Legal Definitions / Glossary

Arbitration – A mini trial. The arbitrator is appointed as a temporary judge by the court. The arbitrator hears the evidence like a jury would through witnesses and/or documents. The arbitrator makes rulings of law and fact and, after hearing the evidence, issues a ruling as to liability (fault), comparative fault, and the nature and amount of damages, if any. This decision is written into the form of an order. The parties have thirty days from the date of the order to reject the ruling. If they do not reject the ruling it becomes a final judgment, is entered into the court record, and the case is over with that order controlling the rights and responsibilities of the parties.

Civil Action – A legal case, brought between private parties, one called a plaintiff, and one called a defendant, to determine if someone was negligent and, therefore, liable for their damages.

Common Carrier – Any individual or organization that charges to carry a passenger, or system or equipment that carries passengers as part of a business operation open to the public. This includes airplanes, BART, MUNI, cable cars, ferries, taxis, moving walkways, elevators, escalators, ski lifts, airport shuttles, vanpools, stagecoaches, jitneys, etc…

Comparative Fault – Comparative fault, when utilized, reduces the claimant’s damages in an amount proportional to their percentage of fault.

Contingent Fee – Allows you to hire an expert lawyer from The Dolan Law Firm, without paying any money down, and without paying by the hour. Most lawyers charge two hundred ($200.00) to five hundred ($500.00) dollars per hour for their services. As the saying goes, talk is cheap unless a lawyer is talking! The Dolan Law firm only gets paid if you receive compensation for your damages either through a settlement or after a trial. We are paid a percentage of what we recover for you. Usually the fee ranges from 33 1/3% to 45% depending on the type and complexity of the case, whether a lawsuit has to be filed, and when and if your case settles or goes to trial. Most contingent fees are not set by law but are negotiable.

Criminal Actions – Deals with violations of the penal code and result in a finding of guilt or innocence leading to incarceration. In criminal cases, the government prosecutes the case and a defendant can obtain a lawyer for free, from the state, if they can’t afford one.

Defendant – Someone accused of violating the law. The defendant in a civil suit is accused of being liable by the person who’s rights have been violated and/or who has been harmed, the plaintiff. An attorney, called a defense lawyer, usually represents the defendant. Most of the time, this lawyer is provided by the defendant’s insurance company who, as a part of the insurance that the defendant bought, has a duty to defend them against any legal action.

Depositions – A form of legal question and answer process that takes place in an attorney’s office. People with knowledge of facts important to prove liability and/or damages are questioned and a written record of the proceedings is created by a court reporter. The attorney asks the deponent (witness) questions in an effort to evaluate the case for settlement and/or to prepare for trial.

Discovery – The legal process of exchanging information under oath. This allows the parties to obtain information to determine who is liable for what happened, who is at fault, and what damages you are entitled to receive.

Economic Damages – Out-of-pocket losses including the following: medical expenses, wage loss, loss of income, loss of earning capacity, property damage, funeral expenses, towing, rental car, household help, and other expenses caused by the wrongful conduct. These damages are the easiest to calculate because you can obtain bills, receipts and estimates.

Employment Practices Liability Insurance – If you have been the victim of unlawful harassment, discrimination, retaliation, or have been denied your legal rights to accommodation, medical leave, pregnancy leave, or have been wrongfully terminated, you may be entitled to compensation under this form of insurance. The insurance is purchased by the employer to protect their company from damages if one of their employees has violated your legal rights in the workplace.

Expert – An individual with specialized skill, training or experience whose testimony is felt to be of assistance in helping the trier of fact, be it a judge or a jury, understand matters outside of their common experience. Usually, experts deal with technical matters, medical issues, customs and practices in an industry, and/or scientific materials.

General Liability Insurance – This is a form of insurance that is purchased by companies to pay damages if one of their employees, while at work, is negligent and causes someone to suffer an injury. It is similar to an umbrella policy for a homeowner.

