Acceptance Agreeing to an offer and thereby forming a contract. Class

Alternative dispute resolution (ADR) Settling disputes without resorting to litigation. Forms of ADR include arbitration, mediation, and many other out-of-court methods.

Answer The first pleading by the defendant in a lawsuit, responding to the charges and demands of the plaintiff’s complaint. Class

Anti-indemnification statutes State laws which invalidate contract clauses related to a party being indemnified or held harmless for damages or which limit the ways such contract clauses can be utilized. See indemnification.

Arbitration A method of alternative dispute resolution in which parties contractually agree to have an arbitrator rule on the merits of their claims. In the construction industry the arbitrator’s decision, called an award, normally is binding upon the parties.

Arbitrator An impartial person chosen by parties to solve a dispute and who normally is vested with the authority to make a final and binding decision concerning the issues in controversy. An arbitrator’s authority is defined by the arbitration agreement between the parties.

Assumption of risk Knowingly and willingly exposing yourself (or your property) to the possibility of harm. In most states, assumption of risk is a defense to negligence. Class

Authority Permission, power, or legal right to act. Class 1 Class 2

Award An arbitrator’s decision, as distinguished from a decision, order, or verdict in a court action. See RCW 7.04.160, Washington’s only recognized grounds for vacating an award.

Breach of contract The failure, without legal justification, to fulfill obligations which are the whole or part of an agreement, written or oral. The breach of a contract can be intentional, inadvertent, or caused by the negligence of the party breaching the contract.

Breach of duty A failure to perform an obligation created by law or by contract. See negligence.

Brief A written argument, usually prepared by a lawyer, setting forth the facts, legal points and authorities, to persuade a court about the merits or defenses to a claim.

Burden of proof The duty of a party to substantiate an allegation or issue in order to convince a trier of fact as to the merits of the party’s claim, which is necessary in order to prevail in a claim.

Civil action A lawsuit in court seeking enforcement or protection of private rights.

Claim A demand for money, services or property based upon rights created by contract or operation of law.

Code of Federal Regulations (CFR) The compilation of all Federal agency rules and regulations, updated annually. See CFR by title, citation, or keyword search.

Collateral estoppel A legal doctrine which bars further litigation of issues in a case previously decided by other courts.

Collateral source rule A rule which prevents a defendant from introducing into evidence the fact that a plaintiff has received benefits for his or her injury/damages from other sources such as disability insurance and/or workers’ compensation payments. Class 1 Class 2 Class 8

Comparative negligence The proportional sharing of liability between a plaintiff and defendant for damages based upon the percentage of negligence of each. Not all states allow a sharing of liability based on comparative negligence. Replaced contributory negligence in Washington in 1981; see RCW 4.22.005. Class

Compensatory damages Damages awarded to compensate a plaintiff for his or her injuries; includes direct out-of-pocket losses as well as compensation for pain and suffering.

Complaint The first pleading by the plaintiff in a civil action. It includes a statement of the wrong done by the defendant, a request for specific relief from the court, and an explanation why the court has the power to do what the plaintiff wants. Class

Condition precedent A future, uncertain event that—if it happens—creates a right or obligation.

Consequential loss An indirect loss occurring as a result of some other loss.

Context rule The principle that the intent of contracting parties is determined by viewing the contract as a whole, in light of the circumstances surrounding its making. Replaced the plain meaning rule in Washington in 1990; see Berg v. Hudesman. Class

Contract An agreement, written or oral, between two or more parties creating legal rights and duties that something shall, or shall not, be done. A contract requires “consideration” (a bargained-for benefit) to be legally binding. Class

Contribution The sharing of a payment for a debt or judgment among persons who are all liable for the debt. See RCW 4.22.040.

Contributory negligence The plaintiff or claimant, by not exercising ordinary care, contributed to the injury. In some states, a plaintiff’s contributory negligence will bar the plaintiff from recovering damages. Replaced by comparative negligence in Washington in 1981; see RCW 4.22.005. Class

Copyright Exclusive right to control the making of copies of a work of authorship, such as design plans, granted by federal statute to the author for a limited period of time. See Title 17 USC.

Counterclaim An independent cause of action or demand made by a defendant against a plaintiff. This occurs during a case when a defendant files a claim against the plaintiff. Class

Covenant A written, signed agreement by two or more parties pledging that something is done, shall be done, or shall not be done as, for example, a covenant not to sue.

