Legal Glossary Terms

Andal Law Group of Orange County, Ca

Terms

Definition

Personal Injuries

Personal Injuries are legally defined as injuries that are caused as a result of the negligence or wrongdoing of another. A personal injury can happen as a result of a car accident, pedestrian accident, truck accident, motorcycle accident, bicycle accident, slip and fall accident, wrongful death, brain injury, and medical malpractice or product liability.

Wrongful Death

A wrongful death is one that occurs when a person dies due to the negligent, careless, intentional or reckless act of another person or entity. Only certain individuals related to the victim can file a wrongful death lawsuit in California. In general, compensation for economic loss in a wrongful death claim include the financial support the victim would have contributed to the claimant for the duration of the life expectancy of either the victim or the heir, whichever is shorter; the loss of benefits that the claimant could reasonably have expected to receive from the victim; funeral and burial expenses; and the reasonable value of the household services that the victim could have reasonably been expected to provide to the heir. Compensation for non-economic losses in a wrongful death claim include the loss of love, companionship, comfort, care, assistance, protection, affection and society of the victim; the loss of the enjoyment of sexual relations of the victim; and the loss of the training and guidance of the victim. Finally, punitive damages may also be awarded in certain instances, like if the victim survived the incident, even briefly, before their death, or if the victim’s property was damaged or lost before they died.

Product liability

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include: the product manufacturer; a manufacturer of component parts; the wholesaler, and the retail store that sold the product to the consumer. In general terms, the law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer.

 

Premises Liability

The legal theory of “premises liability” holds owners and occupiers of property legally responsible for accidents and injuries that occur on that property due to dangerous conditions. The kinds of incidents that give rise to premises liability claims include a slip and fall accidents (i.e. wet floor); a trip and fall accidents (i.e. public sidewalk); an injury suffered on a amusement park ride; unguarded excavation and fall hazards; electrical and gas explosions and fires; defective steps, stairs and handrails; and swimming pool injuries.

Business Formation

Business Formation involves choosing a legal structure for your business. One of the first decisions that you will have to make as a business owner is how the company should be structured. Anyone can fill out the basic paperwork to incorporate a business, but knowing what the most appropriate entity is and how to best structure it is what really matters. Whether you should operate as a Corporation, Limited Liability Company, Partnership, or Sole Proprietorship depends on more than just who will own your business and what its activities will be. The business entity chosen will impact your personal liability, partnerships, investments into your business, the amount of regulatory paperwork needed to operate, and the taxes you must pay. Business formation typically involves, legal structure selection [Sole Proprietorship, Partnership, “C” & “S” Corporations, Limited Liability Companies (LLC’s), Nonprofit Organizations (e.g. 501(c)(3)], initial formation documents (e.g. Articles of Incorporation, Operating Agreements, Buy Sell Agreements, Shareholder Agreements, Bylaws], Fictitious Business Names (DBA’s) and trademarks.

Trademark

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.

Trademark registration is a critical part of any brand protection program, whether your business is attempting to protect your company name, product or service name, logo or stylized design, catchphrase or other brand. There are many reasons why you should register a trademark with the USPTO including that it provides: Multiple legal presumptions (e.g. ownership of the mark and the exclusive right to use the mark throughout the nation); the ability to bring a lawsuit concerning that particular trademark in federal court (e.g. trademark infringement); the basis to obtain a registration in other countries; the ability to use the registered ® symbol. While anyone claiming rights in a trademark can use the small tm symbol, which refers to a trademark, or the small sm symbol, which refers to a service mark, no one is permitted to use the registered ® with the circle around it symbol until they’ve secured a trademark registration with the United States Patent and Trademark Office.

Litigation

Litigation is a legal dispute between two or more parties that seek money damages or specific performance rather than criminal sanctions. A lawyer who specializes in civil litigation is known as a “litigator” or “trial lawyer.” Lawyers who practice civil litigation represent parties in trials, hearings, arbitrations and mediations before administrative agencies, and federal, state and local courts. Civil litigation encompasses a broad range of disputes. Civil litigation can be divided into various stages: investigation, pleadings, discovery, pre-trial, settlement, trial and appeal. Not every lawsuit passes through each stage of litigation; most lawsuits are settled prior to trial and many cases that reach a trial verdict are not appealed. The lifespan of a lawsuit can range from several months to several years.

