Glossary

Excerpted from Lexis Nexis
From Court TV Website
Preparing for a Personal Injury Deposition
What is Arbitration?
What are some of the benefits of arbitration
What are some of the drawbacks of arbitration

Excerpted from Lexis Nexis

Automobile Insurance is a contract in which an insurance company, in return for a premium, agrees to pay for certain expenses and legal liabilities resulting from the use or ownership of an automobile. Liability automobile insurance coverage is the one insurance coverage that is required in all states, through either a fault or no fault system. Other types of automobile insurance coverage include collision or accident; comprehensive for fire, theft, or other non-collision losses; medical expenses; uninsured/underinsured motorist; and gap insurance to cover the difference between the actual cash value and loan value that is owed for a vehicle. Most litigation arising from automobile insurance is handled through arbitration and mediation.

From Court TV website

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 |

A

AFFIDAVIT: A written statement made under oath.

ALTERNATIVE DISPUTE RESOLUTION: Methods for resolving problems without going to court.

APPEAL: A request to a supervisory court, usually composed of a panel of judges, to overturn the legal ruling of a lower court.

ARBITRATION: A method of alternative dispute resolution in which the disputing parties agree to abide by the decision of an arbitrator.

ASSUMPTION OF RISK: A defense raised in personal injury lawsuits. Asserts that the plaintiff knew that a particular activity was dangerous and thus bears all responsibility for any injury that resulted.

B

BAD FAITH: Dishonesty or fraud in a transaction, such as entering into an agreement with no intention of ever living up to its terms, or knowingly misrepresenting the quality of something that is being bought or sold. *When dealing with ICBC (Insurance Corporation of British Columbia), insured persons are expected to deal in good faith. ICBC also has obligation to act in good faith. If ICBC is found to have not acted in good faith, a claim for bad faith can be brought. Bringing such a claim is not easy and should be discussed in depth with a lawyer.

BENEFICIARY: Person named in a will or insurance policy to receive money or property; person who receives benefits from a trust.

BEYOND A REASONABLE DOUBT: The highest level of proof required to win a case. Necessary to get a guilty verdict in criminal cases.

BRIEF: A written document that outlines a party's legal arguments in a case.

BURDEN OF PROOF: The duty of a party in a lawsuit to persuade the judge or the jury that enough facts exist to prove the allegations of the case. Different levels of proof are required depending on the type of case.

C

CASE LAW: Also known as common law. The law created by judges when deciding individual disputes or cases.

CHANGE OF VENUE: A change in the location of a trial, usually granted to avoid prejudice against one of the parties.

CIRCUMSTANTIAL EVIDENCE: Indirect evidence that implies something occurred but doesn't directly prove it. If a man accused of embezzling money from his company had made several big-ticket purchases in cash around the time of the alleged embezzlement, that would be circumstantial evidence that he had stolen the money.

CLASS ACTION SUIT: A lawsuit in which one or more parties file a complaint on behalf of themselves and all other people who are "similarly situated" (suffering from the same problem). Often used when a large number of people have comparable claims.

CLEAR AND CONVINCING EVIDENCE: The level of proof sometimes required in a civil case for the plaintiff to prevail. Is more than a preponderance of the evidence but less than beyond a reasonable doubt.

COMITY: A code of etiquette that governs the interactions of courts in different states, localities and foreign countries. Courts generally agree to defer scheduling a trial if the same issues are being tried in a court in another jurisdiction. In addition, courts in this country agree to recognize and enforce the valid legal contracts and court orders of other countries.

COMMON LAW: Also known as case law. The law created by judges when deciding individual disputes or cases.

COMPENSATORY DAMAGES: Money awarded to reimburse actual costs, such as medical bills and lost wages. Also awarded for things that are harder to measure, such as pain and suffering.

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.

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.

