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PERSONAL INJURY
A Glossary of Civil Justice Terms*
Contingency Fee
The contingent fee system is the key to the
courtroom for thousands of Americans. It allows
people who suffered an injury to bring a suit
without having to have the money up front to pay
their attorney. Rather than charging for legal
services by the hour, an attorney agrees to accept a
portion of any recovery in the case, usually
one-third.
If the plaintiff receives no
compensation, the attorney receives nothing—not even
reimbursement for the costs of litigation. Since
attorneys bear all the financial risk if there is no
recovery or if the recovery does not cover their
costs, they act as gatekeepers - not accepting
frivolous or unjustified lawsuits. Attorneys also
strive for efficiency, since extra costs come from
their bottom line, rather than the client's pocket.
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Damages
There are two major types of damages:
- Compensatory
Damages: Compensatory damages
compensate a plaintiff—one who brings a
lawsuit—for injury or loss. Compensatory
damages are subdivided into two types,
economic and non-economic damages.
- Economic
Damages compensate plaintiffs for
losses that are easily measured by
money, such as lost wages, repairs to a
car, the cost of hospital care, etc.
-
Non-economic Damages compensate
real injuries and losses that are not
easily quantified by a dollar amount.
They are often as important or more
important to the injured person as the
losses that can be directly converted
into dollars. Also known as
quality-of-life damages, this
compensation covers the most severely
injured patients, such as people who are
paralyzed and can't use the bathroom
without assistance or a child who is
brain damaged and will never have a
chance to attend school, get married and
work.
Note:
Non-economic damages are the only
compensation a jury can provide for the
injury itself, as opposed to
reimbursement of out-of-pocket expenses
like lost wages and medical bills.
Non-economic compensation is often more
important to those who do not work
outside the home, such as the
elderly, children, and homemakers.
That's because plaintiffs who do not
work outside the home cannot collect a
lost wages portion of economic damages.
The "worth" of a homemaker's work inside
the home is not easily measured by a
dollar amount, and would only be
compensated through non-economic
damages.
- Punitive Damages:
A jury awards a plaintiff punitive
damages to punish a defendant for
willfully malicious wrongful acts that
go beyond mere negligence. Unlike
compensatory damages, which are awarded
to make the plaintiff "whole," punitive
damages are awarded to damages are
assessed to punish and deter bad
behavior (such as fraud, for instance).
Punitive damages are awarded very rarely
(in only about 3% of cases). However,
punitive damages deter corporations from
engaging in actions they know will hurt
people—such as placing defective
products on the market.
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Damages Cap
A damages cap is a law that limits the amount a
jury can award for damages, no matter what the facts
of the case are. Some state legislatures have
enacted caps in civil cases and some have not. Some
caps are only for specific kinds of cases, such as
medical malpractice. Some caps limit non-economic
damages only, and some limit punitive damages.
In a jurisdiction that caps
damages, the amount a jury or judge awards is
reduced to the amount of the cap—even if the jury or
judge thinks the plaintiff should be awarded more
than the cap to be made "whole" again, or if the
circumstances of the case show that the defendant
should be punished with a high punitive damage
award. There is generally no way to raise a damages
award beyond the cap, which is written into law.
Here is an example of a cap of $250,000 on
non-economic damages:
Injuries/Losses |
Original
Jury Award (what the juries think should be
awarded) |
Award
After Legislature's Cap (what the plaintiffs
go home with) |
Person A |
After being hit by a
drunk driver, Person A's car caught fire.
Her husband (a passenger) was killed, she
was burned and left disfigured, and she lost
the use of her right arm. She was a
homemaker, and can no longer work. |
$1.2 million
non-economics |
$250,000
non-economics |
Person B |
After being hit by a
drunk driver, Person B suffered two broken
legs, had to have surgery to repair them,
and was forced to wear a full body cast for
2 months. |
$250,000
non-economics |
$250,000
non-economics |
In the case above, Person A, who
suffered worse injury than Person B, nonetheless
takes home the same amount of compensation for her
losses as Person B. Even though the jury thought
Person A deserved far more compensation, the jury's
judgment was overruled by a cap put in place by the
legislature long before Person A's case ever arose.
