Throughout a personal injury case you may hear words or phrases that sound unfamiliar. Here are some common ones and what they mean.
Common Legal Terminology in Personal Injury Cases
Litigation is the phase of a case after a complaint has been filed with a court or an arbitrator has been selected. The case is now being managed by a judge in a courtroom or an arbitrator. There is usually now a trial date or it is likely going to be set soon. The case is typically now subject to the code of civil procedure, which is a set of laws designed to manage a case after after a complaint has been filed. It includes things like the timing and sequence of certain events including discovery. Being “in litigation” is important because it usually means it is on track for a trial or an arbitration if the case doesn’t settle.
Pre-Litigation is the phase of the case before a complaint is filed in the courthouse or an arbitrator is picked. If it is an injury case, the plaintiff is usually getting medical treatment. In a death case, evidence is being collected about the deceased person. Usually, the plaintiff’s attorney and a representative of the insurance company discuss the case, and negotiate to see if the case can be resolved prior to filing a complaint. Both sides also will do investigation at this time regarding other aspects of the case including all persons who may be at fault, and the available insurance.
Complaint is a formal legal document that explains why you believe the other persons is at fault and that you are asking for compensation. Sometimes this is what starts the case into litigation or formally starts a “lawsuit.” It is an important document that basically gets your case going in the court system. It can also request a trial date and start formal discovery procedures like the ability to ask the other side questions that they have to answer under oath.
A trial is where you present your case to a jury, or sometimes only a judge, in order to get a final verdict or “finding a fact.” It could include things like whether the other side was negligent and how much you are entitled. This is typically the last piece of a case if it doesn’t settle. Sometimes the case can go on after a trial because of an appeal. But that’s less common.
An arbitration is a private trial in which a retired judge or lawyer hears the evidence of the case and makes a ruling on different issues including who is at fault or how much money to award. It is often done through a private company that handles dispute resolution. Downsides to arbitration are that they can be expensive, private and harder to appeal. Upsides are that they are often faster and more informal than a full-blown jury trial.
The statue limitations is the deadline to file a lawsuit. Typically for injury cases it’s two years but it can vary depending on the parties involved. For example, it is much shorter for cases against the government or against medical providers. It’s very important to file the case well before the statue limitations to prevent any problems. If you missed a deadline, that could be the end of your case.
A mediation is a meeting with the defendant to discuss settling your case. Typically at mediation. you are with your attorney and separated from the defendant and their attorney who are in an another room. The mediator, usually a retired judge or a respected lawyer, goes back-and-forth, discussing the case and each sides position. The mediator then tries to find a compromise so the case can settle. Sometimes cases settle at mediation and sometimes they don’t. Even if the case doesn’t settle, it’s sometimes still beneficial to to learn more about the defensive position and get the input of a respected mediator.
A demand is a formal request to the defendant or insurance company that they pay a certain amount to resolve the case. Typically it is a letter summarizing the facts, injuries, and damages. The demand may also include some legal arguments about liability and the obligations of the insurance company. After receiving the demand, the insurance company may make a counter-offer and the negotiations begin.
Uninsured or underinsured motorist coverage (also called UM or UIM) refers to a type of insurance coverage that protects you when you get hurt by somebody who doesn’t have insurance or has a very small insurance policy. It’s very important to have this type of insurance particularly in California because many people drive without a license or without adequate insurance. If you are seriously injured by someone who doesn’t have adequate insurance or assets you need a way to protect yourself and that’s what UIM coverage is for.
An adjuster is the person at an insurance company who is the front line for discussing or negotiating a case or claim. Often times the adjuster has limited authority to negotiate and have to consult a supervisor or committee for more authority. The adjuster is familiar with case issues and controls the negotiation even if a lawyer is involved.
Subrogation in injury cases often occurs when health insurance wants to be reimbursed for what they paid for medical treatment from any settlement for verdict. It can also come up if your auto insurance company wants to get reimbursed for what it paid to you, from the at fault driver. Subrogation is often built into the insurance contract. For example, if you are asking for recovery for medical bills in your case that were paid by health insurance then it would not be fair for you to get that money because you didn’t have to pay it, it was paid by health insurance. Of course you had to pay premiums and co pays which is a different story. Often times, health insurance companies will reduce the amount that they’ll recover subrogation. They’ll factor in things like you had to hire a lawyer and difficulties with the case.
