Comprehensive Guide: Common Terminology in a Personal Injury Case in Wisconsin
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If you or one of your loved ones are considering contacting a personal injury attorney, you are probably dealing with a difficult situation. Painful injuries, expensive bills, and worries about the future can leave you stressed out and confused. Even simple tasks can be hard under those circumstances, and navigating the world of legal options, processes, and terms can be extremely confusing.
To help you successfully maneuver through these unfamiliar words and actions, we have created a comprehensive guide to the common terminology used in a personal injury case in Wisconsin.
From understanding a single term to an overview of the entire process, this guide has the answers you need—straight from the source. Whether you are still evaluating your options or are in the middle of a lawsuit, this guide offers expert definitions to make sure you feel confident and informed.
Common Legal Terminology in a Personal Injury Case
Defendant’s Answer: This common word also has a specific legal definition. In a personal injury case, an answer is a legal document that is filed by a defendant (someone who is sued) in a lawsuit. It corresponds, paragraph by paragraph, to the allegations of a complaint. An answer typically must be filed within 45 days of when the summons was served to either an insurance company or a defendant. In addition to responding to the allegations of a complaint, an answer often raises legal defenses, such as comparative fault, statute of limitations, failing to join necessary parties, and more.
Appeal: An appeal is a request by a litigant who has lost in circuit court for some specific relief in a court of appeals. The goal of an appeal can be to completely reverse what the circuit court judge has done, other times it is to modify what the circuit court judge has done. An appeal typically requires some type of legal error: merely disagreeing with the facts as found by a jury or a judge is not enough. An appeal is typically heard by three judges in the Court of Appeals, or seven judges in the Supreme Court of Wisconsin. The Court of Appeals will either affirm what the circuit court has done, reverse what the circuit court has done, or modify the action of the circuit court. The Court of Appeals does not take new evidence. It makes its decision based on the record that was created in the circuit court. This could include transcripts of hearings, discovery of documents filed, as well as depositions taken. The court uses the evidence, and applies it to the law, and makes a decision.
Arbitration: This is a type of alternative dispute resolution method. Within the world of personal injury law, arbitrations were popular in the 1980s to resolve uninsured and underinsured motorist claims. In those cases, a panel of three arbitrators would decide a case. The decision of the arbitrators was always binding on both parties. Arbitration became less popular since the mid-1990s, having been replaced by mediation, which you can read about below.
Burden of Proof: In a civil case, the burden of proof is the greater preponderance, or amount, of the evidence. It is unlike criminal cases, where the burden of proof is beyond a reasonable doubt. In a civil case, the person having the burden of proof must convince the judge or a jury that their claim is more believable than not. While the burden of proof is primarily on the plaintiff in a civil case, if a defendant or the party sued wishes to raise defenses, like contributory negligence, the burden of proof is on the defendant to establish that defense.
Cause/Causation: This is one of the elements of an injury claim in civil courts: a claimant must show negligence, causation, and damages. Causation in Wisconsin is established by showing that a negligent act was “a substantial factor” in causing harm. The negligence can be the sole cause, or it can combine with other causes in causing harm to someone. Causation merely needs to be “a substantial factor” in causing the harm.
Comparative Fault: In many injury cases, the injured party may be partially to blame for causing his own damages. Every person, whether a plaintiff or defendant, has a responsibility to act with ordinary care. If a claimant fails to exercise ordinary care, such as failing to notice or avoid a hazardous condition, they can be found partially to blame. The comparative fault rules can be very complex when it comes to cases involving multiple defendants and can impact the financial results of a case. If a plaintiff is partially to blame for causing his own injuries, his award is reduced by his percentage of the negligence. If the claimant’s negligence is greater than that against a defendant, then the plaintiff cannot recover from that defendant.
Complaint: A complaint is a legal document that an injured party files in the circuit court asking for relief. It often alleges negligence in the maintenance of property, the operation of a vehicle, or the sale of a product. It requests damages (defined below) against the defendant.
Crash Report: Frequently referred to as an accident report or police report, a crash report is something filled out by police officers responding to a motor vehicle collision.
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Damages: The major categories of damages include medical and related expenses, wage loss, and pain, suffering, and disability. Damages can also include loss of consortium for the spouse or minor children of an injured party. They also take into consideration the emotional distress caused by witnessing the injury to a close family member.
