Legal Definitions

Arbitration - A condensed trial, wherein an arbitrator, appointed as a temporary judge by the court, evaluates evidence presented by witnesses or documents, much like a jury would. The arbitrator subsequently renders decisions on both legal and factual aspects. Following a thorough examination of the evidence, the arbitrator issues a verdict regarding liability (blame), comparative fault, and the extent and nature of damages, if applicable. This determination is formalized in the form of a binding order. The involved parties are granted a 30-day window from the order's issuance to contest the ruling. Should they abstain from contesting, the decision attains the status of a definitive judgment, officially recorded in the court's records, thus concluding the case, with the order dictating the parties' rights and responsibilities.

 

Civil Action – A civil legal dispute between private parties, where one is known as the plaintiff and the other as the defendant, is convened to establish if one party's negligence renders them liable for the damages incurred.

​

Common Carrier – Any individual or entity that levies a fee for transporting passengers or operates a system or equipment for passenger transport within a publicly accessible business venture. This category encompasses various modes of transportation such as airplanes, BART, Muni, cable cars, ferries, taxis, moving walkways, elevators, escalators, ski lifts, airport shuttles, vanpools, stagecoaches, jitneys, and more.

​

Comparative Fault – Diminishes the claimant's damages in proportion to their percentage of responsibility.

​

Contingent Fee – This arrangement allows you to retain a skilled attorney from the Kerry P. O'Brien Law Firm without any upfront payment or hourly charges, which can typically range from $200 to $500. While legal consultations can be costly, the Kerry P. O'Brien Law Firm only collects a fee if you secure compensation for your damages, either through a settlement or a trial. Our fee is a percentage of the amount recovered for you. This percentage varies depending on factors like the case type, its complexity, whether a lawsuit is necessary, and when and how your case is resolved. It's worth noting that most contingent fees are subject to negotiation rather than being fixed by law.

​

Criminal Actions -  Violations of the penal code, determining guilt or innocence, and potential incarceration. The government handles prosecution, and defendants can receive free legal representation from the state if they cannot afford it.

​

Defendant – An individual accused of breaking the law. In a civil case, the defendant is alleged to be liable by the plaintiff, who claims their rights were violated or they were harmed. The defendant is typically represented by a defense lawyer, often provided by their insurance company, which is obligated to defend the insured as part of the purchased coverage.

​

Deposition – A formal Q&A session, conducted in an attorney's office, where individuals with crucial information regarding liability and/or damages are interviewed. A court reporter creates a written record of the proceedings. The attorney questions the deponent (witness) to assess the case for potential settlement or trial preparation.

​

Discovery – The sworn exchange of information in a legal process. It enables parties to gather information to ascertain liability, fault, and the entitled damages resulting from the incident.

​

Economic Damages – Tangible losses incurred due to wrongful conduct, such as medical costs, wage loss, property damage, and related expenses like funeral costs or rental fees. They are straightforward to calculate as they involve verifiable bills, receipts, and estimates.

​

​Employment Practices Liability Insurance (EPLI) – EPLI provides coverage if you've experienced illegal harassment, discrimination, retaliation, denial of legal rights (like accommodation, medical or pregnancy leave), or wrongful termination. This insurance, obtained by employers, safeguards the company from damages in case an employee violates their legal rights in the workplace. If you've faced any of these situations, you may be eligible for compensation under this policy.

​

Expert – A person with specialized skills, training, or experience whose testimony aids the judge or jury in comprehending matters beyond common knowledge. They typically address technical, medical, industrial practices, or scientific subjects. Their input is invaluable in legal proceedings.

​​

General Liability Insurance – A policy acquired by companies to cover damages if one of their employees, while on duty, acts negligently leading to someone's injury. It operates akin to an umbrella policy for homeowners.

​

Guardian ad Litem – Minors, in legal terms, are not deemed competent to initiate legal proceedings independently. Thus, a guardian is appointed to oversee the litigation on their behalf, known as a guardian ad litem. Typically, this is a parent or legal guardian. The court assesses the application for a guardian ad litem to ensure the child's interests are safeguarded. Additionally, the court reviews the contingency fee agreement to verify its fairness to the minor. Once appointed, the guardian ad litem makes legal determinations for the minor and can consent to a settlement.

