A | B | C | D | E | F | G | H | I | J | L | M | N | O | P | R | S | T | V | W
A
ALTERNATIVE DISPUTE RESOLUTION (ADR): Refers
to the broad array of alternatives to trial for resolution of legal
disputes. Includes mediation, arbitration, and settlement conferences.
AFFIDAVIT: A written statement made under oath.
ANSWER: A formal pleading which states the defendant's
response to plaintiffs's complaint. The defendant, in the State of
Washington, has twenty (20) days to answer, admit, or deny the
allegations in plaintiff's complaint.
APPEAL: A request by a party for a higher court to review a lower court's decisions regarding questions of law.
ARBITRATION: Alternative to trial where parties agree to
appoint an individual or panel to make a binding award or decision
based on the evidence and testimony presented.
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B
BAD FAITH: Actions by an insurer
designed to mislead an insured; refusal or negligence of insurer in
fulfilling some duty or contractual obligation.
BENCH TRIAL: A case heard and decided by a judge without a jury.
BRIEF: A written document prepared by an attorney to
serve as the basis for a legal argument. It includes a summary of legal
points and precedent, together with arguments to be presented to the
court deciding the case or a particular issue of the case.
BUSINESS RECORDS: Common type of documentary evidence.
Business includes any association, profession, occupation, and calling
of any kind, whether or not conducted for profit. Records include
memoranda, reports, chart notes, billing ledgers, etc., created and
kept in the ordinary course of doing business, that document acts,
events, and conditions. The information contained in the record must be
supplied by a person with first-hand knowledge of the underlying
events, conditions, etc.
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C
CIVIL LAW: Law developed by
governmental groups including statutes, regulations and ordinances
enacted by legislative bodies such as Congress, state legislatures,
county and city officials. This is different than laws based on custom.
CIVIL RULE 35 EXAMINATION: Also known as the insurance
or defense medical exam (IME or DME). A form of discovery in which the
defense has the right, with limited exceptions, to have their own
medical expert examine and evaluate the plaintiffs injuries. This may
include a psychological evaluation in cases where there is a claim for
psychological damages. See also IME.
CLAIM: A demand for compensation.
CLAIMANT: A person who makes a claim or asserts a right. The plaintiff in a personal injury case may also be known as the claimant.
CLOSING ARGUMENT: The chronological and psychological
conclusion of a trial. The last opportunity for the attorneys
representing each party to communicate directly with the jury and/or
judge about their theory of the case, explain contested facts, and
argue why their side should prevail.
COMPARATIVE FAULT: An affirmative defense available to
the defendant. Reduction of the plaintiffs recovery in proportion to
the percentage of negligence or fault attributed to the plaintiff.
COMPLAINT: A formal statement filed by the plaintiff
with the court that sets forth his/her injuries and damages and why
he/she believes the defendant is liable.
COMMON LAW: Body of law developed over a long period of time which derives its authority solely from usage and custom.
COUNTER CLAIM: The defendant sues the plaintiff for damages for which the defendant claims the plaintiff is legally liable or at fault.
COURT RULES: The rules governing legal proceedings in all
courts in Washington state. Many counties also have Local Rules (LR)
specifying rules of practice unique to that county.
COURT OF APPEALS: This court is established to review
appeals from the trial court. It can affirm or overturn, in whole or in
part, a trial court's decision. A party has a legal right to appeal any
final decision of a superior court to the Court of Appeals.
CROSS CLAIM: The defendant brings a claim against
another defendant in the same lawsuit or identifies a new party not
previously named by the plaintiff in
the lawsuit, asserting that party is responsible for the plaintiffs
damages.
CROSS EXAMINATION: The questioning of a witness by the adverse party.
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D
DECREE: A judgment or order issued by a court.
DEFAMATION: Injury to a person's character, fame, or reputation by false and malicious statements.
DEFAULT JUDGMENT: When a defendant fails to formally
answer a plaintiffs complaint in a timely manner, the plaintiff may ask
the court to enter a judgment against the defendant. Most often in
personal injury cases, these judgments are set aside once the defendant
begins to comply with the rules and initiates a formal defense by
filing an answer.
DEFENDANT: The party the plaintiff claims is responsible for his/her damages and from whom the plaintiff seeks some form of relief.
