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Definitions in Personal Injury Law
- ADR - Alternative Dispute Resolution; this refers to alternatives to a traditional trial and includes both Binding and Non-Binding Arbitration and Mediation.
- ADR Commissioner - In Clark County (The Eighth Judicial District Court) this Court official runs the program of Mandatory Non-Binding Arbitration.
- Arbitration -A third party is hired both parties to hear evidence of a dispute and make a ruling. If the Arbitrator’s decision will be final it is called binding. If the Arbitrator’s decision can be ignored by either party it is called non-binding. Arbitration can be voluntary in that both sides agree to pay an Arbitrator to resolve their issue rather go to trial, or it can be mandatory in that the law or a contract between the parties imposes a requirement to resolve disputes by Arbitration.
- Attorneys’ Fees -We have a whole section on how lawyers charge. However, in personal injury cases the general rule is that each side pays their own attorney unless an offer of judgment (see below) forces one side to also pay their opponent’s legal fees.
- Bad Faith- An insurance company owed a duty to deal in good faith with its own customers. An insurance company which violates this duty may face financial penalties, see for example, excess judgment and uncapping the policy.
- Bench Trial - A term used to mean that there will be no jury at the trial and the judge will determine both the facts and the law.
- Client Security Fund - Unfortunately on rare occasions a lawyer steals a client’s money. The Nevada State Bar maintains a fund to make some re-imbursement in such cases. However, the re-imbursement will potentially not be adequate in large cases of theft. The Fund does not cover malpractice. Clients can check reviews of lawyers and also call the State Bar to learn if there are any disciplinary actions against a lawyer before hiring the lawyer. However, an honest lawyer may be “slow” to distribute a client’s settlement due to the need to resolve liens, see below.
- Closing Arguments - After the evidence is presented in a trial, the lawyers can argue how applying the law and facts to the case should result in a judgment for their client.
- Collateral Source Rule - Currently generally the law in Nevada, but not California. Under this rule, if a case goes to trial the jury is advised of the amount of the medical bills before reduction by health insurance.
- Comparative Fault - In Nevada, if a personal injury Plaintiff claims that they were injured because of the Defendant’s fault, the Defendant can defeat the claim if they can prove that the Plaintiff was more than half at fault. For example, suppose the Plaintiff goes into a supermarket and water is leaking out of the vegetable case onto the floor making a slipping hazard. But suppose the Plaintiff is yakking away on their cell phone not paying attention. If the case went to trial the jury would be asked to apportion fault for the fall on a percentage basis. If the Plaintiff was found to be more than 50% at fault, the Plaintiff loses. If the Plaintiff is found to be 50% or less at fault the Plaintiff gets their damages reduced by the percentage that the Plaintiff was at fault. In fall cases the defense almost always claims the Plaintiff was at least partly at fault for not noticing the slipping or tripping hazard.
- Compensatory Damages - Damages awarded to “compensate” a person for injuries. These can include past and future medical expenses, past and future wage or income loss, and past and future pain and suffering. They exclude punitive damages, see below. Compensatory damages are covered by insurance.
- Contributory Negligence - an older legal term referring the Plaintiff’s Comparative Fault.
- Contingency Fee - Most personal injury cases are handled on the basis that the lawyer gets a percentage of the collected award or settlement if the case is successful. This is sometimes abbreviated as, “No Recovery, no Fee.” Contingency fees are discussed in detail at [Legal Fee, Contingency Fees]
- Costs - These are out of pocket expenses that the attorney or client pays to advance the case. Relatively small costs often include postage, copies, and paying for medical records (unless there is extensive treatment in which case the records copying/obtaining costs can really add up). For example, in a case where the plaintiff only had a few months of medical treatment with a couple of medical providers, and the case settles without a lawsuit being filed, the total costs are oftentimes under $100. Moderately expensive costs can include the lawsuit filing fee charged by a court to start a case (which in many jurisdictions costs around $300), to taking depositions of non-expert witnesses (which generally costs at least a few to several hundred dollars per witness). Big costs are hiring experts for their opinions, especially if their attendance at trial is required (which usually costs thousands per expert). When the attorney advances the costs, the attorney generally gets reimbursement from the settlement or judgment at the end of the case.
- Counter-Claim - If for example, there is a car collision and each driver blames the other, the first driver to get sued files a counter-claim against the other driver.
- Counter Defendant - when a Plaintiff sues another and the Defendant responds with a claim against the Plaintiff the Plaintiff is now both Plaintiff and Counter-Defendant.
- Closing Argument - In a trial, after the evidence has been presented, the lawyers can argue their case to either the judge in a judge trial or the jury in a jury trial.
- CT Scan - This is a series of x-rays; in personal injury cases these are done to assess spinal injury and sometimes gross injury to the brain or abdominal region.
- Defective Products - See, Strict Products Liability.
- Defendant - person being sued.
