Legalese & Legal-speak: 10 for 2010
December 23rd, 2009. By Kristine B
With 2009 about to come to a close, it’s a good time to take a little breather and take a look at some of the words or phrases you often hear in relation to a lawsuit—but might not know what they mean. They tend to get glossed over as if everyone out there took Latin for 6 years and loves to speak in legalese. So as we get ready to kick off 2010, here’s 10 for ’10…ten common legal terms you oughta know for 2010 and beyond…in plain English…
Damages 
Most of us are used to thinking of “damage” as what happens after a tornado (or a couple of five year olds on M&M’s) hits town. But the weird thing about “damages” from a legal perspective is that it’s the AWARD that comes after the mess—and the lawsuit. Damages simply refers to money awarded as compensation for a legal wrong. Damages are either compensatory or punitive. Say what? It’s like Pandora’s box…keep reading…
Compensatory Damages
Compensatory damages are awarded to compensate (so that’s where it comes from) the wronged party for money lost, expenses or pain and suffering due to a legal wrong committed by another party. Compensatory damages can include medical expenses, lost wages, loss of future earnings, property damage and pain and suffering. Compensatory = Compensation (well, sort of—at least it’s an easier way to remember what it means).
Punitive Damages
The awful thing about the word “punitive” is that it’s pronounced like “Punic” (as in the Wars) or “puny”—and yet it has nothing to do with either of them. Rather, punitive damages are assessed as a way of PUNISHING a party who willfully or maliciously violates the law. Unlike compensatory damages, punitive damages are assessed to specifically PUNISH the offender for his or her actions and to discourage that offender from committing the same offence again. When determining punitive damages, the courts assess the wealth of the offender to determine how much money would be considered a “PUNISHMENT.” For example, $10,000 for a small business might be a lot of money but would be minor for a billionaire. So, for PUNITIVE damages, think PUNISHMENT.
Statute of Limitations
This one’s sort of like playing Jeopardy or Wheel of Fortune on t.v. How you ask? Think of that final round when the music’s playing…the clock’s ticking…an answer is needed—now! Well, it’s no different when it comes to filing a lawsuit or taking certain legal actions. However, legal folks like to jazz things up a bit so instead of saying, “Time is running out!” they like to say there’s a “statute of limitations”. Your time’s limited, so get moving.
The statute of limitations refers to the amount of time set out by law in which legal action must be taken in a specific situation. The statute of limitations can vary depending on the state in which the wrong occurred, the state in which the lawsuit is filed and the legal wrong committed.
If the statute of limitations is two years, then the wronged party must file a lawsuit within two years of the wrong being committed. In some situations, the statute of limitations starts not when the wrong was committed but when the victim learned of the wrong. If the action is not filed within the statute of limitations then the action can’t be filed at all. Time’s up. No dice. No can do. Sorry. And no parting handshake from Alex Trebek.
Jurisdiction
If you’ve ever watched a football game when the ball goes out of bounds and the referee has to determine from the linesman who has possession of the ball, well, you’ve sort of experienced the concept of ”jurisdiction” first-hand. In football, it’s about who has dibs on the ball; in law, it’s about what court has dibs on a case.
Jurisdiction is the legal authority of a court to hear and decide a case. It often also refers to the venue for a case (i.e. the geographic area covered by a court). Jurisdiction can be complicated if the legal wrong occurred in a different jurisdiction than where the parties involved reside. For example, a drug company may be headquartered in one state, the medication sold in a second state while the person who takes the medication could live in a third state, making the question of jurisdiction complex.
Furthermore, there could be questions over whether a state court has the jurisdiction (or authority) to hear a matter that one party regards as a federal issue.
Tort
Not to be confused with a “torte”, which if you have one that’s chocolate, please be sure to send a slice my way. Ditto a “tart”—though I prefer the chocolate torte. Be that as it may, the legal type of tort (with no “e” hanging off the end) is a civil wrong or injury against a person. And if you hadn’t yet noticed, that can cover a heck of a lot of territory on the legal wrongdoing front—so it’s a term you’ll hear often.
Appeal
Typically, when something’s got “appeal”, it’s attractive in some way. I suppose you could think of a legal appeal as a request for a more appealing outcome—as many times that’s what an appeal is about.
An appeal is a proceeding to have a higher court examine a case to determine if a lower court’s proceedings and decisions were made correctly. An appeal is usually initiated by the losing party, however the party that wins can appeal if it feels the judgment was still unfair (that is, did not include adequate damages (see above for “damages”)).
But an appeal can’t be filed simply because the unsuccessful party is unhappy with the court’s decision. The appellant (the one doing the appealing of the lower court’s decision) appeals the decision on the basis that the lower court erred in its application of the law or was completely unreasonable in its judgment based on the evidence.
Fiduciary
A fiduciary—pronounced “fi-DOO-she-airy”—is a person who is authorized to act on behalf of another. This usually refers to a person or persons who are responsible for managing employee benefit plans or other financial accounts.
Fraud
Fraud is an intentional misrepresentation, lie or alteration of the truth. This includes the omission of important facts or the intentional alteration of those facts. Bernie Madoff summed up the word “fraud” pretty well for many investors in 2009.
Negligence
Negligence is the failure to do something that a reasonable person would do or doing something that a reasonable person would not do. I blogged about this recently in a Pleading Ignorance post—so there’s a lot more there on what negligence means. But basically, it’s like the “don’t play with matches” rule—a reasonable person would know that playing with matches could well lead to fire—and a whole lot of injury.
If history is any predictor of the future, you’re sure to hear a lot of these words and phrases in the coming year on LawyersAndSettlements.com…so bookmark this one—you may need it!
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