CONTINGENCY FEE: Also called a contingent fee. A fee arrangement in which the lawyer is paid out of any damages that are awarded. Typically, the lawyer gets between one-fourth and one-third. If no damages are awarded, there is no fee. An attorney's fee is usually negotiated, and depends on the complexity of the case, the time at which it settles, and the anticipated costs that may be invested. In California, 40% is the fee that is typically charged as the maximum fee if the matter is litigated through trial or arbitration. The only way to know if your attorney is willing to consider a lower fee is to ask. If there isn't much of a fault ("liability") issue, you may be able to find a less expensive lawyer. The skill and reputation of your lawyer is very important, though. A 40% fee to a highly skilled, well-respected lawyer will in all probability yield a higher overall recovery to you than a 33 1/3% fee with less experienced counsel. (last part from Lexis Nexus)

CONTRACT: An agreement between two or more parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, oral or just plain understood. Some contracts are required to be in writing in order to be enforced.

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.

CORPORATION: An independent entity created to conduct a business. It is owned by shareholders.

D

DAMAGES: The financial compensation awarded to someone who suffered an injury or was harmed by someone else's wrongful act.

DEDUCTIBLES (from Lexis Nexis): In simple terms, a deductible is an amount of money, specifically stated in the insurance policy, that an insurer will not pay if the insured suffers a loss that is covered by the policy.

For example, a policy might state that the insured has $10,000 coverage for medical expenses that arise from a car accident and that the insured has a $1,000 deductible. If, after an accident, the insured has $ 10,000 in medical expenses, the insured is responsible for $1,000, and the insurer will pay the remaining $9,000. If, on other hand, the insured has only $500 in medical expenses, the insurer will pay nothing, because of the deductible.

The insured's primary benefit from accepting a deductible is that it lowers the costs - or premiums - of having the insurance coverage. Essentially, the risk of losses covered by the policy is shouldered by the insured until the deductible has been met. In choosing the amount of your deductible, you'll want to consider how much of an out-of-pocket expense you would be comfortable with.

DEPOSITION: Part of the pre-trial discovery (fact-finding) process in which a witness testifies under oath. A deposition is held out of court with no judge present, but the answers often can be used as evidence in the trial.

DIRECT EVIDENCE: Evidence that stands on its own to prove an alleged fact, such as testimony of a witness who says she saw a defendant pointing a gun at a victim during a robbery.

DIRECT EXAMINATION: The initial questioning of a witness by the party that called the witness.

DIRECTED VERDICT: A judge's order to a jury to return a specified verdict, usually because one of the parties failed to prove its case.

DISBURSEMENTS: Legal expenses that a lawyer passes on to a client, such as for photocopying, overnight mail and messenger services.

DISCOVERY: Part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts.

DISMISSAL WITH PREJUDICE: When a case is dismissed for good reason and the plaintiff is barred from bringing an action on the same claim.

DISMISSAL WITHOUT PREJUDICE: When a case is dismissed but the plaintiff is allowed to bring a new suit on the same claim.

DOUBLE JEOPARDY: Being tried twice for the same offense.

E

EVIDENCE: The various things presented in court to prove an alleged fact. Includes testimony, documents, photographs, maps and video tapes.

EXECUTOR: Person named in a will to oversee and manage an estate.

EX PARTE: Latin that means "by or for one party." Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

EXPERT WITNESS: A witness with a specialized knowledge of a subject who is allowed to discuss an event in court even though he or she was not present. For example, an arson expert could testify about the probable cause of a suspicious fire.

EXPRESS WARRANTY: An assertion or promise concerning goods or services. Statements such as "This air conditioner will cool a five-room house," or "We will repair any problems in the first year" are express warranties.

F

FAULT AUTO INSURANCE SYSTEM: Refers to a system in which the party that bears the blame (fault) for an accident is liable for any damages

FIDUCIARY DUTY: An obligation to act in the best interest of another party. For instance, a corporation's board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust's beneficiaries, and an attorney has a fiduciary duty to a client.

