Have you ever wondered how a personal injury attorney argues a case against a car accident defense attorney?
Very few people would put themselves through the process of a personal injury claim for no reason. Often, victims of a car accident will do everything they can to avoid filing a claim, to their own detriment. When someone files a personal injury claim, it is because they have sustained a costly injury due to someone else’s carelessness.
But in a personal injury lawsuit, car accident defense attorneys will do everything they can to prove that the plaintiff’s claim is not valid. In this post, personal injury attorney Joseph Greenwald, Jr. will explain some of the methods that car accident defense attorneys use, and how he counters them.
When Does A Personal Injury Case Go To Court?
Well, usually, it doesn’t.
When a car accident occurs, police will take witness statements, and determine if one party or another was responsible.
In a personal injury case, lawsuits will occur after lengthy negotiations between the two parties. Car accidents, in particular, can be very complicated, especially when there are many parties trying to recover damages.
In these cases, insurance companies and their car accident defense attorneys will do everything they can to lessen their client’s degree of fault. They will do everything they can to deflect blame to other parties.
For this reason, it’s important to have an experienced personal injury attorney by your side when you are the plaintiff in a car accident case.
Below, we’ll list some of the defenses a car accident defense attorney might use, as well as the methods the Greenwald Law Firm would counter with.
The Assertions of the Plaintiff Are Invalid or Overstated
This is the first thing a car accident defense attorney will try.
In a personal injury case, a court can strike invalid assertions from the record. This will happen if your personal injury attorney cannot prove your claims.
Car accident defense attorneys will use this method to claim that the plaintiff is overstating their pain and suffering. If the court rules your assertions invalid, you may get less in damages or no damages at all.
To counter this, we would make sure that we could back up every one of our claims with documentation. One of the ways we do this is by gathering your medical records and making sure there are pictures of your injuries right after the accident. This is why you should always take photos of the damage to your vehicle and any injuries directly after your car accident.
Many times, car accident defense attorneys will bring in competing medical professionals who will say that your injuries were not as severe as you claim they were. But records and statements from your doctor, as well as any emergency room doctors, along with photos of your injuries will most likely be enough to back up your claims.
Defendant Did Not Owe A Duty of Care to the Plaintiff
So, there are a few components of a personal injury case that our attorneys at the Greenwald Law Firm will have to prove in a lawsuit. First, we need to prove that you sustained a costly injury. Second, the injury occurred in an accident. Third, that the injury was the fault of the defendant.
The first two are relatively easy to prove with proper documentation and due diligence. The third one is a little more complicated.
To prove that your accident was the fault of the defendant, the defendant had to owe you a duty of care, which they neglected, causing your accident. For instance, when someone drives, they owe a duty of care to their fellow drivers. They adhere to this duty by following traffic laws. When someone ignores traffic laws, they neglect their duty of care.
Again, we counter this with appropriate documentation. Usually, this means police reports. In most car accidents, especially when there are injuries, police determine fault and issue citations. If the police issued a citation to the defendant, it will be hard for the car accident defense attorney to claim they didn’t owe any duty of care.
Plaintiff Was Responsible For Their Own Injuries
This type of defense falls into the category of comparative negligence.
What this means is that a court does not have to find one party 100% responsible for your injuries. The defendant may be only 60% responsible for your injuries. If a court finds you to be more than 50% responsible for your own injuries, you may lose your claim entirely.
For car accidents, countering this defensive strategy means proving that you did not contribute to the car accident. It helps to have eyewitness testimony, as well as possibly calling police officers to testify. With an airtight case with plenty of supporting evidence, the defense will find it very difficult to prove you were the most at fault for your injuries.
The Plaintiff Filed The Lawsuit Late
Sometimes, your injuries may not appear right away. Most people won’t file a personal injury claim until their injuries become costly; namely, when they start missing work or start racking up medical bills. If your injuries don’t show up for six months, by the time you file a lawsuit, the statute of limitations may pass you by. The statute of limitations for personal injury in Louisiana is two years after the date of the accident.
Even if the statute of limitations has not passed, if you file at the end of the limitations period, the defense attorney may use this defense. If you waited for nearly two years to file a lawsuit, it may say to a judge your injuries weren’t really that serious.
Countering this largely depends on you. It is important that you speak to a personal injury attorney very soon after your accident, and take pictures of your injuries and damage to your vehicle.