Defendant: The opposite of the plaintiff, the defendant, is often referred to as the wrongdoer or the party being sued. Damages are sought against a defendant for the defendant’s negligence or otherwise culpable conduct.
Deposition: Depositions are a formal part of discovery, where the parties to the lawsuit can question, under oath, the other party or other witnesses. It typically takes place in a private conference room and in front of a court reporter. Attorneys for all the parties are present in these sessions, which are similar to an interview or a meeting. Typically, the parties do not appear, unless they are the ones giving a deposition.
Discovery: In a court case, discovery is a general category that describes things and processes such as depositions, requests for production of documents or other items, medical examinations, interrogatories, or requests for admissions. It allows one party to find out what the other side has for evidence and assists both sides in planning for trial.
Expert Witnesses: These individuals testify about topics that concern or can provide more information about the liability of the parties. They can be divided into two major categories, liability expert witnesses and damage expert witnesses. For liability expert witnesses, you can have engineers, architects, and certified safety professionals. Also, there are medical expert witnesses that can testify about the injuries sustained, the treatment required, and future necessary care.
Guardian Ad Litem: Also abbreviated as a GAL, this role is typically filled by an attorney appointed by the court to speak on behalf of an injured minor or incompetent person. The attorney reports to the court and gets findings and recommendations on the case.
Incident Report: These reports typically refer to accidents that happen off the public roadways. If it occurs in a place of business, the business will often prepare an incident report that it will submit to its insurance company. If it occurs on a private parking lot, for instance, police departments will prepare incident reports as opposed to crash reports, which concern public roadway vehicle collisions.
Interrogatories: These are questions that one party can serve upon the other, demanding that they provide answers in writing and under oath. This is part of formal discovery in a lawsuit.
Insurance Medical Exam: Sometimes inappropriately referred to as an ‘independent medical exam,’ an insurance medical exam allows a doctor selected by the insurance company to examine a claimant and evaluate their injuries. Typically, medical exams are required as a part of any personal injury suit where permanent injuries are claimed. Insurance companies often have the same pool of doctors conducting these medical exams on all of their cases. Often, the insurance medical exam disagrees with the doctor who has been treating the injuries, offering opinions favorable to the insurance companies.
Jury Instructions: These are written instructions provided to the jury, by the judge, at the end of a case. It sets forth the appropriate law and how the jury should conduct its deliberations.
Lawsuit/suit: A lawsuit is a formal proceeding initiated by the filing of a summons and complaint in a county court. The county courts in Wisconsin are typically referred to as circuit courts. A lawsuit is typically filed after chances of resolving the matter outside of court are not successful. It involves a process that can take anywhere from eight months to several years.
Letter of Protection: These letters are requested by a medical provider (most often a chiropractor) as an alternative to billing health insurance. Often, the chiropractor does not want to accept the contracted rates that it has negotiated with health insurance companies. Instead, the chiropractor wants to bill the full charges to its patient when a motor vehicle collision is involved. This is generally a bad idea for injured claimants unless they have no health insurance or other method of paying for necessary treatment.
Liability: This term concerns whether someone is legally responsible for damages. Liability typically involves negligence or other culpable conduct. Liability is one of the main elements of a negligence suit, which includes liability, causation, and damages.
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Loss of Consortium: Often referred to as loss of society and companionship, this item of damage results from the injury to the relationship between a husband and spouse or parent and child. It allows for a claim by a family member that their relationship with the injured party was impaired or damaged.
Mediation: Mediation is typically a formal process undertaken after discovery is complete to try and resolve the matter before going to trial. A professional mediator will conduct it, typically an attorney, sometimes a judge. It is a process where the parties attempt to resolve the claim with the help of a professional that facilitates a settlement. Often, the parties can learn more about their opponent’s case and make a better decision about the risk of proceeding to trial.
Medical Authorizations: These are documents typically requested by a defendant, allowing the defendant to obtain medical records., bills, or academic records. These records are then used to evaluate an injured parties’ claims for damages. This typically pertains only to the records for the injuries sustained, and damages claimed. It can involve prior records so that the insurance company can determine if injuries existed before the accident involved in the case.
