Accident

Defined as an undesirable or unfortunate event that happens unexpectedly and usually results in harm or injury. In a legal sense, it is an event that results in an injury but is not the fault of the injured person for which they seek compensation.

When referring to a car accident, it is better to use the terms “wreck,” crash,” or “collision” to avoid insinuating that no one was responsible for what happened. In nearly all cases, driver error is responsible for causing automobile collisions. In other words, there was no “accident” but instead a bad decision or a series of poor choices.

Actual Cash Value

Insurance companies sometimes use actual cash value (ACV) to calculate the amount owed to a person after loss or damage to their property or vehicle. The amount equals the replacement cost minus the depreciation of the damaged or stolen property at the time when it was lost.

For example, for a car that is totaled in a crash, the insurance company would pay the ACV of the vehicle after figuring out the cost to replace it and reducing the amount for things like wear and tear and depreciation. This is sometimes referred to as replacement-cost coverage.

Adjudication

The act of a court issuing a judgment or order. “Adjudicate” is the verb form.

Adjuster

An insurance claims agent. An insurance claims adjuster investigates claims, estimates damages and company liability, and recommends settlement amounts that they allege are fair to both the insurance company and the claimant.

Ad litem

A Latin-based phrase meaning “for the particular action or proceeding.” Usually written as guardian ad litem (GAL). A GAL is a person appointed by a court to act as a representative for minor children involved in a custody battle or cases of abuse or neglect.

Admission

In the legal arena, an admission is the confession or acknowledgment of a mistake or crime. It’s important to understand that admission does not equal guilt or truth. Sometimes people admit or say things they do not understand with regards to the law or think that admitting fault or responsibility is better than enduring the legal process. This often results in unforeseen consequences that can affect a person long term. Always talk to an attorney to understand your rights and the options available to you.

Affidavit

A written statement in which a person swears to tell the truth and contains statements of truth and facts by the person under oath. The affidavit is signed by the affiant (the person making the statement) and an authorized official such as a notary. Sometimes this may be used as evidence in court. Signing an affidavit containing known false information can carry serious criminal penalties.

Aggravating Circumstances

Circumstances or facts that increase the severity or responsibility of a criminal act. The opposite of mitigating circumstances. Harsher punishments may be imposed for things like repeat offenses, how vulnerable the victim was, if the person held a leadership role during a criminal scheme, and hate crimes.

Alternative Dispute Resolution

Any method used to resolve disputes outside of a courtroom or litigation is referred to as alternative dispute resolution (ADR). Negotiation, mediation, and arbitration are common methods used to reach a solution and avoid the lengthy process of litigation. In the field of personal injury and workers’ compensation, for example, many claims are settled through negotiation, with a lawsuit used as a last resort.

Appeal

To apply for a review of a case in a higher court or tribunal to reverse the decision of a lower court.

Assumption of Risk

A defense strategy used in tort cases to reduce or remove an injured person’s right to recover monetary damages. The defendant must prove the injured plaintiff voluntarily and knowingly knew the activity they were engaged in was risky but participated anyway.

• Primary vs. Secondary Assumption of Risk

Primary assumption of risk is when the plaintiff knew about a particular risk and accepted the risk, which relieves the defendant of responsibility (duty of care). Secondary assumption of risk is when the defendant is negligent toward the plaintiff and the plaintiff knows there’s a risk involved with the situation but proceeds with the activity anyway.

• Express vs. Implied Assumption of Risk

Express assumption of risk is when a person accepts the risk of injury via verbal or written agreement, such as signing a liability waiver (although waivers do not always mean a person or business still can’t be held responsible for dangerous situations). Implied assumption of risk is when a person’s conduct suggests they understood the risk involved and engaged in the activity anyway (e.g. skiing, baseball games, bungee jumping, etc.).

At-Fault State

Also known as a tort state, an at-fault state places the blame and financial responsibility on the individual. A law enforcement officer usually determines who is at-fault. Liability insurance helps cover the losses that result from the at-fault person’s actions. For example, a person who runs a stop sign and hits another driver would be considered at-fault for the damages. This is partially why it is important to have auto insurance. Georgia is an at-fault state.

Bad Faith

A person who intentionally deceives or misleads someone. Insurance bad faith refers to when an insurance company fails to honor its duty toward policyholders (e.g. undue delays in handling a claim, failing to properly investigate, refusing to defend against a lawsuit, threatening the insured person, refusing to make a settlement offer, etc.).

Binding Arbitration

Arbitration is a way to resolve a dispute in a private manner that is less formal, costly, and time-consuming. A binding arbitration means both parties involved waive their right to a trial and accept the arbitrator’s decision as final.

