It is wise for you to understand the major weaknesses of your case and to discuss them in detail with your accident attorney before deciding to go ahead with a personal injury lawsuit. Some of these weaknesses can be alleviated before your personal injury lawyer files your suit or can be minimized before your case comes to trial. The goal is to eliminate the problem, lesson its potential effect at trial, or recognize that the problem may have a substantial impact on the ultimate settlement value or jury verdict.
1. Pre-existing injuries to the same part of the body
One of the most significant weaknesses in a personal injury case can be a prior injury to the same area of the body that was injured in the accident. If you have a prior injury from which you have not completely recovered and the same area of your body is reinjured in an accident, you have to prove that the new injury was caused by the accident. And you may have to prove how much the new injury aggravated the prior injury. In some jurisdictions, it is up to the plaintiff to prove the extent of aggravation. And, if the plaintiff fails, the entire problem is attributed to the prior incident. In others, it is up to the defendant to prove how much of the plaintiff’s injury is due to aggravation. And if the defendant fails, the entire injury is attributed to the second incident. Insurance adjusters will typically argue that your current injury is just a flare up of the old injury that is unconnected to the accident.
For example, suppose a woman injures her back in an automobile collision. The injury requires several doctor visits and physical therapy. The woman settles with the appropriate insurance carrier but two years later is involved in another accident. In the second collision, she sustains an injury to her back once again, and is treated by the same physician for approximately two years. Her medical bills are significant. The physician diagnoses her with a herniated disc, but concludes that the condition was not caused by the subsequent collision. Despite this finding, she expects a significant recovery of at least $100,000 due to her ongoing complaints and high medical bills. But the insurance carrier offers only $20,000 because its opinion is that the pre-existing injury minimized the value of the claimant’s subsequent injuries.
On the other hand, if you had a pre-existing injury from which you completely recovered, you must establish that a whole new injury took place and that it was caused by the subject incident. The burden can be quite difficult.
2. Subsequent injuries to the same part of the body
Similar problems are created when you sustain an injury in the subject accident, and subsequently reinjure the same area of the body.
For example, suppose a man sustained wrist, neck, and shoulder injuries in a rear-end collision. He treated with a physician from June through December. In December, his car slid off the road on a patch of ice and struck an embankment, aggravating his prior injuries. The treating physician had a difficult time differentiating between the injuries sustained in the two incidents. The insurance carrier placed a substantial value on the second incident, and therefore, minimized the value of the settlement offer.
3. Subsequent injuries to different parts of the body
Here a subsequent injury you sustain to other parts of the body may be relevant to whether you aggravated injuries sustained in the subject incident. The defense attorney will try to establish that the later incident, not related to the lawsuit, must have aggravated the present injuries.
For example, suppose a woman is rear-ended by a negligent driver and sustains neck, back, and shoulder injuries. She then undergoes a short period of physical therapy and chronic pain sets in. Eight months after the incident, while she is still experiencing chronic pain, she falls downstairs and breaks her collarbone. It will be difficult to show that the fall caused no injury to the neck, back, or shoulders.
Evidence that can help includes:
Witnesses who can discuss the differences between your condition before and after the nonrelated intervening event.
Medical records showing that you never complained about injury to the same area of the body resulting from the subsequent event.
Testimony from your treating doctor(s) discussing the difference between the prior and subsequent injuries.
4. Consumption of alcohol
Your use of alcohol can be extremely damaging if the alcohol consumption is relevant to the issue of liability. If your accident involves a fall, your consumption of alcohol is a major problem. If you were the driver in an automobile collision and consumed some alcohol before the incident, that fact can be fatal to a favorable settlement or jury verdict. Even if you were an intoxicated passenger and you rode with a drunk driver who caused a single car crash, settlement can be impeded by your alcohol consumption.
Some ways that might work to minimize the extent of the damage include:
Testimony from you and your witnesses that your alcohol consumption was minimal.
Results of a blood or breath test that show your alcohol consumption to be substantially less than the drunk driving limit in your state.
A motion from your attorney asking the court to exclude any reference to your alcohol consumption, if that consumption did not play any part in the incident.
5. Other insurance claims or lawsuits
After your personal injury attorney files suit, the defense attorney will likely inquire, through interrogatories and deposition questions, as to the nature and extent of any other personal injury claims you have made. Once the defense attorney learns this information, he or she will definitely attempt to show that you are a “professional claimant.” The existence of previous claims or lawsuits can certainly minimize a favorable jury verdict.
If the other lawsuits involve injuries to different parts of the body, your personal injury attorney may be able to convince the judge that they are irrelevant and unduly prejudicial to your case and should not be admitted into evidence. The extent of time between your the last claim and the present lawsuit will certainly have a bearing on the judge’s ruling and the relevance of the evidence.
