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Video: Common arguments in an accident lawsuit

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Video: What will the defendant argue against me in my accident lawsuit?

Personal Injury Video Law Tip

“There are several things that the defendant can argue against you in an accident case. They may argue that they didn’t cause the injury that you had, it had been there before this accident happened. They may argue that you are not injured at all, they may argue that you may be injured but not all of your injuries are related to the accident.” – Dena Sisk Foman

-Dena Sisk Foman, Florida Personal Injury Lawyer at McLaughlin & Stern LLP in West Palm Beach


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Bill Abel circle photo avatar personal injury lawyer West Palm Beach

He Said: Bill Abel, Personal Injury Lawyer

Topic: What will the defendant argue against me in my accident lawsuit?

In order to win an accident lawsuit an injured person (known as a Plaintiff), must prove four things:

  • duty
  • breach
  • causation
  • damages

I will explain these in plain english, but the important thing to know is a Plaintiff has to prove ALL four elements of their case.

The person who caused the accident and injuries (known as a Defendant) does not need to prove anything and, in fact, a Defendant typically spends his time focusing on the weakest part of your case, showing the jury why you did not prove one of the four element you are required to prove to win your case.

A legal duty governs how someone is supposed to behave. A legal duty can be created by statute, ordinances, professional standards, or by establishing how a reasonably prudent person would behave under the circumstances when the accident took place. The Defendant may argue that he did not have a legal duty. More likely, a Defendant would argue that they did not breach the legal duty he did owe you.

Here’s an example. A Defendant might claim that he did not run the red light at the time of the accident, but instead, drove through a green light, which gave him the right of way. In a slip and fall case, the Defendant might argue that there was no way he knew or should have known about the dangerous condition that caused your fall and, therefore, he is not legally responsible for your injuries.

In some cases, the duty and breach of that duty are clear, so the Defendant fights over the cause of the injuries.

He may argue that you had a similar condition or injury before the accident and, therefore, the accident did not cause any injury. Or, a Defendant may argue that the accident only slightly worsened an injury so you should be awarded only a small amount of money. A Defendant may argue that even though the injuries are new, that you caused or contributed to them but failing to be careful yourself. This is known as comparative negligence, and while you may prevail at trial, your overall recovery is reduced by the amount of comparative negligence a jury assigns to you.

Finally, a Defendant may argue that you only have small or insignificant damages. Maybe you only have past medical expenses and that you healed up fine. If you are in a car accident, the Defendant may argue that you did not suffer a permanent injury and, therefore, are not entitled to receive money for pain and suffering. (Other areas of injury law do not require a permanent injury in order to receive money for pain and suffering).

Most cases have one element that is weaker than the others. For example, someone may have a serious injury, but there is a question about who caused the accident. In other circumstances, the fault is clear, but there is uncertainty about whether there is a new injury or a temporary aggravation of a pre-existing injury.

You can be certain, however, that a Defendant will challenge the weakest party of your case. Sometimes that means the Defendant will focus on credibility issues. For example, you may have a criminal history or you may have a poor memory and cannot recall important events well. A Defendant will attempt to use these facts against you in your case in order to bolster their attack on one of the four elements of the case. He may argue that you cannot be believed because of your poor memory and, therefore, cannot be believed as to who caused the accident. As a result, the jury should believe the Defendant’s version of how the accident occurred. Now, let’s ask my partner Dena Sisk-Foman to give you her take on this same question.
– Bill Abel

Dena Sisk Foman circle photo avatar personal injury lawyer West Palm Beach

She Said: Dena Sisk Foman, Personal Injury Lawyer

Topic: What will the defendant argue against me in my accident lawsuit?

In order to recover money in an injury accident case, you have to prove that the other party caused your injury. The jury can also find that the Defendant is only liable for a percentage of your injury and you are only entitled to recover that percentage of the verdict.

For example if the jury verdict is $100,000 and the jury finds the Defendant to be 80% liable, then the money recovered in the lawsuit is $80,000. The other 20% can be attributed to either the Plaintiff or some other party. In most slip and fall accident cases the defense successfully argues some comparative fault. For example had the Plaintiff been paying attention or wearing different shoes they may not have tripped and injured themselves.

Once the liability argument is won, the jury can then decide several things. They can consider whether the claimed injuries are related to the accident. Often it will be argued that the injuries were pre-existing. This is determined by many factors. If a person has injured the same body part or treated for the same complaints in the past, the defense will argue that even if the accident had not happened, the injury would have existed anyway and was not related to the accident. The defense will also use doctors to testify that the objective medical records (radiological films) demonstrate longstanding problems that are not traumatic. This happens often in cases where the injuries are the spine, shoulders, knees or any other orthopedic injury. Expert doctors will disagree with each other. Even though you may have a doctor that opines that you are injured, another doctor hired by the defense may disagree and opine that either your complaints and problems are normal, or that your injuries were temporary and have resolved.

If the defense suspects that you are not being truthful in your deposition or written discovery (and sometimes even when they are not suspicious) they will hire a surveillance company to follow you to make sure you are unable to do the things you testified you were unable to do. If they are able to demonstrate clearly that you said one thing in your deposition, yet can show another picture on film, they will argue that you are not being truthful which will, of course, be harmful to your case.
– Dena Sisk Foman

Personal injury law video number 100050:
Video: What will the defendant argue against me in my accident lawsuit?

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