Bodily Injury

Bodily injury includes harm that results in physical injury, illness, disease, and mental anguish. Death due to injury, sickness, or disease is also included. In the legal field, bodily injury is often referred to as personal injury.

Burden of Proof

Refers to a person’s duty to prove a charge or assertion via evidence. The burden of proof for a personal injury case is relatively low compared to criminal cases. The plaintiff merely has to prove their case by a preponderance of the evidence (51% vs 49%).

Case Law

An accumulation of past legal decisions used to analyze and resolve ambiguities in current cases. Case law may also be referred to as precedent.

Circumstantial Evidence

Circumstantial refers to specific details about something that happened. Circumstantial evidence indirectly shows that someone may be guilty but doesn’t conclusively prove it.

Civil Case/Suit

When a legal dispute involves two or more parties over money or harm to personal rights. For example, a case in which a person injured in a collision who is suing for money damages would be considered a civil case.

Class Action Lawsuit

A group of people injured by the same product or action sue as a group. Other types of lawsuits brought by a large group of people who have suffered harm or loss are mass tort litigation and multi-district litigation.

Collision

An object or person violently crashing into each other.

Comparative Negligence

A legal defense that reduces the amount of damages a person can recover for a negligence claim in proportion to the percentage of negligence they contributed to the incident or injury.

Compensatory Damages

Money awarded in civil court cases to a plaintiff to compensate them for damages, injury or loss caused by negligence or unlawful conduct.

Complaint

The first document filed to a court via the county clerk that initiates a lawsuit. The person or party filing the complaint is usually called the plaintiff and the person or party being filed against is called the defendant.

Consultation

To meet and discuss or evaluate something. In personal injury cases, consultations are usually free and confidential for potential clients.

Contributory Negligence

If an injured party is partially responsible for some of their injuries, they cannot receive any award of damages from the defendant. The plaintiff’s negligence must be proven by the defendant.

Damages

A sum of money awarded as compensation for losses or injuries.

Deductible

The amount an insured person is responsible for paying before an insurance company will pay.

Defendant

The person, company or institution being sued or accused.

Deposition

A meeting where a person gives their testimony under oath. A record of the testimony is taken down by a court reporter and can be used in court.

Direct Evidence

An assertion of witnessing or experiencing something directly. A fact or statement of truth that does not rely on inference.

Direct Examination

The questioning of a witness by the person who called them to the stand during a trial. A direct examination is often used in support of a claim or defense.

Disability

A physical or mental impairment that substantially limits a person..

Discovery Law

During the pre-trial period before a lawsuit, each party can obtain evidence from the others using interrogatories, document requests, and depositions. Discovery can also be obtained by issuing a subpoena to a person or entity not involved in the case. This is the investigation phase of a lawsuit.

Distress

The ability to seize money or property from a wrongdoer by an injured party.

Duty of care

Based upon the legal theory that a business or property owner has a duty to offer reasonable care and protect lawful visitors upon their property. The idea of duty of care is based on a formal understanding of the social contract, that individuals have implicit responsibilities toward other members of society.

Estoppel

A principle that prevents a person from saying or asserting something that is inconsistent with an earlier act or statement, especially in cases where it was previously agreed to by law. It keeps people from lying or being inconsistent in two or more cases related to the same event or fact.

Expert Witness

A person called to a trial to testify because they possess special knowledge or skill that is relevant to the case.

Fender Bender

A minor collision between two vehicles. May or may not result in injuries.

Fraud

A deceitful or criminal practice done for profit or to gain an unfair personal advantage.

Gross Negligence

A blatant disregard of circumstances that are likely to cause someone or their property harm or injury. Gross negligence goes above and beyond ordinary negligence.

Hearsay

Unverified information, rumor or gossip acquired from someone else. Hearsay is often inadmissable in court but there are exceptions.

Hit and Run

A hit-and-run accident is when a driver causes a crash and then flees the scene. It is a crime in Georgia to run from the scene of a wreck.

Immunity

An exemption from criminal prosecution or legal liability and punishment depending on certain conditions.

Indemnity

Indemnity has different meanings depending on the context. It could imply:

• Compensation for damages or loss.
• Protection against loss or financial burdens.
• An exemption of legal liability for one’s actions.

For example, someone who is injured while at work can receive indemnity benefits as part of their workers’ compensation. Indemnity benefits are based on a portion of the employee’s wages and paid weekly while the worker is hurt and unable to perform their duties.

Interrogatories

A series of formal written questions from one party to another that must be answered. Also known as requests for further information. The questions are used to clarify facts and gain information about the opposing party’s position and legal strategy.

