Every Las Vegas car accident lawyer who routinely litigates cases must be aware of a few common defenses which frequently appear in many Clark County automobile accident cases. Of course, mere awareness of these often invoked defenses is not enough. An excellent Las Vegas car accident lawyer will be able to identify, confront and overwhelmingly defeat these common defenses by going on the offensive and taking strategic, well-thought-out measures to preclude any of the defenses typically utilized in car accident cases from being effectively used against his client. A top-notch Las Vegas car accident lawyer will often be able to present his case-in-chief in a manner that either neutralizes entirely or significantly weakens the defenses presented by insurance defense counsel. Common defenses need to be discussed with clients. All too often a lawyer-client discussion of common car accident case defenses does not occur. This is a major mistake. A relatively short discussion may reveal hidden gems that would otherwise have gone undiscovered. As with other areas of the case, an informed client will frequently assist trial counsel in discovering facts which may then be presented with significant impact. In short, any Las Vegas car accident lawyer who does not thoroughly explain and explore the defense aspect of a client’s car accident case is falling far short of the professional ideal and is taking an enormous unnecessary litigation risk.
What is Comparative Negligence?
The defense of comparative negligence is relatively new. Under the common law, the primary defense to a negligence action was the defense of contributory negligence. This overly harsh doctrine held that a plaintiff who was in the slightest way negligent was completely barred from any recovery. Even if the plaintiff was only slightly negligent, the defense would apply and he would recovery nothing. This defense obviously resulted in some fairly absurd results. There are hundreds of reported decisions which illustrate the absurdity of the application of this doctrine. Many show hugely deserving plaintiffs who were minimally careless being denied a recovery from a grossly negligent defendant. These unjust outcomes compelled almost all states to enact statutes which allowed for a deserving plaintiff to recover so long as his negligence did not outweigh the careless conduct of the defendant.
The rules pertaining to the doctrine of comparative negligence in Nevada are fairly simple. In essence, so long as any comparative negligence – careless conduct – of the plaintiff does not outweigh the negligence of the defendant, the plaintiff may recover money damages. If the jury finds that the plaintiff was comparatively negligent in an amount greater than the defendant’s negligence, it is a complete defense. In other words, the plaintiff will receive nothing. If however, the jury finds that the plaintiff is comparatively negligent in an amount less than that of the defendant, the plaintiff may recover a reduced amount.
The judge will require the jury to first, return a total amount of damages to which the plaintiff would be entitled to recover without regard to any comparative negligence on the part of the plaintiff. Second, the jury will then need to indicate on the verdict form the percentage of negligence attributable to each of the parties. After the jury makes its findings, the judge will do the math and announce the result. Of course there are more issues about comparative negligence than the ones presented above, however, for purposes of client understanding, the above recitation is sufficient. The conscientious Las Vegas car accident lawyer will always make sure that his client understands the potential ramifications of his careless conduct. Almost always, in any Las Vegas car accident case involving contested liability, the defense will allege that the plaintiff was comparatively negligent to the extent that he should be barred from any recovery. It is always essential to carefully consider the conduct of your client to learn of anything which may be used by the defense to mount an effective comparative negligence defense. This involves more than simply scrutinizing the Traffic Accident Report. The client needs to be carefully and thoroughly questioned as to the all the details surrounding the accident. The sooner a potentially viable defense presents itself, the sooner an effective Las Vegas car accident lawyer can take steps to defeat the allegations that underlie the defense.
What is the Sudden Emergency Doctrine?
Another defense which comes up frequently in Las Vegas car accident cases is the sudden emergency doctrine defense. In essence, this defense provides that a defendant is not negligent when confronted with a sudden emergency, not of his making, and he acts as a reasonably prudent person would upon being confronted with the same emergency. It is important to note that if the defendant’s own negligence causes the emergency, the defense does not apply. The emergency must be of another person’s making. For example, a truck driver who is otherwise operating his truck in a safe non-negligent manner and gets attacked by a bee that flew in his window and causes an accident could be found not liable so long as the jury found the emergency was not of his making and that he reacted in the way another reasonably prudent person would act under the same circumstances. Contrast that scenario with a driver who is following too close and rear ends the car in front of him when that car has to quickly stop to avoid hitting a pedestrian. In this fact pattern it is unlikely that the driver who rear-ended the car in front of him could effectively use the sudden emergency doctrine because by following too close, he was driving carelessly and was not confronted with an actual sudden emergency.