Guardian ad Litem – Minors are not considered, under the law, competent to bring legal actions on their own behalf. Therefore, a guardian must be appointed to manage the litigation for them. This is called a guardian ad litem. Usually it is a parent or legal guardian. The court reviews an application for guardian ad litem to make sure that the child’s interests are being protected. The court also reviews the contingency fee agreement to make sure it is fair to the minor. Once designated, the guardian ad litem, makes legal decisions for the minor and can agree to a settlement

Homeowner’s Insurance – This is insurance that people take out to cover any liability for negligence that occurs on or because of their property. Usually this insurance comes into play in a slip and fall, dog bite, stair collapse, or some other injury-producing event linked to the property. In addition to covering any liability as a result of negligence, homeowner’s insurance often provides medical payments coverage for medical treatment for injuries that happens on the property regardless of fault (usually up to $5,000.00). Therefore, if someone is injured on another person’s property that injured party may be able to recover their medical expenses even if no one is at fault.

Insurance – Protects someone from financial damages if they negligently cause injury to another. There are many forms of insurance. Just because someone has insurance does not mean that you are automatically paid for your damages. You must, in most cases (aside from workers compensation- job related injuries) demonstrate that someone’s negligence makes them liable for the injuries that you have suffered.

Intentional Conduct – Different then negligence because negligence usually is not intentional, but is the result of carelessness, inattention, or failure to take precautions. Intentional conduct is when someone deliberately does something to harm or kill another person such as hitting them (battery), poisoning them, damaging their property, defaming them with false statements of their character or conduct, infecting them with a sexually transmittable disease, or other knowing and deliberate conduct that causes injury. A person who can prove intentional conduct that produces injury can recover all available damages including punitive damages. Intentional conduct may also be a criminal matter and, if you are the victim of an physical injury that has been caused by someone intentionally, get to the police, seek shelter, and protect yourself from future harm.

Judge – A lawyer who has left the private practice of law to serve the public as a judicial officer. A judge is like a referee. She/he makes decisions as to matters of law. She/he decides what evidence may be heard. She/he controls the process of a trial to ensure that it is fair and unbiased. They instruct the jury on the law that the jury must follow. Judges must be fair to both sides. They are not allowed to act as judges in cases which they have some relationship to, or in which they have an interest in the outcome. Judges are paid a salary by the government through our taxes. In some cases there is no jury in a trial. This is called a bench trial (where the judge sits is referred to as a bench). In that case the judge acts not only as the individual who decides which laws apply, she/he also acts as the ultimate trier of fact or fact finder.

Liability (or liable) – Fault in a civil action.

Liability Insurance – All drivers in California are supposed to carry a minimum amount of liability insurance on their car. This provides insurance to pay damages if they are liable because of an act of negligence. Statistics show that 1/4 to 1/3 of all vehicles on the roadway in California are uninsured. People can’t afford to pay the insurance premiums and drive without insurance. If they are caught they can loose their license for a year and face stiff fines.

Loss of Consortium – When one or both partners in a marriage or domestic partnership suffers a serious personal injury or wrongful death they have special rights to recovery. This is called a loss of consortium. It is a form of non-economic damage. If injury causes one partner to be unable to engage in the things that the couple engaged in before, the other partner is entitled to recover for the loss that they have suffered because of the injury to their relationship. If the sexual relations, social relations, recreational activities, companionship, child rearing responsibilities, household responsibilities, or other aspects of the marriage have suffered, because of the negligence the non injured party may have their own, separate right to bring an action as a plaintiff. These damages are in addition to other damages that the injured party may be able to recover and are the separate property of the non-injured spouse or domestic partner.

Medical Payments Coverage – This is insurance that you buy, on your vehicle policy, in case you get hurt. This provides for payment of your medical bills. Usually it comes in $5,000.00 and/or $10,000.00 increments. You are entitled to this coverage no matter who is at fault.

Negligence – The failure of someone to act as a reasonable person would under similar circumstances when it was foreseeable that their conduct could cause injury to another. This requires people and businesses to use reasonable care in the management of their property, vehicles, animals, actions and business operations.

Non-Economic Damages – Include pain and suffering, disability, disfigurement, loss of use, humiliation, mental anguish, loss of love, support and companionship, and emotional distress. These damages are more difficult to calculate and, many times, exceed the value of the economic damages. They are called non-economic damages because they do not represent out-of-pocket losses. Although they are called non-economic damages, money is paid to compensate people who have suffered these injuries. There is no fixed standard or method of calculating these damages, they vary by individual and case and are often referred to as subjective damages because they differ according to each individuals personal/subjective experience.

