Legal Dictionary

Arbitration

A method of resolving a dispute where all parties involved meet with a neutral third party arbitrator. All parties involved agree on the arbitrator that will be used beforehand and any decision that is made during the session is binding.

Arbitration Clause

A clause included in a contract whereby the individual or entity signing the agreement forfeits their right to bring suit in courts. The action must be brought before a private individual known as an arbitrator instead.

Beneficiary

A person or party that is legally entitled to receive some type of benefit (monetary, property, etc.) through a legal agreement such as a will, trust, or a life insurance policy.

Breach of Contract

Occurs when at least one party fails to perform one or more of the terms of a valid written or oral agreement.

Chapter 74 Expert Report

An expert report required by the Texas Medical Liability Act. The Act requires that the report be served within 120 days of filing a medical liability claim. The report must contain:
• The standard of care
• How the defendant failed to meet the standard
• An explanation of the relationship between the failure to meet the standard and the harm caused

Class Action

A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Contingency Fee

A type of fee agreement where the client will only receive compensation if the lawyer successfully recovers through settlement or trial. This type of agreement is generally used in cases with high expenses such as personal injury, medical malpractice, or nursing home.

Continuance

The postponement of a trial, hearing, or other scheduled court proceeding. The postponement can be requested by one or both parties, and must be ordered by the judge.

Damage Cap

A law that limits the amount of non-economic damages that may be awarded in a case. For example, in Texas there is a damage cap of $250,000 for non-economic damages on all healthcare liability claims.

Damages

An amount of money that is claimed by a plaintiff or a defendant is ordered to pay as compensation for an injury or loss. In a personal injury case, damages can include medical bills, lost wages, mental anguish, pain and suffering, and disfigurement.

Defendant

The person or group that defends a lawsuit. If you are the defendant, the plaintiff is claiming that you have engaged in some degree of wrongdoing and they are seeking some form of recovery from you.

Deposition

The oral testimony of a witness outside of court. Typically a lawyer will ask the person being deposed questions and they will respond while under oath. Depositions are often used in court or during the discovery process.

Discovery

The discovery process allows the parties to exchange information and gather evidence from the opposing party or parties. Document requests and written questions are exchanged and oral depositions may take place.

Dismissal with Prejudice

Court action that prevents an identical lawsuit from being filed later.

Duty of Care

A requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.

Engagement Agreement

A contract between two parties. Typically, a law firm will have its client sign an agreement that outlines the services that will be provided and how the firm will be compensated for their work.

Expert

An individual that has developed skills or knowledge in a particular subject area through education or experience. This set of knowledge and skill allow the individual to provide an opinion that will assist the fact finder (such as a judge, mediator, jury, etc.).

Fiduciary Duty

A legal obligation to act in the best interest and with the highest standard of care on behalf of another person, company, entity, etc. Fiduciary duties are found between a trustee and beneficiary, some financial advisors, and between corporate officers and directors.

File

The process of submitting a document to a court. For example, filing a lawsuit is the process of submitting a petition to the court.

Gross Negligence

An act or series of actions that go beyond ordinary negligence. Gross negligence involves the actor knowingly putting others at an extreme risk of danger or harm. To have gross negligence in Texas, a person must be aware of an extreme degree of risk or great probability of harm to others and then continue with the action with indifference to the rights, welfare, or safety of others.

Guardian Ad Litem

A person that is appointed by the court to represent and protect the best interest of an incapacitated adult or child during a lawsuit. The appointed person does not have to be an attorney.

Hearing

A proceeding before a court or decision-making body held to decide issues of fact or law. A hearing may include testimony from a witness, is often less formal than a trial, and is typically open to the public.

Holographic Will

A will that is handwritten and signed by the person that is creating it. Typically, a holographic will is not witnessed and can be in the form of a letter. While holographic wills are not recognized in all states, they are recognized in Texas.

Hung Jury

A jury that is unable to reach a final verdict by the required margin of voting. The judge will declare a mistrial if the jury is unable to come to a decision.

Injunction

A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.

Interrogatory

A written question (or set of questions) submitted to the opposing party in a lawsuit as part of the discovery process. The recipient must answer the question(s) under oath and according to the case's schedule.

Joint Liability

when two or more persons are both responsible for a debt, claim or judgment. It can be important to the person making the claim, as well as to a person who is sued, who can demand that anyone with joint liability for the alleged debt or claim for damages be joined in (brought into) the lawsuit.

Judgment

The official decision of a court that determines the rights and obligations for each party in a lawsuit.

Jurisdiction

The power or authority of a court to make legal decisions. For the court to have authority, two conditions must be met:
• The case must occur within a designated geographic area
• The nature of the case and type of relief sought must fall within the court’s purview

Jury

A group of people that are selected by the court and given the power to provide a verdict based on evidence presented to them in court. The jury can make decisions on fact and help to assign a monetary amount of compensation in a civil lawsuit.

Known Heirs

People that have a recognized right to inherit. During the probate process, the estate may be divvied up between the known heirs if there is no will.

Liability

The state of being legally responsible to society or another person. It is enforceable by civil or criminal punishment.

Lien

A legal claim against another's property held by a creditor due to an outstanding debt or right of reimbursement. The lien is resolved when the debt is paid back and/or the lien is released.

Litigation

The process of resolving disputes through the court system. Litigation begins when a lawsuit is filed with the court and can include a jury trial or be settled outside of court.

Loss of Consortium

The loss of love, support, companionship, or affection caused by the death or serious injury of a familial relationship due to the negligence of someone else. For example, if a husband is seriously injured or killed, the wife or child could potentially claim a loss of consortium.

