Glossary of Common Legal Terms
*Words in italics are defined elsewhere in the glossary.
Adhesion Contract: A contract in which one party unfairly holds a position of power in negotiating the contract and is unwilling to modify any of the boilerplate terms of the contract, thereby putting the other party to the contract, usually a consumer, at a disad- vantage. This is a “take it or leave it” contract offer.
Administrative Law Judge (ALJ): A judge who makes deci- sions about federal programs, such as: Social Security, Medicaid, Medicare, housing, education, and tax laws. When you appear before an ALJ, it is called a hearing.
Admissible Evidence: Evidence that is relevant to the issues in a case, which is reliable enough to be considered in a court of law. Examples of admissible evidence include the injured person’s medical records, damage estimates, provider billings, photographs, witness testimony, etc. Rules of evidence designed to ensure reliability and fairness govern what can and cannot be admitted as evidence in court.
Adversary System: The trial method used in the United States. Opposing parties (Plaintiff and Defendant) present and establish the evidence, which is then considered by the judge, jury, or arbitrator.
Alternative Dispute Resolution (ADR): A variety of ways to resolve legal disputes without a trial. Includes mediation, arbitration, and settlement conferences.
Affidavit: A voluntary written statement of facts made under oath. For example, a witness to a motor vehicle collision may be asked by either party to state in writing what they saw or heard in an affidavit.
Affirm: A ruling of an appellate court confirming (agreeing with) the decision made by a lower court it was asked to review.
Affirmative Defense: Listed at the end of the Answer to the Complaint, these assertions attack the plaintiff’s legal right to bring a claim. If certain affirmative defenses are not raised in the Answer, they are deemed waived, meaning that they cannot be raised later on.
Answer: The formal written statement by a Defendant in a civil case that responds to a Summons and Complaint, setting out their defenses to the claim filed against them. A Defendant in Wash- ington has twenty (20) days to answer, admit, or deny the allega- tions in a Plaintiff’s complaint. If the Defendant is an out of state individual or corporation, they have sixty (60) days to respond to the complaint.
Appeal: A request by a party to a lawsuit for a higher court to review a lower court’s decisions regarding questions of law. The appealing party is referred to as the ‘Appellant‘. The non-appealing party is referred to as the ‘Respondent.’
Appellant: A party to a lawsuit who requests a higher court review a decision made by a lower court, usually the trial court, seeking to have the result modified or reversed.
Appellate court: A court having authority to hear an appeal.
Arbitration: An alternative to trial where the decision maker is an individual or panel which makes a decision based on the evidence and testimony presented. The rules of evidence apply as they would in a courtroom except that more evidence can be presented in writing without a live witness to testify about it. The arbitration hearing is conducted in a formal setting with both parties in the same room presenting evidence and argument (compare to mediation). This type of proceeding may be required by contract or agreed to voluntarily by the parties to the lawsuit. See also Mandatory Arbitration.
Arbitrator: The individual or panel of individuals who is the decision maker in the arbitration hearing. Individuals are often retired judges or experienced attorneys.
Assumption of Risk: A defense to a personal injury suit. It essen- tially says that the Plaintiff knew the risks of whatever dangerous condition or activity caused the injury (i.e., sports like skiing or skateboarding where injuries are known to be common) but chooses to participate despite the risk, and as a result, is responsible for their own injury. This legal defense has been limited by Wash- ington Courts such that it only applies in certain circumstances.
Attorney: A professional who has passed state examinations (the Bar) and who is licensed to practice law in a particular state. Synonymous with Lawyer.
Bad Faith: A term used to describe conduct by an insurer that violates its duties to its policy holder, the insured. This can include actions by an insurance company designed to mislead an insured as well as the negligence, or failure to perform some duty or contractual obligation owed.
Bailiff: A court official who keeps order in the courtroom and assists the jury.
Bench Trial: A case heard and decided by a judge without a jury. In a personal injury case either side may request a jury trial.
Beneficiary: one who is the recipient of the transfer of property or money from another person pursuant to statute or contract.
Bifurcation: Done with a motion to the court requesting a separation of the issues before trial so that the issues may each have a separate trial. For example, having one trial on liability and a second separate trial on damages. It is a tactic occasionally employed by insurance defense counsel in a case with contested liability.
Boilerplate: contract language that is commonly used that has a definite meaning in the same context without variation from contract to contract, despite the change in parties to the contract or special terms in the contract. For example, disclaimer language in a “Release and Settlement of Claim” document.
Breach: the breaking or violating of any right, duty or obligation by intentional or negligent action of another person.
Brief: A written document prepared by an attorney which sets out a party’s legal positions on an issue or issues in the case. A brief includes a summary of the important facts, a statement of the issues being presented to the court for review, and the legal authority supporting the party’s position.
Burden Of Proof: the necessary requirement of proving all elements of a claim in order to prevail at trial. The party asserting a claim has the burden of proof. In a personal injury action, the Plaintiff has the burden of proving all elements of a claim for negligence in order to prevail: the existence of a duty, breach of that duty, that the breach proximately caused damages, and damages.
