Copyright © 2020 Charles E. Boyk Law Offices, LLC. All rights reserved. Reproduced with Permission.
Personal injury cases can be overwhelming. Understanding the terminology of personal injury cases is just one way that you can better prepare to file your own personal injury claim. Another important step would be collaborating with a qualified personal injury lawyer that can help. Read on to learn more about important personal injury terminology, and consult an attorney if you have any questions.
The cause of action is the set of facts that give rise to a legal right for recovery, and causes of action are how somebody pursues their claim. There could be a cause of action for negligence that would be a legal set of facts that someone would need to prove that would give rise to a claim. Causes of action are kind of the essence of every legal pursuit, so there has to be a cause of action and that cause of action has to be properly plead.
The facts have to be properly set forth so that the claim can be adequately pursued. The cause of action is something that can be a bit complex sometimes. There could be multiple causes of action to recover for the same thing even though there might be only one recovery.
An attorney might be able to identify multiple avenues to achieve that recovery. The skilled Ohio lawyer would be experienced in understanding the various causes of action that can assist an injured individual in achieving recovery on the claim. So, they would be able to formulate those claims and causes of action and understand the elements that have to be proved in order to obtain recovery.
If a person is involved in a car accident caused by another individual and they are injured with a broken arm and have medical bills and lost wages, they would have a claim for negligence and the action should have a claim for economic damages and non-economic damages. The cause of action they would pursue that claim would be negligence.
Assumption of the risk is a defense to liability. It is most basically a doctrine that argues that the injured individual understood and assumed some of the risks that ultimately led to their injury. An assumption of risk is a measure of the negligence between the parties, so it is a defense that the defendant raises to try to assign some or all of the liability to the plaintiff.
The assumption of the risk is a defense that is raised to assign some or all of the liability to the plaintiff. It is not necessarily related to negligence but relates to how the injury itself was caused. Attorneys will understand how the doctrine operates and, particularly in the state of Ohio, how the doctrine is viewed by the court in order to successfully handle that affirmative defense.
So, if a person is injured in a car accident with another person and the accident took place during a race, it could be argued that the plaintiff assumed the risk of injury by engaging in the type of behavior that led to the injury.
Case law is essentially judge-made law. Case law cannot only describe causes of action that have been established by courts but can also serve as precedent, which means that very specific fact patterns that have resulted in decisions by one court could be binding in another court order applicable to a plaintiff’s case.
There are thousands and thousands of cases out there and it is important to understand that while each case may be unique, there may be cases that are substantially similar that have been ruled on previously and might be applicable to a plaintiff’s case. Attorneys are skilled in being able to research the case law and make determinations as to which case law supports their position.
An example of case law would be negligence itself. If someone is involved in a car accident with another individual, the injured party may have a cause of action for negligence. Historically, negligence was a doctrine created by courts.
A claim is a what a person is specifically seeking by way of compensation for some type of injury. Every action has to have a claim. If a person is not injured, they do not suffer any damages and would not have an actionable cause of action. So, the damage claim is the essence of the case. It is why somebody is pursuing some kind of remedy.
Claims can take many forms. They could be in the form of lost wages, both past, and present, and they could be both economic and non-economic claims. They could be the claims that a spouse has, or what we call derivative claims, just because of the relationship a person has with that injured party. So, there are many different types of claims but, at least in the civil litigation context, they all have the common denominator that –they are claims for money.
Ohio lawyers can understand the claim, and what is recoverable, what is not recoverable, etc. Sometimes individuals believe that they should recover for everything under the sun, and attorneys help them understand all the things they could recover, even things they might not be thinking and some things that they might not be able to recover in the court.
An example would be that one party is involved in a car accident with another driver and the first person suffers a broken arm and is unable to go to work for a week and has medical bills. The injured party would have a claim for the medical bills for the pain and suffering from the broken arm and for the lost wages. That would be a monetary claim.
A class action is a procedural device that is used to help the court handle litigation by one or more plaintiffs that are similarly situated. A class action is a separate type of litigation and often involves transactions rather than personal injury. Class actions are a very specific type of litigation; they are considered to be complex litigation.
Class actions are complex litigation. Just because there is a large group people that have been hurt or suffered some kind of damage as a result of the conduct of a particular defendant doesn’t necessarily mean that there is a class action. There are very specific and complicated rules to qualify a case as a class action. Attorneys can help in understanding which cases qualify for a class action status and which cases have to be litigated individually.