​

Homeowners Insurance – This is insurance that people take out to cover any liability for negligence that occurs on or because of their property. Usually, this insurance comes into play in a slip-and-fall, dog bite, stair collapse or some other injury-producing event linked to the property. In addition to covering any liability as a result of negligence, homeowners insurance often provides medical payments coverage for medical treatment for injuries that happen on the property regardless of fault (usually up to $5,000). Therefore, if someone is injured on another person’s property, the injured party may be able to recover medical expenses even if no one is at fault.

​

Insurance – Protects people from financial damages if they negligently cause injury to another. There are many forms of insurance. Just because someone has insurance does not mean that you are automatically paid for your damages. You must, in most cases (aside from workers’ compensation for job-related injuries), demonstrate that negligence makes someone liable for your injuries.

​

Intentional Conduct – Different from negligence because negligence usually is not intentional, but is the result of carelessness, inattention or failure to take precautions. Intentional conduct is when people deliberately do something to harm or kill others such as hitting them (battery), poisoning them, damaging their property, defaming them with false statements of their character or conduct, infecting them with a sexually transmittable disease, or other knowing and deliberate conduct that causes injury. A person who can prove intentional conduct that produces injury can recover all available damages, including punitive damages. Intentional conduct may also be a criminal matter. If you are the victim of a physical injury that has been caused by someone intentionally, get to the police, seek shelter and protect yourself from future harm.

​

Judge – A lawyer who has left the private practice of law to serve the public as a judicial officer. A judge is like a referee. She/he makes decisions as to matters of law. She/he decides what evidence may be heard. She/he controls the process of a trial to ensure that it is fair and unbiased. Judges instruct the jury on the law that the jury must follow. Judges must be fair to both sides. They are not allowed to act as judges in cases to which they have some relationship or in which they have an interest in the outcome. Judges are paid a salary by the government through our taxes. In some cases, there is no jury in a trial. This is called a bench trial (where the judge sits is referred to as a bench). In that case, the judge acts not only as the individual who decides which laws apply, but she/he also acts as the ultimate trier of fact, or fact finder.

​

Liability (or liable) – Fault in a civil action.

​

Liability Insurance – All drivers in California are supposed to carry a minimum amount of liability insurance on their cars. This provides insurance to pay damages if they are liable because of an act of negligence. Statistics show that a quarter to a third of all vehicles on the roadway in California are uninsured. People can’t afford to pay the insurance premiums and drive without insurance. If they are caught, they can lose their license for a year and face stiff fines.

​

Loss of Consortium – When one or both partners in a marriage or domestic partnership suffers a serious personal injury or wrongful death, they have special rights to recovery. This is called a loss of consortium. It is a form of noneconomic damage. If injury causes one partner to be unable to engage in the things that the couple engaged in before, the other partner is entitled to recover for the loss. If the sexual relations, social relations, recreational activities, companionship, child-rearing responsibilities, household responsibilities or other aspects of the marriage have suffered because of the negligence, the noninjured party may have his or her own, separate right to bring an action as a plaintiff. These damages are in addition to other damages that the injured party may be able to recover and are the separate property of the noninjured spouse or domestic partner.

​

Medical Payments Coverage – This is insurance that you buy, on your vehicle policy, in case you get hurt. This provides for payment of your medical bills. Usually it comes in $5,000 and/or $10,000 increments. You are entitled to this coverage no matter who is at fault.

​

Negligence – The failure of someone to act as a reasonable person would under similar circumstances when it was foreseeable that his or her conduct could cause injury to another. This requires people and businesses to use reasonable care in the management of their property, vehicles, animals, actions and business operations.

​

Noneconomic Damages – Include pain and suffering, disability, disfigurement, loss of use, humiliation, mental anguish, loss of love, support and companionship, and emotional distress. These damages are more difficult to calculate and, many times, exceed the value of the economic damages. They are called noneconomic damages because they do not represent out-of-pocket losses. Although they are called noneconomic damages, money is paid to compensate people who have suffered these injuries. There is no fixed standard or method of calculating these damages; they vary by individual and case and are often referred to as subjective damages because they differ according to each individual’s personal/subjective experience.

​

Personal Injury – When someone is hurt or killed because of the fault of another.