Business Records: Common type of written evidence which under the rules of evidence are often admissible in the proceedings. ‘Business’ includes any association, profession, occupation, and trade, whether or not conducted for profit. ‘Records’ include memoranda, reports, chart notes, billing ledgers, etc., created and kept in the ordinary course of doing business, that document acts, events, and conditions, such as medical records, cell phone records, employment records, etc.
Circumstantial Evidence: Facts that do not directly draw a conclusion on their own but from which, when considered together with other relevant facts, build a greater picture to infer a conclusion one way or another.
Civil Law: Non- criminal laws in the form of statutes, regulations and ordinances enacted by legislative bodies at the federal, state, county and local levels. This is different than laws based on custom which are determined through the courts. Civil laws include those laws passed by the Washington Legislature which define rules of the road, like the unlawfulness of crossing a double yellow line in order to pass another vehicle.
Civil Rule 35 Examination: Also known as the defense medical exam (DME), allows the Defendant, with good cause, to have a medical expert of their choosing examine and evaluate the Plaintiff’s injuries. This may also include a psychological evaluation in cases where there is a claim for psychological damages. However, the Plaintiff’s counsel has the ability to set some parameters for how the evaluation will be conducted, and to have an observer present to document what is done and said.
Claim: A demand for compensation or assertion of a right.
Claimant: A person who makes a claim or asserts a right. The plaintiff in a personal injury case may also be known as the claimant.
Class Action A lawsuit in which a court authorizes a person or small group of people to represent the interests of a large group of people with common characteristics or interests. This type of case may be brought in state or federal court depending on the types of individuals or entities in the class and what kind of claims they are pursuing.
Closing Argument: The last opportunity for the attorneys representing each party to communicate directly with the judge and/or jury about their theories of the case, explain contested facts, and
argue why their side should prevail.
Comparative Fault: A legal doctrine which essentially says that both parties played a role in what happened and thus both are at fault to some degree. Comparative fault ultimately reduces the Plaintiff’s recovery in proportion to the percentage of negligence or fault attributed to them. For example, if a Plaintiff was awarded $100,000.00 dollars in damages but was found to be 25% at fault, their award will be reduced by 25% to $75,000.00.
Competency Or Capacity: Whether or not a person is able to make informed choices about their legal claims, living situ- ation, finances, or health care. A judge must hold a hearing (no jury involved) and be given convincing evidence that the person cannot make informed choices. People who lack the ability to make these choices are called “incompetent” or “incapacitated” and may not be required to testify or participate in their case to the extent a competent person would be.
Complaint: The written document filed by the Plaintiff with the court which initiates a lawsuit. The complaint sets forth the facts of the incident, the Plaintiff ’s general injuries, damages, why the Defendant is liable for them, and what types of compensation are being requested.
Common Law: A body of law derived from decisions made by a judge as opposed to statutory laws passed by the legislature. Common law supplements but does not replace statutory law.
Compensatory Damages: Money awarded to compensate an injured individual for what they have experienced because of the negligent act. This involves two parts. The first is to reimburse actual costs called special damages, such as past and future medical bills and lost earnings, lost earning capacity, damage to personal property, etc. The second is for general damages including elements such as past and future pain and suffering, reduction in the quality of life, permanent partial impairment, etc.
Consolidation: the process by which one or more lawsuits with the same facts and/or involving the same legal issues are combined into one case in an effort to speed the judicial process and promote judicial economy. This is a common tactic used by the insurance defense attorney so that he/she does not have to try the same case against the defendant more than once, when there are multiple injured parties from the same injury-causing event.
Contempt Of Court” Or simply “contempt.” Statutory law defining punishment for anyone failing to follow the judge’s orders in a court of law.
Counsel: A general way to refer to the attorneys involved in the case.
Counterclaim: The Defendant sues the Plaintiff to the case for damages for which the Defendant claims the Plaintiff is legally liable or at fault. A counterclaim is asserted in the Answer to the Complaint.
Court Reporter: An individual who makes an exact written record of the testimony at deposition, trial, or arbitration. The court reporter will be present at a deposition or trial, type in real time on a special typewriter what is said word for word, and will also tape record the questions and answers to ensure accuracy of the written record.
Court Rules: The rules governing legal proceedings in all courts. In Washington many counties also have Local Rules (LR) specifying rules of practice unique to that county.
Court Of Appeals: This court is established to review appeals from the trial court. It can affirm or overturn, in whole or in part, a trial court’s decision on legal issues.
Cross Claim: A type of claim that is made where there is more than one Defendant in a lawsuit and one Defendant brings a claim against another Defendant in the same lawsuit asserting that party is responsible for some or all of the Plaintiff’s damages.
Cross Examination: The questioning of a witness by the opposing party. This follows the direct examination of the witness by the attorney for the side in whose favor he/she is testifying (see also impeachment).
Decree: A judgment or order issued by a court.
Declaratory Judgment: A judgment by the court which declares the rights of the parties, or expresses the opinion on a question of law, without ordering anything to be done. For example, where an insurance company has denied that the policy covered a type of claim, the court will enter a declaratory judgment stating whether or not the claim is covered. If the judge determines it is covered, there will have to be further action to determine what the amount of payment on the claim should be.
Deductible: An amount of money a person must pay for their health care costs before their health insurance company will begin to pay for any other health care costs. Generally, a person must pay a deductible every year. This can also apply when making a claim for property damage from your own insurance company following an automobile collision.