FORESEEABILITY: A key issue in determining a person's liability. If a defendant could not reasonably have foreseen that someone might be hurt by his or her actions, then there may be no liability.

G

GROSS NEGLIGENCE: Failure to use even the slightest amount of care in a way that shows recklessness or willful disregard for the safety of others.

GUARDIAN: Person assigned by the court to take care of minor children or incompetent adults. Sometimes called a conservator.

GUARDIAN AD LITEM: Latin for "guardian at law." The person appointed by the court to look out for the best interests of the child during the course of legal proceedings.

H

HEARSAY: Secondhand information that a witness only heard about from someone else and did not see or hear himself. Hearsay is not admitted in court because it's not trustworthy, though there are many exceptions.

HEIRS: Persons who are entitled by law to inherit the property of the deceased if there is no will specifying how it's divided.

HUNG JURY: A jury that is unable to reach a verdict.

I

IMPAIRMENT: When a person's faculties are diminished so that his or her ability to see, hear, walk, talk and judge distances is below the normal level as set by the state. Typically, impairment is caused by drug or alcohol use, but can also be caused by mental illness. Even if a person's alcohol level is lower than the legal intoxication level, he can still be convicted if the state can show his abilities were impaired.

IN CAMERA: Latin for "in chambers." Refers to a hearing or inspection of documents that takes places in private, often in a judge's chambers.

INDIGENT: Lacking in funds; poor.

INFORMED CONSENT: Except in the case of an emergency, a doctor must obtain a patient's agreement (informed consent) to any course of treatment. Doctors are required to tell the patient anything that would substantially affect the patient's decision. Such information typically includes the nature and purpose of the treatment, its risks and consequences and alternative courses of treatment.

Insurance Corporation of British Columbia – aka “ICBC”

INTERLOCUTORY ORDER: Temporary order issued during the course of litigation. Typically cannot be appealed because it is not final.

INTERROGATORIES: Part of the pre-trial discovery (fact-finding) process in which a witness provides written answers to written questions under oath. The answers often can be used as evidence in the trial.

INTESTATE: To die without a will.

J

JUDGMENT: A court's official decision on the matters before it.

JURISDICTION: A court's authority to rule on the questions of law at issue in a dispute, typically determined by geographic location and type of case.

L

LEMON LAWS: In the United States, laws that require manufacturers to repair defective cars. If the repairs are not made within a reasonable amount of time and number of attempts, the manufacturer is required to refund the purchase price, less a reasonable amount for the use of the car.

LIABILITY: Any legal responsibility, duty or obligation.

LIEN: A claim against someone's property. A lien is instituted in order to secure payment from the property owner in the event that the property is sold. A mortgage is a common lien.

LIMITED LIABILITY COMPANY: A business structure that is a hybrid of a partnership and a corporation. Its owners are shielded from personal liability and all profits and losses pass directly to the owners without taxation of the entity itself.

LIMITED PARTNER: One of two kinds of partners in a limited partnership. Is personally liable for the debts of the partnership only to the extent of his or her investment in it and has little to no voice in its management.

LIMITED PARTNERSHIP: A partnership with two kinds of partners: limited partners, who provide financial backing and have little role in management and no personal liability, and general partners, who are responsible for managing the entity and have unlimited personal liability for its debts.

LIVING WILL: Also known as a medical directive or advance directive. A written document that states a person's wishes regarding life-support or other medical treatment in certain circumstances, usually when death is imminent.

M

MALPRACTICE: Improper or negligent behavior by a professional, such as a doctor or a lawyer. The failure of a professional to follow the accepted standards of practice of his or her profession.

MEDIATION: A method of alternative dispute resolution in which a neutral third party helps resolve a dispute. The mediator does not have the power to impose a decision on the parties. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit.

MITIGATING FACTORS: Information about a defendant or the circumstances of a crime that might tend to lessen the sentence or the crime with which the person is charged.

