Arguments of the Defendant: Deductions to the Plaintiff’s Compensation


Personal injury law provides privileges to the victims of negligence. They are given the chance to seek for compensation for the damages they have incurred because of another person’s failure to practice reasonable care demanded by the circumstance. Compensatory damages are all losses incurred by the victim whether it is tangible or intangible. Intangible losses such as pain and suffering, loss of consortium, loss of enjoyment or quality of life, etc. shall be converted by the jury with its equivalent dollar value. True enough, being a plaintiff in a personal injury case can make you gain a lot if you win the case. 

On the other hand, no matter how big the amount of compensation is, it can never be equivalent to the trauma and psychological discomfort you will suffer today and in the future. Worst, if the actual compensation will be deducted due to arguments or legal defenses of the defendant. These are the things you must be prepared with:


  • Contributory negligence. Though only a few states in USA adhere strictly to this defense, it is better to understand your status in the accident. Under contributory negligence, the plaintiff may or may not gain compensation if he or she has participated in the accident. A 5% degree of fault will eliminate your chance of getting compensated.


  • Comparative negligence. The plaintiff who is partially to be blamed in the accident may or may not get compensation depending on the degree of his or her fault. The jury will weigh his or her participation and it will be deducted in the total compensation he or she is supposed to get. In a pure comparative negligence the plaintiff can still gain at most 99% of the compensation if he or she was not totally at fault. However, with modified comparative negligence the plaintiff can only recover damages if his or her participation was at most 50%. 


  • Assumption of risk. The defendant may argue that the victim was aware of the accident that may happen and willfully participated in it. In such case, there is no more duty of care from the defendant. It usually happens when a victim neglected warning signs that lead to his or her injury. 


  • Failure to mitigate damages (after the accident). It is a legal defense common among incidents where the victim didn't seek medical help upon getting the injury triggering a worse condition. The compensation will cover only the damages incurred if the injury has been treated earlier. 


  • Failure to state the claim and underlying facts of it. When serving the complaint to the table of the defendant, it must contain all the elements and underlying facts that can prove negligence. When any element is lacking, the defendant can argue for a lack of substance. This is just a matter of technicalities; thus, before the claim is passed, it must be verified and reviewed. 


  • Lack of evidence. The game of any court trial is proving that the other party was negligent or at fault. The lawyer of the defendant may move the case to be dismissed; the jury will also dismiss the case if it found lacking evidence. 


  • Complaint filed beyond the statute of limitations. Each state has its own set of statute of limitations. When a personal injury case is filed after that, the plaintiff will have no chance to recover damages and losses he had suffered. 


With all the legal defenses a defendant can argue to lessen the compensation of the plaintiff, you must find a California Motorcycle Accident Attorney who is expert not just on looking for evidences but also in crafting your complaints. He must be able to identify the strong and weak points of his client and the defendant. These are all important in ensuring that you will be getting the rightful amount of compensation. 

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Comments: 1
  • #1

    Injury Compensation (Wednesday, 25 September 2013 05:49)

    I’m glad to locate so much of informative data in your blog.