​

Plaintiff – Someone who claims harm and who brings a lawsuit seeking to show someone else, the defendant, is liable (at fault) and responsible for the damages. In a personal injury action, the plaintiff is the person who has been hurt. In an employment discrimination/harassment action, he or she is the person who has been fired, harassed or denied accommodation, or whose rights have otherwise been violated. In a medical malpractice case, the plaintiff is the patient who has suffered damages as a result of a health care provider’s negligence. In a business dispute, the plaintiff is the one who files a lawsuit asking for some form of relief or damages.

​

Professional Liability Insurance – This is insurance that is purchased by doctors, hospitals, lawyers, accountants, engineers, etc., in case they are negligent in conducting their professional affairs and their negligence causes damages.

​

Proposition 213 – In California, if you are injured in an automobile collision and you are the driver of a car, your damages may be limited, depending on whether there was insurance on the vehicle you were driving at the time of the collision. If you did not have insurance on the vehicle, you are entitled to recover only economic damages. You can’t recover noneconomic damages such as pain and suffering. If you are a passenger in a vehicle that is not covered by insurance, you are entitled to economic and noneconomic damages. The insurance companies lobbied for this law in 1996 (Prop 213) as part of a proposition designed to save them money by depriving people, injured through no fault of their own, of recovery because of their status as uninsured motorists.

​​

Punitive Damages – Damages that are awarded when the wrongdoer has acted in a way that is considered vile, contemptible and/or despicable to members of normal society. The conduct must be fraudulent, oppressive or malicious. Fraud is deceitful conduct designed to mislead someone. People are oppressive and/or malicious under the law when they act unlawfully to deprive others of their legal rights or when they act in a conscious disregard of the rights and safety of another. These damages are in addition to the economic and noneconomic damages that are designed to make an injured party whole, as much as money can do so. They are a penalty to discourage bad behavior. They must have some rational relation to the underlying economic and noneconomic damages.

​

Settlement – An agreement reached between parties in a dispute. This ends a controversy, often without going through a trial, by spelling out the terms agreed to by the parties.

​

Statute of Limitations – The law requires that if you believe you have been harmed by the wrongful conduct of another, you must bring a lawsuit within a limited period. This is called a statute of limitations. Failure to bring a lawsuit or take the required legal action, such as filing a claim where required with an administrative government agency, may eliminate your right to recover damages if someone is liable.

​

Towing and Rental Car Coverage – Your insurance may provide for a rental car while your car is being repaired. Likewise, it may provide for towing reimbursement. Check with your agent. If it does not, you may seek to have the defendant’s insurance provide you with a rental car while your car is being repaired. They do not always provide this service. If you rent a car, you can claim that cost as an element of your damages during the period your car is being repaired, or, if it is totaled, until the insurance company has evaluated your car and provided you a check for fair market value.

​

Uninsured/Underinsured Motorist Coverage – Because many drivers carry the minimum insurance or none at all, you can purchase uninsured and/or underinsured motorist coverage on your automobile policy to protect yourself if you are injured by the negligence of another. If you refuse this insurance when you buy a policy, the insurance company needs to have a piece of paper that proves you have rejected this coverage. Otherwise, you are entitled to the protection provided. This allows you to have your damages paid for, including pain and suffering, by your own insurance company if the person who hits you has no insurance or less insurance than you do. This is true even if you have some fault in the collision. You should always purchase a full coverage insurance policy for your vehicle which includes uninsurance and underinsurance coverage.

​

Wage Loss – If someone is killed or injured because of the wrongful act of another or is denied promotion or fired wrongfully, that person or his or her family may be entitled to recover wage loss as part of damages. This includes the loss of past income that has been lost or reduced as well as future income that is reasonably certain to be lost or reduced in the future.

​

Workers’ Compensation Insurance – This is insurance that is required under the law, by all businesses, to provide compensation to workers injured on the job. This type of insurance does not require that you prove anyone was negligent. It is no fault, meaning no one needs to be shown to be at fault for you to recover. If you are injured on the job, you are entitled to compensation for your medical bills and lost wages. You are not entitled to noneconomic damages such as pain and suffering.

​​

Wrongful Death – When someone is killed as the result of intentional or negligent conduct of another.