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Behind the Curtain of a Personal Injury Case: the Defense.

Behind the Curtain of a Personal Injury Case: the Defense.

Most Defense arguments in a personal injury case will revolve around three things: damages, liability, or causation.

Damages are the dollar amount ($$$ or $, depending on the extent of the injury and the reprehensibility of the Defendant’s conduct) placed on your injury. They are made up of the expenses you have incurred as a result of the injury (these are economic losses, usually easy to quantify) and the physical or emotional pain, suffering, and loss of enjoyment of life you have endured (these are non-economic losses, making them more difficult to quantify). The purpose of awarding damages to an injured person is to restore him to the position he was in before he got hurt. For instance, if you had to spend $50,000 on an ACL repair and rehab, your damages might include $50,000.

Liability is the legal responsibility to act, or not act, in a certain way. When someone or some entity fails to act in accordance with its legal responsibilities, he or it must pay for the damages that result. For instance, if a driver has a legal responsibility to stop at a right light but fails to do so and injures someone in the process, he must pay for the damages he caused to the injured party. Most drivers have a contract with an insurance company that requires the insurance company to pay those damages, but that’s a discussion for another day.

Causation is the link between the act and injury. In other words, the injury would not have occurred if the incident hadn’t occurred. For instance, if our person above tore his ACL playing basketball as a weekend warrior rather than in a car accident, there is no link between the driver’s carelessness and the torn ACL. Thus, the insurance company is not responsible for the $50,000 surgery and rehab

With those definitions in mind, you can see why the the defense attorney or insurance company focuses on damages, liability, and causation. In the case of the torn ACL, there probably isn’t any question the injured person incurred those expenses. They’re documented in the orthopedist’s medical and billing records. So the defense attorney will claim the ACL was bad prior to the accident. If there’s no question the ACL tear was caused by the car accident, the defense will be that the driver really wasn’t liable. The light was yellow and the injured person failed to pay attention in the intersection.

It’s important to understand the potential defense arguments in a personal injury case in order to effectively counter them, which will maximize your ability to recover your damages so you’re not left holding the bag for someone else’s careless act.

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