Home | Glenn Faegenburg Discusses How to Counter Common Defenses in Personal Injury Lawsuits

Glenn Faegenburg Discusses How to Counter Common Defenses in Personal Injury Lawsuits

Apr 3, 2024


How to Counter Common Defenses to Personal Injury Lawsuits:

So during my last lecture, I discussed common defenses that are brought by defendants in cases where plaintiffs have been injured in accidents. And we talked about a number of different defenses. One of the defenses was, “It’s not my fault.” There’s another defense where, “Even if it was my fault, you’re at fault too.” There’s another defense that says, “Even if it was my fault, nothing really bad happened. No harm, no foul.” And another defense we discussed was meeting the level in order to succeed and that the case doesn’t meet the level. That’s another common defense. And lastly, when you don’t have anything and the liability is clearly against you and the injuries are bad, what typically happens is they attack the victim and they find something wrong that the victim has done in their lives and make a big deal out of that. I call that the attack the victim, Hail Mary defense. So these are all very, very common defenses and they can be very effective.So how do we counter these defenses?

Countering the “We Didn’t Do Anything Wrong” Defense:

So let’s start with the first one. How do you counter the, “It wasn’t us, it wasn’t our fault” defense. So the most important thing I think for almost any type of case, whether it be a trip and fall, whether it be an automobile case, whether it be a medical malpractice case, whether it be a construction accident, is an early investigation, it’s absolutely paramount. Why? Well, for a number of reasons. Number one, evidence tends to change or disappear over time. So you want to get to the scene where the accident happened as quickly as possible. What do you want to find out when you do these types of investigations? Well, first of all, you want to look at the physical scene and you want to be able to make sure that you’re either video recording it or photographing it and making sure that you, in detail, are getting all of the facts regarding the actual site of the scene.

And then the other thing that you’re going to be interested in doing is trying to find out whether there were any witnesses. Because clearly in a case where if they’re saying, “It wasn’t us,” and let’s say it’s an automobile case, a question of lights. One side said they have the red light and the other side said they had the red light. Well, they both didn’t have the red light. So we know one of them is inaccurate, may not be lying, may not completely remember. It is also possible that they are making that up as well. But in this situation where you have the red light, we both say that we had the green, we were both going through the intersection legally, it’s very important to find witnesses. And if you could find a witness who said, “No, no, no, clearly that car went through the light,” well that’s going to be very, very helpful to your case.

So how do you do this? How do you get witnesses? By the way, also surveillance video. It’s all over the place now, so it’s so important, especially automobile cases, trips and falls, all of that you want to, if you can find surveillance video, that’s going to give you probably the most detail of how the accident happened. So how does one go about doing this? Well, I mean, you should really be hiring a lawyer that has an investigator working with them. We have an investigator on staff. Not every firm has that, and certainly is advantageous in a situation where we get a call, we can immediately get someone out there and do an investigation to make sure that no evidence is lost and that we can get all the facts as we know them as quickly and as accurately as possible.

Another thing that we can use early on is what we call FOIL laws. So FOIL laws stand for Freedom of Information Laws and there are all sorts of laws that used to not be able to get certain public records, but the courts have eased up on allowing regular people to get these types of records. So you can get important records. If you have a case against, let’s say, the Transit Authority or the City of New York, there are tons of records that may be advantageous to you regarding maintenance records in the subway regarding repair records of the sidewalk or many of these records now are available through the Freedom of Information Law. And that’s another thing that we do along with our investigator. We obtain as much information as we can, underlying information, through using the Freedom of Information Laws. So all of those things help combat the defense of, “It wasn’t us, it wasn’t our fault.”

Countering the “Even if it was my fault, it’s your fault too” Defense:

The next one we’ll go on to is, “Even if it was my fault, it’s your fault too.” Okay, so this is a situation, let’s say, where I trip and fall on the sidewalk. Well, maybe there was a condition on the sidewalk that makes the defendant at fault that the defendant can come back and say, “Well, you know what, plaintiff? You needed to look where you were going. You needed to be aware of what was in front of you. You have to see what there is to be seen.” It’s called comparative negligence. So what are ways to defend against this comparative negligence? A couple of different things. Number one, I would say, is it’s very important to be consistent as a plaintiff because what they’re looking for on the defense side is for you to say something that’s inconsistent because then they can paint you out to be a liar and that’s what they want to do. So it’s very, very important to be consistent.

And I think a lot of plaintiffs sometimes make the mistake of wanting to help their case so that you know what? I’m going to say something and I’m sure it’s going to make my case more valuable. If that thing is not accurate and that thing is not true, it will do just the opposite. It will make your case worthless because what will happen is you would now have said something that is not true in an attempt to get more money for yourself in a case, and they are going to take advantage of that in a big way. So one of the most important things, especially when dealing with comparative negligence is to be accurate.