- Defense Medical Exam - if the case is in litigation and the Plaintiff is claiming present or permanent injuries, the court will allow the defense to have their doctor(s) examine the Plaintiff. The defense prefers to use the term Independent Medical Exam, which is the term used in many jurisdictions’ court rules even though a Defense-hired doctor isn’t really an independent examiner.
- Deposition - once a lawsuit has been filed a party’s lawyer can make another party or a witness answer questions with a court reporter present and attorneys’ for all parties present. If the person giving the deposition cannot be present at the trial or made to appear, the deposition can be read instead of them testifying.
- Discovery - The process including depositions, interrogatories, requests to produce, request to inspect, Defense Medical Exam(s), request to admit which is designed to let each side know the other’s strengths and weaknesses prior to the start of trial. Usually, larger cases do not settle without some Discovery.
- Discovery Commissioner - a Court Official who oversees the Discovery process and resolves disputes about what Discovery is okay and what Discovery is too burdensome.
- Duty to Defend - When you buy insurance, one of the benefits you get is that your insurance company should provide you a lawyer to defend you if you are sued because someone else claimed you were at fault for a covered accident. Of course, the other driver gets the same benefit from their own insurance company as long as they are insured. Let’s say a negligent driver runs over a pedestrian in a cross-walk and the pedestrian loses his leg and the insurance policy limit for injury to one person is only $15,000. The insurance company will offer the $15,000 limit to the Plaintiff, but if the Plaintiff refuses to settle and sues the insured in the hopes of getting more money, the insurance company will still have to incur the expense of defending against the lawsuit in the hopes of minimizing damages to protect their insured – and the Plaintiff will have to incur the costs of fighting the insurance company-funded defense instead of just the lone individual. Interestingly, courts in Nevada and California have interpreted the duty to defend more broadly than the duty to pay a settlement or judgment when there is a dispute between an insurance company and its customer as to whether there is coverage for particular accident or claim. This means that sometimes an insurance company will pay for a defense attorney and reasonable defense costs to protect their customer, but refuse to pay anything to the other party to settle or resolve the claim. This is uncommon in car accident cases since it is usually pretty easy to determine to whether a policy does or does not cover a particular car or driver, but when the claim arises from a complicated set of circumstances involving many parties (like if a brick falls off a building onto someone’s head, and separate companies with separate insurance policies were responsible for building / operating / repairing the building over a period of years before the accident), it is common for an insurance company to spend a very long time (possibly months or even years) evaluating the case as it proceeds before determining whether there is coverage, and to continuously defend the case under a “reservation of rights” until it makes a final coverage decision. Ironically, insurance companies will sometimes spend more money defending a case then they could have settled it for.
- Excess Judgment - When there is a judgment against a person with insurance for an amount larger than the person’s liability insurance. If the insurance company early on offers to pay its full policy limit to the claimant it usually won’t be liable to its insured for an excess judgment. For example, a Defendant runs a red light and T-bones the Plaintiff causing the loss of the Plaintiff’s leg. The insurance company offers to pay its full policy limit of $100,000 upon learning of the facts. Now if the Plaintiff refuses that limit and gets a judgment for $5,000,000, the insurance company isn’t (generally) liable for the excess judgment. But, if the insurance company had refused an offer to pay its policy limit after sufficient knowledge of the facts, it would probably be liable to its insured for the full amount of the judgment.
- Exemplary Damages - See Punitive Damages.
- Experts - Usually expensive professionals who are allowed to offer opinion testimony that ordinary people are not allowed to testify to. For example, if the Plaintiff claims that the car wreck caused brain damage, a neurologist (a medical doctor with special training in the brain and nervous system) would be allowed to give an opinion about whether the collision caused permanent brain damage, whereas the Plaintiff’s non-doctor friend or family member would not. Sometimes a percipient witness who happens to have expert knowledge may be able to give an expert opinion without being a hired or paid expert, such as if someone involved a car accident case where there is an allegation of negligent maintenance happens themselves to be a car mechanic.
- First Party Insurance - When a relationship is between an insurance company and its own customer. This involves a duty to deal in good faith and potential liability for dealing in bad faith.
- Foundation or Laying a Foundation - This is an explanation as to why certain evidence should be allowed. For example two cars collide in an intersection, both drivers are hurt and there is a dispute as to which driver had the green light. One side offers the testimony of a pedestrian who says he saw the collision and which car had the green light. Foundation testimony could include such questions as where was the pedestrian at the time of the collision, was the traffic light visible from where the pedestrian stood, was the pedestrian texting on his phone at the time of collision, if the pedestrian was near-sighted, was he wearing glasses or contact lenses, was there fog or falling snow that interfered with the pedestrian’s vision, etc.
- Future Medicals - an estimate of future medical expenses the Plaintiff will be faced with. This usually requires expert testimony.
