Legal Terms

During the course of dealing with your injury, you’re likely to have a lot of complex terms and jargon thrown your way by insurance adjusters, medical providers, employers and even other lawyers. In some cases, those words may be intended to intimidate or confuse you and in others, they may just be terms of art.

Part of the way we help relieve your stress is to make sure you understand what’s going on, so that you regain a sense of control and can knowledgably participate in the process and resolution of your case.  One way we do this is to talk to you person-to-person, without the typical “lawyer speak.”

To learn more about a specific term, scan our list or enter the word/s you’re looking for to see an easy-to-understand explanation.

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A

Abuse of Process

Legal action that is designed to delay, harass or intimidate an opposing party in a case.

Accident

An unintended event or series of events that leads to an injury; a term used by insurers when referencing a collision; see also collision.

Actual cash value

Usually defined in the auto policy, it is the market cost of replacing property at the time of the loss if the property is not capable of being repaired, or when the repair costs exceed the value of the property; also known as fair market value.

Additional insured

An insurance policy that provides benefits under the policy to an individual or individuals not specifically named on the policy.

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 disadvantage. 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.

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.

Alternative Dispute Resolution (ADR)

A variety of ways to resolve legal disputes without a trial.  Includes mediation, arbitration, and settlement conferences.

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 Washington has twenty (20) days to answer, admit, or deny the allegations 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 essentially 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 Washington 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.

B

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.

C

Cancellation

When an insurance policy is not renewed prior to expiration of the policy; factors can include high risk insured, non-compliance with insurance provisions or misrepresenting facts relevant to the policy.

Caption

The first page of a legal document filed with the court that designates the place the legal document is filed, the parties, and the relief sought.  Also will include the case number.

Car insurance

A policy of insurance issued to the owner of a motor vehicle that will protect against losses associated with the use or ownership of the vehicle.

Case Law

The law of a particular subject as interpreted by the Court of Appeals or Supreme Court; can annotate existing statutes or create new law.

Cause of action

A claim based in law and fact which gives one a legal right to file a lawsuit.

Certified Copy

A copy of a document, e.g. an insurance policy, signed and certified as a true and correct copy by the custodian of records.

Change of venue

The process of removing a lawsuit from one jurisdiction to another, either by stipulation or upon motion of one of the parties.

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 Action

A personal action brought against another person or entity seeking money damages or other remedies under the law.

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.

Claim Adjuster

An insurance company employee who assesses a claim for its validity and determines the value of claim presented.

Claim Reserve

A range of money set aside to pay for a claim once the claim is initiated but before the claim is settled, typically based on the value of similar claims paid and/or verdicts for similar claims after a trial.

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.

Clause

A single paragraph or section of a legal document.

Client

A person who retains an attorney to represent them in a legal matter and pursue or defend a claim.

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.

Collision

The impact of two or more vehicles, caused by one or more the drivers of the vehicles to exercise ordinary care. See also accident.

Collision coverage

a form of auto insurance that in additional to liability coverage, also covers repairs for damage to the insured’s vehicle, regardless of fault.

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.

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.

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.

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.

Competency or Capacity

Whether or not a person is able to make informed choices about their legal claims, living situation, 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.

Comprehensive coverage

Auto insurance coverage that covers damage to a vehicle other than that caused by a collision, such as hail or flood damage.

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 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.

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.

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).

D

Damages

Money or property a court or jury awards to an injured person.

Declarations page

In an insurance policy, the page that clearly outlines the coverage purchased for that policy period, the property insured and the named insured(s).

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.

Decree

A judgment or order issued by a court.

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.

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.

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.

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 evidence

Evidence that stands on its own to prove an alleged fact.

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.

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 questions), Requests for Production of documents and things, and deposition (oral examinations).

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.

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 imprisonment, defamation, malicious prosecution, or actions against executors of wills, cannot be brought in this type of court.

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 to 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.

E

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.

Emergency doctrine

A person who is confronted by an emergency not of their own making who is compelled to immediately act, is not negligent, even though the choice may not have been the wisest one when compared to a reasonably prudent person in the same or similar circumstances.

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.

Ex Parte

A legal matter brought before the court without the presence of the other party and without the need to give notice to the other party.

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.

Explanation of Benefits (EOB)

Explanation of Benefits (EOB):  A document produced by an insurer and given to an insured, not a bill, that explains what benefits were paid or not paid under the policy, and the reasons therefor.

F

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.

Fiduciary duty

A person who has the power to act for another in certain circumstances and must do so in good faith.

Foreseeability

The reasonable anticipation of potential results given the acts of a reasonably prudent person.

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.’

Fraud

The intentional misrepresentation of facts to deprive another of their money or property, or to induce another person to enter into an agreement.

Full market value

See actual cash value.

G

Gap insurance

Optional insurance for a new car that covers the difference between what is owed to the bank on the loan and the actual cash value of the car.

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.

Good faith

An honest intent to deal fairly with another without taking advantage of that person.

Gross negligence

The failure to exercise any care; total and reckless disregard for the health or safety of another.

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.

H

H.I.P.A.A.

Refer to Health Insurance Portability and Accountability Act in this glossary.

Health Insurance Portability and Accountability Act (HIPAA)

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 diagnosis or treatment, including description of medical history, past or present pain, sensations, etc.

HITECH Act

Health Information Technology for Economic and Clinic Health Act of 2009, is a Federal statute that regulates how health care providers maintain the electronic healthcare records of a patient.

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.

I

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.

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 accomplished 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 assumptions 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.

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.

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.