6. Prior criminal record
Evidence of a prior criminal record can have a major impact on the jury. Crimes involving dishonesty are usually admissible to cast doubt on your truthfulness. However, the longer the period of time between the conviction and trial, the more likely the court will grant a motion excluding evidence of the conviction.
The type of crime also matters. For example, an argument that resulted in a minor assault and battery would not be as damaging as a shoplifting or theft charge. A court could rule that conviction of an offense involving sexual or child abuse is so prejudicial that it should not be admitted. If you pled guilty rather than go to trial, your personal injury attorney may be able to mitigate the effect of the conviction by arguing to the jury that you owned up to the crime and paid a debt to society.
7. Minimal property damage or low impact soft tissue injuries
In tens of thousands of cases throughout the country, the insurance carriers are raising their premiere defense: low impact soft tissue damage. The insurance industry has spent millions of dollars to influence public opinion about these types of cases. Insurance industry sponsored advertising implies that people with low impact collisions, pre-existing injuries, or minimal property damage are trying to scam insurers out of billions of dollars by creating phony and excessive claims. And popular television programs such as “60 Minutes,” “Dateline,” “20/20” have produced shows dealing with low impact collisions. These tabloid television shows are continuing to do special segments about low impact auto collisions several times per year. News magazines including Time, Newsweek, and USA Today are often doing articles about the so-called lawsuit crisis in America and often refer to these low impact auto collisions. In short, the message never leaves the American public.
As a result, low impact, low property damage collisions have resulted in many defense verdicts or verdicts with damages as low as a portion of the medical bills or the medical bills only. Lawyers who advertise on television, especially for automobile collision cases, are making potential jurors angry because they believe that lawyers are actually creating the lawsuit. In many cases, jurors have told the lawyers after a verdict that they were “sending a warning to the television advertisers.”
Several other factors contribute to the difficulty of these types of cases. When people drive by and see an automobile collision in which there has been significant damage to one or more vehicles, they believe someone has been seriously hurt. Conversely, they are conditioned into believing that the opposite is true if there is little or no visible property damage. These days, automobiles are equipped with collision resistant materials, high impact bumpers, and other safety devices. Therefore, property damage is lowered but impact is still great.
The insurance industry and especially claims representatives have been taught how to be far more aggressive in asserting the defense of low impact or low visible property damage. These adjusters are monitored closely by their claims supervisors and claims managers. The judges who are hearing these cases are also starting to believe that low property damage and low impact collision cases are taking more time than necessary from the judicial system. Therefore, in judicial settlement conferences, they are recommending that cases be settled for nominal value.
The major problem in these cases is that the personal injury attorney must convince a number of people that the client had no symptoms before the collision and that despite the so-called low impact or minimal property damage, the client did indeed sustain a real injury. In some cases, clients even find it to believe they could be hurt so bad and have so little damage occur to their vehicle or the other vehicle. Others who need to be convinced include medical providers, the insurance carriers who will never be convinced unless the doctor is 100% on board, a mediator if the case does indeed proceed to alternate dispute resolution, the trial judge if mediation fails, and the jurors if the case proceeds to trial.
On the other hand, insurance carriers do not really have to convince anyone because the burden of proof is on you. Defense counsel simply sit back and let you and your attorney try to hit the ball out of the park or at least to third base, but remember the two of you are playing against an entire infield and outfield.
8. Liability depends entirely on the plaintiff’s credibility
In many cases, liability can depend on whether the jury believes you or the defendant. Defendants sometimes lie to their insurance carriers. This problem is frequent in all types of personal injury cases including automobile collisions, truck accidents, pedestrian injuries, premises liability, product liability, and medical malpractice cases.
In such cases, physical evidence, such as skidmarks, photographs of property damage, etc., may support your version of the events. The police officer and other possible witnesses may have heard the defendant make statements that are inconsistent with his later version of the events.
9. The defendant is a likable witness
When your personal injury attorney is attempting to settle your case with the insurance company, the defendant is merely an “insured”—a name without a face, personality, or emotions. However, when you proceed to trial, your opponent is no longer a large insurance company, but rather, he or she is an actual person sitting just a few feet away from the jury. This problem can be quite serious. A sympathetic defendant can arouse such empathy from the jury that the jury members may compromise on liability or damages, or both. Since evidence of insurance coverage cannot be mentioned during trial (unless your action is against an uninsured motorist carrier), many jurors will believe that a judgment will be paid out of the defendant’s own pocket. Defense attorneys can use this mistaken impression to their advantage especially when the defendant is young, elderly, or the proprietor of a small family business.
To minimize this problem, your injury attorney may be able to convince the judge to forbid the defense attorney from implying that the award will come directly from the defendant’s pocket. Your attorney may also object to any evidence that appears to arouse undue sympathy for the defendant. Your attorney can explain to the jury that the verdict you seek is not a penalty or punishment for the defendant. Instead, the award will serve as restitution and compensation for your injuries.