- General Damages - These are claims the Plaintiff makes that can’t be easily reduced to dollar amounts; examples are money claims for past and future pain and suffering and in the case of wrongful death, loss of companionship.
- Good Faith - The relationship between an insurance company and its own customer involves a duty of good faith meaning that the insurance company is somewhat less free to treat its own customer as an adversary than would be the case if the claimant was not the insurance company’s own customer.
- Impeachment - The job of the Plaintiff’s attorney is to put together a case that will be appealing to a jury; the job of the Defense attorney is to defeat that effort. Impeachment is the process of attacking the credibility of a witness or party. The defense looks for instances in which the Plaintiff said contradictory things. For example, if the Plaintiff gave a recorded statement to the insurance adjuster, answered interrogatories, gave a deposition and then testifies at trial (possibly years after the event) there will be four different accounts the Plaintiff has given and even innocent differences in what the Plaintiff said can be exploited to make the Plaintiff seem dishonest. Also, the Plaintiff has seen doctors and told the doctors what happened and may have done social media post opening up even more opportunities for impeachment. For these reasons we usually don’t let our clients give recorded statements to insurance adjusters and advise them to be very careful about what they post on social media. The Defendant can also be impeached but the case is almost always more about the Plaintiff (and becomes entirely about the Plaintiff if the Defendant decides to just admit fault and only dispute the amount of damages) so the Plaintiff has be very careful about impeachment. Non-party witnesses including experts can also be impeached to weaken their credibility. For example, an eye-witness to a collision might be impeached if he couldn’t read the time on the courtroom clock because of bad eyesight. A paid expert has to testify about how much they are being paid by one of the party’s for their testimony.
- Independent Medical Exam - what the defense likes to call the Defense Medical Exam. Many jurisdictions’ court rules use the term “Independent Medical Exam” but in reality, there are a few doctors who make a lot of money by regularly getting hired as experts for some of the same insurers and/or defense firms on a repeated basis. Such doctors are not really “independent” as it is not as if the doctors are randomly assigned to the case by the court or by some other independent method. Interestingly though, if a doctor who considered to be “defense-oriented” examines a Plaintiff and is not at all critical of the Plaintiff’s bodily injury claims, the defense will generally then be very eager to settle.
- Interrogatories - Written questions one side can send the other that have to be answered under oath.
- Judgment Proof - It is common for driver without adequate insurance to cause injury to innocent victims in car wrecks. The $15,000 per person ($30,000 per accident no matter how many people were injured) minimum liability insurance limit in effect in many states including Nevada was established decades ago, and has never been adjusted for inflation. In such a case the victim and their attorney must decide whether to take an inadequate insurance policy limit or to go to trial for a judgment in the hopes of collecting additional money against the at fault driver. If it is believed that additional money cannot be gotten out of the at fault driver it is said that the driver is judgment proof. For example in Nevada, a person can protect up to $550,000 of their home equity in their primary residence if their house is properly homesteaded. People’s retirement accounts and a portion of their future income can also be protected to an extent by both state and federal law as well. Further, as is discussed above in the definition of “duty to defend”, an insured person can usually enjoy getting a “free” defense from their insurance company and make the Plaintiff spend a lot of money and time going through a trial to get a judgment (which can take years and cost thousands of dollars) before the Plaintiff finally gets a judgment and begins to try to collect it. As a practical matter, it is not common to pursue to an insured person for money beyond their policy limits, but it can sometimes make sense to do so where the Defendant is fairly affluent and the damages are much higher than the policy limits. It is always a good idea get “Uninsured / Under-Insured” coverage at the highest limits you can afford to protect yourself in case you get seriously injured by a judgment proof driver.
- Jury Instructions - When a case is tried to a jury the attorneys for all parties and the judge work out in advance what written instructions will be given to the jury. These instructions are designed to tell the jury what the law is so that the jury can apply the law. The jury is not allowed to go on the internet to research the law or other issues in the case. Appeals have been won or lost over the issue of whether a jury instruction was correct. Usually the judge reads the jury instructions in a monotone which is very boring. However, the attorneys are allowed, within certain limits, to explain the jury instructions, especially in closing argument. It can be smart to plan the presentation of a case at trial keeping in mind what the jury instructions will likely be from the beginning, and to utilize words and phrases from the jury instructions in questions asked during discovery and trial.
- Jury Trial - A trial in which a jury determines fact disputes and the judge determines the law. Jury trials are becoming increasingly less common in light of the increasing popularity of ADR, as well as Supreme Court decisions that have upheld the enforceability of mandatory arbitration clauses in many different types of contracts.
- Lawyer Discipline - The State Bar of Nevada regulates the licensing of lawyers and has a range of discipline actions going in increasing severity from private reprimand, public reprimand, suspension, and finally disbarment. As of this writing if you go to nvbar.org you will find a “Find a Lawyer” section and if you type in the lawyer’s name, you will be able to see if there is any disciplinary action taken against the lawyer that is public reprimand or a suspension.
