The following glossary defines legal terms, and clarifies how they apply to personal injury. Where appropriate, specific reference to the situation in Texas is made.
A detailed, written record of a vehicle accident written by a law enforcement officer who was present at the scene of an accident. Also known as a police report.
Act of God
An act of god refers to an unpreventable natural disaster such as a tornado or hurricane. If such an event causes an injury without human intervention, if can be used as a valid defense by the defendant in a personal injury action. Also known as Force Majeure.
Alternative Dispute Resolution
Any process, agreed to by the parties of a dispute, in which a neutral party assists them in reaching an agreement and avoiding litigation. Common forms include arbitration, mediation and negotiation.
A challenge to a prior legal decision. In personal injury, this entails taking the issue to a higher court.
An alternative dispute resolution where each party present their side of a dispute to an arbitrator. The person acts like a judge and decides the matter. Arbitration may be binding voluntary or mandatory non-binding.
Assumptions of Risk
A defense against claims that asserts that the injured party “freely and knowingly” engaged in risky activity, relieving the defendant of having to act with Reasonable Care. In Texas, the Defendant must prove that the Plaintiff gave express oral or written consent before encountering the risk.
At-Fault Insurance State
In Texas and other “at-fault” states, victims of traffic collisions file a claim against the insurance provider of the person who caused the accident. The at-fault individual is responsible for compensating you if they caused the accident.
A legal privilege intended to keep the communications between and attorneys and their clients confidential. This privilege may apply to prospective clients who are seeking legal advice.
An assertion that one engaged in an intentionally dishonest act of not fulfilling legal or contractual obligations, mislead another person, entered into an agreement without any intention or means of fulfilling it, or violated basic standards of honest behavior.
Overt damage or injury to one’s person. Compensation includes the payment of medical expenses to address the immediate problem of any further harm, as well as on-going care and medical bills.
A catastrophic injury can come in many forms, but essentially is a term applied to any sort of injury that is incapacitation or life changing. This can be a head injury, a neck or back injury that requires surgery, or any other type of injury that simply alters the day to day life of the victim going forward. If the injury has lifelong repercussions, it can likely be deemed catastrophic in nature.
A person, usually employed by an insurance company of a company acting as an agent of an insurance company, who attempts to reach an early settlement for damages against a person, often before the injured person has engaged with counsel.
Class Action Lawsuit
A legal procedure where one or more plaintiffs file a lawsuit on behalf of a larger group (e.g. a “class”). This allows courts to manage actions that would otherwise be unmanageable if each class member had to be named or had to file a separate suit.
A form of payment for a lawyer, where the lawyer agrees to accept a fixed percentage of the any recovery. If there is no recovery, the injured party is not required to pay their attorney for work done on the case.
In a comparative negligence state, you are permitted to sue for damages even if you are partially at fault for an accident. Texas is a modified comparative negligence state, meaning you would not be able to recover compensation if you are more than 50% at-fault for an accident.
Compensatory damages are damages awarded to try and make the injured person whole again. It is easy to quantify certain compensatory damages like medical bills and lost wages. However, it is difficult to quantify pain and suffering, mental anguish, and emotional distress that a person might have suffered after an accident.
This means that if a lawyer is successful in getting you money on your case, they get paid their legal fees. However, if they are unable to recover any money for you in your case, you do not owe the lawyer any fees. Thus, the fee is “contingent” on a successful result for the client.
If a business misleads a customer into believing that a product is free, but then charges for that product, they could be held liable. They could also be held liable for hidden fees and surcharges that the consumer did not authorize.
The person, group or organization against who a personal injury action is brought.
A preliminary tactic used as an attempt to resolve a dispute. In personal injury, this usually takes the form on a payment from one party to another.
A witness’s sworn out of court testimony, gathered as part of Discovery. Deposition testimony are almost always used at trial to destroy the credibility of a witness.
In some instances Texas allows an individual that did not cause the car accident to make a diminished value claim for the loss of market value to their vehicle after it is repaired. This does not mean every vehicle will qualify. For example, a very old car may not have suffered any diminished value as the result of a collision, after it was repaired. However, a brand new vehicle, which is subsequently repaired, may lose significant value due to a collision. Therefore, diminished value claims are evaluated on a case by case basis.