Defamation: Injury to a person’s character, fame, or reputation by false and malicious statements that exposes that person to public contempt, hatred, ridicule, or condemnation (see also libel and slander).
Default Judgment: When a Defendant fails to file a written Answer to a Plaintiff’s Summons and Complaint in a timely manner, the Plaintiff may ask the court to enter a judgment against the Defendant. Most often in personal injury cases, these judgments are set aside once the Defendant begins to comply with the rules and initiates a formal defense by filing an Answer.
Defense Medical Exam (Dme): Also known as the Civil Rule 35
Examination (CR35) allows the defense, with good cause, to have a medical expert of their choosing examine and evaluate the Plaintiff’s injuries. This may also include a psychological evaluation in cases where there is a claim for psychological damages. Plaintiff’s counsel has the ability to set some parameters for how the evaluation will be conducted, and to have an observer present to document what is done and said.
Defendant: The party the Plaintiff claims is responsible for his/her damages and from whom the Plaintiff seeks some form of relief; the person or entity that has been sued.
Demand Letter: A letter expressly stating a legal right and an amount due as reasonable compensation for injuries to a person and/or property. This is often sent to the at-fault party’s insurance company prior to a lawsuit getting filed with the Court. However, a demand letter may be sent after a lawsuit has been initiated.
Deposition: A form of discovery whereby the attorney calling for the deposition has the right to ask questions and obtain answers from a party, witness, or expert while that individual is under oath. Notice of the deposition must be served on the party or witness at least five (5) days in advance of the date of the deposition unless the parties agree otherwise. A court reporter makes a word for word record of all that is said at the deposition.
Direct Examination: The initial questioning of a witness by the attorney for whose side the witness is testifying; cross examination by the other attorney follows direct examination.
Direct Evidence: Evidence that stands on its own to prove an alleged fact.
Directed Verdict: In a civil law case, a judge may tell a jury what their decision or verdict must be when there is not enough evidence to support any other conclusion.
Discovery Process: The procedures for obtaining and examining documentary and physical evidence, as well as questioning of individuals through which the parties learn about the other sides’ case. Inquiries are allowed which are reasonably calculated to lead to the discovery of admissible evidence. The primary methods by which discovery is obtained are interrogatories (written ques- tions), Requests for Production of documents and things, and deposition (oral examinations).
District Court: These are courts of limited jurisdiction in Washington which can decide most types of cases whose claimed value does not exceed $75,000.00. Cases involving real estate, false impris- onment, defamation, malicious prosecution, or actions against executors of wills, cannot be brought in this type of court.
Dismissal With Prejudice: A court order by which a case is dismissed and the Plaintiff is barred from bringing another action on the same claim or set of facts.
Dismissal Without Prejudice: A court order by which a lawsuit is dismissed but the Plaintiff is allowed to bring a new lawsuit on the same claim at a later time within the applicable Statute of Limitations. This may happen for example, where there is a legitimate claim but the Plaintiff has not been able to produce enough evidence to reasonably proceed at that time.
Docket: A calendar or agenda of court proceedings prepared by the Clerk of the Court. For example, a trial docket is a list of cases set to be tried at a specified date and time. It also refers to the list of documents in a case that have been filed with the Clerk’s office and the date on which they were filed.
Durable Power Of Attorney: A legal document that appoints a person or agency to use your money to pay your bills and make medical decisions for you. Nursing homes or service providers are often appointed durable power of attorney to handle money and other decisions for the people with disabilities whom they serve. Not to be confused with Power of Attorney.
Duty: An obligation imposed by law or contract to conform with specific standards of conduct in light of the risk. Breach of a duty can potentially subject the actor to liability to another for whom the duty is owed.
Earning Capacity: the ability to earn a living based on a person’s education, training and experience. A person’s earning capacity can be affected in a serious collision or incident if they can no longer return to their pre-injury career or profession.
Economic Loss: See Special Damages.
Element: each factor or component that comprises a claim or cause of action and which must be proved separately.
Equitable Estoppel: a legal principle by which a person may be precluded by action, conduct or silence when there is a duty to speak, from asserting a right that should have been exercised.
Evidence: Any demonstration of a fact that tends to prove or disprove the existence of a fact at issue in the case. Evidence can take many forms such as written statements by witnesses, oral testimony under oath, bills, records or other writings, photographs, etc., in other words anything that sheds light on or establishes a point in question that must be answered by the trier of fact (judge or jury) in the case.
Exhibit: This can be either a documentary piece of evidence admitted by the judge during a trial for consideration by the jury or an item such as a chart or PowerPoint slide not admitted as evidence but used to help illustrate a point being made by one side or the other. If it is an admitted exhibit it is given an identification number and can be taken into the jury room for further consideration while illustrative exhibits cannot.
Expert Witness: An individual who possesses specialized knowledge through skill, education, training, or experience beyond that of the ordinary person or juror, and whose knowledge will aid the triers of fact (jury, judge, arbitrator) in reaching a decision. Typical expert witnesses in a traumatic injury case are medical doctors, engineers, therapists, accident reconstructionists, or experts in a specific field relevant to the case.
