What Happens If Someone Makes a Personal Injury Claim Against Me?

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Defending a personal injury lawsuit can be relatively difficult because the claims often have substantiated evidence. The most common types of personal injury cases are auto accidents and slip and fall accidents. In both, the defense typically attempts to minimize the defendant’s role in the accident and deflect some blame to the other party. Often, these cases settle without ever reaching the lengthy and expensive trial process. However, your chances of lessening your responsibility for damages is significantly better with the help of a personal injury attorney.

How Can You Respond to a Personal Injury Lawsuit?

After the plaintiff files a personal injury lawsuit in civil court, the defendant receives a notification and typically has 30 days to respond. The rules for the response process may vary among states and regions. Still, most responses contain a reply to the complaint, including denial of all or some of the allegations and some form of defense. The goal is to create doubt and expose holes in the plaintiff’s claim. Some common strategies include:

  • Missing the statute of limitations. Every type of personal injury case has a statute of limitations that sets the timeframe for how long a person has to file a lawsuit. If the plaintiff misses the statute cut-off, the case will be dismissed.
  • Failing to make an allegation. Your attorney will look for broken links in the change of causation. For example, to prove negligence, the plaintiff must show a direct link between the accident, the defendant’s actions, and the resulting injuries. You may be relieved from liability without a clear link showing that your actions caused the plaintiff’s injuries.
  • Failing to mitigate damages. The court may reduce the damages you must pay if the plaintiff failed to seek medical attention quickly enough to lessen the damage caused by the injury. For example, if your case involves a car accident, and the plaintiff did not see a doctor until weeks after the accident, your attorney may claim this is a failure to mitigate damages. 

In more rare personal injury cases, you may approach with an argument for the assumption of risk. For example, if the plaintiff in your case agreed to play a game of football with you and suffered an injury during a routine play, you could argue that the plaintiff understood the game’s risks. In that situation, the court would likely throw out the claim.

Do You Both Share Fault for the Accident?

Cases involving shared fault can result in significantly less financial strain for the defense. In personal injury cases, the court recognizes the contributions each party made to the accident. When the plaintiff contributed to the accident, they also contributed to their injuries. As a result, they are responsible for at least part of the damages. Depending on your state, the law that governs shared fault in a personal injury case is either the comparative or contributory negligence rule.

Comparative Negligence Rule

The vast majority of states adhere to the comparative negligence rule. To determine how much you owe in damages, the court will calculate each party’s contributions to the accident and how they affected the outcome. Then, the court assigns a percentage of liability to each party. Whatever portion of fault the plaintiff bears is deducted from the compensation you must pay to the plaintiff.

However, there is more than one type of comparative negligence rule, and depending on which your state adheres, you may owe nothing when the case concludes. The two kinds of comparative negligence are:

  1. Pure comparative negligence states you will have to pay a portion of the award in the amount of your percentage of fault, even if it is only 1%. 
  2. Modified comparative negligence states that you only have to pay a portion of the award if the plaintiff is at fault at no more than 50%.

For example, if you live in a modified comparative negligence state and the court determines that the plaintiff is 52% at fault for the accident, you will not have to pay any part of their damages. However, you would have to pay 48% in a pure comparative negligence state.

Contributory Negligence Rule

A handful of states adhere to a much stricter approach to shared fault using a contributory negligence policy. According to contributory negligence, if the plaintiff bears any responsibility for the accident, they are no longer eligible for compensation. Only Virginia, Alabama, Maryland, North Carolina, and Washington, D.C. adhere to the contributory negligence rule.

How Does a Personal Injury Lawsuit Play Out?

Every personal injury lawsuit is different, but the overall process is similar for most. For example, a typical personal injury lawsuit may occur in the following stages:

  •  You meet with a personal injury defense attorney. Once you receive notification of the lawsuit or a demand letter, you should contact an attorney to discuss the details of your case and potential defense. Be sure to bring all the information you have about the incident and answer questions honestly. 
  • The discovery period will begin. The discovery period is one of the most crucial elements of a personal injury case. During this time, both parties exchange information and can send requests for deposition and any other evidence the other party obtained. The information your attorney receives during this process is vital to building your case.
  • Settlement discussions begin. Once you have all the information, your attorney and insurance company will start settlement negotiations with the other party’s representation. Ideally, this would end quickly. If your attorney can provide evidence of the plaintiff’s contribution to the accident, you should be able to negotiate a lesser settlement. 
  • The trial process may begin. Going to trial is only ideal if your attorney feels you have enough evidence to support a claim that diminishes your role in the accident. Trials can be lengthy because you have to work around the judge’s schedule. They can postpone several times, delaying the process. It can also be significantly more costly. Depending on the type of personal injury case, you could need expensive expert witnesses to testify on your behalf. 

Before you hire an attorney, speak with your insurance company. Many homeowners’ insurance policies cover the cost of an attorney in a liability case. If so, your insurer will likely choose your attorney for you. If your insurance does not cover attorney expenses, reach out to an attorney with extensive personal injury experience.

How Can a Personal Injury Attorney Help You?

The role of a personal injury defense attorney is to study the plaintiff’s claim against you and determine whether they have a valid argument. You are under no obligation to seek representation. However, the process of investigating the claim and accident, filing the necessary rebuttal paperwork, and negotiating for a settlement can be extremely challenging for someone with no professional legal experience.

The legal team at Mike Morse Law Firm is dedicated to achieving a fair outcome for our clients. We have represented over 25,000 clients during nearly three decades in practice and can help you understand the steps you should take after receiving a lawsuit notification. Contact us today at 855-MIKE-WINS to schedule a free case evaluation and speak with an experienced attorney. You can also complete our online evaluation form to schedule your appointment today.


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