MOTION: A request asking a judge to issue a ruling or order on a legal matter.

MOTION FOR A NEW TRIAL: Request in which a losing party asserts that a trial was unfair due to legal errors that prejudiced its case.

MOTION FOR DIRECTED VERDICT: A request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made after the plaintiff is done presenting his or her case.

MOTION FOR SUMMARY JUDGMENT: A request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made before the trial.

MOTION TO DISMISS: In a civil case, a request to a judge by the defendant, asserting that even if all the allegations are true, the plaintiff is not entitled to any legal relief and thus the case should be dismissed.

N

NAMED PLAINTIFFS: The originators of a class action suit.

NEGLIGENCE: A failure to use the degree of care that a reasonable person would use under the same circumstances.

NO-FAULT AUTO INSURANCE SYSTEM: Under a no-fault system it doesn't matter which driver made the mistake that caused an accident. Each individual recovers from his or her own insurance carrier, regardless of who caused the accident.

NOTARY PUBLIC: A person authorized to witness the signing of documents.

NOTICE OF APPEAL: The document a person must file with the trial court in order to pursue an appeal.

O

OFFICERS OF A CORPORATION: Those people with day-to-day responsibility for running the corporation, such as the chief executive, chief financial officer and treasurer.

P

PETITION: A written application to the court asking for specific action to be taken.

PLAINTIFF: The person who initiates a lawsuit.

PLEADINGS: In a civil case, the allegations by each party of their claims and defenses.

POWER OF ATTORNEY: The authority to act legally for another person.

PRECEDENT: A previously decided case that is considered binding in the court where it was issued and in all lower courts in the same jurisdiction.

PRIMA FACIE: Latin for "at first view." Refers to the minimum amount of evidence a plaintiff must have to avoid having a case dismissed. It is said that the plaintiff must make a prima facie case.

PRIVILEGED COMMUNICATION: Conversation that takes places within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient. The law often protects against forced disclosure of such conversations.

PUNITIVE DAMAGES: Money awarded to a victim that is intended to punish a defendant and stop the person or business from repeating the type of conduct that caused an injury. Also intended to deter others from similar conduct.

R

REAL PROPERTY: Land and all the things that are attached to it. Anything that is not real property is personal property and personal property is anything that isn't nailed down, dug into or built onto the land. A house is real property, but a dining room set is not.

REASONABLE CARE: The level of care a typical person would use if faced with the same circumstances.

REMAND: When an appellate court sends a case back to a lower court for further proceedings.

RETAINER: Refers to the up front payment a client gives a lawyer to accept a case. The client is paying to "retain" the lawyer's services.

S

SETTLEMENT: The resolution or compromise by the parties in a civil lawsuit.

SETTLEMENT AGREEMENT: In a civil lawsuit, the document that spells out the terms of an out-of-court compromise.

SOLE PROPRIETORSHIP: A form of business organization in which an individual is fully and personally liable for all the obligations (including debts) of the business, is entitled to all of its profits and exercises complete managerial control.

STATUTES OF LIMITATIONS: Laws setting deadlines for filing lawsuits within a certain time after events occur that are the source of a claim.

STRICT LIABILITY: Liability even when there is no proof of negligence. Often applicable in product liability cases against manufacturers, who are legally responsible for injuries caused by defects in their products, even if they were not negligent.

SUBPOENA: An order compelling a person to appear to testify or produce documents.

SUMMATION: The closing argument in a trial.

SUMMONS: A legal document that notifies a party that a lawsuit has been initiated and states when and where the party must appear to answer the charges.

T

TORT: A civil wrong that result in an injury to a person or property.

TRUST: Property given to a trustee to manage for the benefit of a third person. Generally the beneficiary gets interest and dividends on the trust assets for a set number of years.

TRUSTEE: Person or institution that oversees and manages a trust.

V

VERDICT: The formal decision issued by a jury on the issues of fact that were presented at trial.