A hypothetical would be that a particular bank is charging it is account holders unauthorized fees for ATM use and a class could be formed to bring an action against the bank by one or more individuals. Those individuals would represent the entire class of account holders at the bank who have been similarly injured.
A complaint is essentially a legal application to the court setting forth the causes of action to which an individual claims a right. So, a person is filing the necessary pleading with the court to start litigation, asking the court to provide judicial relief.
Complaints are the mechanism that triggers litigation and so they set forth those allegations and the claims that an individual has for recovery. Complaints can be dependent on the specific court and can vary in what is required to file a complaint, but they are usually surrounded by some very specific rules of procedure.
An attorney will be an helpful in understanding what rules apply to the filing of a complaint in specific jurisdictions, specific courts, and how to draft or craft the complaint in a manner that complies with those rules and accurately presents a plaintiff’s case.
The example would be someone being involved in a car accident caused by another person in which they suffer a broken arm and has medical bills and lost wages. If the injured party and the at-fault driver are unable to come to a resolution outside of court, they could file a complaint into court asking the court to grant recovery, and that document would set forth the causes of actions and claims that the injured party has.
A deposition is an out-of-court testimony that’s given by a party or a witness under oath. The deposition is an important discovery tool. It both allows lawyers to discover what type of evidence is out there and to preserve that evidence so that there are no surprises at trial.
Depositions are court testimony, so although they are not occurring inside of a courtroom with the judge present, they are the equivalent of court testimony. Attorneys conduct the depositions. They are engaged in asking the questions and so an experienced attorney will understand what questions to ask in order not only to discover the evidence but to better evaluate how to present the case in court.
The example would be someone being involved in a car accident with another individual. The attorneys for the injured party could request the at-fault driver’s deposition, which means they can request that the at-fault party appear before a court recorder to be sworn in to tell the truth and then give testimony as to what occurred in the accident related to the litigation.
An insurance adjuster is an employee for the insurance company who is involved in claim-handling in claim investigation. Principally, insurance adjusters are involved in the pre-litigation aspect of the case. This includes the initial fact gathering and initial assessment of damages, and many cases are resolved without filing a complaint in the court by negotiations with insurance adjusters.
Insurance adjusters work for the insurance company and so their allegiance is to the company and to make sure that they are paying the least amount of money possible in order to resolve a claim, but that is not always in the injured party’s interest.
Attorneys are highly experienced in dealing with insurance adjusters and leveling the playing field on behalf of the injured party, helping a person understand what rights and what sources of recovery and amounts of recovery they may be entitled to.
If someone is involved in a car accident that is caused by someone and the person has liability insurance on their vehicle, the insurance adjuster may open up a claim, conduct an investigation into the accident, and make some preliminary determination as to what damages the insurance adjuster believes there are as well as what efforts, if any, the insurance company wants to take to resolve the injured party’s claim.
Motion to dismiss is a procedural mechanism to take a case that has been filed in court and bring it before the judge asking that the case is terminated or dismissed. All cases have to be filed with the proper jurisdiction and they have to set forth the correct causes of action. They have to properly plead their causes of action. If they fail to do that, the defense can seek to have the case thrown out or a portion of the case thrown out.
Motions to dismiss are rarely granted based on the merits of a case, but it is important to understand that it is a procedural tool that can be used and that it is important to make sure that jurisdiction and the causes of action are properly plead. Attorneys will understand how to properly plead the allegations in a complaint, and in which court it should be filed, in order to prevent a motion to dismiss from being filed or to be able to successfully defend against one.
An individual is involved in an accident with another party and has suffered some injuries as a result. The injured person files the case in federal court but does not have the proper jurisdiction to do so. So, the at-fault party may file a motion to dismiss the case.
A motion for summary judgment is a motion that is typically filed by the defendant in the case after a period of discovery has taken place. The motion asks the court to consider all of the evidence that has been presented in the case today and find that if the person gives the plaintiff the benefit of the doubt and construe all that evidence in their favor, that the defendant is still entitled to judgment. It is essentially a request by a party to ask the court for judgment before proceeding to trial.
Motions for summary judgment are extremely common practices in litigation and most cases face summary judgment. Far more cases are disposed or ended by motions for summary judgment than end up going to trial. The lawyer for the plaintiff will know what the standard and the burdens are for overcoming a motion for summary judgment and how to file the appropriate brief to defend against such motions.
