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WRONGFUL DEATH LEGAL GLOSSARY |
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Glossary of Wrongful
Death Terms
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Caps on Damages:
A damages cap is an arbitrary ceiling on the amount an injured party can receive
in compensation by a judge or jury, irrespective of what the evidence presented
at a trial proves compensation should be. A cap is usually defined in a statute
by a dollar figure or by tying the cap to another type of damages (e.g. two
times compensatory damages). Caps usurp the authority of judges and juries, who
listen to the evidence in a case, to decide compensation based on each specific
fact situation. Several states have declared caps unconstitutional.
Caps on Non-Economic Damages: Non-economic
damages compensate injured consumers for intangible but real injuries, like
infertility, permanent disability, disfigurement, pain and suffering, loss of a
limb or other physical impairment. Caps or limits on non-economic damages have a
disproportionate effect on plaintiffs who do not have high wages - like women
who work inside the home, children, seniors or the poor, who are thus more
likely to receive a greater percentage of their compensation in the form of
non-economic damages if they are injured.
Caps on Punitive Damages: Punitive
damages, also known as "exemplary damages," are assessed against
defendants by judges or juries to punish particularly outrageous, deliberate or
harmful misconduct, and to deter the defendant and others from engaging in
similar misconduct in the future.
Case Evaluation: One of the most difficult
challenges for a private individual handling his or her own personal injury
claim is to know what their claim is worth. Most people simply don't feel
comfortable in the bargaining process to settle a claim. And 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 personal injury attorneys will
also have access to resources (some at considerable expense), both in book form
and on-line, which give them up-to-date details about the claim value of
particular types of injuries. An attorney should have an extensive, up-to-date
library with medical and legal information that assist substantially in
evaluating claims.
Case Law: Also known as common law. The
law created by judges when deciding individual disputes or cases.
Case of First Impression: A novel legal
question that comes before a court.
Catastrophic Injury: A catastrophic injury
is one that is so severe that the injured person is not expected to fully
recover. The injured person may require multiple surgeries, long hospital or
rehabilitative stays, and full-time nursing or assistive care. Some examples of
catastrophic injuries include certain types of brain injuries, spinal cord
injuries, severe burns, loss of limb, amputation, and paralysis or paraplegia.
Certiorari: Latin that means "to be
informed of." Refers to the order a court issues so that it can review the
decision and proceedings in a lower court and determine whether there were any
irregularities. When such an order is made, it is said that the court has
granted certiorari.
Challenge for Cause: Ask that a potential
juror be rejected if it is revealed that for some reason he or she is unable or
unwilling to set aside preconceptions and pay attention only to the evidence.
Chambers: A judge's office.
Change of Venue: A change in the location
of a trial, usually granted to avoid prejudice against one of the parties.
Charge to the Jury: The judge's
instructions to the jury concerning the law that applies to the facts of the
case on trial.
Charge: The law that the police believe
the defendant has broken.
Charging Lien: Entitles a lawyer, who has
sued someone on a client's behalf, to be paid from the proceeds of the lawsuit
before the client receives their proceeds.
Chief Judge: The judge who has primary
responsibility for the administration of a court but also decides cases; chief
judges are determined by seniority.
Circumstantial Evidence: Indirect evidence
that implies something occurred but doesn't directly prove it.
Civil Lawsuit: A lawsuit in which one does
not need to prove criminal liability.
Claimant: The claimant in a personal
injury case is the person (or persons) 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 the formal beginning of a personal injury case, and is made
when the 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. 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. Also note that a claimant may be a family
member in the case of a wrongful death suit.
Clear and Convincing Evidence: The level
of proof sometimes required in a civil case for the plaintiff to prevail. It is
more than a preponderance of the evidence but less than beyond a reasonable
doubt.
Clerk of the Court: An officer appointed
by the court to work with the chief judge in overseeing the court's
administration, especially to assist in managing the flow of cases through the
court and to maintain court records.
Collapse: Literally, to cave in or give
way. Term usually used in a case where a building under construction collapses
and causes injury or death to those working in the area.
Common Law: The legal system that
originated in England and is now in use in the United States. It is based on
judicial decisions rather than legislative action.
Comparative Negligence: The degree to
which the plaintiff is at fault (if at all) when compared to the fault of the
defendant. A jury determines comparative negligence after hearing the facts of
the case and the relevant law as instructed by the Judge. Damages may be reduced
or apportioned as a result of plaintiff's comparative negligence.
Compensable Claim: A claim for which a person is entitled to receive
compensation.
Compensation: Monetary award transferred
from defendant to plaintiff to make up for some wrong, damage or injury caused
by the defendant's actions or inaction.
Compensatory Damages: Reimburse the
plaintiff for actual dollar value that the plaintiff has lost due to the injury
(e.g. medical expenses, lost income, loss of future earning capacity, may also
include pain and suffering, etc.). A family member may be entitled to
compensatory damages in the event of a wrongful death.
Complaint: The formal start of a lawsuit once filed with the court. A
complaint will outline the circumstances (parties, nature of damages, desired
relief, etc.) of the incident that form the case.
Comprehensive General Liability: A policy
covering a variety of general liability exposures, including Premises and
Operations, Completed Operations, Products Liability, and Owners and Contractors
Protective. Contractual Liability and Broad Form coverages could be added. In
most jurisdictions, the "Comprehensive" General Liability policy has
been replaced by the newer "Commercial" General Liability (CGL) forms
which include all the standard and optional coverages of the earlier forms.
Comprehensive Personal Liability: This
coverage protects individuals and families from liability for nearly all types
of accidents caused by them in their personal lives as opposed to business
lives. It is most commonly a part of the protection provided by a Homeowners
policy.
Conflict of Interest: Refers to a
situation when someone, such as a lawyer or public official, has competing
professional or personal obligations or personal or financial interests that
would make it difficult to fulfill his duties fairly.
Consideration: The price in a contract for
the other party's promise. The price may be a promise or an act (e.g. promise of
payment). A party can only sue on a promise if he has given consideration in
return for the promise. Consideration is often a monetary amount, but does not
have to be.
Contempt of
Court: An action that interferes with a judge's ability to administer
justice or that insults the dignity of the court. Disrespectful comments to the
judge or a failure to heed a judge's orders could be considered contempt of
court. A person found in contempt of court can face financial sanctions and, in
some cases, jail time.
Contingent Fee Agreement: When an injured
person, or the family member of a deceased person, hires an attorney to
represent them in a lawsuit, they both sign a contingent fee agreement. This is
a document which is essentially the employment contract with the attorney that
lays out in detail all of the terms of that employment. "Contingent
fee" refers to the fact that the attorney is being 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. This means that the
personal injury 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.
Contingent Liability: A liability imposed
because of accidents caused by persons other than employees for whose acts an
individual, partnership or corporation may be responsible. For example, an
insured who hires an independent contractor can in some cases be held liable for
his negligence.
Contributory Negligence: Prevents a party
from recovering for damages if he or she contributed in any way to the injury.
Not all states follow this system.
Counsel: Legal advice; a term used to
refer to lawyers in a case.
Counterclaim: A claim that a defendant
makes against a plaintiff.
Cross Examination: The process of
challenging the evidence presented by a witness, typically a police officer in
these cases.
DISCLAIMER: The
information contained within this personal injury site is of a general nature
and is not meant to be a restatement of any rules of law. Your
use of this site does not create an attorney-client
relationship. You should hire an attorney to obtain legal
advice for your specific case.
© Copyright 2004,
Consultwebs.com, Inc., All rights reserved. Personal
Injury Law
Glossary.
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