DEMAND LETTER: A letter expressly stating a legal right and an amount due as reasonable compensation for injuries to person and/or property.
DEPOSITION: A form of discovery whereby the attorney
calling for the deposition has the right to ask questions and obtain
answers from a party, witness, or expert while that individual is under
oath. Notice of the deposition must be served on the party or witness
five (5) days in advance of the date of the deposition unless the
parties agree otherwise. A court reporter makes a word for word record
of all that is said at the deposition.
DIRECT EXAMINATION: The questioning of a witness by the attorney for the party on whose behalf the witness is called.
DIRECTED VERDICT: At the close of a plaintiffs case, a
defendant asks the court to rule that the plaintiff has failed to put
forth sufficient evidence, even when viewed in a light most favorable
to the plaintiff, to support his/her claim. If the court so rules, the
defendant is entitled to a dismissal without the defendant ever having
to put on his/her case. Also, at the close of defendant's case,
plaintiff can ask the court to rule in it's favor with a directed
verdict on liability or special damages.
DISCOVERY PROCESS: Procedure for examination of
documentary and physical evidence, and questioning of witnesses and
parties to uncover evidence which is reasonably calculated to lead to
the discovery of admissible evidence. Discovery may be obtained by the
parties through interrogatories, requests for production of documents,
depositions, and defense medical examination. Information that can be
obtained in discovery is broader in scope than what is deemed to be
admissible at trial.
DISTRICT COURT: These are courts of limited jurisdiction
in Washington which have jurisdiction over cases not involving real
estate, false imprisonment, defamation, malicious prosecution, or
actions against executors of wills, and which otherwise do not exceed
$50,000.00 in claimed damages.
DOCKET: A calendar or agenda of court proceedings
prepared by the clerk of the court. For example, a trial docket is a
list of cases set to be tried in a specified term.
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E
EVIDENCE: Testimony, writings, material
objects, etc. that are admissible and offered by a party to the trier
of fact to prove the existence or non-existence of a fact.
EXPERT WITNESS: An individual who possesses specialized
knowledge through skill, education, training, or experience beyond that
of the ordinary person or juror, and whose knowledge will aid the trier
of fact (jury, judge, arbitrator) in reaching a proper decision. Often,
a health care provider who examines and evaluates a patient in
anticipation of litigation.
F
FEDERAL COURTS: Courts of the United States created by Article III of the
Constitution or by Congress. Lawsuits filed in federal court include cases in
which an agency of the federal government is named as a defendant or where the
plaintiff and defendant reside in different states.
G
GENERAL DAMAGES: Money damages for pain and suffering, disability, or reduction in quality of life.
GUARDIAN: A person with the lawful power and duty to take care of a person and manage his/her property and/or rights.
GUARDIAN AD LITEM: A guardian appointed by the court to represent the interests of a minor.
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H
HEARING: Proceedings at which a judge,
arbitrator or administrative officer makes determinations of fact or
law after argument by both parties. Administrative hearings may be
investigative or result in a final order or determination of the
matter. Ex Parte hearing is when only one party is present, although
notice of the hearing may be given to the other party.
HEARSAY: Refers to statements made by persons other
than the person testifying. The statement is a mere repetition of what
the witness has heard others say out of court, and is offered as proof
in the matter on which the witness is testifying. Generally, hearsay
evidence is not admissible and is excluded from consideration by the
trier of fact; however, there are numerous exceptions. One exception to
the rule is statements made for the purpose of medical diagnosis or
treatment, including description of medical history, past or present
pain, sensations, etc.
HUNG JURY: A jury which is unable to agree on a verdict
after a suitable period of deliberation; sometimes referred to as a
dead-locked jury. The result is a mistrial.
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I
INSURED: The person who purchases an insurance policy or is otherwise covered by it.
INDEMNIFY: One party gives another party security for the reimbursement of payments required in case of an anticipated loss.
INJUNCTION: An order issued by the court prohibiting a person from or requiring him/her to perform some act.
IME: Insurer's refer to this as an "independent medical
examination." Attorneys representing injured people refer to this as an
"insurance medical examination." An insurer may require the injured
person to attend an IME under the provision of the Personal Injury
Protection (PIP) Policy or by a defendant after a lawsuit is filed in
court. See Civil Rule 3S Examination. In either instant, the insurance
company selects the doctor of their choice and pays for the
examination.