A hypothetical would be that someone was involved in a car accident caused by another individual, suffered injuries, and brought a claim for punitive damages against the at-fault driver. The at-fault driver, after depositions and discovery took place, believes that there was no set of facts upon which the injured party could prove that they were entitled to get punitive damages. The person could file a motion for summary judgment with the court asking that that particular cause of action be dismissed or judgment be ruled in that person’s favor.
Pecuniary and non-pecuniary are types of damages that relate to money. Pecuniary is a term that denotes calculable damages: loss of income, medical bills, and anything that is easily calculated in terms of money damages.
Non-pecuniary is just the opposite. An individual may have non-pecuniary damages that are not easily converted into money. So, it could be pain and suffering, emotional distress, and those types of things. Pecuniary and non-pecuniary damages really make up the scope of what a person can recover by way of an action in court. Understanding those categories helps the attorney and the individuals know how to form their claim. The attorney is beneficial in understanding both what those damages are, what categories a person can make a recovery in, and then how to place value on things that are non-pecuniary and do not have an apparent economic value.
The plaintiff involved in a car accident that is caused by the defendant and the plaintiff incurs medical bills from their injuries and is unable to go to work for a week. The pecuniary damages would be past medical bills and the income that they lost by not being able to go to work. Past non-pecuniary damages would be the pain and suffering that they had from their injuries.
A plaintiff is essentially an injured individual or an aggrieved individual who has taken their claims and causes of action in court. Plaintiffs are one of two parties generally; the plaintiff goes against the defendant and must be able to maintain their case in court. Attorneys represent the plaintiffs and the defendants. So, the attorney would not only understand how to represent the individual through pre-litigation but in the event that it would go to litigation, that individual becomes, in fact, a legal plaintiff. It might not be just the injured individual but it could also be relatives of that individual.
The example is that someone is involved in a car accident caused by another individual and suffers injuries. The accident victim files a claim/cause of action in court against the person that caused the accident. The accident victim becomes a plaintiff.
A settlement is an agreement that is reached between the parties to bring their case to a resolution. Most claims are settled without having to file into courts, and most cases that are filed in court eventually reach a settlement. So, the settlement aspect of a case is highly important. Most cases are settled and they do not usually end up before a jury for resolution. Settlements usually happen by the parties. Attorneys again are skilled negotiators and they are skilled at dispute resolution. So, the lawyer will be able to put the case in a position that is most favorable for settlement.
If someone is involved in a car accident caused by another and the victim suffers injuries, then the victim and the at-fault party or the at-fault party’s insurance company, through the insurance adjuster, may enter into some negotiations to try to resolve the case. If the parties reach an agreement, they can enter into a formal settlement that will end the case and prevent it from being filed in court.
A statute is essentially a law that has been enacted by some legislative body, most typically congress or a state legislature. Statutes can serve as the rules to which individuals in our society must adhere. So, in a case in which an individual violates a statute and it results in some form of damage, there may be a statutory cause of action or the statute itself may help demonstrate how the defendant was negligent. Sometimes the violation of a statute is enough to show negligence and sometimes the violation of a statute is not. Attorneys will have an understanding as to negligence per se, which is showing negligence by the violation of the statute alone.
An example would be the rules that the state has with regard to speed limits and the rules that exist with regard to who can operate vehicles on roads.
A tort is a legal word for an act that another individual commits or situations in which another individual failed to act when they should, ultimately giving rise to some kind of injury. It’s a civil wrong. In the personal injury sense, the torts are principally how an individual proceeds. Those are the specific harms. There might be some civil rights violations, but normally torts of negligence is a tort, product liability is a tort, assaults, defamation, those are all types of torts. Attorneys, particularly personal attorneys, will be experienced in understanding what torts can be pursued in a particular civil litigation.
In the case of someone being involved in a car accident caused by another, the tort of negligent driving would be actionable by the accident victim.
A tortfeasor is a legal term that is given to an individual that commits a tort or a civil wrong. Tortfeasors are typically the defendant in a case. There could be multiple tortfeasors in an action and it is important that an individual has an lawyer to be able to identify all the possible tortfeasors. Attorneys will be able to understand which torts or civil wrongs have been committed as well as which tortfeasors may be responsible in an action.
An example would be if an individual is involved in a car accident with someone. The tortfeasor would be the at-fault driver who caused the accident.
Charles E. Boyk Law Offices, LLC