Family Car Doctrine: The legal theory under which a parent is liable for the negligent conduct of a family member driving the vehicle. In order for parents to be held liable, the car must have been owned, provided or maintained by the parent, for the common use of family members, and driven by the family member with the consent of the parent when the collision occurred.
Federal Courts: Courts of the United States created by Article III of the Constitution or by Congress. Lawsuits filed in federal court include cases in which an agency of the federal government is named as a Defendant or where the Plaintiff and Defendant reside in different states.
Federal Law: Laws that apply equally to all Americans no matter where they live in the United States. Federal laws are different from state laws, as state laws apply only to individuals who live in a particular state. Federal law consists of both legislative (statutory) law, judicial (common) law, and regulatory law.
Foundation: The process of providing the basis for admission of testimony by a witness (particularly an expert witness), a document or other piece of evidence. The foundation assures the court of the qualification of the witness to give the testimony sought or the authenticity of the document or physical evidence presented. When being done by the attorney, it is commonly referred to as “laying a foundation.”
General Damages: Money damages for pain and suffering, disability, reduction in quality of life and other elements that do not have a specific dollar amount attached to them, unlike a bill for health care services.
Guardian: A person with the lawful power and duty to take care of an individual and manage that person’s property and/or rights.
Guardian Ad Litem: An attorney appointed by the court to take legal action on behalf of a minor or an adult not able to handle his or her own affairs.
Health Insurance Portability And Accountability Act (H.I.P.P.A.): A federal law passed in 1996 to help people buy and keep health insurance. The law also includes privacy protections which supplement patient protections and rights under Washington state law.
Hearing: Proceedings at which a judge, arbitrator, or administrative officer makes determinations of fact or law after argument by both parties. This encompasses proceedings that occur during the course of the case and proceedings that are binding such as an arbitration hearing. Administrative hearings may be investigative or result in a final order or determination of the matter.
Hearsay: Refers to statements made by persons other than the person testifying. The statement is a mere repetition of what the witness has heard others say out of court. Generally, hearsay evidence is not admissible and is excluded from consideration by the trier of fact. However, there are numerous exceptions. One such exception is a statement made for the purpose of medical diag- nosis or treatment, including description of medical history, past or present pain, sensations, etc.
H.I.P.P.A.: Refer to Health Insurance Portability and Accountability Act in this glossary.
Hung Jury: A jury which is unable to agree on a verdict after a suitable period of deliberation; sometimes referred to as a dead- locked jury. The result is a mistrial and the case may be tried again by a different jury or judge.
IME: Stands for Insurance Medical Examination or Independent Medical Examination, a type of medical evaluation by an insurance doctor. This type of examination occurs prior to litigation beginning and is requested by the patient/insured’s own insurance company. In a litigation context the Defendant requests a Court Rule 35 evaluation by a doctor chosen by the Defendant.
Incapacity Or Incompetency: A legal decision made by a judge that a person lacks the ability to take action or make informed choices about their property, finances, legal claims, health, or living situation.
Indemnify: An agreement whereby one party agrees to secure another party against an anticipated loss or damage. For example, when you purchase insurance on your car, your insurer is indemnifying you from the losses that may occur up to the limits of your insurance policy.
Inadmissible Evidence: Evidence that, under the established rules of evidence, cannot be admitted for consideration at a hearing or trial. Reasons for why evidence may not be admissible vary greatly and may include the manner in which it was obtained, the nature of the evidence itself, or a lack of proper foundation.
Injunction: A court order either preventing or requiring a party to do something. An injunction may be granted as part of a final judgment. A preliminary injunction may be issued before a final judgment only where it is likely the party requesting it would suffer irreparable injury if the injunction is not granted, or in any case specially authorized by statute.
Insured: The person who purchases an insurance policy or is otherwise covered by it.
Interpleader: When multiple injured parties are staking a compen- sation claim to an insurance policy that is inadequate to cover all of the claims presented, the insurance company may file an inter- pleader action whereby it places the full policy amount with the registry of the Court and lets the injured parties litigate amongst themselves to prove the priority and amount of their claims.
Intervening Cause: a cause that intervenes between the original act that interrupts the natural course of original events, thereby breaking the connection between the defendant’s negligent action relieving the defendant of any liability after that intervening event.
Impanel: The process of selecting and installing a jury to hear and determine a case.
Impeachment: A technique used during cross-examination to discredit the testimony of a witness. Impeachment can be accom- plished in a number of ways: by demonstrating and emphasizing the difference between the witness’s testimony at trial and a prior statement, by showing bias, or by showing erroneous assump- tions made by the witness in drawing conclusions, etc. The intent of impeachment is to show the jury that the witness cannot be believed such that their testimony will be disregarded or given little weight.
Insurer: The underwriter or insurance company with whom a contract of insurance is made which may or may not provide coverage for the event injury.
Interrogatories: Written questions submitted by one party to another party during the discovery process to which written answers must be given under oath. The information inquired about can be broader than what will ultimately be allowed as admissible evidence at a hearing or trial.
Joint And Several Liability: A legal doctrine that makes each of the parties who are responsible for an injury responsible for all the damages awarded in a lawsuit so that the plaintiff can obtain the full monies awarded even if one of the at fault parties cannot pay. In a Washington state personal injury case, this has been limited by Washington law, and only applies where the injured person was completely without fault or responsibility for their own injuries and damages.