VICARIOUS LIABILITY: When one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For instance, a parent sometimes can be vicariously liable for the harmful acts of a child and an employer sometimes can be vicariously liable for the acts of a worker.an owner of a motor vehicle who is also the head of a family can be vicariously liable when a family member is involved in an accident with the owner's vehicle. For example, a parent can be liable for an accident caused by his or her teenage driver when the parent knew that the child was not a safe a driver and let the child drive anyway.

VOIR DIRE: A French phrase that means "to speak the truth." The process of interviewing prospective jurors. Pronounced "vwa dear."

W

WITNESS: Person who comes to court and swears under oath to give truthful evidence.

WORKER'S COMPENSATION: A benefit paid to an employee who suffers a work-related injury or illness.

WRIT: A judicial order.

Preparing For A Personal Injury Deposition

Excerpted from Lexis Nexis
Joe Mohr

Having your deposition taken is one of the most terrifying parts of personal injury lawsuits for most people. Consider these tips for making your deposition experience less painful:

Dress for your deposition the same way you'd dress for trial. The person asking the questions is sizing you up, trying to figure out how presentable you'll be to a judge or jury
If you need a break, ask for one. In most states, you're allowed to take a break from questioning when you need one. You should discuss the rules on this with your lawyer before the deposition begins.
Take your time. Think about the question you're asked before answering it. Pause before answering. This is not a timed event.
Don't volunteer any information. The person asking the questions is not your friend and you don't need to help him or her discover other areas to ask you questions about. Say as little as possible. Answer only the question asked and nothing more. Do not be untruthful, but do not add anything extra.
Tell the truth. Assume the person asking the question already knows the answer. Depositions aren't just to discover information, but to lock in testimony or find ways to discredit you at trial. Any inconsistency may burn you later when you're in front of a jury.
Your best possible answers are short ones, such as "Yes," "No," "I don't know," "I don't remember" and "I don't understand your question." It's best to limit your answers to the information that is specifically requested.
Don't volunteer where the person asking the questions can find information. If you don't know the answer to a question, say so. If you're asked where to find the answer, then go ahead and answer truthfully.
Don't argue with the person asking the questions. Your lawyer will be in the room with you and can make any proper legal objections to the questions.
Be very careful about what you say to or discuss with the other lawyer or insurance adjuster (if they're present) during any breaks or before or after the deposition. Anything you say may be asked about later when you are back on the record.
If you're asked a question that calls for you to list things or give a detailed explanation, answer fully. In a personal injury case, you may be asked to describe all your injuries or to list all the activities you can no longer perform after the accident. You should list everything fully, and end your response with something like "and that is all I can think of at this time" or "and that is all I remember at the moment." Otherwise, when you add something later at trial, you might look deceptive or worse.
Be prepared to describe your injuries and pain. What kind of pain do you have? Is it constant, sharp, dull and constant? Does it ever go away? Where does it hurt? On a scale of 1 to 10, how would you rate your pain?
Be wary of the question "Are you feeling better today?" If you answer, "No," it raises the question as to whether all that medical treatment you received was reasonable or necessary. If you answer "Yes," then perhaps your case is only a mild injury and isn't worth a lot of money. Obviously, you are feeling better today (at the deposition) than at the time the firemen were using the "Jaws of Life" to separate your body from your car prior to taking you to the hospital. You should say so. But if you're still hurting, you need to make that clear, too.
Be careful answering questions about times. If you know the exact time something occurred, say so, but be prepared to say how you know the exact time. In all other cases, use the words "approximately" or "about." Otherwise, you may look deceptive later if it turns out that some other witness or document shows a different time.
Don't guess. If you don't know the answer, say so. Don't be ashamed to admit lack of specific knowledge. If you're asked to guess, and your lawyer lets you answer, be sure to state that you're guessing or that the answer is approximate.
Always remember that the person asking the questions isn't your friend, but may have a strong influence on whether the insurance company settles your case or pushes you to trial. So be polite.

