A case often develops and “takes on a life of its own” due to the strategies attempted to be employed by defense attorneys. Essentially, a trial strategy can often draw a striking contrast between the way an incident seemed at the time of its occurrence, and how things are actually presented at trial.
A good trial attorney must keep the Judge and Jury focused on the truth at all times – and with the utmost passion.
For example, defense attorneys might approach the damages component of many plaintiffs’ claims by arguing over “causation.” As a matter of background, most personal injury cases are rooted in the law of negligence. In order to sustain a claim, a plaintiff must show four (4) main points:
(1) that the defendant owed him/her a duty not to harm / cause injury;
(2) that the defendant breached that duty;
(3) that there is a direct causal link between the defendant’s conduct and the plaintiff’s injury (the “causation” component); and
(4) that the plaintiff suffered damages.
When one thinks of a standard personal injury case, the common consensus is that the parties are arguing over a matter of perception — essentially, who’s fault the incident really was. However, defense attorneys might concede fault or “admit liability” but then spend the lead-up to trial and focus their entire efforts during the entire case and subsequently during the trial, itself, arguing that the plaintiff’s injuries were not caused by the defendant’s conduct (negligence). In plain English, the defense attorney will argue “Injured Sally’s bad back is the result of age and arthritis and not due to the rear-end car accident while Sally was sitting at a red light when Joe Defendant collided with Sally at 30 miles per hour.” In fact, defense attorneys will often hire a medical expert (a medical doctor) to analyze x-rays and other medical evidence to show arthritis or any other pre-existing conditions.
From a tactical standpoint, this is an interesting approach, because it changes the focus of what a case is really about. Instead of arguing over which driver had the right-of-way, a case becomes about whether that visit to the chiropractor was necessary, or why a plaintiff took an extra week to begin physical therapy.
Attorneys can bicker back and forth on these issues for days on end, and some of them actually do. Injuries are tricky sometimes — they aren’t always immediately apparent. Or sometimes, people do not like to admit to themselves that they are injured and take a “wait-and-see approach” to seeking medical treatment. In retrospect, it’s easy to make an armchair diagnosis, so to speak, and come to the conclusion that someone should have taken a particular course of treatment, but this approach isn’t necessarily consistent with the way things appear at the time of an incident.
This is an important consideration to keep in mind when seeking an attorney — no case is perfect, and what separates a skilled plaintiff’s attorney is the ability to clearly make the “causation” and “link” between the current injury and the accident and to carefully address any pre-existing problems and “carve out” such issues. Likewise, it is important that an injured party clearly communicate with his/her doctor the injury so it is well-documented in the medical records.
If you are in an automobile accident, get all the information possible immediately and take notes. Then contact an attorney immediately. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.
Berenz Law Network
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