant driver to exercise reasonable care in failing to obey a stop sign is a type of tort. In contrast, commencing a lawsuit based on rights and responsibilities set forth in a legally binding contract are considered a contractual claim as opposed to a tort claim.

Traumatic Brain Injury: A traumatic brain injury is an injury that occurs due to sudden trauma. Traumatic brain injuries can often occur in automobile collisions or in pedestrian collisions which cause a severe blow to the head. Proof of the nature and extent of a traumatic brain injury involves the use of biomechanical engineers, neurologists, neuropsychologists, physical medicine and rehabilitation specialists among other disciplines.

Treating Physician: A healthcare provider who has treated the patient for the injuries.

W

Witnesses: A person who is called to provide testimony.

Wrongful Death: A wrongful death claim is a lawsuit brought against the defendant for the death of the plaintiff. Wrongful death claims are governed by state statutes and are generally brought by a trustee on behalf of the heirs of the decedent. The damages recoverable in a wrongful death claim are also governed by statute and generally permit the heirs to recover their loss of means of support and the loss of aid, comfort, society and companionship sustained by the heirs as a result of the wrongful death.