- Legal Malpractice - This is when a lawyer’s handling of a case is so far from the usual standard of care that the case is lost or the client suffers harm (such as the loss of money). These cases are difficult to win, and as is explained below, lawyers can be difficult to collect from, so clients should only hire lawyers who carry malpractice insurance. You can call the Nevada State Bar and ask if a lawyer has filed proof of legal malpractice insurance with the State Bar. Unfortunately, the State Bar does not necessarily verify what the lawyer has filed, or get notified if the policy lapses due to non-payment of premiums. Lawyers who don’t have malpractice coverage may also be judgment-proof, see above for the definition of judgment-proof. Lawyers on average probably know more about asset-protection and defending lawsuits than the typical non-lawyer, and can probably be thought of as more difficult to successfully sue and collect against when they are uninsured even though they may appear to be affluent. One of the greatest difficulties of pursuing a legal malpractice claim is that one will likely need to prove the underlying value of the original case/claim as well as proving that the lawyer’s mistake caused damages. For example, in a personal injury case that a lawyer allegedly lost due to malpractice, the client will not only have to prove it was the lawyer’s mistake that caused the loss of the accident case, but will also have to prove what the original accident case was worth but for the mistake, including that the original Defendant was negligent and caused damages. The mere fact a case is taken to arbitration/trial and lost does not by itself prove any negligence on the part of the lawyer. If the underlying case was complicated and involved disputed liability, a malpractice case might fail even if the lawyer made one or more mistakes.
- Liability Insurance - insurance that protects a Defendant against a claim; naturally a seriously hurt Plaintiff hopes the Defendant has a large liability limit as liability insurance is usually the easiest, fastest, and cheapest “asset” of the Defendant to collect on. Sometimes more than one liability policy can be involved in a case, especially where there are multiple defendants. Some affluent individuals and many companies will have an auto insurance policy covering each vehicle they own, and then they will also have some sort of umbrella or general liability coverage as well. In this situation, the auto policy is considered the “primary” policy meaning that it will be paid out first, and if it is not sufficient, the umbrella or general liability policy may then provide additional (“secondary”) coverage up to its own limit. Sometimes the underlying auto policy might be relatively small but the umbrella or other secondary policy might be much larger. Unfortunately, most individuals do not have umbrella policies, and some companies have only one insurance policy. Notably, liability insurance policies will usually only cover true accidents and not intentional wrongdoing, though there can be exceptions. Liability insurance also usually excludes punitive damages (defined below).
- Liens - Liens are claims against a settlement or lawsuit recovery that lawyers have to pay when they distribute money from a settlement or lawsuit. A health care provider might have a lien that the Plaintiff or their attorney signed to obtain treatment. Hospitals have a statutory right to file liens against a Plaintiff’s claim. By statute Medicare and Medicaid, and other federal government-related entities like the VA and Tricare have liens on personal injury lawsuits. Health insurance companies providing coverage to employees usually have a statutory lien to get paid back out of the Plaintiff’s claim. If Plaintiffs borrow money from a loan company against their claim, then the loan company has a lien. Recently, the State Bar of Nevada has indicated attorneys cannot just ignore claims being made by third parties to personal injury funds, even where there is no statutory lien or signed lien. This means if there is a dispute about such funds, the attorney may have to file what is called an interpleader action with the Court if an agreement amongst the interested parties cannot be worked out.
- Litigation - what happens after a lawsuit is filed and until the case ends. A case can be either in the pre-litigation stage (before a lawsuit has been filed) or in the litigation stage. Litigation can be expensive and time consuming, but sometimes it is the only way to pursue a fair recovery.
- Mandatory Non-Binding Arbitration - In most personal injury cases filed in County, Nevada, (The Eighth Judicial District Court) if the Plaintiff cannot reasonably claim damages of more than $50,000, the court system will send the two parties a list of 5 court approved Arbitrators, each side can strike as many as two of them, and if more than one is left, the Court system will randomly select one to serve as Arbitrator. The Arbitrator will hear evidence and make a ruling. Either side can then disregard the ruling and file for a Trial De Novo.
- Magistrate - A federal judicial officer who is not appointed for life but who can handle some or all aspects of a federal lawsuit.
- Mediation - This is a process where a third party is hired to try and settle a claim; usually this occurs after suit has been filed. Unlike Arbitration, the job of the Mediator is not to decide the case but to see if he or she can bring the sides to a settlement. In personal injury cases where participating in a mediation is truly voluntary on the part of all parties it oftentimes results in an amicable settlement. However, in jurisdictions that require mandatory mediation, or where one of the parties is heavily pressured to participate, it may not be as likely to resolve the case and may just increase the amount of time and money spent pursuing the case.
