Scott C. Gottlieb, Injury Law Attorney

Glossary of Wrongful Death Legal Law 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.