Medical Payment Coverage: This type of insurance coverage is frequently provided for car policies and premises insurance policies. It provides coverage for medical expenses if an injury occurs due to an automobile accident or for an injury that occurred on somebody’s property. There is no requirement that fault must be proven, only that the injury occurred either as a result of a motor vehicle or, in the case of property insurance, occurred on the premises. It is typically limited in the amount of coverage, often as low as $1,000 and as high as $10,000. It may also be limited to medical expenses incurred within one or two years. This should typically be used as secondary coverage after health insurance pays. It can be used to satisfy deductibles or copays, which are not covered by health insurance.
Motion: A motion is a request that a party can make to the court at any time after a lawsuit is filed. It can be used for many purposes. Here are a few common examples:
A motion can be used to resolve discovery disputes or narrow down the legal theories.
It can be used by a defendant to try and dismiss a case.
It can be used by a plaintiff to try and establish liability on the part of the defendant, even before trial.
Negligence: This frequently used term is legally defined as the lack of ordinary care. In common language, it indicates carelessness or inattentiveness. This is one of the main three elements of an injury claim; negligence, causation, and damages.
Plaintiff: The opposite of a defendant, the plaintiff is the party that brings the lawsuit. Within personal injury cases, the plaintiff is typically the injured party. A spouse or family member who is affected by the injury can also be included.
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Premises Liability: This is a term that describes a claim involving some hazardous condition on real property. These can be extremely complex cases, as businesses often have responsibility for only maintaining the interior of the premises, while a landlord has responsibility for exterior elements, such as sidewalks and parking lots. Things get even more complex as, in many cases, the landlord will hire a property manager, who will then hire contractors such as snowplow operators. The issue of who is ultimately responsible for a hazardous condition can be time-consuming to determine because of these complex relationships.
Product Liability: These cases concern an injury from a defective and unreasonably dangerous product. Product liability cases became prevalent in the early 1960s and were instrumental in forcing manufacturers to provide safer products. This type of case is an area that often demands specialized proof from engineers and safety experts. Product liability cases are complex, requiring in-depth discovery of the decisions that were made concerning the design and creation of a product. While there are not many firms in Wisconsin that can competently handle product liability cases, our firm has been involved in successfully handling this genre of case since the 1970s.
Punitive Damages: These are damages awarded by a jury to punish a defendant for willfully reckless conduct. The standard for punitive damages in Wisconsin is an intentional disregard of the rights of others. In layperson’s terms, this means that the jury saw proof that a defendant knew what they were doing was wrong and had a high likelihood of injuring somebody or violating their rights. While the amount of punitive damages is typically decided by a jury, our legislature has put caps (or maximum amounts) on these awards dependent on the severity of the underlying injury.
Requests for Production: This is a tool that can be used during the formal discovery process of a lawsuit. It requires the opposing party to produce documents that are requested. The request must be fairly specific, including:
The document requested
The time frame requested
The manner of production
Settlement: More than just a financial number, a settlement is the resolution of a case between the parties before a jury has given its decision.
Special Verdict: This is a multi-question form that is used by the jury to determine negligence, causation, and damages. Typically, it must be agreed to by ten out of twelve jurors to become the final verdict.
Special Damages: Special damages is a shorthand way of describing damages that are capable of calculation, meaning they have a numerical value that can be easily determined. This would include medical expenses, earnings losses, and property damage.
Standard of Care: This term describes the conduct that people are expected to conform to. For example, while operating a vehicle, drivers are expected to abide by the speed limit, stop at stop signs, and maintain their lane of travel.
Statute of Limitations: This is the time period in which a claim is required to be filed. In Wisconsin, there is generally a three-year statute of limitations for personal injury claims. However, there are exceptions. For example, intentional torts and wrongful death involving a motor vehicle are two exceptions that have much shorter time periods. The date that triggers the beginning that the time period starts running can be difficult to determine. For instance, if you discover that you are injured at a time later than the actual injury occurs, such as toxic chemical exposures, the statute of limitations begins to run when you either learn or should have learned of your injury and its cause.
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Strict Liability: Strict liability is a doctrine that applies in Wisconsin law in several areas. In one area, product liability, a manufacturer is held strictly liable for defects in its product. This means that a claimant is not required to show that the manufacturer acted negligently. It is sufficient to show that the product that resulted is defective and unreasonably dangerous. It can also apply in such things as dog bite cases, where proof that a dog is owned by someone and injured another person is sufficient to make a claim. In cases that are not strict liability, it is typically required that a claimant show that someone was negligent or otherwise culpable in causing an injury.