- Medical Malpractice - This is where the care given by a health care provider is so far below the standard of care that the patient dies or suffers some serious harm. Doctors and their insurance companies have been successful in getting the Nevada legislature to pass special laws making these claims more difficult to pursue.
- Medical Payments Insurance (Med Pay) - This is really great insurance to have on your car in Nevada if you are hurt in a wreck. It pays, up to the med pay policy limit, your medical bills. If you are not a fault and recover from the other driver this means more money in your pocket because you don’t have to pay doctors and hospitals out of your settlement if the med-pay already paid them. If you are at fault for the collision, it still pays. (It is no-fault insurance.) Med Pay in most cases covers you when in your car or someone else’s or when you are a pedestrian or cyclist hit by a motor vehicle. Note that while you do not have to reimburse the Med Pay provider out of the money recovered from the at fault party in Nevada, in some other states you might. Also, if you have Uninsured/Under-Insured motorist coverage with the same company that provides the Med Pay, they may be entitled to an “offset” meaning that they can count the Med Pay funds they paid out towards their Uninsured / Under-Insured policy limits.
- Mistrial - When a trial is terminated without coming to a conclusion because of some error or mis-conduct. Usually the side which causes the mistrial suffers a large financial penalty because of all of the wasted expense of the prematurely terminated trial. If a lawyer violates a judge’s order on what evidence can be introduced or on what arguments can be made, there is a risk of a mistrial.
- Mode of Operations - The usual defense when someone sues for injury for falling or slipping in a store or casino or restaurant because of water on the floor is that the store can’t be responsible if some other customer dropped some water 60 seconds earlier and that the Plaintiff has to prove what the store did wrong. However, if, for example, a restaurant or store has self-service soft-drinks that customers dispense themselves, the Courts have imposed on the store or restaurant a burden of proving that they are not negligent for anticipating in advance that customers will spill liquid on the floor and could not have reasonably foreseen and prevented the accident by, for example, placing absorbent mats or other slip-resistant flooring in the area.
- Moral Hazard - This is an old insurance term to explain why insurance policies don’t cover intentional bad acts. If your insurance covered you for drunk driving, or for ramming your car into someone else’s during a road rage episode, you would be more likely to engage in this sort of bad behavior, or so the argument goes. (Actually, most insurance policies will cover you for a claim against you for ordinary damages from drunk driving but not for a claim for punitive damages against you for drunk driving. On the other hand, if you intentionally ram your car into the car in front of you because the driver sat thru a green light yakking on his cell phone, you are probably not covered for any damage claim.)
- MRI - This is an alternate way to get multiple high resolution images of body parts without using x-rays. In personal injury cases these are often used to assess spinal damage as they can show better details of some of the parts of the spine than x-rays can. Sadly, MRI machines are expensive and MRI’s tend to be much more expensive than x-rays.
- Negligence - Can be defined as doing something an ordinary reasonable person would not have done under the same circumstances, see Prudent Person Standard of Care definition below. In personal injury lawsuits, the injured party can usually only be compensated against a Defendant who was negligent. If you fall on water in a store and are hurt you have to explain what the store did that was careless. But see Mode of Operations and Strict Products Liability.
- Negligence Per Se - One way to establish negligence can be to show that the accident happened because the Defendant broke a law that was in place to protect the safety of persons like the Plaintiff. For example, it is illegal to type text while driving. This law was passed to promote the safety of everyone on and near the public roads from distracted drivers. Thus if the Defendant was texting while driving and did not notice the car stopped in front of him and rear-ended it because he was looking at his smart phone screen instead of the traffic in front of him, he would be negligent as a matter of law. The Plaintiff could potentially get a jury instruction to that effect from the Judge, and the only real issue for the jurors might be how much money to award the Plaintiff. However, the law violation has to have caused the accident to be relevant. If someone is stopped at a red light and texting when they get rear-ended, they may have been violating the law and could get a ticket for it, but if their texting while stopped at the red light did nothing to cause them get rear-ended, it would not be relevant to the accident case and the Judge probably would not allow that violation into evidence.
- No-Fault Insurance - Insurance that pays regardless of fault. Health insurance is no- fault because it pays to fix a broken leg whether you get drunk and fall or whether a careless jogger runs into you. Med-pay insurance is also no-fault. Another example, is that some home-owners’ insurance policies may have, perhaps, $1,000 of no-fault med pay coverage for guests who are hurt in your house.
- Offer of Judgment - The modern American legal system is set up to discourage the final step in a lawsuit: actually going to trial. The reasoning is that before the trial starts, because of earlier litigation steps each side knows the other side’s case so it makes sense to settle. The offer of judgment is a tool to pressure parties to settle. For example, the Defendant may make a formal written offer to settle for $100,000. If the Plaintiff does not accept this offer, and the jury awards the Plaintiff less than this amount, the Plaintiff has to pay the Defendant’s costs and attorneys fees from the date of the offer. In this example, if the jury awarded the Plaintiff $90,000, this award would likely be reduced by tens of thousands of dollars to pay for Defendant’s trial costs and attorneys’ fees. In addition, after a trial, in the absence of an offer of judgment, the Defendant usually has to pay the Plaintiff their costs. Thus, if the Plaintiff fails to beat an offer of judgment, the Plaintiff suffers the triple whammy of losing their claim to make Defendant’s pay their costs, paying Defendant’s costs and paying some of the Defendant’s attorneys fees.
