Legal words and phrases can be very confusing. Accident victims often don’t even hear many of these words and terms until after they’ve been injured, even though judges, other lawyers, and insurance adjusters use these terms on a regular basis.
Knowing what these terms and phrases mean can help you better understand what your attorney needs in order to present your case. So today, we are going to break down some of the more common “terms of art” that you might hear while you meet with us, or during your trial.
- Accident report. This is the report that police fill out after they investigate an accident. An accident report can also refer to the report the emergency room fills out about the initial evaluation of your injuries.
- Damages. Damages are losses you suffer because of your injury. In a personal injury claim, you may hear the phrases:
- Economic losses. This is the money you need to spend for medical care, to repair or replace your car, and the amount of income you lose due to the accident. These sums should all be capable of verification to an exact dollar amount.
- Noneconomic losses. This is the compensation for intangible losses, such as your pain and suffering, loss of consortium, and any scarring or disfigurement.
- Punitive damages. If the driver, doctor, produce maker, or another defendant wantonly, intentionally, or recklessly caused your injuries; the defendant can be ordered to pay punitive damages. Punitive damages are meant to punish the defendant to ensure he/she doesn’t commit another similar wrong.
- Demand letter. This is a formal request by your lawyer, in writing, to the defendant’s insurance carrier or lawyer detailing the amount of damages that the lawyer thinks you deserve. The lawyer normally summarizes why the defendant is liable, explains your injuries, and provides verification for your economic losses. The demand letter includes an overall demand for compensation. The demand letter is normally the formal start of the negotiating process.
- Discovery. This is the process where each party (plaintiff and defendants) is permitted to question the other party about the case. Discovery normally includes three parts:
- Written questions;
- Oral questions, in person, before a court reporter; and
- A request for any relevant documents. Your lawyer may ask to see the defendant’s insurance policy. We may ask for documentation from a property owner, health provider, or manufacturer – about any complaints that may have been made to the property owner, the physician’s care provider, or manufacturer. We may seek many other documents depending on the facts of your case.
- Duty of care. This is the responsibility the defendant owes you to be careful. For example, a doctor has a duty of care if you have made an appointment to visit with your doctor and the doctor evaluates you and treats you. If the doctor breaches the duty of care, for example by failing to order necessary blood tests, the doctor may be liable for medical malpractice.
- Letter of protection. If you don’t have health insurance, your lawyer may issue a letter of protection. The letter assures the health provider that if the case settles or there is a successful verdict, that the doctor will be paid from the proceeds of the settlement or verdict.
- Liability. Liability refers to responsibility, and it’s the term both sides will use when discussing fault.
- Loss of consortium. This is the sum that you and your spouse are entitled to because your injuries from the accident prevent you from being intimate with your spouse.
- Negotiation. This term refers to the offers and counter-officers that are made by your lawyer and the insurance company or the defendant’s lawyer.
- Settlement. A settlement is an agreement by the insurance company or defendant to compensate you for your injuries and an agreement by you not to proceed with your claim. The key component of the settlement is the amount you agree to accept, and the insurance company/defendant agree to pay.
- Standard of care. This term refers to the quality of care that a professional, such as a healthcare provider, is required to meet when treating or advising a patient or person. A failure to meet the acceptable standard of care for a particular profession may constitute malpractice.
- Statute of limitations. This is the time you have to formally file your complaint of damages. If you don’t file by the statute of limitations date, you will forever lose the right to pursue your case. Our skilled lawyers explain the statute of limitations for your type of claim.
- Tort. A tort isn’t a pastry. A tort is basically any civil action – except for a breach of contract.
Terms you might hear from the defense
The defense in an injury claim has its own favored lexicon. You may hear any of the above terms, of course, but there are three others that are important to understand:
- Assumption of risk. In some cases, the defendant will assert that your injuries are due to the acceptance of a known risk. If you assume the risk, you will not be able to claim damages even if the defendant is negligent. The most common example of an assumption of the risk is the fan who attends a sporting event assumes the risk that the fan might get hit by a foul ball or a kicked ball. An assumption of the risk is often confused with contributory negligence.
- Comparative fault. Often, the defendant will assert that the victim/the plaintiff was also negligent. An example is where you are struck by a driver who runs through a red light while you were going 10 mph over the speed limit. In this case, a jury or insurance adjuster will determine what percentage of the risk is due to each negligent act and adjust accordingly. So, if a jury awards you $100,000, but finds you 20% at fault for your own injuries, your award will be reduced by 20%, meaning you can only receive $80,000 in compensation.
- Damage caps. In Mississippi, the amount of non-economic damages you can claim is capped at $1,000,000. There are no damage caps for economic losses, however, which often make up the bulk of any injury claim.
At Merkel & Cocke, P.A., our Mississippi injury lawyers understand how confusing and intimidating the legal process can be. That’s why we guide personal injury victims through each phase of the process. We answer your questions. We also anticipate many of the questions insurance companies and defense lawyers are likely to ask. To discuss your accident case, call us at 662-627-9641 or fill out our contact form to schedule a free consultation. We represent clients in Jackson, Clarksdale, Oxford, Tupelo, and across the Gulf Coast Region.
After graduating from the University of Virginia Law School in 1975, Mr. Cocke and Mr. Merkel established Merkel & Cocke, P.A. in 1982. Since that time the emphasis of Mr. Cocke’s practice has progressed toward medical malpractice. At the present time his practice is exclusively devoted to handling medical negligence cases for the plaintiff, either as a result of direct contact by the client or on referral from other attorneys who are not familiar with the handling of medical negligence cases. Mr. Cocke was selected Best Lawyer of the year for 2012 and 2014 in The Memphis area in the field of Medical Malpractice and has been selected a Best Lawyer and Super Lawyer every year since 2006. Learn more about John Hartwell Cocke here.