You can be almost certain that any defendant will attempt to blame you for the accident that generated your claim against them.
If you handle the “blame game” adeptly, however, you can still win maximum compensation from the defendant.
Following are some ways that a lawyer can help you defend your right to compensation.
Should I Allow My Attorney to Negotiate on My Behalf?
Yes, you should. Insurance adjusters are professional negotiators, and they make short work of claimants who represent themselves in negotiations.
That’s okay because an experienced personal injury lawyer is also a professional negotiator.
Can My Attorney Settle the Case Without My Permission?
No, they cannot. They can only exercise the authority that you give them. You should put this authority into writing, give one copy to your attorney, and keep another copy for yourself.
In all likelihood, your best bet is to refrain from giving your attorney the power to settle your claim. Let your signature on the eventual settlement agreement constitute your satisfaction with its terms.
What Happens If the Accident Was Partly My Fault? How California’s “Pure Comparative Negligence” System Works
Accidents caused by the contributory negligence of more than one party are common. In some states, you completely lose your right to compensation if the defendant can pin even 1% of the blame for the accident on you.
California is different. Theoretically, you can win at least some compensation even if you were 99% at fault for the accident. It works like this:
- The court will apportion fault among the parties – 25% fault for Party A and 75% fault for Party B, for example.
- Each party will bear liability for the portion of their own damages that corresponds to their own percentage of fault. In the above example, Party A would bear liability for 25% of their own damages, while Party B would bear liability for 75% of their own damages.
- Each defendant bears proportionate liability for the unpaid damages of the opposing party. In this example, Party A would bear liability for 25% of Party B’s damages, and Party B would bear liability for 75% of Party A’s damages.
- The court will set off the parties’ liabilities against each other to arrive at a single net sum that one party must pay the other party.
Arguing percentages of fault is a tricky endeavor best left to your attorney. In settlement negotiations, the argument would revolve around speculation on the likely outcome if the case went to court.
How Will My Lawyer Investigate the Accident?
A personal injury law firm has access to far more investigation resources than an injured victim does. Your lawyer can interview witnesses, research the law, and construct persuasive arguments.
They can seek the assistance of expert witnesses such as medical witnesses and accident reconstruction specialists.
For example, they can also gather physical evidence, such as a truck’s “black box,” to help reconstruct a truck accident.
The Discovery Process
Your lawyer can also file a lawsuit for the purpose of gaining access to the court-enforced discovery process. The discovery process is a way of gaining access to evidence that only the defendant possesses. It includes:
- Requests for documents and physical evidence,
- Interrogatories (written questions that the defendant must answer under oath); and
- Depositions (live questioning of witnesses, under oath but outside of court).
Your lawyer can seek a court order to compel a stubborn defendant to produce evidence. Violation of a court order is contempt of court, which can result in jail time.
What Kind of Tricks Can I Expect From the Defendant?
The “defendant” as referenced here usually means the defendant’s insurance adjuster rather than the actual defendant.
Insurance adjusters bring a bag of negotiating tricks to the bargaining table, but they have nothing that an experienced personal injury lawyer hasn’t seen before.
Following are some common tricks that you need to watch out for.
Trick questions come in many forms:
- Pressing you for the exact time of a car accident. Imagine this exchange: You state, “The accident happened at exactly 4:16 pm.” The insurance adjuster replies, “Now we know that the accident was your fault because you just admitted that you were checking the time instead of watching the road.”
- The adjuster asks, “How are you today?” You reply, “I’m fine.” The adjuster replies, “Well if you’re fine, you must not be as seriously injured as you say you are.”
Your best bet is to tell the defendant to direct any questions to your lawyer. No seasoned personal injury lawyer will fall for these tricks.
Eliciting Contradictory Testimony to Discredit You
The defendant might ask you the same questions in court that they already asked you in a deposition. They can then exploit any inconsistency in your answers to discredit all of your testimony.
Your lawyer can help you prepare for your deposition and your in-court testimony.
Social media content is often admissible as evidence in court. The defendant might gain access to your account by exploiting lax security settings or by sending you a bogus friend request.
The defendant might use an uploaded photo of you enjoying yourself at a party, for example, to disprove your claim of serious injury.
How Might the Defendant Try to Blame Me for My Own Damages?
The defendant can try to blame you for the accident, of course. Another strategy, however, is to blame you for your own injuries.
Following is a list of possible weaknesses in your claim that a defendant might try to exploit.
Failure to Seek Timely Medical Treatment
Always seek medical treatment immediately after an accident. Some injuries, such as traumatic brain injury and soft tissue injury, may not show symptoms until hours or even days after the accident that caused them.
A delay in seeking treatment will create a hole in your personal injury claim that your lawyer will have to find a way to plug.
Unnecessary or Ineffective Medical Treatment
The defendant might seek to reject your expenses for “fringe” medical care such as chiropractic treatment, massage therapy, homeopathy, acupuncture, etc.
They might also reject medical treatment that appears excessive or wasteful. Piling up medical expenses can justify a defense called “failure to mitigate damages.”
Failure to Follow Your Doctor’s Orders
Suppose you fail to follow your doctor’s orders by, for example, returning to work early or failing to take prescription medication.
In that situation, the defendant can argue that any deterioration in your condition was your own fault.
Some injuries, such as a bone fracture, are easy to prove. Other injuries, such as whiplash, are difficult to detect. The defendant might even insinuate that you are deliberately falsifying your claim.
This is especially likely if you use a painful injury like whiplash to assert a large pain and suffering claim. Your lawyers will know alternative ways to substantiate your injuries, including, if necessary, the use of an expert medical witness.
Yes, You Probably Need a Lawyer
An experienced personal injury lawyer can help you in more ways than it is possible to describe in a short article. A good lawyer is likely to increase the value of your settlement (or decrease the amount of your liability) significantly.
You’re in good hands with us. Our lawyers have been showered with awards from their peers in the legal profession, including a listing as one of the top 100 trial lawyers in the nation.
We have won numerous multimillion-dollar case resolutions, and we have won thousands of cases for our clients. Contact us today for a free consultation.