Personal Injury – When someone is hurt or filled because of the fault of another.

Plaintiff – Someone who claims that they have been harmed and who brings a lawsuit seeking to show someone else, the defendant is liable (at fault) and responsible for their damages. In a personal injury action they are the person who has been hurt. In an employment discrimination/harassment action they are the person who has been fired, harassed, denied accommodation, or whose rights have otherwise been violated. In a medical malpractice case, they are the patient who has suffered damages as a result of a healthcare provider’s negligence. In a business dispute, the plaintiff is the one who files a lawsuit asking for some form of relief or damages.

Professional Liability Insurance – This is insurance that is purchased by doctors, hospitals, lawyers, accountants, engineers, etc, incase they are negligent in conducting their professional affairs and their negligence causes damages

Proposition 213 – In California, if you are injured in an automobile collision, and you are the driver of a car, your damages may be limited depending on whether there was insurance on the vehicle you were driving at the time of the collision. If you did not have insurance on the vehicle, you are entitled to recover only economic damages. You can’t recover non-economic damages such as pain and suffering. If you are a passenger in a vehicle that is not covered by insurance, you are entitled to economic and non-economic damages. The insurance companies passed this law in 1996 (Prop 213) as part of a proposition designed to save them money by depriving people, injured through no fault of their own, of recovery because of their status as uninsured motorists.

Punitive Damages – Damages that are awarded where the wrongdoer has acted in a way that is considered vile, contemptible and/or despicable to members of normal society. The conduct must be conduct that is fraudulent, oppressive, or malicious. Fraud is deceitful conduct designed to mislead someone. A person is oppressive and/or malicious under the law when they act unlawfully to deprive someone of their legal rights or when they act in a conscious disregard of the rights and safety of another. These damages are in addition to the economic and non-economic damages which are designed to make an injured party whole, as much as money can do so. They are a penalty to discourage bad behavior. They must have some rational relation to the underlying economic and non-economic damages.

Settlement – An agreement reached between parties who have a dispute between them. This ends a controversy, often without going through a trial, by spelling out the terms agreed to by the parties.

Statute Of Limitations – The law requires that if you believe you have been harmed by the wrongful conduct of another, you must bring a lawsuit within a limited period. This is called a statute of limitations. Failure to bring a lawsuit, or take the required legal action, such as filing a claim where required with an administrative government agency, may eliminate your right to recover damages if someone is liable.

Towing And Rental Car Coverage – Your insurance may provide for a rental car while your car is being repaired. Likewise, it may provide for towing reimbursement. Check with your agent. If it does not, you may seek to have the defendant’s insurance provide you with a rental car while your car is being repaired. They do not always provide this service. If you rent a car, you can claim that cost as an element of your damages during the period your car is being repaired, or, if it is totaled, until the insurance company has evaluated your car and provided you a check for fair market value[

Uninsured/Underinsured Motorist – Because many drivers carry the minimum insurance, or none at all, you can purchase uninsured and/or underinsured motorist coverage on your automobile policy to protect yourself if you are injured by the negligence of another. If you refuse this insurance when you buy a policy, the insurance company needs to have a piece of paper that proves you have rejected this coverage. Otherwise, you are entitled to the protection provided. This allows you to have your damages paid for, including pain and suffering, by your own insurance company if the person who hits you has no insurance or less insurance than you do. This is true even if you have some fault in the collision.

Wage Loss – If someone is killed or injured because of the wrongful act of another, or is denied promotion or fired wrongfully, they may be entitled to recover wage loss as part of their damages. This includes the loss of past income that has been lost or reduced as well as future income that is reasonably certain to be lost or reduced in the future.

Workers Compensation Insurance – This is insurance that is required under the law, by all businesses, to provide compensation to workers injured on the job. This type of insurance does not require that you prove anyone was negligent. It is no fault meaning no one needs to be shown to be at fault for you to recover. If you are injured on the job, you are entitled to compensation for your medical bills and lost wages. You are not entitled to non-economic damages such as pain and suffering.

Wrongful Death – When someone is killed by the wrongful conduct of another.