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One of the things that people don't like about lawyers is they talk in code. We don't really, but we use a lot of terns that don't get used in normal conversations. So, I am starting a new tag, "glossary" for defining terms in common language. We'll start today with terms directed at personal injury practice.

Claimant- A claimant is the person who is injured.

Defendant- This term refers to the person who is blamed for the accident. This is also used as the term for the person who is being sued. It is not proper to call an person who's case is not in litigation a Defendant. Before the petition is filed they are more properly called an insured. The word gets misused often. The word can get confusing in complex litigation scenarios where both parties are making claims against each other. When this occurs it is better to use the terms "Respondent" and "Movant" as to the secondary claims being litigated.

Accept/Deny Liability- The first thing one needs to find out from the insurance company for the person who caused an injury is if the y are going to accept or deny liability. This process can be infuriating to clients. If the other side ran a red light and got ticketed for it, how could the insurance company not accept that their driver was at fault? An insurance company’s decision to accept liability is based on the facts of the accident as well as contract law. The facts of the accident may make it clear who is at fault for an accident, but if the insured driver is in violation of his contract with the insurance company they may not be required to cover the accident. This topic is complicated enough to deserve its own topic. For purposes of this glossary what is essential is that when a lawyer is discussing whether or not the insurance company has accepted or denied liability, they are discussing whether or not the insurance company is willing to negotiate the claim or not.

Audit- Many insurance companies will do a review of the bills presented in a claim to determine if the bills are reasonable and the services rendered were necessary. This process is called an audit. Most audits by insurance companies are very one sided. Some audits are done internally by the adjuster reviewing the file. These audits have no merit outside of the negotiations process. Some audits are preformed by outside companies, which could be called as witnesses at trial to testify as to their findings.

Demand- For lawyers a demand can be two things. Any request for money to settle a case is a demand. A more proper set of terms in chronological order are:

Demand Package- The initial set of documents sent starting the negotiations process. This package usually contains all the medical records, bills, police reports and photographs.

Counter Demand- The demands made in response to the offers by the insurance company.

Final/Bottom Dollar demand- This is the “line in the sand” demand which tells the adjust the lawyer cannot go lower than this number.

Expert- Experts are a special witness in claims or litigation cases. Experts are individuals whose experience, education and licensing give them the authority to speak as a definitive source of information on a topic. Experts can only be challenged on their qualifications by non-experts. To challenge the opinion of an expert takes another equally or higher qualified expert’s opinion.

Gross Negligence- Gross negligence is a special type of negligence. The term gets redefined often and can be difficult to explain. A finding of gross negligence has to do with the likelihood that somebody would be hurt, and how bad that someone could be hurt. Without going into a law school definition it is best to explain by example. Firing a gun into a crowded elevator is gross negligence. The odds that you would hit someone with a very dangerous bullet are high. Firing a gun into the air in a large open field without regard as to where the bullet would fall might not be considered gross negligence by some jurors as the odds of hitting someone were much lower. Throwing a banana into a crowded elevator is negligent, but not likely to cause such great harm that many jurors would consider it to be gross negligence.

Insured- For a personal injury lawyer, the “insured” is the person who caused the accident, has valid insurance, and is the one the claim is against.

Letter of Protection - A letter of protection is a letter requesting a doctor treat you on credit and hold off on payment until the case is settled. The doctor will then be paid out of the settlement.

Liability- For personal injury lawyers liability has two meanings. First it is a type of automobile insurance coverage. Liability coverage is what you are claiming against when someone hits you in an accident. The second meaning is deals with responsibility for harms. If a person was negligent, and that negligence caused a harm, for a lawyer that person has liability (responsibility) for fixing those harms.

Litigation- This term is only properly used once a petition has been filed with a court. Prior to the filing of a petition an injury case is called a claim. Most accidents start out as a claim and only become litigation if the matter cannot be settled without filing a petition.

Mediator- A mediator is an individual who presides over a mediation. They do not have to be a licensed attorney. They do have education and licensing requirements. A mediator does not take sides. A mediator’s job is to get opposing parties to talk in negotiation of settlement. A mediator can “call BS” on false claims or threats to keep a settlement negotiation moving and fair. A mediator can also tell a party if the mediator believes the party is being unreasonable. The mediator does not have authority to decide a case or to force any party to do anything.

Mediation- Mediation is a structured negotiation over several hours presided over by a mediator. The parties come together and through the mediator make offers and demands. The mediator tries to help the parties see the strengths and weaknesses of their case so that barriers to settling the case are removed. Mediation most often occurs after negotiations have broken down or when a case is close to trial.

Mitigation- This is a legal requirement on the person bringing a claim for damages. An injured person is required to take steps to limit their damages. The best example is that if you run a home business without employees, and an accident makes it to where you cannot work, you may not be able to sue for all your losses during the treatment of the injury. If you could have hired an employee to help, and simply made less than before, your damages would be the loss you would have had if that employee had been hired. You damages would not be the loss of all business during that time.

Negligence- Negligence is basically a lack of care for the safety of others. Usually negligence is easy to see. If the other driver ran a stop sign and caused an accident, it is easy to see the negligence. If two cars are changing lanes on a highway, each has their turn signal on, and each looked before starting their lane change, but they collided in the process, deciding who was negligent is much harder.

Negotiations- This is the process of deciding what should be done to compensate one party for a harm caused in an accident. It is usually a series of offers and demands. The best way to describe the process is that it is much like haggling over the price of a used car. The seller (the claimant) tries to portray the car as having a high value, while the seller (insurance company) tries to argue why the car is not worth what the seller is asking. For there to be a “sale” the top dollar offer of the buyer must be equal to or higher than the bottom dollar demand by the seller.

Offer- Money suggested in response to a demand by the insurance company.

PD- This is an abbreviation for Property Damage. Property damage is only damage done to real objects in an accident. Usually this consists of the car and goods stored in the car. Injuries, pain, suffering, emotional distress, sentimental value are not parts of a PD claim.

PIP- This is an abbreviation for Personal Injury Protection. PIP is a type of coverage on many automobile policies which states the insurance company will pay up to a certain sum for all medical bills and lost wages of the occupants of the car in an accident (regardless of who was at fault for the accident). PIP does not cover the occupants of other cars in the accident. PIP does not cover pain, suffering or emotional distress.

Plaintiff- This term refers to the person or persons who were injured. In litigation this is the person who filed the suit that started the case. It is not proper to call an injured person whose case is not in litigation a Plaintiff, but the word gets misused often.

Release- This is a binding contract signed to close a case, stating the total amount to be paid by the insurance company to close a case forever.

Reservation of Rights- If an insurance company cannot get their insured to cooperate, or they are unsure of whether the policy might not be valid, yet they still want to try to resolve a claim, they will agree to negotiate on a “reservation of rights.” Essentially they are reserving the right to deny liability or coverage at any time, should they decide it isn’t cost effective to resolve the case in light of the questions they have over their contractual obligations to their insured.

Reasonable and Necessary

Suit, Lawsuit- When a claim cannot be resolved without litigation it is often necessary to file a petition with the court. One the petition is filed the claim goes into litigation. Filing a petition is filing a lawsuit. In this way a lawsuit is no different than a suit or litigation.