Covenant not-to-compete A promise in an employment contract that prohibits the employee—usually a professional—from competing with the employer or working for its competitors for a certain time period after the contract ends. Class

Damages The amount claimed or allowed as compensation for injuries sustained or property damaged through the wrongful acts, negligence, or breach of contract of another. Class

Declaratory judgment The order of a court that establishes the rights of parties on a question of law or on a contract.

Defamation Transmission to others of false statements that harm the reputation, business, or property rights of a person. See libel, slander, and RCW 4.36.120. Class

Defendant The person (or entity) against whom a legal action is brought by the plaintiff. Class

Deposition Pre-trial testimony in the form of oral questions and answers, by a party or witness, which is taken under oath and may be used during a trial or arbitration proceeding. Class

Discovery The process by which parties to a lawsuit are required before trial to disclose to the other side all evidence they expect to use as a part of their presentations in court or which they possess in relation to the other party’s claims or defenses. Class

Discovery rule The principle that the statute of limitations commences to run when a person discovers, or in the exercise of reasonable care should discover, injury due to another’s negligence. See Kundahl v. Barnett and Gevaart v. Metco. Class

Due care The degree of care that a person of ordinary prudence and diligence would exercise under the same or similar circumstances; negligence is the failure to use due care. See standard of care.

Duress Unlawful pressure (e.g., force, threats, physical restraint) on a person to do what he or she would not otherwise have done. Class

Duty An obligation imposed by law or by contract.

Economic loss rule The principle that economic damages are not recoverable in a tort cause of action, such as negligence. Recognized in Washington; see Berschauer/Phillips v. Seattle S.D. and Stuart v. Coldwell Banker. Class

Enjoin Require or command, such as a court directing a person to refrain from doing certain acts. See injunction.

Estoppel A legal bar preventing a person from asserting a legal position because of his/her own conduct or because of some other reason created by operation of law.

Expert witness A witness recognized as having special knowledge of the subject at issue and whose testimony assists the trier of fact in understanding the technical aspects of a claim.

Express warranty A representation, usually in writing, that a fact in relation to a transaction is as stated or promised. See guarantee.

Fraud Knowing falsehood or trickery used by one person to mislead another. See misrepresentation and Douglas NW v. O’Brien. Class

Frivolous suit A suit that is so totally without merit on its face as to show bad faith or other improper motive on the part of the plaintiff.

Guarantee A contract that something shall be done exactly as it is agreed to be done. Synonymous with warranty.

Hold-harmless agreement A contract provision whereby one party assumes certain legal liabilities on behalf of another party. Such a contract provision could be of limited form, where a party reaffirms responsibility for its own negligent acts thus protecting another party from vicarious liability; an intermediate form, where a party reaffirms its responsibility and agrees to share responsibility for joint and concurrent negligence of other parties; or a broad form, where a party assumes responsibility for all liability including that arising out of the sole negligence of the other party. Synonymous with indemnification.

Implied warranty A representation, not in writing, that certain conditions exist or that a fact in relation to a transaction is as stated or promised. An implied warranty results from an inference by law based on the circumstances.

Indemnification An agreement by one party to pay certain specified losses or damages incurred by another party. Synonymous with hold-harmless. See anti-indemnification statutes and RCW 4.24.115.

Indemnify To protect against loss or damage or to promise compensation for loss or damage. The duty to indemnify may be created by rule of common law, by statute, or by contract.

Indemnitee The party who is to be indemnified from loss or damage.

Indemnitor The party who is providing the indemnification.

Injunction A judge’s order to a person to do or to refrain from doing a particular thing. See Chapter 7.40 RCW. Class

Interrogatories A set or series of formal written questions used in the judicial examination of a party or a witness before the actual trial. A series of written questions exchanged between parties to a lawsuit, which must be answered under oath. Class

Joinder Uniting two or more elements into one, such as the joinder of parties as co-plaintiffs or co-defendants in a suit or as parties to an arbitration.

Joint and several liability A legal concept where defendants can be held both collectively and individually liable for all damages, regardless of their degree of fault. See RCW 4.22.070.

Judgment The final decision of a court with respect to the rights of the parties in a suit. A summary judgment is a decision of a court before the actual trial because there are no disputes about material issues of fact. Class

Legal liability A legal obligation that arises out of contract or by operation of law.