IMPEACHMENT: A technique used during cross-examination
to discredit a witness's testimony. Impeachment can be accomplished in
a number of ways: by demonstrating and emphasizing the difference
between the witness's testimony at trial and a prior statement, showing
bias, showing erroneous assumptions made by the witness in drawing
conclusions, etc. The intent of impeachment is to show the jury that
the witness cannot be believed.
INSURER: The underwriter or insurance company with whom a contract of insurance is made.
INTERROGATORIES: A discovery device consisting of written
questions submitted by one party to another party. Written answers to
interrogatories are given under oath.
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J
JUDGMENT: A final order which puts an
end to a lawsuit. The judgement states the final amount of any monetary
award made to a party by a judge, jury or arbitrator, as well as which
party must pay for it.
JUROR: A member of the jury.
JURY: A group of persons selected from the citizens of a
particular district who are temporarily invested with the power to
indict a person for a criminal offense or to decide a question of fact
in a civil case and award damages. In personal injury cases, either
party may ask for a jury trial. Depending on the court, a jury will
consist of 6 or 12 people. With a six-person jury, five out of six
jurors' votes are needed for a verdict. With a twelve-person jury, ten
jurors are needed for a verdict; twelve out of twelve are needed for a
criminal conviction.
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L
LAWSUIT: A claim or cause of action
instituted or pending between private persons or entities in a court of
law. In order to properly commence a lawsuit, a complaint must be filed
with the court and the defendant must be served or given a copy of the
summons and complaint.
LAY WITNESS: A person, with knowledge based on his/her
first-hand observations, whose testimony is helpful to determine the
facts at issue. Liability lay witnesses testify regarding the facts of
the accident. Lay damage witnesses testify regarding the plaintiffs
injuries and the effects of those injuries on the plaintiffs lifestyle.
LEADING QUESTION: A question which suggests an answer
with which the witness is asked to agree. Form of questioning used
during cross-examination and generally not permitted during direct
examination.
LIABILITY: Responsibility or fault for an incident resulting in injuries and damages to person and/or property.
LIEN: An encumbrance on property to secure payment of a
debt. A health care provider has a right to place a lien on a claim to
guarantee that his/her bills will be paid when the case concludes.
LIQUIDATED DAMAGES: The amount of money agreed upon by
the parties to a contract that must be paid by one or the other in the
event that contract is breached.
LITIGATION: The process of filing a lawsuit and then prosecuting it or defending against it. Discovery will begin after a lawsuit is filed.
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M
MALPRACTICE: Misconduct in a professional capacity through negligence, carelessness, lack of skill, or malicious intent.
MANDATORY ARBITRATION: When a party files a lawsuit in
Superior Court and claims damages of $35,000.00 or less, he/she may
first submit their case to arbitration before a full trial. Either
party can appeal a mandatory arbitration award by going to trial. The
risk to the appealing party is that if it does not obtain a better
result at trial, it must pay the costs and attorney fees of the other
party. Not all counties have mandatory arbitration.
MEDIATION: A procedure by which an impartial third
person meets with all the parties and attempts, in an informal setting,
to find common ground so that a compromise can be reached to settle the
claim or complaint.
MINOR: A person who is under the age of legal competence. In Washington, a person less than eighteen (18) years old.
MISTRIAL: Trial which is terminated before its normal
conclusion. The judge may declare a mistrial because of some
extraordinary event, prejudicial error that cannot be corrected, or
because of a hung jury.
MITIGATE: To diminish or reduce. An injured party has
the duty to mitigate his/her damages, including pain and suffering, by
taking reasonable steps to get better.
MOTION: A formal written request submitted by a party to a court on a specific issue for consideration and resolution.
MOTION IN LIMINE: A motion requesting the court to
exclude or limit certain types of documentary evidence and/or testimony
which is not relevant to the issues or is unfairly prejudicial. Most
commonly done prior to commencement of the trial.
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N
NEGLIGENCE: Failure to exercise ordinary care or caution.