- Opening Arguments - In a trial, the lawyers can make an argument to the judge in a judge trial or to the jury trial in a jury trial before the parties present their evidence. For example, the Plaintiff’s lawyer might offer a summary and explanation of what the Plaintiff’s case is about.
- Past Medical Specials - Medical expenses already incurred by the Plaintiff. Currently in Nevada these are the bills before any discounts by insurance companies. See Collateral Source Rule.
- Plaintiff - The person hurt in the personal injury case, the person suing. There can be more than one Plaintiff. The Plaintiff in a personal injury case has the burden of proof, meaning they have to prove it is more likely than not that the Defendant was negligent, and that the Plaintiff suffered the claimed damages because of the Defendant’s negligence. The Plaintiff generally has to file their claim before a deadline called the statute of limitations, and the Plaintiff has to meet all sorts of deadlines during the litigation to prevent the case from being dismissed. The system is set up to make it difficult to legally take money or property away from someone else, which is basically what a Plaintiff is usually trying to do. In a car accident case you don’t usually get to sue the insurance company, you usually have to sue the other driver, and then if they have insurance their insurance defends them.
- Police Report - If police investigate a car collision, they usually leave the scene after giving each driver a sort of ticker tape print-out of the names of the drivers and their insurance companies. This is not the police report. Usually several days later a police report on a standard state form is generated. In the Las Vegas area, different police agencies have different rules on how to get a police report. The Henderson PD may just e-mail it for free to any requesting party. The Nevada Highway Patrol (blue uniforms) views the regular report as public information and will give anyone a copy for ten bucks. Metro (brown uniforms) requires a notarized authorization from a party involved in the collision unless the party shows up at Metro personally with their ID. The police report is not admissible at trial (although the investigating officer can testify.) However, a favorable police report goes a long way towards settling a case without filing suit as most insurance companies consider the police as neutral investigators.
- Policy Limit(s) - Insurance has a limit set out in the policy. For example, in Nevada, an auto policy to cover liability for injury to other people can by statute have a policy limit of only $15,000 to any one person and $30,000 to all people hurt in the wreck. This would be written as $15,000/$30,000. Other common limits are $25,000/$50,000, $50,000/$100,000 and so on. Or, the policy might have a single limit, say of $250,000 meaning that the maximum the insurance company is liable for is total injury claims of $250,000. Sadly, small policies are more common than larger policies.
- Policy Limits Demand - An insurance company has a duty of good faith to try and protect its insured customer. Suppose a Defendant runs a red light and T-bones another car occupied by the driver and one passenger and the Defendant has $50,000/$100,000 policy limits. (See above). Suppose each occupant of the T-boned car has a claim worth somewhere in the range of $35,000-$55,000. In this case if the claimants said they would each settle for the policy limit of $50,000, the insurance company might decide to pay rather than risk an excess judgment exposing its insured to liability and exposing the insurance company to a lawsuit by its insured.
- Pre-Litigation Discovery - Once a lawsuit is filed each side has a big burden to respond to formal requests for information, records, inspections, videotapes, etc. from the other side. But before a lawsuit has been filed (in the pre-litigation stage) neither side has a duty to give the other side anything, although each side should preserve relevant evidence to prevent a claim of spoliation of evidence once suit is filed. Usually, because the Plaintiff would like to get paid for their claim, especially if it is a smaller without permanent injury, without filing suit, this is a one-sided production of evidence and records by the Plaintiff. At our firm we usually don’t let the insurance company take our client’s statement before suit is filed but we do produce medical records in an effort to settle the case. Notably, if someone is making a claim against their own insurance company, such as for Med Pay or Uninsured / Underinsured benefits, their contract (which is the insurance policy itself) will usually require them to provide recorded statements or something similar upon request regardless of whether suit has been filed.
- Primary Coverage - Let’s say you are injured in a car wreck in Las Vegas where you live caused by a Colorado tourist who has flown into Las Vegas and rented a car in Las Vegas. If this tourist owns a car in Colorado with valid insurance, the Colorado insurance probably applies to the Las Vegas car rental and the car rental company by law gets to say that the Colorado insurance coverage is primary meaning the first dollars of the claim must be paid by the Colorado insurance company. (Unfortunately, in Nevada, car rental companies usually succeed in arguing that they have no insurance obligations to people injured by their renters as long as their renters have insurance coverage that meets the $15,000 per person/$30,000 per accident minimum coverage.) If the Colorado tourist does not own a car in Colorado or has no Colorado insurance then the Las Vegas car rental company will only be liable for insurance up to the state liability minimum (unless they paid extra for extra coverage from the rental company, or unless the rental company somehow did something negligent on its own, like renting a car to someone without a valid driver’s license).
