Mesothelioma Legal Terms Glossary

Affidavit 

A written statement or declaration whose contents are sworn to be true by the signer before a notary or some other judicial officer authorized to take oaths. A witness's affidavit carries such weight that a judge will frequently accept it place of oral testimony in court. 

Answer 

A defendant's written response to a plaintiff's initial court filing, called a complaint. An answer normally denies some or all facts asserted by the complaint and may sometimes include counterclaims of allegations or charges against the plaintiff. A defendant usually has 30 days to file an answer after being served with the plaintiff's complaint.  

Class action 

A type of lawsuit filed by one or more plaintiffs on behalf of themselves and a larger group of people "who are similarly situated." While allowing one judge to hear all the cases at the same time, the resulting decision is binding on all parties.  

Closing statement

 The final argument in a trial by an attorney on behalf of his/her client after all evidence has been produced for both sides. The lawyer for the plaintiff makes the first closing argument, followed by counsel for the defendant, and then the plaintiff's attorney can respond to the defense argument.  

Complaint 

The first document filed with the court by a person or entity (the plaintiff) carefully stating the factual and legal basis for claiming legal rights against another party (the defendant or defendants).  

Cross examination 

The opportunity for the attorney for one party to ask questions in court of a witness who has testified in a trial on behalf of the opposing party. The questions on cross-examination are limited to the subjects covered in the direct examination of the witness, but the attorney may ask leading questions, in which he or she is allowed to suggest answers or put words in the witness's mouth.  

De bene esse 

Of formal sufficiency for the time being; conditionally; provisionally.  

Defendant 

The party against whom the court has been asked by the plaintiff to order damages or specific corrective action to redress alleged unlawful or improper action.  

Deposition 

Sworn testimony taken under oath prior to trial before a court reporter in a place away from the courtroom. A deposition is part of permitted pre-trial discovery process, set up by an attorney for one of the parties to demand the testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition.  

Discovery 

The pre-trial process in which a party to a lawsuit may obtain information from the opposing party and potential witnesses via demands for production of documents, depositions, written interrogatories, written requests for admissions of fact, examination of the scene, and employment of petitions and motions to enforce these rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Much of the fight between the two sides in a lawsuit may actually occur during the discovery period.  

Expert witness 

A person who is a specialist in a subject, often technical, who may present his or her expert opinion without having been a witness to any occurrence relating to the lawsuit. Expertise may be challenged, and the trial judge has discretion based on court examination of the expert's background to qualify the witness or rule he or she is not an expert, or is an expert on limited subjects. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.  

"Forum shopping" 

Practice of filing a lawsuit in the jurisdiction (of the several available to the plaintiff) perceived to be most favorable to the presentation and outcome of the case.  

Interrogatories 

A set of written questions to a party to a lawsuit asked by the opposing party as part of the pre-trial discovery process. These questions must be answered, normally with help from one's attorney, in writing under oath under penalty of perjury within a specified period of time, such as 30 days.  

Joint and several liability 

Liability in which each defendant is responsible for the entire amount of the judgment. Often the court will allow the plaintiff to collect from whichever defendant can most easily pay, letting that defendant demand contributions from the other defendants.  

Judgment 

The final decision by a court in a lawsuit or appeal from a lower court's judgment.  

Judgment non obstante veredicto (JNOV) = judgment notwithstanding the verdict Reversal of a jury's verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law. The judge will then enter a different verdict as "a matter of law", to prevent injustice.  

Jurisdiction 

The authority given by law to a court to try cases and rule over acts committed in a defined territory, over certain types of cases, or over certain groups of persons.  

Lawsuit 

A common term for a legal action by one person or entity against another person or entity, to be decided in a court of law.  

Negligence 

Failure to exercise the care toward others which would reasonably be expected of a person in the circumstances, or taking action which a reasonable person would not. In making a claim for damages based on an allegation of another's negligence, the plaintiff must prove a) that the party alleged to be negligent had a duty to the injured party or to the general public, b) that the defendant's action (or failure to act) was not what a reasonably prudent person would have done, c) that the damages were caused by the negligence. An added factor in the formula for determining negligence is whether the damages were "reasonably foreseeable" at the time of the alleged carelessness.  

Opening statement 

The factual presentation by the attorney for one side at the beginning of a trial of what will be proved during the trial. The defendant's attorney may delay the opening statement for the defense until the plaintiff's evidence has been introduced.  

