Lets take an auto accident injury case as an example. In a majority of car accidents, liability is not an issue. However, there could be factors that may be raised by the defense that could tend to indicate you either contributed to the accident or contributed to the injury. For instance, if you are speeding or on your cell phone the defense could contest these facts contributed to the accident and you may be deemed contributory negligent or in non legal terms, your actions contributed to the accident.
If you fail to wear your seat belt, the insurance carrier and their retained defense lawyers will argue that your decision contributed to your injuries. Such facts will often serve to mitigate the damages caused by the at-fault party and in-turn, reduce your recovery. Assume that you did nothing wrong, liability will not be an issue and the defense will generally concede this very early on in the case.
Ever driven by an accident that has resulted in a huge traffic jam and wonder if the individuals involved got out alive? Those accidents that cause major property damage or result in totaled vehicles will actually increase the value of your claim. The reason is that whatever injuries you sustain in such an accident will not be scrutinized by the insurance carrier as much as other collisions that are often referred to as “minor impact accidents.” In the legal world this is referred to as a causation defense. Defense attorneys will argue that even though you are claiming injuries they were likely not “caused” by the accident. If you are in a car accident that leaves minor property damage you can rest assured that the insurance carriers will stand by the position that your injuries were NOT caused by the accident due to the low impact or property damage. So does this mean that you cannot be injured in what some people refer to as a “fender bender”? Absolutely not. Most, if not all physicians that treat auto accident victims will explain that you can sustain major neck and back problems even in low impact accidents that leave little to no property damage. This is because of the mechanics of what your body is put through when forces are impacted on it. In a typical rear end accident your body will sustain energy that may cause flexion/extension injuries often called whiplash.
Even if you have never been involved in a car accident or ever had a neck or back issue prior to an accident you can assume that the insurance carrier and their retained attorneys, will assert a causation defense if the property damage is low. They will often do this with little to no support from medical documentation except the mere fact that the cars don’t “look like” anyone could have been injured. Does this fly? Yes and no. Yes, because experience teaches the insurance carriers that if the case is ever presented to a jury that they will likely be skeptical based on pictures of the property damage. Defense attorneys will take pictures of the vehicles and blow them up as big as possible and repeat the same thing over and over again to the jury…”the injuries the plaintiff is claiming could not have been caused by this little accident”. To a certain degree this argument may be down right insulting. But it works. Our jury pool has been hit year after year with propaganda that accident victims sue other people for no reason except for the fact that they were involved in an accident and are looking for a financial windfall.
If you scratch the surface of this argument what the insurance company and defense attorneys are basically calling the plaintiff’s liars! They will not say it in those words but that is the heart of their argument. One of the most influential trial attorneys of our time, Rick Friedman, has written a book aptly named “polarizing the case.” Friedman lifts the veil and exposes the underlying assertion that insurance carriers are calling all plaintiff’s claiming injuries liars and cheats. Friedman makes it a point to not allow this to be the elephant in the room and instead brings it to the forefront. If you are going to make inferences that auto accident victims claiming inures are liars and cheats than you better be prepared to embrace it. Imagine that. You are involved in an accident that causes neck and back issues and corresponding pain, discomfort, medical bills and permanent injuries. The insurance carrier labels you a liar as the property damage “does not look like they could of caused an injury”…despite an abundance of medical literature suggesting these types of injuries may occur at speeds less than 5mph! Solid trial attorneys will not allow this type of argument and assertions to remain as background noise and will present it to the jury for what it really is. This is why credibility of the plaintiff is one of the most important issues when deciding on whether to take a case to trial or not.
If you have been involved in an accident and experience pain and injuries as a result, it is very important that you consult and hire experienced attorneys that understand these arguments and defenses. If a trial attorney is not willing to take a case to trial because the property damage is not one of those eye turning totaled vehicles you see at the end of a traffic jam, then you should keep interviewing attorneys that are willing to take on the insurance companies and NOT allow them to label you a liars or cheat. If you are ever in a jury where the issue is a minor impact accident and the defense does nothing but focus on the property damage, ask yourself what is really going on. Imagine if this happened to you or a loved one and the tables are turned and the insurance companies say “yeah, we caused the accident but these pictures show us that you are not really in pain!” Welcome to the world of the rich and powerful insurance companies that make these defenses based on there own greed and assume that everyone is a liar and a cheat.