No Recovery, You Owe Us Nothing
All of us have read or heard on television some of the legal terms that are used when a citizen exercises his or her constitutional right to seek justice. The attorneys and professional staff at Searcy Denney will explain in detail the legal jargon commonly used in the process of putting together your case, filing a lawsuit, settlement negotiations, and/or courtroom litigation.
Just for your information, however, the following are general definitions for some common legal terms that you may encounter. The list is representative – not all-inclusive – and not all of these terms will be included in the “language” of your case.
When someone has been harmed by the negligence of a government official or agency, there are special rules for pursuing justice at both the Federal and state levels. In lawsuits against the State of Florida, for example, initial trial results must be reviewed by the higher courts. Then, a request for the compensation awarded is submitted for the Legislature’s approval in the form of a claims bill. If approved by the Legislature, the bill must be signed by the Governor.
When both the plaintiff and the defendant in a lawsuit have contributed to the subject harm or loss by failing to meet the required standards of performance or care, under the rules of comparative negligence damages to the plaintiff are reduced proportionate to his or her negligence. (See contributory negligence, which some states follow instead.)
Plaintiffs who bring a lawsuit against a defendant for negligence or harm may be awarded compensatory damages to compensate for their loss, which include economic damages based on easily-quantified out-of-pocket losses such as medical costs, property damage, and lost wages.
In many cases, especially personal injury claims, attorneys agree to work for clients on a contingent fee basis, which means that their fee is an agreed-upon portion of the amount of money recovered, and that this fee is contingent upon making a recovery. That is, the attorneys do not get paid any fees unless the case is won. In most states, contingent fee agreements must be in writing, signed by both the client and the attorney. In some states, Bar rules and/or state statutes specify ranges or limits on contingent fees.
The contingent fee is advantageous to a client in that the attorney or law firm advances not only considerable time, but the costs of, for example, court filing fees, expenses paid to witnesses, and travel associated with proving the case. If monies are recovered successfully, these costs will be deducted from the amount recovered.
A number of states, through either legislation or referendum, have placed damage caps on the amount of compensation that can be awarded to victims of the negligence or malfeasance of another. Generally, these caps apply only to specific kinds of cases – most commonly, medical malpractice – and often limit only non-economic damages. This means that regardless of the facts in evidence, a jury cannot award for damages in excess of the ceiling, or “cap.”
Trial lawyers, consumer advocates, and other fair-minded people believe that damage caps unfairly penalize families whose lives have been ruined by the negligence of others.
The defendant in a lawsuit is the person, corporation or other entity that is being sued as responsible for the harm or loss suffered by the plaintiff. In many cases, there are several defendants: for example, in a trucking accident, victims and their families might sue the truck driver who drove recklessly, the trucking corporation that violated safety regulations, a manufacturer that produced a defective truck part, and a mechanic who failed to make necessary repairs.
Before a trial, when lawyers for both sides are gathering the facts of the case from witnesses and the parties involved, depositions can be a critical tool for discovery. Questions must be answered under oath, and are recorded by a court reporter, who then provides a transcript. Depositions may be videotaped, as well. In court, a deposition might be introduced when a witness is unavailable; to remind a witness of what he or she said previously, under oath; or to challenge the credibility of a witness who, in court, contradicts statements made in a deposition.
The formal investigation conducted by attorneys and their professional teams before trial is called discovery, and may consist of several kinds of information-gathering: oral questioning of opposing parties and witnesses (see depositions); written questions the other party must answer under penalty of perjury (see interrogatories); and written requests for documents and admissions (where one party admits or denies key facts). The discovery process is governed by rules of the court, and helps attorneys assess the strengths and weaknesses of the case as well as gather useful pre-trial information.
Attorneys for both the plaintiff and the defendant have a burden of evidence in giving a judge and jury information on which to make a decision about the facts of a case. Evidence might include the testimony of witnesses, records such as documents and photographs, results of laboratory tests, and damaged property. There are strict rules that determine what kinds of evidence may and may not be admitted at trial.
Federal and state laws regarding intellectual property regulate the creation and ownership of works protected by patents, copyrights, and trademarks. This is a specialized area of law practiced by attorneys committed to seeking justice for those whose works have been copied, plagiarized, or otherwise stolen for illegal profit or gain.
During the pre-trial discovery process, an attorney for either the plaintiff or the defendant may decide to ask witnesses and other parties involved to answer questions about the case in writing. The answers to these interrogatories are required to be truthful, under penalty of perjury.
The legal responsibility for an act or omission that results in harm to another is called liability. Sometimes more than one person is liable for the loss or damage: for example, both the prescribing physician and the drug company that falsified research results could be adjudged liable for death or disability caused by a potent prescription drug.
In our civil justice system, the process of pursing justice by filing a lawsuit against the perpetrator of harm or loss is called litigation. Sometimes litigation is resolved through settlement between the plaintiff and the defendant; other times it goes to trial.
When a professional provider of advice or services does not provide the level of performance or care that is reasonably expected under the circumstances, and a client or patient suffers injury or loss, this constitutes malpractice. Medical malpractice, for example, might be committed by a physician, a hospital, and/or others in the chain of health care providers. Malpractice also can be committed by an accountant, a lawyer, or any professional whose negligent advice or services causes a client harm or loss.
