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During your personal injury legal consultations, trial or settlement procedures, you will be exposed to certain “legalese.” These words and phrases are used regularly by personal injury attorneys and the courts, but can feel like a second language to clients without a legal background.
While you always want to search for a lawyer who explains things to you as clearly as possible, it is helpful to have a basic understanding of common legalese.
The more you familiarize yourself with some of the most common personal injury legal terms, the easier time you will have when reading and signing documents, and being engaged in trial proceedings or settlement negotiations. Below, we have focused on terms that are routinely used in the legal world, but are not regularly used in everyday speech.
This short glossary will get you started. For a complete legal terminology resource, visit the American Bar Association website.
Accident report. Accident reports serve as important pieces of evidence in a personal injury case. They are often the first, detailed report taken immediately after the injury or accident occurred, typically by a safety manager, a police officer, hospital personnel, or some other authority figure.
Act of God. Acts of God refer to acts of nature or events/calamities that were completely out of human control, and that could not be prevented with proactive precautions. Examples include things like fires, floods and storm damage.
Alternative dispute resolution. To avoid the stress and/or costliness of a trial, legal professionals may use “alternative dispute resolutions” to attempt to resolve the case. Examples of types of alternative dispute resolution procedures include mediation, arbitration and early settlement conferences.
Attorney-client privilege. The attorney-client privilege refers to the confidentiality that exists between a client and his/her attorney. The attorney cannot share any information learned from the client if the information was divulged within the boundaries of a professional relationship. Read our post, At What Point Does Attorney-Client Privilege Begin to learn more about this privilege and its exceptions.
Bad faith claim. An assertion filed by a client against their insurance company when the insurance carrier refuses to honor their policy terms, thereby unnecessarily drawing out reimbursement/payment, or when the carrier denies a claim that was within the parameters of the policy.
Burden of proof. If you are the plaintiff in a personal injury case, it is your responsibility (typically via your lawyer) to prove that the defendant caused the injury and that you sustained an injury as a result of the defendant’s conduct.
Complaint. The complaint is the first official document filed with the court to get a personal injury case started. The complaint describes the alleged wrongdoing of the defendant and outlines the plaintiff’s resulting injuries.
Contingency fee. A fee charged by a lawyer, but only paid if the lawyer obtains a recovery, via settlement, award or judgment, on the plaintiff’s behalf. The payment of the attorney’s fee is contingent on the attorney obtaining a recovery on behalf of the client.
Contusion. This is a medical term used to describe a bruise or injured tissue where capillaries rupture underneath.
Damages. This is a broad term used to describe all of the damage a plaintiff has sustained or is otherwise entitled to claim, including economic damage, non-economic damage (a.k.a. pain and suffering), exemplary, punitive, etc.
Demand letter. This letter is sent from the plaintiff to the defendant, requesting a particular action and threatening legal action if demands are not met. This is often a first step taken before a complaint is filed with the courts.
Discovery. A process that unfolds as each side obtains evidence from one another. The discovery process usually includes depositions, interrogatories, requests for records or documents, requests for admissions, interviews, medical examinations, etc.
Duty of care. The requirement that a person acts toward others and the public with the same watchfulness, attention, caution, and prudence that a reasonable person would use under similar circumstances. Failure to honor your duty of care can result in being a defendant in a personal injury lawsuit.
Excess judgment. An amount of money paid to the plaintiff above and beyond an insurance claim’s maximum payout, typically awarded by a judge to make an impact on an insurance company accused of acting in bad faith.
Exhaustion of benefits. The running out of assistances payable to a party; all money allocated has been depleted.
First-party claims. These are claims made against your own insurance carrier rather than against another party’s insurance carrier. A common example is an uninsured or underinsured motorist claim.
Good faith. The honest intent to fulfill a promise or obligation, or to take a particular action, etc., without the intention to take advantage of another party.
HIPAA (Health Insurance Portability and Accountability) Act. A law enacted to protect the confidentiality of a person’s medical records and healthcare choices. HIPAA requires that a person give written permission before their medical records are shared with another party.
Income replacement benefits (IRBs) (a.k.a. past and future wage loss). Damages paid to the plaintiff to make up for short or long-term income loss as the result of the injury or accident - including car accidents involving negligence.
Interrogatories. A set or series of written questions sent to an opposing party. These are most often used in the discovery phase of a case.
Judgment. The final decision in a criminal, personal injury or civil case that resolves all the issues.
Known loss rule. A rule stating that one may not obtain insurance coverage for a loss that has already occurred and which was known to the insured. The rule prevents individuals from buying insurance to cover something that is already damaged, lost or otherwise in need of coverage.
Letter of protection. If you are injured and cannot pay for medical treatment, your lawyer may offer your healthcare provider a letter of protection, which guarantees the medical bills will be paid when the lawsuit or settlement is complete.
Limitation of risk. The cap on the total amount an insurer is required to pay in any single loss event.
Maximum Medical Improvement (MMI). This is the maximum level of recovery a patient (victim) will reach, despite receiving additional treatment or therapies. Once a patient reaches MMI, s/he is assessed for permanent disability.
Mediation. Using outside support with a neutral third party to settle a dispute or come to an agreement without the energetic and financial strains of going to trial.
Notary Public. A person who has been authorized by a state to administer oaths or certify documents.
Notice to Company/Insurer. A letter written to the insurer explaining the incident that occurred and upon which your claim is based.
Out-of-Court Settlement. A resolution that is reached without using the court system, i.e., via direct negotiations, or through mediation or arbitration.
Pecuniary damages. A term referencing the total financial or economic losses (income, medical expenses, lost wages, retirement benefits, etc.) resulting from the accident, event or injury.