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Joint
and Several Liability
In a case where two or more defendants caused
injury, and it may not be possible to assess which
defendant caused which part of the injury,
plaintiffs can call on the principle of joint and
several liability. Joint and several liability means
that two or more defendants each are responsible for
paying the plaintiff the entire amount of
compensatory damages. So if A and B negligently
injure C, either A or B can fully compensate C.
The
Ford Explorer/Firestone tire rollover case is an
example of joint and several liability protecting
victims. In these cases, it is almost impossible to
quantify how much of any rollover was caused by a
defective tire, or how much was caused by faulty
automotive design. Was it 50%-50% in each case? Or
60%-40%? It is impossible to know.
Under joint and several
liability, a victim in a Ford/Firestone case can be
fully compensated by either of the defendants. Then,
defendants can later work them out between
themselves who is more at fault for a plaintiff's
injuries. The important thing is that the plaintiff
is not deprived of compensation because the guilty
parties blame each other. Without joint and several
liability, a plaintiff might never be made whole.
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Liability
Liability is legal responsibility under civil law.
In the context of personal injury tort law,
liability refers to being legally responsible for an
injury or loss.
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Negligence
Negligence is the failure to use such care as a
reasonably prudent and careful person would use
under similar circumstances. If a person is
negligent and an injury results, the person may be
liable to pay damages for that injury.
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"Pain
and Suffering" Damages
Non-lawyers frequently refer to non-economic
damages as "pain and suffering" damages or damages
for "emotional distress." This is incorrect.
Non-economic damages (see definition
above) compensate for many things that are not
easily measured in terms of money, including
physical harms such as the loss of a limb,
blindness, loss of fertility, or loss of the ability
to work. Many trial lawyers believe that referring
to non-economic damage verdicts simply as
compensation for "pain and suffering" or "psychic
injury" trivializes the real harms non-economic
damage verdicts are meant to compensate.
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Preemption
Under the Constitution, federal law is superior to
state law, and can therefore preempt state laws that
are inconsistent. Often federal laws are written to
provide complete preemption of state laws. In
liability bills, however, preemption is almost
always "one-way." This means that state laws that
are more pro-consumer are wiped out; but state laws
that are more pro-defendant remain law. This
unfairness means that, despite claims to the
contrary, a federal product liability bill will not
result in uniform laws, because state laws that are
more anti-consumer than the federal law still stand.
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Statute of Limitations
A statute of limitations is an arbitrary time
limit that cuts off a plaintiff's ability to file a
case after a certain period of time. Statutes of
limitation can begin to run at various points after
the event that is the subject of the action took
place. Some statutes of limitations run from the
date of the injury, even if the injury is not
detected until much later.
For instance, one type of medical
malpractice is for a surgeon to leave a sponge or
surgical instrument in the body of a patient. This
may not be noticed by the patient for several years,
until the object begins to deteriorate or irritate
the body. If the patient lives in a jurisdiction
where, for instance, a 2-year statute of limitations
runs from the date of the injury (when the surgery
took place), and the sponge is not discovered until
the beginning of the third year, the patient is left
without recourse, and there is no way to hold the
careless surgeon who caused the injury accountable,
because the statute of limitations has run.
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Statute of Repose
A
statute of repose is an arbitrary time limit
that cuts off liability for products beyond a
certain age. For instance, a 15 year statute of
repose would wipe out a corporation's responsibility
for putting a faulty product on the market if the
fault does not show up for 15 years. If the fault
injures a person in the 16th year, the negligent
manufacturer or designer cannot be held accountable.
This is the case even with products (such as machine
tools) that have a useful life of 30 years or more.
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Tort
Barron's Law Dictionary defines a tort as "a civil
[as opposed to criminal] wrong or injury resulting
from a breach of legal duty that exists by virtue of
society's expectations regarding interpersonal
conduct."
A tort arises when all four of
the following elements occur:
- a defendant has a duty to a plaintiff
(for instance, to ensure that a product is
safe for use)
- the defendant has breached that duty
(for instance, the product has been made
unsafe) and
- the breach is the cause of
- an injury (or loss)
If, for instance, a defendant
manufactures an unsafe product and sells it to a
customer, but no injury or loss occurs, there has
been no tort.
*Taken from the American
Association for Justice webpage, at www.atlanet.org
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