Sometime in your life you may have been introduced to the complex language of the legal field, whether it be watching a film or TV show, talking to a friend who was involved in a court case, or even on jury duty. A comprehensive glossary of terms used in the practice of Personal Injury Law could be quite long. Our latest blog will introduce you to key terms you are likely to hear when you have been injured and seeking legal help, especially if your lawyer is recommending filing a court case. Here are a few useful terms you might encounter. We have included several because they are simply interesting….
A settlement is a legal, binding agreement between parties to a dispute or conflict that avoids the necessity of going to trial. This term is the first and most important bit of “legaleeze” to learn (and easiest!). Approximately 95% of personal injury cases are settled out of court. Generally, a settlement can take care of your major expenses related to the accident, your legal fees, and some of the intangible losses you suffered.
Statistically, injured people receive higher compensation in pre-trial settlements than is typical for cases that go to trial. Hiring an experienced personal injury attorney can be the right decision to ensure maximum recovery of everything you are due.
PERSONAL INJURY LAW
Did you know that “loss of enjoyment of life” at the hands of someone else is defined under the law as personal injury? A personal injury occurs when a person’s mind, body or emotions are injured because of the negligence, carelessness, or wrongful conduct of another person. Personal injury law is one kind of tort law (see below).
ECONOMIC, NON-ECONOMIC, and PUNITIVE DAMAGES
Economic Damages refer to objectively verifiable monetary losses such as medical expenses.
Non-economic damages refer to subjective losses such as loss of companionship, pain, suffering, and the loss of enjoyment of life.
Punitive Damages are awarded with the purpose of deterring intentional or reckless behaviors or actions motivated by malice. Drunk driving is a perfect example of a case in which it would be appropriate to assign punitive damages, since the defendant would definitely have made a decision to engage in behavior that put others at risk.
CIVIL LAW vs. CRIMINAL LAW
Civil Laws apply when an individual has had his or her rights violated or when individuals have disputes. Personal Injury is a kind of civil law that can result in money awards.
Criminal Law cases are only conducted through the criminal court system. Laws at the local, state, and federal levels define criminal activities and establish legal punishment for those convicted of crimes like assault and theft. The government brings charges against the defendant that may result in the imposition of fees, fines, restitution, probation and/or jail time.
Tort Liability refers simply to responsibility for an action and indicates that someone is held accountable for wrong actions. The word Tort derives from a Latin word that means “harm” or “wrong”. The main job of a personal injury lawyer is to establish liability. An experienced lawyer has the skills to build sufficient evidence to successfully build a case. A tort is a wrongful act that causes harm to someone else. Torts in the legal system are split up into many different sub-categories as there are so many kinds of injuries. Generally, torts are caused by negligence..
Strict Liability refers to a situation in which the defendant did not intentionally cause harm, but their actions posed an obvious risk such as keeping a large mountain lion as a pet. Most people recognize that as abnormal and dangerous, i.e., you don’t need to actually intend harm, but someone ends up injured anyway.
REASONABLE PERSON STANDARD
Lawyers need to refer to a standard of care to compare with the defendant’s conduct. They do this by referring to the Reasonable Person Standard. This “person” is not an actual person but is a profile of a reasonable and rational individual who approaches a situation with an appropriate ability to size it up and take reasonable steps. For example, a reasonable person would realize that that mountain lion kitten is going to become very big and eventually pose a risk to others. The Reasonable Person Standard serves as a comparative standard for courts to assess liability.
PLAINTIFF and DEFENDANT
In a personal injury case, the Plaintiff is the person or entity that files the lawsuit.
The person or entity being sued is called the Defendant.
THE FOUR ELEMENTS OF NEGLIGENCE
Juries are instructed to compare the facts, testimony and evidence determining whether the following four elements were present:
- DUTY OF CARE: The defendant had an obligation to the plaintiff. For example, your physician has a duty to provide the best of care available and to follow the most widely accepted standard of care. If a doctor, for example, confused your medical records with another person resulting in harm, the law recognizes a relationship between the two parties and therefore an obligation to provide reasonable care exists.
- BREACH OF DUTY: The defendant owed you a duty of care that was breached. A store didn’t clean up a spill promptly in one of the aisles, causing a customer to fall and incur injury.
- CAUSATION: Putting it all together, causation requires a plaintiff to show that the breach of duty was the cause of the plaintiff’s injury. This can be tricky. If you are rear-ended in an accident and are already experiencing chronic back pain, how do you establish that the pain is caused from the accident?
- DAMAGES: Actual losses as a direct result of the party’s negligence.
BURDEN OF PROOF
In a civil case, it is the plaintiff’s responsibility to prove that they were injured by the defendant in order to recover damages. In civil court, the standard requires that liability must be proven by a preponderance of evidence, which means the greater weight or more convincing evidence. For instance, the plaintiff needs to prove that the defendant was more than 50% at fault for the injury.
Sadly, there are many ways in which people interact and cause injury to each other. We are experienced in many areas of Personal Injury and have been in business fighting for the rights of New Mexicans for over sixty years. We are here for you! Please call for a free consultation: 505.982.5380