Personal injury protection (PIP). Personal injury protection (PIP), also known as “no-fault insurance,” is a component of an automobile insurance plan that covers the healthcare expenses and lost wages associated with a car accident. PIP covers these expenses for both injured policyholders and passengers, even if there is no independent health insurance available. This is similar to medical payments protection, which covers medical care costs only.
Premises liability. The legal principles holding landowners and managers responsible when someone is injured on property they own or control due to the existence of a dangerous condition (outside of acts of God). These are typically connected to some type of negligence.
Stacking coverages. When insurance benefits from different policies or policy terms are combined.
Statute of limitations. The amount of time a victim/plaintiff has to file their claim in court after an event occurred. These limitations vary according to the crime or event. In the event of a car accident, for example, the California statute of limitations is set at two years from the date of the injury (provided the person that caused the injury was not a government employee acting in the course and scope of their employment when the accident occurred; in such case, specific claims requirements must be met within a significantly truncated period).
Strict liability. Holding another party responsible as the result of negligence or wrongdoing with little to no exceptions.
Subrogation. When a party other than the responsible one pays the settlement or honors a claim with the expectation they will eventually be repaid by the responsible party. This happens frequently in insurance claims, e.g., your insurance carrier may pay to fix your vehicle, but they expect to be repaid by the defendant’s insurer at a later date.
Tort. A private or civil wrong that is not a crime, but still results in injury or damages. Personal injury cases make up the most common type of tort claim.
Trier of fact. Typically a jury or a judge. The trier of fact reviews all of the evidence in a case and makes a decision.
Voir dire (pronounced vwahr-deer). The jury selection process during which the attorneys ask potential jurors questions in order to learn about the jurors’ potential biases.
Are you considering moving forward with a personal injury claim? Schedule a consultation with Burneikis Law. We are down-to-earth attorneys who work hard for our clients. Our legal professionals and staff always ensure our clients understand our terminology, so you never feel left in the dark.
Like priests, physicians, and therapists, attorneys take an oath to protect the confidentiality of our clients. This protection is professionally termed the “attorney-client privilege.”
It’s essential to understand what attorney-client privilege is and when it begins before consulting or hiring an attorney. There are exceptions, and certain boundaries attorneys must uphold, so knowing these boundaries enables you to make conscientious decisions about what information you do and do not disclose.
If you are able to read and understand the American Bar or California Bar definitions and explanations of the attorney-client privilege, I recommend you apply for law school. However, to protect you from the convoluted legalese, our firm uses the user-friendly Nolo version instead:
The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.
The purpose of the privilege is sound, but it comes into play only when individuals communicate with an attorney in a professional capacity. In other words, there are situations worth noting before divulging all of the information you have about a case if you don’t want to risk confidentiality.
There are general rules about when this privilege begins. Generally, the privilege is triggered:
Whenever you schedule a consultation with a lawyer, you can rest assured the attorney-client privilege is enacted. We know you are hiring us as professionals and we make it known that everything you share with us is confidential.
Similarly, suppose you email our office about a potential case and you share details about the incident or your injuries. In that case, we are obligated to honor the confidentiality of the communication because your written communication was sent to our law firm in a professional capacity.
If, however, you meet someone at a party or in the elevator and you learn they are attorneys, you cannot just share all of the information or queries you have and expect attorney-client privilege to be triggered. Instead, you need to ask the attorney first whether or not the communication will remain confidential. Alternatively, you should specify that you are sharing sensitive information and get a verbal confirmation the information will not be shared or disclosed. Otherwise, the attorney may be obligated to share some or all of what you said with the authorities or other relevant parties. Failure to confirm the confidentiality of the communication at the outset could compromise your case.
If you are concerned about the confidentiality of information shared, ask the attorney or prospective attorney directly. It is better to have peace of mind that you are protected than suffer the anxiety experienced by over-sharing.
In general, everything you share with an attorney in a professional capacity, whether during a consultation or after hiring the attorney, is kept confidential. However, there are exceptions to these general rules, including in the following situations:
Sometimes, depending on the need, clients waive their right to confidentiality and willingly share information they have with others to support their case.
If you die, your attorney may have to disclose all or some of their files or testify in court if any prospective information from you has relevance to a current case or situation. This happens most often in the course of estate or probate cases, or in cases where our clients’ heirs or other related parties require information to navigate their legal affairs.
Lawyers working for corporations may have to break confidentiality with their direct clients if the courts order them to do so due to the corporation’s shareholders’ requests or needs.
If you’ve ever had therapy, you know that therapists protect your confidentiality unless you state or imply you plan to hurt yourself, hurt someone else, or if the abuse of a child or elder is at stake. Lawyers have similar obligations. If a client expresses intentions to harm themselves or to commit a crime against another - or to further the crime in question - we are obligated to report it. Also, if the lawyer suspects you have hired them purely to “confess” or share information about crime or fraud to intentionally protect the information, we must report such to the proper authorities.
If two or more parties have separate attorneys but are allied in a common interest, there are scenarios where information is shared or certain conversations may be privy to others.
You may remember the American Patriot Act that was ordered by the U.S. Congress in the wake of 9/11. This act and the ensuing rules “...authorizes the Attorney General to order the [Bureau of Prisons] Director to monitor or review communications between inmates and lawyers for the purpose of deterring future acts that could result in death or serious bodily injury to persons or property…” and there only need to be certain suspicions in place for the rule to be enacted.
Your attorney will let you know if they suspect the information you share might fall within one of the exceptions to the attorney-client privilege.
Are you interested in scheduling a confidential consultation with a Bay Area personal injury and accident lawyer? Contact Burneikis Law.