OSHAThe Occupational Safety and Health Administration, which serves as the enforcement agency of the United States Department of Labor for safety and health in the workplace environment. OSHA was created by the Occupational Safety and Health Act of 1970.  

Paralegal 

A non-lawyer who performs routine tasks requiring some knowledge of the law and procedures and who is often employed by a law office to handle much of the pre-trial paperwork.

Peer review 

An examination and evaluation of the performance of a professional or technician by a board or committee made up of people in the same occupation.  

Perjury 

An intentional lie given while under oath to tell the truth. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document known to contain false information.  

Plaintiff 

The party who initiates a mesothelioma lawsuit by filing a complaint with the clerk of the court against the defendant(s).  

Powers of Attorney 

A Power of Attorney (POA) is a written document in which you (“the Principal”)designate another person (“the Agent or Attorney-in-Fact”) to act on your behalf in making property, financial and other legal decisions. Powers of Attorney are important legal documents, and should be given only after careful consideration. A licensed attorney in your state can provide you with advice about the powers that are appropriate to be delegated, counsel on the choice of an Agent, Outline the Agent’s legal and fiduciary obligations while acting under a Power of Attorney and ensure that the Power of Attorney is properly executed and meets all legal requirements.  

Nondurable Power of Attorney

 A Nondurable Power of Attorney is often used for a specific transaction, such as the closing on the sale of a residence, or the handling of the Principal’s financial affairs while the Principal is traveling out of the country. A Nondurable Power of Attorney takes effect immediately and remains in effect until it is revoked by the Principal, or until the Principal becomes mentally incompetent or dies.  

Springing Power of Attorney 

A Springing Power of Attorney becomes effective at a future time when an Agent, or another third party, such as the Principal’s physician, determines that the Principal in no longer competent to handles his or her own financial affairs. A Springing Power of Attorney remains in effect until the Principal’s death, or until revoked by a court.  

Preponderance of the evidence 

The greater weight of evidence that persuades a judge or jury to lean to one side as opposed to the other during the course of litigation. In civil trials, evidence is required only by preponderance, not beyond a reasonable doubt. The side with the most persuasive or impressive evidence wins the case.  

Rebuttal 

Evidence introduced to counter, disprove or contradict the opposition's evidence or claim, or responsive legal argument.  

setoff

 A claim by a defendant in a lawsuit that the plaintiff owes the defendant money which should therefore be subtracted from the amount of damages claimed by plaintiff.  

settlement 

The resolution of a lawsuit or legal dispute prior to a final court judgment. Most settlements are achieved by negotiation in which the attorneys and the parties agree to terms of settlement. In practice, most lawsuits result in settlement. 

"sophisticated employer" defense 

A common law defense in which a manufacturer of hazardous products attempts to claim that it should not be held liable for adverse effects to the plaintiff because it had adequately informed the plaintiff's employer of the hazards of its products. With this knowledge, the manufacturer claims, the "sophisticated employer" should have been expected to protect its employees from the effects of such hazards.  

statute of limitations 

A law which sets the maximum period after which the right to file a lawsuit expires, depending on the type of case or claim. In some instances a statute of limitations can be extended based on delay in discovery of injury. 

trial 

The examination of facts and law presided over by a judge with authority to hear the matter. A trial begins with the calling of the parties to come and be heard and selection of a jury if one has been requested. Each party is entitled to an opening statement by his/her attorney, limited to an outline of what each side intends to prove (the defense may withhold the opening statement until it is ready to present evidence), followed by the presentation of evidence first by the plaintiff, followed by the defense evidence, and then by rebuttal evidence by the plaintiff to respond to the defense. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge's chambers. After the presentation of all evidence each attorney, plaintiff first, can make a final argument which may include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case. Then the jury retires to the jury room, chooses a foreperson, decides the factual questions, and renders a verdict based on the law as given in the instructions by the judge. If there is no jury, the judge will determine legal issues and decide factual questions and render a judgment. Final verdict or judgment usually concludes the trial.  

verdict 

The decision of a jury, which must be accepted by the trial judge to be final. A judgment by a judge sitting without a jury is not a verdict.  

voir dire

 The questioning of prospective jurors by a judge and attorneys in court to determine if there is cause not to allow a juror to serve; or questions asked to determine the competence of an alleged expert witness; or any hearing outside the presence of the jury held during trial.