Glossary of Legal Terms

 

Arbitration

A non-court procedure for resolving disputes using one or more neutral third parties -- called the arbitrator or arbitration panel. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts, which usually leads to a faster, less-expensive resolution. There are many types of arbitration in common use: Binding arbitration is similar to a court proceeding in that the arbitrator has the power to impose a decision, although this is sometimes limited by agreement -- for example, in "hi-lo arbitration" the parties may agree in advance to a maximum and minimum award. In non-binding arbitration, the arbitrator can recommend but not impose a decision. Many contracts -- including those imposed on customers by many financial and healthcare organizations -- require mandatory arbitration in the event of a dispute. Because this is quicker, cheaper and faster than a full jury trial this is often a recommended procedure. However, unlike court both sides must agree to arbitration and many insurance companies refuse to agree to arbitrate.

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Charitable Immunity

The doctrine that states that a charitable organization cannot be sued by its beneficiaries.  Although eliminated in many states this doctrine is still alive and well in Virginia.  When charitable organizations can and cannot be sued is quite complicated in Virginia.

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Comparative Negligence

The doctrine that compares the fault of the parties involved and declares the one least at fault responsible.  This differs from contributory negligence in that a party partly at fault may recover here, under contributory negligence a party even slightly at fault may not recover against a party more at fault.  Virginia still follows the rule of contributory negligence.

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Contributory Negligence

This is the legal doctrine that completely bars a plaintiff's recovery if the plaintiff was partly at fault.  Most states have abolished this doctrine and replaced it with some form of comparative negligence where the fault of the two parties is compared and the one most at fault loses.  However, in Virginia contributory negligence is still the rule in almost all cases, so any fault of the plaintiff will bar a recovery.

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Compensatory Damages

Damages that cover actual injury or economic loss. Compensatory damages are intended to put the injured party in the position he was in prior to the injury. Compensatory damages typically include medical expenses, lost wages and the repair or replacement of property. Also called "actual damages."

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General Damages

Damages intended to cover injuries for which an exact dollar amount cannot be calculated. General damages are usually composed of pain and suffering, but can also include compensation for a shortened life expectancy or loss of the companionship of a loved one or inconvenience.

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Head Injuries

There are two major types of head injury that typically result from trauma: 1) an open injury, which penetrates or opens the skull, and 2) a closed head injury, which can result from movement of the brain within the skull, resulting in neurological problems.  Many people involved in car crashes suffer head injuries.  If you have been in a car accident and suffer from any of the following symptoms you may have experienced a head injury: memory loss, headaches, fatigue, inability to concentrate, personality changes.  If you are suffering from one or more of these symptoms as a result of an accident, you should seek medical attention and contact a personal injury attorney.

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Medical Malpractice

"Medical malpractice" is the term the law uses for negligence committed by a health care professional (such as a physician or nurse) in providing care to a patient.  Malpractice is said to occur when the health care in question is unreasonable, or fails to meet the standard of care which applies to any health care professional in that field of practice.  However, more than negligence is necessary to allow a legal claim for malpractice.  A legal claim can be made only if the negligence actually causes injury to the patient, i.e., an injury which would not have occurred if the health care provider had acted reasonably.

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Product Liability Overview

Product liability is the body of law that provides for compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products and from the failure of a manufacturer or seller to warn the consumer of product dangers.

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Punitive Damages

Sometimes called exemplary damages, awarded over and above special and general damages to punish a losing party's willful or malicious misconduct. These damages are very difficult to obtain in Virginia except in cases involving very intoxicated drivers. They are limited in amount by statute.

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Special Damages

Damages that cover the winning party's out-of-pocket costs. For example, in a vehicle accident, special damages typically include medical expenses, car repair costs, rental car fees and lost wages. Often called "specials."

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Evidence

The many types of information presented to a judge or jury designed to convince them of the truth or falsity of key facts. Evidence typically includes testimony of witnesses, documents, photographs, items of damaged property, government records, videos and laboratory reports. Rules that are as strict as they are quirky and technical govern what types of evidence can be properly admitted as part of a trial. Because these rules are highly technical and often not logical it is nearly impossible for an untrained person to effectively represent himself or herself in a significant case.

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Malpractice

The delivery of substandard care or services by a lawyer, doctor, dentist, accountant or other professional. Generally, malpractice occurs when a professional fails to provide the quality of care that should reasonably be expected in the circumstances, with the result that her patient or client is harmed. Usually an expert is required to testify as to what the standard of care should have been in the situation and how the defendant breeched. Because these cases almost always require expert testimony they can be very expensive to litigate and can be uneconomical without significant damages. The amount recoverable is limited in medical cases by statute in Virginia.

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Mediation

A dispute resolution method designed to help warring parties resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge in her courtroom or an arbitrator conducting a binding arbitration, the mediator has no power to impose a solution. No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed.  Most very large cases in Virginia are mediated before going to court.

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Pain and Suffering

The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured plaintiff can seek monetary damages for this. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work, although sometimes these are factored in to arrive at a logical figure. Usually a jury makes this determination form its common experience.

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Sovereign Immunity

The legal doctrine that the sovereign, that is, a governmental body, cannot be sued.  This goes back to the old English concept that "The King can do no wrong."  The law of sovereign immunity is extremely complicated in Virginia and elsewhere.  The federal government, the commonwealth, cities, counties and other governmental bodies have widely varying degrees of immunity for different acts.  In some cases the governmental entity may be completely immune from suit, in other cases there may be a limited waiver of immunity and in some cases suit may be brought as if the governmental entity was a private person.  There are also notice requirements which may be much shorter that the statute of limitations and if not complied with can eliminate a case.

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Statute of Limitations

The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim, and often the state. For example, some states require that a personal injury lawsuit be filed within one year from the date of injury -- or in some instances, from the date when it should reasonably have been discovered -- but most allow two years or more. Statute of limitations rules apply to cases filed in all courts, including federal court. In Virginia the statute of limitations for most personal injury cases is two years, but there are important exceptions. In particular some governmental entities require notice to them as short as six months and failure to comply with these notice provisions will bar a claim.

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Wrongful Death

Wrongful death is a death caused by someone else - an individual, group of individuals, company or organization - that can be the immediate or delayed outcome of someone else's negligence and the misconduct or negligence causing the death.

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