Judge: The official given the authority and responsibility to preside in a courtroom, during litigation and make legal rulings on matters brought before the court by either party.
Judgment: A final order which puts an end to a lawsuit. The judgment states the final amount of any monetary award made to a party by a judge, jury or arbitrators, as well as which party must pay for it.
Jurisdiction: The authority given by law to a court to try cases and rule on legal matters. This can be designated by geographic area, subject matter or type of case, or a combination of these elements.
Juror: A member of the jury.
Jury: A group of persons selected from the citizens of a particular district who are sworn to inquire of certain matters of fact, declare the truth upon evidence presented to them and award damages. In personal injury cases, either party may ask for a jury trial. Depending on the court, a jury will consist of 6 or 12 people. With a six-person jury, five out of six jurors’ votes are needed for a verdict. With a twelve-person jury, ten jurors votes are needed for a verdict to be reached.
Jury Instructions: The judge’s written directions to a jury setting forth the legal concepts/rules that control their determination of the facts and issues in the case. A set of jury instructions is given to the jury just prior to its deliberations. The instructions are taken primarily from pattern instructions adopted by the Supreme Court of Washington, but also from previously determined cases dealing with similar issues.
Lawyer: A professional having passed state examinations (the Bar) who is licensed to practice law in that state. Synonymous with Attorney.
Lay Witness: A person without special skill or training, with knowledge based on his/her first-hand observations, whose testimony is helpful to determine the facts at issue. Liability lay witnesses testify regarding the facts of the collision or injury-causing incident. Lay damage witnesses testify regarding the Plaintiff’s injuries and the effects of those injuries on the Plaintiff’s lifestyle.
Leading Question: A question which suggests an answer with which the witness is asked to agree. A party generally may not ask its own witness leading questions. Leading questions may be asked only on cross-examination or with hostile witnesses.
Liability: Responsibility or fault for an incident resulting in injuries and damages to person and/or property.
Libel: To publish in words or photographs, or broadcast through radio, television, or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the targeted person into ridicule, hatred, scorn, or contempt of others. To succeed in this claim the person must be able to prove the statement about him/her was a lie.
Lien: When someone puts a claim on your case in the amount of a debt you owe them in order to secure payment of the debt. A health care provider has a statutory right to place a lien on the Plaintiff’s personal injury claim to guarantee that his/her bills will be paid when the Plaintiff’s case concludes.
Liquidated Damages: A provision in a contract that sets a dollar amount to be paid by one party to the other should a party to the contract violate or be in breach of the contract. The money would be paid by the party breaching the contract as a form of pre-deter- mined damages.
Litigation: A broad term that covers the process of a lawsuit from initial filing, through discovery to ultimate resolution.
Litigants: The persons, also know as parties, involved in a lawsuit.
Local Rules: All courts follow a set of rules which apply to courts of the same type across the state, local or federal jurisdiction known as Court Rules. Some courts, however, choose to add their own specific sets of procedural requirements or “local rules” which they feel help secure just, speedy and cost effective resolutions brought in their court.
Loss Of Consortium: A claim whereby the uninjured spouse of an injured party may bring a separate and distinct action against the wrongdoer for loss of society, affection, assistance and conjugal fellowship, and loss or impairment of sexual relations in the marital relationship.
Loss of Use: a claim for reasonable compensation for the time you are without the use of your property while it is being repaired or replaced.
Malpractice: Misconduct in a professional capacity through negligence, carelessness, lack of skill, or malicious intent. Most often associated with medical doctors but it can apply to any profession, including attorneys.
Mandatory Arbitration: A statutory provision which allows a party who has filed a lawsuit in the Superior Court of Washington to waive all claims for damages in excess of $50,000.00 and submit their case to an arbitration hearing rather than proceeding to trial. The arbitrator will render a decision that resolves the issues of fact, law, and damages as would a judge and/or jury in a trial. If either party is not satisfied with the arbitration award they can appeal the award which then requires a trial be held as if the arbitration hearing had never happened. The risk to the appealing party is that if it does not obtain a better result at trial, it must pay the costs and attorney fees of the other party. Not all counties have mandatory arbitration.
Mediation: A form of alternative dispute resolution where, in an informal setting with the parties separated, an impartial third person meets with and shuttles between them attempting to find common ground so that a compromise can be reached to settle the claim. If a settlement cannot be reached the parties then proceed to trial as if the mediation never happened with no penalty to either party.
Minor: A person who is under the age of legal competence. In Washington, a person less than eighteen (18) years old.
Mistrial: a Trial which is terminated before its normal conclusion. The judge may declare a mistrial because of some extraordinary event, prejudicial error that cannot be corrected, or because of a hung jury.
Mitigate: To diminish or reduce. An injured party has the duty to mitigate his/her damages, including pain and suffering, by taking reasonable steps to reduce economic loss and get better.
Motion A formal written request, submitted by a party to a court on a specific issue, requesting a decision by the judge on that issue. For example, a motion can be brought on whether there is good cause for a Civil Rule 35 Examination of the injured person, or on the conditions and parameters of that examination.
Motion In Limine: A motion brought before trial requesting the court to exclude or limit certain types of documentary evidence and/or testimony which is not relevant to the issues or is unfairly prejudicial.