NEGLIGENCE PER SE: Negligent as a matter of law. Now
limited to violations of statutes and administrative codes relating to
electrical fire safety, use of smoke alarms, or driving while under the
influence of intoxicating liquors and/or drugs. In these instances a
plaintiff does not have to prove that the defendant's actions or
inaction fell below a reasonable standard of care -the mere violation
of the statute is sufficient proof of negligence.
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O
OBJECTION: Used to call the court's
attention to improper evidence or procedure. Objections also serve to
identify evidence or legal issues that may be taken up on appeal to a
higher court.
OPENING ARGUMENT: The attorneys' first opportunity to
tell the jury or other trier of fact what the case is about, including
what evidence will be revealed through the witnesses' testimony and
exhibits.
ORDER: A directive of a judge.
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P
PARTY: A person or entity that takes part in a legal proceeding or transaction.
PERJURY: False or misleading testimony while under oath to tell the truth. A criminal offense.
PLAINTIFF: The party who requests damages and initiates a civil lawsuit.
PLEADINGS: The formal, written documents filed by the
parties with the court which set forth, or elaborate on, their
respective claims and defenses.
POWER OF ATTORNEY: A letter or document authorizing one person to act as an agent or attorney for another.
PREJUDICE OUTWEIGHS PROBATIVE VALUE: Rule of evidence
which provides that relevant evidence may be excluded if its probative
value is substantially outweighed by the danger that it may confuse or
mislead the jury, or unfairly prejudice the opposing party.
PRIVILEGE: Protection against disclosure of information
based on communications made in confidence between parties having
legally protected relationships. Based on the policy that it is better
to have frank, open communications between parties in certain
relationships by protecting these communications from disclosure in
litigation. Pertains to communications between attorney/client,
doctor/patient, priest/penitent, and husband/wife.
PREPONDERANCE OF THE EVIDENCE: Degree of evidence
necessary for a plaintiff to win in a civil case. Evidence which is of
greater weight or more convincing than the evidence which is offered in
opposition. On a scale of 1 to 100, fifty-one percent (S 1 %) or better
PRO SE: When a party does not retain an attorney and appears for and represents himself/herself in court.
PROTECTIVE ORDER: If an objection is made to a discovery
request because it seeks information of a sensitive nature, is not
relevant, or is harassing in nature, a motion is made for a protective
order. A common example is medical information that is clearly
irrelevant to the injuries claimed, will not lead to admissible
evidence, and which is of a sensitive nature. The court may grant a
protective order allowing a party or witness to not comply with a
discovery request for that information. In some instances, protective
orders may allow the defense attorney to review the information, but
will dictate how the information is to be stored, who has access to it,
and what happens to the information once the case concludes.
PROXIMATE CAUSE: Refers to a cause which leads directly, or in an unbroken sequence, to a particular result. An element of negligence.
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R
REASONABLE MEDICAL CERTAINTY: Standard
for admission into evidence of opinions of a health care provider
concerning his/her patient's condition, diagnosis, or prognosis. A
doctor's opinion cannot be based on possibilities, but rather must be
founded on probabilities. Reasonable medical certainty means "more
probably than not."
RELEASE: Waiver, relinquishment, or giving up a right, claim, or demand.
RELEVANT EVIDENCE: Evidence having a tendency to make the
existence of any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Generally, only relevant evidence is admissible.
REVISED CODE OF WASHINGTON (RCW): Compilation of
statutory laws enacted by the state legislature. Organized topically
into volumes, containing chapters and sections.
RULES OF EVIDENCE: Rules of law which determine which
testimony, documents, etc. should be submitted for consideration by a
judge or a jury, and the weight such evidence is to be given in
determining a question of fact.
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S
SERVICE OF PROCESS: Refers to the rules
of law prescribing the manner, and upon whom, a summons and complaint
giving a defendant notice of a lawsuit, must be served. The person
giving notice must be someone other than a party to the lawsuit, who is
eighteen (18) years or older, and competent to be a witness.
SETTLEMENT: A final resolution of a claim by agreement between the parties.
SMALL CLAIMS COURT: Court of limited jurisdiction
available for resolution of disputes by the parties without attorneys.
Original purpose was to "bring justice home to every man's door".
Limited to claims not in excess of $2,500.00. Parties represent
themselves at the hearing. Attorneys are restricted from participating.