Mediation

A guided settlement negotiation performed by a neutral 3rd party as an attempt to settle a lawsuit.

Mistrial

A trial that ends before a judgment is made due to either the jury being unable to make a decision, or a mistake that jeopardizes the plaintiff's right to a fair trial. If it is a civil case, it will be set for a new trial at a later date. If its a criminal case, the case can be retired, a plea bargain can be made, or the charges may be dismissed.

Motion

A written request to a judge asking him or her to make a specific decision about a matter related to a case. This may occur at any point during a lawsuit. For example, a motion may be filed requesting the judge enter an order regarding scheduling.

Neglect

A disregard for one's duty to provide attention or care. This failure may be the result of willful, indifference, or careless acts.

Negligence

The failure to use the standard of care that a reasonable person would in a similar situation. This includes any conduct that intentionally disregards others' rights or does not meet the legally established standard that protects others from unreasonable risks.

Next of Kin

1) The nearest blood relatives of a person who has died, including the surviving spouse.
2) Anyone who would receive a portion of the estate by the laws of descent and distribution if there is no will.

Notice of Claim

A letter from an injured party (plaintiff) or his or her attorney notifying any potential parties (defendants) of a lawsuit or claim against them. It generally includes the time, date, and location of the incident.

Objection

A formal statement or declaration made by a party opposing a point of law, procedure, or evidence during a trial or a hearing. An objection seeks an immediate ruling from the judge on that matter.

Pecuniary Loss

A monetary loss, or one that can be evaluated in terms of money. For example, a dependent may suffer a pecuniary loss when their parent dies.

Permanent Injury

Physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.

Plaintiff

The person or group that initiates a lawsuit. If you are the plaintiff, you are claiming that there is some degree of wrongdoing and are bringing the lawsuit in order to present your case in a court of law.

Pleading

Every legal document filed in a lawsuit such as petition, motions, or responses to motions. A pleading contains the party's claims or defenses to another party's claims in a civil action and identifies the issues to be addressed. The court requires pleadings to be formatted with particular identifying information.

Power of Attorney

A document that grants a person the authority to act on another's behalf. The authority provided may vary and include the ability to make medical, financial, or legal decisions on behalf of another person.

Preliminary Injunction

An order restricting the opposing party from continuing with a specific action. The order is generally entered after an evidentiary hearing and before a final determination on the merit of the junction.

Pretrial Conference

A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.

Probate

The legal process of proving a will is valid in court. If there is not will, the court will appoint a representative to divvy up a person's estate using Descent and Distribution laws. The process often involves collecting assets, liquidating liabilities, paying taxes, and distributing the remaining property to heirs.

Quash

To annul or make void. A party may submit a motion to quash during a lawsuit asking a judge to nullify or void certain actions.

Reasonable Care

The degree of caution and attention to any potential dangers or mistakes that a reasonable person would exhibit in similar circumstances. In personal injury or medical malpractice claims, negligence and liability can be established by proving the defendant failed to provide a reasonable level of care.

Recoupment

A recovery of expenses; a reduction or withholding for legitimate reasons, of part or all of an owed amount; a defendant's right to have part of the plaintiff's claim reduced as the result of a breach of contract by same in the course of the same deal.

Retainer

Money that is paid to a lawyer before a case begins. The sum acts as a down payment to ensure the attorney is paid for their work and the client will receive representation. Typically, the amount will vary depending on the size and type of case.

Settlement

An agreement between parties that resolves a lawsuit or dispute. Typically, a settlement occurs before going to trial.

Statute of Limitations

A law that establishes the amount of time a plaintiff has to file a claim in a civil case. The statute is based on the date of injury or incident, or in some cases when the damage was discovered.

Subpeona

A writ that requires you to do something such as produce documents, appear in court, testify, etc. If the person that receives the subpoena refuses to comply with the terms, they could be subject to penalties such as fines or jail time.

Summary Judgment

A final decision made before trial by a judge on a claim or defense that is lacking sufficient factual or legal support. A summary judgment is only awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to win if the matter went to trial.

Testimony

Evidence presented orally by witnesses during trials or before grand juries.

Tort

A civil wrong that involves a physical, mental, or monetary injury caused on purpose or through negligent conduct. Some examples of torts include negligence, medical malpractice, and product liability claims.

Uninsured Motorist Clause

A clause in automobile insurance that states that if the owner or passenger of the policy is injured by the negligence of another driver that is not insured, the insurance company will pay for the insured's damages.

Verdict

Either a jury's decision or finding on the factual issues of a case, or in a nonjury trial, the judge's resolution or decision on the factual issues of a case.

Voir Dire

The preliminary examination of a potential juror by a lawyer or judge. This process helps to determine whether the person is suitable and qualified to sit on the jury.

Will

A document where a person dictates how they would like their estate to be distributed upon their death. Generally, a will is witnessed and notarized.

Writ of Habeas Corpus

A written command that is used to bring a person before a court. In Latin, it translates to "that you have the body." The writ may be used to test the following:
• The regularity of the extradition process
• The amount or the right to bail
• The jurisdiction of the court that has imposed the sentence

Wrongful Death Action

A civil lawsuit that is brought against a party that is liable for a person's death. In order to bring a successful wrongful death lawsuit, it must have the following characteristics:
• The death of a person
• Caused by the negligence of another
• A surviving family member(s) that are suffering a financial loss because of the death
• The action is brought by the personal representative of the estate