A personal injury defendant has a number of options for trying to poke holes in the plaintiff's case, trying to get the lawsuit dismissed altogether or reducing the amount of compensation that needs to be paid to the plaintiff. Here's a look at some of those arguments. (Note: These tactics may not always be considered "defenses" in a strict legal sense, but theyre worth mentioning here since they can have the same practical impact that a defense would.)
Plaintiff's Lawsuit Fails to State a Claim
One of the first things that a defendant in a personal injury case might argue is that the plaintiff's complaint (the list of a lawsuit's allegations) fails to establish one or more essential elements of their case. For example, one of the elements of a negligence claim is "causation" -- the crucial link between the defendants action and the injuries to the plaintiff that shows the defendant caused the plaintiff's injuries. But if the plaintiffs lawsuit does not illustrate a clear case for causation (for example, the lawsuit points to a different cause that may have broken the chain of causation between the plaintiff and the defendant), that might relieve the defendant of any liability for plaintiffs injuries. For tips on the elements of proof that are necessary in most injury cases, see Nolos article Proving Fault in Personal Injury Accidents: General Rules.
Plaintiff's Lawsuit Was Filed Too Late (Statute of Limitations)
Another defense related to the plaintiffs handling of their case is that the "statute of limitations" has run. In legalese, the statute of limitations refers to the state law that identifies the amount of time a plaintiff can wait before filing a lawsuit. The applicable statute of limitations varies from state to state and depends on the type of lawsuit being filed. In many states, the statute of limitations for filing a personal injury lawsuit is one year from the date of the accident or injury.
The statute of limitations is an "absolute bar" defense, meaning that if the defendants argument is accepted by the court -- in other words, a judge rules that the plaintiff failed to comply with the filing deadline under the applicable statute of limitations -- the plaintiff's lawsuit will be dismissed altogether.
To learn more about time limits for filing a lawsuit and the rules in your state, check out Nolo's articles Statutes of Limitations: Is It Too Late to Sue? and Chart: Statutes of Limitations in All 50 States.
Plaintiff Failed to "Mitigate" Damages
This one isnt a defense to the lawsuit itself (or when it was filed). Rather, its an argument that any compensation the defendant must pay to the plaintiff should be reduced, because the plaintiffs action (or inaction) made the damages worse.
Even if the defendant was 100% at fault for an accident or injuries, the victim who was harmed -- and ends up filing a personal injury lawsuit -- must take reasonable steps to minimize or mitigate the damage done, perhaps by going to the emergency room. For plaintiffs who dont meet their duty to mitigate the damage done, the court might reduce the compensation according to the amount of damages that couldve reasonably been avoided.
For example, a court might reduce a damage award in a personal injury case because of the plaintiff's "failure to mitigate" if, after a car accident, the plaintiff waited for weeks before seeking medical attention -- making their medical condition worse and their treatment more costly. Similarly, a plaintiff seeking compensation for lost wages probably cant sit back and reject a legitimate job offer if their injuries are no hindrance to performing the work thats available. In such a case, a lost wages damage award might be reduced under a formula that subtracts, from the plaintiff's compensation, income that would have been earned from the job that the plaintiff passed up.
Learn More About Injury Lawsuits
For in-depth information on all the key ingredients for a successful personal injury lawsuit, get How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo). If you'd like to talk with an experienced attorney, use Nolo's Lawyer Directory to find a personal injury lawyer in your area (click the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience handling personal injury cases like yours).
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