And even if you did something a little bit wrong, well that’s often something that we’re going to tell you just tell the truth about it, because it may be a little bit wrong. Let’s say it’s 10%. Well, you’re still going to get a 90% of your recovery even if you’re 10% negligent. But if you make something up, then a jury could say, “You know what? I’m not giving you anything.” There is a section in the jury charge that’s both falsus in uno, which says, if you lie about one thing, a jury can make the determination that you were lying about everything. So the most important thing I think to combat comparative negligence is consistency and accuracy. You can’t make stuff up.

Another thing that could be helpful is an expert looking at your case. So for example, a trip and fall case where we have a defect, if an expert can come out and say, “No, you know what? This defect was not a defect that would have been visible,” let’s say it happened at night, “at night. It’s not something that the pedestrian would have seen. So you really can’t hold the pedestrian responsible for seeing something that they really could not easily see.” And so those types of things can also be done to keep a plaintiff from being found comparatively negligent and thus lowering the recovery. Expert testimony is also very, very helpful. And there’s also case law out there. For example, if you get hit in the rear pretty much in New York, you’re going to win liability. There’s just so much case law out there that without a really, really good explanation, like an emergency explanation, if you strike somebody in the rear, then you are at fault and the person that gets hit in the rear is not at fault. So you also have to look at the case law.

Countering the “No Harm, No Foul” Defense:

So that’s how we go about working around the issue of comparative negligence or the newer at fault to defense. The next one that I want to discuss is how do you counter a no harm, no foul defense? Meaning that while we admit that we may have caused the accident, we don’t believe that there was any injury that was of any significance. All right, now this is used all of the time in so many different types of cases. So you have an automobile case, there’s actually a serious injury threshold in New York, so you have to reach a certain threshold to be able to even make a case. So there’s often a defense in those cases that whatever injury the plaintiff has, it’s just not a serious injury. Same thing can happen in a trip and fall. Same thing can happen in medical malpractice where somebody recovers. All of those are potential cases where they can raise the no harm, no foul defense.

So how do you counter that? Well, first of all, I think that you need to educate a jury that some of the worst injuries that people can get don’t involve broken bones. So everyone’s like, “Did you break a bone?” That’s always the big question. And by the way, breaking bones is a terrible thing. It can be very, very painful. And depending upon the bone, it can take a long time to heal. It may require surgery, it may require significant surgery, but there are other types of injuries that we call soft tissue injuries. And soft tissue by the sound of it, makes it sound like, “Ah, it’s not a big deal. There’s soft tissue. Who cares?” Not true. Soft tissue injuries like ligaments, tears, soft tissue injuries like herniated discs, soft tissue injuries like brain injuries can be very, very severe, can be worse than a broken bone. Many broken bones, depending on how they break and how they heal will often just heal and without too much incident.

The problem is when you’re dealing with something like a herniated disc, herniated discs just don’t unherniate on their own. So you can be stuck with a lifelong problem. And the problem with something like a herniated disc is while the discs are in your back, they can actually affect all sorts of parts of your body. For example, if you have a herniated disc in your lower back, you can get what they call sciatic pain, I’m sure you’ve heard of that, down your legs into your feet, and you can lose your ability to walk because of a back injury, because of the way the nerve structure is in the lower back. And same is true with the neck. If you injure the neck and you have a disc herniation in your neck, you can lose feeling, you can lose strength in your arms. So it’s a very, very significant and serious injury. And it’s important that you have an attorney that knows about the significance of the injury and is able to explain why these soft tissue injuries can often be devastating.

The brain injuries we’ll talk about, there’s an area of brain injury called mild traumatic brain injury, similar, in some ways, to post-concussion syndrome. And when you have this type of injury, it may not be readily apparent. If you saw someone on the subway, you might not know that they have a brain injury because they can walk, they can talk, and so they can function to that extent. What they will often have are losses that you might not just be aware of, but family members, people that spend time with these people are very aware. So their losses in memory, losses in cognitive ability, changes in behavior where somebody who is a kind person all of a sudden becomes very irascible and angry. These are all things that can be a result of a traumatic brain injury. And while they’re called mild traumatic brain injuries, MTBI’s, they’re not mild by any stretch in the imagination to the person who has sustained them, they are often permanent and they often have a tremendous effect on quality of life, especially if you’re somebody who had a very high degree of function to begin with.