In Turn

One after the other. Used to show that an action or situation was caused by a previous one.

Jurisdiction

The authority, power or right to administer justice, make legal decisions or enforce the law. Different courts have different powers of jurisdiction or control over the types of cases they may hear.

Justification

A reason, fact or circumstance that excuses or justifies a person. Used as a defense to exempt a defendant from liability.

Lawyer

A person who interprets and applies the law. Also a profession that advises clients regarding legal matters and represents clients in the court of law. Synonyms include attorney, advocate, counselor, and defender. You can meet our lawyers here.

Liability

A legal responsibility or obligation for something. For example, business owners are liable for keeping their premises reasonably safe and secure for workers and customers.

Lien

Owing a debt or legal obligation to another person until payment is made. In the personal injury field, attorneys can negotiate with doctors to treat injured clients on a lien basis, meaning they hold off on accepting payment for medical treatment until after the personal injury case settles. The doctor is then paid using money from the settlement.

Loss of Consortium

With regard to the law, consortium is the right of companionship and intimacy between two married persons. The loss of consortium is used in tort law on behalf of a person who has lost their spouse and the emotional and physical benefits of that relationship.

Malpractice

The failure of a person, such as a lawyer, doctor or public official, to properly provide professional services due to incompetence, neglect or criminal intent, especially when it involves another person suffering an injury, loss or death. Types of malpractice include:

• Medical Malpractice - Common malpractice events include misdiagnosis, delayed diagnosis, failure to provide treatment, surgical errors, providing inadequate care, birth injuries, and faulty medical devices (medical product liability).
• Legal Malpractice - An individual can bring a claim against an attorney for negligence, breach of contract, and breach of fiduciary duty. Examples include missing a statute of limitations deadline, settling a case without a client’s permission as agreed to beforehand, putting their career ahead of their client’s needs, and losing a trial that more than likely would have gone in the client’s favor.
• Professional/White Collar Malpractice - This covers a wide range of professions, such as a therapist, chiropractor, dentist, veterinarian, accountant, clergy, etc. Basically, if a professional or accredited expert fails their duties or harms a person, they may be sued for malpractice.

Manslaughter

Unlawfully killing a person without malicious intent. There are several types of manslaughter:

• Voluntary Manslaughter - The intent to kill or harm in the moment.
• Involuntary Manslaughter - Killing someone without any intent to do so.
• Constructive Manslaughter - Unintentionally killing someone while committing an illegal act.
• Criminally Negligent Manslaughter - Death resulting from negligence or recklessness.
• Vehicular Manslaughter - Defendant killed a person while driving under the influence.

Mitigating Circumstances

A fact or circumstance that reduces the severity or responsibility of a criminal act. Also known as mitigating factors or extenuating circumstances. In some states, courts allow evidence that shows a defendant was under extreme mental or emotional distress as a mitigating circumstance.

Motion

A motion is a request for a court or judge to issue an order or ruling about a contested issue in a case. The party requesting the motion is called the movant or moving party and the opposed party is the nonmovant or nonmoving party. Types of motions include motion to dismiss, motion for summary judgment, motion for a new trial, etc.

Motorist

A person who drives a vehicle.

Negligence

Under the law, negligence is the failure to exercise a degree of care to protect others from being injured that would otherwise result from the lack of care. A person injured due to negligent conduct may file a civil suit for compensation. While negligence is simply a failure to enact reasonable care, gross negligence is a conscious disregard for circumstances likely to cause harm to someone or their property in the future.

No-Fault State

Insurance covers the losses a person suffers as the result of a crash, regardless of whose fault it is. Individuals who are severely hurt may still file a lawsuit against the person responsible.

Non-Binding Arbitration

A non-binding arbitration means either party is free to ask for a trial if they do not accept an arbitrator’s decision.

Oath

A solemn promise, often made in front of witnesses. In a legal setting, an oath is made to signify a person understands their obligation to tell the truth or to affirm a statement as true. It must be administered by a legal official.

The oath administered to witnesses in Georgia:

Do you solemnly swear or affirm that the evidence you shall give to the court and jury in the matter now pending before the court shall be the truth, the whole truth, and nothing but the truth? So help you God.

The oath of the attorney in Georgia:

I, _______, swear that I will truly and honestly, justly and uprightly conduct myself as a member of this learned profession and in accordance with the Georgia Rules of Professional Conduct, as an attorney and counselor, and that I will support and defend the Constitution of the United States and the Constitution of the State of Georgia. So help me God.

Pain and Suffering

Refers to the physical and mental anguish caused by an injury. This includes not only aches and pains but also temporary and permanent limitations, reduced lifespan, frustration, depression, and embarrassment. The amount that can be recovered for pain and suffering is subjective and falls under general damages.

