Legal Words and Phrases
Lapin Law Offices offers the following general definitions of commonly used legal words and phrases. Words and phrases may have a different definition depending on the situation or applicable law.
Actual Malice (for slander and libel): Knowledge of falsity or a reckless disregard for the truth.
Affinal Relationship (“by Affinity”): Related by marriage, such as by marriage, step parents or children.
Affirmative Defense: A defense, asserted by a defendant to a claim brought against him or her. An affirmative defense can be asserted against an entire claim or any portion of it.
Answer: A written pleading filed by a defendant in response to a complaint.
Appellate Jurisdiction: The power of a court to review a lower court’s decision.
Assumption of risk: An affirmative defense and, if established, is a complete bar to recovery by an injured person. To establish the defense the burden is on the defendant to prove that the injured person: (1) knew of and understood a specific danger; (2) voluntarily exposed themselves to the danger; and (3) injury or death occurred as a result occurred as a result of exposure to the danger.
Beyond a Reasonable Doubt: Based upon reason and common sense after careful and impartial consideration of all the evidence. Proof so convincing that you would rely and act upon it without hesitation in the more serious and important transactions of life. It does mean proof beyond all possible doubt.
Clear and Convincing Evidence: Evidence that produces a firm belief or conviction about the fact to be proved. It means more than the greater weight of the evidence and less than proof beyond a reasonable doubt.
Common Carrier: Is a carrier of persons or freight who holds himself/herself/itself out as available to anyone who wishes to use their services.
Complaint: The first document filed by a person or entity claiming damages, performance and/or a court determination of the plaintiff’s rights against a defendant. Sometimes referred to as a Petition.
Concurring Cause: Two independent negligent acts of two or more people that combine to cause a single injury.
Consanguinity: By blood. For example, biological parents or children.
Declaratory Judgment: A remedy for the determination of a controversy where the plaintiff is in doubt as to their legal rights.
Defendant: The party or entity sued in a civil lawsuit.
Economic Damages: Monetary losses, including, but not limited to, medical expenses, loss of earnings and earning capacity, funeral costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities.
Evidence: Trial evidence consists of: (1) testimony; (2) documents or other things received as exhibits; (3) any facts that have been stipulated to; and (4) act facts that have been judicially noticed. The following is not considered evidence at trial: (1) statements, arguments and questions of the lawyers; (2) objections to questions; (3) testimony that the judge instructed to be disregarded; (4) anything seen or heard about the case outside of the courtroom.
Greater Weight of the Evidence: Evidence sufficient to make a claim more likely true than not true. Means more than fifty percent (50%).
Hearsay: An out of court statement offered in evidence to prove the truth of the matter asserted.
Informed Consent: Consent to treatment if based on information that would be ordinarily provided to a patient under like circumstances by a health care practitioner engaged in a similar practice in the same or similar localities.
Joint Venture: When two or more persons have: (1) an expressed or implied agreement to engage in a business activity; (2) a mutual interest in the profits or benefits of the business activity; and (3) equal authority to control the performance of the business activity.
Jurisdiction: The authority given to a court to rule and try legal matters within a particular geographic area, over certain types of legal cases and/or over people or entities.
Liability: Financial responsibility to another person because of an accident in which you are at fault.
Loss of Consortium: Consortium means those things to which a person is entitled by reason of the marriage relationship. It includes affection, love, companionship, comfort, assistance, services, moral support, and the enjoyment of sexual relations. The loss of consortium claim belongs to the non-injured spouse. However, if both spouses are injured in an accident, each may have their own loss of consortium claim.
Malicious/ Wanton Act: An act done intentionally and with reckless disregard of its consequences. The same definition applies to a malicious/wanton failure to act.
Mitigation of Damages: An affirmative defense alleging that an injured person failed to take reasonable steps to minimize their damages. Includes failure to wear a seatbelt.
Negligence: Doing something that a reasonably careful person would not do under similar circumstances, or failing to do something that a reasonably careful person would do under similar circumstances.
Noneconomic Damages: Subjective, nonmonetary losses, including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, and humiliation.
Original Jurisdiction: The authority of a court to hear and decide a matter before it can be reviewed by another court.
Personal Jurisdiction: The power of a court over a defendant. For a court to have personal jurisdiction, the defendant must have some contact within the court’s geographical location.
Plaintiff: A person or entity who initiates a lawsuit by filing a complaint or petition against a defendant demanding damages, performance and/or a court determination of the plaintiff’s rights.
Pleadings: The formal allegations by the parties in a lawsuit of their claims and defenses. Under the Nebraska Rules of Civil Procedure, only the following documents are “pleadings”: complaint; answer; a reply to a counterclaim denominated as such, if the answer contains a counterclaim; an answer to a cross‑claim, if the answer contains a cross‑claim; a third‑party complaint, if a person who was not an original party is summoned as a third‑party defendant; and a third‑party answer, if a third party complaint is served.
Proximate Cause: A cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred.
Reason to know: A person has a “reason to know” if the person had information from which a reasonable person either would have inferred that the fact in question existed or would have proceeded under the assumption that such fact existed.
Reasonable Care: The care that a reasonable person would exercise under similar circumstances.
Res Ipsa Loquitur: Literally translated from Latin as “the thing speaks for itself.” Creates a legal presumption or inference of negligence against a person when both of the following are present: (1) the accident or injury would not happened without negligence; and (2) the instrumentality causing injury was in the defendant’s exclusive control.
Should have known”: A person “should have known” something if they had been reasonably attentive and, where adequate information could be obtained by being reasonably attentive, to make reasonable inspections or investigations. The person is also required to draw reasonably correct conclusions.
Statute of Limitations: Time limitation that sets a maximum time period during which a lawsuit must be filed or otherwise resolved. Statutes of limitation differ depending on the type of legal claim. Each state and the federal government may impose different statutes of limitations for different types of cases.
Statute of Repose: Time limitation in which all claims, whether an injury has occurred or not, are barred. Each state and the federal government may impose different statutes of repose for different types of cases.
Subject Matter Jurisdiction: The power of a court over the subject matter involved in the case.
Summons: A document issued by the clerk of the court at the time a lawsuit is filed, stating the names of the plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff’s attorney, and instructions as when a response must be filed.
Tolling: In relation to a statute of limitations, to delay, suspend or hold off the time limitations of a statute of limitations. Tolling may occur because of the age of the plaintiff or if the plaintiff has a mental disorder.
Unreasonable Risk of Harm: A risk that a reasonable person, under all the circumstances, would not allow to continue.
Usual, Customary and Reasonable Fee: An amount customarily charged for or covered for similar, medically necessary medical services and supplies.
Voir Dire: A French word “To speak the truth.” It is the legal name for jury selection, which is the examination of potential jurors to determine if they can be fair and impartial.
Willful Act: An intentional act that occurred with actual knowledge that a danger existed and that injury was a likely result. The same definition applies to a willful failure to act.
NOTE: Definitions are obtained primarily from Nebraska statutes and case law, Nebraska Jury Instructions (Second Edition) and legal dictionaries.