Libel Written defamation. Publicly communicated, false written statements that injure a person’s reputation, business, or property rights. See slander and RCW 4.36.120. Class

Lien A legal mechanism that allows a person or party to attach the property of another as security for payment of labor, materials, or other goods and services provided to enhance the value of the property. See mechanics’ lien and Chapter 60.04 RCW.

Liquidated damages Amounts stipulated in advance for damages to be recovered for breach of contract.

Malpractice Breach of a professional duty by one rendering professional services that is the proximate cause of injury, loss, or damage to other persons.

Mechanics’ lien A worker’s, professional’s, or firm’s legal claim to file formal papers securing a right to property until the property owner pays charges for the work done. See lien and Chapter 60.04 RCW. Class

Mediation Effort by an independent party to assist others in reaching the settlement of a controversy or claim. The mediator participates impartially in the proceedings, advising and consulting the various parties involved. A mediator cannot impose a settlement, but can only seek to guide the parties to achieve their own settlement voluntarily. See RCW 5.60.070.

Meritless claim A claim which is so obviously insufficient that it should be rejected on its face without argument or proof.

Misrepresentation A false statement: innocent, negligent, or fraudulent. See fraud. Class 1 Class 2

Mistake An unintentional error or act. A contract may be voidable if there was mutual mistake by the parties. See Peter Kiewit v. DOT for a discussion of equitable relief for bid mistakes in Washington. Class

Mitigation of damages The principle that a person suing for damages must have taken reasonable steps to minimize the harm done, or the amount of money awarded will be lowered. See Maryhill v. Emil’s Concrete. Class

Negligence Failure to exercise that degree of care that an ordinarily careful and prudent person would exercise under the same or similar circumstances which results in injury or damage. Class

Negligence per se An act or omission regarded as negligence without argument or proof because it violates a standard of care defined by statute or is so obviously contrary to common prudence. Restricted in Washington since 1986; see RCW 5.40.050.

No-damage-for-delay clause A construction contract provision waiving the rights of the contractor to monetary damages for unreasonable delay caused by the owner. Illegal in Washington since 1979; see RCW 4.24.360-.380.

Notice Knowledge of certain facts, or formal receipt of such knowledge. A typical construction contract provision; see Bignold v. King County and Absher v. Kent S.D..

Offer To make a proposal; to present for acceptance or rejection. Class

Parol evidence rule The principle that the meaning of a written agreement, in which the parties have expressly stated that it is their complete and final understanding, cannot be contradicted or changed by using prior oral or written statements or agreements as evidence. Exceptions to the rule include situations involving duress, fraud, or mistake. See Berg v. Hudesman. Class

Personal injury Physical or mental injury to a human being.

Plain meaning rule The principle that, if a writing appears to be unambiguous on its face, its meaning must be determined from the writing itself without resort to extrinsic evidence. Replaced by the context rule in Washington in 1990; see Berg v. Hudesman. Class

Plaintiff A person (or entity) who brings a lawsuit against a defendant. Class

Privity The direct relationship between two parties to a contract. Privity continues when certain subsequent parties succeed to the rights of a contract.

Product liability The responsibility of manufacturers of goods to pay for harm to purchasers (and sometimes other users or even bystanders) caused by their defective products. Class

Professional A person who is deemed to have specialized knowledge and skills, acquired through education and experience, to be used in advising or providing services to others.

Promissory estoppel The principle that, when a person makes a promise expecting another to rely on the promise to his or her detriment, the law will help enforce the promise. See Bignold v. King County.

Proximate cause A legal cause which leads directly and naturally to a given result without any intervening causes. Class

Punitive damages Damages that are separately awarded and are in addition to compensatory damages. Normally these would be awarded because of a finding of malicious or wanton misconduct on the part of the defendant, and they serve as a punishment and as a deterrent to others. Class 1 Class 2

Quantum meruit “As much as he deserved.” Fair payment for extra work done not contemplated by contract. See Bignold v. King County, Hensel Phelps v. King County, and Heaton v. Imus. Class

Reformation The rewriting by a court of a written agreement to conform with the contracting parties’ original intent, usually only in cases of fraud or mutual mistake. See Welcome v. State.

Release A document which memorializes the fact that the claimant has abandoned the claim, because of either satisfactory payment or recognition that the claim is invalid.