Negligence: Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances, or in not doing some act that a reasonable person would have done.
Negligence Per Se: When a person or entity violates a statutory law or administrative code. For example, violations of statutes and administrative codes relating to electrical fire safety, use of smoke alarms, or driving while under the influence of intoxicating liquors and/or drugs are actions that are considered negligence per se.
New Money: in the insurance industry, the phrase “new money” means a settlement offer separate and apart from the Personal Injury Protection (PIP) benefits paid.
Notice Of Claim: An additional step and prerequisite to filing a lawsuit in a few particular situations, including those against any governmental agency or its employee, as well as in the case of a medical malpractice claim against a healthcare provider. The document describes the claim in detail (date, type of incident, extent of damages or injuries, etc.) and must be served on the party allegedly responsible for those injuries and damages before a lawsuit can be filed. The claim will either be accepted or rejected. The notice of claim requirement must be strictly complied with or the case will be dismissed.
Nunc Pro Tunc: Latin for “now for then.” This phrase is occasionally used when a Judge makes a correction to an Order already entered and wants the revision to apply retroactively, as if it was previously done on the original date the Order was signed.
Objection: A statement by an attorney opposing specific testimony or evidence when it is offered by the opposing party. An objection is either sustained (allowed) or overruled (denied) by the judge.
Offset: Any prior payment(s) made by the at-fault insurer that serves to reduce the amount due to be paid at the time of settlement or judgment.
Opening Argument: The attorney’s first opportunity to introduce the jury or other trier of fact to the case including what evidence will be revealed through the witnesses’ testimony and exhibits.
Order: A directive of a judge.
Ordinances: Laws passed by the legislative body of a city government.
Ordinary Care: That care which a reasonable and prudent person
would exercise in the same or similar circumstances.
Overrule: The court’s denial of a motion or objection.
Paralegal: An assistant to the attorney with an educational background allowing them to understand and work effectively with the legal process. Some of the background work in a case is completed by the paralegal working under the supervision of an attorney.
Pain And Suffering: An element of the general damages sought by the Plaintiff from the Defendant in a personal injury case which does not have a hard and fast dollar value amount. The amount of money to be awarded for this element is determined by the trier of fact hearing the evidence in the case whether that be a judge, jury or arbitrator.
Party: A person or entity that is a named in a legal proceeding or transaction.
Peremptory Challenge: The right held by each of the parties in a jury trial to have a juror dismissed before the trial begins without stating a reason. The number of these challenges is limited by the court and varies between jurisdictions. Once the peremptory challenges have been used the only way for a party to have a potential juror dismissed is if it can be demonstrated that they will not be impartial.
Perjury: False or misleading testimony by a witness who is under oath to tell the truth. A criminal offense punishable by jail time and or monetary fines.
Personal Injury Protection: Often referred to as “PIP.” This is a benefit under auto insurance policies which pays medical expenses (with no deductibles or co-pays) up to a defined limit, wage loss and household services expenses incurred as a result of a motor vehicle collision. PIP coverage is mandatory in Washington, but it may be rejected in writing by the policyholder.
Plaintiff: The party who requests damages and initiates a civil lawsuit.
Pleadings: The formal, written documents filed by the Plaintiff and Defendant with the court which explain the basis of their respective claims and defenses in a case.
Power Of Attorney: A legal document authorizing one person to act as an agent or attorney for another. Not to be confused with Durable Power of Attorney.
Prejudice Outweighs Probative Value: Rule of evidence which provides relevant evidence may be excluded from consideration if its probative value (its potential value to help establish a point of fact at issue in a case) is substantially outweighed by the danger that it may confuse or mislead the jury, or unfairly prejudice the opposing party.
Privilege: Legal protection against disclosure of information exchanged in confidence between parties in certain defined protected relationships. The intent is to foster honest, open communications by protecting these from disclosure during the course of a lawsuit. Privileged communications include those between attorney/client, doctor/patient, priest/penitent, and husband/wife.
Preponderance Of The Evidence: Standard for the evidence necessary for a Plaintiff to win in a civil law case. The evidence in the case must be of greater weight or more convincing than the evidence which is offered in opposition. Sometimes referred to as
‘more probable than not’ or to a 51% certainty.
Pro Bono: From a Latin phrase “for the public good” used to identify work being performed by an attorney without pay to assist those with legal problems who can not afford to pay for legal representation.
Pro Se: A party who appears for and represents himself/herself in court without retaining an attorney.
Protective Order: A court order preventing certain information from being disclosed in a lawsuit in response to an objection to a discovery request which seeks information of a sensitive nature, that is not relevant, or is harassing in nature. A common example is medical information that is clearly irrelevant to the injuries claimed, will not lead to admissible evidence, and which is of a sensitive, prejudicial, or privileged nature. The court may grant a protective order upon the motion of a party allowing a party or witness to disregard a discovery request for that information. In some instances, protective orders may allow the defense attorney to review the information, but will dictate how the information is to be stored, who has access to it, and what happens to the information once the case concludes.
Proximate Cause: Refers to the cause which leads directly to a particular injury-causing result. A person generally is liable only if an injury was proximately caused by his or her action, or by his or her failure to act when he or she had a duty to act.