Subrogation: This complex-sounding term refers to a simple process: making sure that the same bills are not paid twice. If your health insurance company pays for your medical bills, and you then make a claim against someone else that is responsible for causing your injury, your health insurance company will make their own claim for reimbursement of the bills it has paid out of the settlement. In every health insurance policy, there is a section that deals with these subrogation claims. It often spells out the rights and priorities of the claims. Some health insurance companies that have policies set up under federal law called ERISA can specify that they get reimbursed first before the injured party receives any funds. In Wisconsin cases involving non-ERISA type plans, typically, the injured party must be made whole for all of their damage before the health insurance company gets reimbursed. Subrogation can apply not only to health insurance plans but also to benefits provided through Medicare, Medicaid, or medical payments coverage under vehicle insurance. It can also apply to disability policies. It applies when an injured party has medical bills that are covered by their own insurer or by the government and then makes a claim against a third party to be reimbursed for those same damages.
Third-party: This is a term frequently used in cases involving work injuries. If a person is injured at work, they have a claim for worker’s compensation benefits against their employer. These benefits are typically limited to economic type losses. If there is a “third-party” that is negligent in causing the work accident, a claim can be made against them for the same damages, as well as pain, suffering, and disability. If that claim against a third-party is successful, the employer, or its insurer, is reimbursed for the worker’s comp benefits they have paid.
Third-party can also be referred to as a type of claim against another driver that has caused a vehicle accident. The first party insurance company would be the injured party’s own insurance company, and they would be responsible for things like medical payment coverage or even uninsured or underinsured motorist coverage. That is referred to as the first party. The third-party would be the driver causing the accident or the driver’s insurance company.
Tort: A tort is a wrong that causes an injury to another. It is a general category of case that is made up of specific case types, such as automobile crashes, animal attacks, product liability, medical malpractice, and more.
Uninsured Motorist Coverage: Motor vehicle policies issued in Wisconsin have what is known as uninsured motorist coverage: It provides coverage for personal injuries caused by a driver or vehicle that is not covered by their own insurance. It can also cover a hit-and-run driver that has never been identified. For example, a non-contact accident involving a driver that was never identified, such as when a driver cuts someone off and they end up in a ditch. In this case, there are very strict time requirements for reporting the incident to the police, and in notifying your own insurance company of the accident, using a very specific type of notification.
Underinsured Motorist Coverage: This is another type of coverage that is common in Wisconsin motor vehicle policies. It provides that if you are injured by a driver that has insurance coverage less than the limits of your coverage for an uninsured motorist, you can make a claim for damages against your own insurance company. This underinsured motorist coverage is limited in Wisconsin to apply only to the situation where the other driver has liability limits that are less than the amount of underinsured motorist coverage under your policy. There can be exceptions for collisions where there are multiple people injured, and the limits of the at-fault driver are reduced.
Underinsured motorists can also be covered under an umbrella or excess policy. It is important to get the appropriate endorsement so that underinsured coverage is included in your umbrella or excess insurance policy. Having high levels of underinsured coverage is probably more important than having high limits of liability coverage.
Verdict: A verdict is a written decision given by a jury following a trial. The jury will determine whether a party is negligent or otherwise liable, whether the negligence caused injury and the amount of damages.
Vicarious Liability: This is a doctrine that establishes that an employer is responsible for the negligent acts of its employees. It places the ultimate responsibility for harm caused by negligence on the entity that profits from the work being done, i.e., the employer. This doctrine has been around since the early twentieth century.
Worker’s Compensation: If a person is injured as a result of his employment, worker’s compensation laws typically kick in. This is the only remedy for a work injury against the employer. Third parties can be held liable for workplace injuries that are caused by negligence. However, the employer is limited to paying worker’s compensation benefits.
Wrongful Death: This is a claim established by statute in Wisconsin that allows certain beneficiaries to make a claim if their relatives are injured. A wrongful death claim is made first by the spouse, and if there is no spouse, then by the children, and if there are no children, then parents, and if no parents, then siblings. Claims are limited to $350,000 if the deceased was an adult, or $500,000 if the deceased was a child. A related type of claim often brought along with a wrongful death claim is a survival claim. The survival claim is brought by the estate and includes such things as pain and suffering prior to death.