Wage and Hour

Wage and hour laws address a range of issues, including minimum wage, overtime wages, unpaid work hours, vacation pay, wage deductions, pay stubs, tips, breaks, and more. Typical wage and hour cases include claims alleging:

  • Misclassification of employees as exempt
  • Misclassification of workers as independent contractors
  • Failure to pay otherwise exempt employees on a salary basis
  • Regular rate and minimum wage issues
  • Failure to pay for pre- and post-shift activities, including donning and doffing and other “off-the-clock” activities
  • Miscalculation of commissions and bonuses
  • Failure to pay overtime to drivers based on the SAFETEA-LU amendments to The Motor Carrier Act exemption and the Department of Transportation Act
  • Tip and “service charge” claims
  • Unpaid on-duty meal periods
  • Improperly denied reimbursements
  • Other state law pay practices claims

Estate Planning

Estate Planning involves deciding how you want your assets distributed after you die. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. Guardians are often designated for minor children and beneficiaries in incapacity. Estate planning typically involves last will and testament, revocable living trusts, beneficiary designations, powers of appointment, property ownership (joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gifts, living will and powers of attorney, specifically the durable financial power of attorney and advance health care directive. Specific final arrangements, such as whether to be buried or cremated, are also often part of the documents. More sophisticated estate plans may even cover deferring or decreasing estate taxes or winding up a business.

Trusts may be used to set up certain provisions for how minor children or developmentally disabled children will be distributed funds. For example, a spendthrift trust may be used to prevent wasteful spending by a spendthrift child, or a special needs trust may be used for developmentally disabled children. Additionally, an irrevocable life insurance [ILIT] may also be used to escape federal estate taxation under certain circumstances.

Probate

Probateis a term that is used in several different ways. Probate can refer to the act of presenting a will to a court for filing — such as, to “probate” a will. But in a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die. Your estate will be probated whether or not you have a will. If you have a valid will, then your will determines how your estate is transferred during probate and to whom. If you don’t have a will, or if you die partially intestate, where only part of your estate is covered by a valid will, the laws where you live specify who gets what parts of your estate. The primary disadvantages of probate include:

  • The administration of your estate becomes a matter of public record including your will, beneficiary information, asset information and the claims of creditors.
  • Probate takes a very long time (e.g. typically one year on average).
  • The probate process must adhere to inflexible court process (e.g. state statutes and strict court rules)
  • The costs of administering a probate estate can be expensive, especially with attorneys’ fees, executors fees, accounting fees, filing fees, bond premiums, appraisal and business valuation fees and other miscellaneous fees. The cost will increase if there is a Will contest involving litigation.

Probate can be avoided with a comprehensive estate plan.

Medical Malpractice

Medical malpractice occurs when a hospital, doctor or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare or health management. To be considered medical malpractice under the law, the claim must have the following characteristics:

  • A violation of the standard of care
  • An injury was caused by the negligence
  • The injury resulted in significant damages

Medical malpractice can take many forms. Some examples of medical negligence that might lead to a lawsuit include: Failure to diagnose or misdiagnosis; misreading or ignoring laboratory results; unnecessary surgery; surgical errors or wrong site surgery; improper medication or dosage; poor follow-up or aftercare; premature discharge; disregarding or not taking appropriate patient history; failure to order proper testing; and failure to recognize symptoms.

Pain and Suffering

In personal injury law, “pain and suffering” describes the physical and emotional distress an injured person suffers. When an injured person wins her personal injury case, she may receive damages for pain and suffering. These damages are usually a money amount given to compensate the injured person for the distress caused by the injury. They are given on top of any amounts paid to compensate the injured person for “economic damages” such as medical bills, lost wages, and the costs of repairing damaged property. Pain and suffering is one of the most common types of “non-economic damages” that arise in personal injury cases. Since the law does not provide specific rules on how to calculate pain and suffering, juries must use their personal experience and what they have learned about the injured person’s quality of life, lifestyle, career, and aspirations.