A lien is an agreement in which a medical provider will agree not to require payment right away but will accept payment at the end of the case. To ensure the medical provider gets paid, they have a lien on the case meaning that they have a right or an interest in the case to ensure that they can get paid at the end, whether it is a settlement or judgment. It’s common in cases where people don’t have health insurance or access to quality doctors. With a lien, they want to get good medical treatment after an accident.
Med Pay or Medical Pay – medical pay or sometimes referred to med pay coverage is a coverage where if you have medical bills you can sometimes get those paid immediately after presenting the balance to the insurance company. Usually this coverage is for much less but can be helpful if you have to pay some co-pays deductibles emergency room or ambulance treatment and need some extra cash to pay for that.
Discovery is the process where you get to ask the other side in a lawsuit questions or request documents. Sometimes the questions can be done through written form. It could also include a deposition where you get to ask questions they have to answer under oath, in person. It’s important opportunity to learn the other side’s position.
Interrogatories are questions that you can ask the other side and they have to answer under oath. You can ask all sorts of questions related to the case like how fast they were going or who else was in their vehicle. Other questions you can ask include: who maintains certain property, who constructed a product, who manufactured a product, who was the medical provider responsible for certain medical treatment. It is good opportunity to learn the people involved, what physical evidence exists, and the basis for the other side’s position.
A deposition is a formal procedure in which an attorney gets to ask the opposing side or a witness questions that have to be answered under oath. A court reporter is present taking down everything that’s said including from the attorneys or anyone else in the room. The testimony that’s given in a deposition is the same as if the person was testifying in court and can be used later at trial.
An appeal occurs often after trial or after a big decision by the judge. One of the people involved in the case “appeals” to the court above the court that made the decision. In California, you can appeal certain decisions by the trial court or the jury to the Court of Appeal. You can appeal decisions of hte Court of Appeal to the California Supreme Court. There is a similar appeal court structure for federal cases.
Common Medical Terminology in Injury Cases
Here are some medical terms that you may hear in your injury case and their significance in a legal context. *I am not a doctor.
An MRI is a diagnostic tool for imaging softer parts of the body like muscles, tendons, and spinal discs. It can provide more information than an x-ray and also provide more detailed information as to the source of pain. Typically doctors don’t like to order an MRI unless there’s some indication like consistent pain that’s not resolving after a few weeks from an injury
An X-ray is a diagnostic tool for imaging the body. It primarily shows harder parts of the body like bones and can show fractures or breaks. An X-ray is limited and doesn’t show some injuries to softer parts of the body like muscles or organs. It is often done as preliminary treatment step in urgent care or an emergency room to make sure there isn’t a serious injury that needs to be addressed right away.
Physical therapy – This is a type of therapy done usually in sessions to address muscle pain and other types of injuries. It is often also called “conservative” treatment compared to more aggressive treatment like injections or surgery. It is often helpful in reducing pain through a variety of treatment including massage, hold and cold treatment, electrical stimulation, traction etc.
Conservative Treatment – This usually refers to non-invasive treatment like physical therapy or chiropractic treatment consultations. Usually doctors expect that you would go through some conservative treatment before you do anything invasive unless there’s an emergency. For example, typically doctors want you to have some physical therapy before considering an epidural injection.
An orthopedic doctor is a doctor that specializes in injuries to bone or related to bone. Often times they are involved in injury cases because of spinal cord injuries or injuries to the shoulder or legs etc. They are a specialists in this area and often seen as the most qualified for testifying in cases involving these types of injuries.
A chiropractic doctor is a doctor that specializes in a particular form of medical treatment primarily focused on the spine. Many injury victims have received relief particularly for spinal injuries from chiropractors. Often times, they also provide other therapeutic treatment that can provide pain relief.
An EOB or explanation of benefits is what an insurance company sends to show you how much they paid and how much was billed. Can be helpful in determining exactly which providers you saw and who billed you.