If a personal injury case goes to court, and a personal injury lawsuit is filed, the person or entity being sued (called the "defendant" in court) needs to file a response to the plaintiff's lawsuit within a certain period of time. (The "complaint" is the document that starts the case; learn more about how to file a personal injury lawsuit).
Depending on the procedural rules in place where the lawsuit was filed, this response by the defendant "(typically called an "answer") may contain, among other things:
In many states, the "Answer" may be filed on a court-approved form. (To see an example, check out the Answer - Personal Injury, Property Damage, Wrongful Death form, from the California Courts.)
Let's take a closer look at some strategies that may be used in an Answer, to poke holes in the plaintiff's case, or even get the personal injury lawsuit dismissed altogether.
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 defendant's action and the injuries to the plaintiff, showing that the defendant caused the plaintiff's injuries. But if the plaintiff's 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 could relieve the defendant of any liability for the plaintiff's injuries. (Learn more about proving fault in a personal injury case.)
Another defense related to the plaintiff's handling of their case is that the "statute of limitations" has run. In "legalese," a statute of limitations is a 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 defendant's 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.
Learn more about the statute of limitations in a personal injury lawsuit and check the statute of limitations in all 50 states.
This one isn't a defense to the lawsuit itself (or when it was filed). Rather, it's an argument that any compensation the defendant must pay to the plaintiff should be reduced, because the plaintiff's action (or inaction) played a role in causing the underlying accident, or made the resulting losses (the plaintiff's "damages") worse.
When a personal injury plaintiff's own negligence was a factor in the incident that led to the lawsuit, the legal argument of "contributory negligence" (or "comparative negligence") can be raised by the defendant in response to the lawsuit. Under these doctrines, if the plaintiff is indeed found at fault, the plaintiff's damages can be reduced, or the lawsuit may be barred altogether. Learn more about comparative negligence and contributory negligence as defenses to a personal injury lawsuit.
Even if the defendant was 100% at fault for the accident, the person who was harmed -- and who 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 don't meet their duty to mitigate the damage done, the court might reduce the compensation according to the amount of damages that could've 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 can't sit back and reject a legitimate job offer if their injuries are no hindrance to performing the work that's available. In such a case, a lost wages damage award might be reduced under a formula that subtracts from the plaintiff's compensation any income that would have been earned from the job that the plaintiff unreasonably passed up.
The arguments we've spotlighted here aren't the only tactics used by defendants who are facing an injury lawsuit. Get more details on common defenses in personal injury cases. And for in-depth information on each phase of a personal injury lawsuit, get How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).