- Punitive Damages - These are extra damages, sometimes called exemplary damages, awarded to a Plaintiff on top of compensatory damages to punish the Defendant for really bad conduct, such as driving drunk. Punitive damages are not covered by insurance but create a problem for the insurance company and the lawyer it hired to defend the case when the case consists of claims for both compensatory damages and punitive damages since the lawyer has to defend (at the insurance company’s expense) the case and the jury may award more compensatory damages against, for example, a drunk driver, although that technically would be against the jury instructions.
- Premises Liability - Refers to the liability of the owner or operator of a store or other place where a Plaintiff is hurt from an accident. In Nevada, the owner or operator is only liable if they are fault for some careless or negligent act. Contrary to what some people think, a business has no automatic liability whenever someone is injured on their property. Premises liability cases can get quite complicated when there is more than one company responsible for owning and/or operating the area where the accident happened.
- Prudent Person Standard of Care - A person driving a car or operating a store or casino has a duty to others to use the care that an ordinary and prudent (careful) person would use in similar circumstance. In personal injury trials there is often a jury instruction to this effect. This rule means that if you fall in a store the store is not automatically liable for your injury: in most cases you must show what the store did wrong or how it was careless. (Mode of Operations is a possible exception.)
- Reasonable and Customary - In order to introduce medical bills into evidence, there has to be some proof that the bill was for necessary medical treatment (made necessary by the event sued over) and that the charge is reasonable and customary. We have a strange situation in America where different people getting the same treatment from the same provider pay different amounts or have different amounts paid on their behalf.
- Recorded Statement - when an insurance adjuster or investigator records a statement from a party or witness.
- Requests to Admit - a written demand by one party to another that a fact be admitted. If the party refuses to make the admission there could be financial penalties if the requesting party has to spend money to prove the fact that should have been admitted.
- Requests to Inspect - One party can demand the right to inspect, often with their expert, for example, the place where a Plaintiff fell, if that is on private property.
- Requests to Produce - a written demand by one party to another to produce copies of documents or other things. In a personal injury case the defense usually demands production of Plaintiff’s medical records and social media posts.
- Reservation of Rights - Let’s say an insured driver’s friend climbs into the insured driver’s house through an open window while the insured driver is asleep, takes the insured driver’s car keys and drives the car and causes an accident. If the insured driver gave the friend permission to do this, the insurance applies. If the friend “stole” the car without permission, there is probably no insurance coverage. In a case like this the insurance company may agree to defend against the injured party’s lawsuit under a “reservation of rights” whereby the insurance company tries to minimize the judgment leaving open its right to later contest coverage, perhaps, as more facts come out in the trial.
Sanctions - Judges have great power to discipline lawyers who disobey them or fail to act according to court rules or fail to diligently meet their obligations once a case is in litigation. Sanctions can range from mild (like a $50 fine) to severe (dismissal of the case, mistrial, and/or a report to the state bar.) If a lawyer has not timely disclosed evidence, the sanction might be that the evidence is not allowed. This sanction could be mild or severe depending on the importance of the evidence.
Security Officer Reports - If a person is injured on private property such as a casino or shopping mall a security guard/officer might investigate it and write a report. They may also take pictures, interview the injured person and witnesses, and possibly obtain recorded or written statements from the injured person. Unlike a police report, the security report is created by a private company that might be concerned about being sued over the accident so they are not viewed as objectively, but they nonetheless can sometimes provide very useful information.
Settlement Conference - This is like a Mediation, except that it is conducted through the Court, usually by an actual judge (usually a different judge than the judge presiding over the rest of the case). In the federal court system the settlement conference will be held by a Magistrate.
Soft-Tissue Injury - In personal injury cases, this usually refers to muscle or tendon sprain or injury
Specials or Special Damages - These are damages that the Plaintiff claims that can be reduced to specific dollar amounts; they include past and future medical expenses and past and future wage (or other income) losses.
Spoliation of Evidence - If a person or company has reason to know that certain evidence will be relevant in the making or defense of a claim, the Court system does not want to see that evidence destroyed. Ironically, having the other party destroy/discard evidence that would have been bad for them can help your case more than the evidence itself would have. For example, you fall at a casino, are seriously hurt, and where you fell is under video surveillance. The casino reviews the videotape and concludes it was the casino has some liability and erases the tape. If this can be shown at trial, the Court may instruct the jury that the casino is at fault for the fall and all the jury has to do is determine damages, or the Court may simply instruct the jury that the Defendant had control of evidence and intentionally destroyed it, presumably because it would have been bad for them, which will almost certainly result in the jury deciding the Defendant was at fault. Likewise, if you buy a new chair, sit on it, and it collapses and you are badly hurt, but throw away the broken chair the Court will probably dismiss your claim.