There are distinct elements that combine to define mass torts: large numbers of claims against one single product; a common thread of facts and legal issues connecting the claimants; and interdependence of the values of the different claims, meaning each case is mutually reliant on the other. Mass torts include many of suits that have been filed on behalf of victims of environmental disasters, cigarette smoking, and deadly prescription drugs. Most states have specific rules for designating mass torts that may be litigated in their jurisdiction.
One method that sometimes helps opposing parties solve their disputes without going to court is mediation, where a mediator – who does not take sides – meets with both parties and helps them come to a mutually-agreeable resolution. Mediation is an informal process without the rules that govern court proceedings. Mediators have no actual power to impose or enforce solutions; the process relies on the parties involved reaching consensus.
When the careless action – or inaction – of an individual, corporation or other entity causes injury or loss to someone, the perpetrator may be held liable under a legal principle called negligence. In filing a negligence claim, the plaintiff must demonstrate that (1) the defendant(s) did not exercise the conduct or care that would be reasonably appropriate under the circumstances, and (2) the defendant(s) caused the accident or incident that resulted in harm or loss to the plaintiff.
Pain and suffering
Included in the kinds of damages that may be awarded to victims and their families are non-economic damages, which some people – mostly non-lawyers – call “pain and suffering.” In personal injury cases, non-economic damages refer to the long-term qualitative loss of physical and emotional health, rather than quantitative losses (economic damages) such as doctor and hospital bills, property damage, and loss of income because a wage earner has been killed or injured. This does not mean that non-economic damages are any less real than economic damages, and some attorneys feel that the term “pain and suffering” is inappropriate; rather, the term “human damages” may better characterize these types of damages.
The person initiating a lawsuit against someone who has negligently caused him or her harm or loss is called the plaintiff. There may be multiple plaintiffs in a case, and plaintiffs may be entities such as corporations and governments as well as individuals.
Under the U.S. Constitution, Federal law supersedes state law where there is a conflict or inconsistency between the two. A notable exception is in personal injury liability cases, where Federal laws generally preempt state laws that are pro-consumer, but leave in place state laws that are anti-consumer. Compassionate personal injury attorneys and consumer advocates argue that preemption unfairly bars victims from seeking justice, while adding to the clout of corporate defendants who have powerful lobbies in Congress.
As any homeowner or business owner knows, the legal principle of premises liability means that owners and even those who rent or live on a property can be held legally responsible for injuries or accidents that happen on the property. The specifics of premises liability law vary from state to state. For example, many states look at the status of the victim, which could range from invited guest to trespasser. Most states impose on property owners and occupiers a reasonable standard of care for the safety of outsiders, such as responsibility for making repairs and posting warnings. However, a visitor also may be held to a similar reasonable standard of care for his or her own safety.
In product liability litigation, the chain of companies and individuals involved in making a product available to the public – whether, for example, making, promoting, distributing, or selling it – can be held liable for injuries or harm their product has caused.
Product liability claims have been filed on behalf of victims of a wide variety of dangerous products: for example, toys with poisonous lead paint or tiny parts on which children have choked; cars such as the Ford Pinto that have exploded and killed or maimed innocent drivers and passengers; and contact lens solutions containing bacteria that cause painful eye infections and even blindness.
The legal principle of professional liability imposes a standard of performance and care on a wide range of professionals who provide the public with advice and services. In brief, it holds these professionals responsible – and legally liable – for loss and harm to clients caused by their advice or services, including errors and omissions. Many professionals carry professional liability insurance to cover themselves in these kinds of lawsuits.
Another kind of damages that can be awarded to plaintiffs in personal injury lawsuits are punitive damages, the sole purpose of which is to punish the defendant(s) and serve as a deterrent for continued negligence. Punitive damages are awarded in addition to, and separate from, compensatory damages. Some states have set a maximum amount of punitive damages that may be awarded in any one case.
Statute of limitations
The deadline by which, or time limit within which, a plaintiff must file a lawsuit for harm or loss caused by the negligence of another is set by a statute of limitations. This is somewhat arbitrary and can begin at various points after the subject incident in the case. Sometimes statutes of limitations run from the date of the injury, no matter when the injury was actually discovered. After the statute of limitations has expired, even if an injury has just been discovered, a victim cannot pursue a claim in court.
Statute of repose
Similar to a statute of limitations, a statute of repose imposes an arbitrary time limit beyond which liability for negligence expires. For example, for an arbitrary period of, say, 15 years, claims could be filed against the manufacturer of an appliance with a faulty electrical circuit. In the 16th year, however, there would be no legal recourse, even for the most egregious injury or if the defect had just been uncovered.
A tort is defined in Barron’s Law Dictionary as “a civil wrong or injury resulting from a breach of legal duty that exists by virtue of society’s expectations regarding interpersonal conduct.” In layman’s language, a tort is an injury to one person for which another person is legally responsible. As a practical matter, a tort arises when a defendant has failed to exercise reasonable care to a plaintiff for, for example, the plaintiff’s health or safety; and this failure has caused harm or loss to the plaintiff. If one of these conditions is absent – for example, if a manufacturer sells an infant seat with defective restraints, but no babies are injured – then there is no tort. However, the harm does not have to be physical; slander and libel are examples of torts not based on physical injury.