The stage of a lawsuit where each party is required to reveal any documents that may be considered relevant to the case when it goes to court.
The formal process of exchanging information and documents about the witnesses and evidence that each side will present at trial. It includes Request for Admissions, Request for Disclosures, Request for Production, Interrogatories, and Depositions both written and oral. It prevents “trial by ambush”.
Duty of Care
Everyone has a legal duty to avoid injuring other people. If one fails in their Duty of Care, they may be financially responsible for any harm they cause others. A breach of one’s Duty of Care can constitute either Ordinary Negligence or Gross Negligence.
Duty to Mitigate Damages
A legal concept stating that the injured party in an incident has a duty to do their best to keep the negative effects of an accident in check. A defendant may claim a breach of this duty as an attempt to reduce the amount of damages awarded.
Emotional distress occurs when the injury injures a person on a psychological level to the degree that they can no longer function as they did prior to the injury. The claim of emotional distress has even been brought in cases where the injury resulted from defamatory acts or invasions of privacy.
A person who has specific knowledge of a subject, often technical in nature. An Expert Witness was not a direct witness of any events in question. For personal injury cases, Expert Witnesses generally attempt to answer questions regarding medical and health, engineering or manufacturing.
You can generally bring a lawsuit for false advertising against a business even if they include disclaimers in their marketing or make accurate statements, as long as the advertising itself gives the wrong impression about a product or service to consumers. It is even possible that a company could be held liable for false advertising if no consumer was misled.
Force Majeure refers to an unpreventable natural disaster such as a tornado or hurricane. If such an event causes an injury without human intervention, if can be used as a valid defense by the defendant in a personal injury action. Also known as an Act of God.
Full and Fair Compensation
Full and fair compensation refers to the total amount of restitution you deserve for the economic and non-economic losses you have suffered as the result of an accident. These losses could include medical bills, damaged property, lost income, diminished earning potential, and pain and suffering, among others.
GAP insurance has nothing to do with your auto insurance policy. It is usually purchased from the company financing your vehicle. If you owe more money than the fair market value of your car, your GAP insurance pays that GAP in price. Hence, if the Fair Market Value of the vehicle is $10,000 and you owe $12,000, you are “upside down” or “under water” on your car. If you have GAP insurance, that insurance will cover the $2,000 difference and you will owe nothing.
General Damages are those that result directly from a defendant’s legally wrongful actions. They might include: physical pain and suffering, disfigurement or impairment, mental anguish, loss of companionship, and lowered quality of life.
A severe breach of the Duty of Care that constitutes recklessness, wanton endangerment of others, maliciousness, fraud or the intent to harm. Generally, acts of Gross Negligence are either deliberate or committed with blatant disregard for others. Recoveries for Gross Negligence are generally higher than for those of Ordinary Negligence.
Anything potentially dangerous or harmful to an individual. This could constitute any number of things including slippery floors, uneven floors, torn carpets, etc.
A tort that occurs when someone intentionally hurts another person. While such actions may result in criminal charges, they can also lead to a personal injury lawsuit in cases such as assault and battery, fraud, theft, slander, arson, and sexual abuse.
An official decision by a court that a plaintiff has prevailed in their suit against the defendant. After you obtain a judgment, one enters into the collection phase of the case.
The Fair Market Value that the injured party receives in compensation of their injury.
Letter of Protection
A letter of protection is sent is sent by a personal injury lawyer to a medical institution ensuring payment for medical care from a future settlement or award.
Lemon laws are designed to protect consumers from financial loss if they purchase a faulty product or service that repeatedly fails to meet quality standards. Although a variety of products and services could be found to be defective, the term “lemon” usually refers to motor vehicles, including cars, motorcycles, and trucks.
Loss of Consortium
A claim brought by the spouse or other family member of a person who was injured or killed. The claim seeks compensation for the loss of affection, companionship, or sexual relations that were available before the accident.
An alternative dispute resolution where parties discuss their sides of a dispute with the assistance of a trained impartial third person. This person attempts to help them to reach a settlement.
Mitigating circumstances may be claimed by a defendant in hopes of reducing the damages awarded after an accident. Things like an icy road or other hazards might not excuse the defendant from negligence, but might be taken into consideration.
A tort resulting when someone fails in their Duty of Care for another.
