13 Mistakes to Avoid When Negotiating an Auto Accident Settlement (Ep.35)
How to Avoid Paying Injury Compensation
When you injure someone intentionally or negligently, a court can order you to pay compensation. The most effective way to limit your liability is to adequately warn people of any dangers on your property. You can also try to claim at court that you were not to blame for the plaintiff’s injuries, although defending yourself will cost you time and money.
Providing Adequate Warnings
Identify hazards.You can limit liability for injuries on your property if you adequately warn people of the danger. Generally, you do not have to warn for “open and obvious” dangers, like a giant hole in the ground.But if you run a business, you should go through and identify any hazards in your store. You should correct the hazards that you can and warn the public of the ones you can’t fix, even if the danger seems obvious to you.
- Sometimes, a hazard may be temporary, as when you mop a floor during business hours. You should buy a cone that warns people that the floor is wet and make sure to set it up as you mop. If the danger is more permanent—say, loose ceiling tiles in a corner of your store that you haven’t had a chance to fix—then you should cordon off the dangerous area to keep people away.
- Install other signs as necessary. If the parking lot is icy, then have a sign warning customers of that fact.
Label products.You will need to disclose to consumers the dangers of any product that you manufacture. Try to think through the potential dangers associated with your product.
- For example, very small products could be accidentally swallowed by children. Electrical products could be plugged in around water. Flammable materials could be thrown into the clothes dryer, where they might catch on fire. You need to think about how the product could be used and any attendant dangers.
- You can affix a warning label. You do not have to warn for every conceivable danger. (If you did, your warning label might swallow the product.) But you should warn against reasonably foreseeable dangers. Imagine the ordinary consumer using the product and identify likely dangers that present themselves during ordinary use.
Get a waiver of liability.You can try to limit your legal liability by having customers sign a waiver of liability agreement. These are not appropriate for all businesses. For example, a drug store should not have customers sign a waiver of liability form before entering the store. You would end up driving most customers away.
- However, some businesses might benefit. If you offer services that could be dangerous (like sky diving or bungee jumping), then you might want to use a waiver of liability. These waivers are not always effective. They can protect against negligence but probably not gross negligence.Nevertheless, they can create a hurdle for the plaintiff to overcome.
- You should meet with an attorney who can help you draft a waiver of liability. You want the language to be clear and noticeable on the page.
Document that you provided the warning.If someone slips and falls in your store, then quickly document that you had proper warnings in place. If you need to use your cell phone to take a picture, then do so. Take photographs from many different angles so that a person who has never been in the store can understand how visible the warning was.
Get witness statements.If someone falls in your store, then you will want witness statements. Get the names and contact information (phone number, email, address) so that you can contact the person. Even with proper warnings, you could still be sued and have to defend yourself in court. You will want to start building your case immediately.
- The best witnesses are those who are third parties and do not know either you or the plaintiff.Because these witnesses have nothing to gain (or lose) by testifying, the jury may find them more credible.
- If you are alleged to have committed an intentional tort (i.e., battery or assault), you should get witness statements that corroborate any defense claim you might make during a lawsuit. This would include witnesses that believe you were acting in self defense, defense of others, or out of necessity.
Defending Yourself in a Lawsuit
Read the complaint.If an injured person decides to sue you, then you will receive a copy of the complaint and a summons. The summons should tell you the deadline for answering the complaint.Take note of the deadline.
- The complaint will lay out the factual allegations surrounding the injury and also the legal reason why the plaintiff is entitled to compensation. The complaint should also state how much compensation the plaintiff is seeking.
- If you have insurance, then you need to notify your insurer. You may need to notify your insurer as soon as you learn that someone has been injured on your property.
Determine whether you are being sued for an intentional tort.If you are being sued for an intentional tort, for example an assault or battery, you will need to know so you can properly prepare your defense. In order to avoid paying compensation to an alleged victim, you will have to be able to prove there was a valid reason you acted in the manner you did. In general, if you have been sued for an intentional tort, you can use the following defenses in order to avoid liability:
- Self-defense, which means you used a reasonable amount of force to protect yourself from danger;
- Defense of property, which means you used a reasonable amount of force in order to defend against an intruder who might have harmed you or your property;
- Consent, which means the alleged victim actually consented to you acting in the manner you did; or
- Necessity, which means you invaded the alleged victim's property but only because there was some sort of emergency (e.g., there was a terrible storm and you would have died unless you got inside a home).
