“Put em’ up!”
When we think about “defense” we often imagine ourselves preparing ourselves for a physical fight. From a young age, even small children act out defense “moves” and phrases they get from movies or cartoon cues, inviting them to karate-chop, sword-fight, and fisticuff their way through whatever obstacle confronts them.
However, children quickly learn that there is rarely need for a real defense. “Defense strategies” are mainly a feature of imagination games on the playground, which eventually turn into organized sport strategies on the field that involve passing a ball or running a play. Yet, adulthood can bring about the need for a different kind of defense, one that doesn’t include physical feats, imaginary or in the sports arena. Adults may instead find themselves on the other end of a personal injury lawsuit that requires an understanding of accusations and well-prepared words of defense (rather than childish “aiyah’s”).
En Garde: Defending Yourself in an Accident
A personal injury lawsuit is frequently filed as the result of an accident in which the plaintiff wants to claim you as fully or partially responsible for injuries suffered. The plaintiff seeks damage for someone else’s negligence (i.e. money) to manage the outcome of physical, psychological, or property injuries.
The first issue at stake that your legal team will consider is your own participation in the injury. This is often a question considered on a state-by-state basis, depending on if your state of residence follows a comparative negligence or contributory negligence personal injury claim structure.
Comparative Negligence is the more common method followed by states in evaluating a personal injury case. The state uses a formula to calculate damages incurred by each party to determine each person or party’s degree of fault in an accident. Police, medical, and insurance reports may be used in this calculation. Depending on your contribution to the accident in question, money awarded to you or to the plaintiff will be increased or reduced by the percentages of fault calculated. Further influencing the outcome of a personal injury lawsuit, comparative negligence can be divided further into to sub-categories. A pure comparative negligence suit will result in injured plaintiffs receiving damages without any consideration of fault they may have contributed to the accident. A modified comparative negligence ruling will result in injured plaintiff’s receiving damages only when it has been ruled that they are 50 percent or less at fault.
Contributory Negligence is the less common method adopted by states (including only Alabama, Maryland, North Carolina, and Virginia, as well as the District of Columbia), which imposes harsher compensation penalties when fault is assigned. The goal of contributory negligence is to consider how much each party contributed to the accident of injury. In this case, anyone who is assigned any percentage at all of blame in a personal injury case cannot receive any compensation for damages. This has potential to be encouraging news if you find yourself on the defense-end of a personal injury suit, where the plaintiff risks incurring damages him or herself upon bringing a suit.
Aiyah: Risky Business
A major consideration in personal injury lawsuits is your level of participation in activity that may or may not have caused the accident or injury. Risk is considered in terms of whether the plaintiff both actually understood risks inherent in the injury-causing activity, and then voluntarily chose to participate. For example, if you are involved in a concussion injury as the result of playing a weekend game of tackle football without proper safety equipment, you assumed a high degree of risk by participating in the activity (either as plaintiff or defendant). A concussion, no matter how unfortunately, might simply occur with normal game participation. If you find yourself as the defendant of a personal injury suit, it will be incumbent on you and your legal team to demonstrate that the plaintiff’s injuries were a natural, foreseeable result of his or her participation in the injury-causing activity.
On the other hand, if a plaintiff received a concussion on the way to your tackle football game because of an auto injury, where you blew through a stop sign at top speeds, hitting your team member’s car in a residential neighborhood (who was driving an easy 20 mph), the plaintiff did not assume undue risk transporting him or herself safely to the football match. Risk assumption will be taken into consideration as final damages are calculated. The result may be an assumption or denial of claims for compensation.
Put Em’ Up: The Process
Whether you find yourself on the plaintiff or defendant end of a personal injury lawsuit, you will need trusted and effective legal counsel. Personal injury lawsuits are sometimes drawn out over the course of a lengthy process that may or may not include a trial. To reduce time and resources spent on the suit, it may be wise to negotiate a settlement agreement out of court before the claim reaches a jury trial. In pursuing a settlement agreement, you may be able to negotiate a more favorable result than falling to the mercy of a jury who will apportion fault (and damages).
Contact The Brown Firm PLLC For a Free Consultation!
For more information about potential defense available in personal injury lawsuits, please call or contact the Brown Firm online to arrange a free initial consultation to learn about our litigation services. We can help you to understand your options and discuss your legal needs.