Lawyers and law suits have their own language. Unfortunately, lawyers often forget that while we deal with this language every day, our clients and others involved in the legal system are often hearing strange words for the first time. At Ury & Moskow, we give a welcome package to each of our new personal injury and medical malpractice clients that explains what a law suit is and how the court system works. But we have never shared this information with our other litigation clients, or with the public. That changes now.
Below is a list of 10 key legal terms that you need to know. Actually, there are at least 15 terms defined below, but we like the idea of a "Top 10 List" so it's like you're getting extra words for free! Seriously, though, not only will your lawyer use these terms to keep you advised of what is going on in your case, but you will also gain a better understanding of what is going on in the many law suits reported in the news.
1. Credibility (credible/incredible)
Credibility is simply another way of saying you are believable when you speak; the ability to appear honest and trustworthy when telling your side of the story. Credibility is central to almost every law suit. This is particularly true where the two sides are telling very different stories and a fact finder (either a judge or jury) is forced to choose one version over the other. When a client is credible, the entire case is more valuable. And while we often say something is "incredible" when we mean it is really good, in a courtroom, "incredible" means not believable, a lie. Your credibility is constantly at issue: it starts with being open and honest with your lawyer, it continues through your deposition (see below) and may end when you testify (see below) at trial.
Lawyers generally use the word Damages to refer to the amount of money that a client recovers in a law suit. Of course, it can also be broken down into further categories, like economic damages (lost wages, lost profit, out of pocket costs, etc.) and non-economic damages (physical injuries, emotional distress, pain and suffering, scars, permanent disability, loss of enjoyment of life's pleasures, etc.). While business law suits have a different measure of damages (or the types of things that can be compensated), the idea is the same: damages are the loss suffered and that can be recovered in a law suit.
A Default is a process where the court bars a party (plaintiff or defendant) from advancing claims or defenses because that party failed to do something required by the rules of court or statutes (law). While defaults can be a valuable tool in a lawsuit, judges often open (or lift) the default when the party complies with the requirement in question.
The Defendant is the person defending himself/herself in a law suit, or the person who is being sued. Although Defendants can bring their own claims against the person suing in the same case, called counterclaims, we generally think of a Defendant as the person accused of wrongdoing.
5. Discovery (discovery process)
Various statutes and court rules permit both sides of a lawsuit to file certain papers in court requesting the other side to furnish information about the case. This is what we call Discovery – we discover information that the other side has about the case. When either side seeks discovery from the other, the requests must be responded to within a fairly short time – often as short as thirty (30) days. There are various types of discovery devices that the law allows. Some of them include:
5(a). Interrogatories. This is a series of written questions which one side asks the other. They must be answered in writing and under oath.
- 5(b). Request for Production. Each side may request the other to produce documents or things that might relate to the case.
- 5(c). Depositions. This is a formal question and answer session, where a witness, or deponent, swears an oath to tell the truth in response to attorney questioning, and a court reporter, or stenographer, takes down every word. The record of the deposition is produced by court reporter and is called a deposition transcript and is often reviewed and signed off on as accurate by the deponent. If the deponent thinks that parts of the transcript are inaccurate, then he has the right to make changes on an errata sheet, a sheet of paper that identifies the language in question and the proposed revision.
- 5(d). Requests for Admission. This is a document where a party is asked to admit or deny a specific fact, and his answer can be used at trial to conclusively establish that the fact is true if admitted (or false if denied).
A Docket is the way the court keeps track of a case, and can be either singular (the docket for your particular case) or plural (the court's entire docket of cases – sometimes in the hundreds). You may hear that your case is "on the docket," meaning that it is scheduled for some type of hearing. Connecticut state courts control their dockets in a number of ways: you may hear us use the following terms:
6(a). Motions and Pleadings List. This is where the parties move the case forward by filing complaints, answers, defenses and various other papers with court. These documents, called pleadings, move the case forward. There are also papers called motions that essentially ask the court to make a decision as to who is right or wrong on a particular issue or issues.
6(b). Trial List. This is where the case is ready for trial and the pleadings are closed, meaning that all papers that need to be filed have been filed. A case can be on either the jury list (where the case will be decided by a jury) or a courtside list (where the case will be decided by a judge.
6(c). Hearing in Damages List. This is where a default has entered and the case goes forward to determine what the damages will be since the entry of the default means that liability (see below) is already proven/established.
Liability is the term we use to say that a defendant has responsibility for the damages. Put another way, the purpose of a law suit is to prove that one party is liable for the injuries and damages suffered by the other.
Malpractice is a complicated term. In order for us to prove that a doctor to committed malpractice, we need to prove four things:
The doctor had a duty to provide care to the patient;
The doctor failed to provide care in accordance with the standard in the community;
The doctor's failure to provide treatment within the standard of care was, to a reasonable medical probability, a substantial cause of the injury suffered (this is also called causation); and
The patient/client suffered a compensable injury (damages).
At its most basic, Negligence is defined as follows:
A party has a duty to another person – like a driver has a duty to remain in his own lane;
A party breaches (or breaks) the duty – like the driver who crosses over the yellow line;
The breach of the duty causes injury (this is also called causation); and
The "innocent" party suffers a compensable injury (damages).
However, negligence can also be applied to a whole range of situations, from failure to shovel snow off stairs, to failure to maintain a deck, to failure to properly represent facts in a business deal, to many other scenarios.
A Plaintiff is the person who brings a lawsuit, sometimes also called a claimant. A plaintiff is the one who seeks to recover damages for a wrong committed by a defendant.
11. Structured Settlements
A Structured Settlement is a financial device most often used to resolve personal physical injury claims or lawsuits. They work by taking the money that would otherwise be paid in a lump sum and investing it so there is a stream of payments over a period of time. A structured settlement is usually funded by the defendant buying annuities from highly-rated life insurance companies. If a structured settlement is used to fund a personal physical injury claim, it provides the payments tax-free. A structured settlement can be used to settle non-personal injury claims too. Sometimes, we use structured settlements to protect the recovery from potential creditors as well.
To testify means to make a statement (or testimony) under oath, whether it be at trial, at a deposition or in an affidavit (a written statement made under oath). When we talk about people testifying credibly, we mean that their testimony was both truthful and believable.