Pedestrian

A person traveling on foot (walking). In Georgia, pedestrians have right of way in crosswalks and drivers must stop for them (it is illegal to cut off or squeeze by someone). “Jaywalking” is not a legal term. Crossing the street is actually considered legal in some places as long as the pedestrian yields to traffic. At an intersection however, pedestrians should always use a crosswalk unless directed otherwise by a traffic controller.

Per se

A Latin-based phrase meaning by, of, for or in itself; inherently or intrinsically.

Personal Injury

Refers to the physical damage inflicted to a person’s body. Personal injury claims often arise from instances of negligence, such as: a distracted driver causing a collision; being attacked and assaulted or shot on a property due to lack of security measures; or an elderly patient is abused by staff at a nursing home. Personal injury covers a wide range of harmful circumstances and legal precedents. A person who is seriously injured due to another’s person or business’s irresponsible behavior should consult with an attorney to see if they are entitled by law to pursue medical and financial compensation.

Plaintiff

A person who brings a lawsuit by filing a complaint with a court against a defendant demanding damages or other rights.

Preponderance of Evidence

The subjective weight of evidence needed for a judge or arbitrator to decide in favor of one side or the other. Evidence that is convincing is more important than a large amount of vague evidence. Preponderance of evidence is often all that is needed to decide matters in civil cases; in criminal cases, judgments must be made "beyond a reasonable doubt.”

Product Liability

Manufacturers, distributors, and sellers have a responsibility to provide products that do not contain harmful defects and to alert consumers and fix them when they become known. Examples include faulty airbags, contaminated food, lack of warning labels, etc.

Proximate Cause

An event that causes an injury due to negligence or wrongful act. For example, you are stopped in traffic on the interstate. A speeding car loses control and smashes into the back of the car behind you. That vehicle then crashes into your car. You are injured and decide to hire a personal injury lawyer to go after the driver that hurt you. The lawyer would not seek damages from the driver of the car immediately behind you; they were forced to hit you and had no control over what happened. They would instead go after the speeding driver that lost control and started the chain-reaction wreck because they were the proximate cause of your injuries.

Punitive Damages

Punitive means to inflict punishment. Therefore, punitive damages are a type of damage awarded in a civil lawsuit to punish the defendant for their severely negligent or malicious conduct or to deter them from repeating the negligent act. Punitive damages are often pursued against drunk drivers who cause a wreck, especially if a victim was seriously injured or died as a result.

Reckless

Without care or concern for the consequences of an action or behavior. Recklessness is often classified as gross negligence under the law. May refer to reckless driving, shooting a firearm in a public place, etc.

Respondeat Superior

Latin for "let the master answer." In legal terms, it means an employer is responsible for the actions of their employee during work. If an employee hits someone with a work vehicle, the company is liable for the injuries.

Right of Way

The right to proceed before another. Failure to yield to a person or vehicle that has the right of way may result in a citation and fine or accident. Here are the laws governing right of way in Georgia.

Settlement

Fulfilling a claim or demand; agreeing to terms. A settlement resolves a lawsuit or legal dispute. Most are the result of negotiation between an attorney and an insurance adjuster with both parties agreeing to the final amount. Here are some examples of the settlement verdicts Gary Martin Hays & Associates has achieved for our injured clients.

Special Damages

A type of damage awarded in a lawsuit as compensation for out-of-pocket costs caused by a defendant’s negligence or other wrongful act. This may include medical bills, repairs, lost wages, etc. Special damages must be related to a specific dollar amount.

Speculation

A statement or consideration based on conjecture or opinion instead of facts. Speculation is not allowed as evidence in a case. Courts rely on factual evidence, not guesses. For example, a witness saw a car swerve suddenly and hit another car. The witness’s statement about the car swerving is factually correct. What they can’t do is accurately speculate as to why the driver swerved since they were not in the vehicle.

Standard of Care

The degree of watchfulness, caution, and prudence that a reasonable person in a given situation would normally exercise. If a person fails to meet the standard of care, then they may be considered negligent and open to lawsuit by the injured party. However, what is considered "standard" is often a subjective issue that people may hold differing opinions about. Standard of care is often used to determine whether or not a physician potentially committed medical malpractice.

Statute of Limitations

A certain period of time a person or business may take legal action. A statute of limitations is effectively a deadline for pursuing a claim. This is to keep people from threatening lawsuits indefinitely. Here are some of the civil statute of limitations in Georgia:

• Two-Year Statute of Limitation - Fraud, medical malpractice, and personal injury claims
• Four-Year Statute of Limitation - Debt collection, personal property, and trespassing claims

Please note: There are exceptions which could shorten or lengthen the time to act. Therefore, do not wait in determining the specific time limit for your claim.