Meet with a lawyer.If you want to defeat a personal injury lawsuit so that you don’t have to pay compensation, then you should consider meeting with an attorney. An experienced attorney can help you build your case and honestly assess whether you face liability.
- To find an experienced personal injury attorney, you can contact your state’s bar association, which should organize a referral program. For more tips, see Choose a Personal Injury Lawyer.
- Always remember to check whether or not the personal injury lawyer represents only plaintiffs. Some don’t represent defendants.
- Your insurer (if you have insurance) may be obligated to defend you in court. You should check your insurance policy. If the policy contains a “duty to defend” provision, then your insurer will probably be obligated to hire legal counsel to defend you.
Gather evidence.You will want evidence that shows you gave proper warnings or that the plaintiff helped contribute to his or her injury. The formal evidence gathering phase is called “discovery.” It will happen after you file your Answer or your Motion to Dismiss.
- Nevertheless, you can begin now to find any evidence relevant to your case. You should have taken photographs of the scene of the accident and kept copies of any warning labels or liability waivers. Your lawyer will want to see these.
- If you are being sued for an intentional tort, you will want to gather witness statements, medical records that might prove you were acting in self defense, video or audio tapes that show the alleged victim consented to the act, or evidence that some act of god forced you to act the way you did (i.e., proof of necessity).
Answer the complaint.As the defendant, you have the choice of filing either an Answer or a Motion to Dismiss in lieu of an Answer. In the Answer, you respond to each factual allegation by either admitting, denying, or claiming lack of sufficient knowledge to either admit or deny.
- You also can raise affirmative defenses in your Answer. One affirmative defense is that the plaintiff waited too long to file the lawsuit and is barred by the statute of limitations.
- You can also file a Motion to Dismiss. The purpose of the Motion to Dismiss is to argue that the case should be dismissed for a specific reason, often because the plaintiff has not stated an actual claim or because the plaintiff has filed the case in the wrong court.
- For more information about the requirements, see Draft a Motion to Dismiss.
Participate in discovery.If you lose the Motion to Dismiss, then you will proceed to discovery. Discovery is a stage in litigation where the parties request information in the control of the other party. There are many discovery techniques, and your lawyer will probably use each of them:
- Requests for Production. You can request relevant documents from the plaintiff. For example, you might want to see copies of medical reports so that you can see just how serious the plaintiff’s injury really is.
- Interrogatories. These are written questions given to the plaintiff which he or she must answer.
- Depositions. During a deposition, a person answers questions orally under oath. Depositions usually take place in a lawyer’s office and are recorded either by video or by a court reporter. As the defendant in the lawsuit, you will likely be deposed.
Think about Alternate Dispute Resolution (ADR).ADR is an umbrella term for resolving cases outside of court. The most common ADR techniques are settlement negotiations, mediation, and arbitration. You should talk with your lawyer about the pros and cons of each.
- You could certainly participate in settlement negotiations or mediation. However, you are unlikely to avoid paying compensation. It is the rare personal injury plaintiff who will accept no money in exchange for relieving you of liability for a claim. Furthermore, you need to participate in negotiations or mediation in good faith. If your goal is to avoid paying any injury compensation, then you should decline.
- More likely, you could participate in arbitration. Arbitration is like a trial. You and the plaintiff present documents and witnesses to an arbitrator, who then decides the case. Often, there is no appeal from the arbitrator’s decision.
- Advantages of arbitration are that it is generally faster and less expensive than a traditional trial. Arbitration is also private, so the public will not know what happened at arbitration hearings.
File a Motion for Summary Judgment.You can defeat a lawsuit by filing a Motion for Summary Judgment. The purpose of the summary judgment motion is to argue that there are no disputes regarding issues of material fact and that you deserve judgment as a matter of law.
- If you win your motion for summary judgment, then the plaintiff cannot refile against you for the same personal injury claim. Because the motion is so critical, you will want a lawyer to help you draft it.