So you can’t underestimate the significance of these soft tissue injuries. They’re going to try to make it sound like, “Ah, you know what? It’s just some sprains and strains and it’s no big deal and the award should be minimal.” With a good attorney if your injuries are such that you do have significant quality of life issues due to a disc herniation, due to ligament tears that require surgery, due to a mild traumatic brain injury, these things can be life altering and devastating. So you need somebody who can get that across to a jury in the event that the case goes to trial.

Countering The “Doesn’t Meet the Level Required By Law” Defense:

Next is doesn’t meet the level. I threw that into what we just spoke about. So how do you counter the doesn’t meet the level defense? And so we were talking about serious injury. So for serious injury, the most important thing for an automobile case to prove serious injury is you need to document everything. So all the medical treatment needs to be documented. The doctors that are performing these treatments need to document the significance of the injury with all of the testing that they normally do for these types of injuries. And all of these tests are very, very important. And an attorney needs to be able to read and interpret these tests.

And so if a patient sees a doctor and there is no mention about range of motion testing, there’s no mention about strength testing, those things can be very, very problematic for the plaintiff because then the defense will make a motion to dismiss the case saying it doesn’t meet this threshold and they’ll rely on the medical evidence. So it’s important that when you have an automobile case and you’re dealing with a soft tissue injury, that the doctor is performing every test possible so that we can determine how significant the injury is. With respect to medical malpractice, the argument often is while it was a bad result, but it doesn’t reach the level of malpractice. It wasn’t a deviation from accepted medical practice.

And that is also a very, very effective defense. Once again, you need to dive into the meds. You need to make sure that everything is being tested. And for these types of cases, you are going to be able to distinguish from a bad result from malpractice if you are careful and you go through every piece of the record. So for example, a bad result would be I went in for some sort of back surgery and I came out and really, my back wasn’t much better. Okay, that’s a bad result, but that’s not necessarily malpractice. Now, if I went in for back surgery and I came out not being able to use my arm, well that’s definitely going to raise the red flag and is likely going to be a medical malpractice case. And of course there are many cases that are somewhere in between that may be medical malpractice, but there is this argument.

Even if you, let’s say, perforate a bowel, depending on the procedure that you’re doing that may not meet the level, but for certain procedures, if you perf the bowel, it might meet the level if the bowel is nowhere near where you’re doing the surgery and you should had no business being in that space to begin with and shouldn’t have been in a position to perf a bowel, then that may be malpractice. So there are very, very fine lines of malpractice. Malpractice is a very, very difficult area of law. People like doctors, and there are a lot of defense verdicts. There are a lot of cases that get thrown out by the court. So you really, really need to get through those meds, read everything, have that outstanding expert. Without an expert, you can’t even do a med mal case. It’s just impossible because you need to get a certificate of merit to even start a lawsuit. So you must get an expert, and these are the ways that you can maybe get away from the defense argument that your case didn’t meet the level of medical malpractice.

Countering The “Hail Mary: Attack The Victim” Defense:

Lastly, we’re going to talk about the Hail Mary defense and how they attack the victim. Now, this is often used as a last ditch effort because if the liability is clear and the damages are bad, there’s not much they’re going to be able to say specifically about the liability that’s going to help them if the liability is clearly against them. And if the injuries are very bad, there’s not much that they’re going to be able to say about the injuries. What they can say is that the plaintiff is bad. So that’s what they do. They go and they search around, and they go into social media and they look for criminal records, and they look for something to pin on the plaintiff that he’s a bad guy, that he is had a criminal past, that he’s a liar, that he cheated the government.

These are the types of things that they will do in an effort not to pay. It’s ridiculous because they know they should be paying, and it’s this cold-hearted, dollars and cents only, we don’t care that we’re responsible, that brings out this defense, which is strictly done to keep the person from getting what they deserve. So these are actually, in my mind, this is one of the easier defenses to combat. You just tell the jury this is exactly what’s going on. You pull the curtain out and you let them see what’s really going on here, and you explain to the jury, “Don’t you see what’s going on here?” The liability is clear, they know it. The damages are clear, they know it. But they’re still defending the case. And how are they defending the case? They’re attacking the victim.

Why? Because of money. That’s why. they don’t want to pay the victim what he deserves. They want to pay the victim less than he deserves. They want a discount. How are they going to get the discount if the liability is clear and the injuries are bad? Get the discount by maybe convincing a jury that your client’s a bad person. That’s how they do it. So you need to pull the curtain back and tell the jury, “This is what is going on. They’re trying to pull the wool over your eyes. They’re trying to pay less than they should by attacking a guy that they hurt.” Man, it’s my favorite when they bring up this defense because it often will blow up in their face. So those are just some of the ways that you can counter some of the common defenses that are raised by defendants, and I hope this was helpful. Thank you.

You can find The Edelsteins Faegenburg & Brown Law firm on LinkedIn



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