Question of Law: A question that depends on an examination of law rather than fact. Such questions are decided by a judge rather than by a jury, and are often examined on appeal.
Reasonable Medical Certainty: Standard for admission into evidence of health care provider opinions concerning the Plaintiff’s condition, diagnosis, cause of injury, impairment, disability, prog- nosis, and future treatment needs. A doctor’s opinion cannot be based on possibilities, but rather must be founded on probabilities. Reasonable medical certainty means “more probably true than not.”
Reasonable Person: A phrase meaning what a hypothetical person in a similar situation would do when exercising the amount of attention, knowledge, intelligence, and judgment society requires for the protection of their own interest and the interests of others. This is the standard against which the allegedly at-fault person’s conduct is compared. That person was negligent if they either failed to do something that a reasonable person would do, or did some- thing a reasonable and prudent person would not do.
Release: Waiver, relinquishment, or giving up a right, claim, or demand.
Relevant Evidence: Evidence (such as testimony from witnesses, docu- ments, photographs, reports, or other items) which makes the exis- tence of any fact or issue in a case that is of consequence to the determination of the action more or less probable than it would be without the evidence. Generally, only relevant evidence is admissible.
Requests for Admission: similar to Interrogatories, Requests for Admission are written questions submitted by one party to another party during the discovery process to which written answers must be given under oath. The purpose of Requests for Admission is to eliminate or narrow matters which will not be contested at trial. Requests for Admission ask the opposing party to admit or deny uncontested factual issues in a lawsuit so that time at trial can be spent on contested factual issues in the case.
Respondent: The non-appealing party in an appellate case who seeks to have the prior decision of the lower court affirmed.
Revised Code Of Washington (RCW): Is the compilation of all the statutory laws enacted by the Washington State legislature. The RCW is organized topically into volumes, containing chapters and sections.
Rules Of Evidence: Standards determining which testimony, documents, etc., may be admitted into evidence to be considered by a judge or a jury in deciding the facts and issues in a case.
Satisfaction of Judgment: This is a document signed by the person in whose favor a judgment was entered stating that the full amount due has been paid by the person against whom the judgment was entered.
Service Of Process: The formal delivery of notice of a legal document to insure the opposing party is aware of the action and is given an opportunity to respond to it. ‘Personal service’ means the actual delivery to the person to whom it is directed and is usually required for the initiation of most lawsuits. “Substitute service,” where notice is given by other means such as publication in a legal notice or provision of the documents to the Secretary of State, is allowed under certain limited circumstances, usually when a defendant’s whereabouts are unknown.
Settlement: A final resolution of a claim by agreement between the parties.
Set-Off: a counterclaim that serves to reduce or eliminate the amount of recovery being asserted by the plaintiff in a lawsuit.
Settlement Conference: An alternative dispute resolution process occurring prior to trial in which a judge attempts to help the parties reach a negotiated resolution of the claims at issue in the case. If the parties are unable to reach an agreement they then proceed to trial.
Slander: A spoken untruthful statement about a person that harms the person’s reputation, office trade, business, means of livelihood, or standing in the community. A form of defamation.
Small Claims Court: Court of limited jurisdiction, available for resolution of disputes by the parties without attorneys. Original purpose was to “bring justice home to every man’s door.” Limited to claims with values that do not exceed $4,000.00. Parties represent themselves at the hearing.
Special Damages: Elements of a claim consisting of costs or expenses with a set dollar amount attributable to any injury or loss, including past, present, and future income loss, treatment costs, and other out-of-pocket expenses.
Stare Decisis: Latin for “let the decision stand.” This legal principal guides judges to follow previous court decisions or precedents on questions of law. This is designed to provide certainty, consistency, and stability in the way the law is applied.
Statute: A written law enacted by the legislature.
Statute Of Limitations: Laws which govern the time frame during which a lawsuit must be filed, and beyond which the claim can no longer be made at all. Statutes of Limitation differ from state to state and according to the nature of the claim. In Washington, the limitation period applicable to most claims for personal injuries and damages caused by negligence, is three years.
Stay: A court order which temporarily suspends court proceedings or the effect of a judgment. A Stay is sometimes provided for by law, such as by the federal Soldiers and Sailors Civil Relief Act that stays suits brought against active duty military personnel in most circumstances.
Stipulation: A written agreement by opposing parties in a case as to any manner pertaining to court proceedings or trial. Stipulations serve to simplify and expedite proceedings when parties agree on certain facts or procedures.
Strict Liability: Is a legal doctrine that through statute or common law makes a person liable for injuries and damages their actions or products cause, regardless of any negligence on their part. An example is in the case of dog bites, where the dog owner is strictly liable under Washington law for damages to be proven when their dog bites another person.
Sua Sponte: Latin phrase meaning on his or her own motion without prompting or suggestion. For example, when a judge issues a ruling without any party filing a motion.
Subpoena: A written command requiring a person to appear at a certain time and place to give testimony at a deposition or other proceeding including trial or hearing.
Subpoena Duces Tecum: A written command requiring a witness to produce documentary or other tangible evidence he/she possesses or controls and which are relevant to matters at issue in the case.
