If you've been injured and the responsible party is putting up a fight, you may be faced with a court trial. You (the plaintiff) will work with your lawyer to prove the defendant's guilt. Below are three common defense tactics the defendant and their lawyer may employ, and how you and your attorney can counteract them.
Tactic #1: Assumption of Risk
If you've ever gone bungee jumping or done a similarly risky activity, you may have been required to sign a waiver of liability. In the event that you get injured, you would not be able to sue the activity leader or business owner, because you knew about the risks and decided to take the chance anyway.
When you've been injured, the defendant may try to convince the judge or jury that you knew what the risk were but went ahead and did the thing that injured you anyway. If you didn't make any formal agreements with the defendant, you can still be considered responsible if the activity was a very obvious risk, or if you are partially at fault for the injury that occurred. With the help of your lawyer, you may be able to prove that even if you knew the activity was risky, the defendant still grossly neglected your safety. With bungee jumping, for example, you knew the activity could cause harm, but the instructor failed to properly educate you on technique and proper form. While you knew the activity could lead to harm and you even signed a waiver of liability, they didn't perform the necessary tasks usually done by instructors to properly protect you.
Tactic #2: Comparative and Contributory Negligence
The negligence laws differ among states. North Carolina, for example, along with three other states (Alabama, Maryland, and Virginia), as well as the District of Columbia, practices pure contributory negligence. This means, even if you were is found at only 1% fault, you cannot recover anything from the defendant. This makes it vital that you have experienced legal representation.
In contributory negligence states, there's a such thing as "last chance avoidance." If you can prove, that while both of you were at fault, the defendant had a last chance to avoid the injury but neglected to do so, then you may be able to recover a settlement, even if you did contribute to your injury.
The 46 other states do not recognize contributory negligence, but comparative negligence instead. There are two main forms of comparative negligence, pure and modified. Comparative states will allow you to receive compensation for injuries, even if you were partially at fault. Some states allow up to 99% of fault by you, with the amount you receive dependent on the defendant's percentage at fault. The majority of comparative states follow modified laws which only allow you to receive compensation if you were 50% at fault or less -- this is known as the 51% Bar Law.
Tactic #3: Injuries Were Preexisting
Some defendants and their lawyers will try to prove that the injuries you state you received as a result of the injury were actually preexisting. This can be common if you're injured by someone who knows you, and they therefore claim to have known you as suffering from the injury prior to the accident.
This tactic can be proven wrong easily enough if one has previous years of medical history to back up their claim that their injury was not preexisting. When working with a personal injury lawyer, they will help you to collect the documentation you need in anticipations of the defendant's defense tactics. This includes previous years' medical information, as well as current medical evaluations showing your injuries are new and from the injury that you suffered.
When you've been injured, it can be critical that you receive compensation for your injuries in a timely manner. If you haven't already, consult with a personal injury attorney from a firm like The Reed Noble Law Firm PLLC who can help you to speed along the process, as well as prepare you for any curve balls the defense may throw your way.