Joe Mohr is a personal injury lawyer practicing in Richmond, Texas.

What is arbitration?

The essence of arbitration is that it is an agreement between two or more parties to try to resolve a dispute outside of the court system. The parties agree upon a third party as an arbitrator who will act as a judge and jury. After giving the parties the opportunity to present their side of the story and to present any relevant documents or other evidence, the arbitrator will act as King Solomon to decide who wins and who loses.

There are usually no set rules as to how arbitration is conducted. It is typically left to the agreement of the parties. To facilitate the process, though, the parties will oftentimes agree to use the rules of an established organization like the American Arbitration Association.

There can be binding and non-binding arbitration. A "binding" arbitration generally means that the winning party can take an arbitration award to a court of law and enforce it if the losing party does not comply with the terms of the decision.

"Non-binding" arbitration refers to a situation where the parties agree to use arbitration as a forum to try to resolve their differences, but neither party is bound to comply with any decision by the arbitrator.

What are some of the benefits of arbitration?

The number-one benefit of arbitration is that it serves as a forum to resolve disputes outside of the judicial system. Arbitration can be fast, quick and easy, whereas lawsuits can drag on for years and years. Since the rules of evidence and procedure are usually relaxed in arbitration proceedings, the parties are also in a better position to represent themselves without having to get lawyers involved.

It naturally follows that arbitration also tends to be less expensive than pursuing a lawsuit. While the parties will usually end up having to pay the arbitrator, his or her fees will inevitably be less than the attorneys' fees that they may have to pay to take the same case to trial.

Even in non-binding arbitration, a benefit can be that it serves to bridge the gap in an adversarial proceeding so that the parties can get a better glimpse of where things are headed if they are unable to resolve their differences. Most cases settle, but many times it is not until the parties are "on the courthouse steps." Non-binding arbitration may help to facilitate a settlement sooner rather than later.

Another good thing about arbitration is that an arbitrator is typically not bound by the strict rules of procedure in reaching a decision. He or she can consider a lot more facts and circumstances than a judge or jury. Arbitrators typically try to be practical and oftentimes look at compromise as being inherently fair. Thus, the likelihood is that an arbitrator's decision will award something to at least one of the parties. However, you would not expect that damages would be awarded that were anywhere near what a jury might have awarded if (and that is a big if) the matter were to have been tried before a jury.

Arbitration can also bring finality. Sometimes for the better, a decision on a binding arbitration cannot be appealed or overturned in the absence of a showing of extraordinary circumstances (for example, fraud, bias or other inappropriate actions on the part of the arbitrator). Thus, once a decision is rendered, the case is over. The losing party will typically not be able to appeal (which can make the matter drag on for years and years).

What are some of the drawbacks of arbitration?

There are no guarantees that arbitration will be a fair process. As noted, once a decision is rendered in a binding arbitration, the parties are generally stuck with that decision. Without the right to appeal, there is always the risk of being subject to the whims and prejudices of the arbitrator. Overall, this is probably the biggest drawback to the arbitration process.

Identifying other drawbacks will typically depend upon which side of the fence you are on. For example, if a party were concerned about a large jury verdict in the event a dispute ever arose, that party would negotiate for an arbitration clause so as to keep things out of court if a dispute happens to arise. For example, in view of the potential for a large jury verdict on a wrongful termination case, this might explain why an employer would want an arbitration clause in an employment contract. Given the potential for a large jury award on a malpractice action, this would also help to explain why a medical provider would want a patient to sign an arbitration clause.

Ironically enough, the rationale for having an arbitration clause in the first place may actually encourage parties to fight about something where a dispute otherwise could have been avoided. In the absence of an arbitration clause, the parties may be more inclined to compromise rather than pursue an expensive lawsuit. If arbitration is an option, though, there may not be the same deterrents and the parties may simply elect to fight about something rather than try to work out their differences more informally.