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Defense Tactics that Affect Compensation in a Personal Injury Lawsuit

On Behalf of | Aug 13, 2014 | Articles

It’s important for you to be aware of the tactics the defense might use to undermine your case in a personal injury lawsuit because it can affect whether you receive compensation and how much you receive. Knowing what the defense might throw at you is a vital step in ensuring you are fully prepared.

Mounting a defense in a personal injury case usually revolves around bringing arguments regarding the role of the plaintiff in the accident as well as what the plaintiff didn’t do after they were injured, such as obtaining adequate medical care or filing the lawsuit within a timely manner.

Defense Using the Role of the Plaintiff in the Accident

When you file a personal injury lawsuit, you can be certain that one of the first things the defense will claim is that you were at least partly to blame for the accident or for the injury you incurred. If you really are partly to blame, there’s a salient chance that the amount you could receive as compensation will be affected. Depending on the situation, you could come to an understanding with the plaintiff early on and agree on a settlement or it could lead to a long, drawn out trial.

The level to which your compensation will be affected depends on whether your state employs “comparative negligence” standards or “contributory negligence” standards. Furthermore, if you took part in a dangerous activity by choice and ended up with an injury, the court could dismiss your lawsuit based on assumption of risk.

Defense Based on Failure to Prove Your Case

Another argument the defense might bring is that your complaint doesn’t establish at least one essential component of your case. In a negligence claim, an important aspect is “causation”, which means that you should how the defendant’s actions caused your injuries. If you don’t clearly prove “causation” in your case, the defendant could be relieved of any form of liability for your injuries.

Defense Based on the Statute of Limitations Running Out

The defense could argue that the statute of limitations has run out, which means that you filed your lawsuit too late. Each state has a different statute of limitations—timeframe within which you can file a lawsuit—and if you don’t abide by it, your case could be dismissed completely. Note that in most states, you have up to one year from the time the accident occurred to file a lawsuit.

Defense Based on Failure to Mitigate Damages

This tactic isn’t actually a defense against the lawsuit—i.e. an attempt to get the suit dismissed—but more of a way to reduce the amount of compensation you could be awarded. What the defense will claim is that certain actions you took, or didn’t take, made the damages worse, which is why you shouldn’t receive as much money.

Even if it is proven beyond a shadow of a doubt that the other party was fully responsible for the accident, if you didn’t take reasonable measures to limit the damage done, the court could decide to reduce the amount of money you receive. For example, if you didn’t get medical help right after being in a car accident and this lead to more severe injuries and higher medical costs.

Being prepared is the key to securing the highest level of compensation possible in a personal injury case and this is where an attorney with experience in personal injury lawsuits comes in. At Makarem & Associates, we can help you with your personal injury lawsuit thanks to our experienced lawyers, so please don’t hesitate to contact us either by phone at 310.312.0299 or by email at [email protected] and we can begin walking down this legal road.