SPECIAL DAMAGES: Fixed costs or expenses attributable to
any injury or loss, including past, present, and future income loss,
treatment costs, and other out-of pocket expenses. STATUTE: Written law
enacted by the legislature.
STATUTE OF LIMITATIONS: Laws enacted by every state
which govern the time frame when a lawsuit must be filed, and beyond
which the claim can no longer be made. Statutes of limitation differ
from state to state and according to the nature of the claim. In
Washington, the limitation. period applicable to most claims for
personal injuries and damages caused by negligence, including motor
vehicle accidents, is three years.
SUBPOENA: A written command requiring a person to appear
at a certain time and place to give testimony at a deposition or other
proceeding. A subpoena need only give the person five (5) court days
notice to be valid.
SUBPOENA DUCES TECUM: A written command requiring a
witness to produce documentary or other tangible evidence he/she
possesses or controls and which is relevant to matters at issue in the
case.
SUMMARY JUDGMENT: A procedure by which one party seeks
to persuade the court that there is no genuine issue or controversy
regarding material facts, and accordingly, that the party filing the
motion is entitled to prevail as a matter of law.
SUMMONS: Notice to all defendants that a lawsuit has
been commenced, that they have been named as a defendant, and that they
must answer the complaint within twenty (20) days or a default judgment
may be taken against them.
SUPERIOR COURT: Court of general jurisdiction over
claims exceeding $300.00 and cases involving probate, family law, real
estate and criminal felonies. Also has jurisdiction over appeals from
District Court.
SUPREME COURT OF WASHINGTON: Highest appellate court in Washington state. Has discretion to accept or reject any appeal from the Court of Appeals.
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T
TESTIMONY: A formal statement, by a party or witness in a case under oath. Statement may be verbal or written.
TORT: French word meaning "wrong". Body of law which
determines rights and liabilities when property is damaged or a person
is injured, through negligent or intentional conduct.
TORT REFORM ACT: In 1986, the Washington State
Legislature made numerous and substantial changes to Washington tort
liability law. Changes include automatic waiver of patient/physical
privilege after ninety (90) days after filing a lawsuit, and a cap on
non-economic damages (which has since been found unconstitutional and
invalidated by the Washington Supreme Court).
TORTFEASOR: One who has committed a tort.
TRIAL: judicial examination and determination of legal
and factual issues between the parties to an action. Maybe civil or
criminal. In a trial by jury the jury decides questions of fact with
the judge determining the law to be applied. In a trial by judge,
he/she decides both the facts and the law to be applied.
TRIAL DE NOVO: Means "new trial." In mandatory
arbitration, after the parties receive the award or decision, a party
not satisfied with the award may appeal by filing a request for a trial
with the Superior Court. The request must be made within twenty (20)
days of the award being filed with the court. No information about the
previous arbitration hearing or award can be revealed at the trial.
TRIER OF FACT: The decision maker who will hear the
evidence and decide the outcome of a claim. Can be an arbitrator at a
hearing, or a judge or jury at trial.
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V
VENUE: Relates to determination of which
county a lawsuit should be filed in. In personal injury cases the
plaintiff may sue the defendant in the county where the defendant
resides, has his/her principal place of business, or where the accident
took place.
VERDICT: The definitive answer given by the jury concerning the issues the judge asked them to resolve.
VOIR DIRE: Part of the jury selection process. A number
of prospective jurors are selected and seated in the jury box. The
judge and/or lawyers ask a series of questions to disclose any
predisposition or biases that may impact their judgment. Generally,
each party is entitled to three preemptory challenges by which
prospective jurors can be removed without cause. If the judge so finds,
jurors may also be removed for cause due to obvious bias or other
reasons demonstrating an inability to serve.
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W
WAIVER: A knowing, intelligent, and voluntary surrender of a known right or claim.
WASHINGTON ADMINISTRATIVE CODE (WAC): Current
administrative regulations created by state agencies to carry out the
laws passed by the state legislature. When rules are proposed, they
must be published and an opportunity given for public comment before
they can go into effect. Also includes rules for hearing claims and
appeals over which agencies have jurisdiction.
WITNESS: Someone with knowledge pertaining to the facts
of the case. Each party identifies his/her witnesses prior to trial or
arbitration.
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