Stacking - Let’s say Jack and Jill own 3 cars together. Each car has uninsured motorist coverage with policy limits of $15,000/$30,000. Jack is hit in a crosswalk by a driver of a car with no insurance and badly hurt. Jack will want to take the position that the single $15,000 policy limit on each of his cars can be stacked together for a total uninsured motorist policy of $45,000, while his insurance company may argue that the policies can’t be stacked and Jack only has $15,000 in coverage. The dispute will be resolved by looking at the statutes/case-law and whether the policies have anti-stacking provisions in them. In Nevada, properly drafted insurance policy anti-stacking provisions can be enforced.
Statute of Limitations - A personal injury claim can be lost if suit is not filed within a certain time period. Or, if the claim is against a governmental entity, the claim can be lost if a claim is not filed against the governmental entity (or notice given to the entity) within a certain time period. Most personal injury claims in Nevada have a two year statute of limitations but there are various shorter exceptions, for example, in most medical practice cases, the statute of limitations is one year.
Strict Products Liability - If you can prove to a jury’s satisfaction that the steering on your Nissan locked up by itself while you were driving and that as a result you crashed into a wall and were hurt, you might not have to prove that Nissan was negligent or even explain the mechanism of the lock up. Manufacturers can be held liable without proof of negligence when their products are used in their intended way and cause harm. Strict Products Liability may also allow you to make a claim against any entity in the chain of distribution, which is very helpful since you would not know at the time of filing suit whether Nissan hired a different company to design, build, or install the faulty steering item. Although arbitration and warranty waiver provisions in your purchase contract might provide a manufacturer such as Nissan with defenses it would not ordinarily have under normal personal injury law. Also, federal and state regulations can sometimes provide a shield to companies that would otherwise be liable for defective products. For example, with injuries allegedly caused by vaccines, there is a special separate court program with its own specials rules to be followed.
Sub-Dural Hematoma - If the brain is injured and bleeds, an accumulation of blood between the brain and the skull (technically between the brain and its covering called the dura) can cause compression of the brain which if not treated can cause death. This problem can take while to develop as more blood leaks out increasing the pressure on the brain. This is a dangerous medical emergency; fortunately it is not common. In 1989 former President Ronald Reagan underwent surgery for this condition two months after falling off his horse. We have had at least one client who had this injury.
- Third Party Insurance - When the relationship is between a claimant and someone else’s insurance company. In a car accident case, the other driver’s insurance is called Third Party Insurance.
- Traumatic Brain Injury - This is a hot topic in both sports medicine and personal injury cases. The obviously very serious head injuries are skull fractures and fractures of other bones in the head as well as sub-dural hematoma. But evidence is accumulating that more mild head trauma not requiring life-saving treatment or leaving obvious evidence of trauma causes brain injury.
- Trial de Novo - In Clark County’s (The Eighth Judicial District Court) Mandatory Non-Binding Arbitration, if one both sides refuses to accept the Arbitrator’s decision and timely files a request, there is a one-day short trial conducted by a lawyer in private practice who is not a regular judge (unless one of the sides timely requests and pays $1,000 to exempt the case from the short trial program).
- Uncapping the Policy - When a reasonable insurance company should have paid its policy limits but unreasonably refused to do so exposing its insured to an excess judgment. In this situation if the Plaintiff gets an excess judgment, the Plaintiff can essentially make a deal with the Defendant that can make Defendant’s insurance company liable for the full amount of the judgment. (The Defendant gives to the Plaintiff the Defendant’s claim of bad faith against their insurance company to the Plaintiff in exchange for the Plaintiff’s promise to try and collect only from the insurance company.)
- Uninsured / Under Insured Motorist Coverage - This is insurance that a person buys in connection with their auto liability insurance that give them coverage if an at fault driver without insurance or without adequate insurance injures them. This insurance will protect you in your car, usually in someone else’s car, and in most cases if you are pedestrian or bicyclist hit by a motor vehicle. If you are a better than average driver, you are more likely to be the victim of a motor vehicle collision than the cause and therefore this insurance may be more important to you than liability insurance. If you think about it, the irresponsible drivers that tend to cause accidents are probably also the ones most likely to be uninsured or to have small policies. After all, the worse someone’s driving record is, the more expensive getting insurance is for them. We strongly advise everyone to get the highest coverage they can afford.
- Wrongful Death Claims - claims by relatives for the death of a person. Under Nevada law these can only be made by those persons who would inherit from the Plaintiff in the absence of a will. This always includes spouse and children when such persons exist. (The estate of the person killed owns the claims for medical care following the injury and any other special damages incurred by the Decedent).