Prepare for trial.If you lose the summary judgment motion, then you need to prepare for trial. At this point, the only way to avoid paying compensation is to win at trial. You and your lawyer should discuss whether you want a jury trial or a bench trial. You should also talk about what evidence to present.
- For example, if you want to argue that you properly warned the plaintiff of dangers, then you will need evidence that you gave the warnings: testimony (yours and witnesses) as well as photographs and even the warning sign itself.
- You might also argue that the plaintiff was not seriously injured by you but instead aggravated his or her own injuries. Here, you would need to look at the medical evidence and present proof of how the plaintiff aggravated her injuries: testimony of witnesses, videotape of the plaintiff not being injured after the accident, etc.
Going to Trial
Select the jury.You will begin the trial by selecting jurors in a process called “voir dire.” Prospective jurors will be called to the front of the courtroom where they will be asked questions by the judge and maybe by the attorneys. The purpose of the questioning is to uncover hidden bias and to make sure that the juror can be fair.
- Your lawyer will be able to strike jurors for cause (bias). He or she can also use “peremptory challenges.” With a peremptory challenge, your lawyer does not need to give a reason. So long as the lawyer does not exclude jurors for a discriminatory reason (such as race or gender bias), then he or she can exclude whoever they want. Each lawyer is given a certain number of peremptory challenges.
Deliver an opening statement.The trial opens with the plaintiff’s lawyer delivering an opening statement. As the defendant, your lawyer will go second. The purpose of the opening statement is to give the jurors a sneak peek at what evidence will be presented. An effective opening statement should not be too long.
Cross-examine the plaintiff’s witnesses.During the “case-in-chief,” each party presents evidence, including witnesses.The plaintiff will go first. After the plaintiff’s attorney asks the witness questions, your lawyer will be able to cross-examine. The purpose of cross-examine is to undercut the witness’s story. This can happen in a couple of ways.
- First, the attorney can point out that the witness didn’t really see what she claims to have seen. For example, if a witness claimed to see a ceiling tile fall from the ceiling and strike the plaintiff, then your lawyer can show how the witness couldn’t see the plaintiff from where she was standing. This is called challenging the witness’s perception abilities.
- Your lawyer could also try to impeach the witness with a prior inconsistent statement. If the witness gave a deposition, then he may have said something differently at that time. By presenting a prior inconsistent statement, your lawyer can create doubt in the jury’s mind that the witness is telling the truth on the stand.
Testify.As the defendant, you will probably have to testify. You should prepare for your testimony by doing a practice run with your lawyer. When on the stand, try to remember the following:
- Always sit up straight and look at the lawyer asking you questions. When you answer, look at the jury and speak slowly.
- Always be clear in your answers. Don’t hedge or be evasive. Always answer questions truthfully.
- Answer in words, not shrugs or sounds like “uh huh.” Instead, say “No” or “Yes.”
- Listen carefully to the question and answer only the question. If you don’t understand the question, then say, “I don’t understand what you are asking.”
Make a closing argument.After all evidence has been introduced, the attorneys will be able to make a closing argument. The purpose of the closing argument is to sum up the evidence and show how the evidence supports your side.
Wait for a verdict.When all evidence has been presented, the judge will read the jury instructions. The jurors will then retire to deliberate. In many state courts, a jury does not have to be unanimous to find you liable for the plaintiff’s injuries. Instead, a 9-3 verdict can be sufficient.
- If you lose at trial, you can appeal. However, the legal costs (and time) will continue to mount. Discuss with your lawyer whether an appeal is worthwhile.
- Although you undoubtedly do not want to settle and pay the plaintiff anything, you should realize that properly preparing and defending a personal injury lawsuit is time-consuming and expensive. You might ultimately find that it is cheaper to simply settle rather than continue to fight.
Video: 5 secrets insurance companies don't want you to know about Personal Injury Claims
Ham Carbonara Recipe
I Carried My Terminally Ill Baby So She Could Save Others
How to Make a Hydrometer
How to Do Creative Hatha Yoga
Candy corn is fun to eat
How to Have a Life Like Acacia Brinley Clark
The Absolute Best Boot Style to Wear With Skinny Jeans
Cherry-Pistachio Blue Corn Biscotti
How to Prioritize
4 Steps to a Healthy Grocery List
How to Prepare for a Criminal Trial