For example, sometimes it is uncertain when an injury occurred, such as discrimination or illness caused by environmental pollution. The discovery rule allows a lawsuit to be filed within a certain time after the injury is noticed.

This is why it is important not only to either talk to an attorney as quickly as possible after an injury occurs due to negligence but not give up and think it’s too late for you to make a claim.

Stipulate

In the legal sense, to stipulate means to formally accept something without requiring proof that it is so. Opposing parties will often agree to certain facts before a hearing or trial so they don’t have to argue about them in court. Stipulate comes from the Latin word “stipula” which means straw. It is based on an ancient Roman custom, where the negotiating parties would break a piece of straw as a sign they had reached mutual agreement. They would then write down the agreement’s rules (stipulations).

Strict Liability

Negligence does not have to be proven. Responsibility for damages is automatically assumed due to possession or use of equipment or materials that are inherently dangerous (e.g. explosives, wild animals, assault weapons, etc.).

Subpoena

Also spelled subpena. A document used to summon witnesses to testify at a particular time and place or for a witness to submit evidence. Subpoenas can be used to gain testimony from a witness at depositions and trials. They are served to the summoned witness in-person. Refusing to show up for a summons intentionally or without an excuse can be punished with contempt of court.

Subrogation

Under civil law, to substitute one person for another in regards to a claim or right for whom expenses or a debt have been paid. Often occurs when an insurance company pays its client for injuries and losses and then sues the person responsible for causing the damages.

Summons

A written document ordering someone to appear before a court or judicial officer, issued by the court once a lawsuit is filed. It contains the plaintiff and defendant’s names, case information, location of the court house, the plaintiff’s attorney information, and instructions on filing a response within a certain time frame. A summons is not the same as a subpoena, which is an order for a witness to appear in court.

Testimony

A witness’s statement made under oath, usually in court. Their answers to questions are used as evidence by attorneys during trial or a deposition.

Tort

An intentional or accidental wrong that causes injury to another’s self, property or reputation, which entitles the injured person to compensation. As a result, tort law results in a great deal of civil litigation. Intentional torts may also be considered crimes, such as assault, wrongful death or theft. Defamation, to intentionally spread harmful false information about someone, is also a tort (in print/broadcast it’s called libel, if spoken it’s called slander).

Tortfeasor

A person who commits a tort, either intentionally or because of negligence.

Totaled Car

Slang for a wrecked vehicle that cannot be repaired. A car is considered totaled if the cost to repair and salvage value is greater than its current value. You can still keep and repair the vehicle, even if the insurance company has decided to total it. Your insurer will pay you the cash value of the car, subtracting any deductible that is due and the amount it would have sold for at a salvage yard. This will need to be done quickly, as once it goes to the salvage yard only licensed auto salvagers are allowed to attend the auctions. If you decide the vehicle is no longer worth keeping, the insurance company will give you a check for the car’s value and then take it away to a salvage yard to auction off its parts.
Totaled vehicles are commonly dealt with by personal injury lawyers who specialize in car accident claims.

Verdict

A jury’s decision given to a court, which must be accepted by the trial judge to be final. There are two other types of verdicts a jury can come to:

• Directed Verdict - The judge instructs the jury to make a specific verdict.
• Special Verdict - The jury decides to leave the application of the law to factual questions of the case to the judge.

The following verdict types are all improper and will result in a mistrial or be used to reverse a judgment on appeal:

• Chance Verdict - Decided by drawing lots or flipping a coin.
• Compromise Verdict - Some jurors voting against their beliefs to break a deadlock.
• Quotient Verdict - Averaging the amount that each juror wants to award.

A sitting judge making a decision without a jury present is not a verdict.

Vicarious Liability

Responsibility for a person who caused harm to another. For example, if an employee injures a co-worker via negligence while working, the employer is vicariously liable for the injured person’s damages.

Voir Dire

The questioning of potential jurors by a judge and attorneys to see if they are biased, competent or have a reason that disqualifies them (e.g. knowing the someone in the trial). The voir dire is a chance for the attorneys to get a feel for the personalities and views of the jurors.

Waiver

To intentionally and voluntarily give up a right or interest.

Witness

• A person who is present for an event as a bystander or spectator.
• A person who testifies in court or a deposition while under oath who has first-hand knowledge useful to the case.
• A person who observes the signing of a legal document and signs the document to affirm they were present.
• Signing a document to affirm they observed the execution of a legal document.