Fundamental to this defense is the rule that person who places himself in peril through his own negligence cannot effectively invoke the sudden emergency doctrine. That fact being well-understood by insurance defense lawyers, it is remarkable how many bees and wasps are present in defense allegations. After reading many of the defense pleadings in Las Vegas car accident cases one would be reasonable to believe that Clark County is the nation’s ground-zero for wasp and bee infestation. Of course, that is not the case, but a diligent Las Vegas car accident lawyer will always carefully canvass his client for any facts which may provide a basis for the defense to legitimately invoke this defense.
What is Failure to Mitigate Damages?
Another insurance defense favorite is the allegation that the injured plaintiff failed to mitigate his damages. This defense essentially provides that an injured plaintiff who unreasonably avoids or minimizes reasonable care should have his recovery reduced accordingly. Two repeated allegations in this regard are: the plaintiff unreasonably delayed in obtaining initial medical treatment after the accident, and the plaintiff unreasonably refused to follow medical advice. Therefore, if the defense can present credible evidence at trial that the plaintiff failed to mitigate his medical damages, the judge will instruct the jury accordingly. The controlling rule in Nevada is that it is the duty of a person who has been injured to use reasonable diligence in caring for his injuries and reasonable means to prevent their aggravation to accomplish healing.
This relatively straightforward defense inevitably becomes an issue with a significant minority of clients. Persons who are injured are understandably eager to return to their prior lifestyle. No one likes having to miss out on physical activities and hobbies. Many clients find the temptation to be fully active irresistible and engage in activities entirely at odds with the restrictions provided by their doctor. Many clients find it difficult to make their medical appointments and therefore miss the important treatment. These issues can kill an otherwise good case. No Las Vegas car accident lawyer wants to be placed in a situation where their client was videotaped playing softball against the treating physician’s orders. These simple issues are killers and many otherwise legitimate cases have been lost because a client refuses to follow his doctor’s orders. Discussing this defense with all car accident clients is a must.
Allegations of Malingering
Last but not least is the malingering/secondary gain defense. This is where the insurance defense lawyers truly add insult to injury. This defense is as simple as it is obnoxious. The malingering defense simply involves the insurance defense lawyers accusing the injured person of faking it for financial gain. That is not to say that there have not been cases where persons have malingered. But injured persons certainly do not malinger to the extent that defense counsel contends. Every Las Vegas car accident lawyer has been confronted with this defense.
The prevailing defense attitude as to malingering appears to be that when all else fails, simply accuse the plaintiff of being a malicious fraud. An accusation of malingering is nearly always coupled with what the defense believes is an inconsistency on the part of the plaintiff. When a plaintiff is engaged in litigation, he will inevitably be asked numerous questions pertaining to personal history. Frequently bankruptcies, criminal convictions, prior medical injuries/treatment and traffic citations are all on the table for discussion. Of course, whether a judge determines those areas of inquiry relevant is a different matter. It is incredibly important that all these items are discussed with the Las Vegas car accident lawyer who is litigating the case. No detail is too trivial or unimportant. The reason these issues are of critical importance is so that discovery is answered in a manner which preserves the clients’ reputation for accuracy. It cannot be overstated. The defense will seize upon any discrepancy or inconsistency and argue the plaintiff cannot be trusted. A diligent Las Vegas car accident lawyer will meticulously canvass his client as to all possible issues for accuracy and put the defense in the unenviable position of having no factual inconsistencies by the plaintiff to point to and make an issue of at trial.
Of course, there are many ways an excellent Las Vegas car accident lawyer can often utilize evidence to defeat this claim. However, those lie beyond the scope of this article. In sum, it is important to understand that sometimes this allegation is brought. It can be risky for the defense, however, and sometimes it can backfire. Jurors are frequently offended when a likable plaintiff who has obviously lived an ethical life gets recklessly and dishonestly accused of being a rip-off artist. Like all other defenses, it is critical that the Las Vegas car accident lawyer and his client completely discuss this defense and the ways in which the defense can be defeated.
Understanding these basic, overwhelmingly common defenses are critical in most car accident cases. The discussion of defenses is perhaps the most underutilized form of case preparation which exists in the plaintiff’s bar. Any Las Vegas car accident lawyer who is in the slightest degree diligent will always carefully discuss and explain all relevant defenses to his client. When clients understand, they invariably make better witnesses. Remember, trials are a team effort. A Las Vegas car accident lawyer who understands this basic truth is one who is best positioned to obtain the best possible outcome for his client.