No-Fault Insurance State
In a “no-fault” state, victims of car accidents turn to their own auto insurance provider to pay for medical expenses and lost wages. Texas is an “at-fault” state.
In Texas, the “one bite” rule establishes that a person can be held strictly liable for damages caused by an animal known to be dangerous (i.e. has bitten once before.) Should an animal bite for the first time, then the person that was injured by the animal must prove that the animal was dangerous.
The failure to meet the requirements of ordinary Duty of Care. For instance, the driver of a car is responsible for obeying traffic laws and avoiding accidents. If a driver causes an accident while daydreaming instead if driving, he or she has likely committed an act of Ordinary Negligence. Recoveries for Ordinary Negligence are generally lower than for those of Gross Negligence.
Pain and Suffering
Pain and suffering is part of a subset of damages called “general damages“ and will vary from case to case depending on the circumstances and the nature of the injury. For instance, if a person is no longer able to walk due to the injuries received, then they are entitled to compensation beyond the immediate and on-going medical expenses.
The party bringing a lawsuit. In personal injury law, this is generally the injured party.
“Premises injury” is typically a term that describes an injury which occurs on someone else’s property. This could be an injury at a business, a friend’s house or any other place that you are visiting or invited into.
Premises liability typically occurs when you are injured on someone else’s property due to some type of hazardous condition.
Preponderance of Evidence
The burden of proof in a personal injury case is based upon the preponderance of evidence. In order for the plaintiff’s lawsuit to succeed, the judge or jury must determine that the facts the put forward are more likely true than false. This standard is a much lower one than is found in criminal law. In criminal law, one must prove that someone is guilty beyond a reasonable doubt, which is a much higher burden than is found in civil law.
If an injury would not have happened but for the actions the Defendant, and the injury was reasonably foreseeable, those actions can be declared the proximate cause of an injury. Basically, the reason for the injury.
While Compensatory Damages aim to make an injured party whole, Punitive Damages are intended to punish a defendant and serve as a deterrence to others. Such damages are not always awarded, but are most often granted in cases of gross negligence, extreme recklessness or malicious motives.
In any particular circumstance, reasonable care is what would be exercised by a reasonable person. Failure to perform reasonable care which leads to an injury may lead to financial liability.
Latin for “Let the superior make answer”, Respondeat Superior is a form of Vicarious Liability that an employer has for injuries caused by its employees. Texas courts generally restrict this to actions taken “within the scope of employment”. Many actions, such as an assault, are patently not within the scope of employment, unless the employee is a bouncer or security guard.
A voluntary and binding agreement between a plaintiff and a defendant to “settle” a lawsuit before a Verdict is rendered by the judge or jury. Settlements may be reached before a lawsuit is actually filed. Settlements result in an injured party receiving compensation earlier, but may reduce the amount of compensation.
Special Damages are those that result indirectly from a defendant’s legally wrongful actions. They might include: the cost to repair or replace damaged property, lost wages or the loss of earning ability, the cost of medical treatment in the past or future, the cost of hiring household assistance for tasks that can no longer be performs, and compensation for the loss of irreplaceable items.
Statute of Limitations
A statute of limitations restricts someone from starting a lawsuit after a certain period of time has passed since the incident. In Texas, the norm for torts based upon injuries to personal or property rights is two years after the date of the accident or two years from the discovery of the negligence.
Statute of Repose
A statute of repose can limit the ability to bring a lawsuit for product defects in various product cases, depending on how long it has been used. This means that if a defective product is older than a pre-determined number of years, it is exempt from a lawsuit.
Strict Liability occurs when a person engages in certain prohibited conduct, and does not require any intent to injure another party. Strict liability is most often applied in one of these three situations:
Texas Deceptive Trade Practices Act (DTPA)
The Texas DTPA protects consumers against fraudulent and unlawful business practices, specifically including breach of warranty, unconscionable acts, and false, misleading or deceptive acts.
When a business takes advantage of a consumer’s naivety or ignorance around a certain product or service in a way that is deemed “grossly unfair”.
A form of indirect liability that occurs when parties have a particular relationship or agency between them. For instance, an employer may have vicarious liability for the action of its employees. Or a parent may have financial responsibility for the injuries cause by their child.