Subrogation: When an insurance company pays the claim of a policy holder, it also requires the policy holder to return the money if they obtain compensation from a person or manufacturer who caused the accident or damage. This is called subrogating the claim.
Subrosa: Latin for “under the rose.” It is a term that means secrecy and in the insurance industry, it is a term still employed by senior insurance adjusters when they talk about performing surveillance on an injured party making a claim for compensation.
Summary Judgment: A procedure by which one party seeks to persuade the court that there is no genuine issue or controversy regarding material facts, and accordingly, that the party filing the motion is entitled to prevail as a matter of law. For example, if a motion for summary judgment by the Plaintiff is granted by the judge on the issue of fault, then the Defendant becomes responsible for any and all damages that are proved by the Plaintiff.
Summons: Notice to all Defendants that a lawsuit has been commenced, that they have been named as a Defendant, and that they must answer the Complaint within twenty (20) days or a default judgment may be taken against them.
Superior Court: The primary trial courts in Washington State. Superior Courts are administered by the counties and are the courts with general jurisdiction for claims in matters exceeding $300.00, as well as cases involving probate, family law, real estate and criminal felonies. They also have jurisdiction over appeals from District Court.
Supersedeas Bond: a bond that must be filed by a losing party appealing a verdict from which judgment may be entered if the appeal is unsuccessful.
Supplemental Proceedings: A legal proceeding that occurs after entry of Judgment in an attempt to discover assets that may satisfy the Judgment. Typically, this involves forcing the debtor to appear in court to answer questions in front of a judge or in a deposition at the attorney’s office.
Supreme Court of Washington: The highest appellate court in Washington State. The Washington Supreme Court is the final arbiter of most legal issues raised in the state courts of Wash- ington. The Supreme Court decides cases that come before it because one of the parties to the suit had a right to further appeal, or because the Court exercised its discretion to hear a particular matter on appeal.
Sustained: When a judge agrees that an attorney’s objection to the other attorney’s question or evidence being presented during trial is valid.
Tort: A French word meaning “wrong” used to describe an action or failure to act, other than a breach of contract, committed against a person or their property, for which the law provides a legal remedy.
Tort Reform Act of 1986: The Washington State Legislature made numerous and substantial changes to Washington tort liability law in 1986. Changes include automatic waiver of patient/physician privilege ninety (90) days after filing a lawsuit for personal injury, and comparative fault among others.
Tortfeasor: One who has committed a tort.
Transcript: A verbatim written record of a trial, hearing or other proceeding, such as a deposition, as prepared by a court reporter.
Trial: The judicial process of examination and determination of legal and factual issues between the parties to an action through the presentation of evidence. In a trial by jury, the jury decides questions of fact with the judge determining the law to be applied to them. In a bench trial, the judge decides both the facts and the law to be applied.
Trial Court: The court where the matter at issue is heard and decided by the judge or jury. In Washington State there are several levels of trial court with the power to determine different types and sizes of claims, such as: Small Claims Court, Municipal Court, District and Superior Court.
Trial De Novo: Means “new trial.” In mandatory arbitration, after the parties receive the award or decision, a party not satisfied with the award may appeal by filing a request for a trial with the Superior Court. The request must be made within twenty (20) days of the award being filed with the court. No reference to or information from the previous arbitration hearing or award from it can be presented at the trial. A trial De Novo in Superior Court can also occur when a party appeals a District Court trial result.
Trier Of Fact: The decision maker who will hear the evidence and decide the factual issues in a claim. This can be an arbitrator at a hearing, or a judge or jury at trial.
Venue: The appropriate place for a lawsuit where the court will have jurisdiction over the parties and the claims. In personal injury cases, the Plaintiff may sue the Defendant in the county where the Defendant resides, has his/her principal place of business, or where the collision took place.
Verdict: The final decision or finding by a jury on the factual issues of a case which is then accepted by the court and becomes a judgment.
Voir Dire: The process by which jurors are selected through questioning by the attorneys and by the judge, to determine if they are fit to serve in a particular case. A pool of prospective jurors are asked a series of questions by the attorneys designed to disclose any predisposition or biases each may have that may impact their decision making. Jurors, who display obvious bias or other reasons demonstrating an inability to serve fairly for the case, may be excused from jury service by the judge. Each party is entitled to request a certain number of jurors be excused from jury duty by preemptory challenges which do not require a specific showing of bias.
Washington Administrative Code (WAC): A collection of administrative regulations created by state agencies to carry out the laws passed by the state legislature. When regulations are proposed, they must be published and an opportunity given for public comment before they can go into effect. This also includes rules for hearing claims and appeals over which the regulatory agencies have jurisdiction.
Witness: Someone with knowledge pertaining to the facts of the case who testifies to what he or she has seen, heard, or otherwise observed. Each party must identify its witnesses prior to trial or arbitration.
Workers’ Compensation: A state program that requires employers to pay a premium to cover the cost of medical treatment and some lost pay for employees who are injured on the job, regardless of who is at fault. In return, employees give up the right to sue the employers even if the injury was the employer’s fault except in very limited and rare circumstances. An individual with a workman’s compensation claim may still bring an action against an at-fault party who is not their employer if warranted by the facts of how the injury occurred.
Writ: An order by a court requiring the performance of a specified act, or giving authority to have that act done.