Remedy The means by which a right is enforced or satisfaction is gained for a harm done. The means by which a violation of rights is prevented, redressed, or compensated. Class

Res ipsa loquitur “The thing speaks for itself.” A rebuttable presumption that a person is negligent if the thing causing harm was in his or her control only, and if that type of harm does not usually happen absent negligence. See Murphy v. Montgomery Elevator. Class

Revised Code of Washington (RCW) The compilation of all Washington laws, updated biennially. See RCW course excerpts or by title or keyword search.

Settlement Voluntary agreement to resolve a claim. It is not an admission of liability.

Slander Oral defamation. The speaking of words that injure a person’s reputation, business, or property rights. See libel and RCW 4.36.120. Class

Sovereign immunity A long-standing doctrine to the effect that government entities cannot be sued without their consent. Federal and state laws allow suits against governmental agencies under certain circumstances. Suits allowed in Washington since 1961; see RCW 4.92.090, 4.96.010, and 4.24.470. Class 2 Class 7

Specific performance Being required by a court to do exactly what was agreed to do by contract, promise, or other obligation when money damages will not properly compensate for the harm done. Class

Standard of care The ordinary and reasonable degree of care required of a prudent professional under the circumstances. It is the measure by which behavior is judged in determining legal duties and rights.

Statute of Frauds Any of various state laws, modeled after an old English law, that require many types of contracts (such as for real estate sales) to be signed and in writing to be enforceable in court. See Chapter 19.36 RCW. Class

Statute of limitations The legal time limitation allowed by law for filing a claim on a specific cause of action. Such time periods vary by state and normally start to run from the date of injury/occurrence or when a plaintiff knew or should have known of his/her injuries or damages. The statutory period also may vary based on whether the claim involves allegations of negligence or breach of contract. See Chapter 4.16 RCW generally. Not applicable to claims brought by Washington state; see RCW 4.16.160. Class

Statute of repose The legal time limitation allowed by law for bringing a claim on a specific cause of action within a specified period. Such a period, which varies by state, starts to run from an event specified in the statute (for example, the date of substantial completion). A statute of repose is distinguished from the statute of limitations which runs from when the party bringing the claim knew or reasonably should have known of his/her injury or damages. See RCW 4.16.300-.320. Class

Strict liability Liability without proof of negligence, but based on one or more conditional requirements. Class

Subpoena A writ issued under the authority of a court or arbitrator to compel the appearance of a witness for deposition, trial, or arbitration hearing.

Subrogation An equitable doctrine entitling a party to be substituted for one of the original parties to a transaction; for example, an insurance company may be given the right to recover from a third party the amount it paid to its policyholder for a loss caused by that third party. See waiver of subrogation.

Summons A legal paper to be served on a person named as a defendant in a legal action notifying him or her to answer the complaint or be in default. Also used to require non-party witnesses to appear for depositions or at the trial or arbitration hearings.

Surety A person or entity that guarantees to an owner completion of a construction contractor’s performance.

Testimony Oral evidence given by a witness.

Third party Someone other than the original parties involved in a contract, claim, or action.

Third-party beneficiary Someone who is not a party to a contract but one who has a direct interest in some or all of the terms and conditions of the contract.

Tort A violation of a right created by operation of law; a private or civil wrong or injury.

Uniform Commercial Code (UCC) A model statute dealing with commercial transactions that has been adopted by every state except Louisiana. UCC provisions do not normally apply to professional services. Enacted in 1967 in Washington; see Title 62A RCW.

United States Code (USC) The compilation of all Federal laws. See USC by title or keyword search.

Unjust enrichment A legal concept that prevents a party from a monetary benefit to which he or she is not entitled.

Vicarious liability Indirect liability imposed on a party resulting from the acts or omissions of another person for whom the party is responsible. Class

Waiver of subrogation The relinquishment by an insured of the right of its insurance carrier to collect damages paid on behalf of the policyholder. See subrogation.

Warranty An undertaking that a fact is as stated or promised. May be based on an explicit representation or inferred by law, depending on the circumstances.

Washington Administrative Code (WAC) The compilation of all Washington agency rules and regulations. See WAC by title or keyword search.

Workers’ compensation An insurance system in which liability is imposed by statute on an employer, who must provide benefits prescribed by law to employees or their dependents as a result of job-related injuries or death. See Title 51 RCW. Class

Wrongful death Action brought by a family member of a dead person against the person (or entity) who caused the death. See Chapter 4.20 RCW. Class